WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 517(1) of the Criminal Code. This subsection and subsection 517(2) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:
517. Order directing matters not to be published for specified period.
(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as
(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.
(2) Failure to comply. — Every one who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Date: 2016-03-23
Court File No.: City of Windsor; Town of Tecumseh; Town of Lakeshore and City of Detroit in the State of Michigan 16-11270 & 16-11268
Between:
Her Majesty the Queen
— AND —
FMD, DM, AC, KL, JJ and CW
Before: Justice of the Peace DeBacker
Heard on: March 9, 14, 15, 16 & 17, 2016
Reasons for Judgment released on: March 23, 2016
Counsel:
- Ms. J. Holmes — counsel for the Crown
- Mr. J. Liddle — counsel for the accused FMD
JUSTICE OF THE PEACE DEBACKER:
[1] Introduction to the Hearing
Held in this matter was a reverse onus judicial interim release or bail hearing of FMD. The hearing was reverse onus due to the nature of the charges. Mr. FMD is a person without a criminal record, charged, together with DM, AC, KL and JJ, between the 9th day of December, 2015 to and including the 25th day of February, 2016 with conspiracy to commit the indictable offence of trafficking cocaine. There are thirteen (13) counts in total he is charged with, some alone, some with other co-accused, regarding cocaine trafficking on Information 16-11270. FMD stands charged on two counts, both together with CW on Information 16-11268 between the 9th day of December, 2015 to and including the 25th day of February, 2016 with conspire with one another to commit the indictable offence of unlawfully importing firearms from United States into Canada and trafficking firearms.
Crown's Evidence/Alleged Facts
[2] Project Kirby Overview
Police commenced 'Project Kirby' in April 2015 wherein they collected intelligence information from two known targeted groups involved in guns and drug trafficking. FMD was the principal target of one of the groups. Project Kirby's operational phase commenced November 30, 2015 wherein a paid police agent, 2 undercover officers and a covert store were utilized to obtain volumes of both taped audio and taped audio/video evidence. This operation ended February 25, 2016 and parties were arrested February 26, 2016.
[3] Nature of Evidence
Most of the evidence heard at the judicial interim release bail hearing were audio and audio/video tapes of secreted intercepted communications. Sergeant Bradford, the lead investigator, provided the narrative, dates and circumstances surrounding the recordings. Much of the recordings contained discussions about how drug and gun transactions would occur, the prices required for cocaine or guns, the quantities of cocaine and guns and how guns would be brought across the international Windsor-Detroit border by a courier. We also heard the parties discuss their wild lifestyle, personal drug use, spending sprees and wild gambling events.
[4] Summary of Evidence
I will attempt to expediently summarize the relevant content of the evidence heard in chronological order. This summary is in no way inclusive of all of the pieces of evidence heard over several days. It is only a highlighted, shortened and condensed version.
[5] Presumption of Innocence
I would like to emphasize all of the evidence are allegations. We are at the allegation stage here, in a bail hearing, where the presumption of innocence remains paramount.
Chronological Summary of Alleged Events
December 9, 2015
[6]
Recorded conversation between police agent and FMD at Emeryville Pizza was talk about buying a handgun and cocaine. Within the discussion FMD indicated he can supply 5 kilograms of cocaine a month. An agreement is reached wherein FMD agreed to sell the police agent 4.5 ounces of cocaine for $8,750. FMD lastly indicated how he likes to play baccarat and lost $5,000 at this game in one night.
December 15, 2015
[7]
Recorded audio/video wherein the undercover officer and police agent met FMD and DM at the covert store. The agent paid FMD $8,750 for 4.5 ounces of cocaine. FMD, together with DM, supplied police agent with 1.5 ounces of cocaine. There was discussion regarding the remaining 3 ounces of cocaine. There was extensive conversation wherein FMD talked about purchasing and smuggling firearms from the United States.
[8]
Exhibit 1 is a photograph of 1.5 ounces of cocaine police obtained from this transaction from FMD.
December 18, 2015
[9]
In recorded conversation FMD, DM and police agent meet at Gennaro Café wherein FMD and the agent negotiate for 4 ounces of cocaine to make up for the shortfall from December 15th. All leave together. They switch from FMD's vehicle into DM's vehicle. From there, the two, FMD and police agent attend AC's residence. While waiting for AC, FMD discussed with police agent the DP shooting he was charged with in 2009, where charges were later withdrawn. There was talk of pounds of cocaine that FMD could obtain and sell for $30,000 and make a 25% profit. There was discussion of how FMD cooks cocaine, adding quantity to its volume.
[10]
FMD was heard saying, "bring me 6 ounces of cocaine" to AC, who did in fact bring out 6 ounces of cocaine, packaged in one bag containing 3 bags, each containing 2 ounces of cocaine. FMD discussed with the agent how AC is one of his stash houses. FMD will take money off AC's cocaine debt for holding for him. FMD then supplied the agent with 4 ounces of cocaine, which the agent in turn, provided to police.
December 19, 2016
[11]
In recorded conversation FMD told the police agent how he had been up all night on a drug he calls, "Molly" and he was planning on going to sleep.
December 22, 2015
[12]
In recorded conversation between FMD and police agent, FMD told the agent how he had been playing baccarat last night. There were 7 people playing and $40,000 on the table. He seen one person loose $9,000. Said he won $2,000. FMD further told the agent he purchased 2 AK47 guns. Through this conversation FMD spoke of having the guns on his person while walking through a casino that people smoke in, 'down there'. Crown's theory is that FMD was referring to being within the United States at this time. There was talk that the gun cost $3,200 Canadian dollars. FMD revealed he has $7,000 at a location waiting for him to pick up, however he feels too lazy to go out and do so.
December 27, 2015
[13]
In recorded conversation, FMD told police agent of his plans to move to Punta Cana, Dominican Republic. Once he moves there he's never coming back. FMD allegedly spoke of being in a gambling room the previous night where there was $100,000 at stake. He seen a person loose $25,000. FMD provided further discussion and intricate knowledge of a double homicide in Windsor, Ontario that had recently occurred.
January 5, 2016
[14]
Recorded conversation from Punta Cana, FMD discussed being high and his drug use.
January 6, 2016
[15]
In recorded conversation FMD contacted the police agent over video chat from Dominican Republic. The two discussed a cocaine transaction. FMD indicated he has 9 to 10 ounces of cocaine however 6 are spoken for. FMD and the agent negotiated a price $1,600 each or $3,200 for both. FMD agreed to sell the police agent 2 ounces of cocaine for $3,200. From his location in Dominican Republic, FMD made arrangements for KL in Windsor Ontario to complete the physical transaction. FMD allegedly provided the agent with a contact number for KL.
[16]
The Crown's case alleges this transaction did in fact occur. Police have audio tape of the transaction. Police agent did in fact meet KL in Windsor Ontario where the agent provided KL with $3,200 and KL provided the agent with 2 ounces of cocaine. Police have seized this cocaine as real evidence.
[17]
FMD orchestrated and facilitated a Windsor drug transaction for ounces of cocaine from an international location. FMD is alleged to have made the comment, "Mother-Fuckers can't follow me."
January 16, 2016
[18]
With FMD back in Windsor, Ontario, a recorded conversation between him and police agent occurred regarding further drug transactions. FMD discussed KL's pay he owes him for his role in the prior drug transaction. FMD discussed his plans to leave for Italy in March. FMD discussed his plans to stay in Italy for two weeks, or one month or perhaps just stay in Italy permanently. FMD indicated he has an Uncle Nick in Italy who makes 1 to 1 ½ Millon dollars a year. FMD discussed his prospective involvement with Uncle Nick in Italy where FMD anticipated being paid $50,000 to $60,000 a month, up to $100,000 a month. FMD made reference to being done or completed with his business dealings here. This recorded conversation, made prior to arrest, raised primary ground concerns.
January 19, 2016
[19]
There are 9 ounces of cocaine transacted at the covert store. Played in court was the audio video recording of this transaction. It is alleged FMD contacted the police agent January 17, 2016 looking to sell him cocaine. The parties agreed to 9 ounces of cocaine for $17,000. On January 19, 2016 the video showed FMD and the agent greeting one another at the covert store after FMD's absence from Windsor. FMD appeared very happy. FMD indicated to the agent he made $16,000 just that day. FMD showed the agent an expensive watch he was wearing and a backpack he paid for. The transaction occurred and was recorded. FMD provided the agent with 9.8 ounces of cocaine and crack cocaine and the agent provided FMD with $17,000. Police seized the cocaine and have it as real evidence. FMD told the agent to keep $250 as a bonus.
[20]
During a lengthy audio recording, FMD and the police agent discussed and negotiated a transaction whereby guns would be smuggled across the Windsor-Detroit border. There was discussion about the amount per gun to be paid, in United States or Canadian currency.
[21]
The same date police agent, KL and FMD attended a number of establishments together. While they are all being driven by FMD in his Lincoln MKT, FMD was alleged to say, "Wanna see what happened to Meech?" FMD was alleged to point out a door where Meech, also known as DP, came right out that door. FMD was alleged to say, "I hit right there, pop, pop, pop, pop, he ran that way, I got the fuck out".
[22]
Crown's theory is that within this conversation FMD was referring to when he was alleged to have shot DP. In fairness, there was evidence was well to the contrary. Upon police review of the crown's brief on the DP shooting, nowhere did any witness mention DP exiting a door before being shot. Civilian witnesses did not identify FMD from a photo line-up. Further, the subject vehicle was examined for fingerprints and FMD's fingerprints were not found. Either way, this evidence does speak to the character of FMD. Even taken at its lowest value, FMD was bragging about purportedly being involved in violent criminal behaviour.
[23]
In addition within this recorded conversation, FMD and the police agent discussed drug smuggling from Ohio of 'Jars'. A jar represents 100 pills of oxymorphone and/or oxycodone. They sell for $4,000. FMD indicated he purchases them for $1,800.
[24]
There was yet additional discussion about gun trafficking, cost and quantity of guns from United States, splitting the profit, FMD's personal drug use and even talk of bringing in prostitutes from Dominican Republic.
January 27, 2016
[25]
In recorded conversation between FMD and police agent, FMD revealed at length how he was the original broker of guns where persons from both Windsor and Detroit were convicted. FMD claimed he originally brokered the transactions then was shut out by the parties involved. The case was known as Project Traveller. Sergeant Bradford testified that FMD's version of events, the case name, Project Traveller, and the consequences were accurate. The crown confirmed the smuggling method, persons convicted who FMD named, Lamar Porter and Jerry Pope, their names and the lengthy sentences they received as accurate. Crown indicated both received within the 9 – 12 year range as sentence. This alleged evidence is an acknowledgment by FMD of the consequences of lengthy period of incarceration one involved in such serious international gun and drug trafficking would face if convicted.
January 28, 2016
[26]
Recorded conversation between FMD and police agent wherein they broker a transaction together for firearms. Police agent physically paid FMD $6,000 United States currency down towards the purchase of 3 handguns from the United States. Counting the dollars can be heard on the audio. $6,000 is half. The two discussed $12,000 for 3 guns, $4,000 each. They discussed the quality and type of handguns and FMD was alleged to say he will ensure the best types will be received, specifics mentioned. It is important to note the source of the cash deposit and prospective buyer was projected to be 'Benny', an undercover police officer who posed as an Asian organized crime lord from Toronto. FMD and the police agent discussed how they planned to pay their United States connection $4,500 for the three guns in total and the courier $1,000. The agent's cut will be $500 per gun. FMD's projected net profit will therefore be $5,000. They discussed the details of the transaction and the courier. FMD was alleged to be heard saying he makes $10,000 a week.
[27]
Again, it is alleged Mr. FMD discussed his knowledge that persons are liable to a lengthy term of imprisonment if convicted of such activity. He spoke of a girl who got 6 years for smuggling a gun.
[28]
Within the conversation the name 'C' reference to CW, co-accused, was indicated as FMD's United States connection for guns.
[29]
Lastly, there was talk of FMD asking police agent to be sure to only deal with him and not CE.
February 2, 2016
[30]
It is alleged that within a conversation between FMD and police agent, FMD made comment of having $60,000 worth of cocaine stored at KL's place. The parties agreed that the police agent will purchase 9 ounces of cocaine from FMD.
February 3, 2016
[31]
It is alleged police agent met with FMD on February 3, 2016 and provided FMD with $16,000. FMD in turn provided police agent with 10 ounces of cocaine and crack cocaine. Discussion ensued regarding the agent owing FMD an additional $1,700 for the additional ounce of cocaine. Exhibit 18 are photographs of the 9 ounces of cocaine, real evidence, police secured from this transaction.
[32]
It is further alleged within the conversation, FMD indicated he already had $50,000 cash and that he planned to use this additional cash provided to him of $16,000 to go towards the purchase of one kilogram of cocaine from JJ, also known as Primo, a person FMD referred to as a very reliable supplier. There was talk of one kilogram costing $60,000.
[33]
Crown introduced JJ's criminal record as Exhibit 17. JJ has past convictions for drug trafficking as well as possession of a loaded prohibited or restricted firearm where he received 3 years sentence in addition to 241 pre-sentence in 2007.
[34]
During the recorded conversation it is alleged FMD spoke of his displeasure of how DM owes him $5,000. FMD was alleged to be heard saying, "he will get his Dad involved. His Dad will kill him and break his head."
[35]
It should be noted that FMD's father, FD applied to be one of the sureties. FD testified this information could in no way be accurate or feasible. DM is his wife's brother. FD was DM's best man at his wedding years ago. The parties, although not close, do not hold negatives between one another. FD indicated he is presently on worker's compensation for a back injury.
[36]
Lastly, FMD can be heard speaking of his potential to make upwards of $40,000 per month. Crown asked Sergeant Bradford, given the police involvement and knowledge of FMD's operations, could this be possible. Sergeant answered it could be very accurate and achievable. It could be net from trafficking 3 – 5 kilograms per month.
February 8, 2016
[37]
In a recorded conversation between FMD and police agent, FMD spoke of how he may be gone. FMD indicated he may spend a couple of years in the Dominican Republic with Al Quesnel and DM. FMD further referred to his paying KL for KL's role of holding cocaine for him.
February 9, 2016
[38]
In an extensive recorded conversation between police agent and FMD, discussion occurred regarding trafficking firearms across the international border. FMD expressed concern regarding the girl courier. FMD spoke of that is how others he personally knows got busted, the courier may talk. FMD once again acknowledged his liability to a lengthy term of imprisonment if convicted of cross-border gun trafficking. He spoke of 10, 15 to 20 years imprisonment. FMD indicated he himself will likely get 20 years. He was alleged to indicate he already makes $40,000 per month selling cocaine. FMD indicated he has five (5) guys who sell for him. One at Chrysler, one owns a pool company, one builds houses.
[39]
Nevertheless, FMD can be heard placing a call to CW, his United States gun connection, where they discussed timing of the transaction. There was further discussion about the type of guns, money to be paid for same and smuggling methods. FMD was alleged to have verbally referred to himself as a "peddler of guns".
February 10, 2016
[40]
In a recorded conversation between police agent and FMD, FMD was alleged to speak of increasing the amount and frequency of guns to be trafficked cross-border, to as many as 100 in a row, thus increasing or stacking up his 'blue cheese' or American currency.
February 12, 2016
[41]
Sergeant Bradford confirmed with Canada Border Services Agency that FMD did in fact attend the United States Friday, February 12, 2016 and remained in United States for 8 hours. Presumably his purpose was to arrange gun transaction with his United States counterparts.
February 16, 2016
[42]
Undercover officer, police agent and FMD all met at Casino Windsor where they finalized plans for their cross-border gun transaction to occur February 25, 2016. Details were three (3) handguns for $12,000 United States currency, $6,000 already paid and $6,000 due on February 25, 2016. Within an intercept summary filed as Exhibit 26, FMD was alleged to have disclosed to police agent and undercover officer that he uses rental vehicles to cross into the United States because on a previous occasion he got 'caught' crossing with $14,000 United States currency on Black Friday. This cash border seizure caused him legal troubles where he had to get a lawyer involved over the return/forfeiture issue resulting therefrom.
February 20, 2016
[43]
Intercepted recorded conversation occurred between FMD and police again once again regarding gun smuggling. FMD described the guns that will be purchased as well advised there are 10 more guns available and lastly there are no refunds.
February 23, 2016
[44]
Once again FMD met police agent and undercover officer at Casino Windsor for further discussions regarding the upcoming gun transaction. FMD identified CW as his United States connection and indicated there are five (5) additional guns available for purchase.
February 25, 2016
[45]
Guns are delivered and transaction occurred. In recorded conversation police agent met FMD at Casino Windsor wherein FMD in turn communicated with CW over video chat, Face Time. Police agent in turn was communicating with police unbeknownst to FMD. Two female United States Homeland Security officers, posing as the couriers, arrived at Greek Town Casino in Detroit and were directed to park their vehicle, leave it unlocked and attend the 12th floor. Upon their arrival on the 12th floor, CW advised FMD that his people had observed the couriers. Police watched and observed as two males identified as Terrance Love and Antoine Kemp from Detroit deliver a bag into the undercover officers' vehicle. Both Love and Kemp were previously identified and observed associating with both FMD and CW at casino Windsor under surveillance in 2015. The undercover officers leave with three handguns in their vehicle. These handguns have been tested at Michigan crime laboratory and are found to be real, operational firearms. The police agent was then advised by police to pay FMD the additional $6,000 which he in fact did and FMD received this money from the police agent. The transaction was complete.
[46]
FMD then received a text from CW which indicated he will kill him if they are fish, meaning if any of the persons involved are undercover police. In addition, FMD indicated that next time he would like Benny's courier to also bring a gun over for him for himself to keep and have. There was further discussion about five (5) additional guns for the next transaction for $10,000.
[47]
Furthermore, FMD discussed with the police agent that he will have another 9 ounces of cocaine for him once FMD makes another pick up from his supplier, JJ. The parties discussed $16,500 price for this next 9 ounces.
[48]
Next, on February 25, 2016 police followed FMD when he left the casino. Police observed him meet JJ on Arthur Street. JJ, got into FMD's vehicle with a bag in his hand. FMD drove around the block then JJ exited FMD's vehicle without the bag.
[49]
Lastly, police watched FMD meet AC at Arthur and Tecumseh Streets in the City of Windsor. Police observed a door-to-door transfer. Explained by police as, they watched the bag be transferred from an open window of FMD's vehicle's door, to and through an open window of the vehicle door of AC's vehicle. FMD then returned home to his residence.
February 26, 2016
[50]
Upon execution of search warrant at AC's residence, police uncovered just under one kilogram of cocaine. AC told police the large package of cocaine belonged to FMD and that he had received it just one day earlier in a door-to-door transfer, which was exactly what the police had observed.
[51]
Prior to execution of search warrant at FMD's residence on February 26, 2016 police had his residence on King Louis Street in Lakeshore, Ontario under surveillance. FMD was observed leaving his residence at 5:25 a.m. in his Lincoln MKT. He was followed by police. Fully uniformed officers in unmarked police vehicles attempted to block FMD in at the well-lite intersection of County Road 19 and County Road 22. Detective Constable Hutchinson got out of his vehicle with firearm drawn, in full police uniform and yelled repeatedly, "Police, get out of the car". FMD was said to look the officer directly in his eye then, he maneuvered his vehicle away and accelerated at a high rate of speed away from police through a red light. Almost immediately thereafter, FMD attempted to take an exit ramp at a very high rate of speed, lost control and crashed his vehicle into a ditch. Police arrested FMD. He was taken directly to the hospital where he had several tests and was released from hospital later that same day.
[52]
Upon execution of the search warrant at FMD's home at 1089 King Louis Street, Lakeshore, police found $42,500 in Canadian currency and $10,400 in United States currency in a secret, hidden compartment in the basement shoe room. Police were able to identify 115 of the 500 Canadian bills and coincidentally 115 of the 134 United States currency bills located as in fact, police buy money through recorded serial numbers. There was neither cocaine nor any guns found at this residence.
Summary of Crown's Evidence/Alleged Facts
[53]
There were five (5) transactions in total. One transaction was for three handguns purchased for planned transport across the Windsor-Detroit International Border Crossing destined for the criminal culture scene in Toronto for $12,000 in United States currency. There were four (4) transactions where police paid $44,950 for a total of 705.3 grams of cocaine. To quantify the amount of cocaine, 705.3 grams is equal to 24.88 ounces or nearly 25 ounces of cocaine. One pound has 16 ounces. Therefore, it is alleged FMD sold 1.5625 pounds, or simply put, more than 1 ½ pounds of cocaine to police agent. One transaction he allegedly orchestrated while he was absent from Canada. Police possess the three handguns and cocaine purchased and hold it as real evidence.
[54]
$42,510 cash Canadian currency and $10,400 cash United States currency was located and recovered at the home of FMD upon execution of search warrant by police.
[55]
Upon execution of a search warrant at one of FMD's alleged stash houses, namely AC's home, one kilogram of cocaine was recovered. It is alleged this kilogram of cocaine is directly connected to and sourced from FMD.
[56]
It is alleged, FMD was the broker, orchestrator, planner and organizer of the above-noted transactions.
[57]
Both crown and defence do not disagree, these allegations are ones that if convicted, FMD faces a lengthy term of imprisonment, likely a penitentiary term, up to double digits in length.
Primary and Secondary Grounds
[58]
Defence has offered both parents of FMD, namely Mrs. M and FD to be sureties. The proposed plan would be house arrest under their direct supervision along with a significant amount pledged. There was even an offer to place a lien, in Right of Her Majesty the Queen, against their home.
[59]
With respect to the primary ground, there was talk, on more than one occasion, from FMD, which conversations were audio or audio/video recorded. FMD was alleged to have talked of moving away for a long time, to either Italy and/or Dominican Republic, and possibly to never return. Given FMD is facing a double digit penitentiary sentence, if convicted, these alleged comments cannot and should not simply be disregarded and dismissed as nonsense. The evidence indicated throughout at various times, FMD was well aware and acknowledged the criminal activity he was allegedly involved in was that which persons are sentenced to lengthy terms of imprisonment. This evidence, which did present at various stages, pointed out FMD had turned his mind to this consequence on several occasions. There was an attempt at flight upon arrest, which speaks as well to FMD's flight mindset.
[60]
The parents indicated they would place a lien on their home to address the primary ground concern. However, the evidence of Mrs. M herself, stood in contrast to a document she, herself supplied to the court, Exhibit 28. This document, sourced from her bank, indicated herself and her husband have $42,000 in debt in addition to those debts already registered against their home. Mrs. M swore this was not true. She contradicted her own documentary evidence she supplied to the court. The bank document stood in direct contrast of her evidence. As a result, this Court was unable to accept her evidence. The court was then left with: even if I did agree to register a lien in Right of Her Majesty the Queen against FMD's parent's home, say in an amount of $100,000, the total family debt would then likely exceed the value of their home. Furthermore, all of the other already existing encumbrances would stand in line, as they were already, first and with priority over any later-registered lien. Therefore, I was not convinced it would even be practical that an adequate amount could be realized from such a lien arrangement, should FMD flee.
[61]
With respect to the secondary ground, FMD is 27 years old. He has always lived at home under his parents' roof. FMD is not legally, gainfully employed. There was some information presented that FMD may have made an occasional pizza, at Riverside Pizza, on a sporadic basis however, no additional specifics or dates were offered. Police surveillance indicated FMD rarely left his home prior to 12 noon. His parents confirmed this. Both Mrs. M and FD indicated they had no idea or inclination of the activities FMD is alleged to be involved in. Mrs. M, especially, made excuses for her son at every possible turn. Mrs. M indicated she just cannot and will not believe it; even after sitting in court for days watching her son on video or hearing him on audio, Mrs. M still refuses to believe what she has seen and heard with her very own eyes and ears. Mrs. M made the statement, "I cannot believe my son is like this all of a sudden."
[62]
Crown, Ms. Holmes, was exceptional at disproving an 'all of a sudden' theory. Ms. Holmes pointed out information sourced from the audio and audio/video intercepts. Many of these points were not summarized in the Evidence/Alleged Facts portion of this decision because they may not directly form part of the transactions alleged in the informations which form the charges. There were over 2,000 audio and audio/video intercepts. Most have not yet even been summarized or disclosed at this early judicial interim release hearing stage of the proceedings. The court only heard a handful of them. Some of the points, taken from the intercepts heard or summarized at this hearing, that disprove an, 'all of a sudden' concept or theory were:
When police agent became again recently involved in FMD's life seeking guns and cocaine, FMD already allegedly had connections within the Detroit subculture for gun purchase. It was not alleged he had to go make a connection. He already had connections.
FMD was alleged to speak in recorded conversation of being the originator of orchestrating guns for purchase in the past case Project Traveller in 2013, which points police verified as accurate.
FMD allegedly repeatedly reported an ability to get and provide more guns and cocaine throughout the entire police involvement with him.
FMD allegedly spoke of having 10 more handguns available for purchase just prior to his arrest. He allegedly spoke of transacting 100 handguns in the past and future.
In recorded conversation, FMD was alleged to have used female students in past to transport guns over the international border into Windsor. Get them drunk in Detroit, stash the guns in their vehicle and they not be aware they bringing guns back, as a past successful method he has used.
FMD was alleged on tape to provide police agent with extensive details of gun types, their purchase prices, profit margins, profit splitting and a guarantee to provide more guns once more money and courier confirmed.
In recorded conversation, FMD was alleged to refer to a past very recent transaction he made for two AKs, namely AK47s, a small one and a big one.
FMD was alleged to call himself, 'a peddler of guns'.
FMD spoke on tape of accurate, intricate knowledge of other known criminals and their criminal activity.
FMD spoke on tape to police agent of having connection for guns and pills in Ohio, which sources were not able to be pursued further.
FMD was alleged to speak on recorded audio of having five (5) main sellers who sell cocaine for him.
FMD was known to have separate stash houses. At one such stash house, one kilogram of cocaine was located upon police execution of search warrant.
In recorded conversation, FMD was alleged to indicate the price $30,000 for a pound of cocaine and between $60,000 and $65,000 for a kilo of cocaine.
FMD was alleged to have purchased one kilo of cocaine, just prior to his arrest. Its purpose would be to dilute and repackage for sale.
Quite a number of occasions in recorded conversation, FMD allegedly spoke of his talent and proficiency at cooking cocaine to as much as double its quantity.
In recorded conversation, FMD allegedly expressed feeling too lazy to pick up $7,000 waiting for him. This comment provided depth to the extent of his value of $7,000 and depth of his alleged criminal enterprise.
Within Exhibit 7, it was alleged FMD spoke of a person providing him with $20,000 cash advance. What could the purpose be?
He was alleged to be so connected to orchestrate a 4 ounce cocaine transaction while overseas.
In recorded conversation, on several occasions, FMD was alleged to have said he makes $10,000 a week and $40,000 a month.
In recorded conversation, FMD was alleged to have spoken of DM owing him $5,000. Why would someone owe FMD, an unemployed person money? For what purpose?
FMD was alleged to have told of dropping thousands of dollars at gambling and even throwing money into a crowd from a balcony level at Coco Bongo's establishment in Dominican Republic. Apparently, he allegedly has money to simply throw away into a crowd or gamble away.
Lengthy, yes and the list could continue, it is not in any way exhaustive. These points of previous alleged transactions, plans for future transactions, intricate knowledge of and involvement in both drug trafficking and gun trafficking, as well as stash houses, his proficiency at cooking cocaine to double its quantity and in addition, having a team working for him (FMD) of not less than five (5) separate individual persons selling cocaine for him are important and relevant because they establish FMD's level of connectedness and entrenchment in his own alleged criminal enterprise. FMD's alleged level was not something that occurred as an 'all of a sudden' event. This Court finds FMD was allegedly, extensively entrenched as a leader, and lead dealer, in the cocaine drug and gun subculture in Windsor/Essex County.
[63]
This Court finds it is simply implausible for Mrs. M and FD to not have been aware of several factors of FMD's lifestyle that would cause anyone concern, or at minimal, to have questions. FMD is their son. He lived with them daily under their roof and guidance. The parents knew FMD slept ½ the day and had no legal, gainful employment. Mrs. M indicated she was aware FMD was making monthly payments on his 2014 Lincoln MKT vehicle. Both parents knew FMD to be the owner of over 100 pairs of shoes. It was unclear from FD's evidence whether he actually knew or not that FMD had lost $10,000 as a result of a border seizure. FD seemed to say, in all the same breath, FMD never told him yet, he did not deny he knew of it. I was really left with the impression FD may have in fact known of it. Surely to Goodness, if a parent became aware his son had $10,000 cash seized at the border, would a parent, not surely ask, 'why did you have $10,000 (or more) cash on your person crossing the border? Where was it from? What was it for?' FD was extremely vague on this topic. FD himself indicated he was the creator of the secret, hidden shoe-room compartment, used to store cash, shown in Exhibit 23. FD had a subjective reason for its creation. This Court was not even convinced that reason was feasible.
[64]
I find it simply impractical, implausible, not feasible and convenient for both of FMD's parents and proposed sureties to not have had some sort of radar raised. After all their son, without a job, drove and made monthly payments on a new Lincoln, had $10,000 cash seized at the border, took trips to Dominican Republic, bought custom, gold teeth-griddles Exhibit 27, had a cell phone and all the rest. How could this even be possible for a person not legally, gainfully employed? This Court dismisses the proposed sureties' explanation or theory that FMD had a prior legal settlement that could be capable of sourcing all of this. They refused to offer a plausible explanation to support their theory. I find the parents and proposed sureties have a, 'don't ask, don't tell' mentality as it relates to their son, FMD.
[65]
Why is this even important and/or what is it worth? These factors, including the parents, 'don't ask; don't tell' mentality, are relevant and important because they relate directly to the proposed sureties' ability to supervise their son while on bail with respect to both the primary and secondary grounds. The evidence demonstrated FMD was allegedly capable of orchestration of a four (4) ounce cocaine transaction in Windsor, Ontario, using social media, while he was not even present in Canada, while he was at the Dominican Republic. Given that, as well, given that FMD is alleged to have indicated he has five (5) persons who directly sell for him and he uses stash houses, there still exists secondary ground concern. Presumably AC was FMD's Chrysler connection. That leaves four (4) remaining primary sellers of FMD's still unknown.
[66]
Defence counsel, Mr. Liddle, has pointed out FMD was on bail conditions once previously when he was charged with attempt murder. Past conduct was FMD did abide by his conditions and Mrs. M did supervise him regarding those conditions. Defence position was past conduct would indicate future compliance.
[67]
With respect to the primary and secondary ground concerns regarding today's allegations and FMD's past good bail behaviour, those charges he faced in the past were completely different than the ones of today. FMD was not charged with being the primary orchestrator of a violent criminal enterprise, with a plethora of evidence against him. He was charged with an isolated incident of violence where the evidence was lacking. The plan back then worked, it certainly did. However, the concern back then could not have been involvement in a criminal enterprise that would beg for his future attention. The parents, 'don't ask, don't tell' mentality could not have been known then. The charge and circumstances were different then.
[68]
Given FMD's recorded talk of moving permanently to Italy or Dominican Republic and viewing that comment in light of the lengthy term of imprisonment consequence he is facing if convicted; given the strong crown case against him; given his four (4) other alleged outstanding sellers and unfinished business he may have; given his highly sophisticated level of extensive connectedness; given the allegations demonstrate his capability to orchestrate a significant cocaine transaction while even absent from Canada from a location overseas; given his proposed sureties' 'don't ask, don't tell' mentality, which has in part enabled FMD's lifestyle and alleged criminal activity and provided no confidence to this Court; this Court finds the defence's proposed release plan, which included a lien and sureties, only mitigated this Court's concern on both the primary and secondary grounds. In short, I was not satisfied the defence met its reverse onus burden to show cause for release under both the primary and secondary grounds. It should be noted, I really thought defence did an exceptional job in their role throughout this hearing. Simply put, there is not any plan or anything further that could satisfy this court under both the primary and secondary grounds, given the charges FMD is facing as organizer of an intricately woven criminal enterprise. Given the totality of the evidence, this court could not be confident FMD would remain to answer to these charges and not engage in further criminal behaviour or interfere with the administration of justice.
Tertiary Ground
[69]
The tertiary ground stands separate and apart with different considerations that are applied.
[70]
Crown's Evidence/Alleged Facts and Findings of this Court thus far will not be repeated only to say they apply to this ground as well.
[71]
Section 515(1)(c) — "For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) The primary ground
(b) The secondary ground
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) The apparent strength of the prosecution's case,
(ii) The gravity of the offence,
(iii) The circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) The fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
[72]
The apparent strength of the prosecution's case is extremely strong and viable. Not only does the crown's case include thousands of audio and audio/video recorded conversations and transactions, it includes separate police surveillance corroboration of the assertions made within the recorded audio and audio/video evidence. The crown's case includes solid real evidence of over 1 ½ pounds of cocaine, three operational handguns and over $50,000 cash seizure from FMD's home.
[73]
Defence argued R. v. Hart, 2014 SCC 52. R v. Hart is a Mr. Big case. Essentially a Mr. Big operation is one where police front a fictitious criminal organization and lure an accused into same for the purpose of eliciting a confession to a serious crime such as murder. In R. v. Hart the Supreme Court of Canada held the reliability of such confession affected its weight and went on to indicate that such confession should not be relied upon to support a conviction. Here in the FMD matter, R. v. Hart is not applicable because the crown, in addition to audio and audio/video evidence, has real evidence of cocaine, handguns and cash along with police observations.
[74]
This Court finds the Crown's case and alleged evidence was overwhelmingly strong.
[75]
The gravity of the offences alleged this Court finds to be extremely heavy, onerous and far reaching. Guns kill people. Illegally trafficked guns that enter Canada through the International Border at Windsor-Detroit intentionally destined for the Toronto criminal subculture is a toxically dangerous proposition. Tragically, there are far too many guns and shooting incidents within Toronto and throughout Canada occurring in a criminal context, wherein many innocent persons, including children and regular law-abiding citizens randomly become victims. There is no tolerance for this type of event in our society and communities. It is an event or opportunity that must be stopped in its tracks. Safety of our communities demand it.
[76]
The gravity of the offences alleged with respect to cocaine trafficking likewise, this Court finds to be extremely heavy, onerous and far reaching. Cocaine, one of the most toxic and addictive drugs, was alleged to be obtained in a pure form in massive quantities, which was cut or cooked, then peddled into lower amounts, which police testified, can ultimately net more profit than simply transacting the larger kilo quantities. This was the alleged activity of FMD, for personal gain and profit without regard for the tragic consequences this toxic drug causes as it ruins people's lives, leaves families without necessities and adequate support for their children. In some instances, cocaine addiction causes addicted individuals without an income to engage in their own form of criminal conduct, whether it be break and enter, robbery or other crimes, to fuel the cost of their addictions. This in turn causes greater disruption within society and our community at large and is a cyclical, far-reaching cancer.
These are the activities it was alleged FMD was the master orchestrator. He called himself a 'peddler of guns'. He is also an alleged 'dealer of dope', at high quantities in substantially high volumes.
[77]
The circumstances surrounding the commission of the offence, including whether a firearm was used. I did not find the defence case R. v. Pringle applicable to the facts alleged before this Court. I would agree with the crown that because the circumstances involve trafficking firearms, this section is engaged.
[78]
The fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment is 100% applicable in this matter. FMD is liable, if convicted, to a double-digit penitentiary sentence. This factor must be considered in light of the Crown's strong case. FMD at times throughout police surveillance himself was alleged to acknowledge the lethality of the subject matter he was allegedly dealing with and its lengthy term of imprisonment consequence.
[79]
The court would like to address the defence position that three co-accused were released therefore, for the purpose of parity and fairness, FMD also ought to be released. This Court rejects this submission. Firstly, the co-accused that were released were not charged with firearm trafficking. I, myself, released DM and KL. DM was alleged to be present at a transaction and lend his vehicle to FMD to be used for another transaction. KL was alleged to hold cocaine for FMD. Likewise, AC was alleged to hold cocaine for FMD. It was alleged police observed FMD pick up a kilo of cocaine from JJ then hand it over door-to-door to AC where the kilo was located within hours of this observation. The co-accused released were far less involved. It is FMD alone that stands charged as the orchestrator, organizer, planner and master-mind of a criminal enterprise, which was his personal criminal enterprise, for the purpose of gun and cocaine trafficking for profit. The others released were alleged to follow FMD's lead and instructions. The nature and extent of the involvement of the released co-accused was an entirely different matter than that of FMD. I found and find the tertiary grounds were not applicable in the named co-accuseds' circumstances. This is an incredibly huge difference. FMD's circumstances invoked the tertiary grounds where the tertiary grounds were not a part of the other's circumstances. Parity does not apply. For the record, JJ, to my knowledge, has not yet had his judicial interim release hearing and I therefore make no comment regarding JJ and the teriary ground applicability.
[80]
The tertiary grounds are completely applicable in the circumstances of FMD. In R. v. St. Cloud, 2015 SCC 27 the Supreme Court of Canada provided additional guidance in the application of the tertiary ground. Detention on the tertiary ground is not limited to only rare circumstances. Detention is not automatic when all of the four factors are strong. All circumstances must be balanced, including the quality of the evidence, evidence of involvement in a criminal organization and the extent of the accused's involvement. In this case, it is alleged FMD was the criminal enterprise. This Court has considered R. v. St. Cloud.
[81]
I am further aware of, and rely upon, in addition to R. v. St. Cloud; R. v. David, [2006] O.J. No. 3833 and R. v. Abdullahi, 2013 ONSC 4873. These two additional cases accused, in similar circumstances as FMD, youthful in age, without a criminal record, were detained for possession and involvement of guns and drug trafficking, which cases involved less crown evidence and only one transaction or possession for the purpose.
[82]
This Court finds that a reasonably informed member of society, given the combined effect of all of the crown's evidence and allegations in its totality, including the extent of it, the circumstances of same, would ultimately be very affronted if this accused, in these circumstances, was released on bail.
[83]
This Court finds that detention is necessary to maintain confidence in the administration of justice having regard to and balancing the four strong enumerated factors as well as, all of the alleged circumstances. In fact, This Court finds detention necessary to ensure FMD's attendance in court, the primary ground and in addition, to ensure the protection and safety of the public, the secondary ground. In fact, this Court finds detention necessary on all three grounds. Lastly, I find detention strongest and overwhelming on the tertiary ground. There were no mitigating factors with respect to the tertiary ground.
[84]
Stand up FMD, for the reasons stated, you are hereby being ordered detained.
[85]
It is also important for you to know, there will be an order made under Section 515(12) replacing any 516(2) Order that while you are in custody you are not to communicate with the co-accused, DM, AC, KL, JJ or CW except through legal counsel. You cannot call them on the telephone, send them a message through a third party or communicate with them in any way, shape or form. This is a formal Order. Should you be found to disobey this Order, you are liable to being sentenced to a term of imprisonment. Do you understand this order?
Released: March 23, 2016
Signed: "Justice of the Peace H. DeBacker"