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 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

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

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

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

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

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

Court Information

Ontario Court of Justice

Date: 2016-10-03

Court File Nos.: Toronto 14-15009723 and 14-15009314

Between:

Her Majesty the Queen

— And —

Dexter Pearce, Travis Richards and Ewan Sutherland

Before: Justice K. Caldwell

Reasons for Judgment released on: October 3, 2016

Counsel

For the Crown: Mr. Faiyaz Alibhai and Ms. Melissa Insanic

For the accused Mr. Dexter Pearce: Mr. John Struthers

For the accused Mr. Travis Richards: Ms. Venus Sayed

For the accused Mr. Ewan Sutherland: Mr. Luka Rados

Caldwell J.:

THE CHARGES

[1] Mr. Pearce is charged with trafficking in cocaine and possession of cocaine for the purpose of trafficking with an August 26, 2014 offence date. In a separate information, Mr. Richards and Mr. Sutherland are jointly charged with conspiring to traffic in cocaine and possession of cocaine for the purpose of trafficking with the same August 26, 2014 offence date. All counsel agreed that the preliminary hearing on both informations could be heard together. This procedure made sense as the allegations all arose out of the same events.

[2] Virtually the entire Crown case was introduced by way of filed 540(7) materials that were simply filed with the Court. A detailed Crown synopsis was also filed with links to the electronic disclosure materials but at points this method made an assessment of certain evidence difficult as it was hard to determine exactly how the various links related to the Crown summary without guidance from a witness who could answer questions and flesh out the materials. I will make reference periodically to this problem during the course of the judgment.

The Allegations

[3] It is alleged that Mr. Sutherland went to Mr. Pearce's apartment around 7 pm on August 26th and got one kilogram of cocaine from Mr. Pearce. A few hours later the police searched Mr. Pearce's apartment and found a further three kilograms of cocaine. The Crown also alleges that in the hours preceding the cocaine transaction Mr. Sutherland and Mr. Richards conspired to traffic in the cocaine that Mr. Sutherland obtained from Mr. Pearce.

Concessions

[4] At the end of the inquiry, Mr. Sutherland conceded that there was sufficient evidence to order him to stand trial on the possession for the purpose charge. This concession made eminent sense given that Mr. Sutherland was found in possession of a kilo of cocaine upon arrest.

The Law

[5] This is largely a circumstantial case. As a result, I must determine if a reasonably instructed jury could draw the inferences requested by the Crown. Further, this determination depends in part upon whether preliminary facts could be established which also require certain inferences to be drawn.

[6] I therefore will turn first to an overview of some of the law pertaining to both the test for committal and inferences in the preliminary hearing context. After that I will turn first to the charges faced by Mr. Pearce and then to the joint charges faced by Mr. Richards and Mr. Sutherland.

Preliminary Inquiry Test for Committal – the Law

[7] The preliminary inquiry test for committal is whether there is any evidence upon which a reasonable jury properly instructed could convict.

[8] This statement is not as simple as it appears at first blush. As Chief Justice McLachlin stated in R v Charemski, the evidence must be sufficient to allow a reasonable jury properly applying the law to be convinced beyond a reasonable doubt of the accused's guilt. The Crown's evidence must be assessed through the prism of that reasonable doubt standard.

[9] The Chief Justice cited with approval the century old case, Ryder v. Wombwell (1868), L.R. 4 Ex. 32, at p. 39:

"It was formerly considered necessary in all cases to leave the question to the jury if there was any evidence, even a scintilla, in support of the case; but it is now settled that the question for the judge ... is ... not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established."

[10] She went on to reference Professor Delisle in Evidence: Principles and Problems: "[l]ogically . . . it would seem to be wrong to let a case go to the jury if the trial judge believed that no reasonable jury could be satisfied beyond a reasonable doubt".

[11] Putting it another way, "the judge assesses whether, hypothetically, a guilty verdict is possible; the jury determines whether guilt has actually been proved beyond a reasonable doubt".

[12] Making this assessment is more difficult in circumstantial cases as in such cases there will be "an inferential gap between the evidence and the matter to be established". In such instances the judge must engage in a limited weighing of the evidence to determine if it is reasonably capable of supporting the inferences that the Crown will ask the jury to draw.

Inferences at the Preliminary Hearing – the Law

[13] It can be difficult to determine if the evidence is capable of such reasonable support as it is often difficult to determine the difference between speculation and a logical conclusion.

[14] A properly drawn inference does not amount to speculation. Speculation is akin to guesswork and proof beyond a reasonable doubt cannot flow from hunches, speculation or guesses.

[15] Justice Ducharme has outlined the two-step process required to draw a proper inference. First, the jury must determine if the primary facts underlying the inference have been proven. Once the jury has determined the primary facts, then the jurors must determine if they are convinced beyond a reasonable doubt that these primary facts establish the inference requested by the Crown.

[16] At the preliminary hearing stage, the judge must determine first whether there is evidence of the primary facts. If there is such evidence, then the judge must determine if that evidence is capable of reasonably supporting the requested inferences.

[17] It can be very difficult to make the assessment required by the second step in this process. Justice Watt has noted that it is very difficult to precisely delineate the line between reasonable inferences and impermissible speculation.

[18] Justice Moldaver has noted that reasonable inferences needn't be those that are the most obvious or easily drawn. Instead, he stated:

"all that is required is that the inference be reasonable and logical. The fact that an inference may flow less than easily does not mean that it cannot be drawn".

[19] On the other hand, Justice Fairgrieve of this Court has commented:

"[s]imply because a possibility cannot be excluded does not necessarily mean that a reasonable trier could be justified in reaching such a conclusion on the evidence."

Charges Against Mr. Pearce

Traffic in Cocaine

[20] I find that there is sufficient evidence to order Mr. Pearce to stand trial on the trafficking charge.

[21] Detective John Zeleny testified that the shoulder bag carried by Mr. Sutherland had a different shape upon exiting the hair salon than it had upon entry. Specifically, there was a distinctive shape to it indicating the addition of a square or rectangular object. Upon arrest the shoulder bag was found to contain a Toms brand shoe box containing a large ziplock bag of one kilogram of loose cocaine and a small bag of crack cocaine.

[22] That evidence allows for the inference that Mr. Sutherland obtained the cocaine after he entered the salon.

[23] I also find that there is evidence from which it can be inferred that Mr. Pearce was the person who supplied the cocaine to Mr. Sutherland.

[24] This inference depends in part upon whether as a preliminary fact can be inferred that Mr. Pearce is the speaker on the phone registered to "Mike Brian". I find that this fact can be inferred based upon the combination of Mr. Pearce's and Mr. Sutherland's movements plus comments made by "Mike Brian" in contemporaneous phone conversations.

[25] It is not disputed that surveillance cameras and the subsequent police search establish that the basement living unit at the base of the salon can be entered both through a rear door via the garage area and a side door accessed from the salon.

[26] Around noon, "Mike Brian" informed Mr. Sutherland that he was "down in the basement". At 3:05 pm, Mr. Sutherland arrived at the salon; a few minutes before that, Mr. Pearce left out the back. Mr. Sutherland then made two calls to "Mike Brian", neither of which was answered. Mr. Sutherland then entered the salon and exited about fifteen minutes later.

[27] At 4:52 pm, "Mike Brian" was heard on the phone lines apologizing to Mr. Sutherland and stating that he was on his way back, and would be back in 30 to 40 minutes. At 6:18 pm he told Mr. Sutherland that he had just "reached back". One minute later, Mr. Pearce drove to the rear of the salon and entered the back entrance area of the apartment. About ten minutes later, Mr. Sutherland entered the salon and then the basement apartment. Thirty minutes later, Mr. Sutherland exited the basement apartment and salon – it was at this point that the shoulder bag was seen to be weighed down with a square object.

[28] I agree with the Crown that the contemporaneous nature of the phone calls in conjunction with Mr. Pearce's and Mr. Sutherland's movements allow for the inference that the speaker on the "Mike Brian" line was Mr. Pearce and that he supplied the cocaine to Mr. Sutherland.

Possession for the Purpose of Trafficking in Cocaine

[29] The police searched the apartment around three-and-a-half hours after Mr. Sutherland exited. They found approximately three kilograms of cocaine during that search.

[30] The apartment was a one bedroom/bathroom unit. It appeared to be lived in. There was also a living room, laundry room and furnace room.

[31] Almost two kilograms of powder cocaine were found in a cardboard Samsung TV box in the furnace room. The cocaine was in ziplock bags within a black garbage bag in the box.

[32] Further, one kilogram of cocaine was found in another ziplock bag within a red plastic bag inside an unused toilet that was stored in the furnace room.

[33] Finally, a half-kilo of cocaine was found inside a small black box in the bedroom. Again, the cocaine was stored in ziplock bags within the box.

[34] Male clothing was found in the bedroom, along with seven letters and documents. All of those documents date from 2014 with the exception of one that is dated 2012. Five of the seven were in Dexter Pearce's name. There were also addresses on the letters. One was in 1754 St. Clair Avenue West apartment address, two were in the address of 8 Thomas Kinnear Court in Markham and a third was in a nearby 1750 St. Clair Ave. West address.

[35] Documents in three other names were found in a suitcase beside the living room couch. Links to these items were provided but I found it difficult to make out names and dates. These details would assist in determining what inferences could and could not be drawn. As the 540(7) summary was entered on consent, I accept as evidence on this preliminary hearing that documents in different names were in the suitcase but I do not know the dates on such documents, the nature of the documents or the date of the expired passport.

[36] Further, in the kitchen cabinets, two scales were located, one inside a box.

[37] I am aware of recent cases, most notably R v Turner of the Ontario Court of Appeal, that caution against automatically finding that inferences regarding possession can be drawn from the mere presence of documents in an individual's name in proximity to contraband.

[38] Each case turns on its own facts, however, and in this case I find that an available inference open to the jury is that all of the cocaine in the apartment was possessed by Mr. Pearce. I find that this conclusion would not amount to mere speculation or conjecture on the part of the jury for the following reasons:

• it is a one bedroom apartment essentially devoid of evidence of multiple occupants;
• the documentation in the bedroom is predominantly in Mr. Pearce's name with the apartment address on at least one document in his name;
• there is evidence that Mr. Pearce trafficked in drugs out of that apartment;
• the nature of the drugs found in the furnace room is the same as those trafficked and as those found in the bedroom;
• the furnace room appears from the photos to be an integral part of the living space of the apartment and used for storage of personal items such as shoes.

[39] Mr. Struthers argues that the presence of other documents in the names of individuals other than Mr. Pearce prevent the inference being drawn that the drugs in the furnace room were Mr. Pearce's. He contends that the other documentation would have to leave a jury in the position of merely speculating that Mr. Pearce was the sole person who had knowledge and control over the items in the apartment.

[40] In some instances, I would agree with Mr. Struthers. The evidence in this case, as outlined in the bullet points above, points to only one occupant, however, and that occupant is Mr. Pearce. Further, the documentation found in other names in the living room was found stored in a suitcase. According to the pre-search photos, boxes and suitcases were placed neatly in a corner as if they were utilized for storage only as opposed to regular and current use by the occupant.

[41] I find that when I look at the totality of the evidence in this case, it is open to a reasonable jury, properly instructed, to draw the inference that Mr. Pearce was the sole individual who had knowledge and control over the items in the apartment including the drugs.

Charges against Mr. Sutherland and Mr. Richards

Conspiracy to Traffic in Cocaine

Mr. Richards and the Phones

[42] A crucial preliminary question is whether the calls involving line (289) 675-4020 can be connected to Mr. Richards and, if so, whether it can be inferred that he was the speaker at the relevant times.

[43] Mr. Sutherland made a number of calls to line (289) 675-4020 in the hours preceding his attendance at Mr. Pearce's apartment. The Crown alleges that the content of these calls makes out the conspiracy between Mr. Sutherland and Mr. Richards.

[44] I find that a jury could conclude that the line is connected to Mr. Richards and that he was the speaker.

[45] First, there is evidence that an individual named "Travis" used this phone in the weeks leading up to August 26th. On August 14th, a male called a female who greeted the male with "Hi, Travis". The male responded positively. The same scenario unfolded on August 15th. And, finally, a similar scenario played out on August 18th between a person named "Bonnick" and the individual using line (289) 675-4020.

[46] Secondly, Mr. Richards' home was searched four hours after the alleged transaction between Mr. Sutherland and Mr. Pearce. Only three people were present in the home that night – Mr. Richards, his wife Nadine Richards, and their eight year old son, Travis Richards Junior. A phone tied to the (289) 675-4020 phone line was seized from the living room.

[47] Ms. Sayed, counsel for Mr. Richards, argued that there is no evidence that the phone in the living room rang when Officer Stevenson called the (289) 675-4020 phone line and thus there is no evidence tying the line to the seized phone. Respectfully, I disagree with her on this point.

[48] Admittedly, the officer's handwritten note and the monitor summary of his call are not crystal clear. The officer's note states:

0319 Phone Richards Phone 289-675-4020 By Calling It as It is Locked Recorded on JSI

[49] The monitor's summary states:

"This is Detective Constable Brendan STEVENSON, badge number 8285, of the Toronto Police Service Drug Squad.

I called phone number 289 675 4020 from a police number to confirm this line.

This phone was located at 847 Cold Stream in the living room and was seized by Detective Constable Jeff CORREA at

the time of the warrant execution, which I believe is 23:02 hours.

Today's date is August 27, 2014 and the time is now 03:19 am."

[50] Despite the lack of clarity, however, I infer from his comments in both his notes and the summary that upon dialing the line he received confirmation via the phone ringing that it was the phone seized from the address.

[51] It is the totality of this evidence that leads me to conclude that a jury could infer that the phone was used by Mr. Richards and he was the user during the time the calls occurred between Mr. Richards and Mr. Sutherland. "Travis" is a somewhat unique name. The phone was found in what appeared to be Mr. Richards' home and found a mere four hours after the alleged trafficking transaction. Finally, the only other individuals in the home were a female, and a young child, albeit one with the same first name. It is clear, however, that the voice heard in all of the calls is that of an adult male and not a child.

[52] I agree with Ms. Sayed, counsel for Mr. Richards, that the "usual" type of evidence is not present in this case – namely, lay witness voice identification, simultaneous surveillance observation of Mr. Richards using a phone at the time the calls were made, or phone registration records. There are many ways of proving a fact, however. The issue is whether the evidence, regardless of its form, is sufficient to allow for the requested inferences. I find that the evidence presented in this case amounts to sufficient evidence to allow for the inferences; whether such inferences are in fact drawn would be for a jury to decide.

Conspiracy – the Relevant Law

[53] Section 465(1)(c) of the Criminal Code states "everyone who conspires with anyone to commit an indictable offence…is guilty of an indictable offence". The definition of "conspiracy" and its requisite elements have developed over time in the case law.

[54] The three essential elements are:

• an intention to agree;
• the completion of an agreement to commit an indictable offence;
• an intention to carry out the agreement.

[55] It is the "agreement to commit an indictable offence" requirement which presents an insurmountable hurdle for the Crown, even at the preliminary hearing stage.

[56] Justice Taschereau, in the 1954 S.C.C. decision, R. v O'Brien, said the following:

"I think there has been some confusion as to the element of intention which is necessary to constitute the offence. It is, of course, essential that the conspirators have the intention to agree, and this agreement must be complete. There must also be a common design to do something unlawful ... Although it is not necessary that there should be an overt act in furtherance of the conspiracy, to complete the crime, I have no doubt that there must exist an intention to put the common design into effect."

[57] Justice Code in R v Marshall noted that the actus reus of conspiracy is an agreement to commit "a specific indictable offence".

[58] Justice Doherty, in R v Alexander and Blake noted, "the actus reus of the crime of conspiracy lies in the formation of an agreement, tacit or express, between two or more individuals, to act together in pursuit of a mutual criminal objective" (emphasis added).

The Conversations

[59] Not much is said between Mr. Sutherland and Mr. Richards. The relevant conversations are as follows:

• 3:08 pm August 26: Mr. Sutherland tells Mr. Richards, "Your boy called me[…]today[…]he's going down to that place[…]in a bit". He adds, "he's not picking up" and "I don't even remember his name". Mr. Richards replies, "he lives downstairs…" and his name is "Dex". Later in the conversation, Mr. Richards tells Mr. Sutherland, "just continue to take it easy until you hear from him, then"

• 3:28 pm August 26: Mr. Sutherland tells Mr. Richards, "I'm just walking again…", "So I will go on walking…" and "I'm going to go back down there, man".

• 7:12 pm August 26 after meeting Mr. Pearce: Mr. Sutherland tells Mr. Richards, "I'm just leaving him".

Inferences that Can – and Can't – be Drawn

[60] The following could be inferred by a reasonable jury given that the conversations were contemporaneous with Mr. Sutherland's attempts to meet Mr. Pearce and the ultimate success of that meeting:

• Mr. Richards provided Mr. Sutherland with information regarding Mr. Pearce that helped Mr. Sutherland connect with Mr. Pearce;
• Mr. Richards knew that Mr. Sutherland wanted to buy cocaine from Mr. Pearce;
• Mr. Richards knew that Mr. Sutherland left with the cocaine.

[61] The reference to "your boy", Mr. Richard's caution that Mr. Sutherland "take it easy", Mr. Sutherland's update to Mr. Richards ("I'm just leaving him"), and the evidence supporting that Mr. Sutherland did, in fact, obtain cocaine from Mr. Pearce during their brief meeting are all factors that would allow a jury to infer that Mr. Richards knew the purpose of the visit and knew that the visit achieved its objective. The tenor of the comments certainly suggests something other than a mere social call.

[62] The difficulty, however, is with the requirement for a "common intention to commit an indictable offence". Simply knowing that someone is planning to commit an indictable offence does not constitute a conspiracy. Providing contact or other information to someone concerning another individual who might wish to commit a criminal offence does not constitute a conspiracy. Knowing that an indictable offence has been committed does not constitute a conspiracy.

[63] One could speculate about many possible connections between Mr. Sutherland and Mr. Richards. A few that spring to mind are:

• Mr. Sutherland and Mr. Richards were working together to purchase cocaine from Mr. Pearce which they then intended to traffic;
• Mr. Pearce was working with/for Mr. Richards in the sale of cocaine to Mr. Sutherland;
• Mr. Richards had bought cocaine from Mr. Pearce in the past and was providing that source to Mr. Sutherland.

I am sure there are other possibilities in addition to the three I have listed.

[64] The Crown might argue that my formulation of these possible scenarios constitute inferences which could be put before a jury and thus both men should be committed to stand trial as it is not for the preliminary hearing judge to choose amongst inferences but just to determine if they can be properly drawn. Based on the evidence before me, however, the difficulty is that a jury would be merely guessing as to the appropriate scenario and guesses do not constitute proper inferences.

[65] I find that there are parallels between this case and the decision of the Ontario Court of Appeal in United States of America v Huynh. Mr. Huynh appealed a decision ordering that he be extradited to the United States for conspiracy to launder the proceeds of crime obtained by the commission of a designated offence of trafficking in a controlled substance.

[66] Justice Doherty noted that the extradition material supported the inference that Mr. Huynh conspired with others to transfer large amounts of cash from the United States to Canada. The cash was found in a secret compartment in the gas tank of Mr. Huynh's car. The American government argued that the following evidence allowed for an inference that the cash stemmed from drug trafficking:

• the amount of cash involved;
• the frequency with which cash was being transferred from the United States to Canada;
• the manner of concealment of the cash suggesting a level of sophistication and a commercial operation;
• the coded conversations of participants and their obvious concerns about surveillance; and
• the anticipated evidence of a DEA officer that the modus operandi was consistent with the activities of drug dealers.

[67] Justice Doherty said the following:

"The material identified by the respondent certainly permits the inference that the cash was the proceeds of some illicit activity. Drug trafficking comes readily to mind as one possible source. The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess. The gap between the inference that the cash was the proceeds of illicit activity and the further inference that the illicit activity was trafficking in a controlled substance can only be bridged by evidence. The trier of fact will assess that evidence in the light of common sense and human experience, but neither are a substitute for evidence…Despite the effective argument of counsel for the respondent, I do not think there is anything in the material that would reasonably permit a trier of fact to infer that the cash was the proceeds of drug trafficking and not some other illicit activity."

[68] Similarly in this instance a jury could reasonably infer that the two men had discussed in the past and were discussing Mr. Sutherland's attempts to connect with Mr. Pearce for the cocaine purchase but the nature of Mr. Richards' role and his connection to both Mr. Sutherland and Mr. Pearce devolves into speculation and guesswork. Without these factors it would be impossible for a jury to determine if Mr. Sutherland and Mr. Richards had formed a common intention to commit together an indictable offence.

[69] The Crown argued that the common intention involved trafficking given that transport of cocaine constitutes trafficking in cocaine. He argued that Mr. Richards had to know that Mr. Sutherland would be transporting the cocaine after purchase and that this fact, plus his report back to Mr. Richards, "I'm just leaving him", allowed for the inference that the two men formed the common intention to transport and thus traffic in the cocaine.

[70] I find that this inference is not available and does not impact my previous analysis. Based on the evidence before me, the transport could not be viewed as anything more than the inevitable consequence of Mr. Sutherland's purchase unless he intended to remain indefinitely in Mr. Pearce's apartment. There is nothing in the evidence that would allow for the inference that Mr. Richards and Mr. Sutherland actually formed a common intention to transport the cocaine.

[71] I therefore find that a reasonable jury, properly instructed, could not draw the inference that Mr. Richards and Mr. Sutherland conspired to traffic in cocaine.

Possession for the Purpose of Trafficking

[72] As I noted at the outset, Mr. Sutherland conceded that there was sufficient evidence to order him to stand trial on this count.

[73] I find that there is insufficient evidence to order Mr. Richards to stand trial on this count. I do not intend to repeat all that I have said above but the same analysis applies to this count as to the conspiracy count.

[74] Given that Mr. Richards' role is a matter of speculation, I find that a reasonable jury could not draw the inference that Mr. Richards had the requisite control of the cocaine required for possession.

Conclusion

[75] I therefore discharge Mr. Richards on both counts. I am ordering that Mr. Sutherland stand trial on the possession for the purpose charge (count 2) but I discharge him on the conspiracy charge (count 1). I order that Mr. Pearce stand trial on the trafficking charge (count 2) and on the possession for the purpose charge (count 3). The Crown has already withdrawn the conspiracy charge against him (count 1).

Released: October 3, 2016

Signed: "Justice K. Caldwell"