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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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: September 12, 2017

Court File No.: Durham Region 998 17 33825

Between:

Her Majesty the Queen

— and —

Roberto Medeiros-Clementino

Before: Justice J. De Filippis

Heard on: August 14-17 & 22

Reasons for Judgment released on: September 12, 2017

Counsel

Ms. A. Weiler and Mr. K. Yeh — counsel for the Crown

Mr. S. Bernstein — counsel for the defendant

Judgment

De Filippis J.:

Introduction

[1] The prosecution of "Project Neebing" began with 19 defendants, divided into four separate trials. The investigation commenced as an undercover operation into cocaine sales and progressed into one that included intercepted private communications, surveillance and search warrants. One of the four Informations names four individuals charged with a total of 37 counts. They are: Dusan Bijelic, Pasqualino Flammia, William Martin, and the defendant. This proceeded before me by way of preliminary inquiry.

[2] This preliminary hearing proceeded according to section 540 of the Criminal Code. On consent, the Crown presented its case in writing (both in hard copy and electronically). This presentation included a chronological account of each event that combined evidence from varied sources, including intercepted communications, surveillance, and search warrants. The "section 540 material" includes links to the actual sources of evidence, such as reports, audio recordings, video recordings, photographs, expert opinions, and exhibit lists. Also on consent, the Crown made certain witnesses, as requested by the Defence, available for cross-examination. Counsel explored issues of significance to them at the coming trial. By proceeding in this fashion, pursuant to section 540, a hearing that would otherwise have taken weeks of court time, was completed in five days. I am grateful to Defence and Crown counsel for their professionalism. All concerned focused on the issues that matter, thereby making effective use of court resources.[1]

[3] The other three defendants have been ordered to stand trial on the charges laid against them. Mr. Medeiros-Clementino faces seven charges. The parties agree that he should be discharged on the charge of possession of marihuana (count 37) and ordered to stand trial with respect to four other charges; possession of material knowing they would be used to produce methamphetamine (count 33), possession for the purpose of trafficking in cocaine (count 34) possession for the purpose of trafficking in methamphetamine (count 35) and possession for the purpose of trafficking in hash (count 36). These reasons deal with the two disputed charges: Trafficking in cocaine (count 14) and production of methamphetamine (count 32). I have concluded that the defendant must also stand trial for these counts.

My Role at a Preliminary Hearing

[4] My role as a preliminary hearing judge is important but limited. In this regard, the Court of Appeal said the following in R v Jackson 2016 ONCA 736:

Fifteen years ago in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, McLachlin C.J. described the test to be applied by a preliminary inquiry judge in deciding whether to commit for trial pursuant to s. 548(1) as "well-settled". A preliminary inquiry judge must decide whether a properly instructed jury, acting reasonably, could convict on the evidence adduced at the preliminary inquiry. If the evidence relied on by the Crown is circumstantial, the preliminary inquiry judge must weigh the evidence in a limited sense to determine whether the evidence is reasonably capable of supporting the inferences that the Crown relies on to establish the essential elements of the offence: Arcuri, at paras. 1, 29-30.

In conducting this limited weighing, the preliminary inquiry judge takes the case for the Crown at its highest, meaning she accepts the credibility of the evidence relied on by the Crown and assumes the reasonable inferences from the primary facts that are most favourable to the Crown: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18; R. v. Foster (2008), 76 W.C.B. (2d) 769, at para. 31 (Ont. S.C.); and R. v. Howells, 2009 BCCA 460, 85 W.C.B. (2d) 370, at paras. 13-14.

If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, she must commit the accused for trial. It is irrelevant that the evidence also supports inferences inconsistent with guilt.

Summary of Evidence: Production of Methamphetamine

[5] The events pertaining to the trafficking in cocaine count occurred in May 2016. The other disputed count arises from the execution of search warrants at the conclusion of Project Neebing on June 9, 2016. I will deal with the latter first. Two of the residences searched by police are associated with the defendant. Both are in Toronto. 191 Lisgar Avenue is the matrimonial home the defendant shared with his wife and their six year old child. 240 Symmington Avenue is a residence he shared with his mistress.

[6] The following items were seized in the basement of 191 Lisgar Avenue:

• hydrochloric acid
• sodium hydroxide (lye)
• iodine
• at least 2 litres of hypophosphorous acid (a schedule VI, Class A precursor in the CDSA)
• safrole
• about 818 grams of pseudoephedrine (a schedule VI, Class A precursor in the CDSA)
• 95 grams of methamphetamine
• pH strips
• assorted glassware with methamphetamine residue
• a separatory funnel
• graduated cylinders
• coffee filters
• acetone (36 litres)
• toluene (36 litres)
• isopropyl alcohol (36 litres)
• naptha/camp fuel (3.78 x 2 litres)
• lye crystals (3 kilograms)

[7] Mr. Doug Culver is a retired RCMP officer with experience relating to clandestine laboratories. His expertise was conceded for the purpose of the preliminary hearing. He testified that "[t]he chemicals and apparatus found on site would allow someone with the basic knowledge of methamphetamine production to in fact produce methamphetamine HCl. The evidence of residual amounts of methamphetamine on the glassware and filter paper are indicative that these items had been used by someone, at some time, to produce methamphetamine." He noted that a clandestine laboratory was not operational, nor was there a "cook" occurring at the time of entry. It is his opinion that the residence was being used as a small scale economic based methamphetamine laboratory with the potential and actual yield of 720 grams of methamphetamine.

[8] Also located in the basement of 191 Lisgar were these controlled substances:

• 636 grams of cocaine
• 710 grams of hashish
• 86 grams of marijuana

[9] These following items were seized at 240 Symington Avenue, Toronto:

• 180 litres of nitroethane (in 18 litre grey metal containers)
• 67.5 litres of benzaldehyde
• A small amount of methamphetamine

[10] It is the opinion of Mr. Culver that "benzaldehyde and nitroethane can be used to produce a compound known as phenyl-2-propanone or P2P. Phenyl-2-propanone is a Class A precursor in Schedule IV of the CDSA. Phenyl-2-propanone is a well-known precursor used in the production of methamphetamine." He also noted that there is insufficient evidence to conclude that production of methamphetamine was occurring at the 240 Symington address.

[11] Mr. Culver reported that the quantity of benzaldehyde, along with nitroethane and other essential chemicals, can be converted to 39.5 litres of P2P. To perform this synthesis one would also require 70 litres of nitroethane and 180 litres of this chemical was found at this address. He concluded that this amount of P2P can in turn be converted to 40 kilograms of methamphetamine HCl. It is his opinion that this residence can best be described as a cache site of chemicals that can be used in the production of methamphetamine.

Analysis: Production of Methamphetamine

[12] The production of methamphetamine charge that is in dispute relates to the items seized at the Lisgar residence. The Defence points out that there is no evidence that a lab was functioning at the time of the search warrant and Mr. Culvert cannot say when one did operate. It is conceded that this is the defendant's matrimonial home but it is said that his connection to it is not sufficient to fix him with production of methamphetamine. The Crown noted that part of the evidence at the preliminary hearing are statutory declarations from the defendant's wife and mistress. Both women denied knowledge of the items seized at their respective homes. His wife also deposed that the defendant controlled the access to the basement at the Lisgar home. The Crown also notes that the defendant's passport, driver's license and other personal documents were located in the basement. The defendant was seen by police to enter the Lisgar residence and was in the garage at the time the search warrant was executed. The Crown submits that the evidence, in its entirety, is sufficient to justify an order to stand trial. In this regard, counsel also argued that the date of production is irrelevant, as there is no limitation period or other jurisdictional issue at play.

[13] I accept the position advanced by the Crown. I also note that the defendant is to be ordered to stand trial for possession of material knowing it will produce methamphetamine; that is, the items seized at the Symmington Avenue residence. There is abundant evidence upon which a properly instructed jury, acting reasonably, could convict on the charge of production of methamphetamine.

Summary of Evidence: Trafficking in Cocaine

[14] As already noted, the trafficking in cocaine count pertains to events several weeks earlier, in May. It is alleged that the defendant provided two kilograms of cocaine to Mr. Martin and Mr. Bijelic for resale to their customers. There is compelling evidence that Martin and Bijelic were previously supplied with cocaine by Ross Warburton, also known as "English". On April 30, Bijelic exchanged a series of text messages with Warburton in which he sought "one of each", "today". However, Warburton could not assist and, the Crown claims, he introduced his customers to the defendant. This claim is supported by the evidence.

[15] On May 5, Bijelic and Warburton communicated by text message after meeting in person; Bijelic stated he wanted to "meet our frienf [friend]". Later that day, Bijelic and Martin had two phone conversations, in which they talk about "English" [Warburton] vouching for them, and hoping to get "it" as soon as possible. The next day Bijelic and Martin exchanged text messages expressing frustration in waiting for "English". Martin said "he" just messaged him right now to call now and come see me in an hour. Bijelic and Martin talked about meeting the guy in an hour. Martin said he would pick up Bijelic.

[16] Later, Martin called Bijelic and told him the meeting place is at College and Dufferin. Martin said he will pick up Bijelic. Within half an hour Martin's motor Hyundai SUV left the underground parking garage at 215 Sherway Gardens in Etobicoke and travelled to 410 Maybank Ave in Toronto. Bijelic entered the passenger seat of the SUV. The SUV drove to 1000 College St., arriving at 8:00pm. Bijelic and Martin exited the vehicle and walked westbound to a grey Hyundai Elantra with Ontario licence plate BVHH444. This vehicle is registered to RC Construction and Consulting. The defendant is the sole director of this company. They talked to the driver of the Hyundai through the passenger window.

[17] The driver of the Hyundai, the defendant, exited the car, opened the trunk and stood with Bijelic and Martin at the rear of the car. He closed the trunk and returned to the driver's seat. Martin entered the passenger seat. At 8:07 pm, the defendant drove to where Martin's vehicle was parked. At 8:16pm, Martin and the defendant exited the Hyundai and went to the trunk area. The parties separated and the defendant drove to a bar for about an hour and then to the area of 191 Lisgar Avenue.

[18] On May 7, Bijelic telephoned Martin and they discussed the "two" Martin just dropped off to Bijelic, and the need for "paper" in return. The "two" talked about "price" and noted that Ross [Warburton] "fucked up" and "will take the hit". The prices discussed – 4-8, 5-0, 5-2, depending on the quality – are all consistent with the price of a kilogram of cocaine. Over the next few days, the two men engaged in conversations consistent with a concern over the quality of the cocaine. Martin explained that he messaged English last night and told him the whole thing. Bijelic noted that he wanted the higher priced version, the "52", on a one day turnaround.

[19] On May 11, Martin met the defendant at a Sobeys grocery store at 9:19pm. They walked into the store and exited it 40 minutes later. Martin helped the defendant load groceries into the trunk of the defendant's vehicle. The men then went their separate ways. At 10:33pm, the defendant's vehicle parked in a driveway off the alley of 191 Lisgar St.

[20] The following morning, Martin telephoned Bijelic. The latter asked Martin if he saw "buddy" and Martin replied that he had. Martin is going to take him a sample right now to show him. Bijelic explained this was "horrible, mushy and garbage". Martin explained that he told the guy all three were awful and the guy told him the last 2 were different from the first one. The guy told Martin they have all different ones and that the doors are in Montreal and he has 1500 units coming right now. The source is Mexican.

[21] Later that afternoon, Martin met the defendant at the Sobeys plaza on The Queensway. The two men arrived in their respective vehicles. Martin removed a folded newspaper from the trunk of his car and gave the newspaper to the defendant. The latter placed the item in his vehicle. The two men conversed as they walked around the parking lot.

[22] At 9:07pm, Martin telephoned Bijelic and told him he was meeting "buddy" at 10 o'clock in the same spot he went earlier in the day. Martin and Bijelic arranged to meet after that. A few minutes later, Bijelic called Martin to explain that his thing has a similar smell, not as rotten, but a little bit. They talked about a real one out there and that one was re-done. Bijelic wants to toss this one back to him said there is only one little thing out of it. Martin is going to talk to him about it. Within the hour Martin met the defendant at the Sobeys parking lot.

[23] As already noted, over half a kilogram of cocaine was found by police at the defendant's matrimonial home four weeks later. It was a brown "mushy" consistency.

Analysis: Trafficking in Cocaine

[24] The Defence concedes there is evidence of a conspiracy between Bijelic, Martin and Warburton but that the defendant is, at best, simply a pinch hitter for the latter. This, it is said, does not make him a party to the conspiracy involving Bijelic and Martin as there is no evidence of a common goal. In this regard, counsel places special reliance on R v Myer 2012 ONCJ 791. The essential point of the Defence submission is this: The defendant's actions, in themselves, do not reveal criminal activity. What demonstrates those actions as sinister are the acts and declarations by Bijelic and Martin. However, that evidence is only admissible if there is a conspiracy among the men in question. That requires a meeting of the minds; that is a common objective.

[25] The Crown asserts that the evidence supports the conclusion that there is a conspiracy between Bijelic, Martin, and the defendant: Warburton set up the relationship and the actions by the defendant show that he was not merely a pinch hitter but a man forging a long term relationship with the others. This is established by the fact that the defendant was willing to meet again with Martin and replace the poor quality cocaine with a better product.

[26] A conspiracy is an agreement between two or more persons to commit an illegal act or to achieve something lawful by illegal means. The basic elements of conspiracy are (i) an intention to agree; (ii) the completion of the agreement; and (iii) a common unlawful object. In a conspiracy case, the offence is complete upon the agreement being made. Acts in furtherance of the conspiracy need be proven but it must be shown they intended to act upon the agreement. Nevertheless, acts in furtherance may provide circumstantial evidence of the agreement. See: United States of America v. Dynar (1997), 115 C.C.C. (3d) 481 (S.C.C.)

[27] A conspiracy is a continuing offence that terminates when the unlawful object is achieved, abandoned, or frustrated. Provided there is a continuing overall, dominant plan, there may be changes in methods of operation and personnel with varying degrees of involvement, or in proposed victims, without bringing the conspiracy to an end. The important inquiry is not as to the acts done in furtherance of the agreement, but whether there was, in fact, a common agreement to which the acts are referable and to which the accused are privy. See: Papalia, supra. Moreover, it is not necessary for the Crown to prove that each member of the conspiracy knows the details of the common scheme as long as each one is aware of its general nature and adheres to it: R. v. Root, (2005) 2008 ONCA 869, 241 C.C.C. (3d) 125 (OCA) at 141 (para. 68).

[28] A conspiracy is not often proven by direct evidence of an agreement among the parties but, rather, is usually established by their conduct. The actual agreement must be gathered from several isolated doings having possibly little value in themselves but in their cumulative effect, properly interpreted, in the light of all surrounding circumstances, may show a concerted purpose that points to the existence of the unlawful agreement. R. v. Paradis (1931), 61 C.C.C. 184 (S.C.C.).

[29] The classic statement about proof of a conspiracy, at a trial, is R. v. Carter (1982), 67 C.C.C. (2d) 568 (S.C.C.), in which set out a three-stage process:

• At the first stage, the Crown must establish the existence of the conspiracy charged -- irrespective of membership -- beyond a reasonable doubt.

• At the second stage, the Crown must establish the probable membership in the conspiracy of each accused, on the basis of evidence directly admissible against him, as viewed against the overall context.

• At the third stage, the Crown must establish membership beyond a reasonable doubt. At this stage, the Crown may rely upon the co-conspirators' exception to the hearsay rule, which, based on the principle of agency, permits the words and acts in furtherance of the conspiracy of each probable member to be used against all probable members in determining whether membership has been established beyond a reasonable doubt.

[30] The statement of proof as set out in Carter applies to all offences where it is alleged that two or more people are engaged in a common design; it is not necessary that they be charged with conspiracy: R. v. Koufis (1941), 76 C.C.C. 161 (S.C.C.).

[31] In R v Alexander [2006] O.J. No. 3173 at para 46 (Ont. SCJ):

While only evidence which is directly admissible against an accused can be considered in determining whether an inference could be drawn that she was a member of the conspiracy alleged, the directly admissible evidence should be considered, in the words of Rinfret J. in Paradis v. Regem, supra, "in the light of all surrounding circumstances." In considering what inferences can be drawn from such evidence, the acts or utterances of the accused are not to "be viewed in isolation, divorced from the context in which they occurred [they should] be interpreted against the picture provided by the acts of the alleged co-conspirators....in order to give meaning to the accused's own acts and utterances it is permissible to consider them against the context of the acts of others which may be hearsay."

[32] This approach creates practical difficulties and potential unfairness to a defendant. In R v Bogiatzis, 2010 ONCA 902, [2010] O.J. No. 5628 (OCA), Justice Rosenberg had this to say:

Part of the difficulty that arises in this case is because the directions concerning the application of the hearsay exception are interwoven with the directions on the elements of the conspiracy offence itself. Thus, as explained in Carter, first, the trial judge should instruct the jury to consider whether "on all the evidence" they are satisfied beyond a reasonable doubt that the conspiracy charged in the indictment existed. If they are not so satisfied then the accused must be acquitted. This first stage is awkward and potentially difficult to apply where only a two-person conspiracy is alleged. The problem lies in instructing the jury that it can use "all the evidence", which potentially includes hearsay evidence, to decide whether there is a conspiracy. In using all the evidence to decide beyond a reasonable doubt that the conspiracy exists, the jury has, as a matter of logic and common sense, concluded that the two members of the conspiracy are guilty. This is unfair to the two accused, or the one accused on trial as in this case, because the finding of guilt has been based on hearsay evidence that may or may not be admissible, depending on resolution of the next two stages of Carter.

[33] Recognizing these difficulties, Bogiatzis provided guidance to trial judges in the application of the rule and in instructing juries; see paragraphs 55-60. Integral to this issue is the question of what kind of relationship constitutes a conspiracy. It is on this point that the Defence relies on Myer. In that decision, my former colleague, Justice Paciocco, (now a member of the Court of Appeal for Ontario) examined when a conspiracy can arise in a drug seller/buyer relationship and had this to say:

The law has been anything but settled on this matter. Indeed, in his article "The Contract as Conspiracy: A Critique of Regina v. Sokoloski," …. Professor Peter McKinnon identified three possible approaches. Essentially, the relevant options are whether the law (1) finds a conspiracy in the simple agreement between a seller and buyer to engage in a narcotics transaction, or (2) requires only that the seller knows that the buyer intends to resell the narcotics, or (3) goes further, requiring that the seller or buyer actually agree to become part of the supply chain of the other or otherwise undertake a narcotic enterprise in common. Even though twenty-five years have passed since the article, uncertainty remains.

[34] Justice Paciocco noted that the only thing that appears to be beyond controversy is that the first possibility – that of a simple act of seller and purchaser – is not a conspiracy. He goes on to explain why he favours the third approach. In the present case, any conspiracy falls within the second or third approaches; the evidence suggests a two kilogram cocaine deal and this amount is simply too large for the transaction to have been restricted to the defendant, on the one hand, and Martin and Bijelic on the other. As such, this transaction cannot be described as a simple agreement between a seller and a buyer (i.e. the first approach). At the very least, a reasonable inference is that the defendant knew the buyers intended to resell the drug (i.e. the second approach).

[35] The Defence submits that the third approach discussed by Justice Paciocco is preferable, for the reasons explained by him, and adds that there is no evidence of such a relationship. The Crown argues that such evidence does exist and that, in any event, the third approach is not required as a matter of law. I agree with this two-fold response.

[36] The evidence presented by the Crown with respect to the words and/or actions by the defendant, Bijelic, and Martin in May support the inference of clandestine activity. Simply put, people engaged in lawful enterprises do not talk and act this way. The expert evidence about code words and prices is consistent with the conclusion that the parties engaged in a transaction for two kilograms of cocaine. In this regard, as noted in Dynar and Alexander, the defendant's actions are not to be considered in isolation, but must be considered against the background presented by the acts of the co-conspirators. A trier of fact must be cognizant of the dangers inherent in this approach, as described in Bogiatzis. Nevertheless, the difficult task must be undertaken.

[37] I find that there is evidence of a conspiracy and, considering the defendant's conduct in context, that he is a member of it. As such a reasonable jury, properly instructed, could conclude, on the basis of acts and declarations by the co-accused that the defendant is guilty of that conspiracy, as defined by the second or third approaches discussed in Meyer.

Result

[38] There may be competing inferences to be drawn from the evidence with respect to both disputed counts. At a preliminary hearing such situations require that I accept the inference most favorable to the Crown. Accordingly, the defendant is ordered to stand trial on all counts except the one alleging possession of marihuana for the purpose of trafficking.

[39] I appreciate the thorough and helpful submissions of counsel on both sides of this matter.

Released: September 12, 2017

Signed: Justice J. De Filippis

[1] The other Defence lawyers are: Ms. Rozier, Mr. McGregor, and Mr. Avery.