Court Information

Ontario Court of Justice

Date: August 21, 2017

Sault Ste. Marie Court File No.: 268

Parties

Between:

Her Majesty the Queen

— And —

David Pipoli

Judicial Officer and Counsel

Before: Justice John Kukurin

Heard on: June 13 and 14, 2017

And on: Written Submissions

Reasons released: August 21, 2017

Counsel:

• M. Jones — counsel for the Crown
• W. Chorney — counsel for the defendant David Pipoli

Reasons for Judgment

KUKURIN J.

Introduction

[1] These are Reasons following trial of the Accused on a charge of trafficking in a substance in Schedule 1 under the Controlled Drugs and Substances Act (the "CDSA"), namely cocaine, in particular under s.5(1) of that Act, thereby committing an offence under s.5(3) of that Act.

[2] The crown led its evidence through a series of police officers, most of which were part of an RCMP team operating Project O'Tamper in Sault Ste. Marie (the Sault). The accused did not testify, nor did he call any witnesses in his defence.

Factual History of the Offence

[3] Project O'Tamper sprang up in October or November 2014 following some confidential information that a male person, Christopher Muncaster, was dealing in steroid drugs in Sault Ste. Marie, Ontario, which he was importing illegally from Michigan. Mr. Muncaster was a personal trainer at the Sault Good Life gym where he came into contact with a number of people, some of whom worked out with, or were trained by him. In the course of his training activities, he was reported to have supplied patrons of Good Life gym with steroids, presumably to enhance their training and "bulking up". He was the main target of Project O'Tamper. Eventually, he was busted and charged with a number of CDSA offences.

[4] Project O'Tamper was arranged as a surveillance and a covert undercover operative (u/o) initiative. The RCMP police officer in charge was Mark Allison who oversaw the entire operation, sought funding from the RCMP, and co-ordinated the activities of his team. The main undercover operative was a male from southern Ontario who travelled to the Sault in April 2015 where he joined Good Life gym and struck up a relationship with Mr. Muncaster as his personal trainer. Also on the team was another undercover operative, a female police officer, to give some context to the story spun by the male undercover operator. In addition were several other RCMP officers who were involved mainly in surveillance and in assisting the team in obtaining tracking and other warrants, and acquiring information for the project. The only member not from the RCMP was a forensic police officer from the Sault Ste. Marie Police Service who had credentials in extracting information from electronic devices such as computers and cell phones.

[5] The male u/o engaged Mr. Muncaster in talk about steroids as aids to his training. He was successful, and some buys of steroids were made, as early as May 2015, from Mr. Muncaster, who apparently was rather open about steroid supply and usage. In late June 2015, when talking about purchasing of steroids, the male u/o indicated that his "girlfriend" (the female u/o) had some of her girlfriends in town and they would like a little something with which to party. The male u/o asked Mr. Muncaster if he could hook him up with someone who might supply some "blow" for his girlfriend and her friends. Mr. Muncaster indicated that it was no problem to provide an "eight ball" of cocaine. He apparently said to the male u/o:

"Let me call 'my guy' to see if he has that too"

Arrangements were made for the delivery by Mr. Muncaster of the cocaine and steroids to the male u/o on June 25, 2015 at 6 pm in the parking lot of Good Life gym.

[6] Mr. Muncaster also had his own training studio at a Queen Street location in the Sault. He met clients on a one on one basis there for personal training purposes. The u/o attended at the studio about 11:30 am for a workout session. He later that day sent an e-mail to Mr. Muncaster asking if they were OK for a workout at 5:30 that day. He received a reply that "6:00 pm works". He took this to mean that the arrangements for the steroids and the cocaine were still on. He sent Mr. Muncaster an e-mail at about 5:35 pm asking if Mr. Muncaster wanted him to wait outside while Mr. Muncaster "works out his meal plan". This was understood to be a euphemism for the drugs. The reply he received was "Yes, 6:00 works", so he waited in his vehicle outside in the parking lot.

[7] Mr. Muncaster arrived in the Good Life gym parking lot in his white Hummer. The u/o went to it and got in. Mr. Muncaster gave him two containers of steroids. The u/o asked about the cocaine and was told "It's coming". He invited the u/o to wait in his Hummer. However, the u/o declined and went back to wait in his own vehicle (explaining at trial that he did so for his own safety concerns as Mr. Muncaster had complete control of the Hummer). Shortly thereafter, the u/o observed a sporty yellow car arrive in the parking lot. A male got out, approximately 5 feet 10 inches to 6 feet tall. This male approached the Hummer's passenger door, remained there for less than one minute and then left, returning to his own vehicle, and then driving off. Mr. Muncaster then drove over to the u/o's vehicle and provided the u/o with two plastic baggies of cocaine saying that it wasn't the best quality but was "OK for the girls". In subsequent evidence, the baggies were confirmed to contain cocaine which had been cut to 44% and 47% respectively.

[8] The u/o was unable to identify this male person as he was parked some distance away from the Hummer. He later corrected his observation of the colour of this male's car to be orange rather than yellow. Mr. Muncaster had never mentioned the name of the person to whom he referred as "my guy". The u/o was unable to see what the male person was doing while beside the open passenger door of the Hummer. He did not hear any of the conversation between the male and Mr. Muncaster. He did not see the male with anything in his hands, nor did he see the male retrieve anything from his pockets or from anywhere else. He conceded that the conversation between the male and Mr. Muncaster may have been an innocent one involving, for example, a meal plan or a workout session. He was observing the Hummer from a distance of about one hundred feet. His inference from the fact that Mr. Muncaster had earlier said he'd see if "my guy" had any cocaine, and from the fact that Mr. Muncaster did not have cocaine to give to the u/o when he provided the steroids to him, but did so after his interaction with the unknown male, was that the unknown male was the "my guy" to whom Mr. Muncaster had referred, and was also the person who provided Mr. Muncaster with the two baggies of cocaine that were thereupon provided to the u/o.

[9] The RCMP team also made observations. It had a communications scribe (Cpl. Lamont) who kept a record of the communications from and to the team members. Earlier that day, one team member (Cst. Chevalier) had been staked out across from the front entrance of Mr. Muncaster's Queen Street studio from where he could observe persons entering and exiting. He took photos with a camera of a male person exiting earlier that day. The photo was entered as an exhibit.

[10] Another team member, (Cst Allison), was parked in the rear of the studio and was alerted by Sgt Chevalier that a male person had just left. He observed a male enter an orange Mitsubishi Eclipse and drive off. A motor vehicle check was done on the licence plate number of this vehicle and the registered owner was identified as the Accused, David Marc Pipoli. Oddly, Cst Chevalier had not seen this male enter the studio but had only seen him leave. In any event, Cst. Allison was able to identify that the image of the male exiting the studio in the photo taken by Cst Chevalier to be the same person whom he had seen get into the Mitsubishi Eclipse, and to identify that person in court as the Accused.

[11] The surveillance then shifted to the Good Life gym parking lot. At about 6:15, an orange Mitsubishi Eclipse was seen entering the lot and the person ultimately identified as the Accused had his tete-a-tete with Mr. Muncaster and then drove off, followed by Cst Allison. While this male was beside the Hummer, Cst Chevalier took another photo of this person beside the open passenger door of the Hummer, which was entered as an exhibit. The photo was not as good quality as the earlier photo. However, it did place the Accused in the Good Life gym parking lot at about the time that the drug purchase by the u/o was taking place from Mr Muncaster.

[12] Cst Chevalier had been assigned primarily as a surveillance officer and he had the camera with the telephoto lens with which photos were taken. He was previously briefed that a drug buy would be taking place behind the Good Life gym. His evidence as to what he observed of the interaction of the Accused and Mr Muncaster at the Hummer (which was estimated by Cst Chevalier to be a distance of 200 feet from Cst Chevalier's location) was not very specific. He said that he:

• Didn't see the male person exit the Mitsubishi Eclipse
• Didn't see anything in this male person's hands
• Didn't see Mr Muncaster pass anything to this person
• Didn't see any movement between Mr Muncaster and this person
• Didn't recall any of this person's movements during the encounter
• Estimates that the entire encounter took less than one minute

[13] Further evidence of the crown related to the results of production orders and tracking warrants obtained (or denied) from Justices of the Peace during the investigation. Det. Cst Erkkila, of the Tech Crimes Unit (Sault Police), through a disassembly of a Blackberry mobile phone device seized from Mr Muncaster, and using the data collected from it in a Celibrite program, was able to re-create test messages received by and sent from this phone which he displayed on a spread sheet entered as a trial exhibit. The RCMP established that Mr Muncaster had been in touch, by way of text messages with a number of people, two of which were the u/o and Mr. Pipoli, and that some of these were on the same date, namely June 25, 2015, the date of the drug transaction. The messages, insofar as Mr. Pipoli are concerned, were objectively relatively innocuous, unless they were read with the foreknowledge of the proposed drug buy. Then they were subject to a possibly different nuance of meaning. In none of these messages was there any mention of cocaine. The most suggestive element in these messages was an exchange to meet at 6:00 pm.

[14] Mr. Muncaster was arrested on January 8, 2016. Mr Pipoli was arrested on February 2, 2016. Between the time of the drug buy, on June 25, 2015, and his arrest, Mr. Pipoli was tracked, but surveillance did not result in any definitive drug related activities on his part. The charge against Mr. Pipoli was based on the events of June 25, 2015.

Analysis of the Evidence

[15] Kiteley J set out the onus of the crown in establishing guilt:

"The standard of proof beyond a reasonable doubt is inextricably intertwined with the presumption of innocence. The burden of proof rests on the prosecution. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based on sympathy or prejudice. It is based on reason and common sense. It is a doubt that is logically derived from the evidence or absence of evidence. The Crown need not meet a standard of absolute certainty or establish guilt beyond any doubt.... In a case involving circumstantial evidence, the Crown must prove beyond a reasonable doubt that the guilt of the defendant is the only reasonable inference to be drawn from the proven facts"

[16] There are several problems with the case of the crown. Ultimately, the case reaches the level of very suspicious, but does not reach the level of proof beyond a reasonable doubt.

[17] Firstly, the evidence is relevant only in the contextual basis in which it was presented to the court. The court was not present to see events as they unfolded. It can only glean what took place from the witnesses called at trial. The main source of information of what happened in the covert operation was the testimony of the undercover operative. He was able to describe events and observations made by him of those events. He was also able to recount what he said or communicated to Mr Muncaster who was the target of the operation. However, he also recounted what Mr Muncaster told him, which was far more important, and in fact critical to the crown's case. No objection was made by the defence to this portion of the u/o's evidence. Why, I do not know. Perhaps it was adduced as narrative. If so, it unquestionably filled in where its absence might otherwise make the story unintelligible, or at least difficult to follow.

[18] However, I do not believe that its narrative value was the only reason for this evidence. In my view, the crown led Mr Muncaster's utterances and his communications with the u/o, through the testimony of the u/o, for the truth of what they contained. In this regard, it was hearsay evidence coming from the mouth of the u/o, and as double hearsay in being repeated by others who obtained it from the u/o. Hearsay is inadmissible as evidence at trial, save and except for hearsay that either falls within one of the classical exceptions to the rule against hearsay, or is received on the principled approach to the hearsay exception (necessity and reliability). In this case, the crown did not seek to enter this hearsay evidence on either basis – it just introduced it. Mr Muncaster's statements would be admissible in a trial in which he was the accused. But he was not the accused in the trial before me. He was not even a witness.

[19] Where would the crown be without Mr Muncaster's hearsay statements as evidence. There would be no reference to "my guy" as the source of any drugs. There would be no "it's coming" in relation to the cocaine. The main reason why Mr Pipoli appeared on the RCMP screen was because of the RCMP belief that someone else was supplying Mr Muncaster with drugs. This would not necessarily be the inference of the court in the absence of these utterances by Mr Muncaster.

[20] Secondly, the evidence does not specifically connect the Accused with the possession of any drugs, much less in trafficking drugs, and not with "cocaine". At no time was any crown witness able to say he had seen drugs in Mr Pipoli's possession, even for a split second. The critical encounter between Mr Pipoli and Mr Muncaster at the Good Life gym was brief, lasting less than one minute. The evidence was fairly clear that Mr Pipoli was a person who worked out at the Good Life gym and had a relationship with Mr Muncaster that may well have been as one of his clients receiving personal training services. No witness saw anything passed between them at the encounter. Even the u/o concedes that the encounter could have been a discussion of a food plan or a workout session.

[21] The crown's case against the Accused, David Pipoli, is based almost exclusively on circumstantial evidence. The leading authority on the use of circumstantial evidence in criminal cases is R. v. Villaroman, a recent Supreme Court of Canada decision. There had been some disparity in how courts had been treating circumstantial evidence. This decision, authored by Cromwell J. said that it saw itself as:

"... an opportunity to provide any needed clarification."

[22] The rationale of Villaroman is succinctly set out in the following summary:

"A view that inferences of innocence must be based on proven facts is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the proof beyond the reasonable doubt standard. A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. When assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. The Crown thus may need to negative these reasonable possibilities, but certainly does not need to disprove every possible conjecture which might be consistent with innocence. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation."

[23] This requires me, in this case, to determine if there are "reasonable inferences" other than guilt of Mr. Pipoli of the offence with which he is charged, either based on evidence which has been admitted in this case, or even a lack of evidence. What is most relevant is the fact that these inferences must be "reasonable" ones. These "other plausible theories" or "other reasonable possibilities" inconsistent with guilt that the court must consider in weighing circumstantial evidence are not, however, limitless. They must:

"... must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation."

[24] In the present case, there is the evidence, tendered by the crown, of the pre-existing relationship between Mr Muncaster and Mr Pipoli. That is a relationship of personal workout trainer and client, or at the very least, co-workout clients of Good Life gym. There may have been matters in common to "working out" that were involved in the encounter in the Good Life gym parking lot between these two individuals on June 25, 2015. I cannot say that these are unreasonable inferences based on the evidence I heard. The encounter was not audio recorded and this leads to an infinite number of possibilities of what may have been discussed. It may have been something totally innocuous. It was a relatively brief meeting, and no witness claimed that Mr. Pipoli had anything in his hand(s) or that he was seen passing anything to Mr Muncaster during this short time. In fact, my first inference is that what may have passed between them at the time was merely "words".

[25] Ultimately, the crown must prove guilt of the Accused beyond a reasonable doubt. If a reasonable inference inconsistent with guilt of Mr Pipoli can be reached, then the crown has not proven its case beyond a reasonable doubt. As in most cases involving circumstantial evidence, it is where to draw the line between what is "reasonable" and what is "speculative". To require the crown to disprove all other inferences of innocence is much too high an onus, and is not what the law requires. It draws the line below this level:

"the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible."

[26] In the R. v. Kuenzler case cited by the crown, the facts were similar to those in the present case. However, they were much stronger from a circumstantial standpoint in providing the framework for inferences of guilt. For example, the individual dealing with the undercover operator (referred to in the decision as the 'front end') went to the automobile of the drug supplier (referred to as the 'back end') twice. Once was to obtain a sample, which the u/o found satisfactory, and a second time to get the balance of the drugs, which were then purchased by the u/o. Moreover, this was a second transaction in which the front end supplied drugs to the u/o. In the prior transaction a couple of weeks before, an almost identical protocol was followed, except that the back end drove a different vehicle. There was no relationship of any other kind between the front end and the back end in that case, at least none referred to in the judgment. Moreover, the front end was much more explicit in speaking to the u/o that he was going to get the "drugs" from his back end whom he identified as his "contact". He said that he "would meet his contact, go for a short ride, count the money and his contact would drop him off and [he (the front end)] would give him the drugs.

[27] While the totality of the evidence does create the strong suspicion that Mr Pipoli was the cocaine supplier of Mr Muncaster, it does not prove it beyond a reasonable doubt. In such circumstances, I am required to find Mr Pipoli not guilty.

[28] In the circumstances, I have not dealt with the continuity of evidence argument of the defence as it is unnecessary.

Released: August 21, 2017

Justice John Kukurin, Ontario Court of Justice

Footnotes

[1] S.5 (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.

[2] S. 5 (3) Every person who contravenes subsection (1) or (2) (a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life ...

[3] In the drug subculture, "blow" refers to cocaine. An "eight ball" is a quantity of cocaine that varies in price with supply, demand and location but has a street value of about $200 to $250.

[4] R. v. Kuenzler, 2010 ONSC 2567 (Kiteley J Ont SCJ)

[5] R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000

[6] R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25