ONTARIO COURT OF JUSTICE
DATE: 2025-01-17
NEWMARKET
BETWEEN:
HIS MAJESTY THE KING
— AND —
ARVIN ESGUERRA CRUZ
RULING ON COMMITTAL s 548
Evidence Heard: January 6, 7, 2024
Delivered: January 17, 2024
Ms. Harlene Bajwa — counsel and Agent for the Federal Crown
Mr. James Miglin — counsel for the defendant
KENKEL J.:
Introduction
[1] Mr. Cruz is charged with two counts of trafficking fentanyl on July 26, 2023, and two counts of trafficking cocaine and methamphetamine arising out of one transaction on September 5, 2023. He’s further charged with three counts of conspiring to traffic those substances.
[2] Project Crystal involved 22 drug trafficking transactions from April to September of 2023. Mr. Cruz is charged in relation to three transactions on two days.
[3] The Crown’s case rests upon Mr. Cruz’s presence in the area of drug transactions between his alleged co-conspirators Mr. Tabing and Ms. Bennett. The Crown submits that the timing of his presence lifts the case from “mere presence” to the point where a trier of fact could reasonably infer that Mr. Cruz must have played some role in those transactions. As a party to those transactions, he must have conspired with the other parties to accomplish that shared goal.
Trafficking July 26, 2023
[4] The July 26th trafficking counts refer to two related transactions between Mr. Tabing (T) and Ms. Bennett (B) conducted at the request of the undercover officer (UC). On all charges this case depends upon the timing of the events. The relevant events of July 26th may be summarized as follows:
The Sample
- 1619 B confirmed price to UC for $10k
- 1628 B said she was going to see the guy who was supplying the fentanyl
- 1848 B sent a photo of fentanyl to the UC pic showing a unique turquoise colour
- 1903 UC called B and she said she was picking up the fentanyl
- 1913 Stolen car UK guy arrives at 132 Porchester (132P)
- 1926 T out in front of his residence with a Walmart reusable bag no apparent weight
- 1939 T walking in driveway carrying a garbage bag
- 1941 Lexus associated with CRUZ pulls up at 132 P. CRUZ interacts T. Both go to backyard with the UK male. Surveillance officer – no interaction of bags involving CRUZ.
- 1942 (1 min after CRUZ arrived) CRUZ is on the driveway at the top. T interacted with UK male then walked to B at the base of the driveway. T gives B a small item which she places under her dress and B leaves. UK male goes to his residence 142P. CRUZ walks back to his Lexus with T then they both return to the backyard.
- 1946 B sends UC a message that she has the fentanyl sample
The Fentanyl Purchase
- 2115 B calls UC and says she's getting the drugs
- 2132 CRUZ and UK male leave 132 P. Cruz gets into the stolen car while UK male checks the trunk and gets a weighted package. On return other male had a medium sized garbage bag in his left hand that was weighted at the bottom. Both go to backyard of 132P.
- 2140 CRUZ with T enter and exit Cruz's Lexus
- 2141 CRUZ and T get a white Subaru and wait there for 20 minutes
- 2201 B and UC arrive at 132 P
- CRUZ exits Subaru. B then goes to Subaru completes the fentanyl purchase from T.
- 2221 CRUZ, UK male and T leave 132 P
- 2225 CRUZ leaves in his LEXUS SUV.
- 2227 T goes with the UK male to the stolen car and then hands him a white envelope.
- 2234 – CRUZ arrives home in Scarborough
Trafficking September 5, 2023
[5] The September 5th trafficking counts refer to one transaction between Mr. Tabing and Ms. Bennett at the request of the undercover officer involving two drugs. The relevant events:
- 1804 UC arranged to purchase 3.5 kg of Methamphetamine and 1kg of Cocaine for $25,000.
- 1835 CRUZ drives up to 132P in his Lexus. T gets out carrying a black plastic bag. CRUZ exits. T is out of sight for a time. Then B pulls into the driveway (while T is in the backyard) and parks beside CRUZ’s car. T comes back out of the back yard alone carrying a red Huggies box. He put that in B’s Ford Focus.
- 1838 BENNETT leaves. TABING and CRUZ go to back yard nothing in hand.
- 1908 T and CRUZ leave in CRUZ’s LEXUS nothing in hand.
- 2006 B texts UC saying she has the drugs
- 0412 UC deployed to meet B. Drugs delivered by B to UC in red Huggies box.
- 0436 TAKEDOWN
Submissions of Counsel
[6] The Crown submits that a trier of fact could infer from Mr. Cruz’s presence in the area of drug transactions and the timing of those transactions near his arrival that he must have participated in those offences in some manner. The Crown concedes the connection is weaker on the September date.
[7] The Crown submits that a trier of fact could infer a conspiracy to traffic was formed among Ms. Bennett, Mr. Tabing and Mr. Cruz based on the same circumstantial evidence of Mr. Cruz’s presence at the scene of the drug trafficking transactions.
[8] The defence submits that there is no evidence that Mr. Cruz possessed any drug at any time. It’s simply speculation to suggest that presence in these circumstances means Mr. Cruz is a part of the transaction. On the first date, Ms. Bennett sent the undercover officer a photo of fentanyl almost an hour before Mr. Cruz arrived at Mr. Tabing’s residence. On the second date the evidence at its highest is that Mr. Cruz dropped off Mr. Tabing at his residence just before Tabing met with Ms. Bennett and engaged in a high-level drug transaction. The Crown has not identified what if anything Mr. Cruz did to assist any of the offences on either date.
Analysis
[9] There is no direct evidence that Mr. Cruz aided the trafficking transactions. His actions were monitored through surveillance, but other than his arrival near the time of drug transactions and his presence in the area he was never seen handling any bag or package nor did he have any interaction with Mr. Tabing or Ms. Bennett when they were completing their drug deals.
[10] The drug trafficking on both dates was arranged by phone messages sent among the undercover officer, Ms. Bennett and Mr. Tabing. The police seized a phone and electronic devices from Mr. Cruz. They provided no evidence that he participated in any way in these transactions. The police searched his house but there was no evidence that they found any drugs, scales, large amounts of currency or other indicia of participation in drug trafficking.
[11] The police also would have seized the phones and devices of the traffickers Ms. Bennett and Mr. Tabing. There was no evidence called in this hearing that their records linked Mr. Cruz to the trafficking at Mr. Tabing’s house, or any conspiracy to traffic.
[12] This was an undercover project with surveillance that lasted for 6 months, involving almost two dozen identified drug transactions. The case against Mr. Cruz is limited to his presence and actions on two of those dates.
[13] It’s not plain what role Mr. Cruz is alleged to have played in the trafficking. The Crown is not required to specify a role, but where it’s not apparent there must be some evidence on which a trier of fact could find that the accused is otherwise a party to the offence. To be a party he would have to have committed those offences, aided the two known traffickers or abetted them by providing encouragement to commit the offences. The Crown submits that all of the elements of the offences can be inferred from Mr. Cruz’s presence at the scene and the timing of his arrival on both dates.
[14] The drug transactions on July 26th started hours before Mr. Cruz arrived at 132 Porchester. Ms. Bennett sent the UC officer a photo of the fentanyl more than an hour before Mr. Cruz arrived. There’s no evidence linking Mr. Cruz to that photo.
[15] Mr. Tabing’s fentanyl sample interaction with Ms. Bennett occurred just after Mr. Cruz’s arrival, but Mr. Cruz stood away from the interaction and took no part.
[16] Mr. Cruz then went to the backyard with Mr. Tabing and the “unknown male”. Later that male (who a trier of fact on this evidence could reasonably infer was the fentanyl supplier – obtaining a package from his trunk prior to the main transaction, receiving a white envelope from Tabing afterwards) and Mr. Cruz went to his car. The surveillance officers saw them chat and laugh. When the male went to his trunk to obtain a weighted garbage bag, Mr. Cruz stayed by the front of the car. He didn’t handle the bag. He also sat with Tabing in the Subaru later in the evening. When Ms. Bennett arrived to meet with Mr. Tabing, Mr. Cruz left the Subaru and left the immediate area.
[17] I agree that presence at the scene of drug transactions is different from presence in an area like a bar or a public square. A trier of fact could reasonably infer that the traffickers Tabing and Bennett were both comfortable with Mr. Cruz’s presence. However, that comfort with Mr. Cruz as someone they both knew is only an initial step in the Crown’s case. Further evidence is required to show that the jury could reasonably infer that Cruz was there at the scene because he was a participant in the transactions.
[18] Mr. Cruz is around, but on July 26th he’s the only person among the group described that was not seen taking any actions that could be related to drug trafficking. On the contrary, Mr. Cruz kept a physical distance from the others when they were taking those actions. Association is not a sufficient basis to infer participation.
[19] To association and presence in that context is added the timing of his arrival on July 26th just before Tabing provided the sample to Bennett. From the combination of that timing and Mr. Cruz’s presence and actions, socially interacting with traffickers, could a trier of fact reasonably infer that Mr. Cruz must have played some role in those transactions?
[20] On September 5th the evidence is more limited. Mr. Cruz arrived at 132 Porchester with Mr. Tabing. Tabing went to his back yard holding a black plastic bag. Ms. Bennett arrived shortly afterwards and Mr. Tabing brought a red Huggies box and put it in Ms. Bennett’s trunk. Mr. Cruz had left his car and did not take any direct part in that transaction. He then stayed with Mr. Tabing for half an hour, then they left and were observed doing an errand at a Purolator store which the officers did not think was related to the transaction.
[21] The surveillance officers who testified highlighted one point in relation to Mr. Cruz. They had initially thought that the drug box that was placed in Ms. Bennett’s car came from his vehicle based on their limited observations. A later review of aerial surveillance showed that was mistaken. Mr. Tabing got the Huggies box from his back yard, not from Mr. Cruz’s vehicle. The yellow bag police observed at the time also did not come from Mr. Cruz’s vehicle.
[22] Mr. Cruz drove Mr. Tabing home. It appears that Tabing arranged a drug transaction to take place just after his arrival. In that sense Mr. Cruz may have factually aided Mr. Tabing by driving him home, but the act only shows participation in the offence if there’s evidence Mr. Cruz knew that is why Mr. Tabing wanted to go home and Cruz agreed to drive him there for that purpose. That would be aiding the commission of the offence as a driver, but there’s no specific evidence as to what Mr. Cruz knew or intended. The Crown again relies upon attendance in the area at the time, but where direct surveillance evidence again showed he did not interact with Tabing or Bennett as they moved the box into her car, and he otherwise took no part in the transaction.
[23] On both days Mr. Cruz attended Mr. Tabing’s home and was observed to be having social interaction with Mr. Tabing. The surveillance did not show any evidence or act of participation by Mr. Cruz on either date beyond presence in the area. The surveillance was not constant through those months so there is no evidence as to whether Mr. Cruz attended Mr. Tabing’s home regularly or whether he just attended at the time of these transactions. The latter can’t be assumed or inferred.
[24] Circumstantial evidence must be subject to a limited weighing to identify reasonable inferences favourable to the Crown and determine whether the evidence as a whole could reasonably support guilty verdicts on any count — R v Arcuri, 2001 SCC 54. I agree with the Crown that Mr. Cruz’s presence on these two dates is suspicious. It would be consistent with the Crown’s theory that he participated in those offences, but the rest of the circumstances provide little support for that theory. The Crown’s case is not simply “mere presence” but it’s much closer to that end of the scale than evidence that could support a conviction, even taking the Crown’s case at the highest. I agree with the defence that with little grounding in the evidence, much of the Crown’s theory remains speculation. I find the evidence as a whole from both dates together could not reasonably support a finding of guilt on any of the trafficking counts.
[25] On the conspiracy charges the Crown called no evidence showing Mr. Cruz communicated with Ms. Bennett at any time. There’s no direct evidence of an agreement which is the essence of conspiracy. Ms. Bennett’s statement to the undercover officer (UC) “those are my guys” referring to Mr. Tabing and Mr. Cruz on July 26th is not admissible against Cruz to prove the assertion stated nor is it admissible to prove membership in the alleged conspiracy.
[26] The Crown’s conspiracy case rests on the same evidence showing presence at times when others are trafficking. I find it fails for the same reasons, but on these counts there would be even further levels of speculation required. Participation in some unspecified manner as a s 21 aider can mean many things, but to convict on conspiracy there must be evidence that could potentially satisfy each of the three elements of the offence in relation to the particular conspiracy alleged — R v Root, 2008 ONCA 869 at para 66.
Conclusion
[27] Mr. Cruz is discharged on all counts.
Delivered: January 17, 2025
Justice Joseph F. Kenkel