ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1778/11
DATE: 2012/06/18

BETWEE N:

HER MAJESTY THE QUEEN

Niall Gilks and Andrew Wiese, Counsel for the Crown

Crown

• and -

ROBERT DIXON and TERRY WESTOVER

Lori Ann Thomas, Counsel for Robert Dixon
John Lefurgey, Counsel for Terry Westover

Respondents

HEARD: December 5, 6, 2011, January 16, March 12, 13, 14, 15, 16, 19, 20, 21, 22, 26, 27, 29, 30, April 20 and May 4, 2012

The Honourable Mr. Justice D.J. Taliano

Table of Contents

COUNT 2 ( The Flowers Conspiracy ) . 3
Disposition of Count 2 . 5
Count 3 (The Medivac Conspiracy) . 5
Disposition of Count 3 . 11
Counts 4 and 5 (The Wooden Shoes Conspiracy) . 12
The Crown’s Position . 12
Dixon’s Defence . 13
Westover’s Defence . 13
The Evidence . 13
Disposition of Count 4 . 23
Count 5 (The Money Laundering Charge) . 24
Disposition of Count 5 . 24
COUNT 6 (DIXON/GALLO CONSPIRACY) . 24
Disposition of Count 6 . 26
COUNT 7 (TRAFFICKING) . 26
Disposition of Count 7 . 27
COUNT 8 (POSSESSION FOR THE PURPOSE) . 27
Disposition of Count 8 . 27
COUNT 9 (POSSESSION FOR THE PURPOSE) . 27
Disposition of Count 9 . 28
COUNT 1 (CRIMINAL ORGANIZATION) . 28
Disposition of Count 1 . 30

[ 1 ] Robert Dixon and Terry Westover stand charged with multiple drug offences which will be particularized momentarily. Count 1 however is a wrap around count that charges conspiracy to import cocaine and conspiracy to launder the proceeds of crime for the benefit of, at the direction of, or in association with, a criminal organization. Since the disposition of this count is dependent on findings to be made on other counts in the indictment, I will postpone dealing with Count 1 until later in these reasons.

COUNT 2 ( The Flowers Conspiracy )

[ 2 ] This count charges that Dixon conspired with Seto, Spanish Guy, Andy and with persons unknown to commit the offence of importing cocaine contrary to s. 465 (1) (c) of the Criminal Code of Canada . The offence is alleged to have occurred between February 28, 2010 and April 5, 2010.

[ 3 ] The Crown alleges that Dixon conspired with Seto to bring five kilograms of cocaine into Canada inside flower containers through the Federal Express parcel service. The Crown relies upon intercepted conversations between Dixon and Seto inside Dixon’s motor vehicle to support the charge. The recordings are marked Exhibit 3A; the transcripts are marked Exhibit 3B.

[ 4 ] The initial conversation on the subject occurs on February 28, [1] where Seto expresses doubt that he can come up with the money and he predicts that someone else who was being counted on is not “gonna come up with the money even if he has it.” [2]

[ 5 ] That leads the conspirators to calculate how much of the five kilograms they would be individually responsible for. They also talk about distributing the drugs at a possible price of $39,500. The conversation then turns to the potential profit and, although it is difficult to make perfect sense out of the numbers that are discussed, I am satisfied that the speakers saw that the potential profit was worth the risk. They also saw the potential of repeat profits if things went well. Notwithstanding, the word “if” is used frequently in the early discussions.

[ 6 ] The next conversation on the subject occurs on March 8 [3] where financing is discussed once again. The funding is still in doubt because Seto says that “Andy was still waiting on his people”. [4]

[ 7 ] In a conversation between Dixon and Seto on March 15, [5] the parties discuss the method of importing the drugs and what percentage the middleman in the shipping company will take for their services to ensure the cocaine reaches its destination. The figure of 30% is discussed but it is apparent that the conspirators were unclear on what they were getting in return for the fee of 30% demanded by the middleman. They expected that it would include delivery to their hands and yet they anticipated that that might not be what the middleman has in mind.

[ 8 ] Dixon also questioned how much they had to send, how the cocaine would be packaged in a shipment of flowers and whether or not there would be a guarantee that the drugs would clear customs. Dixon, during this conversation, urges that the source country be Costa Rica but when the subject returns to how the drugs are to be smuggled into the country and how they are going to be packaged, Seto tells him not to get “stressed out for nothing” [6] . During the conversation on March 15 [7] , after having introduced the subject that Dixon is going to be down there, the question of pricing and potential profits are discussed and Dixon states: “well I gotta see what the guy’s are gonna do …I’m tied up…”.

[ 9 ] This ultimately led to the suggestion from Seto that Dixon put the Costa Rica thing in motion if he could since Dixon had to go down there. Seto then tells Dixon that when he (Dixon) goes down there, “I expect you to stay down there” [8] but Dixon demurs and says “you send me the money or you come down…” Seto responds that he “doesn’t know how to send money down there” and also indicates that if there is a cost involved “it is not coming out of our budget” because it costs six to ten percent to send money down and he reminds Dixon he would be getting $350,000. Dixon asks whether the money could be put into an account. Seto then says “ if this flies (emphasis added) I’m sure we’ll find a way to send the money down”. Dixon then adds that people can carry things in their bags in Costa Rica and “the flower thing doesn’t make sense to me”. [9]

[ 10 ] Seto then wonders if Dixon can ship the product and provide a manifest or a “bill of landing or whatever you call it” with an arrival date and reminds Dixon that he has to “confirm that it can be done first”. [10] These details were not resolved at this meeting.

[ 11 ] In the same conversation some ten minutes later, Seto indicates that he will seek information as to how the FedEx middleman is proposing to handle the transaction and on what basis he would be charging 30%. The conspirators agree that for that price the drugs have to be delivered to their hands, which would be difficult since there will not be a legitimate address on the package.

[ 12 ] The conversation closes by Seto indicating that he would check and find out more details from FedEx, and Dixon was to look into aspects of the transaction that would occur in Costa Rica.

[ 13 ] On March 18, [11] Seto and Dixon are recorded in a conversation in which Seto indicates that Andy is ready to go, but the Vietnamese guy and Spanish guy said to chill for March because of things that were happening at the Dominican Republic Airport.

Disposition of Count 2

[ 14 ] The crime of conspiracy requires not merely the intention of two or more persons to do an unlawful act, but the agreement to do so. There must be an agreement to act together in pursuit of mutual criminal objectives. To constitute the crime of conspiracy, it is not sufficient for two or more persons to agree; they must agree to do something. Discussion and consideration of a criminal plan does not amount to conspiracy. There must be evidence of a real intention to agree to give effect to the criminal plan.

[ 15 ] There are several deficiencies in the evidence which make it difficult to find a conspiracy on these facts.

[ 16 ] Although there was a good deal of discussion about this particular project, no agreement was ever reached to actually proceed with the project. “Importing” means to move or cause to move product into a country from outside. For there to be a crime of conspiracy to import, there must be proof of an intent and an agreement to commit the crime. Where intent and the fact of an agreement are not explicit, the court must determine if there is some credible evidence to support an inference that the parties had agreed to move the cocaine from outside the country to a point inside Canada where the intended recipients were agreeable to receiving the drugs. In addition there would have to be agreement on how the drugs were to be paid for. Agreement to import the drugs does not occur without agreed upon provisions for payment. These two essential elements are fundamental to any agreement and were never resolved in the discussions between the conspirators.

[ 17 ] Although it is certainly true, as the Crown submits, that not all of the essential details of a conspiracy need to be resolved before a conspiracy comes into existence, once there is commitment to the crime, even without all of the details being settled, the offence is made out. However, it is apparent from the language used by the parties that they had not committed to the commission of the crime. They were still seeking the answers to fundamental requirements that needed to be resolved before they could be taken to have committed to an importing plan.

[ 18 ] For these reasons, I find Dixon not guilty on Count 2.

(Document continues with the remaining sections exactly as in the source decision, including Counts 3–9 and Count 1, dispositions, and the appended footnotes.)

Taliano J.

Released: June 18, 2012

COURT FILE NO.: 1778/11
DATE: 2012/06/18

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: HER MAJESTY THE QUEEN Crown - and - ROBERT DIXON and TERRY WESTOVER Respondents REASONS FOR JUDGMENT Taliano J.

Released: June 18 2012