COURT FILE NO.: 10-G30392

DATE: 2012/12/14

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Crown

– and –

JAMES CULLEN SARSFIELD

Defendant

Roderick W. A. Sonley, and Margaret Jarmoc, for the Crown

Jeffrey Langevin, for the Defendant

HEARD: November 5, 2012

REASONs ON motion for directed verdict

Kane J.

[1] At the conclusion of the Crown’s case, the defence before electing whether to call evidence, brought a motion for a directed verdict acquitting Mr. Sarsfield of four of the nine counts being prosecuted in this jury trial. The four counts, number 1, 2, 3 and 9 allege that the defendant is guilty of 1) conspiring with others to traffic in cocaine, 2) being in possession with others of cocaine for the purpose of trafficking, 3) trafficking with others in cocaine and 9) had, with others, possession of money less than $5,000 obtained from trafficking in a prohibited substance.

[2] The “other persons” cited in each of these three counts are Troy Saikaley and Andrew Wall (collectively, the “Others’). Mr. Sarsfield is the only defendant in this proceeding.

THRESHOLD TEST ON MOTION FOR DIRECTED VERDICT

[3] The Supreme Court has articulated the rule on a motion for direct verdict in the following ways:

(1) The Crown is not required to do more than produce evidence which, if unanswered and believed, is sufficient to raise a prima facie case upon which the jury might be justified in finding a verdict. See Girvin v. The King (1911), 45 S.C.R. 167 and United States of America v. Shephard, [1977] 2 S.C.R. 1067.

(2) A motion for a directed verdict should not be granted “in any case in which there is admissible evidence which could, if it were believed, result in a conviction.” See Shephard, supra, p. 1080 and R. v. Charemski, [1998] 1 S.C.R. 679, para. 2.

(3) For there to be “evidence upon which a reasonable jury properly instructed could return a verdict of guilty” in accordance with the Shephard test (at p. 1080), the Crown must adduce some evidence of culpability for each essential element of the crime for which the Crown has the evidential burden. See R. v. Charemski, supra. para. 3.

(4) The sufficiency of evidence to defeat a motion for a directed verdict is determined by whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. See United States of America v. Shephard, supra, at p. 161, R. v. Arcuri 2001 SCC 54, [2001] 2 S.C.R. 828, para. 21, R. v. Monteleone, [1987] 2 S.C.R. 154, para. 8.

(5) Proof beyond a reasonable doubt is not an element of the test for a directed verdict; the proper test is some evidence. R. v. Litchfield, [1993] 4 S.C.R. 333, para. 52.

(6) The Shephard test, as to whether to grant a directed verdict, applies to cases involving only circumstantial evidence and cases based on direct evidence. R. v. Monteleone, supra, para. 8, and R. v. Litchfield, supra, para. 49.

(7) In a case restricted to circumstantial evidence, the Sheppard test is refined in 2001 in the decision of R. v. Arcuri, supra. The court therein stated that where the Crown presents only circumstantial evidence, the judge, to address whether any evidence is present as to each essential element of the offence, must in a limited way, weigh the evidence to assess whether it is reasonably capable of supporting the inferences the Crown will ask the jury to draw. The judge does not ask whether she or he would conclude that the accused is guilty. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. Whether that inference should be drawn from that circumstantial evidence is for the jury to decide. See R. v. Arcuri, supra. paras. 23 and 26.

(8) The above refinement to the Sheppard test in cases limited to circumstantial evidence, is not referred in R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368. The Supreme Court therein merely states: “A directed verdict is not available if there is any admissible evidence, whether direct or circumstantial which, if believed by a properly charged jury acting reasonably, would justify a conviction.”

(9) It is not the function of the trial judge to weigh the evidence, to make determinations of credibility or to test the quality or reliability of evidence once a determination of its admissibility has been made. It is not for the trial judge to draw inferences of fact from the evidence. These functions are for the trier of fact, the jury. R. v. Monteleone, supra, para. 8, and R. v. Litchfield, supra, para. 50.

(10) The question of whether circumstantial evidence meets the rule in Hodge’s Case (1838), 2 Lewin 227, 168 E.R. 1136, (i.e., that in order to convict on circumstantial evidence, the evidence must not permit of any other rational conclusion but that the accused is guilty or whether or not there is a rational explanation for that evidence other than the guilt of the accused) is for the jury to determine. See R. v. Paul, [1977] 1 S.C.R. 181, Lavoie v. The Queen, [1977] 1 S.C.R. 193, R. v. Monteleone, supra, para. 8 and R. v. Charemski, supra, para. 4.

(11) The Ontario Court of Appeal in 2005 held that the process of drawing inferences from evidence is not the same as speculating, even where the circumstances permit an educated guess. There must be evidence to support or upon which the trier of fact is asked to draw the inference. See United States of America v. Huynh, (2005), 200 C.C.C. (3d) 305 (Ont. C.A.) para. 7. This Court interprets that principle as consistent with the above and as refined in R. v. Arcuri, supra.

ESSENTIAL ELEMENTS OF THE OFFENCES CHARGED

COUNT # 1

[4] The essential elements of the offence of conspiring with the Others to traffic in cocaine are:

(a) There was a conspiracy between two or more people;

(b) The conspiracy was to commit the offence of trafficking in cocaine;

COUNT # 2

[5] The essential elements of possession of cocaine with the Others for the purpose of trafficking are:

(a) That James Sarsfield together with the Others, or alone, was in possession of a substance;

(b) That the substance was cocaine;

(d) James Sarsfield together with the Others, or alone, had possession of cocaine for the purpose of trafficking in it.

COUNT # 3

[6] The essential elements of trafficking with the Others in cocaine are:

(a) That James Sarsfield together with the Others, or alone, trafficked in a substance;

(b) That the substance was cocaine;

(d) That James Sarsfield together with the Others, or alone, intentionally trafficked in cocaine.

COUNT # 9

[7] The essential elements of the offence of being, with Others, or alone, in possession of the proceeds of crime are:

(a) That Mr. Sarsfield together with the Others, or alone, were in possession of proceeds of property;

(b) That such proceeds were obtained from crime;

(d) Such proceeds were less than $5,000.

EVIDENCE AND ANALYSIS

[8] The Crown and defence filed a joint statement of admissions which includes the following:

(a) The nature of all of the controlled substances seized is admitted;

(b) That the quantity of the controlled substances seized is sufficient to establish possession for the purpose of trafficking;

(c) The intercepted communications and voice identification of the accused and the other persons participating thereon is admitted.

[9] Mr. Saikaley, through his father, owns a bar in Ottawa. Mr. Wall is the manager of that bar. Mr. Sarsfield managed the bar on Mr. Wall’s days off.

[10] Police on November 5, 2009, pursuant to warrant, used keys in the possession of Mr. Saikaley to enter the apartment of Mr. Wall and the interior storage room inside that apartment. Mr. Wall lived in the apartment however Mr. Saikaley was the tenant and had a key to the apartment and the interior storage room. Police found two large bricks of cocaine as well as some 300 individually wrapped paper sleeves or decks of white powder which contained cocaine and a cutting agent. The sleeves were further packaged inside plastic bags, approximately 16/bag. An inventory of unfolded cut out magazine paper was also found, similar in size to the cocaine sleeves. The storage room also contained weigh scales, machines to count money and two white substances often used as a cutting agent to mix with cocaine. A handgun and ammunition were found in this apartment.

[11] Messrs. Wall and Saikaley are recorded via probe, meeting frequently in the Wall apartment. Their communications confirm Mr. Wall’s partner will not be at home for these scheduled meetings. Messages prior to some of these meetings refer to them getting together to do paper work. These meetings often lasted in excess of one hour. The audio recordings include noises which might be chopping or breaking of something which could be cocaine from the cocaine bricks.

[12] Police found in excess of $128,000 and multiple weapons in the home of Mr. Saikaley. He is recorded in meetings with Mr. Wall explaining that he buys for some $40,000 and sells it at considerable profit. He states that it is possible for him to make in excess of $1,000,000/year working four hours per week.

[13] At the time of the arrest of the defendant and Messrs. Wall and Saikaley on November 5, 2009, no drugs were found in the bar.

[14] There are recorded conversations of the defendant on his telephone responding to questions whether he had and agreeing to provide or get 1/4s or 1/2s of O. The Crown believes that the prices/quantity discussed in some of these calls about O, indicate that O refers to marijuana. An expert witness testified these references to O and the price discussed for such quantities of O permit him to express the opinion that the O discussed, is marijuana and not cocaine. Counts 4 to 8 are marijuana related offences.

[15] Combined with the above admissions, there is direct evidence against the Others as to the above elements in 4(a), (b), 5(a), (b), (c) and (d) and 6(a), (b), (c) and (d) above.

[16] The central issue under these charges is whether Mr. Sarsfield was part of this cocaine business and a knowing participant.

[17] There are numerous text messages from and to the telephone of Mr. Sarsfield. One issue is whether the defendant sent those messages. There is no direct evidence of Mr. Sarsfield being inside the Wall apartment or of him selling cocaine to others in the bar or elsewhere. There is no direct evidence of Mr. Sarsfield sending the numerical text messages from his telephone. The Crown’s theory is that Mr. Wall, as needed, brought bags of cocaine sleeves to the bar to sell individual packets to the public and on his days off, it was Mr. Sarsfield who ran the bar and sold the cocaine sleeves.

[18] There are telephone conversations between Mr. Wall and Mr. Sarsfield on their respective telephones. There are also numerous text messages between those same two telephones. In particular, there are approximately 67 numerical text messages from the defendant’s telephone to Mr. Wall’s telephone over 23 days between August and November, 2009. There is no direct evidence who sent these messages from the defendant’s telephone, what do the numbers mean or whether they related to the sale of cocaine.

[19] Each of these numerical text messages from the Sarsfield telephone consist only of five or six numbers. The first four numbers from the defendant’s telephone are always 1984. Mr. Sarsfield was born in 1984. The fifth and sixth numbers are no higher than approximately 25. The plastic liner bags of cocaine sleeves found in the apartment for the most part contain 16 sleeves.

[20] The above numerical text messages from the defendant’s phone to Mr. Wall’s phone, after 1984 descend progressively from a higher number to or near zero. They then begin again with a higher number and begin descending. Police surveillance on occasion records Mr. Wall leaving his apartment shortly after receiving a text numerical message from the defendant’s telephone approaching zero and/or Mr. Wall’s telephone sending a text message to the telephone of Mr. Sarsfield such as, 10 min or 2 min.

[21] Similar numerical text messages are sent from Mr. Wall’s telephone to Mr. Saikaley’s telephone and begin with the numbers 1983. Mr. Wall was born in 1983. The last single or double digit in these text messages are the same as those digits following 1984 on the previous text message from the Sarsfield phone to the Wall phone.

[22] On occasion, a text message from Mr. Wall’s telephone to Mr. Sarsfield’s telephone, asks for a count. A text message is then sent from the defendant’s telephone to Mr. Wall’s telephone beginning with the numbers 1984, followed by a single or double digit. On at least one occasion, Mr. Wall speaks via telephone to the defendant and asks him for a reply to Mr. Wall’s previous text message which asks for a count. That conversation is then followed by a numerical text message from Mr. Sarsfield’s telephone to Mr. Wall’s telephone beginning with the numbers 1984 followed by a single or double digit.

[23] Recorded telephone conversations involving Mr. Sarsfield on a number of occasions, evidence he spoke on his telephone before or after these numerical text messages and on some occasions, evidence that he was working a the bar on the day these numerical messages are sent from his telephone.

[24] Are the text messages reasonably capable of supporting the inference that the Crown wish the jury to draw, namely that the above numerical messages from the telephone of the defendant to the telephone of Mr. Wall support the following inference:

(1) The messages are sent by the defendant;

(2) The last single or double digit of those messages communicates the sale of cocaine sleeves at the bar and that further inventory is required; and

(3) Refer to cocaine delivery to and sales at the bar by the defendant.

[25] Alternatively expressed, is the jury being asked to speculate as there is no evidence to support the inference asked to be drawn?

[26] There is direct evidence that Mr. Sarsfield did and that Mr. Wall did not work at the bar on November 4, 2009. The text messages between their telephones that day include the following:

From And To

Time

Message