ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 50000746/12
DATE: 2012/12/12

BETWEEN:

HER MAJESTY THE QUEEN – and – MARLON MALCOLM Accused

George Lennox and Jay Spare for the Crown

Craig Bottomley for the Accused

HEARD: November 20 to December 4, 2012

Judgment

A.J. O’MARRA J.:

[ 1 ] Marlon Malcolm is charged with importation of cocaine into Canada on May 3, 2010 contrary to s.6(3)(a) of the Controlled Drugs and Substances Act , and possession of cocaine for the purpose of trafficking during the period from May 3 to and including May 4, 2010 contrary to s.5(2) of the Controlled Drugs and Substances Act.

[ 2 ] The Crown alleges that Marlon Malcolm with Dwayne Johnson and others were involved in a common criminal design or plan to import cocaine into Canada from Panama. Mr. Malcolm’s role was to collect a package, containing a quantity of cocaine delivered by mail to 41 Brookwell Drive, apartment 212, Toronto. After pick-up, he turned it over to Dwayne Johnson and thereafter he participated in the distribution of the drug.

[ 3 ] The Crown’s case, circumstantial in nature, consists largely of telephone communications intercepted between April 10 and May 3, 2010, surveillance observations of the movements of Malcolm and Johnson, April 20, April 29 and May 3, 2010, and search warrants seizures made on May 4, 2010 at residences associated with Malcolm and Johnson, in an investigation called Project Corral.

[ 4 ] The Crown tendered 64 intercepted communications as part of its case, most of which were conversations between Dwayne Johnson and unnamed persons in Jamaica and Panama. Twelve of the calls purport to involve Marlon Malcolm speaking to Johnson, save one call with a person named Courtney Ottey. (See Exhibit No. 3, Audio CD of Calls).

[ 5 ] All of the material calls involved the participants speaking to one another using Jamaican patois. Kurt Eccleston, a civilian member of the Toronto Police Service for the past nine years employed as a wire-room monitor and supervisor translated the calls. Mr. Eccleston, born and raised in Jamaica, speaks fluent patois. He reviewed all of the calls tendered on the trial to ensure accuracy.

[ 6 ] The transcripts of the calls are contained in a bound volume, Tabs 1 to 64, filed as Exhibit No. 4 on the trial. For ease of reference when I refer to transcripts herein I shall cite the tab number, date, and where material the time of the call. In addition, a modified summary of the intercepted calls, referenced by tab number, date, time and telephone numbers called to and from as in Exhibit No. 4, including surveillance observations at locations and movements of Marlon Malcolm and Dwayne Johnson inserted chronologically, and search seizures as provided by Crown counsel in closing submissions is attached as an Appendix.

[ 7 ] In listening to the tapes and reading the transcripts of the intercepted calls, the participants spoke in guarded terms out of the apparent concern in being overhead. The subject of the shipment from Panama to Toronto was referred to as “the thing” or as being variously a vehicle/bus/car. The address to which the “thing” or vehicle was to be sent, 41 Brookwell Drive was sometimes referred to either directly as the address or cryptically as the “dress” or “dresser”.

[ 8 ] The Crown contends that the calls reveal that Dwayne Johnson in speaking to a person in Jamaica, identified as Fatta, “my brethren” is connected by telephone (“linked”) with two persons in Panama, one of whom is referred to as “the big man”. Big man and Johnson made a deal to sends a quantity of cocaine by mail to the Brookwell address to a sendee named Fiona Smith. There it will to be picked up. The plan was to first send a small amount in order to see how the process worked. If successful, thereafter it would be followed by more shipments of greater amounts. Johnson kept Malcolm informed about his calls with the men in Panama and the anticipated arrival of the shipment. Malcolm needed to know when to be at the address to pick it up.

[ 9 ] After the trial shipment was sent, both Dwayne Johnson and Marlon Malcolm were seeing by surveillance police officers at 41 Brookwell Drive watching and waiting for the Canada Post delivery, April 29 and May 3, 2010. On May 3, 2010, after the Canada Post delivery van was parked on the street Malcolm went up to the van. He received and signed for a small rectangular package and returned to the vehicle he had arrived in, a blue Toyota Yaris. He placed it in the vehicle in the area of the centre console. Then he joined Johnson outside the garden-level patio doors to apartment 212, where both men looked up and down the street.

[ 10 ] Malcolm and Johnson walked to the Yaris. Malcolm handed out through the passenger door contained in a yellow No Frills plastic grocery bag to Dwayne Johnson. The surveillance officer, who saw Malcolm collect the package from the postal van, said the size and shape of the object contained in the yellow plastic bag was the same as the package put in the car by Malcolm. Once the package was handed off to Johnson they both walked back to the apartment patio area and continued to survey the street. They were followed from the area to 2677 Eglinton Ave. West and then to 7 John Street where they were seen to meet other individuals who received small white packages from Johnson.

[ 11 ] After the execution of the search warrants at 5:00 am the police found a quantity of the cocaine rolled up in a No Frills bag inside a carpet and in a closet in the residence of Dwayne Johnson. The rectangular package and wrapping paper sent from Panama addressed to 41 Brookwell Drive, apartment 212 was found in a garbage bin at the rear of Johnson’s residence, 2677 Eglinton Avenue West. The wrapping and box tested positive for cocaine.

[ 12 ] It is the position of the defence that the Crown has failed to prove beyond a reasonable doubt that Marlon Malcolm had knowledge of the contents of the package he took possession of from the Canada Post delivery van on May 3, 2010. The Crown has failed to prove that the voice identified as that of Marlon Malcolm was in fact Marlon Malcolm’s voice. The Crown failed to prove that Malcolm was the person who signed for the package found in the garbage bin.

Voice Identification

[ 13 ] The Crown’s case hinges principally on the co-actors’ or co-conspirators’ exception to the hearsay rule with respect to the intercepted communications as between Dwayne Johnson and others in Jamaica and Panama, in addition to the intercepted communications of Marlon Malcolm to establish that he knew the package he picked up on May 3, 2010 contained cocaine.

[ 14 ] The acts and declarations of co-conspirators in furtherance of the conspiracy are presumptively admissible where the court is satisfied beyond a reasonable doubt that a conspiracy or common criminal design existed and the accused was probably a member of it.

[ 15 ] However, defence counsel contends that prior to the Court even considering whether the hearsay exception applies in this instance the Crow failed to prove the identity of the voice claimed to be Marlon Malcolm in the intercepts attributed to him (Tabs 2, 12, 15, 21, 25, 26, 27, 31, 35, 39, 51, and 52 of Exhibit No. 4). The named target of the intercepts was Dwayne Johnson. Several of the calls involved a person who was referred to as either Marlo or Marlon. Several police witnesses agreed that there were other Marlons, identified during the project investigation, notably Marlon Matthews. Counsel argued the voice heard in the calls could have been any one of the other Marlons.

[ 16 ] Further, the Court should not accept the evidence of Mr. Kurt Ecclestone, the monitor supervisor and patois interpreter, that the voice identified as Marlon Malcolm was the same voice heard throughout the calls because of the likelihood of him being subject to “confirmation bias”. (See R. v. Parisien , [2011] O.J. No. 3168, paras. 10-11 and R. v. Collins , [2008] N.J. 198 at para. 63 in which confirmation bias is described as an adversarial bias towards recognizing a suspect you already think might be guilty). Mr. Ecclestone was a police employee and as such he would want to assist the investigators. In addition some of the transcripts he reviewed had identified the speaker by unknown persons on the call cover sheet as Marlon Malcolm. He would callers would be more likely to consider the speaker already identified as Marlon Malcolm to have the same voice in the calls attributed to him.

[ 17 ] Mr. Eccelston testified that monitors become quite familiar with the voices of parties to intercepted calls over a period of time and can readily distinguish between them when moitoring. He had no direct knowledge or met Marlon Malcolm or any of the other speakers. He candidly acknowledged that all he could do is say that the voice identified as Marlon Malcolm was the same voice he heard throughout the calls.

[ 18 ] In this instance, I have listened to all of the calls that reference Marlon Malcolm as the speaker. I note that there is a consistency in both the tone and manner of speaking. The person has a distinct way of saying “hmm hm” in response to the comments made by the other speaker. I am satisfied that in the calls of concern, the voice identified as Marlon Malcolm is the same speaker. This finding does not apply to Tab No. 52, May 3, 2010 at 13:15 because the only words attributed to the speaker as Marlon Malcolm are unintelligible.

[ 19 ] In considering whether the speaker is the accused, Marlon Malcolm, I note the following repeated references to the speaker, with the same sounding voice, as “Marlo” or “Marlon” by Dwayne Johnson:

• intercepted calls at Tabs 12 (April 11 at 13:19),
• 15 (April 11 at 13:45),
• 35 (April 29 at 14:17) ,
• 39 (April 29 at 18:16), and
• with another person, Courtney Ottey in Tab 2 (January 29, 2010).

[ 20 ] With respect to whether the Marlo or Marlon is another Marlon, such as Marlon Matthews as argued by defence counsel I consider calls at Tabs 12 and 39 in which the Marlo/Marlon caller called from telephone number 647-209-4081. The cell phone bearing that number was seized from the headboard shelf of the bed in which Marlon Malcolm was found when arrested May 4, 2010 at 43 Goodwin Avenue, apartment 5. In those circumstances, it is reasonable to infer that the cell phone and telephone number is that of Marlon Malcolm.

[ 21 ] I consider as well the call at Tab 2, intercepted January 29, 2010 to be of significant in identifying the Marlo/Marlon as Marlon Malcolm. In the call, a male caller, identified as Courtney Ottey initially asked the unknown female who answered the call to speak with “Eddie”. The unknown female told Ottey that Eddie could be at Lenky’s and could be reached using the “803” number.

[ 22 ] Dwayne Johnson is also known as Lenky. He has the name tattooed in large block letters on his left forearm (see Exhibit No. 28(e), photograph of Dwayne Johnson’s left arm tattoo).

[ 23 ] The unknown female made another call with Ottey still on the line to locate Eddie. When the call was answered, she said to the person that Chico (Ottey) was on the phone. After a brief exchange between Ottey and the person who answered, the unknown female still on the line interjected and asked to the person who answered the call “…you checked the thing for me Eddie?” He responded: “Yeah, I didn’t see … I didn’t see him. I didn’t see him. Nothing.” Right after the unknown female said: “Yeah, okay” to that response, Ottey said to the person who had answered to the name “Eddie” earlier with the unknown female, “Marlo”. Throughout the remainder of the call Ottey referred to him as Marlo or Marlon and they both discussed Lenky.

[ 24 ] The voice of the person who responded to the name Eddie said by the unknown female and to the name Marlo/Marlon said by Ottey in the call at Tab 2 is the same voice in the other calls at Tabs 12, 15, 21, 25, 26, 27, 31, 35, 39 and 51 referred to earlier.

[ 25 ] In the call at Tab 4, April 7, 2010 Dwayne Johnson refers to himself as Lenky and in the call at Tab No. 35, April 26, 2010 Marlo refers to Johnson as Lenky. In all of the calls Marlo/Marlon/Eddie is the same voice as heard in calls No. 12, April 11, 2010 and No. 39, April 29, 2010, in which the call came from cell phone number 647-209-4081 the phone found in close proximity to Marlon Malcolm when arrested May 4, 2010.

[ 26 ] The sequence of calls, Tabs 25, 26, and 27, all on April 20, 2010 correspond with the police surveillance observations of the locations and movements of Dwayne Johnson and the person identified by the surveillance officers by photograph as Marlon Malcolm ( Exhibit No. 12).

[ 27 ] On April 20, 2010 at approximately 10:52 a.m. P.C. Nelson Loucks, an undercover police officer conducting surveillance for Project Corral at 7 John Street, an address associated with both Dwayne Johnson and Marlon Malcolm and suspected drug activity, observed Dwayne Johnson outside of the rear alleyway of that address speaking on his cell phone. In the intercepted call at Tab No. 25, 10:54 a.m., Dwayne Johnson told the person identified in the transcript as Malcolm that he was standing outside, people had been coming and he had nothing for them. Malcolm indicated that he had just woken up, but he had obtained the “kush” last night another word for marijuana, and he was going to take a bath and jump in a cab to come over. Johnson asked him to call when he was leaving. In call at Tab No. 26, 11:48 a.m., the person identified as Malcolm called to tell him that he was just leaving. In call at Tab 27, 12:43, Johnson called the person identified as Malcolm to ask him: “How long before you reach here?” Malcolm says that he is ready but still waiting on the cab. Later, P.C. Loucks observed Malcolm whom he had identified earlier in the investigation from a photograph (Exhibit No. 12) arrive at 7 John Street and meet with Dwayne Johnson.

[ 28 ] Based on all of the above, I am satisfied that it is reasonable to conclude that the voice identified as Marlon Malcolm is that of the accused.

(Decision continues exactly as in the source.)

A.J. O’Marra J.

Released: December 12, 2012

Appendix: Summary of Intercepted Calls Exhibit No. 4

COURT FILE NO.: 50000746/12
DATE: 2012/12/12

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – MARLON MALCOLM Accused

REASONS FOR JUDGMENT A.J. O’Marra J.

Released: December 12, 2012