COURT FILE NO.: 10-G30391

DATE: 20130405

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Troy Saikaley

Roderick W.A. Sonley and Margaret Jarmoc,

for the Crown

Gregory Lafontaine, for the Accused

HEARD: January 7-11, 16-18, 21-25, and 28-31, and February 5-7, and 11-13, 2013

REASONS FOR decision

Table of Contents

A. Background. 3

B. Statement of Admissions. 6

C. Warrant Executions and Drug Seizures. 7

Warrant Execution at 144 Kerry Hill Crescent, Dunrobin, Ontario (the Saikaley Residence) on November 5, 2009 7

Warrant Execution at Rick’s Place (“the Bar”) on November 5, 2009. 9

Andrew Wall’s Vehicle Parked at 1034 Merivale Road. 16

Arrest of Christopher Kaizer at the Intersection of Kirkwood and Carling Avenues. 16

D. The Evidence. 17

Evidence of Constable Stephane L’Heureux – The Beginning of the Arrests. 17

Evidence of Constable Mathieu Boulanger – Arrest of Mr. Saikaley. 17

Evidence of Sergeant Stephane Trugeon – Contents of Mr. Saikaley’s iPhone. 18

Evidence of Constable Lisa Williams-Pelly – Arrests of Mr. Kaizer and Mr. Wall 18

Evidence of Corporal Benoit Lécuyer 19

Evidence of Luc Lelièvre. 19

Evidence of Corporal François Goyer, Lead Investigator 20

E. Legal Analysis. 20

Conspiracy (Counts 16, 22, 39, and 42) 20

Criminal Organization Charges (Counts 12-14) 56

Law of Possession. 69

Possession of Cocaine for Trafficking, Possession Charges (Counts 17-18, 25, 27, 36) 71

Marijuana Charges (Counts 23-24, 28-29, 40-41, 43) 77

Proceeds of Crime (Counts 8, 15 and 30) 80

Criminal Interest Rate Charges (Counts 38, 45-60) 100

Extortion (Count 37) 121

Weapons Offences (Counts 1-7): Glock Handgun, Taser, and “Sabre” Stun Gun. 121

Weapons Offences (Counts 31-34): Enfield Revolver 125

F. CONCLUSION.. 127

Summary. 127

Lalonde j.

[1] The accused, Troy Saikaley, is charged with offences under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), as well as the Criminal Code, R.S.C. 1985, c. C-46 (“Code”). He has pled not guilty to a 60 count indictment. Eight counts, namely counts 9, 10, 11, 19, 20, 21, 26 and 35 were withdrawn at the commencement of trial.

[2] The indictment includes charges for conspiracy to traffic in controlled substances, association with a criminal organization, weapons offences, trafficking in drugs, possession of proceeds of crime, possession of controlled substances for the purpose of trafficking, extortion and receiving payment at a criminal rate of interest.

A. Background

[3] “Project A-Wire” was an investigation carried out by the Royal Canadian Mounted Police (“RCMP”) drug unit that began in November 2008, in the city of Ottawa and in the surrounding communities. The investigation concluded on November 5, 2009. Intercepted private communications and search warrants executed in Ottawa form the basis for the evidence in this trial. A number of very substantial drug seizures were made.

[4] RCMP officers conducted the execution of three separate search warrants during the afternoon of November 5, 2009. First, Corporal François Goyer did a takedown of a Black Cadillac driven by Christopher Kaizer at the intersection of Kirkwood and Carling Avenues, in the city of Ottawa. Earlier, the RCMP surveillance team had witnessed a black bag being placed in Mr. Kaizer’s vehicle in the vicinity of 1380 Prince of Wales Drive, Unit 210 (“the apartment”) in the presence of Mr. Saikaley and Andrew Wall. The Kaizer vehicle contained a substantial quantity of hashish, resultantly, Mr. Kaizer was arrested. The surveillance team had suspected that the apartment contained a stash of illicit drugs and, thus, it had been placed under surveillance.

[5] Other RCMP officers from the surveillance team followed Mr. Saikaley, driving a black Cadillac Escalade vehicle bearing the Ontario licence plate “N0S 4A2” and Mr. Wall, driving a silver Audi vehicle bearing the Ontario licence plate “BFY Z782” to 1034 Merivale Road, Ottawa, where the Rick’s Place bar/ Raven’s Nest (“the bar”) is located. The surveillance team arrested both Mr. Saikaley and Mr. Wall behind the building housing the bar. Cannabis resin and currency were found on Mr. Saikaley’s person and were seized. Mr. Wall’s vehicle was also searched and drug-related items were seized.

[6] The bar was also searched and Canadian currency, drugs and plenty of drug paraphernalia were seized. The bulk of the evidence in this case consists of items seized at the bar, at the apartment and at Mr. Saikaley’s residence, located at 144 Kerry Hill Crescent, Dunrobin, Ontario (“the Saikaley residence”). In addition, the evidence was obtained from surveillance, intercepted phone calls and probes all contained in Exhibit #1, consisting of 13 volumes (Tabs 1 to 846). In October 2009, Corporal François Goyer and his team conducted a “sneak and peek” operation at the apartment to discover that the apartment, as suspected, was being used to stash drugs. To explain the coded content of the calls, the Crown called Corporal Rodney Gray to testify concerning the meaning of the code and jargon used in the intercepted phone calls and probes.

[7] Following a voir-dire, I qualified Corporal Rodney Gray as an expert to testify on what is involved in trafficking in controlled substances such as cocaine, marijuana and cannabis resin. His expert evidence included the following topics:

indicia of trafficking; packaging of the controlled substances for trafficking; quantities of controlled substances normally trafficked; the level of trafficking normally associated with each quantity; the use of cutting agents and why a controlled substance is cut; debt lists and inventory control methods; valuation of the drugs seized in this case (cocaine, marijuana and cannabis resin) and sold at various levels; purity level as it relates to price and level of distribution; hierarchy in drug trafficking organizations and the various distribution level; drug jargon, slang and the use of guarded and coded language in the drug trade; and the explanation or interpretation of such language in intercepted communications.

[8] Constable Gray has been an RCMP officer since 1992. He has taken a number of courses related to drug trafficking since 1997. In 2000, he followed intense lectures on illicit drugs, drug pricing and drug user’s jargon. He has first-hand experience with the detection of “grow-ops” and from 1993 to 1997 he participated in general investigations of large drug operations and dealt with drug users and traffickers. He has testified in a number of trial-level courts in British Colombia and Ontario.

[9] Defence Counsel did not seriously challenge the interpretation of the coded language analysed by Corporal Gray. Corporal Gray is an experienced officer in the drug field and he testified that he had listened to the intercepted phone calls and probes in this case prior to testifying. I accept the definitions he gave concerning the meaning of the coded language and I will refer to them from time to time.

[10] On November 5, 2009, the police also conducted a search of the apartment on Prince of Wales Drive, pursuant to a CDSA search warrant and found large quantities of hashish, cocaine, novocaine and marijuana. The police also found $4,720 CDN and $300 USD, drug packaging, weigh scales, drug paraphernalia and an Enfield .38 revolver, a restricted firearm. I will review the evidence concerning the calculation of all currencies seized at all locations later. The amount of currencies seized changed after it was counted by machine as some currencies were not counted at the time of the raids due to time constrictions.

[11] Further, on November 5, 2009, the police conducted a search of the Saikaley residence, pursuant to a CDSA search warrant and found a loaded Glock 23 handgun, a prohibited firearm, two taser/stun guns, knives, ammunition and $128,310 CDN which is referred to later as $133,000.

[12] Mr. Saikaley was arrested on November 5, 2009, and formally charged on March 18, 2010.

[13] The charges against Mr. Saikaley can conveniently be grouped together to represent discreet events that occurred over the course of this investigation on a specific subject matter. Six weapon offences involve a Glock 23 handgun seized from the Saikaley residence (counts 1 to 5), as was a taser and Sabre Stun Gun, both prohibited weapons (counts 6 and 7); other weapons charges involve an Enfield revolver, seized from the apartment (counts 31, 32, 33 and 34).

[14] Count 8 pertains to the seizure of money alleged to be derived from proceeds of crime, and several counts relate to committing offences as part of a criminal organization (counts 12, 13 and 14). Count 15 is alleged to be different from count 8 as the possession of money labelled as proceeds of crime is alleged to have been in the hands of a group of persons resulting from trafficking in prohibited substances.

[15] There are a number charges against Mr. Saikaley that allege that he was part of a conspiracy to traffic in cocaine, cannabis marijuana; he unlawfully did together with others possess controlled substances for the purpose of trafficking, as a result of the seizure made at the apartment, which is alleged to have been under Mr. Saikaley’s control; and that he unlawfully did together with others possess other controlled substances for the purpose of either alone or with others, in drugs that include cocaine, cannabis resin and cannabis marijuana.

[16] It is alleged that Mr. Saikaley committed the crime of extortion in collecting money owed to him for loans made to individuals. It is further alleged that Mr. Saikaley loaned money to several individuals and charged interest at a rate prohibited by the Criminal Code.

[17] The Crown alleged that the prohibited substances were in possession of a group of persons and that they did conspire to trafficking in cannabis resin; to traffic in cannabis resin and cannabis marijuana; to conspire to traffic in cannabis marijuana; and to possess cannabis resin and cannabis marijuana for the purposes of trafficking. These counts all involve different persons allegedly associated with Mr. Saikaley in the commission of these offences.

B. Statement of Admissions

[18] At the opening of trial, the accused, Mr. Saikaley, admitted to the following:

1. The identity of the accused person as Troy Saikaley with a date of birth of January 2, 1968;

2. The nature of all controlled substances seized;

3. The quantity of the controlled substances seized, other than the small quantities seized on arrest, is sufficient to establish possession for the purpose of trafficking;

4. The continuity of all exhibits seized;

5. That the intercepted communications were intercepted pursuant to judicial authorizations and the technical and mechanical matters relating to the interception of the communications;

6. Voice identification of the accused person is admitted, as is the identification of the persons participating in the various intercepted communications as indicated in the transcripts. If errors in the voice identification became apparent during the course of the trial either counsel was not precluded from raising them (none were raised during the trial);

7. The general accuracy of the transcripts of the intercepted communications and the subscriber information attributed to each of the telephones intercepted, as indicated in the transcripts;

8. The use of the transcripts of the interceptions, and the use of a composite CD-ROM containing the audio of the intercepted communications and an electronic version of the transcripts, being appendix C and D of the section 189 notice;

9. The authenticity of the videos and photos taken by the police during the investigation and the permission that they may be introduced into evidence without calling the individual who took the same.

[19] After the Crown closed its case, the accused did not call any evidence.

C. Warrant Executions and Drug Seizures

Warrant Execution at 144 Kerry Hill Crescent, Dunrobin, Ontario (the Saikaley Residence) on November 5, 2009

[20] Constable Martin Prud’homme testified that he was assigned the role of exhibit officer during the November 5, 2009 raid at the Saikaley residence. He has been an RCMP officer since 2003 and, in the past, has been assigned the role of exhibit officer in 50 to 60 cases. He stated that he was one of the officers who executed a search warrant at the Saikaley residence that day. He said that he took a video of the inside of the Saikaley residence and took many of the photographs found in Exhibit #3. He also did a sketch of the layout of the home that was filed at trial (Exhibit #28). The items of interest in the home, that were seized, were identified by Constable Prud’homme and filed as Exhibits 28 to 46. Some items seized were later released to Mr. Saikaley. The items of interest that were seized included:

1. One bronze laptop (Exhibit #29);

2. One silver 1st generation iPhone with sim card and cable (Exhibit #30);

3. One black Motorola phone (Exhibit #31);

4. Three memory cards;

5. One black hexar;

6. One CD with envelope titled: Ottawa Police Service Forensic I.D.;

7. One black leather portfolio (Exhibit #32) containing Troy Saikaley’s driver’s license, business cards and a suspected debt list;

8. Three Canadian passports;

9. One pill bottle apo-diazepam returned to Troy Saikaley;

10. 10 bundles of Canadian currency totalling $133,000 (Exhibit #33);

11. A fully loaded Glock handgun (Exhibit #34, photo 108) with no ammunition in the chamber;

12. One silver blue palm Treo (Exhibit #35);

13. One Canadian passport belonging to Troy Saikaley (Exhibit #36);

14. One black Nikon camera;

15. Two bundles of Canadian currency totalling $3,760 (Exhibit #37) (Exhibit #3, photo 122);

16. One Sabre self-defence stun gun (Exhibit #38) (Exhibit #3, photo 121);

17. Two pill bottles of apo-diazepam prescribed to Troy Saikaley;

18. Three memory cards;

19. Five ammunition rounds(Exhibit #39, photo 112);

20. $560 in Canadian currency found in a jewellery box (Exhibit #40);

21. One black cell phone (Exhibit #41);

22. One round of ammunition for a .38 Special (Exhibit #42) (Exhibit #3, photo 111);

23. A telescopic A.S.P. baton, a combat knife, a taser and arrow tips (Exhibit #43) (Exhibit #3, photo127-128);

24. $300 in Canadian currency in a jacket in the garage (Exhibit #44);

25. A Wilson carry bag containing knives, combat vest, butterfly knife, ammunition for a Winchester shotgun, 3 throwing knives, a laser sight aim gun and a walkie-talkie (Exhibit #45) (Exhibit #3, photos 123,124 and 125);

26. One unopened envelope from budget propane addressed to Troy Saikaley with his address (Exhibit #46).

Warrant Execution at Rick’s Place (“the Bar”) on November 5, 2009

[21] Constable Marius Dumitrache has been an RCMP constable since 2007. He testified that he was part of the team that arrested Christopher Kaizer on November 5, 2009. Following that arrest, Constable Dumitrache stated that he was the site observation officer at the Bar. He stated that the Bar is interchangeably referred to as Rick’s Place and the Raven’s Nest. He recalled that upon arriving at the bar, Troy Saikaley had been arrested and was standing beside his car outside the bar.

[22] Constable Dumitrache explained the items of interest found at the Bar were filed as Exhibits 48 to 63. The list of items was as follows :

1. iPhone and Canadian currency on Troy Saikaley’s person (Exhibit #47 and 48);

2. Small green subject in a Ziploc bag found on Troy Saikaley (not the subject of a charge) together with a dark substance (Exhibit #49);

3. Canadian currency and an iPhone were seized from the person of Andrew Wall who had also been arrested (Exhibit #50);

4. Further Canadian currency in $5 bills and $10; amount undetermined (Exhibit #51);

5. Sketch main floor and basement of the bar(Exhibit #52);

6. Key to a safe in room #4 (Exhibit #53);

7. Canadian currency in safe together with a bag containing coins; more currency and coins were found under the bar on the main floor (Exhibit #54);

8. More envelopes and money in separate bags (Exhibit #55);

9. More Canadian currency in cash register consisting of coins and bills (Exhibit #56);

10. Stand alone computers (released);

11. Financial documents;

12. Canadian currency in $20 bills, not counted (Exhibit #57);

13. Documents in the name of Andrew Wall together with some green substance found in a Ziploc bag (Exhibits #57 to 60);

14. Two measuring Playtex bottles found inside a garage bin (Exhibit #61);

15. American currency in $100 bills not counted (Exhibit #362);

16. Canadian currency in an envelope containing multiple $20 bills (Exhibit #63);

17. A handwritten financial agreement related to Exhibit #13;

18. An L.C.B.O. receipt (Exhibit #64);

19. A metal box containing Canadian currency (Exhibit #54).

Warrant Execution at 210-1380 Prince of Wales Drive, Ottawa, Ontario (the Apartment) on November 5, 2009

[23] Constable Christian Dragan is an RCMP officer and he participated in Project A-Wire by doing surveillance and acting as an exhibit custodian. While waiting at the apartment for the execution of the warrant as the exhibit custodian, he testified that he was called upon to attend at the bar to assist in a raid being conducted by his colleagues.

[24] The plans to attend at the bar for the execution of a warrant were suddenly changed. The surveillance team at the apartment had witnessed a black bag being placed in the trunk of a third party suspect’s vehicle in the apartment building parking lot. What happened next is admitted in Exhibit #31 as follows:

• On November 5, 2009, the RCMP Drug Section conducted surveillance on Troy Saikaley. At approximately 2:24pm, Constable Annie Joyal observed Mr. Saikaley’s black Escalade bearing Ontario licence plate, N0S 4A2 parked unoccupied in front of “suite 13” located at 14500 Clyde Avenue, Ottawa, Ontario. (This is the workplace of Mr. Saikaley’s spouse, Maha Abi-Farah). Constable Joyal observed Christopher Kaizer meeting Mr. Saikaley who had just exited from Suite 13. Mr. Kaizer was driving a 1998, black Cadillac STX bearing Ontario plate BFLF 725. A short time later, both Mr. Saikaley and Mr. Kaizer departed the location in their respective vehicles. At 2:45pm, Constable Joyal confirms BFLF 725 is at the rear of 1380 Prince of Wales Drive with the lights on and vehicle running.

• At approximately 3:10 pm, Constable Marius Dumitrache observed Mr. Saikaley’s vehicle, N0S 4A2, entering the rear parking lot of 1380 Prince of Wales Drive.

• At approximately 3:12 pm, Constable Stephane L’Heureux also observed Mr. Saikaley’s black Cadillac Escalade bearing Ontario license plate N0S 4A2 parked at the rear of 1380 Prince of Wales Drive. He noted that a black Cadillac car bearing the Ontario plate BFLF 725 (registered to Mr. Kaizer) parked beside the Escalade.

• At approximately 3:25 pm, Constable L’Heureux observed Andrew Wall place a green bag with brown handles into the trunk of BFLF 725. Both N0S 4A2 and BFLF 725 then depart the lot while Mr. Wall is observed walking towards Audi (BFYZ 782) which he is often observed driving.

• After departing 1380 Prince of Wales Drive, the black Cadillac bearing Ontario plate BFLF 725 was followed by the RCMP Drug Section surveillance team. At approximately 3:43 pm, Corporal François Goyer stopped BFLF 725 near the intersection of Kirkwood and Carling Avenues, Ottawa, Ontario. The driver of the vehicle was confirmed from an Ontario driver’s license to be Christopher Kaizer.

[25] Exhibits #67 to 72, both inclusive are items seized from Christopher Kaizer’s vehicle that were turned over to Constable Dragan who testified that they consisted of the following:

1. One brick of hashish weighing 1 kilogram that was analysed and which analysis the defence is not contesting;

2. One other brick of hashish weighing 1 kilogram that was analysed and which analysis the defence is not contesting;

3. Four Ziploc bag with cannabis weighing 226 grams;

4. One bag of cannabis weighing 231 grams;

5. One bag of cannabis weighing 233 grams;

6. One bag of cannabis weighing 248 grams;

7. One Canyon bag, green in color.

[26] Constable Dragan testified that he watched Mr. Kaizer being arrested by a fellow officer and that he then departed from the intersection of Kirkwood and Carling Avenues to help with the raid at the bar.

[27] Constable Dragan testified that on the same day, November 5, 2009, at 17:00 hours, while still at the bar, he had received multiple keys from Corporal François Goyer, the lead investigator in Project A-Wire, and was told to return to the apartment on Prince of Wales Drive to assist with the execution of another warrant. He said that Andrew Wall and Heidi Dingwell lived in the apartment, a fact admitted by the defence. He recalled making a video of the apartment and that it was Corporal Roderick Brunet who opened the door of the apartment (Exhibit #3, photos 24, 25 and 27). The apartment was rented by Troy Saikaley and Elizabeth Bertrand was the owner.

[28] The following is a list of items seized at the apartment and photographed and recorded by Constable Dragan:

1. $4,700 in Canadian currency. 111 twenty dollar bills, 19 one hundred dollar bills, three of which were U.S. currency and 18 fifty dollar bills together with $300 in U.S. currency (Exhibit #3) (photos 38 and 39);

2. Five rectangular bricks from the refrigerator weighing 225 grams each (Exhibit #74) (photos 28-29-30);

3. Five rectangular bricks located in a storage locker inside the apartment, locked and accessible with a key, analysed as cannabis resin together with electronic scale (Exhibit #75) (Exhibit #3, photos 54, 55, 56);

4. Two rectangular bricks weighing one kilogram each of pressed white substance which tested positive for cocaine (Exhibit #76) (Exhibit #3, photos 54, 86, 87, 88, 89, 92, 93, 97, 98, 99, 100, 102, 103);

5. One .38 special Enfield revolver found in the top shelf of the bedroom closet (described by Detective Constable Craig Bridgeman, firearms examiner) (Exhibit #6), not loaded (Exhibit #3, photos 47, 48, 49, 50 and 52);

6. Two analysed bricks of cocaine (Exhibit #76), brick one analysed to be of 74% purity and brick 2 analysed to be of 75% purity (certificates Exhibit #78);

7. Keys obtained from Corporal Goyer at the bar on Merivale Road (Exhibit #25).

In the storage room:

1. Three gym bags with materials used to facilitate trafficking in drugs:

2. Bag #1 (Exhibit #79): contained a receipt in the name of Troy Saikaley, seven pornography magazines, dextrose containers, box of Ziploc bags, container with five bullets for a .38 Special calibre gun, a spoon, Playtex bottle, Shoppers Drug Mart bottle, among other items (Exhibit #3, photos 62, 63);

3. Bag #2 (Exhibit #80): contained a white cutting machine, a lamp, electronic scales Aculab., Ohaus electronic scale, $67.18 in coins (Exhibit #3, photos 65);

4. Bag #3 (Exhibit #81), (Exhibit #3, photos 67, 70, 72, 73, 74, 75, 76, 77, 78, , 80, 81, 83, 84, 85): contained five Ziploc bags with different contents;

5. Ziploc bag #1: was full of bag packets closed with elastics, Playtex measuring bags with rectangular decks inside containing a substance, three decks were sent for analysis and Constable Dragan testified that he counted six small measuring bags containing 16 decks each (photo 75);

6. Ziploc bag #2: was the same type of measuring bag containing two small measuring bags with 16 decks, each with white powder inside (photos 76 and 77);

7. Ziploc bag #3: contained four smaller measuring bags having 15, 16, 12 and 16 decks respectively (photo 78 and photo 79) shows one measuring bag with brown oily substance;

8. Ziploc bag #4: contained eight small measuring bags with 16 decks each containing white powder (photos 80 and 81);

9. Ziploc bag #5: contained nine smaller measuring bags containing decks (one bag contained rice) 13, 12, 16, 16, 14, 16, 16, and 16.5 decks respectively (photos 84 and 85);

[29] The balance of bag #3 contained one pornography magazine, one dextrose container 5009, one bag full of rubber bands, two electronic scales, Ziploc bags, one bag determined by a positive field test to contain cocaine, a spoon, and scissors. a pen, plastic bottle with pills, Ziploc bags with rectangular decks containing unknown substances believed to be hashish, a small roll of four Playtex measuring bags, two other Playtex bags containing a white substance, a bunch of elastics and an intern prepaid phone card (photo 67).

[30] Constable Dragan explained that on the magazine found in bag #3, many pages were cut up and three pages had rectangular shaped cut outs. The brown substance in photo 83 was analysed and the analysis confirmed that the substance was cocaine.

[31] Other seized articles of the apartment were objects of interest to the investigators and were filed as exhibits in this trial as follows:

1. Exhibit #81 (Exhibit #3, photo 54) is a bucket that Constable Dragan thought contained cocaine, but in fact contained procaine and hydro chloride (a substance not subject matter of the charges in this trial) (photo 84);

In the kitchen:

1. Ammunition for a 9mm Parabellum was found in the kitchen cupboard in a small brown box and a Enfield .38 calibre Smith and Wesson revolver handgun was found in a green and yellow box (Exhibit #3) (photo 51);

2. Burned currency in a white plastic bag (Exhibit #84);

3. Invoices from Rogers Wireless Service in the name of Heidi Dingwell together with a grow-op equipment invoice (Exhibit #85);

4. Andrew Wall’s passport and tickets for an overseas trip (Exhibit #86 A and B), (photo 42);

5. Phone bills (45 pages) addressed to A. Wall Inc. (Exhibit #88 A to D);

6. A green folder containing a variety of documents addressed to Andrew Wall (Exhibit #87), (photo 44);

7. Unidentified TEC Pills in Ziploc bag and two bullets;

8. Two Playtex measuring bags with 15 and 14 decks respectively containing white substance found after analysis to be cocaine;

9. Small pills and larger pills found to be, following analysis, Oxycontin;

10. Small zip bags in a larger Ziploc bag;

11. Shepherd Financing document on the refrigerator containing a promissory note with the name of Troy Saikaley on the signature line for a $10,000 loan at 59% interest (Exhibit #89) (photos 28 and 45);

12. $1,098 in currency; 13 dollar bills, five ten dollar bills, 21 twenty dollar bills, 6 fifty dollar bills and 3 one hundred dollar bills in Canadian currency (Exhibit #90);

13. Two bullets for a calibre .38 special gun (Exhibit #91), (photo34 Exhibit #3).

[32] Constable Dragan indicated that Exhibit #3, photo 31, depicts the box of ammunition in a green color object and on the opposite side one can see a smaller brown box that also contained ammunition.

[33] Constable Dragan testified as to the nature of a quantity of green leaves found on the person of Mr. Saikaley, together with a dark brown substance which was not identified by Constable Dumitrache. Following an analysis of the items, Constable Dragan said that the items were cannabis resin. He further testified that upon counting currency taken from the clothing of Troy Saikaley, a rectangular deck containing illicit drugs fell to the ground. It was entered as Exhibit #93.

Andrew Wall’s Vehicle Parked at 1034 Merivale Road

[34] Photographs 165 and 166 of Exhibit #3 show pills that Constable Dragan testified came from the storage compartment located between the two front seats of Andrew Wall’s Audi vehicle. The analysis determined that the pills were Tramadol and that Tramadol does not figure as a controlled drug under the CDSA.

[35] Constable Dragan testified that a “Sabre” stun gun was also found in the glove compartment of Mr. Wall’s Audi vehicle (Exhibit #94B) (Exhibit #3, photo 167). He also found a $100 bill, Mr. Wall’s driver’s license (Exhibit #3, photo 168) and a bag in a compartment next to the steering wheel.

Arrest of Christopher Kaizer at the Intersection of Kirkwood and Carling Avenues

[36] RCMP Constable Daniel Vaillancourt testified that in 2009 he was affected to Project A-Wire and that on November 5, 2009, he conducted surveillance at 1388 Prince of Wales Drive. He saw Troy Saikaley depart from that location in a Cadillac Escalade vehicle followed by a gray coloured Audi vehicle at 15:26 hours. He recalled that he had received a radio message to stop following Troy Saikaley’s vehicle and to trail a black Cadillac STS with Ontario license plate BFLF 725.

[37] The last mentioned vehicle was pulled over by Corporal François Goyer, who was assisted by Constables Dumitrache, Mathieu Bélanger and Williams-Pelly. Constable Vaillancourt identified photo 160 ex. #3 as a green bag found in the trunk of the vehicle plated BFLF 725. He recalled that there was a strong smell emanating from the trunk of the vehicle and that, because the top of the bag was open he saw 4 Ziploc bags containing green leaves having the approximate dimension of 20 cm x 20 cm. He also observed two other Ziploc bags containing a brick shaped matter, dark in color and rectangular in shape. He identified the Ziploc bags shown in photo 161 ex. #3. He recalled seizing a cellular phone and black metal piece located between the two front seats of the vehicle.

D. The Evidence

Evidence of Constable Stephane L’Heureux – The Beginning of the Arrests

[38] Constable L’Heureux was also involved with Project A-Wire and on November 5, 2009 at 3:25 p.m., was stationed behind the building that housed the bar. He testified that he saw a black SUV Cadillac vehicle next to a second Cadillac vehicle. He witnessed Mr. Wall leave the building carrying a bag and placing it in the trunk of the SUV Cadillac with Ontario license plate BFLF 725. He also testified that Mr. Saikaley’s black Cadillac Escalade bore Ontario license plate N0S 4AZ.

[39] Later, at 4:44 p.m., Constable L’Heureux entered 1380 Prince of Wales Drive with Corporal Brunet. Constable L’Heureux recalled that the door to Unit 210 was opened at 5:19 p.m., when Constable Dragan arrived with a key that could give them access to the unit.

Evidence of Constable Mathieu Boulanger – Arrest of Mr. Saikaley

[40] Constable Boulanger testified that he arrested Mr. Saikaley in the rear parking lot of Rick’s Place on November 5, 2009. He stated that Mr. Saikaley was arrested for the possession of a controlled substance, namely, cocaine. He confirmed that he had seized an iPhone from Mr. Saikaley’s black Escalade Cadillac.

Evidence of Sergeant Stephane Turgeon – Contents of Mr. Saikaley’s iPhone

[41] Sergeant Stephane Turgeon has been a member of the RCMP since 1990 and is affected to the Integrated Proceeds of Crime Unit, A division. On November 5, 2009, he arrived at the bar in time to see Constable Boulanger arrest Mr. Saikaley and he assisted with the search of Mr. Saikaley’s person. In multiple pockets of Mr. Saikaley’s clothing, Sergeant Turgeon found marijuana and hashish, as well as keys and blue paper containing an unknown substance that was turned over to Constable Dumitrache.

[42] Sergeant Turgeon explained that he made an image of the hard drive of Mr. Saikaley’s iPhone that was seized at the time of arrest. The purpose was to make an exact duplicate of the evidence while preserving the integrity of the hard drive and keeping its contents intact. He testified that he conducted an analysis of the contents as he had equipment that could extract the data without corrupting the device. Defence counsel said that he was satisfied with the integrity of the data. Sergeant Turgeon said that the first 53 pages of his report deal with the contents of the iPhone (Exhibits #95 and 95A).

[43] The contents of Mr. Saikaley’s iPhone yielded a list of contacts with names and phone numbers. There was also an index of phone systems, a calendar for events and notes summarizing overdue accounts. There was also a list of persons who had borrowed money from Troy Saikaley.

Evidence of Constable Lisa Williams-Pelly – Arrests of Mr. Kaizer and Mr. Wall

[44] Constable Williams-Pelly has been an RCMP Constable for ten years. She was involved in Project A-Wire and in particular, in the takedown of Mr. Kaizer’s vehicle at Kirkwood and Carling Avenues. She testified that she assisted Corporal François Goyer when he arrested Mr. Kaizer at 3:40 p.m. on November 5, 2009. She recalled that Mr. Kaizer was identified with the help of his driver’s license. She further recalled that the substance found in a bag in the trunk of Mr. Kaizer’s car was hashish and not cocaine when tested at a later date.

[45] Next, Constable Williams-Pelly assisted with the arrest of Mr. Saikaley and Mr. Wall at the rear of the bar. She said that both her vehicle and the vehicle of Corporal Goyer were parked behind Mr. Saikaley’s vehicle. It had been ascertained, when she arrived, that Mr. Saikaley was the driver of the vehicle and Mr. Wall was in the passenger seat. She testified that she told Mr. Wall that he was under arrest for trafficking in cocaine.

[46] Constable Williams-Pelly confirmed that she had handled the passport of another accused, namely, James Cullen Sarsfield, and that his date of birth is September 21, 1984 (this date of birth will come up in the section on drug trafficking as part of the code used to control drugs at the bar).

Evidence of Corporal Benoit Lécuyer

[47] Corporal Lécuyer is a member of the RCMP and was the officer in charge of the execution of a warrant at Mr. Saikaley’s residence. He recalled that he had picked up keys to enter Mr. Saikaley’s residence from Corporal Roch Brunet at 1380 Prince of Wales Drive, Unit 210. He could not remember if the keys that form Exhibit #25 were the keys to the Dunrobin residence.

Evidence of Luc Lelièvre

[48] Constable Lelièvre identified the Glock firearm shown on Exhibit #3, photo 108 that he had discovered in the master bedroom of the Saikaley residence (photo 107) on November 5, 2009. The firearm was located on the left side of the bed in the master bedroom resting on the floor, underneath the night table. He also confirmed that he had found the safe in the Saikaley residence located behind a heat vent next to the floor.

[49] Constable Craig Bridgeman is a firearm examiner with the Ontario Provincial Police. He confirmed his report, filed on consent, describing the Glock handgun made by Smith and Wesson and found in the Saikaley residence. He also confirmed that it was the gun that was shown on Exhibit #3, photo 113, and that an enlarged photo showed the gun’s inscription R5689 (Exhibit #3, photo 110). That inscription was the same serial number of the gun that Constable Prud’homme seized in the Saikaley residence, on November 5, 2009.

[50] Sergeant Daniel Campeau testified that he was part of the group of officers that searched the Saikaley residence on November 5, 2009. He said that he had found financial documents in an office. The documents were identified as the demand loans of Messrs D.R., Billy Joe Krieger, Peter Gunther and Baroud Nayed.

Evidence of Corporal François Goyer, Lead Investigator

[51] Corporal Goyer has been a member of the RCMP for the past 22 years. He testified that he was the lead investigator in Project A-Wire. The project began at the end of 2008 and was terminated on November 5, 2009. At the beginning, the two individuals of interest were, namely, Billy Joe Krieger and S.L.N.. A dial recorder warrant was obtained for those two individuals. Soon after, other individuals became persons of interest, including Mr. Saikaley.

[52] Corporal Goyer identified several photographs of Exhibit #3, namely that of Mr. Saikaley, his wife Maha, Mr. Wall, Ms. Dingwell and Mr. Sarsfield (photos 2, 3, 5 and 6). He identified the three locations involved in Project A-Wire. He explained that Raven’s Nest was owned by Rick Saikaley, Mr. Saikaley’s father, and following a renovation of the bar, it became known as Rick’s Place. Corporal Goyer also identified Mr. Saikaley’s residence (Exhibit #3, photo 104).

[53] He affirmed Mr. Sarsfield’s date of birth, taken from his passport, as September 21, 1984. Corporal Goyer explained that in Exhibit #3, photo 8, the high-rise building on the right was 1380 Prince of Wales Drive where Mr. Saikaley is listed as an occupier for Unit 210 and the building on the left is 900 Dynes Road where Mr. Saikaley’s father, Rick Saikaley, occupied a unit. The year 1984 will be relevant as part of a code to control drug inventory at the bar.

E. Legal Analysis

Conspiracy (Counts 16, 22, 39, and 42)

[54] The conspiracy charges alleged against Mr. Saikaley are:

• Count 16: that between May 1, 2009, and November 5, 2009, Mr. Saikaley unlawfully did conspire and together agree with other named individuals to commit the offence of trafficking in cocaine.

• Count 22: that between January 1, 2009, and November 5, 2009, Mr. Saikaley unlawfully did conspire with other named individuals to commit the offence of trafficking in cannabis marijuana.

• Count 39: that between May 1, 2009, and November 5, 2009, Mr. Saikaley unlawfully did conspire with other named individuals to commit the offence of trafficking in cannabis resin.

• Count 42: that between May 1, 2009, and November 5, 2009, Mr. Saikaley unlawfully did conspire with other named individuals to commit the offence of trafficking in cannabis marijuana.

[55] The conspiracy section of the Code can be found at s. 465 and provides as follows:

465. (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:

(a) everyone who conspires with anyone to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable.

[56] Halsbury’s Laws of Canada – Criminal Offences and Defences (2012 Reissue), HCR-481, particularizes the conspiracy offence as follows:

Elements of offence: The essence of criminal conspiracy is proof of agreement to do an unlawful act, or to do a lawful act by unlawful means. There must be an intention to agree, the completion of an agreement, and a common design. A conspiracy must involve more than one person, even though all the conspirators may not either be identified, or be capable of being convicted. Further, each of the conspirators must have a genuine intention to participate in the agreement. A person cannot be a conspirator if he or she merely pretends to agree (United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] S.C.J. No. 64, [1997] 2 S.C.R. 462 (S.C.C.); R. v. H.A., 2005 CanLII 32566 (ON CA), [2005] O.J. No. 3777 (Ont. C.A.)). The offence of conspiracy is complete at the point those elements exist whether or not any steps are actually taken pursuant to the conspiracy (See also R. v. Cotroni, 1979 CanLII 38 (SCC), [1979] S.C.J. No. 47, [1979] 2 S.C.R. 256 (S.C.C.)). More than an intention in common on the part of two parties is required (R. v. Koury, 1964 CanLII 2 (SCC), [1964] S.C.J. No. 2, [1964] S.C.R. 212 (S.C.C.)). A conspiracy requires at least two parties but proof of only one other co-conspirator named in the indictment is sufficient (R. v. Lindquist, 1985 ABCA 211, [1985] A.J. No. 529, 40 Alta. L.R. (2d) 392 (Alta. C.A.)).

The prosecution must prove the criminal purpose as particularized (R. v. Saunders, 1990 CanLII 1131 (SCC), [1990] S.C.J. No. 22, [1990] 1 S.C.R. 1020 (S.C.C.)). Proof of several objects is not fatal to a conspiracy prosecution, provided the prosecution proves a conspiracy by at least two persons to do at least one or more of the prohibited acts alleged in the indictment (R. v. Paterson, 1985 CanLII 167 (ON CA), [1985] O.J. No. 28, 18 C.C.C. (3d) 137 (Ont. C.A.), affd [1987] S.C.J. No. 63 (S.C.C.). See also R. v. Addison, 1969 CanLII 1027 (ON CA), [1969] O.J. No. 1378, [1970] 1 C.C.C. 127 (Ont. C.A.) and R. v. Patten, 1990 CanLII 768 (BC CA), [1990] B.C.J. No. 2700, 61 C.C.C. (3d) 332 (B.C.C.A.)). To convict an accused where the evidence at trial discloses proof of more than one conspiracy requires the prosecution to have proved guilt of the specific conspiracy charged. A specific conspiracy lies within the scope of the indictment where the evidence adduced establishes that the conspiracy proven included some of the accused, occurred at some time within the time-frame alleged in the indictment and had, as its object, the crime alleged (R. v. Cotroni, 1979 CanLII 38 (SCC), [1979] S.C.J. No. 47, [1979] 2 S.C.R. 256 (S.C.C.); R. v. Douglas, 1991 CanLII 81 (SCC), [1991] S.C.J. No. 16, 63 C.C.C. (3d) 29 (S.C.C.); R. v. Longworth, 1982 CanLII 3764 (ON CA), [1982] O.J. No. 3428, 67 C.C.C. (2d) 554 (Ont. C.A.)).

Actus reus: The actus reus of conspiracy lies in the formation of an agreement, tacit or express, between two or more individuals, to act together in pursuit of a mutual criminal objective. Co-conspirators share a common goal borne out of a meeting of the minds whereby each agrees to act together with the other to achieve a common goal. Given the mutuality of objective requirement, a conspiracy is not established merely by proof of knowledge of the existence of a scheme to commit a crime or by the doing of acts in furtherance of that scheme. Neither knowledge of nor participation in a criminal scheme can be equated with the actus reus of a conspiracy. Knowledge and acts in furtherance of a criminal scheme do, however, provide evidence, particularly where they co-exist, from which the existence of an agreement may be inferred. The actus reus emphasizes the need to establish a meeting of the minds to achieve a mutual criminal objective (R. v. H.A., 2005 CanLII 32566 (ON CA), [2005] O.J. No. 3777 (Ont. C.A.)).

It is irrelevant that the object of the conspiracy is not carried out (R. v. Trudel (1984), 1984 CanLII 3469 (QC CA), 12 C.C.C. (3d) 342 (Que. C.A.)). Any overt acts are merely evidence of the criminal intention and conspiracy (R. v. Douglas, 1991 CanLII 81 (SCC), [1991] S.C.J. No. 16, [1991] 1 S.C.R. 301 (S.C.C.); R. v. Roach, 2004 CanLII 59974 (ON CA), [2004] O.J. No. 2566 (Ont. C.A.)). Overt acts and admissions of the parties are types of evidence to prove a conspiracy (R. v. Gassyt, 1998 CanLII 5976 (ON CA), [1998] O.J. No. 3232, 127 C.C.C. (3d) 546 (Ont. C.A.)). Mere knowledge or discussion of, or passive acquiescence in a plan of criminal conduct is not sufficient to prove membership in a conspiracy (R. v. McNamara (No. 1), 1981 CanLII 3120 (ON CA), [1981] O.J. No. 3254, 56 C.C.C. (2d) 193 (Ont. C.A.), affd 1985 CanLII 32 (SCC), [1985] S.C.J. No. 28 (S.C.C.); R. v. Randall, 1983 CanLII 3138 (NS CA), [1983] N.S.J. No. 438, 7 C.C.C. (3d) 363 (N.S.C.A.)). A conspiracy is not established merely by proof of knowledge of the existence of a scheme to commit a crime or by the doing of acts in furtherance of that scheme. Neither knowledge of nor participation in a criminal scheme can be equated with the actus reus of a conspiracy (R. v. H.A., 2005 CanLII 32566 (ON CA), [2005] O.J. No. 3777 (Ont. C.A.)). A drug trafficker who buys from an importer does not become an importer or a member of a conspiracy to import. Impossibility is not a defence to conspiracy, so long as the criminal purpose is a real, existing crime (United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] S.C.J. No. 64, [1997] 2 S.C.R. 462 (S.C.C.)).

[57] Although the Crown does not point to a specific agreement, it relies on Mr. Saikaley and Mr. Wall’s knowledge and acts in furtherance of a criminal scheme to provide the evidence, particularly as both co-exist in this case, to have me infer the existence of an agreement.

[58] The Crown’s theory of the case is that Mr. Saikaley, Mr. Wall and Mr. Sarsfield were all involved in trafficking cocaine; their acts and conduct involved a continuing agreement to traffic in cocaine. The Crown alleges that they brought the cocaine into Ottawa at the kilogram level, diluted it by adding cutting agents, broke it down and packaged it in flaps, each containing approximately one gram of cocaine. That product was then sold at the bar.

[59] Defence counsel points out that the jurisprudence makes it clear that a meeting of the minds, a consensus of doing activities for an unlawful purpose are required in a conspiracy. He argues that the Crown has placed reliance upon the co-conspirators’ exception to the hearsay rule to seek the admission of a number of otherwise inadmissible hearsay utterances to establish a conspiracy.

[60] The Ontario Court of Appeal in R. v. Chang (2003), 2003 CanLII 29135 (ON CA), 173 C.C.C. (3d) 397 (Ont. C.A.), at para. 53, describes the co-conspirators’ exception to the hearsay rule as allowing the acts and declarations of an accused’s alleged co-conspirators, done or made in furtherance of the conspiracy, to be adduced as evidence against the accused.

[61] The Supreme Court of Canada in R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938, 137 D.L.R. (3d) 385, set out the formula that must be applied to the question of whether a particular accused is a participant in a conspiracy for the purposes of determining whether acts or words spoken by all conspirators are admissible against that accused. There are three steps to be followed before the trier of fact is permitted to consider such acts or declarations as evidence against the accused. The steps were restated by McIntyre J. in R. v. Barrow, [1978] 2 S.C.R. 694, at para. 73 and referenced by the Ontario Court of Appeal in R. v. Chang, at para. 53, and provides as follows:

1. The trier of fact must first be satisfied beyond reasonable doubt that the alleged conspiracy in fact existed.

2. If the alleged conspiracy is found to exist then the trier of fact must review all the evidence that is directly admissible against the accused and decide on a balance of probabilities whether or not [the accused] is a member of the conspiracy.

3. If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy then [the trier] must go on and decide whether the Crown has established such membership beyond reasonable doubt.

I note that it is only in the last step that I can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators done in furtherance of the object of the conspiracy as evidence as against the accused on the issue of his guilt.

[62] In R. v. Chang, the court went on to emphasize the importance of the words “in furtherance of the conspiracy” as a precondition of the admissibility of statements. The court explained that this precondition acts as a “safeguard” against the use of unreliable hearsay (para. 120). The emphasis on the words “in furtherance of the conspiracy” is critical as, the court stated, at para. 120: “It is not enough that the hearsay words or acts pertain to the conspiracy. They must be found to further the specific unlawful object which has been found to exist beyond a reasonable doubt under step one and to which the direct evidence links the accused under step two.” Therefore, the court affirmed, at para. 121, that the trial judge cannot consider idle conversation or narrative descriptions of past events in allowing the statements in evidence that otherwise would infringe the hearsay rule. I must rely only on those acts or declarations that further the common interest, which are the very acts and declarations that the parties themselves are likely to have relied upon in seeking to achieve the common goal.

The Evidence on Conspiracy

[63] On October 13, 2009, a general warrant to search the apartment was authorized by Maranger J. and executed. That warrant had been granted on September 10, 2009 and endured for the period of September 11, 2009, to November 8, 2009. An audio recording device was installed in Unit 210. This audio device yielded several probes that I will refer to later on. In addition, it yielded further direct evidence against Mr. Saikaley. Some 20 days prior to the police raid on the apartment, Corporal François Goyer conducted a legal sneak and peek in the apartment. Both the exterior door and the door of the inside storage closet were locked and had to be opened by an RCMP locksmith. Corporal Goyer observed and photographed weigh scales, bags of illicit drugs, individually wrapped decks in Playtex liners that contained cocaine, and two large chunks of white powder (subsequently analysed and also found to be cocaine). The photographs taken by Corporal Goyer during the sneak and peek are contained in pages 13-21 of Exhibit #3, a photograph of the sample taken is shown on page 22.

[64] I accept that the above evidence establishes that on October 13, 2009, the locked closet in the apartment contained a significant quantity of cocaine, both in bulk and packaged form. This evidence is also relevant to Count 25, where Mr. Saikaley is charged with being in joint possession with Mr. Wall and Ms. Dingwell of cocaine for the purpose of trafficking, on October 13, 2009.

[65] On November 5, 2009, more cocaine was discovered upon the execution of a search warrant for the same apartment. Constable Dragan testified that two full kilograms of cocaine were seized from a black bag found in the locked storage locker in the apartment (Exhibit #3, p. 24). Access to the storage locker, which was locked, was obtained by a key from the key ring that was seized from Mr. Saikaley’s person at the time of his arrest. Analysis of that cocaine showed that it was 74 percent and 76 percent pure. Photographs showing the use of the keys to open the door are located at pages 20, 25-26 of Exhibit #3. Some are still frames taken from the video of the apartment made by police upon entering the apartment.

[66] Also contained in the storage locker were in excess of 315 individual one gram decks of cocaine found in a bag in the storage locker (Exhibit #81). The drugs were packaged in paper flaps or decks constructed from glossy magazine paper. The decks were bundled in packages of sixteen decks to a Playtex bottle liner and wrapped with an elastic band. There were approximately eight baby bottle liners contained in each Ziploc bag. There were a total of five Ziploc bags containing these decks.

[67] As stated earlier, I qualified Corporal Gray as an expert in methods of packaging, trafficking, pricing, distribution, methods of consumption, drug jargon and slang involving cannabis marijuana and cocaine.

[68] Corporal Gray was asked about the price for illicit drugs and he testified at p. 58 of the transcript:

Q. Okay, Now, uh, in terms of pricing of marijuana uh, at the, uh, gram level, and at the, uh, ounce – or the half ounce, quarter ounce, ounce level, and, uh, the pound, half pound levels, are you able to assist us with that?

A. I can do that. Uh, so at the pound levels, and these, these prices, you know, things do fluctuate, but I, I like to be fair about these numbers, and I’m willing to accept that they’re a tough high, I’ll, I’ll accept that, but I think a fair price for a pound of, of pretty decent marijuana is from $1800 to, you know, to $2500. Uh, a fair price for an ounce is between $200 and $250, and a gram, you know, $15, $20. Well, okay, so if we want to piece it down and just go with, uh, okay, so I have an ounce price, so let’s just work with an easy number, $200, so half an ounce is $100. I mean we can piece it down, so half a quarter, you know, if we go incrementally, it’d be – and I’m –uh, the reason I didn’t list this in my report is because you’ve got to be careful, you know, it depends on who you’re dealing with. So half a quarter, an eight, so and eighth can be $30. You know, a half a quarter, you’d eas... – you could buy a half a quarter for, you know, 25, 30, $40. It’s just that the more, the, as you buy higher volumes the price is, is, is better. And, and as you step it down to lower quantities, the price is not to your advantage. So, you know, and that’s why, uh, talking to people that are selling these things in situations is so helpful because sometimes these are special prices. But, generally speaking, uh, you know, you – the math works out incrementally when you get down to those smaller numbers.

Q. Okay, Uh, whereas an ounce of marijuana is 200 to 250, you said an ounce of cocaine would be, uh, significantly higher?

A. Yes.

Q. And we’re talking, uh, over $1000?

A. I, I would, you know, between $1100 and, you know, as up to $2000, depending on the...quality in that range.

In a probe interception, Troy Saikaley made it clear that he was charging $100 for a gram of cocaine.

[69] One of the Ziploc bags contained squares of magazine paper. Corporal Gray referred to Exhibit #81E and demonstrated to the court the manner in which the paper could be folded (p. 52 of the transcript). He took the paper that had pre-existing fold lines and folded it into a small envelope shaped object. The cocaine is then poured into the envelope.

[70] In the storage locker there was further drug paraphernalia. Numerous digital weigh scales, various sizes of spoons and several plastic hotel door keys (Exhibit #79L) were found. Corporal Gray explained that the hotel door keys/plastic cards would be used to cut the cocaine and the buffing agent.

[71] Corporal Gray also explained that the bottles of Dextrose contained cutting agents. The contents of one bottle was analyzed and found to contain Procaine and the other Benzocaine. He explained their use as follows:

Okay, so those, uh, items, those are common cutting agents when someone wants to cut or dilute cocaine. Uh, and I’ll explain why ther’re, they are so good for the reason. Dextrose is a corn sugar, and it’s available – I mean a lot of people use Dextrose when they make things like beer and wine. Uh, it’s, it’s readily available and it’s very inexpensive. It’s soluble in water and it’s white. So if you mix it with cocaine powder, the customer really won’t know what’s going on and he’ll think that, you know, that’s good, because you’re trying to, you’re trying to make something out of nothing when you’re cutting cocaine. Uh, Procaine and Benzocaine are better cutting agents, uh, for, for the reason that Benzocaine and Procaine are both local anaesthetic, uh, compounds, and what that means is – let me just back up a step, when you m when you inhale cocaine up your nose, or if you were to touch cocaine on your tongue, it’s, it has this immediate numbing effect, and, and so Benzocaine and Procaine, if you such those powders up your nose, they will also have a similar numbing effect. If you’re going to cut your cocaine with a, with a substance, and hold out to your customers that your cocaine is of high quality, you’re better off to use Benzocaine or Procaine, because when they suck this stuff up their nose it’s gonna numb their nose and they’re gonna think, “Man this is really good. You know, I’m getting good quality for my money.” But in reality, you can cut your cocaine by half with Procaine and Benzocaine and basically you’re fooling your customers. Meanwhile, the distributor make’s – is doubling his, is doubling his money because he’s doubling his output.

[72] On July 29, 2009, Mr. Saikaley called Mr. Wall to ask him if he had, “finished that paperwork” which I accept to mean cutting small pieces of paper to build “decks” for packaging of cocaine that he had left for him. Mr. Saikaley further stated, “you think there’s like four pages done?” Mr. Wall replied that he did not have the chance, that he had done some and that he would have to find it as it was in his bedroom somewhere (Exhibit #1, Vol.4, Tab 215).

[73] Other items were found in the storage locker, such as a box of Playtex baby bottle liners, two bags of elastic bands, a box of larger Ziploc bags and a large pail of Procaine. There were also several bullets found in a canister. Outside the storage closet and in the apartment’s kitchen, a box of bullets was found in a cupboard. A cracker biscuit box was also found that contained two bullets and plastic baby bottle liners.

[74] Crown Counsel pointed out that there was more direct evidence implicating Mr. Wall with the object of trafficking in drugs. Upon his arrest on November 5, 2009, Sergeant Turgeon recovered $5,620 in cash on Mr. Saikaley’s person (Exhibit #48). Exhibit #6 consists of two Playtex baby bottle liners wrapped in two elastic bands in a crumbled condition and they were found in a garbage can at Rick’s Place bar at 1034 Merivale Road on November 5, 2009 (Exhibit #61). On November 4, 2009, during a conversation and probe recorded between Andrew Wall and Troy Saikaley, Mr. Wall is heard saying: “so just let me get James. Whatever, I’ll take two tonight. I’ll swing two tonight. Write down he is getting two...” Then the text at Tab 545 indicates that Mr. Wall left the apartment to go see Mr. Sarsfield at the bar (Tab 545, Vol. 9 Exhibit #1). The following day, two Playtex bottle liners were found with their elastic bands in the garbage in the kitchen of the bar (Exhibit #3, photographs at pp.147-148).

[75] Crown counsel requested that I compare for similarity, the deck found on Mr. Saikaley’s person (Exhibit #93 and photo 163, Exhibit #3) to the decks found in the apartment (Exhibit #3, photos at pp. 77 and 81). I find that they are similar in shape, form and content. Both were analyzed and contained cocaine.

[76] Corporal Gray explained that the bags found in the storage locker of the apartment were part of “portable storage kits.” He said they contained everything one needed to package the cocaine from a kilogram level down to the gram level. He explained how the packaging would occur and demonstrated the chopping of the cocaine. I found that the noise made by Corporal Gray during his demonstration in court with the hotel key was similar to the noise I heard on the audio recording of October 19, 2009, when the audio recording device installed in the apartment intercepted a conversation between Mr. Wall and Mr. Saikaley. In the background, sounds could be heard of chopping and breaking, shaking and cutting, and of paper being manipulated (Tabs 439-459, Vol. 7-8, Exhibit #1). Corporal Gray explained the whole process of taking one kilogram block or piece of it and cutting with Procaine or Benzocaine and weighing the product to sell it at the gram level (p.49 of transcript).

[77] Other direct evidence that Mr. Saikaley was probably a member of the conspiracy comes from all the intercepted communications in which Mr. Saikaley was a party. Crown counsel relies on the decision of R.G. Juriansz J.A. in R. v. Niemi (2006), 2006 CanLII 13949 (ON CA), 208 C.C.C. (3d) 119 (Ont. C.A.) in arguing that whenever Mr. Saikaley’s voice or communications can be heard, they are direct evidence and not dependant on the co-conspirator’s exception to the hearsay rule. In Niemi, the trial judge had held that Niemi’s statements to his co-conspirator, recorded on wire-taps, were inadmissible against him. On appeal, the trial judge was found to have erred in excluding Mr. Niemi’s statements, and finding that the direct voice of Mr. Niemi was somehow hearsay, when the statements were admissions and therefore properly receivable into evidence. I find that Mr. Saikaley’s voice, on numerous telephone calls and probes that involved Mr. Wall and Mr. Sarsfield was not hearsay.

[78] I will now deal with that part of the probe involving Mr. Saikaley and his cousin Charbel Nassar (the “Charbel probe”). I agree with the interpretation put forth by the Crown, of what is heard on the probe:

Saikaley then explained how the hash is packaged, making reference to its smell. Saikaley stated, “Because they put this oil inside the rubber...You smell that? And sometimes it sits uh, it penetrates the... It smells like motor oil and grease.” Saikaley continued, “So you’re smelling it on certain layers of the stuff...But when you get into the core of it, out, when it’s out there and let if breathe...and then you got your good quality. (During this time background noises can be heard consistent with tearing of paper or wrappings.)

Saikaley further explained to Charbel, “With one of these Kilos, I make two thousand (2000) grams. Two thousand (2000) grams like this, package it, so it turns the Ki, forty thousand {$40,000} into two hundred thousand ($200,000) dollars. In one month salary...”. Charbel asked Saikaley about packaging and Saikaley replied, “I pack them myself and then I let them sell it, but nobody knows the formula, nobody, you know what I mean? I don’t want to give anybody the formula that I do ...And I don’t want them to see how it works you know.” Saikaley limited access to the stash to himself and Wall in order to prevent others from learning how he capitalizes on his packaging methods. The less people there are involved in this process the less risk to Saikaley and more profit to gain. Saikaley then described how easy it was to make such a large profit off of drugs. Saikaley told Charbel, “You know, it takes me 4 hours of work a week, to actually go, 4 hours a week, making over uh, fifteen hundred ($1500) dollars a day. I don’t need more money than this, and the, the money I lend out, the interest loan money it’s almost double this. How much money do ya need to make, more than a million dollars a year? For what man?” Saikaley boasted, “And there’s no risk for me, it nothing, zero.”

During the last part of this conversation with Charbel, Saikaley explained his relationship with Andrew Wall: “This kid uh Andrew, when I found him, uh, Asian guys were gonna kill him.” Saikaley stated that Wall had been “moving lots of weed {marijuana}” and on one occasion, Wall took a large quantity of “weed” and got ripped off by the “Asians.” Saikaley explained that he bailed Wall out and paid his debt off. Saikaley stated, “He has worked off his debt already to me and I reunited him with his mother...You know I got him into a new Audi, and...Now I’m buying him uh, getting him to buy a house...he feels like I am his big brother. I take care of him...” Saikaley concluded by saying how happy he was with his life right now, “So I found this nice niche, that I can make nice money and not work and no stress, I mean perfect, I’m happy you know.” {Saikaley is admitting that his current lifestyle can be attributed to the sale of drugs and loaning money.} Finally, Saikaley told Charbel that he “could be making so much more money” if he wanted, but that he is satisfied with what he has.” Saikaley and Charbel then exit the apartment.

[79] In that probe, I am satisfied that Mr. Saikaley referred to the role played by Mr. Wall in the distribution of cocaine and the people who sell it for him. Mr. Saikaley further outlined his role in packaging cocaine for distribution and his reluctance to share his formula for packaging the cocaine, as well as the cutting and mixing of the cutting agents that he uses.

[80] I find that the probe in the previous two paragraphs and the evidence seized from the storage locker in the apartment on November 5, 2009, establishes Mr. Saikaley’s membership in the conspiracy and I find that the Crown has established Mr. Saikaley’s membership in the conspiracy beyond a reasonable doubt. It is based on Mr. Wall and Mr. Saikaley’s activities in the apartment and the distribution of the illicit drugs by Mr. Wall and Mr. Sarsfield at the bar on Merivale Road and elsewhere.

[81] I find that there are other instances of interaction between Messrs. Saikaley, Wall and Sarsfield to show that it was cocaine that was packaged, distributed and sold in furtherance of the conspiracy and that their meetings at the apartment and at the bar was not, as argued by defence counsel, to operate the bar at Rick’s Place. Assuredly, they operated the bar at Rick’s Place, but they also sold illicit drugs at that location as the further evidence I will review establishes.

[82] Crown counsel argued that there is plenty of direct evidence that establishes that a conspiracy did exist and that Troy Saikaley was a part of that conspiracy. Crown counsel pointed out that Elizabeth Bernard testified that Mr. Saikaley had rented and was the tenant of Unit 210-1380 Prince of Wales Drive and a tenancy agreement involving Mr. Saikaley was filed at trial as Exhibit #18. Ms. Bernard also did a credit check on Mr. Saikaley (Exhibit #19). Ms. Bernard recalled that Mr. Saikaley did not want the utilities bill to come in his name, rather in Ms. Bernard’s name. She said that Mr. Saikaley reimbursed her, mostly in cash.

[83] Next, Ms. Bernard testified that she supplied the apartment keys to Mr. Saikaley at the beginning of the tenancy and that during the course of the tenancy, he was supplied with a key fob, a device enabling him to enter the common areas of 1380 Prince of Wales Drive and 900 Dynes Road, the building situated in proximity to 1380 Prince of Wales Drive where Mr. Saikaley’s father, Rick Saikaley, resided.

[84] A letter from Edward Mahar, the property manager of condominium corporation no. 111, being 1380 Prince of Wales Drive was filed as Exhibit #27 and it explains that the deadbolt of the exterior door of the apartment had been changed. Constable Dragan testified that he received keys to the apartment from Corporal François Goyer; keys that were taken from Troy Saikaley during the time of his arrest by Lisa Williams-Pelly and Sergeant Stephane Turgeon. Ms. Bernard also testified that the lock on the door to the storage closet inside the apartment needed to be repaired as a deadbolt lock had been installed on the closet door. The deadbolt did not exist prior to Mr. Saikaley renting the apartment.

[85] Mr. Saikaley owned TRS Motors and the rent for the apartment was initially paid by cheques made out by TRS Motors. Mark R. Grenon, a forensic accountant testified that rent cheques were paid by TRS Motors in the amount of $710, an amount that coincides with the rent payable each month for the apartment. The final rent cheque or draft that Ms. Bernard testified she had received from Mr. Saikaley was in the amount of $5000 in July 2009 and was from Shepherd Financing, another one of Mr. Saikaley’s corporations. That cheque appeared in the forensic accounting report at line 396, page 174 of schedule 6:10, Exhibit 101, Volume B. Based on this evidence, I find that it is well established that Mr. Saikaley paid the rent for the apartment through his corporations.

[86] Ms. Bernard testified that the amount of cash payments Mr. Saikaley gave her after the second year of the tenancy concerned her. Suddenly, not only was the rent being paid in cash, the hydro bills were being paid in cash as well. Mr. Saikaley had insisted that the hydro bills remain in Ms. Bernard’s name (Exhibit #20). In July 2009, the cash payment was in excess of $2000. Ms. Bernard stated that the fob key she had given to Mr. Saikaley that was seized from his person, was the fob key entered as Exhibit #25. The keys in Exhibit #25 were, according to the testimony of Constable Christian Dragan, used by Corporal Roch Brunet to open the storage locker inside the apartment where the vast majority of illicit drugs seized in this case were located.

[87] I find that Mr. Saikaley had direct control, both legally and physically, of Unit 210-1380 Prince of Wales Drive. The above evidence demonstrates the control necessary for establishing Mr. Saikaley’s possession of the items seized by the RCMP officers in that apartment. I find that on a balance of probabilities, Mr. Saikaley is a member of a conspiracy that involves Mr. Wall and Mr. Sarsfield.

[88] The following intercepted telephone conversations and probes are relied upon by the Crown to show that there was a conspiracy to traffic in cocaine and that Mr. Saikaley was a member of it, all taken from Exhibit #1:

• Tab 441: On October 19, 2009, Mr. Saikaley said to Mr. Wall, “You gotta understand, my dad (Rick Saikaley) has been getting these people high and drunk since the fucking seventies...and if it’s not them, it’s their aunts, uncles, dads, grandmothers...”

• Tab 441: On October 14, 2009, Mr. Saikaley said to Mr. Wall, “I didn’t take the coke off this thing very well...The cocaine is eating through that. Eating through the spoon.”

[89] Next, a series of text messages were intercepted that, according to Crown counsel, point to an inventory control system. The following intercepts were referred to and are located in Exhibit #1:

• Tab 362, Vol.6: in that exchange, Mr. Saikaley sent a text message to Mr. Wall, consisting of the numbers “411”; then, at

• Tab 363: Mr. Wall sent a response to Mr. Saikaley who did not receive the message.

• Tab 365: Mr. Saikaley then called Mr. Wall and said, “Hey buddy, are you not going to respond to me?”; then

• Tab 364: Mr. Wall texted to Mr. Saikaley, “1983” and the last two digits 31.

• Tab 367: A subsequent phone confirmation confirmed to Mr. Wall that he in fact received the text message.

[90] I agree that it is clear that Mr. Saikaley was asking Mr. Wall to send him a coded message. The coded message that was sent contained Mr. Wall’s year of birth, 1983, and the last two digits indicate how many stacks are in the supply at the bar. Mr. Sarsfield’s year of birth is 1984. Mr. Sarsfield also uses his year of birth followed by digits in communicating with Mr. Saikaley and/or Mr. Wall to indicate how many decks of cocaine he has on hand at the bar.

[91] The numeric codes that were transmitted back and forth between Mr. Sarsfield and Mr. Wall; Mr. Wall and Mr. Saikaley; and on occasion from Mr. Sarsfield to Mr. Saikaley, not only establishes inventory control, but points to a conspiracy to traffic in cocaine. A system was established by which Mr. Saikaley and Mr. Wall could keep track of how much cocaine was left at the bar so that the bar could be restocked. The evidence of these coded text messages are found at Tab 422, Vol. 7, Exhibit #1 to 425 (message from Mr. Wall to Mr. Sarsfield of “411?”, with the response “1984, 26” and “1984, 23”).

[92] Subsequent to that, at Tab 286, Vol. 5, Exhibit #1 is a telephone conversation where Mr. Wall asked Mr. Sarsfield: “Could you remember to text me, uh, uh, like your countdown and stuff like that?” Mr. Sarsfield replied saying, “Yeah, yeah. Okay. All right. Okay, thank you…But we’re good for now but like...” And Mr. Wall said, “No, no, that’s not what I mean by that, okay. Okay, shoot me one now anyways.” As a result of that communication, a text message was sent that read: “1984” with a “15”. This evidence establishes that this type of communication relates to the countdown of cocaine decks at the bar.

[93] Tabs 278 to 282, Vol. 5, Exhibit #1 comprise a series of text messages sent on September 17, 2009, and they are combined with the communications right afterwards that relate to them:

On September 17, 2009 between 11:29 am and 8:42 pm a series of text messages were communicated between Andrew Wall (613-883-8836), James Sarsfield (613-883-7277) and Troy Saikaley (613-867-8769). These sessions were intercepted on Wall’s line (613-883-8836) (subscriber: Andrew Wall).

At 11:29 am, session #913, Sarsfield to Wall: “198410” {10 grams of cocaine left}

At 12:31 pm, session #927, Sarsfield to Wall: “19848” {8 grams of cocaine left}

At 12:59 pm, session #947, Sarsfield to Wall: “19843” {3 grams of cocaine left}

At 8:41 pm, session # 999, Sarsfield to Wall: “198425” {25 grams of cocaine left}

At 8:42 pm, session #1000, Wall to Saikaley: “198325” {25 grams of cocaine left}

(The passport photographs filed at trial indicate that 1983 is Mr. Wall’s year of birth (Exhibit #3, p.4) and 1984 is Mr. Sarsfield’s year of birth (Exhibit #3, p.7)).

Tab 285:

On September 17, 2009, at 1:00 pm, James Sarsfield received a call from Heidi Dingwell from line (613-883-3363 (subscriber: Andrew Wall). The call was intercepted on Sarsfield’s line 613-883-7277 (subscriber: Andrew Wall), session #513. Dingwell told Sarsfield that they {Dingwell and Andrew Wall} were on their way to the bar {Rick’s Place}. {See text message, tab 280, line #3, next text message after this call was 25. This call confirms delivery to the bar by Wall.}

[94] It was admitted by defence counsel that Ms. Dingwell lived with Mr. Wall at the apartment. Crown counsel pointed out that if one compares the time of the Dingwell communication to the above text at 12:59 p.m., when there was 3 grams of cocaine left at the bar and consider that at the next text, at 8:41p.m., the count is up to 25 grams. This establishes a drug delivery at the bar by Mr. Wall and Ms. Dingwell. Tabs 324 and 332, Vol. 5 and 6, Exhibit #1 are the next significant series of text messages. The count went from 10, 8, and a reference to “Hey brother are you coming by” and then texts of 6, 4, 1, 0, indicating that there is no cocaine left at the bar. Mr. Wall responded saying, “uh, 2 minutes.”

• Text messages go “9” for Mr. Sarsfield to Mr. Wall; “9” from Mr. Wall to Mr. Saikaley; uh, Mr. Sarsfield to Wall “2”; Wall to Saikaley “2”; Sarsfield to Wall “1”; Wall to Sarsfield “40 minutes.” So I’ll resupply Sarsfield in 40 minutes. Sarsfield’s response is “K.” Sarsfield to Wall at, uh, 6:14, “0.” No cocaine left. Wall to Sarsfield in response, awhile later, “20 minutes.” And at 7:11, Sarsfield to Wall, “I got a line up. What’s the word?” Crown counsel argued that this text message is very telling as to what these communications are for. And so, the only logical conclusion, in the totality of the evidence is that he’s got a line up for the cocaine. Mr. Wall responds, “10 minutes not even.” And then there is another text, Wall to Sarsfield, “2 minutes.”

• Tab 553, is a probe that indicates “I’ll swing 2 tonight. Write down he’s getting 2.” Mr. Wall then left the apartment to see Mr. Sarsfield at the bar. Crown counsel argued that the “2” Mr. Wall was referring to are the packages of Playtex bottle linters filled with decks that Mr. Wall delivered to Mr. Sarsfield on November 4, 2009.

• Tabs 338 to 342, Vol. 6 Exhibit #1, September 30, 2009, indicate the same pattern. Mr. Wall’s response to Mr. Sarsfield is “5 minutes.”

• Tab 355 to 358, Vol. 6, Exhibit #1, October 1, 2009, the same pattern is repeated. Mr. Wall communicates with Mr. Sarsfield: “uh, 2 minutes.”

• Tabs 448 to 457, Vol. 8, Exhibit #1 refer to the same pattern of countdown on October 20, 2009. Mr. Wall then sends a text message to Mr. Sarsfield “5 minutes” and then the count goes up again.

• Tabs 458 and 459 are texts that show Mr. Saikaley communicating with Mr. Wall to ensure that Heidi Dingwell is out of the apartment 210 so that Mr. Saikaley and Mr. Wall can prepare decks. At tab 460, they talk of “doing 8 today and another 8 tomorrow.” Mr. Wall advises Mr. Saikaley that “he’s at 3. Mr. Saikaley said “he’ll be at 3 for a couple of hours. You don’t have to go.” This ties in with the communication from Mr. Sarsfield to Mr. Wall that he is at 3. (Tab 45)

[95] Crown counsel argued that the message at Tab 553, Vol. 9, Exhibit #1 ties in with what was found upon the execution of the search warrant at the bar the next day where two crumpled baby bottle liners wrapped in elastic bands were found in the garbage in the kitchen by Constable Lisa Williams-Pelly. Crown counsel argued that this is a confirmation that they were the same two packages of Playtex bottle liners filled with decks that Mr. Wall intended to deliver and did deliver to Mr. Sarsfield on November 4, 2009 (Photos at pp. 147-148, Exhibit #3).

[96] On November 5, 2009, there were a series of communications exchanged between Mr. Wall, Mr. Sarsfield and Logan Schinbeckler (Tabs 557 to 568, Vol. 9 Exhibit #1). These communications show that at 2:54 pm, Mr. Sarsfield indicated to Mr. Wall that he was at “0”, meaning that he has no cocaine left at the bar. It was also on that morning that Mr. Wall was scheduled to leave on a trip to Cuba and had slept in. Finally, at 3:07 pm, Mr. Wall texted Mr. Sarsfield “5 minutes” meaning he would restock the bar in five minutes.

[97] The next communication involves one Christopher Kaizer who first arranged to meet with Mr. Saikaley at Suite 13, a hair salon that Mr. Saikaley brags he had purchased for his wife Maha Ali Farah. The probe reproduced at Tab 571, Vol. 9, Exhibit #1 is a conversation between Mr. Saikaley and Mr. Wall preparing marihuana and hashish bags for Mr. Kaizer who had arrived at the apartment building. The RCMP surveillance team observed a bag being loaded in Mr. Kaizer’s vehicle by Mr. Wall. Messrs Kaizer, Wall and Saikaley are also observed leaving 1380 Prince of Wales Drive in their separate vehicles. At 3:43 p.m., Christopher Kaizer was stopped by Corporal François Goyer at the intersection of Kirkwood and Carling Avenues in Ottawa. Marijuana and hashish were found in the trunk of Mr. Kaizer’s car. Shortly after, Mr. Saikaley, Mr. Wall, Mr. Sarsfield and Ms. Dingwell were arrested at Rick’s Place bar at 1034 Merivale Road. At the time of arrest, cocaine was found on Mr. Saikaley’s person.

[98] Crown counsel explained that he produced the text messages, the probe communications, and the movements of Mr. Wall from the apartment to the pub to confirm that they relate to the operation of the drug inventory in the bar and the subsequent restocking of the cocaine at the bar for the purpose of selling the cocaine.

[99] Crown counsel alleged that Troy Saikaley was using the apartment to prepare the decks of cocaine that were sold at the bar. There are many intercepted communications where Mr. Wall told Mr. Saikaley that the apartment was free because his girlfriend, Ms. Dingwell, was at school. On certain occasions, Ms. Dingwell was in the apartment and was called by Mr. Wall and asked to leave so that Mr. Saikaley, alone, or with Mr. Wall, could prepare the cocaine for sale:

• Tab 431 to 433 Vol. 7, Exhibit #1 at 5:35 am, Mr. Wall to Mr. Saikaley: “5-9” meaning Ms. Dingwell’s schedule for school that day.

• Tab 245 is reproduced with the Crown’s allegations on the living arrangements at the apartment.

On August 29, 2009 at 7:49pm, Troy Saikaley called Andrew Wall at line 613-883-8836 (subscriber: Andrew Wall). The call was intercepted on Saikaley’s line 613-867-8769 (subscriber: Troy Saikaley), session # 3792. Saikaley called Wall and told him he was having some family emotional issues and he could not just sit in his car for an hour and 15 minutes. Wall told Saikaley that if he needed to “go to work”, to just “go up {to the apartment at 210-1380 Prince of Wales Drive, Ottawa, ON – stash location}.” Saikaley said he only needed 2 minutes. Wall said he would tell his girlfriend to “take some garbage out”, “I’ll just tell her like you need 2 minutes in the apartment, she understands, she’ll leave, like I told her that part of living there is she’s “gotta go when she needs to go.” {It is obvious that there is an arrangement between Wall and Saikaley that part of the conditions of Dingwell staying at this apartment with Wall is that she has to leave on a moment’s notice if Saikaley needs to go to the apartment to do his activities related to the trafficking of controlled substances.} Wall told Saikaley that his girlfriend {Heidi Dingwell} called him and asked him if she was supposed to go, that she didn’t know and that if she would have known, she would have gone to Logan’s {Logan Schinbeckler is a friend of Wall and Dingwell’s and lives across the street from them at 307-1435 Prince of Wales Drive, Ottawa, Ontario.} Before the conversation ended, Wall told Saikaley that he would tell his girlfriend to go downstairs to get a coffee {there is a Tim Horton’s location right beside the apartment complex at 1380 Prince of Wales Drive, Ottawa, ON}, so that Saikaley could go into the apartment without Dingwell being there.

On August 29, 2009, at 7:51 pm, Troy Saikaley received a call from Andrew Wall from line 613-883-8836 (subscriber: Andrew Wall). The call was intercepted on Saikaley’s telephone line 613-867-8769 (subscriber: Troy Saikaley), session #3793. Wall called Saikaley to tell him his girlfriend was vacating the apartment and going for coffee. Wall apologized to Saikaley once again. Saikaley replied that he was in a bad mood and went on to describe what was troubling him, including his family and people who are always leaning on him.

I agree with the Crown’s interpretation of living arrangements at the apartment and the apartment being the chosen location by Mr. Saikaley to cut, package and stash cocaine for sale.

• Tab 254: On September 5, 2009, Mr. Saikaley called Mr. Wall who confirmed that Ms. Dingwell would not be present in the apartment. Again, on September 16, 2009, Mr. Wall told Ms. Dingwell that he “might need to kick her out of there.” (Tab 261)

• Tabs 266 to 268, Vol. 5, Exhibit #1, Mr. Saikaley was asking Mr. Wall if Ms. Dingwell was at school and Ms. Dingwell’s departure from the apartment is repeated at Tabs 248 and 272, 347, 371, 390, 404, 431, 435, 493 and 485.

[100] Crown counsel pointed out that during the above communications, it is clear that Mr. Saikaley worked in the apartment with Mr. Wall, but that he also worked alone in the apartment while Mr. Wall was busy tending the bar. I agree with Crown counsel’s interpretation and conclusion with respect to the intercepts in the previous paragraph.

[101] Crown counsel argued that the following communications between Mr. Saikaley and S.L.N. could be admitted as evidence against Mr. Saikaley. He stated that S.L.N. joined the conspiracy at the beginning of May, 2009. Mr. Saikaley was aware of S.L.N.'s business and activities as evidenced by their telephone conversations, their meetings and their references to people they knew, such as Mr. Wall and Mr. Krieger. The evidence submitted by the Crown started at a point when S.L.N. broke up with her boyfriend B.J. or Billy Joe Krieger. The name Billy Joe Krieger comes up later on Mr. Saikaley’s iPhone debt list as owing $15,000 to Shepherd Financing, Mr. Saikaley’s corporation (Exhibit # 47).

[102] The evidence relied on by the Crown to show a conspiracy involving S.L.N., with Mr. Wall and Mr. Saikaley, is as follows:

• Tab 11, Vol. 1, Exhibit #1 on May 27, 2009, S.L.N. called Mr. Saikaley and advised him that she was looking to move house. Mr. Saikaley asked her “so you need to do something with your things until then” and having been misunderstood by S.L.N., Mr. Saikaley replied “o.k., but I mean your other stuff for now.” The Crown submitted that Mr. Saikaley is referring to her drug supply.

• Tab 12 covers the next day when the intercepted a call from S.L.N. to Mr. Saikaley yields this information: “lend him (Krieger) money to make money and take his car as collateral...” During that conversation, Mr. Saikaley invited S.L.N. to meet him “at the back of the building” and the Crown alleged that this is a reference to 1380 Prince of Wales Drive. During the conversation, Mr. Saikaley told S.L.N. that Mr. Krieger would get her “to lose customers” and that more people will think of her “disrespectfully.”

• Tabs 3 and 4, Vol. 1, Exhibit #1 contained a conversation between Mr. Saikaley and S.L.N. during which she was asking Mr. Saikaley for a letter of reference that would establish that she was working at the bar at Raven’s Nest also known as Rick’s Place, earning $400 per week with tips. The Crown argued that Mr. Saikaley knew that S.L.N. was not employed and that S.L.N. earned her living selling drugs at the street level. At Tab 12, Mr. Saikaley had also referred to her “losing customers” and so Mr. Saikaley knew what S.L.N.'s livelihood was.

• Tabs 6, 7, and 8, Vol. 1, Exhibit #1 was tendered by the Crown to show that S.L.N. told Mr. Saikaley that the police were at her house and Mr. Saikaley replied, “delete my records from your phone please.” So the Crown argued that this constitutes a clear reference that Mr. Saikaley does not want to have anything to do with the police, that S.L.N. is unemployed and that Mr. Krieger will make her lose customers.

• Tab 12 consisted of an arrangement whereby S.L.N. would meet Mr. Saikaley at his dad’s place at 900 Dynes Rd. (see photo pp. 8 and 9, Exhibit #3). Mr. Saikaley was found, through the intercepted communications, to have met S.L.N. at his father’s place, at apartment 210 and at S.L.N.'s apartment at 1402-2880 Carling Avenue during the last days of May 2009.

[103] I agree with Crown counsel’s interpretation of the above intercepted phone conversations.

[104] Crown counsel argued that if I conclude that S.L.N. is a member of the conspiracy in that she met Mr. Saikaley to obtain cocaine, then her communications with other individuals that she talked to during the intercepted communications in furtherance of that conspiracy are admissible against Mr. Saikaley.

[105] The pattern of activity the Crown demonstrated through a series of calls and meetings involved S.L.N. meeting up with Mr. Saikaley to obtain cocaine and then she arranged for the product to be distributed or picked up by her customers. During a number of communications, she refered to the name “Troy”. The relevant evidence is found in the following communications:

• Tab 31, 32, 33, Book 1, Exhibit #1 on June 11, 2009, S.L.N. asked Mr. Saikaley: “are you coming up or am I coming down” and Mr. Saikaley replied “I can if you like” and S.L.N. tells Mr. Saikaley “ okay, 1402” and that indicates where she resides at apartment 1402-2880 Carling Ave.

[106] I find that Mr. Saikaley frequently met with S.L.N. at her apartment and other locations as well.

[107] Crown counsel then analyzed what took place during a period of time when Mr. Saikaley was out of the country in Barcelona, Spain. The fact that he made the trip is proven through the TRS Motors accounting records that will be referred to later in Mr. Grenon’s evidence (Forensic Expert – Proceeds of Crime Section). S.L.N.'s telephone calls were intercepted when she called a number of individuals and discussed her ability to obtain cocaine. I see no reason to reproduce these calls and accept the conclusion that she was distributing cocaine bought from Mr. Saikaley.

[108] Crown counsel alleged that on July 2, 2009 at 6:08 pm, S.L.N. received a call from a female believed to be Derouin from line 613-589-2510 (subscriber: D. Sampson). The call was intercepted on line 613-864-2038 (subscriber: S.L.N.), session # 4836. Derouin asked if S.L.N. was in Ottawa. S.L.N. replied that she was because she was “still waiting to get [her] stuff {cocaine} yet, he’s {Troy Saikaley} gonna be here really soon and I can’t leave without it {cocaine} right.” S.L.N. was not returning to Pembroke until she met with her cocaine supplier, Troy Saikaley.

➢ At approximately 6:16 pm, Cpl. Andre Chausse and Cst. Nicholas Lavigne observed Troy Saikaley’s vehicle NOS 4A2 ON (Cadillac Escalade) enter the parking lot of 2880 Carling Avenue, Ottawa. Mr. Saikaley exited the Escalade and was observed using a cellular phone while walking towards the entrance. Mr. Saikaley was noted as standing outside the main doors of 2880 Carling Avenue for several seconds prior to entering the building.

[109] From Tabs 59, 60 and 61, Vol. 1, Exhibit #1, Crown counsel pointed out that the movements of Mr. Saikaley could be traced to S.L.N.'s apartment. S.L.N. asked her girlfriend to leave the apartment before Mr. Saikaley arrived and the girlfriend returned following Mr. Saikaley’s departure.

[110] From Tabs 94 to 97, S.L.N.'s communications with Mr. Saikaley were intercepted. Mr. Saikaley was at his cottage and S.L.N. told him, “when you come, can you bring over a few movies?” S.L.N. then contacted her customers and stated: “when she picks up tomorrow, I’m going to have specific small amount.” At Tab 104, in speaking to Justin Duplessis who is short on money he owes her, S.L.N. explained “the guy (Troy Saikaley, as argued by the Crown) that she owes money to (for cocaine) which is the same guy that she makes her monthly car payments to and now she will have to try to explain why she is short of money.”

[111] In Tab 104, S.L.N. tells Justin Duplessis that she owed Mr. Saikaley $3000. This is because Mr. Saikaley “fronted” her the cocaine. At Tab 106, she was recorded meeting Mr. Saikaley at his dad’s place and the following day, S.L.N. was on route to distribute cocaine inquiring about weights and cutting agents, making it obvious, according to the Crown’s theory, that she had received a fresh supply of cocaine.

[112] Mr. Wall was also involved in the conspiracy. On July 16, 2009, Mr. Saikaley called Mr. Wall and told him to make sure to obtain the money before S.L.N. left (Tab 111, Vol. 2, Exhibit #1). At Tab 124, Vol. 3, Exhibit #1, S.L.N. was engaged in an intercepted communication showing Kelsey Johnson how to “buff” (dilute) cocaine. She indicated to Ms. Johnson that she paid $1600 for an ounce of cocaine.

[113] Corporal Gray intercepted S.L.N.'s slang communication found at Tab 28, Vol 1, Exhibit #1 as follows in light of drug trafficking:

A. Okay, Uh, so they’re, I believe they’re talking about cocaine, and I’ll talk more about that as I go. Uh, now it looks like, uh, this guy Justin, uh, owes S.L.N. money. She phones him up and basically tells him, uh, that, uh, she’s in a bit of hot water because she owes money. So, uh, and she wants to collect money that he owes. He owes her money. So, uh, she says, uh, on the bottom of – at the end, almost the end of page 2, she says, uh, “I give it to you pure. You’re obviously not buffing it or you would be making money. I told you I’d show you how to do it. I don’t know why you don’t listen to me.” Uh, and that’s just after she told him that “this is how I make my money.” She says, uh, “You don’t,” she said, “Did you know that I live off this stuff? I don’t have any other money. This is how I, I make, this is how I, uh eat, you know what I mean?” Uh, so then, so she says, “You’re obviously not buffing it.” So “buffing it,” that means, uh, Your Honour, that “buffing it” is slang for, uh, “cutting it.” So she says...

Q. And by “cutting it,” you mean adding other....

A. Add...

Q. ... substances?

A. ... adding a cutting agent...

Q. Okay.

A. ... so he could increase his profits.

(page 87 of the transcript)

[114] Corporal Gray interpreted the intercepted communication found at Tab 89, Vol. 2, Exhibit #1 with regards to pricing and testified as follows:

A. Okay, and I didn’t see this before just now so I’m reading this cold, but I mean I, uh, right away, uh, 89, uh, 16 hundred, uh, so it’s $1600 for an ounce; remember 28 grams is an ounce, again, so it’s just the same units, same price kind of system, $1600 for an ounce. The next, uh test is, uh, “17”, so it’s 17 hundred. She’s gonna hold out, hold the high, “I’ll meet you halfway”, uh, “and then don’t be afraid” there’s some, uh, advice (ph), “the next one will be 16.” So the next one will be 1600. This one it’s a full ounce for 1700.

[115] The term “fronting” drugs was explained by Corporal Gray and he said that it meant “giving drugs to someone and expecting the money later.” On July 12, 2009, S.L.N. fronted Mr. Duplessis some drugs and Mr. Duplessis got her in trouble for not paying on time and she explained to him that the guy she owes money to is the same guy to whom she makes her car payments. Crown counsel argued that this is a clear reference to Mr. Saikaley (Tab 104, Vol. 2, Exhibit #1).

[116] Crown counsel relied on an intercepted call and surveillance to establish that S.L.N. met with Mr. Saikaley at Mr. Saikaley’s father’s place at 900 Dynes Road. The Crown’s evidence is as follows:

On July 29, 2009, at 5:38 pm, S.L.N. called Troy Saikaley at line 613-867-8769 (subscriber: Troy Saikaley). The call was intercepted on line 613-864-2038 (subscriber: S.L.N.), session #10940. S.L.N. told Saikaley that the meeting with her lawyer “went really long” and then stated, “...I figured you wanna see me now as opposed to later.” Saikaley told her that he was “over at the building right now, so...” S.L.N. asked, “Your dad’s?” [located at 900 Dynes Road. Ottawa, ON]. Saikaley confirmed that he was at this father’s and S.L.N. advised that she could go there to meet her there in 10 to 15 minutes. [At the time of this call, Saikaley was most likely inside the building located at 1380 Prince of Wales Drive, Ottawa, ON. There is access to the building at 900 Dynes Road from 1380 Prince of Wales Drive, Ottawa, ON. The underground parking also allows access to both buildings].

At approximately 5:49 pm, Cst. Jean Lepage observed Troy Saikaley walk from the area of 1380 Prince of Wales Drive and get into the Escalade (NOS 4A2). Saikaley is noted to be empty handed at this time. The Escalade proceeds East in the parking lot and Cst. Diane Veronneau observed the Escalade enter the underground parking at 1380 Prince of Wales Drive. At approximately 6:05 pm, Cst. Robert Hotte observed a black, Audi bearing Ontario plate BEXK 696 parked in front of 900 Dynes Road, Ottawa. S.L.N. is observed exiting the Audi carrying sheets of paper and entering the building. S.L.N. is observed going to the top floor of 900 Dynes Road – denoted as Floor “P” and enters a door between #3 and #5 (there was no visible number on the door she entered).

At approximately 6:18 pm, Cst. Hotte confirmed that Saikaley’s Escalade (NOS 4A2) was parked in parking space “A26” at the underground parking lot of 900 Dynes Road, Ottawa, ON.

At approximately 6:47 pm, Cst. Hotte observed S.L.N. exit the building at 900 Dynes Road, Ottawa, ON, carrying sheets of paper and gets into the Audi (BEXK 696). She departs the area.

At approximately 7:02 pm, Cpl. Andre Chausse observed the Escalade (NOS 4A2) exit the underground parking lot of 900 Dynes Road and depart the area. Five minutes later, NOS 4A2 parks on Raven Avenue, Ottawa in front of Raven’s Nest Pub (also known as Rick’s Place Bar and Grill). Saikaley is observed exiting the vehicle and walking towards the bar. (Tab 137, Vol. 3, Exhibit #1)

[117] Mr. Saikaley cut off S.L.N.'s drug supply (Tab 142, Vol. 3 Exhibit #1). At Tab 145, a collect call from Mr. Krieger calling from a prison, to S.L.N., revealed that Mr. Saikaley had seized her car because she did not pay her debts to him. On August 16, 2009, while Mr. Saikaley was away, S.L.N. called Mr. Wall several times in an effort to pay some money to him to get her car back (Tabs 153 to 161, Vol. 3, Exhibit #1). As late as September 2, 2009, S.L.N. discussed with Mr. Saikaley how to get her car back and at Tab 165, Mr. Saikaley instructed Mr. Wall to meet with S.L.N. and discusses how much money he was prepared to accept from her. On October 22, 2009, S.L.N. called Mr. Saikaley and the call was intercepted. She explained to Mr. Saikaley that she was going to be charged by the RCMP for conspiracy and that she was moving back to Pembroke with her mother (Tab 177, Vol. 13, Exhibit #1).

Defence’s Position on the Co-conspirator’s Exception to the Hearsay Rule

[118] Defence counsel argued that a significant number of the utterances tendered by the Crown, pursuant to the co-conspirator’s exception to the hearsay rule, failed the test articulated in the case law once the intercepted communications that involved the co-conspirator were executed because they do not raise the possibility that the accused was involved in an ongoing conspiracy to traffic in cocaine.

Defence’s Position on Count 42 (Conspiracy to Traffic in Cannabis Marijuana)

[119] The accused submitted that while the legal situation is unique, the determination of the result compelled by the evidence is relatively simple and straightforward. The evidence was abundantly clear that Mr. Kaizer provided the drugs at issue to the accused to serve as collateral pending the repayment of a loan by the accused to Mr. Kaizer. The accused assumed possession of the drugs pending repayment of the loan. When the loan was partially repaid on November 5, 2009, a portion of the drugs were returned to the possession of Mr. Kaizer.

[120] It is incontestable on the evidence that there was no shared purpose between the accused and Mr. Kaizer and Mr. Wall to traffic in these drugs. There was no scheme hatched whereby the three men plotted to distribute the drugs to lower level drug dealers or members of the public. Quite the contrary, it was not only not the shared purpose of the accused and Mr. Wall to traffic in the drugs, the accused submitted that they would have no reason to even care what Mr. Kaizer did with the drugs after the loan was repaid and he resumed possession. By the same logic, there cannot be convictions for trafficking. Mr. Kaizer gave up possession of his drugs temporarily and then, within a few weeks, resumed possession of them again. That was all that took place. The evidence is clear and uncontroverted. Finally, the accused’s possession was not “for the purpose of trafficking.” His possession was for the purpose of securing the repayment of the loan. According to the accused, the drugs were collateral. The drugs were not possessed by the accused for the purpose of trafficking therefore, there was no conspiracy to traffic in cannabis marijuana either.

[121] The accused submitted that there was no evidence that he had any role to play or that he had knowledge of any conspiracy to traffic in cannabis marijuana with the group of persons named in Count 22 including a “Taylor”, Mr. Sarsfield’s contact.

Analysis and Decision

Counts 42, 39, 22 (conspiracy to traffic in drugs)

[122] Count 42 alleges that between May 1, 2009, and November 5, 2009 in the City of Ottawa, Mr. Saikaley conspired with Mr. Wall and Mr. Kaizer to traffic in cannabis marijuana, pursuant to s. 465(1)(c) of the Code.

[123] Count 39 alleges that between May 1, 2009, and November 5, 2009, in the City of Ottawa, Mr. Saikaley conspired with Mr. Wall and Mr. Kaizer to traffic in cannabis resin, contrary to s. 465(1)(c) of the Code.

[124] Count 22 alleges that between January 1, 2009, and November 5, 2009, in the City of Ottawa, Mr. Saikaley did conspire with Mr. Wall, Ms. Dingwell, Mr. Sarsfield, Sarah (last name unknown), Taylor (last name unknown), Ricky (last name unknown), Mike (last name unknown), Paul (last name unknown), Mr. Kaizer, Charbel Nassar and Patty Wall to traffic in cannabis marijuana, contrary to s. 465(1)(c) of the Code.

[125] Count 16 alleges that between May 1, 2009 and November 5, 2009 in the City of Ottawa, Mr. Saikaley did conspire with Mr. Wall, S.L.N., Kourtney Derouin, Kelsey Johnson, Justin Duplessis, Christopher Kaizer, Billy Joe Kreiger, Charbel Nassar, Lorie Scott and Patty Wall to traffic in cocaine contrary to section 465(1)(c) of the Criminal Code.

[126] I have already made a finding that Mr. Saikaley, Mr. Wall and Mr. Sarsfield, through their actions and their words, demonstrated that a conspiracy in fact existed. I have also found that, on a balance of probabilities, Mr. Saikaley is probably a member of that conspiracy. I now find that the Crown has established Mr. Saikaley’s membership in the conspiracy beyond a reasonable doubt. Thus, I am applying the direct evidence together with the declarations of co-conspirators and the acts of co-conspirators as against Mr. Saikaley on the issue of his guilt. The statements of co-conspirators that I rely on are those made in furtherance of a common interest that the parties themselves rely upon to achieve a common goal.

[127] On Count 42, I accept as true, the probe found at Tab 571, Vol. 9, Exhibit #1 that I reviewed earlier when on November 5, 2009, that Mr. Kaizer met with Mr. Saikaley at Suite 13, then at the building that houses the apartment where Mr. Saikaley kept a stash of drugs with Mr. Wall. The conversation between Mr. Saikaley and Mr. Wall clearly indicates that they are preparing an allotment of illicit drugs for Mr. Kaizer and Mr. Wall was seen loading a bag minutes later in Mr. Kaizer’s car. Again, the RCMP surveillance team, minutes later, followed Mr. Kaizer and arrested him, finding a substantial amount of properly analyzed cannabis marijuana in the trunk of his car. I, therefore, find Mr. Saikaley guilty of Count 42. I apply the same evidence to find Mr. Saikaley guilty of Count 39 as properly analyzed cannabis resin was found in the trunk of Mr. Kaizer’s vehicle.

[128] I do not agree that Mr. Saikaley escapes being found guilty of the conspiracy to traffic in both cannabis resin and cannabis marijuana because on October 7, 2009, Mr. Saikaley informed Mr. Wall that Mr. Kaizer had given him 8 kilograms of “weed” and hash. Corporal Gray testified that “weed” is a slang word for “marijuana” (Tab 46, Vol. 8, Exhibit #1). On October 27, 2009, Mr. Kaizer met with Mr. Saikaley as determined by a series of text messages exchanged between them (Tabs 480-484, Vol. 5, Exhibit #1). That day, a conversation between Mr. Saikaley and Mr. Wall was intercepted by probe on November 5, 2009:

Then the conversation turns to Kaizer. Troy Saikaley stated “Let’s make sure, now what’s his name (Chris Kaizer) is downstairs.” Troy Saikaley only identified the person waiting as “That guy”... and further indicated to Wall that he wanted Wall to give him two (2) bags of...and two (2) bags of .... He’s given me two, two pens of ah GH...from Mexico?” Saikaley asked Wall if he was interested in getting any (GH). Saikaley further stated that “usually they sell between a thousand to thirteen hundred buck” and that they are selling for $300 in Mexico. Saikaley then discussed amounts of drugs they have, such as “these are half pounds (of marijuana)?” Saikaley is heard counting items in his view. He believed they have an extra bag in their hands, which is confirmed by Wall, “there’s one, two ... is that the...did he, there’s an extra bag (of marijuana) here, why” Is there four and a half (4 ½ pounds of marijuana) of these? Saikaley stated that he (possibly Chris Kaizer) wanted “two (2) of these” (pound bags of marijuana) and “two (2) plates” (of hashish). Wall indicated to Saikaley that each of the plates of hash was worth “four grand ($4000).” Saikaley stated, “He (Chris Kaizer) had already given him three thousand...He’s giving my juice anyway.” Let’s give him the weed back and keep the hash. Saikaley stated, “...should I just keep the Hash (Hashish)? Did you smoke some of the Hash? Is it any good? Did anybody smoke any of it? Wall’s response was “no”. Later in the conversation, Wall asked Saikaley “can you sell these for minimum two thousand dollars a piece?” They both continue to talk about the hash until Saikaley stated “Give him the weed back...keep the hash.” Wall further indicated that there was two (2) plates of hash open plus two (2) more plates of hash, that would leave them with a total of four (4) plates. Saikaley stated “Give him back one (1), two (2) plus the weed.” Then we can hear the sound of a zipper. Wall asked Saikaley if he wanted him to keep the weed it is in his freezer. Before leaving the apartment, Saikaley stated that he had “the guy” (Chris Kaizer) meet him at the salon (Suite 13, which is operated by Saikaley’s spouse, Maha Abi Farah) (Tab 571, Vol. 1, Exhibit #1).

[129] Corporal Gray explained that a plate of hashish is the equivalent of 1 kilogram. I am relying on Cartwright J.’s decision in R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531, at p. 10 to find that Mr. Saikaley’s defence of holding the drugs in this case as collateral is not valid. Cartwright J. stated:

In my view the law is correctly stated in the following passage in the judgment of O’Halloran J.A., with whom Robertson J.A. concurred, in Rex v. Hess, 1948 CanLII 349 (BC CA), [1949] 1 W.W.R. 577 at 579, 94 C.C.C. 48 at 50-1, 8 C.R. 42:

To constitute “possession” within the meaning of the criminal law it is my judgment that where, as here, there is manual handling of a thing, it must be co-existent with knowledge of what the thing is, and both these elements must be co-existent with some act of control (outside public duty). When those three elements exist together, I think it must be conceded that under sec. 4(1)(d) it does not then matter if the thing is retained for an innocent purpose.

From the substantial amount of illicit drugs that were found in the Kaizer vehicle at the time of arrest, the meetings between Mr. Kaizer, Mr. Saikaley and Mr. Wall, leads me to conclude that the drugs found in Mr. Kaizer’s vehicle are evidence of a conspiracy to traffic in illicit drugs. The voices heard in the probe at Tabs 571, 467 and 480 are the voices of Messrs Saikaley, Wall and Kaizer and are all admitted. The conversations are heard from the audio device installed in apartment 202.

[130] In R. v. Miller (1984), 1984 CanLII 637 (BC CA), 12 C.C.C. (3d) 54 (B.C.C.A.), Lambert J.A. demonstrated that when you are involved in a conspiracy, the degree of control is not the same as it would be in joint possession. In the case at bar, Mr. Saikaley was in control of the substances that would have been distributed in the bar and the substances that were eventually distributed to Mr. Kaizer. Mr. Saikaley never referred to the drugs as drugs being held as collateral for a loan. I heard evidence that Mr. Saikaley held S.L.N.'s Audi vehicle and Mr. Krieger’s Hummer as security for loans, but not drugs. The defence of holding drugs as collateral for a loan fails for this additional reason.

[131] In R. v. Miller, at para. 98, Lambert J.A. indicated that with respect to a conspiracy count, the fact that individuals assist in some way in carrying a common design, that conclusion carries with it an irresistible implication that they knew that illegal drugs were in the possession of one or more of them and that they consented to that possession. At para. 99, Lambert J.A. stated: “In short, the agreement to carry out the common design constituted by the conspiracy demonstrates the elements of knowledge and consent without any consideration of a separate question of control.”

[132] I infer that the substances in the possession of Mr. Saikaley, Mr. Wall and Mr. Kaizer were in their possession in furtherance of the conspiracy and, as a result, they are all in possession of the substances. At para. 104, Lambert J.A. added the following in R. v. Miller:

I add that Zanini v. The Queen (1968) 1967 CanLII 16 (SCC), 2 C.R.N.S. 219 (S.C.C.) decided that s-s. 21(2) may be applied when the offence charged is a possession offence, and that the existence of s-s. 3(4) does not preclude the application of s-s. 21(2) to a possession offence. By a parity of reasoning, I would say that the existence of s-s. 3(4) does not preclude the application of s-s. 21(1) to the offence of possession of a narcotic for the purpose of trafficking. Indeed it has been applied to that offence in R. v. Jackson (1977) 1977 CanLII 1919 (ON CA), 35 C.C.C. (2d) 331 (Ont. C.A.), and to other possession offences in R. v. Gowing and Johnson (1970) 1970 CanLII 1030 (AB CA), 12 C.R.N.S. 139 (Alta. C.A.) and R. v. Thibert (1978) 1977 CanLII 1906 (ON SC), 37 C.C.C. (2d) 49 (Zalev C.C.J., Ont).

[133] Recently, the Supreme Court of Canada clarified the concept of party liability to conspiracy in R. v. J.F., 2013 SCC 12, 440 N.R. 69. I quote from paras. 39, 59, and 63 of J.F. as follows:

The scope of party liability for conspiracy turns on a proper understanding of the elements of the offence of conspiracy. That is because, to be a party to an offence, a person must aid or abet the principals “in the commission of the offence”: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at para. 16. With respect to the offence of conspiracy, this Court in Papalia held that “[t]he actus reus is the fact of agreement” (p. 276). Aiding or abetting the formation of an agreement between conspirators (as contemplated in Trieu) amounts to aiding or abetting the principals in the commission of the conspiracy, and should therefore lead to party liability for conspiracy.

[A]iding or encouraging someone to become a member of a pre-existing conspiracy facilitates that new member’s commission of the offence of conspiracy -- that is, the act of agreement. To be consistent in principle, party liability should thus extend to assistance or encouragement that results in the addition of a new member to a pre-existing conspiracy.

To sum up, party liability to a conspiracy is limited to cases where the accused encourages or assists in the initial formation of the agreement, or when he encourages or assists new members to join a pre-existing agreement.

[134] I find beyond a reasonable doubt that Mr. Saikaley did conspire with Mr. Wall and Mr. Kaizer to traffic in cannabis resin as indicated in Count 39. In this case, party liability is established as Mr. Saikaley aided and abetted in the initial formation of the agreement. Mr. Saikaley did that as the principal actor in the conspiracy or as a party in aiding and abetting Mr. Wall or both to supply Mr. Kaizer with cannabis resin. According to the Supreme Court of Canada in J.F. and the Alberta Court of Appeal in R. v. Trieu, 2008 ABCA 143, 429 A.R. 200, as applied by the Supreme Court in J.F., party liability to a conspiracy is made out where the accused aids and abets the actus reus of conspiracy, namely the conspirators’ act of agreeing. As the actus reas is in the agreeing, I rely on the evidence of the preparation of the packages of drugs in the apartment as outlined in the probe I reproduced above and I also rely on his consent of watching Mr. Wall place the drugs in Mr. Kaizer’s vehicle. Furthermore, Moldaver J. in J.F. stated, at para. 52:

In my view, where a person, with knowledge of a conspiracy (which by definition includes knowledge of the unlawful object sought to be attained), does (or omits to do) something for the purpose of furthering the unlawful object, with the knowledge and consent of one or more of the existing conspirators, this provides powerful circumstantial evidence from which membership in the conspiracy can be inferred.

Prior to watching Mr. Wall place the drugs in Mr. Kaizer’s vehicle, Mr. Saikaley had met with Mr. Kaizer at Salon 13, had given Mr. Kaizer a rendezvous at the building where the apartment was located and where the drugs were kept. In the case at bar, I find that this is evidence of an agreement that the unlawful object to commit the indictable offence of trafficking in a substance should be achieved. As the trier of fact, it is for me to decide whether any inference other than agreement can reasonably be drawn on the evidence (J.F., at para. 52). I find that there does not exist any inference other than agreement that can reasonably be drawn on the evidence and, as such, hold that Mr. Saikaley is guilty of conspiring with Mr. Wall and Mr. Kaizer to traffic in cannabis marijuana as charged in Count 42. I find Troy Saikaley guilty beyond a reasonable of count 42.

Count 16 (Conspiracy to Traffic in Cocaine)

[135] In defending Count 16, defence counsel relied on the decision of Nordheimer J. in R. v. M.T., [2009] O.J. No. 977 (Sup. Ct.), where he pointed out, at paras. 24-26, that to guard against the admission of unreliable hearsay, R. v. Chang (2003), 2003 CanLII 29135 (ON CA), 173 C.C.C. (3d) 397 (Ont. C.A.) required that the hearsay utterance must not only be “in furtherance” but also must implicate the accused, as follows:

The fifth hearsay statement does not assist in determining whether M.T. was a member of a conspiracy, nor even whether a conspiracy existed. The fifth hearsay statement also obviously does not directly implicate M.T. While I accept that the fifth hearsay statement was apparently in furtherance of the conspiracy, not every statement made in furtherance of a conspiracy is admissible under the co-conspirators’ exception. Rather, it is those statements that implicate the accused person that are admissible. The fifth statement does not implicate M.T.

While this implication requirement is not expressly stated in the three part rule from Carter, it does find support in other cases discussing the subject. Indeed it is referred to in Chang where the Court of Appeal said, at para. 106:

Therefore, in a case where two accused charged with the same conspiracy are jointly tried and one of them is a declarant of hearsay statements, implicating the other in the conspiracy, the necessity requirement for the admission of hearsay evidence, in our view, has been met. [Emphasis added.]

It is not unfair to require evidence that is proposed to be admitted under the co-conspirators’ exception to the hearsay rule to meet the additional requirement that it actually implicate the accused person. Otherwise, the evidence is nothing more than negative evidence that has the prospect of stigmatizing the accused person for having an association with persons who have acted criminally.

[136] The accused submitted that a significant number of the utterances tendered by the Crown, pursuant to the co-conspirators’ exception, fail the test of admissibility articulated in the case law.

[137] The accused submitted that, after the intercepted communications have been narrowed to exclude those not admissible pursuant to the co-conspirators’ exception, the remaining evidence does no more than raise the possibility that the accused was involved in an ongoing conspiracy to traffic in cocaine. Certainly, the absence of any admissible evidence that the accused ever undertook any act that could constitute the offence of trafficking lends support to this contention. The admissible evidence is not sufficient to make out the allegation in Count 16 beyond a reasonable doubt.

[138] Dealing with Count 16, I find that the evidence tendered by the Crown is direct evidence, for the most part, together with some evidence brought in by the co-conspirators’ exception to the hearsay rule. I find that S.L.N. joined the conspiracy at the beginning of May 2009. The telephone calls between Mr. Saikaley and S.L.N. were intercepted regularly through the months of June, July and August 2009. They met very often at S.L.N.'s apartment on Carling Avenue, at the bar, at the apartment, and at Mr. Saikaley’s father’s place at the apartment building on Dynes Road.

[139] Ms. Saikaley was fully cognizant of S.L.N.'s activities. I accept all of the evidence previously set out that Mr. Saikaley provided S.L.N. with an employment letter so that she could rent her apartment. I accept the evidence of the intercepted telephone calls at the Tabs previously outlined (Tabs 11 and 12, Vol. 1, Exhibit #1, Tabs 3,4,6,7 and 8, Vol. 1 Exhibit # 3). There is evidence of meetings between Mr. Saikaley and S.L.N. (Tabs 31-32-33, 59, 60, 61, 94 to 97 all in Exhibit #1). I also find that Mr. Wall was involved with S.L.N. (Tab 11, Exhibit#1) and with one of many meetings with Troy Saikaley (Tab 137, Exhibit # 1). I conclude, therefore, that S.L.N. was a member of the conspiracy in that she met with Mr. Saikaley on many occasions to obtain cocaine and as a result I can use S.L.N.'s intercepted communications with other individuals to whom she was distributing the cocaine she obtained from Mr. Saikaley as admissible evidence against Mr. Saikaley.

[140] The individuals on S.L.N.'s list are:

• Justin Duplessis, calls at tabs 24, 26, 28, 35, 57, 69, 104, 115, 116, 123, and 139;

• Kourtney Derouin, call at tab 16;

• Kelsey Johnson calls at tabs 21, 34, 64, 71, 80 to 90, 107, 109, 117, 121, 122, 124, 125 and 131;

• Andrew Wall calls at tab 43, 48, 49, 50-51-52, 76 and 162; and

• Billy Joe Krieger call at tab 145.

It is a reasonable inference from the evidence and one which I draw that S.L.N.'s main activity was the selling of drugs and her calls to her customers establish that her supplies of cocaine came from Mr. Saikaley.

[141] I find that Count 16 is proven beyond a reasonable doubt against everyone mentioned except for Charbel Nassar, Lori Scott and Patty Wall, Billy Joe Krieger against whom I find no evidence of trafficking in cocaine. I find Mr. Saikaley guilty, in Count 16, of conspiracy with Mr. Wall, S.L.N., Kourtney Derouin, Kelsey Johnson and Justin Duplessis of conspiracy to traffic in cocaine.

[142] On Count 22, I find Troy Saikaley guilty beyond a reasonable doubt of conspiring to traffic in cannabis marijuana with Mr. Wall, Ms. Dingwell and Mr. Sarsfield. The evidence against Mr. Kaizer that I found implicated him in the conspiracy on Count 39 concerning cannabis resin involves the same circumstances that led to his arrest when cannabis marijuana was found in his car.

[143] During his closing address, Crown counsel was asked what evidence the Crown had on Count 22. Aside from the two pounds of marijuana and the two plates of hashish that were seized from Mr. Kaizer, there were seven bags of marijuana found during the execution of the search warrant at the apartment on November 5, 2009. These bags were found in the kitchen in the refrigerator’s freezer compartment. They were photographed by Constable Dragan (Exhibit 3, page 29). At trial they were entered as exhibits (Exhibits 68-71).

[144] Then Crown counsel referred to Tabs 393 to 398, in Volumes 6 and 7 of Exhibit #1. They contained intercepted communications that involve Mr. Wall and Mr. Sarsfield and other persons by the name of Taylor and Sarah. These communications involve obtaining marijuana. At Tab 393, Sarah inquires of Mr. Sarsfield, “did you pick yet?” and Mr. Sarsfield indicates that he was, “grabbing this afternoon when Andrew comes in.” Sarah told Mr. Sarsfield that Janice needs a quarter and Dave needs a half quarter.

[145] The expert in drugs, Corporal Gray, explained that cannabis marijuana is the flowering portion of the marijuana plant. That is called the “bud”. He stated that a bag as shown in photo 29 holds 225 grams or half a pound. For marketing, he also said that marijuana is placed in plastic Ziploc bags as the gram level and ounce, half ounce, quarter, and eight come into play. He further stated that cannabis resin is also known as hashish or hash and that it involves taking the marijuana bud and refining it so that a person does not have a whole bunch of other plant “garbage” to smoke. The female plants, in their quest to be pollinated, produce globules of resin which is loaded with THC (tetrohydrocannabinol). This is the psycho active part of the cannabis plant that is smoked to get “high”.

[146] When Sarah called Mr. Sarsfield on October 13, 2009, it was the same day that Corporal François Goyer conducted his sneak and peak operation in the apartment. Between October 13, 2009, and November 5, 2009, there are many probes that register conversations between Mr. Saikaley, Mr. Wall and Mr. Sarsfield while they were discussing marijuana. I find that during this last period of time, Mr. Wall was asking Mr. Sarsfield to give Taylor his number. At Tab 395, Mr. Sarsfield assured Sarah that she would be getting what she asked for. The same type of conversation was intercepted involving Shane and Shane’s son, Ricky.

[147] I also find beyond a reasonable doubt Troy Saikaley guilty of conspiring with Mr. Wall and Mr. Sarsfield in their dealings with Sarah, Taylor, Shane and Ricky in Count 22.

[148] I find that Charbel Nassar, Mr. Saikaley’s cousin who made an overnight visit to Mr. Saikaley, was neither in control of the substances nor was he in consent of Mr. Saikaley’s stash of drugs. I have no evidence against Patty Wall other than she was Andrew Wall’s mother. Heidi Dingwell occupied Unit 210 at 1380 Prince of Wales Drive with Mr. Wall. She consented to the preparation of the sale of cocaine by leaving her apartment every time Mr. Saikaley came to work and she was found to be at the bar during the intercepted calls. She was party to the joint enterprise and Mr. Saikaley is also guilty of conspiring with her in Count 22.

Criminal Organization Charges (Counts 12-14)

[149] In Counts 12-14, Mr. Saikaley is charged with participating in a criminal organization, committing an indictable offence for the benefit of a criminal organization and knowingly instructing the commission of an indictable offence for the benefit of a criminal organization.

[150] In my analysis, I will first set out the relevant sections of the Code dealing with criminal organization and the Supreme Court of Canada’s recent interpretation on this issue in R. v. Venneri, 2012 SCC 33, [2012] 2 S.C.R. 211. Following which, I will then analyze the evidence heard at trial; first on the conspiracy counts, followed by the counts of committing an indictable offence for the benefit of and instructing the commission of an indictable offence for a criminal organization.

[151] The Criminal organization sections of the Code are as follows:

Criminal organization

467.1 (1) The following definitions apply in this Act.

“Criminal organization” means a group, however organized, that

(b) is composed of three or more persons in or outside Canada; and

(c) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.

It does not include a group of persons that forms randomly for the immediate commission of a single offence.

Serious offence

“Serious offence” means an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation.

Facilitation

(2) For the purposes of this section and section 467.11, facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed.

Commission of offence

(3) In this section and in sections 467.11 to 467.13, committing an offence means being a party to it or counselling any person to be a party to it.

Regulations

(4) The Governor in Council may make regulations prescribing offences that are included in the definition “serious offence” in subsection (1).

Participation in activities of criminal organization (Count No. 12 on the indictment)

467.11 (1) Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this or any other Act of Parliament, knowingly, by act or omission, participates in or contributes to any activity of the criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Prosecution

(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that

(a) the criminal organization actually facilitated or committed an indictable offence;

(b) the participation or contribution of the accused actually enhanced the ability of the criminal organization to facilitate or commit an indictable offence;

(c) the accused knew the specific nature of any indictable offence that may have been facilitated or committed by the criminal organization; or

(d) the accused knew the identity of any of the persons who constitute the criminal organization.

Factors

(3) In determining whether an accused participates in or contributes to any activity of a criminal organization, the Court may consider, among other factors, whether the accused

(a) uses a name, word, symbol or other representation that identifies, or is associated with, the criminal organization;

(b) frequently associates with any of the persons who constitute the criminal organization;

(c) receives any benefit from the criminal organization; or

(d) repeatedly engages in activities at the instruction of any of the persons who constitute the criminal organization.

Commission of offence for criminal organization (Count No. 13 on the indictment)

467.12 (1) Every person who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Prosecution

(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that the accused knew the identity of any of the persons who constitute the criminal organization.

Instructing commission of offence for criminal organization (Count No. 14 on the indictment)

467.13 (1) Every person who is one of the persons who constitute a criminal organization and who knowingly instructs, directly or indirectly, any person to commit an offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, the criminal organization is guilty of an indictable offence and liable to imprisonment for life.

Prosecution

(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that

(a) an offence other than the offence under subsection was actually committed;

(b) the accused instructed a particular person to commit an offence; or

(c) the accused knew the identity of all of the persons who constitute the criminal organization.

[152] Fuerst J. in R. v. Lindsay, 2005 CanLII 24240 (ON SC), [2005] O.J. No. 2870 (Sup. Ct.), at paras. 855-862, identified eight common characteristics of criminal organizations. They are as follows:

The first characteristic is that the group is non-ideological, meaning any involvement in a political cause is for self-interest, rather than higher ideals. The group acts out of pecuniary self-interest, to advance its own economic interests, or for status, meaning to be viewed as successful, envied and perhaps feared in the culture where it exists. The Yakuza of Japan is an exception because it is very ideological, supports right wing political issues, yet it is highly territorial and controls gambling activities.

The second characteristic is that the group is hierarchical. Dr. Abadinsky requires a hierarchy of at least three permanent positions, meaning they are not dependant on a particular person holding them at any given time. Hierarchy can be bureaucratic/corporate, or patron/client. The first is a very formal structure, like police forces. The second is a less formal structure, with individuals connected by kinship, or an oath that binds them to the organization, like political parties. A criminal organization tends toward one or the other, and may combine both aspects. Outlaw motorcycle clubs are bureaucratic/corporate entities, while American crime families are patron/client in structure.

The third characteristic is limited or exclusive membership. The group is careful about who it admits to membership. It needs to exclude people who may be a threat to its security, such as the police. It also needs to exclude those who are not up to membership and can damage its reputation as an organization capable of protecting its members and its members capable of protecting the organization.

The fourth characteristic is that the organization perpetuates itself. It is worth the effort to a potential member to join, as the group will exist in the future. Most criminal organizations Dr. Abadinsky has studied have been in existence for decades. Often the strength of an organization depends on the charisma and ability of a single person. The test of the organization is whether it survives once that person is no longer available.

The fifth characteristic is that the group exhibits a willingness to use illegal violence and bribery. Legitimate organizations do not have this willingness. The only limitation on violence and bribery in a criminal organization is practical, not ethical.

The sixth characteristic is that the group demonstrates a specialization or a division of labour. Individuals assume specialized activities within the organization, and use their skills to advance the ends of the organization. In Colombian cartels, for example, responsibilities are divided for functions such as transportation and enforcement.

The seventh characteristic is that the group is monopolistic. The organization attempts to dominate a territory, an industry or both. It tries to reduce competition to increase profits. For example in gambling, if competition can be restrained, odds can be set at non-competitive rates and profits improved. Drug trafficking is more difficult because it is an easy entry business, and a lot of violent resources need to be expended to try to restrain trade, so criminal organizations often try to reach accommodations with one another.

The eighth characteristic is that the group is governed by explicit rules and regulations. Rules such as non-cooperation with law enforcement are indicative of criminal organizations. Rules may be written, or implicit and verbally transmitted. Rarely are they written, because of fear of interception of them by law enforcement. Unwritten rules may be more important than written ones. An example is the HAMC prohibition on accepting anyone as a member who had applied for a law enforcement position. This runs contrary to conventional society, where members of law enforcement are respected, not excluded. In Sonny Barger's book, the author stated that it was not good to make the "no drug burns" a written rule, because it allowed law enforcement to argue that the essence of the HAMC was drug dealing, so it no longer appears in the written rules. Barger wrote that the purpose of the rule was to say to members if you make a deal, go through with it. Dr. Abadinsky testified that in the criminal world, a reputation for violence is everything. If two parties have an equal ability to do violence one to the other, there is a balance of power and business arrangements can be made between them. But if an organization has a fearsome reputation based on its willingness to use violence, as the HAMC does in his opinion, then people may not want to do business with it out of concern about bring "ripped off". A rule prohibiting drug burns is a kind of insurance policy for anyone in the drug business. The Hells Angels are saying it is safe to do business with us.

[153] Further, Fish J. in R. v. Venneri, at paras. 35-38, explained the distinction between the criminal organization sections and the conspiracy sections of the Code and emphasized that the court must take care not to transform the shared attributes of one type of criminal organization into a checklist to be satisfied in every case:

The structured nature of targeted criminal organizations also sets them apart from criminal conspiracies: see Sharifi, at para. 39. Stripped of the features of continuity and structure, “organized crime” simply becomes all serious crime committed by a group of three or more persons for a material benefit. Parliament has already criminalized that activity through the offences of conspiracy, aiding and abetting, and the “common intention” provisions of the Code (see e.g. ss. 21 and 465(1)). The increased penalties and stigma associated with the organized crime regime distinguish it from these offences.

Working collectively rather than alone carries with it advantages to criminals who form or join organized groups of like-minded felons. Organized criminal entities thrive and expand their reach by developing specializations and dividing labour accordingly; fostering trust and loyalty within the organization; sharing customers, financial resources, and insider knowledge; and, in some circumstances, developing a reputation for violence. A group that operates with even a minimal degree of organization over a period of time is bound to capitalize on these advantages and acquire a level of sophistication and expertise that poses an enhanced threat to the surrounding community.

Counsel for Venneri suggests that the criteria outlined in R. v. Lindsay, 2005 CanLII 24240 (Ont. S.C.J.), and considered in Battista, should be accepted by this Court as a means by which to gauge whether a given group has the necessary attributes of a criminal organization (see paras. 854-62). The “common” characteristics of criminal organizations identified in Lindsay may well be “common” to highly sophisticated criminal entities, such as notorious motorcycle gangs, Columbian drug cartels, and American “crime families”.

Care must be taken, however, not to transform the shared attributes of one type of criminal organization into a “checklist” that needs to be satisfied in every case. None of these attributes are explicitly required by the Code, and a group that lacks them all may nonetheless satisfy the statutory definition of “criminal organization”.

[154] At paras. 40-41, in R. v. Venneri, Fish J. outlined the goal of the legislation and at paras. 56-57, what the Crown needs to prove in order to obtain a conviction for participation in a criminal organization:

It is preferable by far to focus on the goal of the legislation, which is to identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members. All evidence relevant to this determination must be considered in applying the definition of “criminal organization” adopted by Parliament. Groups of individuals that operate on an ad hoc basis with little or no organization cannot be said to pose the type of increased risk contemplated by the regime.

Courts must not limit the scope of the provision to the stereotypical model of organized crime -- that is, to the highly sophisticated, hierarchical and monopolistic model. Some criminal entities that do not fit the conventional paradigm of organized crime may nonetheless, on account of their cohesiveness and endurance, pose the type of heightened threat contemplated by the legislative scheme.

As mentioned earlier, an offender may commit an offence “in association with” a criminal organization of which the offender is not a member. Membership in an organization, however, remains a relevant factor in determining whether the required nexus between the offence and the organization has been made out (see Drecic, at para. 3).

The Crown must also demonstrate that an accused knowingly dealt with a criminal organization. The stigma associated with the offence requires that the accused have a subjective mens rea with respect to his or her association with the organization (see Lindsay, (2004 S.C.J.) at para. 64).

[Emphasis in original.]

[155] In Count 12, under s. 467.11 of the Code, it is alleged that Mr. Saikaley, for the purpose of enhancing the ability of a criminal organization to commit an indictable offence, contributed to the activity of a criminal organization. The Crown submitted that in this case, Mr. Saikaley contributed to the criminal activity of trafficking in cocaine. This was done by Mr. Saikaley renting apartment Unit 210-1380 Prince of Wales Drive, Ottawa, from Elizabeth Bernard for the purpose of a stash location for cocaine and marijuana. I agree that the very fact of renting it and knowing that it would assist the organization to distribute its cocaine would be an offence under section 467.11 of the Code and I make that finding.

[156] There has to be a criminal organization and Mr. Saikaley must have had knowledge of the existence of the criminal organization and the criminal organization must meet the definition contained in section 467.1(1) that I set out earlier. Mr. Saikaley, Mr. Wall and Mr. Sarsfield are a group of three persons who collectively had, as one of their main purposes, the commission of serious offences, namely: trafficking in cocaine, trafficking in marijuana and trafficking in cannabis resin. A “serious offence” means an indictable offence or any other act punishable by imprisonment for five years or more and that would include all of these offences.

[157] In Count 13, under section 467.12, the Crown contends that Mr. Saikaley committed an indictable offence in association with a criminal organization. Again, there has to be a criminal organization in existence and Mr. Saikaley had to know that it existed. The Crown alleges that Mr. Saikaley was the leader of the criminal organization and that he committed the offences of trafficking in cocaine, possession of cocaine, trafficking in cannabis resin and cannabis marijuana and possession of both these substances.

[158] In Count 14, under section 467.13, the Crown alleges that Mr. Saikaley directed other persons to commit offences in association or for the benefit of the criminal organization. In this case, probes were produced by the Crown that show Mr. Saikaley directing Mr. Wall to commit the criminal offences of trafficking in cocaine and in marijuana. Again, I must establish that a criminal organization exists and that Mr. Saikaley is a member of it.

Defence’s Position

[159] Defence counsel submitted that the Crown has failed to prove the existence of a criminal organization. The fact that a crime is committed by three or more persons acting in concert does not cause the activities of the co-actors to establish a criminal organization. The defence argued that the Crown ignores the purpose that unites Messrs Saikaley, Wall and Sarsfield, that is, to operate the bar at Rick’s Place. Moreover, defence counsel pointed out that there are few encounters involving Mr. Sarsfield. As there are limited numbers of random encounters involving Mr. Sarsfield, he is, therefore, not a member of the alleged criminal organization. Mr. Sarsfield, in the telephone call intercepts, is connected with a Mr. Taylor and Mr. Wall, but not with Mr. Saikaley.

[160] Defence counsel also argued that Mr. Saikaley has no knowledge of the activities of the other members of the group he is alleged to be associated with. He pointed out that he is the last individual of a group to be hired and, further, all the others in that group were not charged with the criminal organization offences.

Analysis and Decision (Counts 12-14)

[161] The passages attributed to Fish J. in R. v. Venneri instruct me that I need not follow a checklist to be satisfied that a criminal organization exists. I am not to use a rigid approach to my determination and I am not to look for too sophisticated of a criminal organization. I need to find that there existed a group of at least three persons; that there is some form of structure and co-ordination; some organization; and some longevity. It is not enough that there is a group of persons that come together to commit a single offence.

[162] I have already reviewed the evidence that proves Mr. Saikaley had rented Unit 210-1380 Prince of Wales Drive, Ottawa, from Ms. Bernard. I find that his purpose for renting the apartment was to stash cocaine at that location. Upon execution of the search warrant for Unit 210-1380 Prince of Wales Drive on November 5, 2009, cocaine and marijuana were found in a closet inside the apartment. I find that Mr. Saikaley knew that renting that apartment for that purpose, namely to assist the distribution of cocaine, is the commission of an offence under section 467.11 of the Criminal Code.

[163] I find that Mr. Saikaley, Mr. Wall and Mr. Sarsfield are a group of three persons who have collectively, as their main purpose, commissioned in serious offences, namely, trafficking in cocaine, trafficking in cannabis resin and cannabis marijuana. These qualify as “serious offences” in the definition of criminal organization. The offences have to consist of criminal acts punishable by five years of imprisonment or more and they do in this case.

[164] Mr. Saikaley was the leader of the organization, Mr. Wall was the middle-man shielding Mr. Saikaley from exposure from the public and the police, and Mr. Sarsfield operated the bar from where the illicit drugs were distributed. I find that this system meets the definition of “however organized” In s. 467.1(1) of the Code. Mr. Saikaley knew of this organization because he set it up. On November 4, 2009, he explained to his cousin, Charbel Nassser how he ran his business (Tab 553, Vol. 9, Exhibit #1). He explained how hashish is packaged, and that “I pack them myself and then I let them sell it but nobody knows my formula.”

[165] In determining whether there was a criminal organization in existence in the case at bar, following R. v. Terezakis, 2007 BCCA 384, 51 C.R. (6th) 165, I recognize the need to apply flexibility in applying the statutory definition of criminal organization. Mackenzie J.A. reminds me, at para. 34, that criminal organizations have “no incentive to conform to any formal structure recognized in law….” This passage from Terezakis was also quoted by Fish J. in R. v. Venneri, at para. 28. Fish J. also underlined, at para. 30, that Parliament has made it plain that “some form of structure” (emphasis in original) and degree of continuity are required to engage the organized crime provisions that are part of the exceptional regime it has established under the Code. Moreover, at para. 41, the Supreme Court in R. v. Venneri emphasizes that the scope of the provision is not limited to the stereotypical model of organized crime:

Courts must not limit the scope of the provision to the stereotypical model of organized crime -- that is, to the highly sophisticated, hierarchical and monopolistic model. Some criminal entities that do not fit the conventional paradigm of organized crime may nonetheless, on account of their cohesiveness and endurance, pose the type of heightened threat contemplated by the legislative scheme.

[166] The Supreme Court in R. v. Venneri, at para. 36, provided the following description of a criminal organization:

Working, collectively rather than alone carries with it advantages to criminals who form or join organized groups of like-minded felons. Organized criminal entities thrive and expand their reach by developing specialization and dividing labour accordingly; fostering trust and loyalty within the organization; sharing customers, financial resources, and insider knowledge; and, in some circumstances, developing a reputation for violence. A group that operates with even a minimal degree of organization over a period of time is bound to capitalize on these advantages and acquire a level of sophistication and expertise that poses an enhanced threat to the surrounding community.

[167] I find that in this case, there is a group of three persons, namely, Messrs Saikaley, Wall and Sarsfield that operated over at least 11 months of 2009 and that they had a structure that gave them an advantage. Mr. Saikaley controlled the drugs and the method of packaging that also enabled him to control the inventory. Messrs Wall and Sarsfield looked after the distribution of the illicit drugs through the bar. In this case, I have structure and I have longevity. The persons involved in this case were working together to commit offences on a repeated basis over time and for a considerable benefit to the organization, as well as for themselves.

[168] During Mr. Saikaley’s conversation with his cousin Charbel Nassar on November 4, 2009 (Tab 553, Vol. 9, Exhibit #1), he explained his relationship with Mr. Wall. He said that an Asian gang was going to kill Mr. Wall, that he stepped in and paid his debt and bought him a new Audi and was getting him to buy a house. He also said: “So I found this nice niche, that I can make nice money and not work and no stress. I mean, perfect. I’m happy you know?” I find that Mr. Saikaley was admitting that his current lifestyle could be attributed to his livelihood of selling drugs. I find that there was a criminal organization and that Mr. Saikaley knew about it because be formed it. Mr. Sarsfield was selling drugs for Mr. Wall prior to joining the organization. The selling of drugs was for the benefit of the organization (Tab 5, Vol. 8, Exhibit #1).

[169] There is a hierarchy in the organization led by Mr. Saikaley. Mr. Saikaley directed Mr. Wall to do or not to do certain things. On the many deck counts that came from the bar from Mr. Sarsfield, they were relayed to Mr. Wall, who then relayed them to Mr. Saikaley. It is a structure that started from the head (Mr. Saikaley), and continued down to the distributors on the street, such as to S.L.N. who, in turn, supplied a number of people. The cocaine was bought at the kilogram levels, packaged in large quantities of one gram decks and its distribution was tracked through the bar by Mr. Wall and Mr. Saikaley over a considerable period of time. The fact that the criminal organization existed for a considerable amount of time meets the attribute of longevity and the test set out by the Suprem Court in R. v. Venneri, of “however organized.”

[170] The findings of facts that I have made on the conspiracy counts drive the findings of fact for these criminal organizations counts.

[171] I acknowledge that there is no evidence that Mr. Saikaley’s criminal organization is monopolistic. The organization never attempted to reduce competition. There is no evidence of territoriality that would show that the accused and his group displayed a system of behaviours used by the group to “defend a set of beneficial relationships within its environment.” In R. v. Lindsay, at para. 1030, the court’s expert witness, Dr. Abadinsky, testified regarding the nature and characteristics of criminal organizations. With regard to territoriality, Dr. Abadinsky stated that a characteristic of a criminal organization is that “it is monopolistic, in that it attempts to dominate a territory, an industry or both. The objective is to reduce competition in order to increase profits from illegal activities.” Dr. Abadinsky in Lindsay also stated that a characteristic of a criminal organization is the group’s “willingness to use illegal violence” (para. 859) and that “the significance of a reputuation for a willingness to use violence is that in the criminal world, it is the only way to protect against being victimized by others. The organization’s reputation is an insurace policy that others will carry out their end of business transactions with it” (para. 863). I find that, although the group cannot be said to have been “monopolistic”, rather they exhibited a willingness to use illegal violence. Indeed, the discovery of taser guns, a Glock revolver and an Enfield revolver in this case indicate the group’s willingness of the to use violence to protect against being victimized by others and to maintain their reputation in order that those with whom they had dealings would follow through with their business transactions with the organization. Even though the element of territoriality is missing in this case, I find that, following R. v. Venneri, it does not affect my decision.

[172] I, therefore, find beyond a reasonable doubt that Mr. Saikaley committed an indictable offence in association with a criminal organization contrary to section 467.12 of the Code. I have already found under section 467.11 of the Code that a criminal organization existed, that Mr. Saikaley knew about it as he had set it up and operated it as its leader and that he was trafficking in cocaine and possessed cocaine, as well as trafficking in cannabis resin and cannabis marijuana and possessed both substances.

[173] Mr. Saikaley is also charged that as a member of a criminal organization, he directed other persons to commit an indictable offence contrary to section 467.13 of the Code. The evidence to establish this offence is the following:

• Mr. Saikaley directed Mr. Wall to distribute cocaine;

• Mr. Saikaley looked at a brown substance while engaging with mr. Wall in the apartment and asked Mr. Wall to sell it and “do [his] best” (Tab 411, Vol.7, Exhibit #1);

• Mr. Wall took a few buds of marijuana to customers to get feedback with respect to the quality of the substance;

• On October 20, 2009, while the probe revealed sounds of chopping and breaking, the sound of shaking and cutting and paper being manipulated, Mr. Wall advised Mr. Saikaley that he had to go to the bar as Mr. Sarsfield was down to 3 decks of cocaine. Mr. Saikaley then told Mr. Wall not to go and he was heard giving instructions to Mr. Wall on how to cut and fold paper that will become 1 gram decks of cocaine to be sold at the bar (Tab 463, Vol. 8, Exhibit #1);

• On October 20, 2009, Mr. Saikaley directed Mr. Wall to sell crack cocaine and to get as much as he could for it and they would work out the details afterwards (Tab 473, Vol. 8, Exhibit #1).

[174] From another probe, Mr. Saikaley is heard directing Mr. Wall to pack some marijuana bags for Mr. Kaizer who was waiting downstairs in his car (Tab 571, Vol. 9, Exhibit #1). Mr. Wall did as he was told and the RCMP surveillance team reported seeing Mr. Wall loading a green bag in Mr. Kaizer’s vehicle later the same day (Tab 555, Vol. 9, Exhibit #1). Mr. Saikaley directed Mr. Wall on how to fold papers to get the cocaine ready for sale (Tab 463, Vol. 8, Exhibit #1). Mr. Saikaley was told by Mr. Wall that one of the batches did not smell good and was told by Mr. Saikaley, “well you know what kind of people would buy it eh?... Just try and sell as much as you can (Tab 411, Vol. 7, Exhibit #1).

[175] Based on my analysis of the evidence above, I find Mr. Saikaley guilty beyond a reasonable doubt of Counts 12, 13 and 14.

Law of Possession

[176] As it is alleged that Mr. Saikaley was in unlawful possession of a number of items such as weapons, proceeds of crime and joint possession of illicit drugs, it is necessary to set out the law on possession. Section 4 of the Code defines possession, both actual possession and joint possession as follows:

4. (3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

i. has it in the actual possession or custody of another person, or

ii. has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

Section 2 defines “property” as including:

(a) real and personal property of every description and deeds and instruments relating to or evidencing the title or right to property, or giving a right to recover or receive money or goods,

(b) property originally in the possession or under the control of any person, and any property into or for which it has been converted or exchanged and anything acquired at any time by the conversion or exchange, and

(c) any postal card, postage stamp or other stamp issued or prepared for issue under the authority of Parliament or the legislature of a province for the payment to the Crown or a corporate body of any fee, rate or duty, whether or not it is in the possession of the Crown or of any person.

[177] The Crown alleges that sections 4(3)(a), (3)(a)(ii) and 3(6) are in play. Halsbury’s Law of Canada – Criminal Offences and Defences (2012 Reissue), HCR-374, breaks down the components for possession offences as follow:

A person has anything in possession when he has it in his personal possession or knowingly:

• has it in the actual possession or custody of another person, or

• has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person.

A person has anything in “possession” when he has it:

• in his personal possession,

• knowingly in the actual possession or custody of another person,

• knowingly in any place for the use or benefit of himself or another.

To constitute actual “possession” as regards the criminal law there must be manual handling of the thing co-existent with knowledge of what the thing is and some act of control over the thing (outside of public duty) (R. v. Hess (No. 1), 1948 CanLII 349 (BC CA), [1948] B.C.J. No. 65, 94 C.C.C. 48 (B.C.C.A.)). Actual physical possession, even though it is only momentary, if accompanied by the requisite knowledge and intent, is sufficient to constitute possession (R. v. Guiney, 1961 CanLII 493 (BC CA), [1961] B.C.J. No. 89, 130 C.C.C. 407 (B.C.C.A.)).

Knowledge: Although “knowingly” is absent from the actual personal possession portion of this definition, it is implicitly required. There is no “possession” without knowledge of the nature of the thing possessed, which must co-exist along with the element of control of the contraband (R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.J. No. 32, 118 C.C.C. 129 (S.C.C.). Direct evidence of the accused’s knowledge of the presence of contraband is not essential, and may be established by circumstantial evidence (R. v. Sparling,[1988] O.J. No. 107 (Ont. H.C.J.), aff’d on this point [1988] O. J. No. 1877 (Ont. C.A.)).

Control: Possession also requires “an intent to exercise control” over the thing possessed (R. v. Christie, 1978 CanLII 2535 (NB CA), [1978] N.B.J. No. 68, 41 C.C.C. (2d) 282 (N.B.C.A.)). The requisite “control” can be found where the contraband was knowingly stored in the accused’s room by her boyfriend, in the accused’s right to give or refuse her consent and, thus, control what things were stored in her room (R. v. Chambers, 1985 CanLII 169 (ON CA), [1985] O.J. No. 143, 20 C.C.C. (3d) 440 (Ont. C.A.)).

Constructive possession and consent: Constructive possession requires three basic elements: knowledge, consent and control (R. v. Fraser, 1985 CanLII 5782 (NS CA), [1985] N.S.J. No. 379, 70 N.S.R. (2d) 82 (N.S.C.A.); R. v. Kocsis, 2001 CanLII 3593 (ON CA), [2001] O.J. No. 2439, 157 C.C.C. (3d) 564 (Ont. C.A.)). Constructive possession requires knowledge of the possession by another plus some measure of control or right of control over the thing, along with active concurrence in that other's possession. Passive acquiescence or mere indifference is not sufficient (R. v. Caldwell, 1972 ALTASCAD 33, [1972] A.J. No. 52, 7 C.C.C. (2d) 285 (Alta. C.A.); R. v. Colvin, 1942 CanLII 245 (BC CA), [1942] B.C.J. No. 26, 78 C.C.C. 282 (B.C.C.A.); R. v. Piaskoski, 1979 CanLII 2920 (ON CA), [1979] O.J. 1183, 52 C.C.C. (2d) 316 (Ont. C.A.)). Deemed or constructive possession under para. (b), because it requires “consent”, implicitly requires an element of control (since consent implies the ability to give or withhold permission). Thus, a passenger in a stolen car was acquitted of possession of the vehicle for lack of evidence of a measure of control on his part (R. v. Terrence, 1983 CanLII 51 (SCC), [1983] S.C.J. No. 28, 4 C.C.C. (3d) 193 (S.C.C.)). This extended meaning of “possession” applies in all criminal proceedings and not simply where “possession” is an element of the offence charged. It applies where the issue is the accused's “possession” of an item as circumstantial evidence of guilt (R. v. Lovis, 1974 CanLII 170 (SCC), [1974] S.C.J. No. 97, 17 C.C.C. (2d) 481 (S.C.C.)).

Party to an offence: Liability as a party to an offence¹² applies to offences of “possession” (See R. v. Zanini, 1967 CanLII 16 (SCC), [1967] S.C.J. No. 65, [1967] S.C.R. 715 (S.C.C.); R. v. Terrence, 1983 CanLII 51 (SCC), [1983] S.C.J. No. 28, 4 C.C.C. (3d) 193 (S.C.C.); R. v. Piaskoski, 1979 CanLII 2920 (ON CA), [1979] O.J. 1183, 52 C.C.C. (2d) 316 (Ont. C.A.)).

Proving possession: The significance of the accused's fingerprint on an item to prove possession is a question of fact dependent upon all the circumstances (R. v. Lepage, 1995 CanLII 123 (SCC), [1995] S.C.J. No. 15, [1995] 1 S.C.R. 654 (S.C.C.); R. v. Breau, 1987 CanLII 7639 (NB CA), [1987] N.B.J. No. 15, 33 C.C.C. (3d) 354 (N.B.C.A.); R. v. Chambers, 2004 BCSC 1139, [2004] B.C.J. No. 1789 (B.C.S.C.); R. v. Bacchus, [2000] O.J. No. 1450 (Ont. S.C.J.); R. v. Bradley, [1999] B.C.J. No. 1291 (B.C.S.C.); R. v. Yonkman, 2005 BCCA 561, [2005] B.C.J. No. 2488 (B.C.C.A.);