ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20140528

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JASON BURKE

John S. Dick and M. J. MacDonald, for the Crown

Edward Royle, for the Defendant, Mr. Burke

HEARD: March 10, 11, 12, 17 and 25, 2014

TROTTER J.

INTRODUCTION AND BACKGROUND

[1] Mr. Burke was arraigned on an eight-count indictment alleging the following offences:

Count #1 Conspiracy to traffic in marijuana

Count #2 Trafficking in a controlled substance

Count #3 Conspiracy to commit robbery

Count #4 Offer to transfer a firearm (April 16, 2007)

Count #5 Offer to transfer ammunition (May 19, 2007)

Count #6 Offer to transfer a firearm (June 4, 2007)

Count #7 Possession of a firearm without a licence

Count #8 Possession of a firearm with readily accessible ammunition

Mr. Burke entered a plea of guilty to Count #1. The evidence easily establishes guilt on this count. Count #2 was withdrawn. The case proceeded to trial on the remaining six counts.

[2] These offences are easily grouped. Count #3 involves a conspiracy to rob drug dealers. Counts #4, #5 and #6 relate to allegations that Mr. Burke was involved in renting out firearms and ammunition. Counts #7 and #8 concern a firearm that was seized at an address of someone known to Mr. Burke.

[3] The case is based almost exclusively on intercepted communications, recorded pursuant to a lawful wiretap authorization between March 14, 2007 and July 6, 2007. My colleague, Trafford J., made a number of pre-trial rulings. In particular, in his Ruling No. 2 – Application for Severance (2012 ONSC 7112) (“the Severance Ruling”), Trafford J. helpfully summarized the essence of the case and laid out the parameters for the admissibility of some of the evidence. In particular, at p. 14, Trafford J. said that “[a]ll of the 79 intercepted calls are not relevant and otherwise admissible on all of the elements of all of the alleged offences.” By the time of trial, the Crown relied on only 77 calls.

[4] Trafford J. specified that the calls relating to the alleged conspiracies to traffic in drugs and to commit robberies are admissible on all of those counts. However, Trafford J. specified that those calls are not admissible in relation to what are now Counts #4 to 8 on the indictment, the firearms offences. (p. 15). Importantly, the reverse does not follow. As Trafford J. held on p. 16:

The calls that are relevant and otherwise admissible on each of those counts [the firearms and ammunition counts] are relevant and otherwise admissible to the determination of the mens rea elements of the alleged conspiracy to rob and the alleged conspiracy to traffic, and to the actus reus and mens rea of the alleged trafficking. A person, such as the defendant, who has access to, or possession of, a firearm or ammunition, is more likely to have an intention to put any such agreement to rob or to traffic into effect than a person who does not have any such access or possession…Similarly, a person who has such access to, or possession of, a firearm or ammunition, is more likely to traffic in illegal drugs in a case like this one.

[5] My colleague made his Ruling based on the assumption that it would be a judge and jury trial. With these limitations on admissibility, along with proper, cautionary instructions (concerning character evidence and similar act considerations), Trafford J. held that Mr. Burke could receive a fair trial if all counts were tried at the same time. Since that time, Mr. Burke re-elected to be tried by judge alone.

[6] In addition to the intercepted communications, an Agreed Statement of Facts (ASF) was entered into and filed. Included in this document are the names and aliases of various individuals who are part of the intercepted communications. Moreover, the ASF includes a glossary of coded language or slang terms that appear in many of the calls. This is an important feature of this case. Many of the recorded conversations involved coded and guarded language by the participants. Moreover, Mr. Burke, in particular, used a good deal of patois language that required interpretation.

THE MAIN PLAYERS

[7] It is helpful to start by identifying the main players who appear from time to time in the intercepted conversations. In addition to Jason Burke, the following individuals appear frequently during the intercepted conversations: Steven Daley, Omar Burke (Jason Burke’s brother), Dwayne Gayle, Devon Dinall and “Carlene.” Also of significance, but only in relation to Counts #7 and #8, is Alicia (“Lisa”) Persaud (sometimes referred to in these proceedings as Jason Burke’s sister-in-law). Other involved individuals are identified in context.

CONSPIRACY TO COMMIT ROBBERY (Count #3)

[8] The theory of the Crown on this count is set out in its written submissions in the following paragraph:

The essence of the robbery calls is that Jason Burke and Steven Daley agreed to rob an unidentified drug dealer, with the assistance of Devon Dinall; and to rob a different unidentified drug dealer, or dealers, with the assistance of Dwayne Gayle. Both Dinall and Gayle provided Burke and Daley with information that identified the targeted dealers, as well as the circumstances of the targeted dealers, so that Steven Daley could rob them of their drugs and money without being apprehended, or as important, without retaliation from the victim.

[9] The evidence is comprised of 22 calls. Mr. Burke was a party to 18 of these calls, many (11) in conversation with Steven Daley. The calls were made between March 23, 2007 and June 2, 2007, and involved discussions of the availability of guns, the identification of persons who may be robbed (including their locations), problems associated with the possible robberies, making a firearm available for the robberies, lamenting the opportunity to rob someone who had been arrested by the Toronto Police Service (TPS), and which apparently involved a sizeable seizure of cash.

[10] I note that the Crown alleges two conspiracies in this count. Referring to a different group of calls, it submitted that Mr. Burke “is responsible for trying to get Dinall to gather up the information needed for a robbery that Daley and Burke must have decided to commit at some time prior to March 28, 2007, when the calls began.” The target is a drug dealer who was never identified.

[11] The Crown submits that the telephone calls prove that the two men reached an agreement to rob two different drug dealers. The position of the defence is that, while it might appear that Mr. Burke was involved in discussions about robbery, there was never any agreement or intention to go ahead with either robbery: see R. v. Dery (2006), 2006 SCC 53, 213 C.C.C. (3d) 289 (S.C.C.).

[12] Broken down into its requisite fault requirements, the actus reus of a conspiracy under s. 465 of the Criminal Code is an agreement to commit a criminal offence: see Douglas (1991), 1991 81 (SCC), 63 C.C.C. (3d) 29 (S.C.C.) and U.S.A. v. Dynar (1997), 1997 359 (SCC), 115 C.C.C. (3d) 481 (S.C.C.). Of course, it is not necessary that any acts be done in furtherance of the agreement (see R. v. Cotroni (1979), 1979 38 (SCC), 45 C.C.C. (2d) 1 (S.C.C.)), although such acts may be evidence of an agreement (see R. v. J.F. (2013), 2013 SCC 12, 293 C.C.C. (3d) 377 (S.C.C.), at p. 390 and R. v. Alexander (2005), 2005 32566 (ON CA), 206 C.C.C. (3d) 233 (Ont. C.A.), at pp. 246-247). Similarly, overt acts aimed at the commission of a substantive offence, without more, may merely be evidence of aiding and abetting (if the offence is actually committed and charged).

[13] The mens rea for conspiracy was discussed more than half a Century ago in R. v. O’Brien (1954), 1954 42 (SCC), 110 C.C.C. 1 (S.C.C.), in which Tachereau J. said, at p. 4:

Although it is not necessary that there should be an overt act in furtherance of the conspiracy, to complete the crime, I have no doubt that there must exist an intention to put the common design into effect…The intention cannot be anything else but the will to attain the object of the agreement.

More recently, in Dery, the accused were charged with conspiring to commit theft and other offences. The trial judge found that the acts of the accused fell short of an actual agreement. Instead, he convicted them of attempting to conspire to commit the substantive offences. The convictions were upheld in the Quebec Court of Appeal.

[14] The Supreme Court of Canada allowed the appeal, holding that Canadian law does not recognize the offence of attempting to conspire. In the course of his reasons for the unanimous Court, Fish J. said at p. 298: “It is thus well established in Canada that there must be actual agreement for a conspiracy to be formed. And actual agreement requires genuine intention.”

[15] I also refer to the following passages from Justice Fish’s judgment, which are helpful in resolving the main issue on these counts (at pp. 298 and 302):

The appeal turns entirely on whether criminal liability attaches to fruitless discussions of a substantive crime that is never committed, nor even attempted, by any of the parties to the discussion. I am satisfied that it does not.

Finally, though Mr. Dery discussed a crime hoping eventually to commit it with others, neither he nor they committed, or even agreed to commit, the crimes they had discussed. The criminal law does not punish bad thoughts of this sort that were abandoned before an agreement was reached, or an attempt made, to act upon them. [emphasis added]

[16] In oral argument, Mr. Royle pointed to the fact that, because his client is legally blind, he could not be part of the conspiracy because he was incapable of carrying out acts in furtherance of the robbery(ies). I disagree. In J.F., Moldaver J. said at p. 394:

Furthermore, it is not necessary that all members of a conspiracy play, or intend to play, equal roles in the ultimate commission of the unlawful object. Indeed, members in a conspiracy need not personally commit, or intend to commit, the offence which each has agreed should be committed: R. v. Genser (1986), 1986 4942 (MB CA), 39 Man. R. (2d) 203 (C.A.), aff'd 1987 5 (SCC), [1987] 2 S.C.R. 685. Any degree of assistance in the furtherance of the unlawful object can lead to a finding of membership as long as agreement to a common plan can be inferred and the requisite mental state has been established. [emphasis added]

Mr. Burke could do many things in furtherance of the conspiracy without actually being present on scene, physically assisting in the robberies that were discussed.

[17] Mr. Royle’s more fundamental point is that the intercepts demonstrate some level of participation in a scheme to rob, but what is lacking is evidence that an agreement to rob was formed between Mr. Burke and others. Without proof of an agreement, Mr. Burke’s acts are merely indicative of being a party under s. 21(1) to the substantive offence of robbery. This is not the equivalent of a conspiracy. Moreover, Mr. Burke is not charged with the substantive offence of robbery.

[18] I have no doubt that Mr. Burke was engaged in conversations with Mr. Daley (and others) about committing robberies. I also accept that they were talking about robbing other drug dealers. They were relying upon Dinall and Gayle for information relating to both missions. However, despite the thorough interpretive analysis undertaken by Mr. Dick and Mr. MacDonald for the Crown, I am not convinced that it has been proved to the requisite standard that an agreement in place between Mr. Burke and Mr. Daley. The intercepted communications, as a whole, are equally consistent with Mr. Burke’s liability as a party liability under s. 21(1), liability for uncharged offences that, as far as anyone knows, were never committed.

[19] The Crown points to a call between Daley and Burke on April 23, 2007 (Call 63), during which, after some discussion, Daley said he was “definitely interested” in working with Gayle. The Crown argues that, by May 2, 2007 (Call 60): “Although it is not captured directly by any intercept it is clear that throughout the calls Daley has moved on from being ‘definitely interested’ in the robbery plan to a full commitment.” Therein lies the problem – a good deal of what is alleged in this case is never captured in any intercept, or at least not clearly. The evidence does not rise above the level of “fruitless discussions” (Dery), falling short of liability on the basis of conspiracy. The discussions about committing robberies are just that – discussions that never go anywhere in the end. If I am wrong and an agreement had been reached, the evidence falls short of supporting the finding, to the requisite standard, that there was an intention to put “the common design into effect” (to use the language from O’Brien).

[20] Mr. Burke will be found not guilty on this count.

(Decision continues exactly as in the original judgment.)

TROTTER J.

Released: May 28, 2014