R v Tsekouras, 2015 ONSC 1470

CITATION: R v Tsekouras, 2015 ONSC 1470

COURT FILE NO.: CR-12-0100

DATE: 2015-03-05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

Claude Richer, Esq. and Kristen Mohr, Esqe. for the Crown

• and -

John Tsekouras,

Joseph Wilkinson, Esq., for the Accused

Accused

HEARD: April: 7,8,9,10,

14,16,17,23,24,28,29 and 30; May:12,13, 14,15 and 16; June:23,24,25 and 26;

November 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 26, 27 and 28; December 1, 2, 3, 4, 5, 10, 11 and12, 2014; January 6, 7, 8, 9, 28, 29 and 30; February: 17, 18, 19 and 20, 2015;

November 10, 2014 & January 27, 2015

all dates at Thunder Bay, Ontario

Mr. Justice J. deP. Wright

REASONS

OFFENCES CHARGED

[1] The accused is charged with:

1. two counts of possession for the purpose of trafficking, i.e. One re. Cocaine and one re-marijuana [Counts 5 and 7]

2. Two counts of trafficking, one re-cocaine and one re marijuana [Counts 2 and 3]

3. four counts of conspiracy: one to traffic in cocaine [Count 1], one to traffic in marijuana [Count 4], one to possess for the purpose of trafficking in cocaine [Count 6] and one to possess for the purpose of trafficking marijuana [Count 8].

4. All of these offenses are alleged to have occurred between the 12 and 16 June, 2011.

CHRONOLOGY OF TRIAL PROCEEDINGS

[2] These proceedings began on April 7, 2014. Judgment is being delivered on March 5, 2015. At the beginning Counsel agreed that discrete issues should be disposed of one at a time.

[3] The threshold issue: did the accused have a reasonable expectation of privacy? was argued April 7, 8, 9 and 10. Judgment was delivered on April 16, 2014. I held that the accused had a reasonable expectation of privacy with respect to the information contained on BlackBerry device number … 44505 and that this expectation was not lost by throwing the device on the ground at the time of detention.

[4] A motion to suppress the evidence found on the said telephone as a result of a breach of the Charter followed. It was argued that information taken from the telephone was found as a result of a warrantless search. In addition to this, it was argued that the provisions of the criminal code section 489.1 and 490 regarding returns to a justice of the peace following a search and seizure had not been complied with thereby rendering the search of the phone unreasonable. These issues were argued April 14, 16, 17, 23, 24, 28, 29, 30 May: 12, 13, 14, 15, 16, June 23, 24, 25, 26. Judgment was delivered on October 20. I held that the phone was unlawfully retained: a Charter breach, the phone was unlawfully searched: a Charter breach and the data on the phone was unlawfully seized: a Charter breach but that relief under section 24 (2) of the Charter should not be granted.

[5] The Crown moved that the court accept into evidence a plea of guilty and a statement of facts supporting this plea given to the court on December 5, 2012 by one Muzzi (Exhibit 11) and a statement to the police on December 20 2011 by one Sal Larizza, since deceased, (Exhibit 1.) This issue was argued November 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 26, 27, 28; December 1, 2, 3, 4, 5, 10, 11 and 12. For reasons delivered December 23, 2014 I accepted into evidence the fact that Muzzi pleaded guilty and confirmed certain facts (as opposed to receiving the facts confirmed as proof). The fact of the plea and acceptance of supporting facts could be used on the trial when considering the collateral issue of the identification of the cell phone communicators other than the accused. The Larizza statement could be used by the trier of fact after considering what, if any, ultimate reliability to ascribe to it. The Larizza statement of June 20, 2011 (ex 4) was received as a prior inconsistent statement but not as proof of the facts contained therein. I subsequently concluded that the Dec 5 2012 statement of Larizza (Ex 1) was reliable notwithstanding his earlier statement Ex 4.

[6] A voir dire was conducted to determine the threshold admissibility of hearsay comments of an alleged co-conspirator contained within a hearsay statement given by one Larizza (ex 1). The statement itself (ex 1) had been held to meet the threshold requirements of necessity and reliability. This was argued January 29 and 30. Judgment was delivered from the bench January 30. [see endorsement] I held that the "hearsay within the hearsay", specifically the comments by Muzzi relayed to the police by Larizza could be received as proof of the facts contained therein. As the final argument unfolded it appeared to me that the importance of Muzzi's comments, especially with respect to the fact that the contraband would be removed the next morning, was important not because the comment may or may not have been true but because of the fact that the comment was made at all.

[7] The actual trial and argument occupied January 6, 7, 8, 9, 28, February 17, 18, 19 and 20, 2015. The accused was remanded to March 5, 2015 for judgment and sentence if necessary.

[8] Because of the strictures of time I have not gone into detail in this analysis. At a case management conference held September 11, 2013 counsel sought and were given an allocation of 19 sitting days for this case commencing April 7, 2014. To date the case has occupied 53 sitting days. In addition at least 4 more days have been lost as a result of the unavailability of counsel because of various misadventures. During the proceedings I have been called upon to deliver reasons for judgment in 4 interlocutory proceedings. These have resulted in a total of 48 pages of reserved decisions. Because my tenure as a judge ceases on March 12, 2015 I have been left with 8 sitting days to deliver the final judgment.

NATURE OF THE CASE

[9] The case is based primarily upon circumstantial evidence. The case is based upon:

1. The text messages sent and received by BlackBerry # 353906038744505 (Exhibit 8 A)

2. Statement of Sal Larizza to the police December 20 2011 (Exhibit 4)

3. The fact of plea and facts admitted on plea by Muzzi (Exhibit 11)

4. The “18 Box” discovered in Sal Larizza's garage 16th of June 2011 containing 18 1 pound packages of marijuana and 1 kg of cocaine (Exhibit 38)

5. admissions by counsel (Exhibit 37)

6. Statement of agreed facts (Exhibit 38)

7. Evidence of police officers especially: Constable Rybak, Daniel Embury, Cpl. Miller.

8. Because many conclusions are based upon inferences from the evidence, I have kept in mind that the inference must not only be consistent with guilt but inconsistent with any other rational explanation.

DETERMINATION OF BASIC FACTS

[10] The police were presented with a Blackberry cell-phone ….44505 that had been seized from the accused. Their objective was to read the information embedded in that cellphone. The BlackBerry has a reputation for being a very secure means of communication. There were three levels of security. Entry was protected by a password, the device was protected by encryption generally and e-mails processed by this particular device were protected by PGP, a form of e-mail encryption provided as an “add-on” by a third party after-market supplier. This encryption was previously thought to be undefeatable. The RCMP technological laboratory destroyed this illusion and extracted from this phone 406 e-mails, 25 address book entries and other information all of which had been protected. These materials are collected in Exhibit 8.

[11] A superficial examination of the e-mail messages might lead one to question whether the assault upon the encryption had truly been successful. Some of the messages appear to be mixed up.. The evidence before me is that the report Ex 8A is an accurate image of what was sent and what was received. Errors in spelling, grammar, etc. reflect what was inputted and what was received, and are not a function of disencryption. I am assured, and I accept, that breaking the encryption is an all-or-nothing process. If unsuccessful nothing would be readable. If successful one obtains a true image of the original.

[12] When I say that I “accept” an alleged fact or that I am “satisfied” I mean that I have accepted that fact beyond a reasonable doubt unless I have expressly applied a lesser standard of proof to the proof of that fact.

[13] Once having broken the encryption and obtained the original message it then became necessary to translate the message from "street language", the language of Ex 8A, to "plain English". Constable Rybak was tendered as an interpreter qualified to translate these messages.

IDENTIFICATION OF NICKNAMES

[14] To complicate matters further the sender and receiver of each of these messages was identified by a "nickname". The prosecution proceeded on the basis that “Sega Time” and “Pops” denoted the accused, Tsekouras, that “Surf Dawg” and “Daft Punk” denoted Ritchie and that“7710” ,“Scraps”, “Scrapper”, and “the ape” denoted Muzzi.

[15] I accept the Crown’s submissions in this regard.

[16] We have at least three sources of nicknames: the name assigned by this phone to describe the sender of messages from this phone, [“e.g. Sega Time”], the names used by other phones to describe the sender of messages from the other phones to this phone [e.g. Surf Dawg], and the nicknames used by those communicating amongst themselves e.g. “scraps”, “scrapper”, “the ape”.

[17] The evidence connecting the nicknames with real people comes from two sources: a comparison of messages related to the nick name with independent observations of what was happening “on the street” and other independent evidence such as Ritchie’s credit card. Without reciting all of the evidence on the subject I simply note examples such as the following. While these examples may not be conclusive in themselves, I am satisfied that taken with the rest of the evidence the Crown has made its point. See a summary at Ex E-1, E-2, E-3. Ex E is not evidence, simply a guide to some of the evidence.

[18] “Daft Punk” and “Surf Dawg” is Keith Ritchie: e.g. in message #396 Sega Time asked Daft Punk “Send me ur credit card number right now with expiry date.” Surf Dawg replied “5127860004716431 ex 08-12”. Subsequently a search of Ritchie’s home disclosed credit card 5127860004716431 ex 08-12 signed by Keith Ritchie which was located by Ritchie’s bed with his driver’s licence.

[19] “Sega Time” is the accused, John Tsekouras: the phone in question was seized from Tsekouras. The timing of the most recent messages shows that the phone had been used frequently in the period immediately before its seizure from the accused. While there is always the possibility that someone other than the accused used that phone there is no evidence that this in fact occurred. The fact that the phone and its encryption ability could only be utilized with the use of at least two distinct passwords militates against this suggestion. What value is an ultra-secure phone if one hands out the access keys to someone else? Again, while this is not conclusive, I consider it conclusive when combined with the other evidence referred to in Ex E-2. e.g. “Sega Time” was a person who, amongst other things, had a new house, who was under surveillance by the police, who had more than one house, whose homes were being raided, but no one was there at 9:32, who was building a new house which could accommodate cars parked behind it, and had a side road near the residence, whose sister's residence was being searched, who drove by a school and met another person at a specified time etc. Tsekouras was a person who not only had possession of the phone that used the nick-name “Sega Time” on messages outgoing from the phone but who met the above criteria and was the only person who met some of the criteria. (Again I emphasize that I have not attempted to enumerate all of the evidence on the point).

[20] “7710”, “Scraps”, “Scrapper”, “the ape” denotes Muzzi. The phone messages corresponded with his activities in court and out of court. His admissions on plea amd other evidence lead to this conclusion.

WAS THERE A CRIME AND, IF SO, DID THE ACCUSED TAKE PART IN IT?

[21] Having identified the parties to the exchanges and having interpreted what the exchanges denoted in plain English, it is then necessary to determine whether the language as used by the persons involved is proof of a crime being committed and if so, whether the accused participation in that crime.

[22] Four types of crimes are alleged:

1. trafficking (2 cocaine, 3 marihuana)

2. possession for the purpose of trafficking, (5 Cocaine, 7 Marihuana))

3. conspiracy to traffic (1 Cocaine, 4 Marihuana)

4. conspiracy to possess for the purpose of trafficking (6 Cocaine, 8 Marihuana)

[23] Charges are laid with respect to marijuana and cocaine for total of eight counts.

ELEMENTS OF THE OFFENCES

Trafficking:

[24] One traffics in a substance when one sells (offers for sale, exposes for sale, has in his possession for sale and distribution,) administers, gives, transfers, transports, sends or delivers the substance or offers to do any of these things. (Controlled Drugs and Substances Act, section 2)

Possession

[25] One has possession of a substance when:

a) (actual possession) he has it in his personal possession, or (constructive possession) he 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; 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. (CDSA s. 2, Criminal Code s. 4(3))

Conspiracy

[26] Conspiracy is committed when there is an agreement to carry out an unlawful act.

[27] The gist of the crime of conspiracy is the agreement. The actus reus of the offense is the fact of the agreement.

[28] The important inquiry is not about the acts done in pursuit of the agreement but whether there was, in fact, a common agreement in the first place to which the acts are referable and to which the alleged conspirators were privy. The focus of the inquiry is on what was agreed, not on what was done. R v. Jeffrey Root 2008 ONCA 869, ¶67.

[29] In a simple buy/sell drugs agreement the vendor may be guilty of trafficking but the purchaser may not. In such a case the transaction as framed may not be illegal and a conspiracy to traffic may not arise.

[30] But if the deal is consummated and the drugs received by the accused under circumstances from which it could be inferred that the accused intended to pass on the drugs to someone else then the sale constitutes trafficking by the purchaser. (Sokoloski v. R., 1977 CanLII 17 (SCC), [1977] 2 S.C.R. 523 @ 534-535)

[31] Because of the commonality of intention in a conspiracy case the hearsay statements of a co-conspirator may be received in evidence as proof the facts contained therein. In this case the principle applies to the content of e-mails received by Sega time.

[32] The Crown argues that there are several clusters of activity which resulted in offenses being committed:

1. The sale by Penguin and transport of 2 kg of cocaine to the accused with the assistance of Ritchie on or about 14 June 2011,

2. The transport and possession with the assistance of Muzzi of 18 pounds of marijuana and 1 kg of cocaine found in the Larizza garage on 16 June 2011.

THE PENGUIN SALE

[33] Having reviewed all of the evidence I am satisfied that I may infer that the following transpired:

1. On June 14, 2011 Tsekouras notified Penguin that Tsekouras was forwarding money to Penguin for drugs. Penguin asked for the quantity required. Tsekouras answered that he wanted 2 kg of cocaine. (ex 8A; #365) [the following is not a literal translation of the “street language” messages but what I accept as the gist of those messages]

2. The terms were delivery upon receipt of the cash by Penguin ( #286)

3. Penguin then reminded Tsekouras that he owed Penguin $1,000 and that “scrapper” [Muzzi] owed Penguin $4,000. (Message #365)

4. Tsekouras notified Muzzi (inter alia "7710" and "scrapper") that Tsekouras was sending Penguin the $4,000 on behalf of Muzzi. (# 350)

5. Penguin advised Tsekouras he had possession of the cocaine and would ship it when the money arrived (#254, 238, )

6. Tsekouras told Penguin to make sure that he sent the drugs "tomorrow" (June 15)

7. Tsekouras noted that there was an Air Canada strike and a postal strike. (#288)

8. Repeatedly Penguin asked Tsekouras if the cash had gone out or asked for the tracking information on the parcel sent so he could keep track of the location of the cash. ( #289, #285, #239, #224, #202)

9. Penguin reported that he had tested the merchandise and one had come in at 83% but he was unable to cook the other right. (#242)

10. Tsekouras promised to send the tracking number the next morning (June 15) (# 238)

11. Tsekouras made arrangements with Ritchie ("Daft punk") who went to UPS and shipped the cash to Penguin using a special container kept for the purpose.

12. Penguin knew that the sending of cash had been arranged by Tsekouras with someone else (Ritchie). Penguin told Tsekouras to tell Richie to call. (#210): Penguin told Tsekouras to inform [Ritchie] to use a less memorable, smaller, case for shipping. (159);

13. Tsekouras asked Ritchie to check on the progress of the cash (#219)

14. Unfortunately Ritchie did not obtain a tracking number initially. At Tsekouras’ request Ritchie arranged to obtain a tracking number after the fact. (#222, 221,182)

15. This information was reported to Penguin (#218)

16. Penguin then reported that the merchandise has been shipped out and should arrive during business hours. (#130)

17. Penguin provided Tsekouras with the tracking number for the parcel containing the drugs being 1129334 – 3+4+4 – 2.(#128)

DID THE MERCHANDISE CONSIST OF COCAINE?

[34] I am satisfied that the subject matter of this agreement was cocaine for the following reasons:

1. Penguin describes the merchandise as "units" a common expression in the cocaine trade. (#254)

2. the material was being dealt with in kilo lots, again a common indicia of cocaine.

3. Penguin tested the merchandise and one tested at 83% the other couldn't be cooked right. This describes the testing of cocaine. (#242)

4. The merchandise bore "stamps" in the "Batman" style. A typical indicia of cocaine from a particular supplier. (#242)

5. The merchandise was described as having a nice "bling”, again a common description of cocaine. (#238)

WAS TSEKOURAS GUILTY OF CONSPIRING WITH PENGUIN TO TRAFFIC IN COCAINE (COUNT 1) ON THESE FACTS?

[35] On these facts Tsekouras was not guilty of conspiracy with Penguin to traffic cocaine. The purchaser in a simple agreement of purchase and sale cannot be found guilty of trafficking or of conspiracy to traffic. There is insufficient evidence to justify a finding that Penguin was aware that the purchase of the cocaine by Tsekouras was for the purpose of reselling that cocaine to a third person thereby converting the bare agreement for sale into a conspiracy between Penguin and Tsekouras. (Sokoloski v. R, 1977 CanLII 17 (SCC), [1977] 2 S.C.R. 523)

[36] On the other hand, the relationship between Tsekouras and Ritchie was such that Ritchie's assistance in the acquisition of the cocaine constituted a conspiracy to which Tsekouras and Ritchie were parties. The relationship between the two men, the substantial amount of cocaine involved, the fact that Ritchie had apparently been involved using the same box for the conveying of money in the past leads to the inference that the cocaine would be trafficked. This justifies a finding that Tsekouras and Ritchie conspired to commit the offense of trafficking in cocaine (Count one) and that Tsekouras and Ritchie were parties to the offense of trafficking (Count two).

[37] While one might argue the precise moment when Tsekouras took constructive possession of the cocaine, there can be no doubt that when the money was paid, the cocaine shipped out to him and the tracking details provided Tsekouras was in possession. (R v. Bonassin 2008 NLCA 40; 236 C.C.C. (3d) 562 ¶ 24-29, NfdL and Lab. CA.) Tsekouras had possession of cocaine (Count six) and possession for the purpose of trafficking (Count five)

[38] With respect to the purchase of cocaine from Penguin, having considered all of the evidence, I am satisfied that the accused is guilty of:

1. Conspiracy with Ritchie to traffick in cocaine (count 1)

2. Trafficking in Cocaine with Ritchie (count 2)

3. Possession of cocaine for the purpose of trafficking (count 5) and

4. Conspiracy with Ritchie to possess cocaine for the purpose of trafficking (count 6)

But that the accused cannot be found guilty of trafficking in the two kilos of cocaine by reason of his purchase from Penguin nor of conspiracy with Penguin to traffick that cocaine.

THE “18 BOX”

[39] The Crown also argues that the activities surrounding the carton with 18 - 1 pound packs of marijuana and a kilo of cocaine gave rise to offenses.

[40] During the search of Larizza’s property on June 16, 2011 a cardboard box was found which contained 18 - 1 pound packages of marijuana. It also contained 1 kg of cocaine at the time it was turned over to the exhibit officer. The defense questioned when the cocaine was added to the box: at the time of the search or at some earlier time? Unfortunately, the first officer to open that box was not called as a witness. In the context of the case this was understandable.

[41] The issue was raised as to whether the accused was aware of the presence of that cocaine in the box, knowledge being an essential element.

[42] Having considered all of the evidence I am satisfied that:

1. That Tsekouras and Muzzi had a close working relationship as evidenced by the fact that Tsekouras paid off a $4000 debt owing by Muzzi to Penguin, the cocaine supplier,

2. That Tsekouras initially had control of the box which I am satisfied contained at least the marijuana for the purpose of trafficking,

3. That Tsekouras had an agreement with Muzzi to foster that trafficking,

4. that it was to Tsekouras that Muzzi turned requesting possession of the box for the purpose of passing it on to a third person,

5. that only 18 packages of marihuana were mentioned, (#122)

6. that Tsekouras authorized transfer of the box to Muzzi,

7. and that this transfer was effected by Ritchie after requesting instructions from Tsekouras who directed that the box be moved from its previous hiding place by a specific time,

8. that having taken possession of the box Muzzi left it in Larizza’s garage after having led Larizza to believe that it contained marijuana only,

9. That Muzzi had items such as cutting agent, Ziploc bags, and scales at Larizza’s house for the packaging of street-level amounts of cocaine,

10. That by the time the box was turned over to the exhibit officer on the search it also contained 1 kg of cocaine,

11. That having learned about the seizure Tsekouras asked, in two separate messages (#46., #42) , whether cocaine was also present and upon being told that it was Tsekouras accepted this as an explanation for the police activity.

[43] I accept that Tsekouras was not averse to dealing in cocaine but I am influenced by his reaction to the news that cocaine was amongst the contents of the “18 Box”. His questions and reaction were inconsistent with advance knowledge of cocaine involvement. On the other hand, the evidence is that Muzzi engaged in the trafficking of cocaine. Under the circumstances I cannot say that Tsekouras was aware of the presence of cocaine in the “18 box”.

[44] With respect to the “18 box”: having considered all of the evidence, I am satisfied that the accused is guilty of:

1. Possession of marihuana for the purpose of trafficking (Count7)

2. Trafficking in marihuana (Count 3)

3. Conspiring to traffick marihuana (Count 4)

4. Conspiracy to possess marihuana for the purpose of trafficking. (Count 8)

But that he is not guilty of any offence relating to cocaine associated with the “18 box”.

[45] I invite submissions by counsel as to the convictions that should be recorded given the findings made, the principle of R v. Kienapple and sentence.

"John deP. Wright”

The Hon. Mr. Justice J. deP. Wright

Released: March 5, 2015

CITATION: R v Tsekouras, 2015 ONSC 1470

COURT FILE NO.: CR-12-0100

DATE: 2015-03-05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and –

JOHN TSEKOURAS

Accused

REASONS

J.de.P. Wright, J.

Released: March 5, 2015

Final

/cs