ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-1430000461-0000
DATE: 20150717

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BEVON MARSHALL and

DANIEL WONG

David Steinberg and Peter Fraser, for the Crown

Laura Giordano, for Bevon Marshall
Richard Fedorowicz, for Daniel Wong

HEARD: June 8, 9, 10 and 11, 2015

M.A. CODE J.

REASONS FOR JUDGMENT

A. OVERVIEW

[1] The two accused, Bevon Marshall and Daniel Wong (hereinafter, Marshall and Wong) are charged in a one count Indictment with conspiracy to commit robbery. The conspiracy is alleged to have taken place in a narrow time frame, between May 8 and 10, 2013. It is also alleged to be a two person conspiracy as there are no other members, known or unknown, who are referred to in the pleadings. There is no evidence that the conspiracy was ever carried out.

[2] Upon arraignment on June 8, 2015, Marshall and Wong elected trial by judge alone. The main evidence in the case is sixteen wiretaps that were intercepted and recorded during the three day time period when the conspiracy was allegedly extant. These wiretap interceptions were part of a larger police investigation. They had already been ruled admissible by A. O’Marra J. after a s.8 Charter of Rights motion in which Marshall and Wong and a number of other unrelated accused had participated. See: R. v. Marshall et al, 2015 ONSC 3630.

[3] Counsel for all the parties in the present case sensibly negotiated a substantial Agreed Statement of Fact. It had the effect of eliminating a number of witnesses whose evidence was not open to serious challenge. It also had the effect of focusing the trial on the one live issue in the case, namely, whether the admitted discussions between Marshall and Wong about a robbery ever crystalized into a genuine agreement, as required by the law of conspiracy.

[4] There were some issues relating to the admissibility of certain parts of the Crown’s evidence but they largely dissipated as the trial progressed. In the result, the entire evidence in the case was heard in a day and a half. No defence evidence was called.

[5] At the end of oral argument, I reserved judgment. These are my reasons for judgment.

B. FACTS

[6] It is agreed between the parties that Marshall and Wong are the two persons whose telephone conversations and text messages were intercepted during the relevant time period. The parties also agreed as to the dates and times of the sixteen relevant intercepts and they agreed as to which party originated and which party received the various calls and text messages. In other words, voice identification and the technical details of the intercepts were not in dispute.

[7] In these circumstances, most of the Crown’s evidence took the form of exhibits, namely, the sixteen intercepts and the Agreed Statement of Fact. The primary evidence of the intercepts was an audio recording, which was played many times. Secondary evidence of the intercepts was introduced by way of transcripts, as an aid to the trier of fact while the audio recordings were played. The transcripts were added to and amended, generally with the agreement of the parties, when errors or omissions were noted during the repeated playing of the audio recordings. See: R. v. Rowbotham et al (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1 at 47-50 (Ont. C.A.).

[8] The intercepted communications between Marshall and Wong contained a considerable amount of street slang, patois, or so-called “codified language”. The Crown called an expert police witness, Sgt. Gavin Jansz, without any objection from the defence as to the admissibility of his opinion evidence in this area. In effect, Sgt. Jansz offered interpretations or translations as to various terms used by the two accused. The utility of much of this evidence, as Sgt. Jansz conceded, depended on the context in which a particular term was used, given that the meanings of certain slang, patois, or “codified” terms can vary, depending on the context. Of course, it is for the trier of fact, and not for the expert, to determine the ultimate meaning of a term based on the particular contextual facts of this particular case. See: R. v. Fougère (1988), 1988 7117 (NB CA), 40 C.C.C. (3d) 355 (N.B.C.A.); R. v. Connolly (2001), 2001 NLCA 31, 176 C.C.C. (3d) 292 (Nfdl. C.A.); R. v. Gager, 2012 ONSC 388 at paras. 173-6; R. v. Williams, 2013 ONSC 1076 at paras. 18-26 and 249-250.

[9] The first of the sixteen intercepts is the most important one. The parties agreed that the subject matter of this initial telephone discussion is a robbery. The call was made by Wong and it was received by Marshall on May 8, 2013 at 4:14 p.m. Wong immediately told Marshall that a man is “counting fifteen stacks right now”. Marshall clearly understood Wong’s reference to “fifteen stacks” and he replied by asking “where?” It is agreed that this exchange about a man “counting fifteen stacks” is a reference to money and I infer, in the context of all the evidence, that it likely means $15,000. Wong then asked Marshall, “you don’t thing it, you don’t have it?” Marshall replied, “I can get, I’m going for that right now”. It is agreed that these cryptic terms – “thing”, “it”, and “that” – in the context of all the evidence, are references to some kind of offensive implement that Wong and Marshall needed in order to carry out the robbery that was under discussion. I am satisfied that these references, which are repeated and added to in the subsequent intercepts, are to a weapon of some kind and that they likely refer to a firearm, although the exact kind of weapon is not an essential element of the offence and it is unnecessary to decide whether it is a firearm or some other kind of weapon at this stage of the proceedings.

[10] It is therefore apparent, within seconds of the first intercept, that Wong and Marshall were discussing a robbery and the need to obtain a weapon in order to be able to carry it out. The tone of their voices was excited and enthusiastic.

[11] Wong went on in this first intercept to advise Marshall that he learned about the man counting the money from a source. He stated, “my girl just called me and told me”. Wong continued by stating that the man counting the money is “one of the niggers that I know, but fuck him, I don’t care”. Marshall replied, “So then let’s go for that”. Wong advised that his “girl” told him that “the man just walked out the house”. Marshall asked whether the man is coming back and Wong replied, “I don’t know”. Marshall stated, “I’ll cut right now and get it”, referring to the weapon that they needed. Wong replied, “That’s what I’m saying”. Wong then told Marshall to meet him at the intersection of Eglinton and Markham streets in Scarborough. Marshall agreed, stating “okay, yeah”. Wong then said, “Let me call this girl and make sure, then meet you”. Marshall replied, “Alright, so call her and see what’s, let’s see what’s going on”.

[12] Wong returned to the topic of his prior acquaintance with the man counting the money and said, “He doesn’t like me … I don’t care … I’ll bare face that one”. Sgt. Jansz testified that “I’ll bare face that one” means that he is willing to commit the robbery without a mask. Marshall replied, “Yeah, I don’t care, who cares. They don’t know people. Call her right now man, please”. This first intercept then ended with Wong saying “Yeah” and Marshall saying “Alright”.

[13] Five minutes later, at 4:19 p.m., Marshall called Wong. This second intercept began with Marshall asking Wong, “what’s she saying”, presumably in reference to their prior understanding that Wong would call his “girl” in order to “make sure” before they met at Eglinton and Markham streets. Wong replied, “She said the man is coming back. But … I don’t know if he’s coming back with it,” referring to the money. Wong went on to say, “We could go over and see … How long does it take you to get there?” Marshall had told Wong in the first intercept that he was at “Sosa’s right now” and he repeated in the second intercept, “I’m by Sosa’s right now”. Marshall then told Wong that Sosa “wants to come too”. I infer that Sosa is a third party and that Marshall was present at Sosa’s residence. Wong replied, “No” and expressed concern as to whether Marshall was “telling people”. Marshall reassured Wong, “I didn’t show nobody. He’s just here with me … so I’m gonna come to you right now? You want me to come to you right now?”

[14] At this point in the second intercept there was a long silence or pause as Wong appeared to speak to someone else in the background. When Wong returned to the phone he told Marshall, “So come over there then.” Marshall replied, “Alright”. This concluded the second intercept.

[15] The next eight intercepts include phone calls as well as text messages. They are all brief and they occur within a short eleven minute time frame, from 4:22 p.m. to 4:33 p.m. on May 8, 2013. They all relate to the same subject matter, namely, Marshall’s efforts to quickly secure the weapon that he and Wong needed in order to carry out the robbery that they were discussing.

[16] In the first of this group of eight intercepts, Marshall called an individual who is subsequently referred to as Tutu. It can be inferred from all the intercepts that Tutu and Marshall, and perhaps others, were in joint possession of a weapon (likely a firearm). Marshall asked Tutu, “where are you” and Tutu replied that he was “on the GO bus”, on his way to Ajax. Marshall was clearly disappointed at this news. He stated, “Holy, brother … I was gonna go do something”.

[17] Marshall ended the brief call with Tutu and immediately called Wong. Wong began the conversation by stating, “bring him if you want then”. This appears to be a reference back to Marshall’s earlier request to bring Sosa with them on the robbery. Wong had initially opposed Marshall’s request in this regard but he appeared to have now changed his mind. Marshall then advised Wong that “Tutu has the, the fucking … the one … I don’t know if I could get a ones right now, cause this guy went to Ajax with it”. Wong was clearly disappointed and upset at this development. He stated, “Bro man … You guys are taking too long bro”. Once again, there is no dispute that these cryptic references to “the one” or “a ones” are to some kind of offensive implement that was needed for the robbery that was under discussion.

[18] Marshall advised that he had another source for the weapon that they needed. He stated, “I’m a holla at Beenie man right now … and get that from him. Cause he, Beenie, Beans man, he has one too”. The conversation ended with Marshall telling Wong, “I’m going to see, call this guy right now and get his, I’m gonna call him right now and call you right back”.

[19] Within minutes, Marshall called another party, presumably the person he had referred to as Beenie. The call did not go through but Beenie immediately called back. Marshall stated, “I need a something right now, you know what I’m saying? Said I need a something right to use quick man”. Beenie replied by suggesting that Marshall contact Tutu. Marshall advised that Tutu had “cut on the GO bus … with our girl man, that’s what I’m trying to say”. Sgt. Jansz testified that “girl” can mean a firearm in certain contexts. The conversation ended with Beenie suggesting that Marshall contact another person. He stated, “so PIN my bro and see if he is there”. Marshall replied, “Alright”. Sgt. Jansz testified that “PIN my bro” means to send a message to this person.

[20] One minute later, Marshall received a phone call from the same telephone number as the two previous calls that he had made and received (with the person apparently known as Beenie). The person who made this further call could have been Beenie or some other party who was using the same phone (the person is later referred to as Grmy and it is unclear whether this is simply another name for Beenie or whether it is a different person). In any event, this person immediately told Marshall, without any introduction of the topic under discussion, “I have mine with me you know”. Marshall asked, “where are you, you’re far?” This person replied that he was in Brampton and stated, “if you have a ride, you could fly for it right now.” Marshall replied, “All right, I’m a call you right now”. Sgt. Jansz testified that “fly for it” means come and get it.

[21] It can be seen from the above intercepts, over the course of five phone calls in the six minutes between 4:22 p.m. and 4:28 p.m., that Marshall had spoken to two or three different people (Tutu, Beenie, and the party referred to as Grmy). In all of these calls Marshall made unsuccessful efforts to obtain the weapon that he and Wong needed in order to carry out the robbery that they were discussing.

[22] Immediately after the last call ended, Marshall sent three brief text messages to Wong. The first text contained no content. The second text stated, “Yo grmy has his wit him in btown he gonna send it on we jus have to buk him”. The third text stated, “Quick fast”. Sgt. Jansz testified that “btown” is a common reference to Brampton and that “buk him” means to meet him.

[23] About two minutes after the last text message, at 4:36 p.m., Marshall called Wong. This is the eleventh and last intercept that took place that afternoon during a twenty-two minute period, beginning at 4:14 p.m. with Wong’s initial call to Marshall about the man “counting fifteen stacks right now”.

[24] Marshall began this eleventh intercept by asking whether Wong “got my text”. Wong immediately replied, “It’s too late dog. That’s too late dog. The man is gone. The man went to go put it away”. Marshall asked, “But he goes there frequently eh?” Wong replied, “if the mandem had it, we’d meet each other there. We could of went over there and seen where the man cut to. It’s too late now”. Sgt. Jansz testified that “mandem” can mean a member of a group in certain contexts.

[25] Wong was angry and upset at the above development. He stated, “the man just counted fifteen, bro. I’m cheesed”. Wong explained that he had spoken to his “girl” and she told him that, “She’s with her sister, so her sister seen the man counting the fifteen. He just boogied. They’re waiting for him to come back … The sister is like there is no way he is coming back with that … He’s not coming back with it.” Sgt. Jansz testified that “boogied” means to leave quickly.

[26] Wong went on to state, “I’m gonna get him though, we’re gonna catch him”. Marshall replied, “we have to go there every day to chill”. Wong added, “it’s at the ends too, eh? The same ends”. Sgt. Jansz testified that “the ends” means a place or turf that you are familiar with or comfortable with. Marshall continued, “So I’m saying we just have to go there and just chill now, from that’s going on”. Wong stated, “I was gonna go, but I was just saying fuck it. I woulda just made you go to tear off his face”.

[27] Wong recounted how he first heard about the man and his money. He stated, “The man is counting, the man just finished counting fifteen stacks … I was sleeping eh, I’m like, she woke me up you know, she’s like come right now … she is telling me to bring my goons”. Marshall stated, “dog I wanna go up there and chill like, we have to go up there and start chilling regular”. Wong replied, “if he comes back, I’m grabbing Ougie and we are going”. This apparent reference to a new or alternative partner for the robbery, named Ougie, caused Marshall to laugh and protest, “You can’t do that bro”. Marshall made it clear that he was still eager to participate. He stated excitedly, “I’m shaking it fam, like crazy”. Wong was impatient with Marshall and replied, “I can’t wait”. Wong went on to point out that Marshall did not have a car, implying that Marshall was ill-equipped to be able to quickly commit a robbery. Marshall protested, “Fam, I woulda hopped in a cab.” Wong replied, “I know”. Marshall and Wong sometimes referred to each other as “fam”. Sgt. Jansz testified that this term means family, but it does not necessarily mean a blood relative.

[28] They again expressed their anger towards Tutu for taking the weapon with him to Ajax when they needed it here in Toronto. Marshall stated, “Tutu cut to Ajax with it. I don’t know why”. Marshall explained that they had been at a barbecue and “just left it with these guys and this guy, Tutu, cut with it to [Ajax] bro. I don’t know why he did that for. Now there’s like nothing down here, you know what I’m saying.” Wong asked, “So how come you don’t have it bro?” Marshall replied, “I was gonna go get it right now. I don’t wanna keep that in my ends like that either, bro, you know what I’m saying.” Sgt. Jansz testified that the reference to “my ends” means my place.

[29] Marshall brought the conversation back to the topic of waiting for the return of the man with the money. He stated, “I’m so cheesed … I hope this guy comes back … I’m just holding fam … This guy has to come back man.” Wong replied, “I don’t know if he is coming back fam”. Marshall stated, “Yeah. Then he come back another day or something. If he is doing that there, he’s gonna do it more.” Marshall went on and asked, “What did he do? …Like he crushed, he crushed a food or something right there?” Sgt. Jansz testified that “crushed a food” means selling drugs. Wong responded to Marshall’s inquiry concerning whether the man who was counting money is “gonna come back another day” by forcefully telling Marshall that, “The man lives there dog”, implying that this fact should have been obvious to Marshall.

[30] The conversation ended with Marshall asking Wong whether his “girl” was still at the place where she had seen the man counting money. Marshall asked, “your shorty is still there though? She is chilling there for a little bit?” Sgt. Jansz testified that “shorty” can mean a girlfriend, younger friend, or sibling, depending on the context. Wong replied, “I told her to stay there”. Marshall stated, “Yeah, tell her to stay there … He’s gonna come back with some type of money.” Wong replied, “No. I can’t, I can’t get him for that”. Marshall stated, “But not that much no more. He’s gone with that.” Wong replied, “Dog, he’s not coming back with that”. The conversation then ended with Marshall saying that he would call back later.

[31] There were no further communications between Marshall and Wong on the afternoon of May 8, 2013. Their next contact was about three and a half hours later, at 8:04 p.m. in the evening of May 8, 2013. Marshall called Wong and asked, “I’m here right now man, where are you? You never went to the block.” Wong replied, “I was there for like two hours”. It appears from this exchange that Wong and Marshall had not met up after their phone calls in the afternoon. Sgt. Jansz testified that “block” means neighbourhood in this context. Marshall stated, “I’m cheesed … we could’ve did something with that right here”. Wong replied, “I know”. Marshall inquired as to whether Wong’s girl was still “up there”. Wong replied, “No, she’s with me right now”. Marshall stated, “we missed something right now”. Wong replied, “we have one still but we have to wait. He’s just preeing a one and then me and you are gonna go.” Marshall stated, “Okay, I’m here fam”. They agreed to call each other if anything was going on. Sgt. Jansz testified that “preeing” means preparing or setting up.

[32] The last four wiretap intercepts tendered in evidence by the Crown took place on the next two days, May 9 and 10, 2013. I do not intend to refer to them at this stage of the proceedings as I did not find them particularly helpful in relation to the central issue in the case, namely, whether the discussion about a robbery ever crystalized into an agreement. The same applies to two audio files tendered in evidence by the Crown. They were seized from Wong’s cell phone upon arrest on June 6, 2013. The speaker, who is admittedly Wong, made reference to whether “Beans had a gun” and to whether “thirty stacks” had been used to purchase a condominium.

C. ANALYSIS

[33] Conspiracy was one of three inchoate crimes, together with attempt and incitement, that were developed by the common law. The offence was statutorily codified in Canada in various sections of the original 1892 Criminal Code. These provisions were all consolidated into s. 408 of the 1955 Criminal Code. They are now found in s. 465 and the offence charged in the present case, namely, conspiracy to commit robbery, is set out in s. 465(1)(c).

[34] The statutory crime of conspiracy in Canada, as enacted throughout the history of the Criminal Code, has never defined or delineated the elements of the offence. Section 465(1)(c) simply states: “everyone who conspires with anyone to commit an indictable offence … is guilty of an indictable offence”. There is no elaboration or definition as to the meaning of “conspires”. Accordingly, the constituent elements of the offence of conspiracy are derived entirely from the common law and from judicial pronouncements.

[35] The classic nineteenth century statement, concerning the elements of conspiracy in English law, is found in R. v. Mulcahy (1868), L.R. 3 H. L. 306 at 317, where Willes J. stated:

A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act … So long as such a design rests in the intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties … punishable if for a criminal object …

[36] The above formulation concerning the essential elements of conspiracy suggested that there were two elements, namely, intention and agreement. It was adopted by the Supreme Court in this country in all three majority judgments, written by Taschereau J., Rand J. and Estey J., in R. v. O’Brien (1954), 1954 42 (SCC), 110 C.C.C. 1 at 3, 7 and 9 (S.C.C.). However, the Court elaborated on the element of intention by stressing that it actually has two aspects.

[37] Rand J. agreed and stated, “I agree that a conspiracy requires an actual intention in both parties at the moment of exchanging the words of agreement to participate in the act proposed”. In other words, a mere intention to speak words signifying agreement, without a further intention to actually carry out the unlawful object, was insufficient.

[38] As a result of Mulcahy and O’Brien, the modern law of conspiracy in this country is to the effect that the conduct element or actus reus of the offence is an agreement to commit a specific indictable offence and the mental element or mens rea is a general intent to agree and a specific intent to carry out the agreement.

[39] This view was confirmed in U.S.A. v. Dynar (1997), 1997 359 (SCC), 115 C.C.C. (3d) 481 at 511-512 (S.C.C.).

[40] In light of the above authorities, it is now settled law that three essential elements must be proved by the Crown in a conspiracy case: first, an intention to agree; second, the completion of an agreement to commit an indictable offence; and third, an intention to carry out the agreement.

[41] In the case at bar, counsel focused all of their submissions on the second element, namely, the actus reus of agreement.

[42] The element of agreement in the law of conspiracy has not been the subject of extensive consideration in the decided cases. Nevertheless, a number of settled principles have emerged.

[43] Doherty J.A. described this element as a “true consensus” or “meeting of the minds” to act together in order to “achieve a mutual criminal objective”.

[44] The policy rationale for criminalizing true agreements is preventative.

[45] The Crown need not prove that the parties agreed on the detailed means by which the offence could be successfully carried out.

[46] English cases have held that the existence of reservations or conditions as to how or whether the unlawful object could be successfully carried out is not necessarily fatal to the formation of an agreement.

[47] This principle was adopted in Ontario in R. v. Root, 2008 ONCA 869.

[48] An agreement to commit a criminal offence “if it is possible or propitious to do so” is sufficient to constitute the actus reus of conspiracy.

[49] Applying the above principles to the case at bar, I am satisfied that Marshall and Wong did reach an agreement to rob the man who had been seen counting money.

[50] I have reached this conclusion, in particular, because of the following primary facts that emerge from the wiretap intercepts:

• In the first intercept, Wong referred to the man counting money and impliedly introduced the topic of robbery. He asked Marshall if he had his weapon. Marshall enthusiastically replied, “I can get, I’m going for that right now if that’s what it is”;

• Wong stated that he had a prior acquaintance with the man who was the target of the robbery that they were discussing. He then added, “but fuck him, I don’t care.” Marshall replied, “So then let’s go for that”;

• They discussed where the man with the money was presently located.

• Wong told Marshall to meet him at the intersection of Markham and Eglinton.

• The first intercept ended with the understanding that Marshall would obtain the weapon, Wong would confirm the man’s location, and they would meet.

• In the second intercept, Wong confirmed the man might return and suggested they go over and see.

• The parties discussed whether Sosa could join and then agreed Marshall should come to Wong.

[51] By the end of the second intercept, I am satisfied that an agreement had been reached to rob the man who had been seen counting money.

[52] The subsequent intercepts strongly support the inference that an agreement had been reached.

[53] Defence counsel properly emphasized the Crown’s burden of proof in a circumstantial case.

[54] I am satisfied that the only rational inference from all the evidence is that Marshall and Wong conspired to commit a robbery of the man who had been seen counting money.

[55] For all these reasons, both Marshall and Wong are found guilty of the one offence charged in the Indictment.

[56] I would like to thank counsel for their effective advocacy and for the professional way in which they conducted this short trial.

M.A. Code J.

Released: July 17, 2015

COURT FILE NO.: CR14300004610000
DATE: 20150717

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

BEVON MARSHALL and
DANIEL WONG

REASONS FOR JUDGMENT

M.A. Code J.

Released: July 17, 2015