ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Ryan Wilson & Gary Valiquette, for the Crown

• and -

EMANUELE TESFAI

Bella Petrouchinova, for the Defendant

Reasons for Judgment

Trafford J.

THIS IS AN OFFICIAL COPY OF THE REASONS THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.

A. Introduction

On August 31, 2011, Nordheimer J. granted an authorization to intercept the private communications ("IPCs") of several named persons, 41, including Yasin Hassan Hersi ("Hersi") in connection with the suspected activities of a street gang known as the Young Buck Killers. The named offences are of no significance to this trial. The interceptions under the authorization included some conversations between Hersi and some other persons concerning the suspected possession of, and trafficking in, cocaine and marijuana. One of those other persons was suspected to be Emanuele Tesfai ("Tesfai"). The TPS named this investigation Project Marvel.

Consequently, another authorization was granted by Nordheimer J. on October 26, 2011. It named, amongst other persons, Hersi and Tesfai as persons whose private communications could be intercepted in connection with the suspected activity in cocaine and marijuana. The TPS did not intercept any of Tesfai's calls under this authorization.

December 13, 2011 was takedown day for Project Marvel. Many people were arrested, including Hersi and Tesfai. Detective Whitla and Constable Gillespie arrested the defendant on a charge of possession of marijuana for the purposes of trafficking. The search incidental to the arrest led to the seizure of a white phone. The search of his residence at 89 Trott Square on the same day did not reveal the presence of any drugs, drug paraphernalia or proceeds from drug related crime. The white phone was transferred to the Technical Support Branch of the TPS in August 2014 for an examination of its contents and, if feasible, the determination of its number. Detective Constable Morden completed the extraction of information from the white phone in September 2014. His extraction report included about 8500 pages of text messages and the software necessary to search them with some degree of efficiency. Morden acted in accordance with a warrant to search the phone obtained in August 2014 by Detective Constable Tucker. She is the officer-in-charge of this case. She decided to obtain the warrant when she consulted with one of the Crown Attorneys after the defendant was ordered to stand trial in May 2014 at the end of the preliminary hearing. The committal was for two offences -- a conspiracy with Hersi and some unknown persons to traffic in cocaine in September 2011 and a conspiracy with Hersi and some unknown persons to traffic in marijuana in September 2011. This is the trial of those alleged offences.

B. The Overview of the Case

The case for the Crown consists of some intercepted conversations in September 2011 and some related text messages seized from the white phone. The principal tasks of the court are:

ö to determine whether or not the Crown has proved beyond a reasonable doubt the identity of Tesfai as a party to the IPCs and texts;

ö if it has, to interpret the calls and the texts; and

ö if it has, to determine whether or not the Crown has proven beyond a reasonable doubt that Tesfai, through such calls and texts, as interpreted by the court, committed the offence of "conspiracy", as defined at law.

No other incriminating evidence was called by the Crown.

The factual matrix alleged by the Crown is that in September 2011 Hersi was a drug dealer who bought and sold cocaine and marijuana in many deals with many people. One of his suppliers was Tesfai, who also dealt in such drugs with some other persons too, especially in August 2011. Tesfai either had custody of such drugs or connections with other persons that left him in a position to arrange for delivery of them to Hersi, by himself or other persons, as the drugs were ordered by Hersi. The defendant knowingly and intentionally entered into an agreement with Hersi to service Hersi's customers.

The defence challenged all of the material aspects of the Crown's case. That was especially so in connection with the identity of the person(s) who used the phones in September 2011 during the pertinent calls and texts, and the requirement of mutuality of the objective to sell drugs to Hersi's customers. More will be said about these issues, legally and factually, later in these reasons.

C. The Legal Framework of the Trial

It is helpful to begin these reasons with a summary of the legal framework of this trial.

A conspiracy is an agreement between two or more persons to commit an unlawful act, with the intention of putting the agreement into effect. See R. v. O'Brien (1954), 1954 42 (SCC), 110 C.C.C. 1 (SCC). The unlawful act alleged in this case is the trafficking in cocaine and marijuana to Hersi's customers. The agreement must be completed. It is a crime of intention to commit the substantive offence; the failure to commit the substantive offence is of no legal significance. See United States v. Dynar (1997), 1997 359 (SCC), 115 C.C.C. (3d) 481 (SCC). There is no need to prove a defendant participated in any overt acts in furtherance of the unlawful objective of the agreement, as long as he was a party to the agreement. Such parties have a common goal arising from the meeting of their minds whereby they agree to act with each other to achieve that goal. See R. v. Cotroni (1979), 1979 38 (SCC), 45 C.C.C. (2d) 1 (SCC) at 18. In R. v. Alexander (2005), 2005 32566 (ON CA), 206 C.C.C. (3d) 233 (Ont. C.A.) at paras. 46-48 Doherty J.A. said:

The actus reus of the crime 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: G. Williams, Criminal Law: The General Part, 2nd ed. (London: Stevens & Sons, 1961) at 667-68; R. v. Cotroni (1979), 1979 38 (SCC), 45 C.C.C. (2d) 1 at 17-18, 23-24 (S.C.C.); U.S.A. v. Dynar (1997), 1997 359 (SCC), 115 C.C.C. (3d) 481 at 511-12 (S.C.C.); R. v. McNamara (1981), 1981 3120 (ON CA), 56 C.C.C. (2d) 193 at 452-55 (Ont. C.A.), aff’d without reference to this point (1985), 1985 32 (SCC), 19 C.C.C. (3d) 1 (S.C.C.); P. MacKinnon, "Developments in the Law of Criminal Conspiracy" (1981), 59 Can. Bar Rev. 301 at 308; M.R. Goode, Criminal Conspiracy in Canada (Toronto: Carswell Toronto, 1975) at 6-18.

(continued exactly as in the source judgment…)

G. Conclusion

In conclusion, Hersi and Tesfai knowingly and intentionally agreed to service Hersi's customers. Tesfai provided, directly or indirectly, some cocaine and some marijuana upon some requests by Hersi in September 2011. He knew of Hersi's intention to sell the drugs. The completion of the intended sales was largely Hersi's task but, at times, Tesfai played a role in the intended sale. On one occasion he agreed to meet a customer and sell cocaine to him. On another occasion, he agreed to deliver some marijuana to Hersi and sort out the problems Hersi had in completing the sales to some customers.

For these reasons, I am satisfied beyond a reasonable doubt that the defendant, in September 2011, unlawfully did conspire with Hersi to traffic in cocaine, and to traffic in marijuana.

December 18, 2015
Trafford J.

THIS IS AN OFFICIAL COPY OF THE REASONS THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.

Table of Contents

A. Introduction. 1
B. The Overview of the Case. 2
C. The Legal Framework of the Trial 4
D. The Opinion of Babiar 9
E. The Circumstances of the Case. 12
E.1 Introduction. 12
E.2 The Identity of the Parties. 13
E.2.1 Introduction. 13
E.2.2 The Requirement of Self-Instruction. 16
E.2.3 The Identity of the Hersi Voice. 19
E.2.4 The Identity of the Tesfai Voice. 22
E.2.5 Conclusion. 33
E.3 The Interpretation of the Conversations. 33
E.3.1 Introduction. 33
E.3.2 The Calls Relating to Hersi and Other Persons. 33
E.3.2.1 Introduction. 33
E.3.2.2 The Limits on the Admissibility of the Calls. 34
E.3.2.3 The Summary of the Other Hersi Calls. 34
E.3.2.4 Conclusion. 39
E.3.3 The Texts Relating to Tesfai and Other Persons. 39
E.3.3.1 Introduction. 39
E.3.3.2 The Admissibility of these Texts. 40
E.3.3.3 The Summary of the Other Tesfai Conversations. 40
E.3.3.4 Conclusion. 44
E.3.4 The Conversations of Hersi and Tesfai 44
E.3.4.1 Introduction. 44
E.3.4.2 September 4, 2011 around 1:05 am.. 47
E.3.4.3 September 4, 2011 around 4 pm.. 49
E.3.4.4 September 5, 2011 around 3:50 pm.. 49
E.3.4.5 September 7, 2011 around 12:55 pm.. 51
E.3.4.6 September 9, 2011 around 8:40 pm.. 53
E.3.4.7 September 10, 2011 around 3:25 pm.. 55
E.3.4.8 September 10, 2011 around 5:45 pm.. 56
E.3.4.9 September 10, 2011 around 5:50 pm.. 56
E.3.4.10 September 10, 2011 around 6:50 pm.. 57
E.3.4.11 September 13, 2011 around 9:05 am.. 58
E.3.4.12 September 18, 2011 around 10:30 am.. 60
E.3.4.13 September 26, 2011 around 5:10 pm.. 60
E.3.4.14 September 27, 2011 around 4:30 pm.. 61
E.3.4.15 September 28, 2011 around 5:25 pm.. 62
E.3.4.16 Conclusion. 63
E.3.5 Conclusion. 64
E.4 Conclusion. 64
F. The Legal Analysis of the Case. 64
G. Conclusion. 71