CITATION: R. v. McGean, 2016 ONSC 5572
COURT FILE NO.: 121/15
DATE: 2016/09/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
T. Gilliam and N. Gilks, for the Crown
Crown
- and -
RANDY MCGEAN, ISAAC LUCAS AND LYLE GOUGH
J. Stephenson, for Randy McGean
M. Wendl, for Isaac Lucas
L. Giordano, for Lyle Gough
Accused
HEARD: May 16 - June 30, 2016
Corrected Decision: The date at the top of page one has been corrected to indicate 2016/09/06 on September 27, 2016. No change to the content has been made.
The Honourable Mr. Justice J.R. Henderson
REASONS FOR DECISION
INTRODUCTION
[1] The three accused (respectively referred to as “McGean”, “Lucas”, and “Gough”) between them are charged with 15 criminal offences, including charges of trafficking in heroin and cocaine, conspiracy charges, and criminal organization charges.
[2] Regarding the conspiracy charges, the Crown submits that there are two broad overarching conspiracies. The Crown alleges that McGean and Lucas conspired with each other and with other unindicted people to traffic in cocaine between July 17 and October 29, 2013 in the City of St. Catharines. The Crown also alleges that McGean, Lucas, and Gough conspired with each other and with other unindicted people to traffic in heroin between July 19 and October 29, 2013 in the City of St. Catharines.
[3] Regarding the criminal organization charges, it is the theory of the Crown that the Black Pistons Motorcycle Club of St. Catharines (referred to as “the Black Pistons”) was a criminal organization as defined in the Criminal Code of Canada (“Criminal Code”), and that the three accused were members of the Black Pistons.
[4] McGean and Lucas are charged with conspiracy to traffic in cocaine for the benefit of, at the direction of, or in association with a criminal organization, namely, the Black Pistons. McGean, Lucas, and Gough are charged with conspiracy to traffic in heroin for the benefit of, at the direction of, or in association with the Black Pistons.
[5] McGean alone is charged with instructing Lucas to traffic in cocaine for the benefit of the Black Pistons. Lucas alone is charged with trafficking in heroin for the benefit of, at the direction of, or in association with the Black Pistons.
[6] Lucas also faces separate charges of trafficking in heroin, and possession of heroin and cocaine for the purpose of trafficking.
[7] In addition, McGean is charged with several offences with respect to two prohibited weapons and possession of proceeds of crime.
[8] In support of these charges the Crown relies heavily on the evidence of the police officers who engaged in surveillance of the accused and others over the course of about seven months in 2013. The Crown also relies heavily on the evidence contained in hundreds of authorized intercepted communications.
[9] Defence counsel submits that both the visual identification evidence from the surveillance officers and the voice identification evidence regarding the voices heard on the intercepts are not strong enough to prove identity. Therefore, defence counsel submits that the Crown cannot prove that the accused said or did what the Crown alleges.
[10] In the alternative, if the court accepts the visual and voice identification evidence, defence counsel submits that there is no convincing evidence that any of these three accused ever engaged in any illegal drug offence.
[11] Finally, defence counsel submits that the Black Pistons was not a criminal organization, but rather it was a social organization of motorcycle enthusiasts. Therefore, they submit that the criminal organization charges must be dismissed.
THE ISSUES
[12] I am going to provide my decision today in several parts.
[13] The first part will relate to evidentiary rulings. These are complex legal rulings that must be made before I can consider the substantive charges. Specifically, I will deal with the visual identification evidence, the voice identification evidence, and the admissibility of the Members List that was found at 80 Page Street, in St. Catharines.
[14] After I have completed my evidentiary rulings, I will turn to the specific charges. I will deal first with the conspiracy charges, then the criminal organization charges, and then the remaining charges.
VISUAL IDENTIFICATION EVIDENCE
[15] Surveillance officers had secretly been observing the three accused and many other targets for approximately seven months by the time all of these accused and others were arrested on November 6, 2013. Because the surveillance was secretive, very few face-to-face encounters occurred between the police officers and their targets. Therefore, there is an issue as to whether the Crown has proved that the people who were observed by the surveillance officers were in fact the people the police officers say they were.
[16] I accept that a person who purports to identify someone who has done something could honestly, but mistakenly, believe that the person who was arrested was the person he or she had observed at a certain place or at a certain time. This concept has been the subject of many court decisions.
[17] In the case of R. v. Goran, 2008 ONCA 195, [2008] OJ 1069 (OCA), Blair J. wrote at para. 19:
There is no dispute between the parties as to the inherent frailties of eyewitness identification evidence. Such evidence is inherently unreliable. It is difficult to assess, is often deceptively reliable because it comes from credible and convincing witnesses, and is difficult to discredit on cross-examination for those same reasons.
[18] In the case of R. v. Tat (1997), 1997 CanLII 2234 (ON CA), 117 C.C.C. (3d) 481 (OCA), Doherty J. at paras. 99 to 100 wrote that the concerns about eyewitness identification were particularly high where the person identified is a stranger to the witness; where the circumstances of identification are not conducive to an accurate identification; where pre-trial identification processes are flawed; and where there is no confirming or corroborating identification evidence.
[19] Given these principles, it is essential for me to be exceptionally vigilant about assessing identification evidence, both visual and voice identification evidence, in this case.
[20] By way of an overview, I observe that many of the problems with eyewitness identification evidence fall into two categories. The first are cases in which a witness observes an unfamiliar person only for a fleeting moment during a brief, often tension-filled encounter. The second are cases in which a witness, or an undercover officer, deals with a “shadowy figure” at the end of the bar. This case does not fall into either of those categories. Rather, in this case I find that there are many factors that support or bolster the visual identification evidence of the surveillance officers.
[21] In the present case, I find that multiple police officers made multiple identifications of the three accused and other surveillance targets over a period of many months. In my view, this strengthens the reliability of the visual identification evidence in several ways.
[22] First, if a police officer observes McGean, for example, on one day, and then observes him again a few days later, and again a few days after that, that police officer becomes familiar with McGean’s visual appearance. As time goes by, there is no need for the officer to compare the person he is observing to McGean’s description or to McGean’s picture as the officer is able to recognize McGean from his earlier contact.
[23] In the case of R. v. Leboeuf (2006), 2006 QCCA 1231, it was noted that police drug investigators who maintain surveillance on the accused over a period of several months have a stronger basis for their identification evidence, and that type of identification evidence should be distinguished from the identification evidence in the “fleeting glance” cases.
[24] Second, in my view, where multiple police officers observe the same target on the same day, the officers can assist each other with identification. If, for example, McGean is observed by five members of a surveillance team who are coordinating their efforts on the same day, often one or more of the team get a very good look at McGean and can identify him in a reliable manner. Then, that identification information is relayed to other members of the team, including information as to what McGean is wearing, what vehicle he is operating, and where he may be located. This does not reduce the ability of the other members to independently identify McGean, but, rather, it helps them locate the person believed to be McGean so they can make their own independent identification.
[25] In addition, the visual identification of some of the targets in this case was strengthened by the fact that some of the targets were well-known, from previous encounters, to some of the surveillance officers. Therefore, one team member might recognize a target from a prior interaction and relay that information to other team members. Again, once the target is accurately identified, the other team members can then locate the target and independently identify him or her.
[26] Furthermore, profile sheets or target sheets were prepared for all targets, usually prior to the commencement of surveillance. The profile sheets included a description of the target, a picture of the target, associated vehicles, and associated persons. It is clear that several of the surveillance officers used the pictures in the profile sheets to initially identify their targets. Although, in some cases the police officers did not have the profile sheets with them at the time of the surveillance, the pictures in the profile sheets would have been reviewed by the officers before surveillance was undertaken. In my view, this is a planned studied approach to visual identification; it is much different than the fleeting glance that a shopkeeper might have of a thief who had confronted him suddenly and without warning.
[27] Finally, in many instances in this case, the surveillance officers took pictures of what they observed at the time they observed it. Those pictures act as a double-check on the officers’ testimony that the person they saw was the subject person.
[28] In my view, all of those factors strengthen the reliability of the visual identification of all three accused by the surveillance officers in this case.
[29] Regarding the specific visual identification of the three accused, I find that McGean was the target of surveillance at least 20 times over the course of approximately seven months, and that visual identifications of McGean were made on each occasion, sometimes by multiple officers on the same day.
[30] Further, regarding McGean, two of the police officers who identified McGean had prior face-to-face interactions with him and recognized him from the prior interactions.
[31] Regarding Lucas, I find that Lucas was the target of surveillance, and identified, on approximately eight days by multiple officers over the course of approximately three months.
[32] In the same manner, Gough was observed on approximately seven days by multiple officers over the course of approximately five months.
[33] Profile sheets had been prepared for all three of these accused and included at least one picture of each. I note that there were some observations by surveillance officers of both McGean and Gough prior to the completion of the profile sheets. However, in McGean’s case, I find that the surveillance officers had pictures of McGean that had been provided by the Niagara Regional Police Services (referred to as “NRPS”) Street Crime Unit prior to the start of any surveillance.
[34] In Gough’s case, I accept the evidence of Officer Lemaich that on July 2 he did not have a picture of Gough and he had not seen Gough previously, when Gough was allegedly observed on the deck at 80 Page Street. However, the officers took photographs of the people who were observed on the deck on July 2, and I find that Gough can clearly be seen in the photographs.
[35] Overall, I find that the evidence of visual identification of all three of the accused was overwhelming. I find as a fact that, except for a few occasions, the visual identification evidence of all three of the accused by the surveillance officers is accurate.
[36] The few occasions in which the visual evidence falls short are as follows:
Gough was allegedly seen in the doorway of 80 Page Street on July 28. Gough was not expected to be present at that time; there was no profile sheet for Gough; and the glimpse of the person in the doorway was fleeting.
Lucas was allegedly seen by Officer Jackson in the driver’s seat of a red Pontiac that was at a gas station on September 14. In that case the driver did not emerge from the vehicle while he was being observed, and Lucas was seen a short time later on foot wearing different clothing.
McGean was allegedly seen riding a motorcycle on April 22 and 23. But, the surveillance officers were only able to observe the motorcycle rider from behind and while the rider was wearing a helmet.
[37] Therefore, I find that those few pieces of visual identification evidence are not reliable. Otherwise, I accept the accuracy of the visual identification evidence of the surveillance officers.
[38] Regarding the visual identification of other non-accused persons, again, there were profile sheets for each of the targets and multiple identifications of the targets. In some cases, there was also prior knowledge of the target by a police officer. Therefore, I am prepared to accept as accurate the evidence of the surveillance officers with respect to the visual identification of the non-accused persons.
VOICE IDENTIFICATION EVIDENCE
[39] This issue relates to the identification of the voices that were captured in hundreds of authorized intercepted communications. Police officers had obtained court authorizations under s.186 of the Criminal Code to intercept communications to or from many different telephone numbers, including numbers that were allegedly used by the three accused.
[40] After the authorizations had been obtained, the police officers set up a wire room where monitors intercepted calls to or from the relevant numbers and recorded the conversations. Many of the recorded conversations were played in evidence at this trial. Also, written transcripts were prepared for the recordings that were introduced at trial.
[41] A computer system, called JSI, was used to capture and record the intercepts. If a speaker using a particular telephone number was identified in some way, such as by self-identification, then an officer would input data into the JSI system so that speaker would always be associated with that telephone number. Therefore, the transcripts show, in many cases, the purported identification of the speaker. The identifying intercept would also be saved as an audio clip in the voice identification library.
[42] Officer Knisley, the wire room supervisor, testified that he has listened to the intercepts that were introduced at the trial, multiple times, and to the voice identification library clips. Officer Knisley testified that, in his opinion, the identification of the speakers shown in the JSI system is accurate. That evidence has some weight, but I must consider all of the evidence to determine whether the Crown has successfully proved the identification of the speakers.
[43] The concern with respect to voice identification evidence is nicely summarized by Hill J. in the case of R. v. Pinch, 2011 ONSC 5484 at paras. 67 to 80. What is clear from that case, and other cases, is that voice identification evidence suffers from the same frailties as visual identification evidence, but that voice identification may in fact be more unreliable because of the linguistic complexity of a person’s voice.
[44] There is a dispute in this case as to the standard of proof required for voice identification. In my opinion the general rule is that the identification of the voice of the accused is not an element of the offence, and therefore the standard of proof for voice identification is on a balance of probabilities. This, of course, is with the caveat that at the end of the day the Crown must prove the identity of the person who committed the crime beyond reasonable doubt. See the case of R. v. Chan, 2001 BCSC 1180, [2001] B.C.J. No. 1689, at para. 26.
[45] However, that general rule must be modified in certain cases where voice identification is pivotal to the Crown’s case against the accused. In those cases the Crown must establish that the accused is the person speaking on the intercept or other recording in order to succeed in the prosecution of the charges. In such cases the standard of proof is beyond reasonable doubt. See the case of R. v. Quigley, 2008 ONCA 501 at paras. 25 to 30, and the Pinch case at paras. 79 to 80.
[46] I find that in the present case, the intercepts are an essential part of the Crown’s case. Without proof that the voices heard on the intercepts are the voices of the accused, the Crown has no case. Therefore, I find that in this case the Crown must prove beyond reasonable doubt that the voices heard on the intercepts are the voices of the accused. Further, in this case this standard also applies to the voices of any person that the Crown alleges was a party to the conspiracy.
[47] I next turn to the methods of proving the identity of a voice. In three decisions, in three separate provinces, courts have attempted to list several accepted methods by which the Crown can prove voice identification. See Pinch at paras. 67 to 80, Chan at para. 28 and R. v. Rumbaut, [1998] N.B.J. No. 381 at para. 47.
[48] I would like to summarize those methods, and then relate them to the evidence in this case.
[49] Number one, the Crown can call an expert in voice recognition to analyze the recorded voices. This method was not used in this case.
[50] Number two, the Crown can call a family member or friend who is familiar with a voice to identify the person speaking. Again, this method was not used in this case.
[51] Number three, the Crown can call evidence of a person who has become familiar with a voice either from hearing it on a recording or in person, and that person may provide a lay opinion as to voice identification. In this case, Officer Knisley provided this type of opinion evidence.
[52] Number four, the Crown can call evidence of self-identification or third-party identification of a person whose voice is heard on a recording. This method was used in this case, and the identifying intercepts were kept in the video identification library.
[53] Number five, a police officer can arrange a “hip-to-ear” visual observation in which the police officer makes a ruse call to a specific phone number believed to be that of the subject while the same or another officer observes the subject and looks for a “hip-to-ear” movement that suggests that the subject is answering the call. This method was tried in this case, with modest success.
[54] Number six, the Crown can adduce circumstantial evidence to show a connection between the events that were discussed in a captured intercept and the actual events that occurred. This was done in this case.
[55] And finally number seven, and the least reliable, the Crown can introduce information from the telephone companies as to the subscribers for various telephone numbers. This was done in this case.
[56] Regarding the identification of McGean’s voice, Officer Knisley testified that he listened to all of the transcribed calls to or from McGean’s phone numbers at least three times and compared the voices in one call to the voices in the other calls. He also compared the captured voices to voice identification clips in which McGean was identified as the speaker. Officer Knisley testified that he believes that McGean is the speaker in all calls in which he is identified as the speaker in the JSI system. Officer Knisley’s lay opinion was not shaken on cross-examination.
[57] Further, I accept that McGean self-identified while using phone numbers that were associated with him in two very clear instances. The most compelling was a telephone call between McGean and a representative of State Farm Insurance with respect to an insurance claim. In that call McGean provided his full name, date of birth, address, home phone number, and cellphone number. Both the home phone number and the cellphone number are numbers that are attributed to McGean on the JSI system.
[58] Still further, in another call McGean self-identified as “R” and was identified by a third-party as “R”.
[59] Also, the speaker who was recorded by a probe that was secretly placed in McGean’s Hummer stated that his birthday was October 4. This, in fact, is McGean’s birthday.
[60] Also, there is circumstantial evidence in which McGean is purportedly heard talking about meeting with someone at Koko’s Bar, and then is seen shortly thereafter meeting with someone at Koko’s Bar. A similar incident occurred with respect to a meeting at Private Eyes nightclub.
[61] All of these incidents provide strong evidence that the telephone lines associated with telephone numbers ending in 1332, 2520, 4983, and 1382 are lines on which McGean’s voice is captured.
[62] Regarding Lucas, again Officer Knisley gave a lay opinion that Lucas was the speaker in all calls in which he is identified as the speaker in the JSI system.
[63] Having heard the intercepts, in my view the person purported to be Lucas was extremely chatty in many of the intercepts. He self-identified many times. The most compelling self-identification occurred during calls made to a detox centre in which Lucas was inquiring about a woman who was in the centre. During these calls he clearly identified himself as “Isaac Lucas”. Moreover, in these conversations the speaker also clearly confirmed that he also goes by the name of “Taz”.
[64] Further, there are third-party identifications of Lucas or Taz on two separate telephone lines.
[65] Still further, there is circumstantial evidence of Lucas using these phone lines on at least two different occasions. The most obvious is a discussion in which Lucas talked about returning a laptop, and then shortly thereafter Lucas is seen walking on Welland Avenue carrying a silver laptop.
[66] For these reasons I accept that it is Lucas’s voice that is captured on the telephone lines associated with telephone numbers ending in 0519 and 9619.
[67] Regarding Gough’s identification, again we have Officer Knisley’s lay opinion evidence. There is also self-identification and third-party identification of the speaker as “Lyle”. Although this is not a complete name, it is at least partial self-identification and third-party identification.
[68] Also, with respect to Gough, I accept that there is a “hip-to-ear” observation. On October 15, 2013, Officer Santo called the number associated with Gough, and at the same time, Officer Jackson observed Gough pick up his cellphone, look at it, and then put it back in his pocket. Officer Santo testified that no one answered the phone when he called on that occasion. This was not a perfect “hip to ear” identification, but in my view this is good evidence that the phone number was one used by Gough.
[69] Therefore, I am prepared to accept that Gough is the person whose voice is captured on the telephone line associated with the phone number ending in 9254.
[70] I will also add that I have carefully listened to all of the recorded intercepts that were introduced into evidence. To my untrained ear the voices that are alleged to be those of the accused are similar from one intercept to another. This applies to each of the three accused. That is, the intercepted voices attributed to McGean, for example, were similar from intercept to intercept in the sense that the voices had the same tone and cadence, used similar vocabulary, and dealt with similar subject matter.
[71] With respect to other voices captured in the intercepts, I generally accept Officer Knisley’s evidence that the identity of the speakers in those calls as set out in the JSI system is accurate.
[72] For those other voices, there was self-identification or third-party identification of voices from Mario Macedo, Michael Hook, Steve Gibbons, Dan Carley, and David Crothers. Still further, there were strong hip-to-ear observations regarding Keith Earle and Andre Chartrand.
[73] Therefore, in conclusion, I find that the voice identification evidence for the abovementioned voices that were captured on the intercepts, as identified by Officer Knisley and as shown on the JSI system, is accurate.
THE MEMBERS LIST
[74] When the police officers executed a search warrant on November 6, 2013, at 80 Page Street, the alleged clubhouse of the Black Pistons, the officers found a handwritten document titled “Members List” taped to the wall behind the bar. The document was dated “October” and listed nine names, including “Lyle” and “Taz”, with phone numbers.
[75] The Crown submits that, although it is hearsay evidence, this document is admissible for the truth of its contents pursuant to the documents in possession rule, or pursuant to the principled exception to the hearsay rule. Defence counsel disagree.
[76] In my view, the Members List is admissible for the truth of its contents pursuant to the principled exception to the hearsay rule, but not pursuant to the documents in possession rule.
[77] The documents in possession rule allows a document to be admitted into evidence where the document is found to be in the possession of an accused person. Therefore, a pre-requisite to admission is proof that the document was in the possession, actual or constructive, of one of the accused. In my view, the evidence does not establish actual or constructive possession by any of the accused in this case.
[78] The evidence shows that all of the accused were at or near the clubhouse from time to time, but there is no evidence that any one of them occupied the clubhouse, either exclusively or with anyone else, to the extent that anything found there could be found to be in their possession. Therefore, I cannot find that the Members List was possessed by any of the accused simply because it was posted at the clubhouse.
[79] The principled exception to the hearsay rule was discussed by the Supreme Court of Canada in the cases of R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915 and R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. In essence, the Supreme Court of Canada found that hearsay evidence can be admitted if, on a balance of probabilities, the hearsay evidence (the Members List in this case) meets the twin requirements of necessity and reliability.
[80] Regarding necessity, the author of the Members List is unknown. The author may be one of the people who are on the list, or it may be another person who controls the membership. That is, there is no viva voce witness who has been identified who can testify as to the making of this document. Therefore, hearsay evidence is the only way in which this document can come before the court.
[81] Regarding reliability, I accept that because the author of the document is unknown, the circumstances of its making are unknown. This, in turn, reduces its reliability.
[82] However, in my view, there are certain badges of reliability in this case. First, the names on the list are generally the names of the people who have been seen coming and going from 80 Page Street. Second, in many cases the telephone numbers on the list are the telephone numbers known to be associated with the names of the persons on the list. Third, the clubhouse at 80 Page Street is a place where the accused and others on the list have been known to hold meetings.
[83] Finally, in several intercepts there are discussions as to who would or would not become a member of the Black Pistons, and most of the names that are on this Members List are names of people who were discussed. Therefore, I find that there is some modest reliability to the Members List.
[84] For these reasons, I will admit the Members List for the truth of its contents. That being said, the Members List is one piece of evidence, and I will later discuss what, if anything, can be inferred from this list.
CONSPIRACY CHARGES
[85] Conspiracy can be defined as an agreement between two or more persons to commit an unlawful act. The essence of criminal conspiracy is proof of agreement. See R. v. Papalia; R. v. Cotroni, 1979 CanLII 38 (SCC), [1979] 2 S.C.R. 256.
[86] The actus reus of the offence of conspiracy is the formation of the agreement and the common unlawful design. The mens rea is the intention to enter into the agreement, and the intention to put the agreement into effect. See R. v. O'Brien, 1954 CanLII 42 (SCC), [1954] S.C.R. 666; U.S.A. v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462; R. v. H.A., 2005 CanLII 32566 (ON CA), [2005] O.J. No. 3777, at paras. 46 to 48; and R. v. Root, 2008 ONCA 869, at paras. 65 to 71.
[87] Mere knowledge of, discussion of, or passive acquiescence to a plan of criminal conduct is not, of itself, sufficient. See R. v. McNamara, (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 (OCA), at p. 452.
[88] Regarding proof of a conspiracy, in the case of R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938, the Supreme Court of Canada set out a three-step process for determining whether the acts or declarations of a co-conspirator are admissible as evidence against the accused, as follows:
(i) The Crown must first prove beyond a reasonable doubt the existence of a conspiracy;
(ii) The Crown must then show that the evidence directly admissible against the accused proves, on a balance of probabilities, that the accused was a member of that conspiracy, and
(iii) If steps (i) and (ii) are resolved against the accused, the trier of fact is entitled to consider the acts and declarations of a co-conspirator in furtherance of the conspiracy as evidence against the accused on the issue of his guilt.
[89] In this case the Crown has alleged two broad conspiracies, the first being a conspiracy between McGean, Lucas, Earle, Carley, Macedo, Ahmed, Crothers, Leggat and Drennan to traffic in cocaine, and the second being a conspiracy between McGean, Lucas, Gough, Gibbons, Crothers, Hook, Ostaszewicz, and Caughill to traffic in heroin.
[90] To prove the conspiracies, the Crown relies on many audio clips from the authorized intercepts, and many visual observations made by surveillance officers. It is the Crown's position that these bits of evidence fit together to prove the two alleged conspiracies.
[91] I accept that conspiracies by their nature are rarely proved by direct evidence. That is, it is unlikely that criminal conspirators would ever act like corporate lawyers; they are not likely to prepare a proper offer to work together, followed by a formal acceptance, followed by a well-drafted agreement. Rather, in conspiracy cases the court usually must look at the various pieces of evidence and determine whether an inference can be made, beyond a reasonable doubt, that the conspiracy, or agreement, has been proved.
[92] This concept was referenced long ago in the case of Paradis v. The King, 1933 CanLII 75 (SCC), 61 C.C.C. 184, a 1933 decision of the Supreme Court of Canada. In that case, Rinfret, J. stated at p. 186:
Conspiracy like all other crimes, may be established by inference from the conduct of the parties. No doubt the agreement between them is the gist of the offence, but only in very rare cases will it be possible to prove it by direct evidence. Ordinarily the evidence must proceed by steps. The actual agreement must be gathered from "several isolated doings” having possibly little or no value taken by themselves…..
[93] With those concepts in mind, I am going to start by making findings of fact regarding some of the more prominent incidents.
[94] I first turn to the Private Eyes cocaine deal that occurred, as alleged by the Crown, on October 23, 2013. It is the Crown's position that there was a conspiracy agreement to purchase one kilogram of cocaine and distribute it through a network controlled by McGean.
[95] In that respect I find that by mid October 2013, Lucas and Earle had concerns about the quality of the cocaine that they had and about the price they had to pay for it. Lucas had told McGean about his concerns. I find that Lucas had a connection with a person in Hamilton, Ontario, who Lucas felt could supply better cocaine. Police officers believe that person to be Dan Herder, and I will make that assumption for the purposes of these reasons, although the identity of the Hamilton seller is not a necessary component of the charge.
[96] I find that in the afternoon of October 23, Lucas received a call from Herder asking if Lucas was ready to receive something. Lucas said that he was, and that he would get ahold of Randy, referring to McGean. Lucas told McGean that his boy from Hamilton was coming down and that he would inform McGean when he was leaving. McGean agreed and said "sounds good".
[97] Then, in the early evening, Lucas, McGean, Macedo, and Earle had a discussion that implied that Macedo was part of the group that was waiting for whatever was coming from Hamilton. Macedo said that he would wait for Lucas’ phone call. Lucas informed Macedo, "Don't worry, you'll get one… Everything's good.” Macedo then talked directly to McGean and they arranged to meet up with each other later.
[98] Then, Herder called Lucas and told him that he personally would not be attending, but that he would be sending two guys with the thing that was being purchased. Herder agreed that one of his boys would meet with “R”, referring to McGean.
[99] Then, later in the evening of October 23, Lucas informed Herder that he was at the Private Eyes nightclub. Herder's guys were on their way. Lucas then called McGean and said that the guys would be there in 15 minutes. McGean confirmed that he was on his way to Private Eyes.
[100] By that point, police officers had set up surveillance at Private Eyes. Initially, the officers observed Macedo, Earle, and Lucas at Private Eyes. Ahmed arrived shortly thereafter. Lucas was observed going in and out of the club, on and off of his phone, and hanging around the parking lot.
[101] Then, an Elantra vehicle with B.C. licence plates arrived and two males exited. The two males went into the club. Shortly after telling Lucas that he was on his way to Private Eyes, McGean arrived in his Hummer. Lucas met McGean in the parking lot and they walked together into the club.
[102] The two males from the Elantra were next seen exiting the club in the company of McGean and Lucas. They all walked to the Elantra, then to McGean’s Hummer, and then back into the club. Later, McGean and Lucas entered McGean's Hummer and drove together to Koko's Bar.
[103] Very late that evening Lucas was intercepted talking to a female, Krystal, explaining that he did not call her earlier because he “just had to pick up a couple of keys” and he was still “breaking it up.”
[104] Then, there were several calls between McGean and Lucas early in the morning of October 24 in which they discussed the thing that they had obtained in the evening of October 23. There was a discussion about the amount. McGean said that it should be about “35 and a half and a quarter”. In my view this discussion is strong evidence that the thing that was obtained was one kilogram of cocaine.
[105] Further, on October 24, Lucas again talked with Krystal, and told her that he had to drop off “a couple of nines”, referring to a nine ounce package. He also said that he had to drive to Niagara Falls with nine ounces of dope. Lucas told the woman that he now had the best in the city.
[106] Then, there were telephone calls between Lucas and Earle on October 26, in which Lucas asked Earle how to get something to him. Lucas was at McGean's residence, and Earle said that he would come by R's house to pick it up. Then, there was a discussion on the same day between Lucas and McGean about how much Lucas was to give to Earle. McGean told Lucas to give him 18 ounces.
[107] I note that when Earle was arrested on November 6, 2013, his premises were searched and police officers found 14 ounces of cocaine.
[108] From all of this evidence I find that the Crown has proved that there was a conspiracy with respect to the purchase of one kilogram of cocaine from a person believed to be Herder. I find that there was an agreement between a group in Niagara to purchase the cocaine from Herder's guys, to receive delivery at Private Eyes, and then to distribute the cocaine among themselves for sale in the Niagara Region.
[109] I next turn to what has been called the Barrie cocaine deal. I find that in early October 2013 there was a general concern about the absence of cocaine in the Niagara Region, and that Macedo undertook to buy some cocaine for a group.
[110] On October 3 Macedo spoke to a person in the Barrie area by the name of Derek Halward and agreed to meet him at a restaurant called The Bourbon Bar in the Old Simcoe Hotel in Barrie.
[111] Surveillance officers in the Barrie area observed Macedo arrive in his Hummer with an unknown male at the Old Simcoe Hotel and meet there with Halward and another male, Brian Johnson. Macedo, Halward, and the unknown male then drove in Macedo’s Hummer to a private residence, believed to be that of Johnson. They all entered the residence. The unknown male at one point exited the residence, entered Macedo's Hummer, and then returned to the residence.
[112] On October 5 Macedo talked to Halward about getting a "pack", which is a term for a one kilogram brick of cocaine, for $47,000. Macedo asked him to put one aside for him, and Halward agreed.
[113] Later on October 5 Halward said that “the works” were in, and they were just testing it. It would not be long before it was available. Macedo said he wanted a whole one. Halward told Macedo to talk to "your people" and tell them to get their “paperwork” together. I accept that the reference to “paperwork” is a reference to money. Macedo said that “his guys” had gone away right now. This dovetails with the fact that McGean and his group had gone to Ottawa at this time.
[114] Over the next few daysMacedo and Halward talked about making final arrangements for delivery. They also talked about the quality of the product. On October 10 Halward gave the final price of $47,000, and Macedo said he would let him know. A few hours later Macedo told Halward he would take it.
[115] By October 12, I accept that the product had been delivered. Lucas talked with Drennan and told him that "we’re going through a different source now. We are going through M". I find that “M” is a reference to Macedo. Drennan told Lucas to cut it into Cubans, which is a reference to a quarter ounce package.
[116] Then, on October 16, 2013, Lucas and McGean talked about the new product. Lucas complained about getting charged $1500 for each ounce. Again, this fits with the pricing for one ounce of cocaine.
[117] Based on all of these facts, I find that there was a conspiracy to purchase one kilogram of cocaine from Halward in Barrie. I find that there was an agreement between a group in Niagara to purchase the cocaine, divide it between themselves, and then sell it in the Niagara Region.
[118] I am next going to turn to the alleged heroin conspiracy. The Crown's case for this conspiracy turns on the conversations between McGean and Michael Hook.
[119] There are two conversations in late August between McGean and Hook in which it is clear that Hook was testing new samples of heroin and reporting his findings to McGean. Specifically, on August 21 there was a discussion about whether a new product was “pretty good”. Hook told McGean that he would try it again and call McGean back in half-an-hour.
[120] Then, the most telling conversation occurred on September 23. During this conversation it was very clear that Hook was testing two new samples of heroin. Hook had others with him who were testing the product as well, but it was Hook who was reporting his findings to McGean.
[121] During that conversation McGean and Hook talked about whether or not the heroin needed vitamin C or lemon juice. They also talked about the fact that one sample was white stuff and the other was brown stuff. Hook said “the brown stuff smokes fine… the brown is way better quality wise… The white stuff's not so bad because it's cleaner… The taste is way better… But for shooters it's not as good as the brown…". This is clearly a discussion about two different types of heroin, and whether the brown or the white was better. Also, clearly whatever was being tested had to be broken down or mixed with something else, such as vitamin C.
[122] Toward the end of the conversation Hook said, “You should make a move on it…" McGean then asked if “it’s better than anything around right now” and Hook said, “Yes.” McGean then told Hook, "Just remember you're making an $80,000-$90,000 call." This pricing fits with the price for one kilogram of heroin.
[123] By the next day, September 24, McGean seems to have a new batch of heroin in his possession. He called Gibbons and asked him how many he needs. Gibbons asked for “four” and McGean said, "I could probably do that." McGean then called Hook and told him to come to the bar quick. Later that day, on September 24, surveillance officers observed Lucas, McGean, and Hook meet with other unidentified males at Koko's Bar.
[124] On September 29, Lucas also had a new batch of heroin in his possession. He spoke with McGean and asked what he was supposed to do with it. I infer this was a reference to the fact that the product had to be broken down with something. Lucas said that he had 22.2 left. He asked if he should give it to Hairball, referring to Hook. Lucas then called Hook and asked him how he should break it down and Hook said to use vitamin C or vinegar.
[125] I note that when Hook was arrested on November 6, 2013, the officers found 51.35 grams of heroin in Hook’s residence.
[126] From all of this evidence I find that there was a conspiracy to purchase one kilogram of heroin. There was an agreement to test samples of heroin, purchase the heroin, and then distribute it.
[127] Those are my findings of fact that relate to step one of the Carter test. In summary, I find that there were two conspiracies to traffic in cocaine: the Private Eyes deal, and the Barrie deal. I find that there was one conspiracy to traffic in heroin.
[128] Regarding other drug transactions, the intercepts certainly provide evidence that some members and some non-members of those conspiracies committed other drug offences on other dates, but I find that the Crown can only prove the necessary elements of conspiracy with respect to these three incidents.
[129] I next turn my attention to step two of the Carter test to determine the members of the conspiracies for the purposes of the co-conspirators exception to the hearsay rule. The Crown only needs to prove membership on a balance of probabilities. However, in doing so, the Crown can only rely upon evidence that is directly admissible against each accused.
[130] With respect to the Private Eyes deal, the declarations and actions of Lucas and McGean clearly establish that they are members of that conspiracy. Lucas obviously was the broker for the deal as Lucas was in contact with Herder. McGean’s conversations with Lucas show that McGean was a party to the arrangements to purchase cocaine. McGean approved the arrangements, and he then showed up at Private Eyes to meet with the sellers, and receive the product.
[131] Further, I find that Macedo is also a member of that conspiracy. He was actively engaged with Lucas and McGean in anticipation of the purchase, and he also went to Private Eyes to receive the product.
[132] Finally, Earle was involved in the discussion about getting new product both before and after the product was obtained. In a conversation after the exchange at Private Eyes, Earle clearly states that he expects to receive some of the product, and that he will drive to McGean's house to pick it up. Therefore, I find that Earle is also a member of that conspiracy.
[133] Regarding the Barrie deal, Macedo's actions establish him as the broker for the group that was buying cocaine. Lucas's statements about “going through M” also establish him as a member of the group.
[134] Further, after the Barrie deal, on October 16, McGean and Lucas are clearly talking about their recent purchase of cocaine through Macedo. Lucas says he is getting complaints, but he is loyal to McGean, and McGean acknowledges his comments. Therefore, I accept that McGean is also a member of this conspiracy.
[135] Lucas’ involvement in the Barrie deal is also evidenced in an intercept of October 9, 2013, a time when the cocaine is about to be received, or was just received. Lucas says, “I’m the one who supplies everyone.” and “If anyone needs shit from the crew, they come to me.”
[136] In addition, I find that in or around the time of these two cocaine deals, McGean and Lucas had an agreement whereby Lucas was to act as an enforcer for any adversaries or competitors in the drug trade, on McGean’s instructions. In particular, there is an intercept of October 10, 2013, in which McGean instructs Lucas to deal with people who had robbed Hook; and there is an intercept on October 21 in which McGean tells Lucas not to “row on Steve” as Steve was one of his guys. I find that this arrangement is part of the cocaine conspiracies.
[137] In my view, all of these conversations establish that McGean, Lucas, and Macedo are all parties to an agreement to purchase and sell cocaine in both the Private Eyes deal and the Barrie deal, and that Earle is a party to the Private Eyes deal.
[138] Regarding the heroin conspiracy, the primary parties are McGean and Hook. That is clear from their conversations about testing and buying the product.
[139] In addition, I find that Lucas received a quantity of the heroin that was purchased by the group, and Lucas had discussions with Hook as to how to prepare the product.
[140] Further, there was an incident in which Lucas had some of this heroin in his possession and sold it to Justin Yates. Regarding that incident, I find that on October 10 Lucas agreed by telephone to meet Yates in the back of the Welland Avenue carwash. Surveillance officers then observed a blue van drive into the back area of the Welland Avenue carwash. They also observed Lucas leave 80 Page Street and walk to the back of the carwash while the van was still there.
[141] After the meeting behind the carwash, police officers stopped the van, and arrested the driver, Yates. When he was strip-searched, eight grams of heroin was found concealed in his buttocks. Subsequently, there were two intercepts in which Lucas seemed upset that Yates had been arrested shortly after meeting with him. In those intercepts it is obvious that Lucas knew that Yates had heroin on him when he was arrested.
[142] Accordingly, I find that Lucas was in possession of heroin when he met with Yates behind the carwash, and that Lucas sold eight grams of heroin to Yates.
[143] Still further, I find that Lucas’ conduct in dealing with the people who had robbed Hook suggests that the Lucas/McGean agreement for Lucas to act as an enforcer extended to both the heroin and the cocaine conspiracies.
[144] Accordingly, I find that McGean, Lucas, and Hook were members of the heroin conspiracy.
[145] There are various other players that are possible members of these conspiracies, and I would like to deal with their involvement now.
[146] First, I am going to deal with Gough's involvement. The evidence against Gough is primarily in the form of intercepted conversations between Lucas and Gough. The calls take place from approximately October 11 to October 24. At no time does it appear that Gough and Lucas ever talk about cocaine. Their discussions seem to revolve around different types of heroin.
[147] In my view the discussions between Gough and Lucas indicate that Lucas is a seller and Gough is a buyer. Moreover, the quantities involved seem to be relatively small. Gough did not necessarily know all of the sources of Lucas' heroin, but he was aware that Lucas could get different types of heroin.
[148] For example, on October 20 Gough called Lucas and opened the conversation with the question, "You got more stab?" This is simply a request for more heroin. In the same conversation, Lucas says that he has a sample of something new “that's like glass.” Gough asks for a sample. Lucas says that he has to wait.
[149] Then, on October 21 Gough wanted to buy some down, and Lucas asked him if he wanted four doughnuts. Gough agreed. Lucas told him to meet him at the clubhouse and to bring scales and the money.
[150] From this evidence I conclude that Gough buys smaller amounts of heroin from Lucas, and probably resells it. However, I cannot conclude that Gough is a party to an agreement that has a common unlawful design. There is a substantial difference between a person who agrees to buy heroin and a person who is a party to an agreement with a common intention to traffic in heroin. Therefore, I cannot find that Gough is a member of either the heroin or the cocaine conspiracy.
[151] Similarly, I cannot find that Gibbons is a member of either conspiracy. It is clear that Gibbons works for McGean and reports to McGean. It is also clear that Gibbons sells heroin.
[152] Specifically, I find that on September 17, 2013, Gibbons sold 1.4 grams of heroin to Stephen Prankie in an exchange that surveillance officers observed on Allanburg Road. That incident is proof of trafficking in heroin; however, even on a balance of probabilities standard, I cannot find that Gibbons is a party to a conspiracy agreement. Gibbons seems to be a relatively low-level dealer who works closely with the conspirators.
[153] I next considered the role of Crothers. I find that Crothers was a person who was regularly involved in drug dealing, particularly cocaine. He had people who worked for him, including Carley and Leggat. Crothers had a relationship with McGean, but that relationship fell apart. It is clear that by the middle of August, Crothers in his words “got fired". He told his brother, Leggat, that "I don't work for him anymore”.
[154] Considering that the cocaine conspiracies that I found to exist were agreements made in October 2013, and given that Crothers’ involvement with McGean ended in mid-August, I cannot find that Crothers is a party to any conspiracy.
[155] I next considered the involvement of Meaghan Caughill. In my view Lucas used Caughill to sell heroin for him. Caughill dealt in small quantities, and is clearly not a member of the conspiracy.
[156] Finally, I find there is little evidence with respect to the involvement of Ahmed, Drennan, Ostraszewicz, and Carley in either conspiracy. Carley was obviously a dealer in heroin and cocaine, but his relationship with McGean or Lucas is not well established.
[157] I now turn to step three in the Carter analysis. The acts and declarations in furtherance of the conspiracy of all persons I have found to be members of the conspiracies are admissible against each accused. At this stage, I must consider all of the admissible evidence and determine whether the Crown has proved the conspiracy charges against the three accused.
[158] With respect to the charges against Gough, I found that Gough was not a member of either conspiracy, and therefore the conspiracy charges against Gough must be dismissed.
[159] I have found McGean and Lucas both to be members of two cocaine conspiracies and one heroin conspiracy. Regarding all three conspiracies, there is no direct evidence of agreement, but from the conduct and statements of all of the members of the conspiracies, I find that the Crown has proved beyond reasonable doubt that McGean and Lucas formed agreements with each other and with others with a common intention to commit criminal offences.
[160] I find that each of the co-conspirators had defined roles in the conspiracies. McGean’s role in all three conspiracies was to make the final decisions regarding what to purchase, the price to pay, and how and when to receive the product. McGean and Lucas agreed that McGean would make these decisions and that Lucas would carry them out. Examples of McGean’s decision making include approving the Private Eyes meeting; quantifying the amount of cocaine received; deciding how much cocaine Earle should get; approving the heroin purchase; and instructing Lucas to deal with competitors or those who robbed Hook.
[161] Lucas’ role was as a right hand man for McGean. He was a distributor for the crew, and an enforcer for McGean. Lucas also was the broker for the Private Eyes deal.
[162] Earle was involved as one of the group who bought and distributed cocaine in the Private Eyes deal.
[163] Macedo was the broker in the Barrie deal and part of the group who bought cocaine in the Private Eyes deal.
[164] Hook was the person who tested heroin and was involved in selling it.
[165] All of this evidence leads me to conclude that McGean and Lucas had the intention to agree, formed agreements between themselves and others with a common intention to commit criminal offences, and intended to put the agreements into effect.
[166] Defence counsel raises one other issue on the conspiracy charges. Defence counsel submits that the Crown has alleged two very broad conspiracies in the indictment, and that the Crown has not proved those conspiracies, as alleged. In particular, the Crown alleged that the cocaine conspiracy ran from July 17 to October 29, 2013, and involved an agreement between McGean, Lucas, Earle, Carley, Macedo, Ahmed, Crothers, Leggat, and Drennan.
[167] The Crown alleged a heroin conspiracy that ran from July 19 to October 29, 2013, and involved an agreement between McGean, Lucas, Gough, Gibbons, Crothers, Hook, Ostaszewicz, and Caughill.
[168] I accept that the Crown has not proved that the conspiracies ran for the time alleged and involved all of the named conspirators. Thus, the Crown has not proved the full extent of the case that was alleged against these accused. However, whether or not there should be a conviction depends upon whether my findings of fact fit within the scope of the charge as alleged in the indictment and as modified by the Crown’s submissions.
[169] This issue was considered in the case of R. v. Douglas, 1991 CanLII 81 (SCC), [1991] 1 S.C.R. 301. In that case at para. 41, Cory J. wrote:
If the conspiracy proven includes fewer members than the number of accused or extends over only part of the period alleged, then the conspiracy proven can still be said to be the same conspiracy as that charged in the indictment. In order to find that a specific conspiracy lies within the scope of the indictment, it is sufficient if the evidence adduced demonstrates that the conspiracy proven included some of the accused, establishes that it occurred at some time within the time frame alleged in the indictment, and had as its object the type of crime alleged.
[170] In my view, both the Private Eyes deal and the Barrie deal support the cocaine conspiracy charge. Even though neither one of those individual deals is as broad as the conspiracy alleged in the indictment, the two separate cocaine conspiracies occurred within the time period alleged and involved some of the named conspirators. Therefore, both the Private Eyes deal and the Barrie deal support a conviction against McGean and Lucas on the cocaine conspiracy charge.
[171] In a similar manner, the findings of fact I have made regarding the heroin conspiracy support a conviction against both McGean and Lucas on the heroin conspiracy charge.
CRIMINAL ORGANIZATION CHARGES
[172] In the indictment, there are four separate criminal organization charges. Prior to the trial, the Crown specified that the criminal organization referenced is the Black Pistons Motorcycle Club of St. Catharines. Therefore, in order to obtain a conviction the Crown must prove beyond a reasonable doubt that the Black Pistons was a criminal organization.
[173] Section 467.1 of the Criminal Code defines a “criminal organization”. As discussed in the case of R. v. Gardner, [2014] O.J. No. 4021, at para. 111, to establish that there is a criminal organization, the Crown must prove, beyond a reasonable doubt, the following:
That there is a group of three or more persons, however organized;
That the group has, as one of its main purposes or activities, the facilitation or commission of one or more serious offences; and
That the facilitation or commission of the offence or offences, if committed, would likely result in the direct or indirect receipt of a material benefit by the group or any member of the group.
[174] For the purposes of this case, it is acknowledged that trafficking in cocaine and trafficking in heroin fall within the definition of a “serious offence”.
[175] Regarding the first element, the use of the phrase “a group, however organized” means that the definition of a criminal organization is a flexible one that is designed to capture all forms of criminal organizations. See the case of R. v. Venneri, 2012 SCC 33, [2012] 2 S.C.R. 211, at para. 29.
[176] In the case of R. v. Beauchamp, 2015 ONCA 260, [2015] O.J. No. 1939, at para. 152, the court wrote about this flexible definition, as follows:
In R. v. Venneri, … the Supreme Court of Canada sketched out the contours of what “a group, however organized” is meant to portray. Whether a targeted group is a “criminal organization” is to be determined on a flexible basis, not on the basis of pre-conceived notions about what organized crime may look like. At the same time, however, care must also be taken not to overextend the reach of the provisions and turn every conspiracy of three or more persons involving the commission of serious crimes for material benefit into a criminal organization. [Emphasis added.]
[177] Also, in the Venneri decision, Fish J., at paras. 27 to 35, highlighted the need for “some form of structure and degree of continuity” as a means of distinguishing between a criminal organization and other forms of illegal group activity.
[178] In the present case, I find that the Black Pistons was a group that was organized and had at least three members. Regarding the members, from the intercepts, I find that McGean was the founding member who started the club. By his own statements, McGean made the decisions as to who can and cannot become a member.
[179] Further, from the intercepts, I find that Lucas was a probationary member throughout the summer of 2013 and became a full member in late October 2013; that Earle was a member and the vice-president of the club; that Rob Nolin was a member and the road captain; that Drennan was a member and an officer; that Carley was a member; and that Crothers was a member and an officer of the club until he was fired in mid-August 2013.
[180] The complete membership of the Black Pistons is not clear. The Crown relies on the Members List that was found at the clubhouse when the search warrants were executed on November 6, 2013. The Crown suggests that this was a list of Black Pistons members as of October 2013; however, there are several flaws in that proposition.
[181] The first obvious flaw is that McGean’s name is not on the Members List, and it is very clear from all of the other evidence that McGean was always a member of the Black Pistons.
[182] Further, the name of Mario is on the Members List and this would seem to be a reference to Macedo. However, Macedo was never a member of the Black Pistons and was always a member of the Outlaws Motorcycle Club.
[183] Still further, the name of Derek is the last one on the list. The only reference to a Derek in the intercepts is to Derek Leggat who was kicked out of the club in August 2013.
[184] I also acknowledge that there is some confusion about Gough’s membership.
[185] Therefore, as to the complete membership, I cannot make exact findings. However, I find that the Crown has proved, and only needs to prove, that this was a group of three or more members.
[186] I also accept that the Black Pistons was somewhat organized. A written constitution was found at McGean’s residence and it is entitled, “Black Pistons MC National Constitution”. It is a three-page typed document with a “Revision Date” of February 22, 2013.
[187] The Constitution covers several organizational topics, including rules that a member must be 21 years of age; a member must be able to ride a motorcycle; a member must own a traditional American-made motorcycle; a new member must have known a member for two years or more; a member must visit all other Chapters and attend mandatory functions; and a member must attend church meetings. There is also a rule about a two-month probationary period, and there are fines for the loss of a patch or club property.
[188] Further, in the intercepts, McGean, Lucas, and Crothers are all heard to be talking about the clubhouse where members meet at 80 Page Street, St. Catharines. Also, in the intercepts, McGean, Lucas, Carley, Crothers, and Earle all talk about attending church meetings at the clubhouse.
[189] Still further, surveillance evidence showed the presence of McGean, Lucas, Carley, Crothers, Gough, and Earle at the clubhouse.
[190] Therefore, on the basis of all that evidence, I find that the Crown has proved the first element of the definition of a criminal organization, that the Black Pistons was a “group of three or more members, however organized”.
[191] I now turn to the second element in the definition. The Crown must prove beyond a reasonable doubt that the Black Pistons had “as one of its main purposes or activities, the facilitation or commission of one or more serious offences”.
[192] When I analyze this issue, I keep in mind that again it is very unlikely that the Crown could ever prove this element of the offence by way of direct evidence. That is, it is unlikely that any organization would state or record that one of its main purposes or activities was to commit a criminal offence.
[193] To prove this element, the Crown submits that the evidence shows that several members of the Black Pistons were involved in the business of drug trafficking; that each had a defined role in the drug business; that the clubhouse at 80 Page Street was fortified so that it would be a safe place in which to conduct illegal business; that there was some territorial protection and/or enforcement with respect to the drug business; and that the sale of drugs generated large sums of money for the Black Pistons. On this last point, the Crown relies upon the intercepts that suggest that money was owed to McGean for drug sales and that McGean kept a record of monies owed to him.
[194] Having carefully considered the Crown’s position on this element, I find that there are many problems with the Crown’s case. I am going to list some of those problems.
[195] First, I cannot assume that because the Black Pistons was a motorcycle club, the Black Pistons must be a criminal organization. That is, the Crown must still prove its case. Defence counsel acknowledge that there may be certain negative connotations with respect to motorcycle clubs, but submit, and I agree, that it cannot be assumed that all motorcycle clubs are criminal organizations. A motorcycle club could simply be a social club.
[196] Second, I accept that there are intercepts in which the accused talk about drug transactions, and there are also intercepts in which the accused talk about Black Pistons’ business; however, there is surprisingly very little overlap in these conversations between the two topics. If the Crown wishes to show that one of the main purposes or activities of the Black Pistons is drug trafficking, the Crown must make the connection between the drug trafficking business and the Black Pistons’ organization.
[197] In my view the only real evidence in the intercepts of a connection between these two topics is the possible use of the clubhouse as a place to transact drug business. Even that evidence is limited.
[198] Third, there is no evidence that members of the Black Pistons were expected to engage in the drug business. There are simply no intercepts to suggest that any particular member was compelled to participate in the drug business. Further, at least a couple of names on the Members List, namely Kemo, Clarke, and Rob, were not ever mentioned in any discussion with respect to the drug trafficking business.
[199] Fourth, I acknowledge that one aspect of any motorcycle club could be the possible intimidation of others. However, in this case there is no evidence that the Black Pistons’ name or colours were ever used to enforce the purchase or sale of drugs, to control the drug business, or to effect discipline.
[200] In my view this case is very unlike the circumstances in the case of R. v. Lindsay, 2004 CanLII 34074 (ON SC), [2004] O.J. No. 4097, in which two members of the Hell’s Angels wearing Hell’s Angels’ clothing went to a restaurant together in order to extort money from their victim.
[201] Fifth, the role of Hook in the drug conspiracy hurts the Crown’s case on the criminal organization charge. Hook was a major player in the heroin conspiracy. Hook, in fact, was the person making the $80,000 to $90,000 decision as to which heroin to purchase. But, Hook was never a Black Pistons member, and there was no indication that he had any designs to become one.
[202] This suggests that some members of the Black Pistons (McGean and Lucas) were illegally working together with another non-member (Hook) in the drug trafficking business. This does support the view that there was a drug conspiracy, but it does not support the view that the drug conspiracy was part of the Black Pistons’ business.
[203] Sixth, regarding enforcement, it is correct that Lucas on more than one occasion asked McGean for permission to deal with a problem in the drug business.
[204] However, in the intercepts with respect to these enforcement discussions neither McGean nor Lucas ever mentioned the Black Pistons. McGean does not say that he will get together a few Black Pistons members, have them wear their colours, and go with Lucas. In fact, McGean says he will “send a few guys” with Lucas. In my view McGean says exactly what the head of a drug ring would say, regardless of whether he was a member of a motorcycle club.
[205] Furthermore, the same type of scenario arose when Hook, a non-member, was robbed during a drug deal. McGean authorized Lucas to deal with the thief and impose some discipline. Again, this incident suggests that Lucas went to McGean not because McGean was associated with the Black Pistons, but because McGean was the head of the drug trafficking business.
[206] Seventh, the Black Pistons’ Constitution does not help the Crown. The Crown says that the Constitution contemplates the possibility of members being arrested. On the other hand, defence counsel suggest that the Constitution focuses on riding motorcycles and going to meetings, and further that the Constitution specifically states that criminal conduct such as abuse of drugs, abuse of alcohol, and assaults on fellow members will not be tolerated.
[207] I recognize that the Constitution could easily be a smoke screen designed to hide any criminal activity. That is, I do not believe for a second that the Black Pistons do not tolerate criminal activity just because their Constitution says so. But, I also accept that the Constitution on its face sets out a legitimate purpose for the Black Pistons, namely that it is an organization for motorcycle riders to organize runs and to socialize. This raises the possibility that criminal conduct may not be one of the main purposes of the club.
[208] Lastly, the intercepts and the evidence found on the execution of the search warrant suggest that McGean kept a book of debts that were owed to him. Again, this does not assist the Crown. There is nothing that links these debts to the Black Pistons; the debts are only linked to McGean.
[209] McGean is the head of the drug trafficking business. Again, if McGean is the head of a drug trafficking ring, it is only logical to assume that he would keep a debt book, regardless of whether he was in a motorcycle club.
[210] In summary, I find that the Crown has proved that there were drug conspiracies, namely conspiracies to traffic in heroin and cocaine. I find that the drug conspiracies involved some members of the Black Pistons, but that not all of the Black Pistons were members of the drug conspiracies.
[211] I accept that there was a certain criminal element in the membership of the Black Pistons, and it may have been a wide spread criminal element. However, the fact that an organization has members who are criminals does not mean that the organization is a criminal organization as defined by the Criminal Code.
[212] To prove that an organization is a criminal organization, the Crown must prove that one of its main purposes or activities is the facilitation or commission of one or more serious offences. I find that there is a reasonable doubt on this element in this case.
[213] Therefore, the Crown cannot prove that the Black Pistons was a criminal organization and the criminal organization charges must fail.
THE OTHER CHARGES
[214] I next turn to the remaining charges.
[215] Lucas is charged with trafficking in heroin on October 10, 2013. This is in reference to the sale of heroin to Yates behind the Welland Avenue carwash. I have already made findings of fact about this incident that are sufficient to support a conviction of Lucas on this charge.
[216] Lucas is also charged with possession of heroin and possession of cocaine for the purpose of trafficking. These two charges refer to the heroin and cocaine that was found in a bedroom closet at the clubhouse at 80 Page Street on November 6, 2013, when the search warrant was executed.
[217] It is the Crown’s theory that the drugs that were found hidden in the closet of that bedroom belonged to Lucas. I find that the Crown cannot prove that Lucas was in possession of these drugs as the Crown cannot establish that Lucas had the necessary knowledge or control over these drugs.
[218] The evidence shows that Lucas stayed at least periodically at the clubhouse. Further, he was arrested a short distance from the clubhouse. However, the evidence also shows that many other club members had access to that clubhouse. Lucas did not have exclusive access to or control over any particular room. Lucas’ only connection to that room was a medical prescription found in the dresser in the room. Further, the room did not appear to be occupied as there was little clothing and little furniture there.
[219] Overall, I find that the Crown cannot prove these two charges.
[220] Next, I turn to the proceeds of crime charge against McGean. On execution of the search warrant on November 6, the officers found $3,715 (Cdn) and $1,540 (US), as well as a money-counter, at McGean’s residence. It is alleged that the money was the proceeds of crime.
[221] I have found that McGean conspired to traffic in heroin and cocaine, and that he was at the head of both conspiracies. There is evidence that these conspiracies generated profits. Also, there were debt lists found in McGean's residence that suggest that various sub-dealers owed money to him. There were also intercepts that for example Crothers owed him 10,000 and Hook owed him 30,000.
[222] Given the large amount of cash that was found at McGean’s residence, I am prepared to accept that the cash was the proceeds of crime. McGean will be found guilty of that charge.
[223] Finally, I turn to the prohibited weapons charges. With respect to these charges, there is really little contest. McGean has acknowledged, through counsel, that the Taser found at his residence was a prohibited weapon and that he did not have a licence for same. He also acknowledged that there was a prior prohibition order under s.110 of the Criminal Code. I find him guilty of all counts related to the Taser.
[224] Similar concessions were made with respect to a switchblade found at his residence. I also find McGean guilty of the charges related to the switchblade.
CONCLUSION
[225] In conclusion, referring to the counts in the indictment, I make the following findings:
[226] On Count 1, conspiracy to traffic in cocaine for the benefit of a criminal organization, I find McGean Not Guilty, and I find Lucas Not Guilty.
[227] On Count 2, conspiracy to traffic in cocaine, I find McGean Guilty, and I find Lucas Guilty.
[228] On Count 3, instructing Lucas for the benefit of a criminal organization, I find McGean Not Guilty.
[229] On Count 4, conspiracy to traffic in heroin for the benefit of a criminal organization, I find McGean Not Guilty, I find Lucas Not Guilty, and I find Gough Not Guilty.
[230] On Count 5, conspiracy to traffic in heroin, I find McGean Guilty, I find Lucas Guilty, and I find Gough Not Guilty.
[231] On Count 6, trafficking in heroin for the benefit of a criminal organization, I find Lucas Not Guilty.
[232] On Count 7, trafficking in heroin, I find Lucas Guilty.
[233] On Count 8, possession of cocaine for the purpose of trafficking, I find Lucas Not Guilty
[234] On Count 9, possession of heroin for the purpose of trafficking, I find Lucas Not Guilty.
[235] On Count 10, possession of a prohibited weapon, namely a Taser, without a licence, I find McGean Guilty.
[236] On Count 11, possession of a prohibited weapon, namely a Taser, while knowingly not being a holder of a licence, I find McGean Guilty.
[237] On Count 12, possession of a Taser while prohibited from doing so by an order under s.110, I find McGean Guilty.
[238] On Count 13, possession of proceeds of crime, I find McGean Guilty.
[239] On Count 14, possession of a switchblade while prohibited from doing so by an order under s.110, I find McGean Guilty.
[240] On Count 15, possession of a prohibited weapon, namely a switchblade, while knowingly not being a holder of a licence, I find McGean Guilty.
J.R. Henderson, J.
Released: September 6, 2016
CITATION: R. v. McGean, 2016 ONSC 5572
COURT FILE NO.: 121/15
DATE: 2016/09/06
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Crown
- and -
RANDY MCGEAN, ISAAC LUCAS AND LYLE GOUGH
Accused
REASONS FOR DECISION
J.R. Henderson, J.
Released: September 6, 2016