R. v. Madbouli, 2017 ONSC 4761
CITATION: R. v. Madbouli, 2017 ONSC 4761
COURT FILE NO.: CR-17-0000186-0000
DATE: 20170915
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MUHAMMAD MADBOULI
Defendant
Stephen Byrne, for the Crown
Peter Thorning and Deepa Negandhi, for the Defendant
HEARD: March 6-9, 14, 16, April 6, May 12 and August 4, 2017
REASONS FOR JUDGMENT
b. p. o’marra j.
overview
[1] The accused was tried before me without a jury on an indictment containing seven counts. The accused applied to exclude certain evidence based on alleged breaches of the Canadian Charter of Rights and Freedoms. In reasons released on May 30, 2017 and reported at 2017 ONSC 2890, I ruled that certain evidence must be excluded based on those breaches after applying s. 24(2) of the Charter. The crown agrees that as a result of those rulings, Counts 1, 2, 4, 6, and 7 must be dismissed.
[2] That leaves Counts 3 and 5 which read as follows:
Count 3: Muhammad Madbouli stands further charged that he, during the period from and including the 17th day of April, in the year 2014, to and including the 17th day of May in the year 2014, in the City of Toronto, in the Toronto Region, and elsewhere in the Province of Ontario, did traffick in a controlled substance, to wit; cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act.
Count 5: Muhammad Madbouli stands further charged that he, on or about the 17th day of May, in the year 2014, in the City of Toronto, in the Toronto Region, and elsewhere in the Province of Ontario, did possess property or proceeds of property, to wit; Canadian currency of a value not exceeding $5000, knowing that the property or proceeds had been obtained by the commission of an indictable offence, contrary to s. 355(b) of the Criminal Code.
[3] It was agreed at the outset of trial that the evidence received on the pretrial Charter motions would become evidence on the trial subject to rulings as to admissibility. The one important exception for the application of the voir dire evidence on the trial relates to the testimony of the accused. He testified on the Charter applications but chose not to testify on the trial proper. Therefore, his pretrial testimony is not evidence on the trial proper.
[4] In regard to the remaining two counts on the indictment, the parties agree on the following:
(1) On count 3, the crown must prove that Madbouli was trafficking specifically in cocaine as opposed to any other illicit drug;
(2) On count 5, if the crown has proven that the recovered cash was the product of drug trafficking, it matters not whether the specific illicit drug was cocaine or any other illicit drug.
THE EVIDENCE
[5] On May 16 and 17, 2014, Jermaine Rowe was the target of a major drug investigation by members of the Toronto Police Service (“TPS”). He was a named party on an authorization issued pursuant to Part VI of the Criminal Code of Canada, R.S.C. 1986, c-C46. The plan for those days was for various teams of plain clothes police officers to conduct surveillance on Rowe and others involved in suspected drug transactions. On May 17, 2014, over the course of several hours, the police observed and followed Rowe, the accused Madbouli and others as they drove to various locations in Toronto and Mississauga. The suspects moved in and out of various vehicles and met with others in circumstances that were indicative of drug trafficking.
[6] Cell phone conversations between Rowe and Madbouli were intercepted and relayed to the surveillance teams as they followed the suspects. The totality of circumstances and information indicated that Rowe, Madbouli and others were involved in drug trafficking that day. Madbouli was arrested on May 17, 2014 at approximately 8:15 p.m. Cash in the amount of $4,460 was recovered by police from the vehicle he operated at the time of his arrest.
[7] Constable Daniel Zamparo of the TPS provided opinion evidence as an expert related to the possession, purchase and sale of cocaine. He has been a member of TPS for 16 years. He was in the drug squad for seven years through 2016. The defence conceded that he was properly qualified to give opinion evidence specifically related to the following:
Aspects of cocaine, including crack cocaine, cocaine trafficking, including the pricing of cocaine in the Greater Toronto Area, the use of guarded language and slang to describe and discuss cocaine, drug paraphernalia, the practices of dealers and users with respect to the use, handling, packaging and sale of cocaine and the question of whether given amounts of cocaine are possessed for personal use or for the purpose of trafficking.
His area of expertise also extended to other illicit drugs, including marijuana and methamphetamine.
[8] Constable Zamparo was asked to comment on the commercial aspect of trafficking in cocaine in 2014 and he indicated the following:
(1) An ounce of powder or crack cocaine would cost between $1300 and $1600. There may be some negotiations based on supply and demand and whether the cocaine had been adulterated or “stepped on.” The latter phrase refers to adding a cutting agent to the cocaine in order to stretch out the supply and increase profits.
(2) Four and a half ounces of cocaine is one half of a “nine pack” or nine ounces. Four and a half ounces would cost between $4250 and $5000. A “nine pack” would cost $10,000 at the most.
(3) A “half B” refers to a half ball of cocaine or crack cocaine. That is half of one eighth of an ounce or 1.75 grams of cocaine or crack cocaine. In 2014, this would cost between $100 and $150. “Half a B” is a very common term and applies strictly to cocaine.
(4) An “eight ball” is 3.5 grams or a quarter ounce of cocaine or powder cocaine.
[9] In cross-examination, Constable Zamparo agreed that the average prices that he referred to are subject to a number of possible fluctuations. There could be situations where the drug was sold for less or more than the average.
[10] The crown played a series of brief intercepted cell phone communications involving Rowe on April 17, May 16 and 17, 2014. Transcripts of those interceptions were filed. Tabs 4, 6 and 15 of the transcripts are critical in relation to the alleged trafficking in cocaine. Those three intercepts occurred on May 16, 2014. The salient portions of them are as follows:
Tab 4 – May 16, 2014 – Start time: 13:04:12 – Jermaine Rowe and Adam
Adam (N.F.I.): Hey Adam.
Rowe: Who’s that?
Adam: What’s going on man? It’s ah…Adam, Moe’s boy.
Rowe: Yeah what’s going on?
Adam: Tell me to give you a call man? He’s good or what?
Adam: Nothing much…just looking for something tonight. You’ll be around tonight?
Rowe: Yeah for sure. What were you-n…what were you saying though?
Adam: Ah half B.
Tab 6 – May 16, 2014 – Start time: 13:45:59 – Jermain Rowe and unidentified male (it was not contested at trial that the unidentified male was Madbouli)
Rowe: Hello
Unknown Male: Yow call your cousin.
Rowe: I already talked to him.
Unknown Male: Oh you talk to him all right yow (unintelligible)
Rowe: …Yeah but what…what about the…what about the numbers with him and all that?
Unknown Male: Oh it’s just…it’s just fuckery. That…that mean it (stutters) find out what he wants and let me know and I’ll…
Rowe: …He wants four.
Unknown Male: …Tell you…fuck ahm…honestly the…the four and a half is…is…is fifty-nine.
Rowe: …He wants four…
Unknown Male: (Unintelligible)
Rowe: …So what do you want me to do for four?
Unknown Male: Thirteen-five all the way up. There’s nothing else you can do…thirteen-forty the cheapest.
Rowe: Does he know that?
Unknown Male: Umm…
Unknown Male: …Fuck he should though. Yeah I (unintelligible)
Rowe: Call him and tell him so you guys are on the same page please.
Unknown Male: What you ss…yow Chunks (ph) needs your number…okay, I’m gonna give it to him.
Rowe: Yeah but call him right now and get him on the same page…I had to…I got to go get Kiemi (ph) still.
Unknown Male: Okay.
Rowe: Before my day starts so like call…call Woo (ph) and just ask-m and tell him ‘bout the numbers please. I’m going over…
Unknown Male: Okay.
Rowe: …To deal with him before I leave.
Unknown Male: You just tell him I said thirteen-forty. That’s the way it is. Like if he takes the four and a half its fifty-nine. That’s his best bet to take the four and a half.
Tab 15 – May 16, 2014 – Start time: 14:50:07 – Jermaine Rowe and unidentified male (it was not contested at trial that this person was Madbouli)
Rowe: Hello.
Unknown Male: Yow, what you saying, fam?
Rowe: Nothing. I’m just out here now.
Unknown Male: Huh?
Rowe: I’m just out here right now. Just…ahm…oh yeah, this guy gave me fifty…he said that he got to give me how much for the…for the…for the four?
Unknown Male: I said four and a half fifty-nine.
Rowe: No, I said he never want…he never wanted four and I wanted four and I wanted four, so you told me to give him wha?
Unknown Male: ah…thirteen forty each?
Rowe: Well, yea, he said he only brought the money for some so he owes me a bill.
Rowe: So, whatever. I don’t know, but…and listen dog, I’m not even gonna trouble none of this gwop. I’m just gonna accumulate all…write everything down and you just deal with it after cause I don’t even understand, you know?
Unknown Male: What you mean (mumbles)…thirteen forty each, what’s there not to understand?
Rowe: So then put up…put thirteen and take the four, right?
Unknown Male: Yeah, that’s the whole point. That’s what you can eat. You’re keeping the four. That’s why I didn’t…I want him to take thirteen five, but fucking, right… I didn’t wanna push it.
[11] Counsel for Madbouli suggested that it is not possible to discern from these intercepted communications what drug is being referred to. He further suggested that the numbers referred to could refer to marijuana in pounds. Constable Zamparo responded that there was reference to “four and a half” which he knows to be half of a nine pack of cocaine. The pricing of “fifty-nine” means $5900 which is somewhat higher than the common pricing for that amount of cocaine. He also testified that four pounds of marijuana at the low end would be $8000.
[12] Counsel for Madbouli suggested to Constable Zamparo that it was just as reasonable that the parties to the calls were discussing marijuana as opposed to cocaine. The following exchange then occurred at trial:
A. It is possible, however, it sounds like - let me just get this straight here - it sounds like the unknown male really wants to push four and a half because if Mr. Rowe just wants to buy four he’s going to be left with a half ounce of powder. That’s why I’m thinking he’s- it sounds reasonable to me that he’s pushing to have the four and a half sale so he’s not stuck with half an ounce.
Q. Or he’s not stuck with whatever the remnant is, right? He’s not stuck with the remnant of the marijuana, right? Maybe it’s of a bad quality. Maybe he wants to get rid of it. Maybe he wants to get out of the business. Who knows?
A. Well my opinion is because breaking down - when you have a brick of cocaine it’s broken down in half, it’s broken down to a nine pack, which is nine ounces. It can be broken down to four and a half. Past that, you can break it down and sell it in ounces, however, he’s struggling to get rid of this half it would make sense that it would be cocaine because he’s stuck with half. That’s why he’s giving him the pricing that he is giving him, which is slightly over the maximum amount for what a quarter of a kilo....
Q. The high end - you say that the price that’s offered here, and I understand that - you don’t disagree with my suggestion, do you, that it is reasonable to make an argument that they’re talking about cocaine, but that it’s also reasonable, depending on other factors, that they’re talking about marijuana.
A. It’s possible.
Q. Okay, all right. But there are things about these people that we don’t understand, including how much product they have on hand, right?
A. Yes.
[13] Constable Zamparo testified that the specific guarded language used along with the prices and quantities referred to in Tabs 4, 6 and 15 of the intercepts relate to trafficking in cocaine. The intercepts are brief but his opinion does not rest on a single word or phrase.
[14] Tab 3 involves Rowe and Adam who refers to himself as “Moe’s boy.” In context this appears to refer to Muhammad Madbouli. Adam indicates he is looking for “ah half B.” The uncontradicted evidence of Constable Zamparo is that the guarded phrase “half B” is well-known to refer exclusively to cocaine.
[15] The intercept in Tab 6 involves Rowe and Madbouli approximately 45 minutes after Adam told Rowe that he was looking for a “half B.” Madbouli tells Rowe to “call your cousin.” Rowe replies he already spoke to him and asks “what about the numbers with him.” Madbouli tells him to find out what the person wants. Rowe says “he wants four.” Madbouli replies “the four and a half is…fifty nine.” Madbouli seems to be unhappy that the buyer wants four rather than 4 ½. Madbouli goes on to say that “thirteen forty the cheapest.” Based on the evidence of Constable Zamparo and the context of the intercept in Tab 6, I am satisfied of the following:
(a) Madbouli’s reference to “four and a half…at fifty-nine” refers to four and a half ounces for $5900. Constable Zamparo testified that four and a half ounces of cocaine in 2014, being half of a “nine pack” or nine ounces, would cost between $4250 and $5000;
(b) Four and a half ounces at a cost of $5900 would be approximately $1311 per ounce. Madbouli prefers to sell four and a half rather than four. If the buyer wants only four ounces, it will be $1350 or $1340 “the cheapest” per ounce. That is based on the reference to “thirteen five” and “thirteen four.” In this way the buyer would pay more per ounce if he buys only four ounces as opposed to four and a half ounces.
[16] In the Tab 15 intercept, Madbouli again tells Rowe it will be “four and a half for fifty nine.” If the sale is for four ounces it will be “thirteen forty each.”
ANALYSIS
[17] Counsel for Madbouli submits there was a significant qualification to Constable Zamparo’s evidence that leads inexorably to an acquittal on the trafficking of cocaine count. Constable Zamparo clearly stated that the specific guarded language, prices and quantities referred to relate to cocaine. Notwithstanding that, he conceded that it is possible that it related to marijuana rather than cocaine depending on a myriad of variables. Counsel submits that the mere possibility alone referred to by Constable Zamparo raises a reasonable doubt that the product discussed was cocaine. I do not agree.
[18] There is no direct evidence in this case that Madbouli and others were trafficking in cocaine as opposed to another illicit drug. Proof of this essential element is based on circumstantial evidence. It essentially comes down to my assessment of the inferences drawn and conclusions reached by Constable Zamparo.
[19] I must be satisfied that an inference of guilt drawn from the circumstantial evidence is the only reasonable inference that such evidence permits: R. v. Villaroman, 2016 SCC 33 at para. 30. Constable Zamparo’s reference to the possibility that the subject matter was marijuana rather than cocaine does not end the matter. It is the trier of fact who must assess the evidence and decide what evidence to act on. A helpful analogy is referred to in R. v. Kish, 2014 ONCA 181 at para. 53:
I start by noting that it is unhelpful generally in cross-examination to repeat a witnesses’ statement to them that had been made in chief and ask if they are “100 percent certain” of that statement. First, it is not necessary for a witness to be “100 percent certain” – that is not the criminal standard. Secondly, most reasonable persons would usually agree to a possibility they could be wrong or as the saying goes “anything is possible”. The trial judge was alive to this, stating in his reasons:
Our reliance on the evidence of any eyewitness also recognizes that an eyewitness does not have to be certain in his or her identification. To the contrary, it is well-recognized that there is a weak link between the certainty of an eyewitness and the accuracy of that witness’ evidence: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445 at para. 52. …
Rather than detracting from their evidence, in my view, their willingness to acknowledge the reality that they might be wrong only serves to enhance the genuineness with which they gave their evidence. Ultimately, it is the trier of fact who must assess the evidence and decide what evidence to act on.
In the case before me, if Constable Zamparo had not agreed that the subject matter could possibly be marijuana, I would not have been bound to find that the essential element had been proven.
[20] The intercepts in Tabs 4, 6 and 15 indicate that Rowe is the intermediary between the buyer Adam and the seller Madbouli. Adam refers to “half B.” The uncontested expert opinion of Constable Zamparo, which I accept, is that this refers exclusively to cocaine. That is an important contextual consideration in assessing the two later intercepts that afternoon between Rowe and Madbouli. The back and forth between Rowe and Madbouli involves the buyer Adam wanting to buy four ounces and Madbouli wanted to sell 4.5 ounces. The latter quantity is half of nine ounces (a nine pack) which Constable Zamparo relates to cocaine. The prices discussed between Rowe and Madbouli are somewhat higher than Constable Zamparo’s valuation for that quantity of cocaine ($5900 rather than $5000).
[21] Constable Zamparo testified that if the reference to “four” meant four pounds of marijuana, the value would be $8000, far beyond the figures discussed by Rowe and Madbouli. The possibility that marijuana was the product must be assessed in light of all the evidence, including the prices discussed. I interpret the reference to this possibility as meaning that someone, somewhere based on various unknown factors, could offer to sell marijuana at wildly inflated prices. I am satisfied that is not what happened in this case.
[22] The brief intercepted conversations between Rowe and Madbouli contain important and focused information about quantity and price. These are clearly not two neophytes in the drug trade. The notion that they could possibly be discussing marijuana at a cost grossly outside the range stipulated by Constable Zamparo does not leave me with a reasonable doubt. I am satisfied that Rowe and Madbouli discussed the sale by Madbouli of cocaine. There will be a conviction on count 3.
[23] I am satisfied that on May 16 and 17, 2014, Madbouli and others were actively involved in the trafficking of illicit drugs, specifically cocaine. The recovery of $4460 in cash from Madbouli’s vehicle at the time of his arrest is directly related to that activity.
RESULT
[24] There will be convictions on counts 3 and 5.
B. P. O’Marra J.
Released: September 15, 2017
CITATION: R. v. Madbouli, 2017 ONSC 4761
COURT FILE NO.: CR-17-0000186-0000
DATE: 20170915
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MUHAMMAD MADBOULI
Defendant
REASONS FOR JUDGMENT
B. P. O’Marra J.
Released: September 15, 2017