ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Charles Ethier and Ryan Jones
Accused
Mr. R. Sonley, Ms. M. Jarmock and Ms. J. Legrand, for the Crown
Ms. D. Condo, Counsel for Charles Ethier
Mr. J. Langevin Counsel for Ryan Jones
HEARD: September 6-9, 12-16, 19-23, 26-30; October 3-7, 24; November 24-25 and 28; December 1, 2, 12-16, 2016 (Ottawa).
Reasons for Judgment
C.T. Hackland J.
Overview
1The accused, Charles Ethier (Ethier) and Ryan Jones (Jones) are charged with conspiracy to traffic in cocaine (count 1), trafficking in cocaine (count 2), possession of cocaine for the purpose of trafficking (count 3), participating in or contributing to the activity of a criminal organization (count 4) and committing an indictable offence for the benefit of, at the direction of or in association with a criminal organization (count 5). In addition, Jones is charged with possession of a prohibited weapon (brass knuckles) (count 12), trafficking in marijuana (count 13) possession of proceeds of crime of a value exceeding five thousand dollars (count 14) and unlawfully producing marijuana (count 15).
2The original indictment also charged Michel Côté (Côté), Jordan McGregor (McGregor) and Richard Perron (Perron) in the conspiracy, trafficking in cocaine and criminal organization counts referred to above. However, McGregor pled to certain charges in April 2016 and Perron plead to certain charges on the opening day of this trial (before another judge). Côté absconded in May of 2016 and remains a fugitive. Therefore this trial proceeded only against Ethier and Jones.
3The conspiracy count (count 1) also named as unindicted conspirators, David Bullen (Bullen), Viorel Gheorghevici (known as “V”) and Michel Pedneault (Pedneault). The criminal organization counts (counts 4 and 5) identify “V” and Pedneault, but not Bullen as parties.
4Crown counsel, in opening, stated that this prosecution pertained to activities of the “Bullen-Côté criminal organization”. The indictment alleges that the offences occurred “between the 19th day of December, 2012 and the 16th day of October, 2013” at or near the County of Lanark and the City of Ottawa and elsewhere in the Province of Ontario and in the City of Montreal and the Village of Mont Tremblant and elsewhere in the Province of Québec.
5As elaborated in these reasons, the activities in issue are those of a network of persons involved in cocaine trafficking. The charges before the court require me to determine whether this group of cocaine traffickers constituted a conspiracy and whether the two accused before the court, Ethier and Jones, are members of that conspiracy. Another key issue is whether this network constitutes a criminal organization and whether Ethier and Jones participated in or contributed to the activities or committed offences for the benefit of or at the direction of the criminal organization.
6The defence theory is that the activities in question are either innocent (in the case of Jones), or those of drug traffickers and their associates acting in cooperation, but nonetheless independently, and therefore do not constitute a conspiracy or qualify as a criminal organization. Ethier does not contest that he and Côté were trafficking in cocaine but contends that they did so independently albeit in cooperation with their suppliers and customers. . Jones denies that he was trafficking in cocaine and his counsel submits that his association with Bullen was that of a friend, a driver and a confidant, but he (Jones) was not himself trafficking in cocaine, nor was he part of any conspiracy to traffic cocaine.
7As will be noted, the evidence discloses that Mr. Jones was a close associate of Bullen’s and Mr. Ethier was a close associate of Côté.
8The Ontario Provincial Police pursued this investigation under the name “Project Adelaide”. They deployed a surveillance team to monitor meetings and activities involving Ethier, Jones, the other indicted alleged conspirators and another six or seven individuals. There were also a series of court authorized Part VI intercepts of cell phone and text messaging communications. Ethier’s communications were intercepted pursuant to a Part VI authorization beginning April 25, 2013 and Jones communications were intercepted pursuant to a Part VI authorization beginning June 25, 2013. Ultimately, on “take down day”, October 16, 2013, the residences of Ethier and Jones and the other principals of this network, and the stash house or “the Shop” at 288 chemin de Lac Mercier were searched.
9The Crown’s case is based principally on circumstantial evidence derived from the above sources and in addition a paid police agent, a former associate of Bullen’s, was utilized by the police to interact with Bullen and to set up several drug buys. The court heard the evidence of 32 witnesses, all police officers or civilian employees, including an expert witness and the police agent.
Was there a conspiracy to traffic cocaine as alleged in count 1?
10For the reasons detailed below, I have reached the conclusion that the Crown has proven beyond a reasonable doubt, on the basis of electronic intercepts, surveillance of the co-conspirators and property searches, that a conspiracy existed to traffic cocaine as alleged in the indictment. I find that these were not simply the activities of individuals or small groups of cocaine dealers working for themselves and co-operating when they chose to in order to further their individual business interests.
11Several aspects of the law of conspiracy should be emphasized. The case law establishes that proof of a criminal conspiracy requires evidence of an agreement involving two or more persons to engage in an illegal act, (such as trafficking cocaine). In addition it must be proven beyond a reasonable doubt that the accused were parties to that agreement.
12Given that the actus reus of the crime of conspiracy is the agreement itself, the following points of law must be remembered (as explained by R.S.J Daley in R. v. Buttazzoni et al, 2015 ONSC 6411).
42It is not necessary that it be demonstrated that each co-conspirator was aware of all the details of the common scheme, but simply that each had knowledge of its general nature.
43It is well-established that the parties to such an agreement need not have been charged or on trial at the same time; or that the agreement include terms as to the duration of the agreement or the roles of those who are parties to the agreement; or that all parties have to join the agreement at the same time and stay involved in the agreement for the same period or leave the agreement at the same time.
44Although a meeting of the minds between the conspirators, with respect to the object of their agreement, must be established, the Crown need not prove that each conspirator was aware of or communicated with, all other conspirators: R v. Longworth et al. (1982), 67. C.C.C. (2d) 554 (Ont. C.A.).
45In determining whether the requisite actus reus of the offence of criminal conspiracy is present, the inquiry is whether an agreement was reached by the conspirators and not what each conspirator may have done in their efforts to realize their common goal. The fact that one or more parties to a conspiracy agreement is kept in the dark as to the relationship with and as between other parties to the agreement, and the fact that one or more parties to the agreement has no contact with other parties to the agreement, are strategies that may be expected to characterize a conspiracy to import drugs: R v. Nieme, 2006 CanLII 13949 (ON CA), 208 C.C.C. (3d) 119 at paras. 65 – 66. (Ont. C.A.).
46… The acts of the co-conspirators in carrying out the planned illegal act are not necessarily irrelevant, as the acts carried out by the co-conspirators can often furnish evidence of the existence of an agreement: R. v. Gassyt, 1988 CanLII 5976 (ON CA) at para. 17. The offence of conspiracy is more likely to be proven by evidence of overt acts by the conspirators, from which the prior agreement can logically be inferred.
59It is not necessary that all members of conspiracy play, or intend to play, equal roles in the ultimate commission of the unlawful object: R. v. Root 2008 ONCA 869, [2008] O.J. No. 5214 (ON CA) at para. 68.
13In the present case the defence argues that the broad based conspiracy alleged against the 2 accused before the court and the other 5 named conspirators is not proven in view of the fact that 2 of the alleged conspirators (Perron and Pedneault) are strictly cocaine suppliers, situated in Quebec, who had minimal interactions with the other conspirators and are likely not party to any agreement to traffic in cocaine. Stated otherwise, the contention is that should the court conclude that two of the seven named conspirators are not part of the conspiracy, then the conspiracy as alleged in the indictment is not established and the 2 accused before the court must be acquitted.
14I do not accept that contention. The Crown must prove the conspiracy alleged beyond a reasonable doubt but it is not essential in a multi-person conspiracy that each and every named conspirator be proven to be a member of the conspiracy, as long as the conspiracy proven is fundamentally the conspiracy charged and the accused before the court are proven beyond a reasonable doubt to have been part of the conspiracy charged.
15In R. v. Paterson et al, 1985 CanLII 167 (ON CA), [1985] O.J. No. 28, Martin J.A. said that he took the following propositions to be well established:
The prosecution must prove the conspiracy alleged. Where the count alleges that the accused conspired together for a common purpose but the prosecution proves only that some of those accused had conspired with one of their number for their own purposes, no common purpose such as that alleged has been established: R. v. Griffiths et al. (1965), 49 Cr. App. R. 275; R. v. Greenfield et al. (1973), 57 Cr. App. R. 849 at 856; R. v. Longworth, Freeman, Newton and Wolfe (1982), 1982 CanLII 3764 (ON CA), 67 C.C.C. (2d) 554; R. v. Cotroni (1979), 1979 CanLII 38 (SCC), 45 C.C.C. (2d) 1 (S.C.C.).
Where the evidence establishes the conspiracy alleged against two or more accused (or against one accused and an unknown person where the indictment alleges that the accused conspired together and with persons unknown), it is immaterial that the evidence also discloses another and wider conspiracy to which the accused or some of them were also parties: R. v. Greenfield et al., supra, at 857; R. v. Coughlan and Young, supra, at p. 35.
16In Paterson, the trial judge found that the respondent Paterson, although proven to have been part of a conspiracy to traffic in both methamphetamine and cannabis resin, should be acquitted on the basis that count 1 of the indictment charged him with conspiring to traffic in methamphetamine with four named individuals “and with persons unknown”, whereas count 2 charged that he and two other named individuals conspired with other named individuals to traffic in cannabis resin. The trial judge found that the Crown had proven a single conspiracy with two objects and multiple participants, but in the indictment had charged two conspirators “neither of which can be subsumed within the four corners of the proven conspiracy”. On appeal, Martin J.A. stated:
Applying the above principles to the present case, with the greatest deference to the learned trial judge, I am of the view that having found that the respondents were participants in a conspiracy to traffic in methamphetamine and cannabis resin, in which Daley and Doroshenko were the central figures, he erred in holding that the conspiracies charged were not proved. Daley and Doroshenko are named conspirators in both counts. Although other conspirators, in addition to Daley and Doroshenko, are named in count 1, it is elementary that proof of the participation of all the named conspirators is not essential and does not result in proof of a different agreement to that charged.
(Underling added)
The present case is the converse of R. v. Griffiths et al., supra, and R. v. Longworth et al., supra. In those cases the conspiracy charged in the indictment was a wide, more serious and fundamentally different conspiracy than the one proved.
17In order to determine whether the Crown has proven beyond a reasonable doubt that Ethier and Jordan are guilty of conspiracy to traffic in cocaine, the Supreme Court’s three step analysis described in R. v. Carter, [1988] 1 S.C.R. 938 must be followed. That analysis was subsequently re-stated in R. v. Barrow, 1987 CanLII 11 (SCC), [1987] 2 S.C.R. 694, at para. 73:
The trier of fact must first be satisfied beyond reasonable doubt that the alleged conspiracy in fact existed.
If the alleged conspiracy is found to exist then the trier of fact must review all the evidence that is directly admissible against the accused and decide on a balance of probabilities whether or not he [the accused] is a member of the conspiracy.
If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy then [the trier] must go on and decide whether the Crown has established such membership beyond reasonable doubt. In this last step, only the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators done in furtherance of the object of the conspiracy as evidence against the accused on the issue of his guilt.
18Returning to the first step of the Carter analysis – the determination of whether the Crown has proven beyond a reasonable doubt that the alleged conspiracy in fact existed – the Court is required to consider all of the evidence admissible against the alleged co-conspirators including hearsay evidence contingently admissible under the co-conspirators exception to the hearsay rule.
19The Court’s required approach in this regard is explained by Doherty J.A. in R. v. Puddicombe, 2013 ONCA 506 at paras. 111 and 112:
In Carter, at p. 947, the court, in describing step one of the Carter instruction, indicated that the jury must consider “all of the evidence” when deciding whether the Crown had proved the existence of the alleged agreement beyond a reasonable doubt: see also Bogiatzis at paras. 19, 57. “All of the evidence” must refer to evidence properly admissible under the rules of evidence. Those rules begin with the primary command of relevance. Evidence that as a matter of logic and human experience makes the existence of the conspiracy more likely is relevant to prove the existence of the conspiracy unless excluded by some specific rule.
Evidence offered to prove the existence of the alleged agreement will not often engage the hearsay rule. Generally, at the step one inquiry, testimony of things said and done by alleged conspirators is tendered not for its truth, but as circumstantial evidence of the existence of the agreement. The admissibility of the evidence depends on whether as a matter of logic and human experience an inference of the existence of the agreement is available from the evidence considered in its totality. Admissibility on the question of the existence of the agreement does not depend on whether the evidence consists of acts and declarations in furtherance of the conspiracy: see David Paciocco & Lee Struesser, The Law of Evidence, 6th ed. (Toronto, Irwin Law, 2011), at pp. 156-58; R. v. Smith, R. v. James, 2007 NSCA 19, 216 C.C.C. (3d) 490 at paras. 187-91, paras. 235-38.
20The Crown argues that when the activities of the seven co-conspirators are examined it is clear, beyond a reasonable doubt, that they are party to an agreement to traffic in cocaine. The activities in respect of which evidence was lead was, as stated previously, surveillance evidence of their ongoing meetings which the Crown says were drug buys and related activity such as receiving cash payments; the cell phone and text messaging intercepts in which the drug buys are set up and the need for payment is discussed as well as physical evidence from searches of the conspirators’ residences, most importantly searches of the stash house operated by Côté and his colleague Ethier which was located near the Village of Amherst, a small town near Mont-Tremblant, Quebec, about two hours drive from Ottawa.
21The most high profile of the alleged conspirators, in terms of the surveillance and intercept evidence led at this trial, was Côté. His cellphone and text communications were being intercepted throughout the period February 25, 2013 to the ‘take down’ day, on October 16, 2013.
22The surveillance evidence disclosed that a typical day for Côté would see him rising in the early morning hours in his home in Amherst, Quebec to make drug runs. He would first stop at a stash house, a.k.a. ‘the Shop’, which he and Ethier frequented and controlled, located at 288 chemin de Lac-Mercier Mont-Tremblant, Quebec. Côté would then drive to Ottawa via Highway 323 and usually cross into Ontario via the Cumberland Ferry. He would then follow Highway 417 to the west end of Ottawa and then stop at Bayshore Shopping Center to meet “V” who ran a concession in the food court. Surveillance officers sometimes saw packages being exchanged. Côté would then proceed on to what was described by the surveillance officers as his “milk run” to a series of locations in the Dunrobin/Smiths Falls/Perth area. He would have brief meetings with alleged co-conspirators, in addition to “V”, with McGregor, Bullen and on occasion with Jones and others.
23Côté, after making what the police viewed as drug drops, would then drive all the way back to either the Shop near Mont-Tremblant or to his nearby home in Amherst, frequently monitored by the surveillance team.
24The surveillance also established that Côté and Ethier worked closely together and that Ethier worked for Côté and followed his instructions. Ethier also lived in the village of Amherst and was frequently seen by the surveillance team at the Shop, often in Côté’s company. Beginning on March 26, 2013, Ethier began accompanying Côté on the milk run to Ontario and at later times, Ethier carried out the milk run himself, following Côté’s pattern. Côté and Ethier used several vehicles with dealer plates borrowed from and rotated by a Hawkesbury car dealership or garage known as P&L Auto. The frequent switching of vehicles can only be explained as a strategy to avoid detection.
25As noted, Côté’s cellphone calls and text messaging was intercepted under a Part VI authorization beginning in February 25, 2013 and Ethier’s calls and texts were intercepted on a subsequent authorization beginning April 25, 2013. These calls showed that Ethier worked for Côté and was dispatched by Côté to run cocaine and collect drug debts. The intercepted calls in evidence involved setting up drug buys for the following day or within the next several days, at agreed upon times and locations. These intercepts allowed surveillance officers to follow Côté and Ethier to the pre-arranged drug buys and to observe them interacting with the named conspirators and approximately seven other individuals.
26The members of the surveillance team collectively became familiar with the voices of Côté and Ethier, as well as with their physical appearance and I find identification is proven of both men, as to visual identification in the surveillance evidence and the voice identification in the phone intercepts. I make the same findings concerning Jordan, Bullen, “V”, McGregor and Côté’s ex-wife, Johanne Valin. The police identified these individuals by using the intercepts to structure their surveillance – that is to say, not only were the voices recognized in the phone intercepts but identity was corroborated when the individuals were observed meeting in accordance with the arrangements they had made as monitored by the electronic intercepts.
27The pattern of ongoing meetings, which could only be interpreted as cocaine buys and collection of drug debts, continued on a regular and frequent basis, particularly as between Côté and Ethier who individually or together ran cocaine from the Shop to “V” at Bayshore Mall and to McGregor and other customers in Lanark County. Côté often ended up or, on some days, began his milk run by meeting with Bullen at his home near Smiths Falls. Côté and Ethier, or one of them would end their runs by returning to the Shop at Mont Tremblant or to their homes in nearby Amherst.
28Significantly, the electronic intercepts reveal that the cocaine sales were frequently not cash deals and often payment occurred at a later date, presumably from the proceeds of cocaine sales. The intercepts, supported by surveillance establish that the suppliers of the cocaine to Côté and Ethier were Perron who lived in L’Assomption, Quebec and owned a helicopter hanger at Mascouche airport in Quebec and Pedneault who resided in Blainville, Quebec. Intercepts revealed, (followed by surveillance), that Ethier was often dispatched by Côté to meet Pedneault or Perron’s runners to buy cocaine. The cocaine was then cut and re-packaged by Côté and Ethier at the Shop, for delivery to the other named conspirators who, as noted, are cocaine dealers or their associates in the Lanark area, or to “V” at Bayshore Mall.
The Police Agent
29The Court heard from a police agent, a former criminal associate and enforcer of drug debts for Bullen. He was paid significant amounts of money to “re-engage” with Bullen and to set up four cocaine buys with or through Bullen and to interact with Bullen’s associates. He wore a wire or intercept device in his interactions and the recordings were entered into evidence and transcripts provided. The police agent’s evidence shed light on the activities of and the relationships between Bullen, Côté, “V” and Jones.
30On January 8, 2013, the police agent met Bullen at Bayshore Mall and following a conversation about old times and mutual criminal acquaintances, the agent expressed interest in buying a half kilogram of cocaine. Bullen then brought “V” into the meeting. “V” as noted, dealt cocaine out of his food concession at the mall. The agent knew “V” from prior criminal activities. With Bullen’s involvement, it was arranged that the agent would make the buy (1/2 kg of cocaine for $27,000) from “V” at Bayshore.
31The police agent purchased the cocaine from “V” on January 15, 2013 – it was Bullen who had dropped off the cocaine and he was downstairs at the mall when the agent and “V” exchanged the cocaine for payment in “V”’s storage locker at the mall. Certificates of Analysis (ex 124) showed the purity of the cocaine to have been in the 44-49% range.
32The police agent negotiated with “V” to buy another half kilogram of cocaine for $26,000. This transaction took place at Bayshore mall on February 7, 2013. A third buy for the same quantity of cocaine and price took place on February 28, 2013. The agent skillfully developed the story that his customers were angry at the poor quality of the cocaine and this generated conversations on that issue with “V”. “V” voiced his complaints about how Bullen was managing matters. “V” blamed the cocaine quality problem on Côté who was the source of “V”’s cocaine. In short, these interactions and intercepted communications support the inference that Côté was supplying cocaine at least at the ½ kilo level on an ongoing and regular basis to “V” and that this was arranged by and subject to Bullen’s oversight. The cocaine quality discussions served to show that this was a problem that could at least be talked about by Bullen, “V” and Côté. “V”’s conversations with the agent and later with Côté reflect that he, “V”, was not entirely happy with how Bullen was running or overseeing the cocaine trafficking.
33On March 27, 2013, the police agent met Bullen and Jones at the Westgate Mall, ostensibly to set up another drug buy. “V” was gone for two months to Romania, at that point and the agent needed another supplier. Bullen was about to depart to India for a month. Bullen told him “V” would be back on May 25, 2013 and he would be able to get a re-supply at that time.
34The surveillance and intercept evidence establishes that Côté supplied cocaine to “V” at the Bayshore Mall on a regular basis. As well, I fin that “V” and Bullen worked closely together and Bullen was the person in charge – a situation “V” was prepared to complain about to the police agent and to Côté at a later date. Jones was at Bullen’s side on a regular basis and his precise role is not as clear. However, the idea that Jones was simply a friend of Bullen’s or a hanger-on or just his driver, is belied by the evidence discussed below.
The Compromise
35A significant event occurred on May 24, 2013. The police were conducting surveillance on Côté. It was anticipated he would travel to Bullen’s residence for a meet and then would continue his usual deliveries and pickups in the Ottawa area before returning home to Amherst, Quebec later in the day. At about 5:30 a.m., police had Côté under visual surveillance in the driveway of Bullen`s residence in the country, near Smiths Falls. Côté was observed removing some packages from a trailer in Bullen’s driveway. At about 5:53 a.m. just as Côté was leaving the property, police observed Bullen walking around the same trailer.
36At this point, Bullen`s black lab dog apparently caught the scent of the surveillance officers and ran barking and growling to their observation point on the edge of the property, with Bullen in pursuit. Bullen and the police observed each other from a distance of about 20 feet – police insignia was visible on their jackets. Nothing was said between them. Bullen called off the dog and went quickly back to his truck and backed up in the direction of his house. The officers discontinued their surveillance and departed the area.
37Subsequent intercepts reveal that Bullen immediately began reaching out to warn his associates. He first sought out Jones at 7:10 a.m. and summoned him. At 11:51 a.m., another criminal associate, Doris Lapointe, contacted Côté and advised “your buddy just called”. Côté responded “L’Anglais”. Lapointe replied “yeah, he just called me and said “throw the phone in the water and everything else”. Côté said “okay” and ended the call. L’Anglais was the name the French speaking conspirators used for Bullen. Intercepts revealed that Lapointe was a friend of both Côté and Bullen and often acted as an information conduit between them. In any event, Bullen warned his associates that they were under surveillance and the evidence establishes that the conspirators got new phones, and Côté and Bullen in particular became very guarded in their communications and activities. In my view, the conspirator’s reaction to the compromise is suggestive of a network of criminals who have agreed to work to protect their cocaine trafficking activities – that is to say this is the conduct of conspirators.
38On October 7, 2013, the police agent went to Bullen’s home to speak to him about setting up a one kilo cocaine buy. The police agents probe records Bullen recounting the story about the police surveilling him on his property. The conversation moved on to Bullen’s proposal that the agent meet him and Côté at the Sheraton Hotel in Montreal on October 9, 2013 to arrange the buy. Bullen explained, “I can try and put you on to one of my buddies in Montreal, its just Im not fucking doing anything right … since I caught the cops here …”
39The police agent subsequently met with Bullen and Côté in Montreal at the Sheraton Hotel and they negotiated a one kilogram cocaine drug buy for $45,000. Bullen introduced the agent to Côté but in fact the agent had known Côté from earlier times. There was talk that Côté might be able to supply cocaine in that quantity to the agent on a regular basis and that Côté’s runner “Charlie” (Ethier) would do the delivery.
40The evidence clearly establishes an ongoing relationship between Bullen and Côté and “V” to traffic in cocaine and their drug buys were an ongoing activity. Jones, through Bullen and Ethier through Côté, were regular participants. Ethier regularly served as Côté’s runner. The Côté and Ethier intercepts also disclose that Ethier was tasked with cutting the cocaine and often handling complaints and demands from Côté’s suppliers (Perron and Pedneault) when payment problems developed.
41Following the exposure of the police surveillance on May 24, 2013, Bullen kept a very low profile, avoided use of his cellphone(s) and spent lengthy periods of time in Asia on a business project. For reasons that are unclear, Côté’s customers began to avoid paying Côté for cocaine he had delivered. Côté in return was unable to pay his suppliers, Perron and Pedneault. Aggressive demands for payment came from Perron and Pedneault, usually directed to Ethier, because Côté seemed to be trying to keep a low profile. Many intercepts reveal the growing frustration of “V” and of Côté about the situation. Intercepts reveal that Côté believed it was Bullen’s responsibility to fix the situation. Efforts were made by Côté and Perron to meet with Bullen to resolve matters. Ultimately, such a meeting did take place and matters seemed to be restored to the normal flow of trafficking and payment. The active efforts of the cocaine suppliers Peron and Pedneault, to engage Bullen in resolving the payment problems, including face to face meetings, indicate the existence of an ongoing conspiracy to traffic cocaine. The major players (Bullen, Côté, and Perron) were required to co-operate to fix the payment problems and ultimately did so.
42The co-conspirators homes and the Côté/Ethier stash house, known as “the Shop”, were all searched on take down day (October 16, 2013) and the Shop was also searched covertly on July 25, 2013. What was found at these locations provided strong evidence that Côté and Ethier were cocaine traffickers. The police recovered from the Shop, a variety of equipment and supplies including a 30 ton hydraulic press, digital scales, vacuum sealers, a money counter, apparent debt lists in notebooks, cutting agent, metal boxes for pressing cocaine, assorted processing materials, cocaine residue and 47 grams of cocaine. The expert witness O.P.P. Constable Perrault opined that “although only a small amount of cocaine was seized, it is my opinion that this location was used to process cocaine for high level distribution.” I think Cst. Perrault’s conclusion is correct and I accept it.
43As mentioned, one of the alleged conspirators is Jordan McGregor who pled to certain charges prior to the trial. In the intercepts entered into evidence, Côté, Ethier and McGregor are frequently heard arranging cocaine buys. McGregor also became actively involved with Côté’s drug debt collection problems in the summer of 2013. He communicated with Johanne Valin, Côté’s ex-wife and a drug dealer in her own right and with Ryan Jones. McGregor’s many contacts with Côté, Bullen, Ethier, Valin and Jones were purposeful and not incidental, they were part of a joint enterprise to traffic in cocaine.
The Jeep Probe
44Considerable light was shed on the relationship between Bullen, Jones, McGregor and Côté by police intercepts on August 19, 2013 including the so-called “Jeep Probe”. At 8:42 a.m. on that date, Côté and McGregor discuss Côté’s wish to arrange to meet with Bullen and whether McGregor could help arrange such a meeting. Côté asks if McGregor could contact Ryan Jones to obtain his help in arranging a meet with Bullen. Côté tells McGregor he cannot believe he (Bullen) is “dropping him” and leaving him with “all of the shit”. Côté says his friends are “after him like hell”.
45Intercepts reveal that at 12:38 p.m., McGregor contacted Jones and asked to meet. Jones then called Bullen to advise him of McGregor’s request. Then at 1:34 p.m., McGregor calls Jones to say he’s in the area. Jones tells McGregor to meet him in the Wendy’s parking lot at Bank and Hunt Club. The surveillance team was able to park a vehicle with a receiving device sufficiently close to Jones’s vehicle that when McGregor arrived, the conversation between Jones and McGregor was intercepted. The conversation between Jones and McGregor is revealing. McGregor explains Côté’s payment problems and Côté’s desire to meet Bullen. Jones explains Bullen’s position and the reason Bullen has not wanted to meet. Jones and McGregor both imply that they work for Bullen.
46In my view, this is clear evidence of a group dynamic involving Côté, McGregor, Jones and Bullen. Jones and McGregor discussed Côté’s problems, Bullen’s reluctance to be involved because “he’s fucking hot” and McGregor’s desire to find another supplier but commenting that Bullen has “kicked my ass twice for buying from somebody else”. Jones is obviously a confidant of Bullen’s and is explaining Bullen’s position. These are the interactions of persons involved in an ongoing criminal conspiracy – albeit one that was in danger of falling apart due to a key player (Côté), not being paid and therefore not providing his cocaine deliveries. Another dynamic was Bullen’s reluctance or inability to step in because he knew he was under police surveillance.
47The involvement of Perron and Pedneault is somewhat different and less obvious than that of Bullen, Côté and their associates, Jones and Ethier. Perron and Pedneault remained in Quebec and regularly supplied Côté (and his associate Ethier) with cocaine, at the half kilogram and kilogram level, for ongoing distribution in the West-Ottawa-Lanark County area.
48However, the intercepts reflect that Perron and Pedneault were well aware that their cocaine was being trafficked to customers Côté serviced on his regular route to Ottawa and the Lanark area and getting paid depended on the drugs being sold through that network. They knew of Bullen’s “heat” problems and of the breakdown in the flow of payments. Perron in particular was prepared to and did meet with Bullen to discuss resolving the situation. While there are some suggestions that Perron and Pedneault may have supplied cocaine to customers other than Côté, the evidence suggests that Côté was at least their principal customer. The case law establishes that it is not fatal to a conspiracy charge that some conspirators do not know the role or identity of some of the other co-conspirators. Nor do conspirators need to have an exclusive business relationship with their co-conspirators.
49I mention as well that at this first stage of the Carter analysis, (the question whether there was a conspiracy as charged), I have considered the intercepts involving Doris Lapointe (with Bullen, Côté and Valin), Côté (with Valin) and Ethier (with his son and with his girlfriend).Most of these intercepts are not admissible against Jones and Ethier at the third stage of the Carter analysis because they are not conversations in furtherance of the conspiracy. However, these conversations are admissible on the issue of whether the alleged conspiracy existed. The personal and social conversations in these intercepts paint a picture of an ongoing cocaine trafficking conspiracy. This included Côté’s difficult debt collection problems when the payment chain seemed to break down after the group’s perceived leader, Bullen, largely withdrew from active involvement following the discovery of the police surveillance on May 24, 2013.
50The intercepts and surveillance evidence satisfies me beyond a reasonable doubt that the conspiracy charged is proven. Throughout 2013, until take down day (October 16, 2013) a conspiracy existed to traffic cocaine on an ongoing basis to a network of customers in the Ottawa and Lanark County area. This ongoing cocaine trafficking activity with almost daily interactions (drug deliveries and payments) between the Ontario based drug dealers (Bullen, “V” and McGregor) and Côté and Ethier as suppliers, leads to an inescapable inference that the individuals charged had agreed to work with each other to traffick cocaine. The cocaine was acquired from two cocaine traffickers Perron and Pedneault who were part of the regular supply chain and who were dependent on Bullen and Côté’s associates for their ultimate payment. Perron engaged with Côté and Bullen to sort out the payment problems. This is further evidence of an agreement to traffic cocaine.
51The second step of the Carter analysis is to determine on a balance of probabilities whether the two accused before the court, Ethier and Jones, are part of the conspiracy.
52I am satisfied Ethier is part of the conspiracy. Focusing on the numerous intercepts to which he was a party, and to the follow up surveillance of his activities, he set out on a regular and almost daily basis on the instructions of Côté, to buy cocaine from Perron or Pedneault and to deliver it often with Côté to the drug dealers on the milk run and he was frequently at the Shop with Côté.
53As to Jones, there is sufficient direct evidence to establish that he is likely part of the conspiracy including intercepts of his calls and surveillance evidence showing his close relationship and ongoing physical presence with Bullen and his attendance with Bullen at high level meetings with criminals in Montreal and at meetings with cocaine dealers Côté and Ethier.
54The third stage of the Carter analysis requires that the court determine whether the Crown has proven beyond a reasonable doubt that Ethier and Jones were part of the alleged conspiracy to traffic cocaine. Ethier, through counsel, has admitted that if the Court finds the existence of the alleged conspiracy, Ethier would be found to have been part of the conspiracy. This admission is appropriate as the evidence is overwhelming that Ethier and his friend Côté were trafficking in cocaine as their regular and exclusive occupation during the period of the indictment. Indeed, Côté and Ethier were delivering the cocaine to the Ontario based conspirators and were at the center of this ongoing activity.
Ryan Jones
55Jones role was somewhat less obvious than that of Ethier. Nevertheless in consideration of the evidence discussed below, I am satisfied beyond a reasonable doubt that Jones was a member of the conspiracy. He was not simply a hanger on or social friend of Bullen’s. In arriving at that conclusion, I consider the following:
56On March 22, 2013, police surveillance observed Jones and Bullen meet with “V” at Bayshore mall along with two unknown males. Shortly after, Jones and Bullen travelled to a church parking lot on Pinecrest and met two unknown males in a Ford Fusion. Bullen was carrying a square object wrapped in a black plastic bag as he left the mall and was also seen removing an item from the driver’s side of the Ford Fusion. Jones was again seen in Bullen’s company two days later.
57Then on March 26, 2013, Jones accompanied and, in fact, drove Bullen to Montreal for meetings with two known criminals – Tilmar and Corbeil – and they all went to dinner at Liverpool House restaurant and Jones and Bullen stayed overnight. Corbeil was observed placing a box in Jones’s vehicle.
58The next day, March 27, 2013, Jones and Bullen met the police agent at Westgate Mall in Ottawa – the agent and Bullen discussed a drug buy but Jones stepped away from the conversation when the police agent asked to speak to Bullen privately.
59On April 2, 2013, Bullen was out of the country in Sri Lanka for a month. There is evidence that Jones stepped into some of Bullen’s activities in his absence. On April 2, 2013, Côté, whom the evidence reveals to be a major cocaine dealer, sends a text message to Jones saying “it’s Frenchie” and Jones replied “ok. Cool thanks”. On April 8, 2013, Côté attempted to set up a meeting with Jones and Jones responds “that he was “okay for now but would talk soon.”
60Then on April 12, 2013, Côté texts Jones asking to see him Monday “for paper”. Paper has the connotation of money or payment. Jones does not respond. On April 15, 2013, Côté again texts Jones “hey buddy, when can I see you for paper” Again Jones does not respond. The next day, Côté texts Jones “budy nid paper” and Côté also left Jones a voicemail “hey buddy, it’s Frenchie. I would very much like that you call me back there, we gotta fix that up because it don’t go good thanks”.
61On May 6, 2013, Jones is seen by surveillance at Bullen’s residence near his open garage bay near the house. Levac, a suspected drug trafficker is observed placing an unknown item contained in a black, plastic garbage bag into the open trunk of Jones’s car.
62On May 24, 2013, when the police surveillance at Bullen’s property was exposed, it is notable that Bullen first sought to contact and meet with Jones, obviously to discuss the situation. On June 13, 2013, Jones contacts Bullen and confirms that he now had a new cell phone number.
63On June 16, 2013 Bullen called Jones and said that he noticed a tree that had fallen down in his side yard. Bullen went on to say that he feels the Police were using the tree for cover and that they had probably put it down. Jones added that the tree was probably impeding their view. This call is an indication of the confidences shared by these two men about their criminal activities.
64On July 8, 2013, Jones and Ethier were observed by police surveillance meeting on Fletcher Road, an isolated rural location. Bullen was out of the country at this time. Jones was observed by police pulling up his vehicle beside Ethier’s vehicle window to window. An unknown item was observed being passed from Ethier to Jones. This interaction lasted approximately 3-4 minutes. Ethier was observed heading back out to Roger Stevens Road where he drove eastbound. Jones got back into his Chrysler and went westbound back to his home in Smiths Falls. Surveillance was then conducted on Jones residence and several different vehicles and persons were observed attending the house, staying for short periods of time and then leaving. As noted previously, Ethier was Côté’s runner or courier and his only purpose in covertly meeting Jones in a rural location would be to traffic cocaine and related activities. These men were not social friends and there would have been no innocent purpose to the covert meeting.
65Jones refers to the July 16th events on August 19, 2013 in his intercepted conversation with McGregor (The Jeep Probe).
66On July 15, 2013, Bullen called Jones from Sri Lanka and they talk about the weather and Bullen asked how things were and Jones reassured him that “everything is good”. This is an illustration of Jones working with Bullen to keep an eye on developments in Bullen’s absence.
67On July 23, 2013, the surveillance team observed Jones meet with Ethier on Roger Stevens Drive. The two appear to engage in an excited or friendly interaction. The trunk of Ethier’s vehicle was opened and Ethier was observed holding a black bag. Jones and Ethier were then observed beside the trunk area. Just before the meeting, Ethier had left a message to Côté saying: “tell Ryan I’ll be 45 mins late”. The next day, a phone call between Côté and Ethier confirms that Ethier picked up “paper” from Jones.
68On August 8, 2013, the surveillance teams saw Jones meeting Côté for 36 minutes. Côté tells McGregor in an intercept that he was expecting to meet with Bullen but that Jones showed up instead.
69August 19, 2013- Jeep probe intercept involving Jones and McGregor, discussed previously. (see paras. 44-46)
70August 20, 2013, Jones told McGregor that Bullen would meet him the next day. Jones met with Bullen on August 21, 2013 before Bullen was to meet with McGregor. Jones appeared to be fulfilling a liaison function between Bullen and others, such as McGregor.
71On August 21, 2013, Jones drove Bullen to meet with Côté at the Smiths Falls airport. Following this, Detective Oke is spotted and aggressively chased by Bullen and Jones in Jones’s vehicle, with Jones driving.
72In a September 3, 2013 intercept, Jones drives Bullen to the Smiths Falls airport. He remained there briefly for an anticipated meeting with Perron, the group’s principal cocaine supplier. Later the same day, Jones is observed meeting with McGregor and Bullen.
73September 4, 2013, McGregor talks about getting a debt list from “buddy from Rideau Ferry and big Ryan”
74September 8, 2013, Jones is observed at 1477 Matheson drive in Smiths Falls (Coughlin`s residence), at a time when Ethier was also in the vicinity.
75September 14, 2013, Jones met with Ethier for 15 minutes at Rosedale road. Just prior to the meeting, Jones called Bullen and said “I wonder was I... was it uh Charles or what maybe the other Fuh.... guy that uh...”
Count 1
76The frequent interactions, meetings and communications between Jones and Côté and Ethier and his close ongoing relationship are strong indications of Jones’s active membership in the conspiracy. The Jones/Ethier meetings are almost certainly covert drug buys or payment of drug debts, or both.
77Police searched Jones’s Smiths Falls’ residence on take down on October 16, 2013. They found $10,000 cash hidden in his Shop Vac in the garage and $2,600 cash in a Ziploc bag in the kitchen. In all the circumstances, this would appear to be the proceeds of his participating in the conspiracy and of trafficking in cocaine in particular.
78Jones’s father testified that Jones worked as a labourer on a paving crew and customers would, on occasion, hand over cash in payment for the jobs on the understanding that this would be turned over to the owner of the paving company. I found this evidence contrived and utterly unconvincing if it was offered to explain Jones’s possession of a large amount of cash in his home.
79I also find Jones was living well above his expected lifestyle as a labourer on a paving crew. Earlier in 2013, he had bought a Corvette ($20,000 cash deposit), a Chrysler 300 (cost $16,572 – cash deposit $7,000) and had taken a trip to Aruba. He owned two motorcycles and also within the previous 12 months had vacationed in Mexico.
80I am invited by the Crown to consider a number of intercepts that are said to assist in assessing whether Jones is a party to the alleged conspiracy. I have only considered the intercepts to which Jones is a party. Virtually all of the others are inadmissible hearsay because they are not statements in furtherance of the conspiracy. For example, Côté has conversations with his ex-wife Valin and with Lapointe. Ethier and Côté often talk to family members. Lapointe talks to Bullen and to Côté. The tenor of these conversations is about Bullen and his failure to solve their problems and sometimes about aspects of their day to day activities. The discussion is usually about past events. These communications are simply not in furtherance of the conspiracy and are not admissible against Jones and Ethier in the context of the third step of the Carter analysis. The exception will be where drug buys and meets or collections are being arranged, as such activities are in furtherance of the conspiracy.
81On the other hand, there is in the Court’s opinion, ample evidence to be satisfied beyond a reasonable doubt that Jones is part of the conspiracy alleged in count 1 of the indictment. His close ongoing association with Bullen, his attendance with Bullen at high level meetings in Montreal with criminals, his acting as driver and spokesperson for Bullen, his several meetings with Côté and Ethier who are cocaine traffickers and are in the Smiths Falls area for no purpose other than cocaine trafficking, the intercept of his conversations including the Jeep probe, the large amount of hidden cash at his home and his affluent life style while employed as a labourer, all serve to prove his participation in the conspiracy. Jones will be found guilty on count 1.
Count 2
82As noted, count 2 charges Ethier and Jones with trafficking in cocaine. Ethier, through counsel admits that this charge is proven against him. I find that there is overwhelming evidence that Ethier along with his friend and boss Côté, trafficked cocaine on a sophisticated commercial basis throughout the period of these charges. The electronic intercepts of Côté and Ethier’s cell phones and text messages and the surveillance of Ethier at the Shop and participating in various meets leaves no doubt he was trafficking cocaine on an ongoing basis.
83Jones had a somewhat different pattern of activity. In the Court’s view, his role as Bullen’s right hand man, driver and information conduit, makes him a party to the trafficking activities. I refer to his activities discussed in paragraphs 55 to 81.
84In addition, I am satisfied that Jones’s meetings with Côté or Ethier on June 16, 2013, July 23, 2013, August 8, 2013, September 8, 2013 and September 14, 2013 were for the purpose of cocaine trafficking. Côté and Ethier were transporting cocaine to drug distributors on their frequent runs to West Ottawa / Lanark County areas. When Jones met them it is unclear whether he was buying or paying for cocaine or conducting ancillary business of the conspiracy. The definitions of “sell” and “traffic” in the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) are very broadly defined. As the Court of Appeal pointed out in R. v. Neal, 2010 ONCA 281, these definitions cast a very wide net, the goal of which was to facilitate prosecution of individuals who participated in or contributed to the trafficking of narcotics. In Neal, the accused who was involved in collecting drug debts was properly viewed as having engaged in a conspiracy to traffic. Apart from the cocaine buys arranged by the police agent, the intercepts reveal that most of the cocaine sales by Côté and Ethier were not cash deals and payment needed to be made at a later date. The collection of payment or the arranging for payment for previous cocaine sales is considered trafficking, as pointed out in Neal.
85In summary, the Court is satisfied beyond a reasonable doubt that Jones trafficked in cocaine as charged in count 2.
Count 3
86With respect to count 3, which charges Ethier and Jones with possession of cocaine for the purpose of trafficking, I find this charge not to have been proven. As noted previously, the homes of both Ethier and Jones were searched on October 16, 2013, at the time they were arrested and neither was in possession of cocaine in a quantity appropriate for trafficking. The intercepts strongly suggest Ethier must have frequently been in possession of significant quantities of cocaine, but that inference merely of probable guilt cannot sustain a finding of guilty. The same observation applies to Jones. Both men are found not guilty on count 3.
Count 12
87In count 12, Jones is charged with possession of a prohibited weapon – brass knuckles. I am not satisfied that the ornamental looking object found in his home actually was brass knuckles. There was virtually no evidence on this count at trial and I find the charge not to have been made out. There will be a finding of not guilty on count 12.
Count 13
88Jones is charged in count 13 with possession of marijuana for the purpose of trafficking. The modest quantity found by the police in his home leaves me with a reasonable doubt as to whether he was trafficking in this drug. I find him guilty of the lesser and included offence of possession of marijuana.
Count 14
89Count 14 charges Jones with possession of proceeds of “property” (this is a typographical error, the intended word was crime, not property) of a value exceeding five thousand dollars. This refers to the cash totaling $10,000 hidden in Jones shop vac in his garage. This money was rolled in an elastic. The inference that this cash is the proceeds of criminal activity is inescapable. Jones’s father testified to suggest this cash could be from a paving client who intended the money to be passed to the owner of the paving company where Jones was employed as a labourer. I found this evidence totally incredible. Jones is found guilty of count 14. The indictment is amended to correct the typographical error referred to.
Count 15
90Count 15 charges Jones with producing marijuana, contrary to section 7 of the CDSA. The evidence establishes that he was growing a marijuana plant in his backyard. There will be a finding of guilty on this charge.
CRIMINAL ORGANIZATION
Counts 4 and 5
91Counts 4 and 5 of the indictment charge Ethier and Jones with participating in or contributing to the activities of a criminal organization contrary to s. 467.11(1) of the Criminal Code, R.S.C., 1985, c. C-46 and committing indictable offences for the benefit of, at the direction of, or in association with a criminal organization, contrary to s. 467.12 of the Criminal Code. For the reasons discussed below, these charges fail because the Court has a reasonable doubt as to whether there existed a criminal organization as that entity is described in the legislation and case law.
92The Supreme Court in R. v. Venneri, [2012] 2. S.C.R. 211 explained the concept of “criminal organization” in the following passage by Fish J.:
- To secure a conviction under s. 467.13, the Crown must prove, as a preliminary matter, the existence of a criminal organization and Venneri's membership in it. "Criminal organization" is defined in s. 467.1 as follows:
467.1 (1) ...
"criminal organization" means a group, however organized, that
(a) is composed of three or more persons in or outside Canada; and
(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.
It does not include a group of persons that forms randomly for the immediate commission of a single offence.
26 The parties disagree as to the degree of organization or structure required to support a finding that a group of three or more persons constitutes a criminal organization under the Code.
27 Some trial courts have found that very little or no organization is required before a group of individuals are potentially captured by the regime: see R. v. Atkins, 2010 ONCJ 262; R. v. Speak, 2005 CanLII 51121 (Ont. S.C.J.). Others, properly in my view, have held that while the definition must be applied "flexibly", structure and continuity are still important features that differentiate criminal organizations from other groups of offenders who sometimes act in concert: see R. v. Sharifi, [2011] O.J. No. 3985 (QL) (S.C.J.), at paras. [page221] 37 and 39; R. v. Battista, 2011 ONSC 4771, at para. 16.
29 … I agree with Mackenzie J.A. that a flexible approach favours the objectives of the legislative regime. In this context, flexibility signifies a purposive approach that eschews undue rigidity. That said, by insisting that criminal groups be "organized", Parliament has made plain that some form of structure and degree of continuity are required to engage the organized crime provisions that are part of the exceptional regime it has established under the Code.
93Fish J. stressed that “Organized necessarily connotes some form of structure and co-ordination…” (para. 30)
94Counts 4 and 5 allege that Jones and Ethier carried out their criminal activities for the criminal organization with Côté, McGregor, Perron, Gheorghevici and Pedneault. Notably, Bullen is not mentioned.
95The Crown conceded in argument that the evidence does not establish that Perron and Pedneault are part of the alleged criminal organization.
96Can it reasonably be said that the remaining group; Jones and Ethier as well as Côté, McGregor and Gheorghevici (“V”) are part of a criminal organization?
97The premise of the Crown’s case on the criminal organization charges is that Jones and Ethier and the other three men named above work for or are under the leadership of Bullen. Without this, I am unable to identify any organizational structure at all. The only relationship that is clear is that Ethier works for Côté and has done so for two years (as Ethier explains to his son in an intercepted cell phone call). And Jones works closely with Bullen. I think Ethier and Jones would have been shocked at the suggestion that they worked for anyone other than Côté and Bullen respectively.
98This group had no name, insignia, customs, rituals or other indicia of an organizational structure. While I have found that they were all trafficking cocaine, the financial structure and flow of money between them is unknown. The main actors in the group are Côté and Bullen but it is unclear whether Bullen is, in some sense, Côté’s superior. In one intercept, Côté queries whether he has been “fired” by Bullen, but in other intercepts he asserts that he is in charge of his own operation. In one intercept, Côté says to McGregor “it’s me the boss”.
99The Crown relies on a number of intercepts in which neither Jones nor Ethier are involved, in which the topic of discussion is Bullen (L’Anglais). Bullen is criticized for his unwillingness or unavailability to sort out problems that have developed, particularly that some of the drug dealers were not paying their debts to Côté. The implication of these conversations is that Bullen has some oversight responsibilities that should have required him to fix these problems. In my view, these conversations are inadmissible hearsay as against Ethier and Jones because they are not statements in furtherance of the conspiracy between these individuals. Even if admissible, they fall short of proving that Bullen is the leader of the group.
100It is significant that Bullen allowed the police agent to do three cocaine buys for cash and discussed a fourth buy, but never said anything to suggest that the police agent was joining any form of organization or ongoing activity.
101The evidence reveals that while Bullen and Jones worked closely together, as did Côté and Ethier, there were no indications of any group loyalty among the co-conspirators. On the contrary, the intercepts revealed a great deal of acrimony and hostility. The discussions of ending their dealings with Bullen and getting supplies elsewhere on the part of “V”, McGregor and Côté may indicate a crumbling organizational relationship with Bullen but what that relationship was, is far from clear.
102In my view, a very telling aspect of the events in evidence is that Bullen took the position that Côté’s drug debts were his (Côté’s) problem and he (Bullen) had no responsibility to see that they were paid. Côté’s losses were regarded as personal. This seems incompatible with the existence of an organization.
103In summary, viewing the evidence as a whole, there is insufficient evidence of structure cohesiveness or leadership of this group and the Court is therefore left with a reasonable doubt as to the existence of a criminal organization involving Ethier and Jones. There will be a finding of not guilty on Counts 4 and 5.
SECTION 11(b) CHARTER APPLICATION:
104The defendants Ethier and Jones seek a stay of this proceeding pursuant to s. 11(b) of the Charter1 on the basis of an alleged denial of their right to a trial within a reasonable time. Between their arrest on October 16, 2013 and the end of the trial on December 16, 2016, a period of 38 months has expired. The trial start date was September 6, 2016, approximately 34 months after the charges were laid.
105The new section 11(b) framework established by the Supreme Court of Canada in R v. Jordan, 2016 SCC 27 (“Jordan”), a decision released July 8, 2016, imposes a ceiling of time for delay in the court system which, if exceeded, will result in a presumption of unreasonableness. The ceiling is 30 months in the Superior Court and therefore the delay in this case was presumptively unreasonable as of the time the trial began.
106The defendant Jones served his s. 11(b) application on the Crown 2 business days before the commencement of trial and it was indicated to be returnable at a time to be set by the court. The required transcripts were not available until some weeks later. It was agreed that the application would be argued at the conclusion of trial. Counsel for the accused, Ethier, advised the court that her client intended to join in the application and Ethier’s materials were subsequently filed later during the course of the trial.
107I would note that the week of May 9, 2016 had been set aside for pre-trial motions at the Judicial Pretrial but the defendants brought no motions. The court was not advised of any intention to bring a s. 11(b) application until the opening of trial. The experienced counsel in this case were obviously responding to the Jordan time limitations when they brought this application at the opening of trial, and had not been planning to do so on the basis of the previous regime established by the Supreme Court in R v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771.
108The Jordan procedure requires that the court first determine the total number of months between the laying of the charges and the actual or anticipated end of trial, which, as noted, is 38 months in this case.
109The next step is to calculate and deduct the number of months of delay that were waived by the defence or the months of overall delay that were caused by the defence. Having done this, it must be determined whether the remaining delay is below or remains above the 30 month presumptive ceiling.
110In the present case, it is not alleged that the defence waived any periods of delay. However, the Crown argues there are several periods of defence caused delay.
111I deal first with the alleged defence caused delay in the Ontario Court of Justice. As with many of the events scheduled throughout this proceeding, the court was able to offer earlier dates and the Crown was available but one or more of the five defence counsel were not available. This is a virtually inevitable consequence of charging multiple persons on a conspiracy indictment. Defence delay is normally said to occur when the court and Crown are ready to proceed, but the defence is not. The periods of alleged defence delay are discussed below.
Ontario Court of Justice (“OCJ”) – December 1, 2014 – March 23, 2015; 111 days
112On June 4 and 11, 2014, all counsel attended in court for the purposes of confirming and setting the dates for the preliminary inquiry. As per the court’s directive, a green sheet had been obtained from trial coordination with the available dates indicated. Additional dates, which had been offered by the court but not available to all counsel, were noted on the sheet. The first dates offered by the court for the preliminary inquiry were December 1 – 9, 2014. The Crown was available. Defence was not available. Specifically, Mr. Auger (then counsel for Jones) and Ms. Condo (counsel for Ethier) were not available for those dates. The set date for the preliminary inquiry was March 23, 2015, the first date all counsel were available.
113I agree with the Crown that the timeframe between December 1, 2014 and March 23, 2015 should be deducted as defence delay. On this occasion, it was counsel for the two accused Jones and Ethier that were not available for the dates offered by the court.
Superior Court of Justice (“SCJ”) June 22, 2015 – July 7, 2015: 20 days
114On May 1, 2015, counsel attended before the Superior Court of Justice in assignment court to set a date for a judicial pretrial. This was the first assignment court at which all co-accused were before the court. The first date offered by the court was June 22, 2015. The Crown was available. Certain defence counsel were not available. The Crown submits that the delay between June 22 and July 7, 2015 (the set judicial pretrial date), should be deducted as defence delay. In my view the defence is not required to accept every date offered and I do not consider this brief delay to be defence delay.
SCJ - March 14, 2016 – May 9, 2016: 56 days
115As of July 7, 2015, when the Superior Court judicial pretrial was held, the court and counsel would have been aware that 21 months delay had accumulated since the charges were laid. Remarkably, the present trial dates were then set for the 6 weeks commencing September 6, 2016, which was nearly one year and 4 months in the future. This meant the trial was to begin 34 months after proceedings were commenced. This was 4 months beyond the 30 month ceiling which was, one year later, prescribed as being the presumptive ceiling in the Jordan decision. At the same time a week was set aside for pretrial motions – the week of May 9, 2016. These pretrial motion dates were never utilized.
116The practice in Ottawa was to set the trial dates for the earliest dates the court and all counsel were available and then to find the required days for pretrial motions during a timeframe usually at least several weeks before the commencement of trial. Moreover, in Ottawa, the Superior Court does not set long trial dates during July and August (or running into that period) due to limited judicial resources. In the circumstances, it is not possible to say whether the pretrial judge could have offered earlier trial dates if the defence had not requested an additional week for pretrial motions, particularly in view of the practice of not scheduling long trials in the summer months. In any event, notes made by the trial judge indicate that the first dates offered by the court for the pretrial motions, were the week of March 14, 2016. The Crown was available for those dates, but counsel for the accused Ethier and Côté were not available. As noted, the pretrial motion dates were ultimately set for May 9. The Crown submits that the delay between March 14 and May 9 should be deducted as defence delay.
117As noted, defence counsel did not pursue any pretrial motions. Defence counsel only disclosed their intention not to proceed at a point within 30 days of the scheduled pretrial motion dates. The Crown says that had defence counsel taken earlier steps to cancel the pretrial motion dates, the trial dates themselves might have been moved forward, thereby eliminating significant delay.
118In view of the trial scheduling practice referred to above, I am not persuaded that the unnecessary scheduling of the pretrial motions or the late cancellation of same by the defence actually affected the timing of the trial dates that were set. I therefore decline to treat this as defence delay.
The Trial – claim of 39 days defence delay – (October 24 – December 16, 2016: 54 days minus 5 days of court unavailability and 10 days the trial actually proceeded)
119As mentioned, the time estimate for the trial was six weeks, which would have seen the trial completed in the period of September 6, 2016 to October 14, 2016. I would note that had the court been available the four day week of October 10, 2014 the trial still would not have ended as scheduled because 8 extra days were needed (12 days less than the court’s 4 day unavailability). Counsel simply underestimated the required trial time when that issue was discussed with the pretrial judge. The defence argues that the underestimate of required trial time was the Crown’s responsibility. The Crown responds that their estimate of required trial time was reasonable and was in reality a joint estimate of all counsel. The Crown called 32 witnesses in this trial and if all 5 of the original indicted co-conspirators had actually remained part of the proceeding, the trial would very likely have been even longer than it turned out to be with only the remaining two accused.
120I agree that the trial length was significantly underestimated by the Crown and they must bear principal responsibility for this. However, I also recognize that several half days were lost to medical appointments of defence counsel, a school graduation, a fire alarm in the courthouse, weather related transportation delays and several late starts due to counsel’s commitments in other courts.
121In any event, I accept that the delay between the week of October 24, 2016 when court and Crown were ready to resume the trial and defence counsel were not, to the end of the trial (less the court’s unavailability the four day week of October 31, 2016 and less the 12 days of trial utilized during that period), should be considered as defence delay. That equates to a defence delay of 39 days.
122In summary, I will deduct the following defence delays from the 38 months of overall delay;
(a) OCJ preliminary inquiry scheduling – 111 days;
(b) SCJ – trial delays – 39 days;
Total of 150 days divided by 30 equals 5 months (rounded).
123Having deducted the defence delay of approximately 5 months, the total remaining delay is 33 months, moderately above the presumptive ceiling. Accordingly, the Jordan analysis prescribes that the Crown has the burden of establishing exceptional circumstances to reduce the period of delay below the presumptive ceiling.
124One exceptional circumstance, which appears to be accepted by all counsel, was the illness of the judge who had been scheduled to conduct a second judicial pre-trial in the OCJ. A second JPT had been scheduled for April 8, 2016 but due to the illness of the judge, a new pretrial date was then rescheduled to May 21, 2016 with a remand date to May 28, 2016, to follow the pretrial. The Crown submits, and I agree, that the 28 days between the original post-JPT remand date and the rescheduled post- JPT remand date should be deducted as an exceptional circumstance.
125In summary, having deducted the defence delays and the discrete event exceptional circumstance arising from the judge’s illness, the overall delay is 32 months, which remains above the Jordan ceiling.
126I would observe that there is no evidence in this record that the defence demonstrated a sustained effort to expedite these proceedings. On the contrary, what occurred here was an unnecessary scheduling of a preliminary inquiry, a late notice of abandoning the preliminary inquiry, an unnecessary scheduling of pretrial motions and a late abandonment thereof. At no time was there an effort on the part of defence counsel to expedite the proceedings or to attempt to have the trial dates advanced.
127In any event, returning to exceptional circumstances, in addition to the judge’s illness mentioned previously, there is a real issue as to whether this is a “particularly complex case” as that concept was discussed in Jordan.
128The Crown submits that this is a case of particular complexity, such that the time taken to completion, is reasonable. There were 35 days of trial, 32 police witnesses. The surveillance and intercept documentation filed as exhibits was extensive. The Crown says this was a very challenging case to try and the evidentiary record was complex.
129Further, while this case proceeded against only 2 conspirators, Ethier and Jones, the case proceeded prior to trial against all 5 indicted conspirators. Gorgevechi or “V” pleaded to certain of the charges in the Ontario Court of Justice, McGregor pled to some of the charges in the Superior court, Perron pled to the charges on the opening day of trial, before another judge, and the accused Côté absconded and remains a fugitive.
130I quote paras. 37-41 of the Crown’s Factum, which I think fairly and accurately describes the complex nature of the case:
37Project Adelaide was a lengthy criminal investigation which started in the fall of 2012 through October 16th, 2013. It was preceded by an intelligence probe, Project Mayday, which began in approximately December 2011 and ultimately was converted into Project Adelaide. There were 69 judicial authorizations between December 2011 and November 2013, 3 one-party Consent Authorizations, and 4 full-blown Part VI wiretap authorizations covering the timeframe of February – October 2013, resulting in the interception of 1000’s of text messages and phone calls. Surveillance was conducted throughout Project Mayday and Project Adelaide, generating 100’s of surveillance reports.
38In addition to the above, the police engaged the services of a Police Agent, to infiltrate the criminal organization. The use of this investigative technique spawned even further disclosure regarding the Agent, such as Agent notes, debrief reports, debrief videos, Agent assessment and Agent history.
39Throughout the course of the investigation, there were a multitude of co-conspirators identified, some who became indicted, and others who remained unindicted but who nevertheless had evidentiary significance and relevance from a disclosure and prosecution perspective. Some were English speaking, others were French speaking. As such, some of the intercepts and evidence generated was in English, some was in the French language and therefore, requiring translation (for example, for the transcription of the text messages and telephone calls).
40In light of the numerous players identified during the investigation, there were 25 search warrants executed on takedown day, again, generating considerable additional evidence.
41Despite the numerous individuals identified throughout the investigation who the Crown submits were members of the conspiracy, only 7 individuals were identified for prosecution purposes, 6 of which were placed on one Information. David Bullen, who the Crown alleged was the head of the criminal organization, was placed on a separate Information, and ultimately, a separate Indictment, as he was also charged with an additional historical conspiracy with the Police Agent, separate and apart from the main conspiracy for which all co-accused are charged.
131The Crown’s position is that in light of the nature of the offences i.e. criminal conspiracy and participating in a criminal organization, it was both preferable and necessary for the accused to be tried together, because the evidence against each of the accused is inextricably linked with the other accused. The Crown also argues that having separate trials for each of the accused would not have significantly shortened any one trial in light of the interwoven evidence and would have significantly impacted the judicial system by having multiple separate proceedings stemming from one interconnected investigation. Proceeding separately against the individual accused would also create the real potential for inconsistent judicial findings on the charges and on discrete evidentiary issues. I agree with and accept these submissions.
132The Crown says that it acted reasonably to expedite the matter, notwithstanding the issues of complexity. There will be a separate trial for the alleged conspirator David Bullen. Furthermore, the timing and organization of the disclosure was designed to be as efficient as possible. I accept this submission.
133In any event, I am not persuaded that severance of some or all of the five co-accused on this indictment would have been feasible or in the interests of justice. The nature of the charges are such that virtually all of the same evidence would need to be called in each trial. As Moldaver J. noted in R. v. Vassel, 2016 SCC 26 (at para 6):
In many cases, delay caused by proceeding against multiple co-accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial.
134On the issue of severance, the observations of the British Columbia Court of Appeal in R. v. Singh, 2016 BCCA 427 are appropriate to the circumstances of this case:
Severance is not a panacea when delay issues arise in a multi-party indictment. The Jordan framework does not require severing proceedings in all cases. While there may well be cases where severance would be appropriate to avoid some delay, the interests of justice may dictate otherwise. The comments of Fraser J.A. (as she then was) in R. v. Koruz (1992), 1992 ABCA 144, 72 C.C.C. (3d) 353 at 419 (Alta. C.A.), aff'd R. v. Schiewe, 1993 CanLII 130 (SCC), [1993] 1 S.C.R. 1134 are fitting:
Moreover, if the suggestion is that every time a number of defendants are charged with conspiracy, the Crown should be required to sever charges if and when timing problems arise, the implications for prosecuting these kinds of cases could be profound. Although the right to trial within a reasonable time is an individual right, one cannot ignore the practicalities of what is involved in the Crown's prosecution of a conspiracy case. The mere fact that an accused has been charged with conspiracy does not confer upon him some inherent advantage in asserting a claim for a s. 11(b) breach if and when one of his co-defendants causes a delay in the proceedings. To suggest severance as a simple solution ignores the very real cost to the Crown and the public involved in prosecuting separate actions: R. v. McNamara (No. 1) (1981) 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 (O.C.A.), affirmed (1985) 1985 CanLII 32 (SCC), 19 C.C.C. (3d) 1 (S.C.C.). In the end, this kind of approach will only serve to contribute to further delays in the administration of justice.
135Having had the benefit of trying this case, I am of the view that the Crown’s position that this is a “particularly complex case” within the Jordan analysis is reasonable and this should be factored into the assessment of reasonable time delay. Given the level of complexity, I am of the view that a delay of 32 months is not unreasonable. I would dismiss the accused’s s. 11(b) application on that basis.
136In the event I am in error in classifying this as an exceptionally complex case within the Jordan analysis, I am also of the opinion that the transitional exception in Jordan is applicable. This case was approaching trial when Jordan was handed down and it was too late to advance the trial dates for a case of this length.
137As mentioned previously, I have no doubt counsel were relying on the pre-Jordan, Morin framework, when they set the trial dates without complaint and brought the s. 11(b) application to stay the charges only at the opening of trial.
138However, the real question is whether counsel’s obvious reliance on the pre-Jordan framework was reasonable. I think it was.
139Under the Morin analysis, the guideline for institutional delay in the Provincial Court is 8 to 10 months and 6 to 8 months in the Superior Court following committal for trial. Assuming then that in a case of at least moderate complexity such as this, the total Morin institutional delay limit would be 18 months. We have here a delay of about 15 months in Superior Court (trial set date to trial commencement) and approximately 5 months in Provincial Court. The total institutional delay is therefore about 20 months, moderately in excess of the Morin guideline.
140In my experience as an administrative judge in this jurisdiction, it was the pre-Jordan practice in Ottawa to schedule long trials of this length about 12-14 months in the future, subject to the scheduling practice of avoiding July and August due to shortages in judicial resources and other logistical considerations pertaining to the summer months. This practice is what pushed the institutional delay slightly beyond the Morin guideline and indeed slightly beyond the Jordan ceiling.
141This trial scheduling practice and the complexity of the case would, in my view, justify the application of the transitional exception. As the Supreme Court stated at par. 97 of Jordan:
97 Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as Crown counsel's behaviour is constrained by systemic delay issues. Parliament, the legislatures, and Crown counsel need time to respond to this decision, and stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist. As we have said, the administration of justice cannot countenance a recurrence of Askov. This transitional exceptional circumstance recognizes that change takes time, and institutional delay -- even if it is significant -- will not automatically result in a stay of proceedings.
142In the circumstances of this case, I also dismiss the s. 11(b) application on the basis of the transitional exception to the Jordan presumptive ceiling.
“Justice Charles Hackland”
Mr. Justice C.T. Hackland
Released: January 27, 2017
CITATION: R. v. Ethier, 2017 ONSC 564
COURT FILE NO.: 13-30422
DATE: 2017/01/27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
Ethier
Accused
REASONS FOR JUDGMENT
Hackland J.
Released: January 27, 2017
Footnotes
- Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11