CITATION: R. v. Stewart-Barachin, 2017 ONSC 7504
COURT FILE NO.: CR-16-90000066-0000
DATE: 20171213
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
LEVI STEWART-BARACHIN
Defendant
Geoffrey Roy, for the Crown
Howard Cohen, for the Defendant
HEARD: October 30 and 31 and November 1, 2017
REASONS FOR DECISION
CAROLE J. BROWN, J.
[1] The accused, Levi Stewart-Barachin, comes before this Court on a four count indictment, as follows:
i. That, Levi Stewart-Barachin, on the 7th day of April, 2014, in the City of Toronto, did possess cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.
ii. And that Levi Stewart-Barachin, on the 7th day of April, 2014, in the City of Toronto, did traffic in cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act.
iii. And that Levi Stewart-Barachin, on the 7th day of April, 2014, in the City of Toronto, did possess methamphetamine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.
iv. And that Levi Stewart-Barachin, on the 7th day of April, 2014, in the City of Toronto, did possess proceeds of crime, namely $42,735 in Canadian currency and $200 in US currency, knowing that all or part of the proceeds had been obtained by commission of an offence punishable by indictment, contrary to section 354, subsection (1) of the Criminal Code of Canada.
[2] The Crown advised that they are proceeding only on counts 1, 2 and 4.
[3] It is the theory of the Crown that a drug transaction occurred on April 7, 2014, in which one Daniel Shea supplied 1 kg of cocaine, which was purchased by one Shawn Hussain, with the accused, Levi Stewart-Barachin as the middle person who took the cocaine from Mr. Shea to Mr. Hussain. The accused was to meet Mr. Hussain at a designated time and place, at the Cloverdale Mall. Mr. Hussain was arrested on the way to his car after leaving the Cloverdale Mall with 1 kg of cocaine hidden in his pants. The accused was arrested in his vehicle. Upon a search of the vehicle, police located large bundles of Canadian and American currency. They further found approximately 10 g of cocaine in his vehicle.
The Evidence
Agreed Statement of Fact
[4] The Agreed Statement of Fact was made an exhibit in this trial. The parties have agreed to the facts, as follows:
The date, time and place of the intercepted communications have been admitted.
The amount of money that was seized from the plastic bag found in the white Toyota Corolla on 7 April 2014 by Detective Constable Wesseling was $42,735 in Canadian currency and $200 in US currency.
Evidence of Officer Glenn Brown
On April 7, 2014, the surveillance team of which Glenn Brown was a member had followed Daniel Shea, a suspect in the investigation, to the Terroni restaurant on Adelaide St. East in the City of Toronto. At approximately 14:50, Brown saw Shea walk from the area of the front doors of the Terroni restaurant and across the street. Shea got into the front passenger seat of a white Toyota with license plate AYKA 036 for about 5 to 10 seconds. Shea then got out of the Toyota and walked back to the restaurant. Brown was not able to see Shea’s hands as he walked to and from the Toyota. Brown was not able to provide a description of the driver. After Shea left the Toyota, the Toyota drove away and was not followed.
Case for the Crown
Detective Constable Mike Wesseling
[5] Detective Constable Mike Wesseling is with the Durham Regional Police. He testified that he was involved in surveillance as regards Project Wheeler, a large drug investigation. The targets included Daniel Shea and Shawn Hussain. They joined up with a second unit which was tracking the accused.
[6] They received information that Shawn Hussain would be picking up a large quantity of cocaine at 627 West Mall. This information was updated to a new location, the meeting was changed to the Cloverdale Mall pursuant to information he received from a Wireroom update. He attended Cloverdale Mall at 15:55 on April 7, 2014. Detective Constable Mason advised him to be on the lookout for a white Toyota, license plate number AYKA 036. Daniel Shea had met with an individual earlier that day. He first attended the west side of the Cloverdale Mall and located the white Toyota facing west bound. He saw an unknown male, black, wearing a brown hooded sweater, khaki pants, a winter toque and carrying a brown gift bag in his right hand. The unknown male entered the doors of the Mall just north of the Metro grocery store entry. This was just after 15:50.
[7] He identified the accused in Court as the person he had seen.
[8] He remained outside. There was a report that Shawn Hussain was in the Mall.
[9] At 16:14, he saw the accused exit with a light cloth grocery bag. The accused walked to the same vehicle, license plate AYKA 036.
[10] Detective Constable Phillips asked for the arrest of the accused who was behind the wheel of his vehicle. Detective Constable Wesseling positioned his vehicle facing north with the bumper to the accused’s. He arrested the accused at gunpoint and told the accused to show his hands, which he did. The accused was compliant.
[11] Detective Constable Wesseling searched the vehicle and located some items. He was the Exhibits Officer and had carriage of recording all items located by others who were also searching the vehicle. He also participated in the search and seized some items himself. Those involved in the search were Detective Constables Davies and Ashworth, and himself.
[12] Detective Constable Wesseling located, on the front passenger floor, a grocery bag tied off. There was a large amount of currency in the bag. He also located a blackberry cellular telephone on the floor. He located one bundle of currency in one glovebox tied off with a blue elastic rubber band. He also located a black book with a “debt list”, which had numbers. He believed it to be a debt list although it was not labelled as such. He also located a Ziploc bag of cocaine, which was later determined to weigh 6.29 g.
[13] Detective Constable Davies located a small plastic bag of crystal meth, weighing 3.05 g., in the driver’s door and a clear dime bag, located in the centre console of the vehicle, containing less than 1 g. of crystal meth. A large amount of cash was located and turned over to Detective Constable Hawkes.
[14] When drugs are seized, they are eventually processed at the Drug Enforcement Unit. They are weighed and a sample of each drug is put in an envelope, supplied by Health Canada, to be sent to Health Canada to be weighed and analyzed. If it is determined to be a Scheduled Substance, a certificate identifying the substance is provided. Large amounts or bundles of cash are always turned over to the Asset Forfeiture Unit. In this case, the amount is not in issue. It was counted by Detective Constable Hawkes and amounts to $42,735 Canadian and $200 US.
[15] Detective Constable Wesseling had no other contact with the accused. The items seized were locked in his vehicle until he returned to the Unit and thereafter were locked in his personal locker until they could be dealt with. Photographs of the subject and the items seized were introduced at trial.
Cross-examination
[16] In cross-examination, Detective Constable Wesseling testified that he did not believe that the Toyota was registered to the accused. He was not sure if it was leased, but saw photographs of a possible lease agreement found in the vehicle. The photo of the lease agreement is in the name of Thi Tui Nguyen, addressed 12 Emmett Ave., Toronto. The Wheeler Project does not allege that the vehicle was the accused’s.
[17] Detective Constable Wesseling confirmed that the Wheeler Project, investigated by the Durham Regional Police commencing six to seven months earlier, was part of a wiretap investigation. He was involved as part of the surveillance team. He confirmed that the accused had never been a target of the Project and was unknown prior to April 7, 2014. He had never heard the accused’s name previously.
[18] In Court, he introduced a second photograph of a Student Vocational Enrolment Form for Liaison College in the name of Patrick Nguyen, 12 Emmett Ave. The investigation does not know whether Nguyen had possession of the vehicle prior to April 7. There was no investigation regarding the vehicle afterward. Detective Constable Wesseling was not aware that the vehicle remained in the parking lot for several days thereafter until an individual picked it up. There were no fingerprints done on the vehicle that he knew of. There are none introduced at this trial. He is unsure why there was no fresh forensic testing done on the vehicle.
[19] He confirmed that three blackberry cell phones were located, one in the vehicle and two on the person of the accused, at the time of the arrest. He did not know the phone numbers the police had for Hussain as he is not a member of the Wireroom. It was not important for him to know the numbers but was important for the Wireroom. He does not know what phone was used to contact Daniel Shea. He explained that he was a member of the surveillance team and the duties of the surveillance team and his role were not the same as the Wiretap team. As at April 7, he had knowledge of the people that he was surveilling. He did not have knowledge of the whereabouts of the vehicle prior to arriving at the Cloverdale Mall, nor did he have knowledge that Daniel Shea was to provide drugs to the accused. He did not know what was in the gift bag.
[20] The accused was observed meeting with Hussain by Detective Constable Mason in the Cloverdale Mall. Detective Constable Mason did not observe drugs or currency being exchanged. He does not know what happened to the brown gift bag.
[21] The accused was in the Mall for 15 or 20 minutes (from 15:55 to 16:15). When asked whether the police had lost sight of the accused in the Mall at a certain time, he responded that he believed so although he was in the vehicle. He does not recall hearing information except hearing that they had met in the Mall. He recalls that there was a third party, but received no description of the third party as he recalls. He was told to locate the vehicle and the person and surveil them. When asked whether he could get communications from Detective Constable Connelly, he advised that Detective Constable Connelly did not have a radio with him, but only his cell phone.
[22] He saw the accused get out of the car, but does not recall whether he locked the vehicle. When asked whether he could have left it unlocked, he stated that he could have.
[23] He confirmed that in his role as Exhibits Officer, his disclosure notes break off at 02:00 and there is no notation regarding his seizure of the items or putting them in his locker. He testified that he did not make notes right after his attendance at the Cloverdale Mall as he was dispatched to another investigation which continued to the end of his shift. He had also conducted a search elsewhere. At the end of his shift, he put the seized items in his locker and locked it. He testified that each Drug Enforcement Officer has their own locker. His key remains with him and no one else can gain access to his locker. He does not believe that there is a duplicate of that key.
[24] He went back the next day, took the items from his locker, weighed the drugs, and put them in the Health Canada bags. He testified that after weighing and bagging evidence, he puts the processed items in the drug locker or the property locker (i.e. for cell phones). At that point, once they have been put in the drug or property locker, only the drug or property constables, respectively, can have access to and deal further with the seized items. Any money seized goes to the Asset Forfeiture Unit.
[25] When asked whether, when he quits duty, the Sergeant in Charge must sign off on his notes, he testified that that is not the case and that he had never had his notes signed off on by the Sergeant in Charge.
[26] When asked whether he was aware that a kilogram of drugs was taken from Hussain, he testified that he wasn’t involved with the arrest or search and seizure regarding Hussain. There were a variety of staff and units dealing with Project Wheeler. He believes that he was advised regarding Hussain afterward. He tried to make notes of things that were important to him. He did not advise anyone that he had drugs or currency when he returned to the Unit. The money goes to the Asset Forfeiture Unit and he did not advise or “broadcast” that he had located the drugs. He stated that he had seen larger seizures than that one. He did make a Police Witness Report (General Occurrence), A Property Report, the next day, April 8, 2014 at approximately 4:14 PM.
Detective Constable Ryan Connolly
[27] Detective Constable Connolly testified that he was involved on several dates on a part-time basis in Project Wheeler. On April 7, 2014, he was asked by Detective Constable Mason to assist and to make observations regarding an anticipated meeting between the suspected supplier and buyer of drugs. The meeting was initially to occur at West Mall but they received an update from Detective Constable Mason that the meeting had been changed to the Cloverdale Mall.
[28] He drove to the Cloverdale Mall. He proceeded to that part of the Mall where the Metro grocery store was located. He was updated by Detective Constable Wesseling regarding his surveilling a white Toyota, license plate AKYA 036.
[29] He observed a man exit the white Toyota in question, wearing a brown hooded sweater, khaki pants and carrying a brown gift bag. The man entered the Mall on foot. He followed the man into the Mall and located him. The target entered the Metro grocery store, walked around, took a bottle of water, went to Checkout 10, paid for the bottle of water, which was put in a white grocery bag, and left the Metro with that bag and the gift bag. In the interior Mall, the man walked north and west toward the Target store, then turned around and walked back toward the LCBO, where the man met Hussain and another tall white clean-shaven man. He testified that he may have seen a photo of Hussain. They walked back toward the Target store after they met. Detective Constable Connolly ducked into a store, as he did not want to be detected following them, and lost sight of them. When he came out he did not see them. That was the last time he saw the accused.
[30] He thereafter saw Hussain and the unknown third party walk toward the LCBO and believed that they exited the Mall. Detective Price saw Hussain exit, although the third-party male did not exit. Detective Constable Connolly was directed to go back into the Mall to try to locate the third party but was unable to do so.
[31] He did not see what they were holding in their hands. He did not see Hussain arrested. He did see him in custody. It was the same person he had seen in the Mall.
[32] He attempted to obtain the Mall’s security videos, but was advised that there were no videos being taken. He thereafter was told that there were video security cameras in the Metro, met with the business manager of the Metro, requested the security videos and gave them his card. He was not involved further at that time. Someone else would have followed up with respect to the security videotape. He had updated Detective Constable Taylor regarding the Metro video and advised that Detective Constable Taylor could follow up.
[33] He identified the accused, Levi Stewart-Barachin, seated in the Courtroom, as the person with the brown gift bag who exited the white Toyota.
Cross-examination
[34] As regards the information received from Detective Constable Wesseling, he understood that the person who exited the Toyota was suspected to be the supplier for Hussain. He did not understand and was not advised that there were drugs in the gift bag. He did not know what was in the gift bag. He only knew that the person was the possible supplier of drugs.
[35] He did not observe any behaviour that would suggest that the accused was conscious of being surveilled nor any obvious counter surveillance activity.
[36] When asked about the criminal records of Hussain and the accused, he indicated that he was not part of the investigation and, as such, did not have that information. He was simply assisting with surveillance on that day.
[37] As regards returning to the Mall to attempt to locate the third-party unknown male, he was asked to do so. He does not know why he was asked to do so, but was only told to attempt to locate him, which he did.
[38] When he saw the three people first meet, he was approximately 20 to 30 feet from them. It appeared to him that they all knew one another. There were handshakes and brief words. He did not see anything in the hands of the unknown white male. If he had pulled something out of his pocket, Detective Constable Connolly did not see it.
Detective Constable Troy Phillips
[39] Detective Constable Troy Phillips was the Road Boss that day, meaning that he was the team lead. The information received from the Wireroom would be transmitted to him. He was provided with the name of the target person, Shawn Hussain.
[40] At 15:37 he received an update from the Wireroom, from Constable Capener that the drug supplier was to meet with Hussain at the West Mall. At 15:46, he was advised that the meeting location had changed to the Cloverdale Mall. He arrived at the Cloverdale Mall and was advised that Detective Constable Wesseling had also arrived at the Mall.
[41] He located the white Toyota, driven by a light-skinned man dressed in a dark hoodie, khaki pants and carrying a gift bag.
[42] Detective Constable Connolly was inside the Cloverdale Mall. He gave Detective Constable Phillips updates. There was a “meet” inside the Mall. They were to make arrests when it was safe to do so.
[43] Detective Constable Phillips observed the same light-skinned man dressed in a dark hoodie and khaki pants, leave the Mall and walk back to the Toyota Corolla. The man no longer was carrying the brown gift bag but, instead, had a grey bag. It was believed that an exchange had occurred. Detective Constable Connolly was within a couple of car lengths of the Toyota Corolla and the subject man.
[44] The man was arrested without incident and identified himself as Levi Stewart-Barachin, with date of birth, 22 December 1990. Detective Constable Phillips believes that person to be the accused. He had limited involvement in the search.
Cross-examination
[45] On April 7, 2014, Detective Constable Phillips started his shift at 12:00. He received a telephone call advising that a surveillance team was needed. He pulled the team together.
[46] At 12:36, they started to target Hussain for any meetings which he may have. They did not know where he was at 12:36. At approximately that time, he received information from the Wiretap Unit that the supplier was to meet Hussain and that $39,000 was to be dropped off to go to Daniel Shea. The object was to monitor the target person, Shawn Hussain, for any meetings.
[47] He first went to 37 King St. E., Daniel Shea’s residence on the way to the West Mall and, at 14:32, he received information that the target vehicle had been located on Eva Rd. in Toronto. The vehicle was another Toyota Corolla, a 2003, with license plate number BMRE 483, which was associated with Shawn Hussain. Detective Constable Mason requested that Hussain be arrested if it was safe to do so. The target vehicle drove from Eva Rd., stopped at an apartment building for a short while and was suspected to be heading to the West Mall.
[48] At 15:09, he was informed that there was a possible meeting between Daniel Shea and the supplier at which there may be a money exchange. Details of the meeting at the Cloverdale Mall came thereafter. The updated information indicated that it was heading to Cloverdale Mall. The information was that Hussain, in the target vehicle, was to meet with the suspected supplier.
Detective Constable Dave Davies
[49] Detective Constable Dave Davies was a part of the surveillance team at the Cloverdale Mall. He arrived at approximately 15:30 and located the white Toyota Corolla with license number AYKA 036. He was tasked to observe the vehicle and the driver. He first saw the vehicle at approximately 15:55. A male exited the vehicle. He was a light-skinned black man wearing a hooded jacket, khaki pants and a toque, and carrying a brown bag.
[50] Detective Constable Davies was close enough to the male to take a photograph of the man returning to the vehicle without the brown bag, but carrying the white grocery bag.
[51] He was instructed to arrest him and did so. He located two blackberries in the front pouch of the man’s belt, as well has his identification: Levi Stewart-Barachin, 3485 Oak Guide Rd., Mississauga. Detective Constable Davies was involved in a search of the vehicle.
[52] He took photographs of the accused approaching the vehicle after exiting the Mall, the vehicle, and the items located in the vehicle and trunk, including the bundles of money, blackberries, plastic bags, envelopes and receipts with the name of the accused, and the lease documents, all of which were entered in evidence at trial.
[53] Detective Constable Davies took the accused to 23 Division to process him.
Cross-examination
[54] All items seen in the photographs were found in the vehicle. Detective Constable Davies arrested the accused and searched him incident to arrest. No drugs were found on his person. The drugs and currency located in the vehicle were not in plain view. There was no smell of marijuana in the vehicle. While the accused did not admit that the drugs and money were his, Detective Constable Davies observed him returning with a different bag filled with money. It was his suspicion that the transaction had already occurred. There had been audio intercepts and information from the Wireroom.
[55] Following his arrest by Detective Constable Davies, Detective Constable Naccarato read him his rights and cautions. When he was arrested, he was asked to open the vehicle door and did so without incident. He was advised that he was under arrest for trafficking. Detective Constable Davies knew that he wanted to search the grocery bag. He walked the accused back to the rear of his van where Detective Constable Naccarato took possession of him and read him his rights and cautions.
[56] Detective Constable Davies, along with Detective Constables Wesseling and Naccarato, searched the car and took photographs. Detective Constables Phillips and Ashworth were also present. The accused was not asked whose drugs were located in the car nor whose money it was.
[57] On consent, the transcripts of intercepted communications were read into the record.
Detective Constable William Graham
[58] Detective Constable William Graham was part of the surveillance team on April 7, 2014. He received information to attend the Cloverdale Mall. He was the note taker for the day.
[59] At 16:08, he observed Shawn Hussain in the Mall, wearing a grey toque. Mr. Hussain was on his cell phone. Detective Constable Graham had received information from Detective Constable Connolly as to what was happening in the Mall. The surveillance teams had split into two teams, one was directed to arrest Shawn Hussain and the other to arrest the suspected supplier.
[60] At 16:20, he observed Hussain walking to his vehicle. He positioned his vehicle perpendicular to Hussain’s. After Hussain was arrested, he was searched incident to arrest. Detective Constable Graham found one kilogram of cocaine in the waistband of Hussain’s pants and found Canadian currency in his pockets in the amount of $555.30 ($40 in his left front pants pocket, $510 in his right front pants pocket and $5.30 in his right front jacket pocket). Detective Constable Graham maintained possession of the cocaine, which was in a vacuum sealed container with the letters “CLELO” in black magic marker on the bag.
[61] Photographs of the items located in the search were taken, and entered in evidence at trial.
[62] After the drugs were seized, they were kept secure in Detective Constable Graham’s vehicle. He returned to 23 Division to weigh and photograph the drugs. He then went to the Drug Enforcement Unit, where he took two samples of the crystalline substance. One gram was placed in a Health Canada envelope number L0019193, and 2.5 g was placed in Health Canada envelope L0019194. The substances were weighed, packaged, sealed and at 2:45 AM, both samples and the packaging were placed in the drug locker to be sent out to Health Canada. From the time the drugs were seized until this point, they remained in Detective Constable Graham’s possession. Thereafter, he had no access to the packaged drugs.
[63] The total amount of the brick of cocaine was 1132.58 g, inclusive of packaging.
Cross-examination
[64] When Detective Constable Graham was weighing and packaging the samples of cocaine, Detective Constable Ashworth was with him. He finished at 3 AM on April 8. He had returned to the Unit at 11:35 PM and finished the processing of the items seized at 1:38 AM.
[65] He confirmed that the cocaine had remained with him for the entire time from its seizure until its processing. He photographed, weighed and placed the samples in the Health Canada envelopes. Once they were placed in the drug locker, he no longer had access.
[66] When asked whether he was aware that there was an unknown white male in the Mall, he indicated that he did not surveil inside the Mall and only has noted that the suspected supplier was a light-skinned male.
[67] He believes the writing on the package of drugs “CLELO” to be branding from the seller or the source. He was not sure, but did not think that other drugs found in Project Wheeler had this brand name. He did not advise other Divisions or Forces as regards the “brand name”. He was not able to answer or speak to the question of whether there was any follow-up as regards the brand name or the unknown white male. He was not tasked or responsible for any follow-up. He believes that the packaging was fingerprinted but does not know what the results were.
[68] He was not aware of what happened to the vehicle after he arrested the accused. He left to accompany the accused back to 23 Division. He did not know why the Hussain vehicle was impounded while the accused’s vehicle was not, as he was not involved in any further investigation as regards the vehicles.
Detective Constable Mark Ashworth
[69] Detective Constable Mark Ashworth was involved in Project Wheeler and was at the Cloverdale Mall on April 7, 2014. He observed a vehicle, a Toyota, license plate AYKA 036 in the parking lot and assisted with the arrest of the suspected supplier. He had drawn his M4 for the arrest, which was relatively calm.
[70] He assisted in the search of the vehicle. He seized the marijuana in the trunk of the vehicle and turned it over to Detective Constable Wesseling. He seized crystal meth and Canadian currency from the central console between the seats. He also seized a bag of crystal meth from the driver’s door side pocket. He also helped to execute a search warrant at 22 Leader’s Lane. He took the photographs of the packages seized, as described above.
Cross-examination
[71] He searched the trunk incident to arrest. He did not have a search warrant. He does not know whether the trunk was locked; it was closed. He does not know how it was opened. He does not recall knowing that the vehicle was leased. He did not consider the possibility that the accused may not have had access to the trunk prior to arrest.
[72] He did not play a role in deciding that the car should be left after the search. That was not his role. He did not know that the Hussain vehicle was impounded. He does not know who made the decision to have the Hussain vehicle impounded but not the accused’s vehicle. It was not his decision to make.
The Case for the Defence
[73] No evidence was called on behalf of the accused, Levi Stewart-Barachin, and he did not testify at trial, as is his right.
Submissions of the Parties
Submission of the Crown
[74] It is the submission of Mr. Roy, counsel for the Crown, that there is sufficient evidence to find, beyond a reasonable doubt, that the accused is guilty of the offences charged, without having to rely on the telephone and text communications set forth in the transcripts of the intercepted communications, and entered in evidence in this trial. Relying on the intercepted communications would require a finding that the communications fell within the hearsay exception regarding co-conspirators’ statements. However, he submitted that two intercepted calls can be considered without such a finding, namely the communications made April 7, 2014 at 13:58:28 EDT and at 15:42:11 EDT, which he submits involve the accused.
[75] Pursuant to the Agreed Statement of Fact, the statement of Officer Brown identifies the car and the license plate as the vehicle from which Detective Constable Connolly observed the accused exit at the Cloverdale Mall in front of the Metro store. The accused was carrying a gift bag. He observed the accused enter the Mall, followed him in and saw the accused walk into the Metro store and purchase a bottle of water, which was put into a white plastic grocery bag.
[76] The accused then went into the Mall, carrying the gift bag and the grocery bag, walked from one end to the other and then returned toward the LCBO. Detective Constable Connolly then observed the accused meet with Shawn Hussain and an unknown white male. Detective Constable Connolly then ducked into a store to avoid being detected and, when he exited the store, did not see the accused, but did see Hussain and the white male. He thereafter saw Hussain in custody, although he did not see him being arrested by Detective Constable Graham. He was directed to go back into the Mall to look for the white male, but could not locate him. Mr. Roy submits that Detective Constable Connolly could not have lost sight of the three men for any length of time, as Detective Constable Graham saw the accused go into the Mall at 16:08 and he was seen to exit the Mall at 16:15.
[77] The accused was observed returning to and entering his vehicle with the white plastic grocery bag, which was found in the front passenger side of the vehicle containing a bottle of water and currency in bundles ($42,735 Canadian and $200 US).
[78] When Hussain was arrested, 1 kg of cocaine was found on his person. The substance found was confirmed in a Health Canada analysis to be cocaine.
[79] It is the submission of Mr. Roy that this evidence is sufficient to find the accused guilty beyond a reasonable doubt.
[80] However, in the event that the Court is not convinced of his guilt beyond a reasonable doubt based on this evidence, Mr. Roy submits that the transcripts of intercepted communications can be admitted in evidence and considered on the basis of the co-conspirator’s (joint actor’s or common enterprise) exception to the hearsay rule, pursuant to the Carter analysis.
Submissions of the Defence
[81] Mr. Cohen, on behalf of the accused, confined his submissions to counts 1 and 2, submitting that if the accused is not found guilty on those charges, count 4 will also fall.
[82] It is the submission of Mr. Cohen that the Crown has failed to prove that the accused was in possession of cocaine and, if he was in possession of cocaine, the Crown has failed to prove his knowledge that the package contained a controlled substance.
[83] Mr. Cohen submits that even if it were the accused who supplied the cocaine to Hussain in the Mall, the issue is whether he knew what was in the bag. As regards the accused’s knowledge, Mr. Cohen submits that the accused was likely taking direction from someone else and acting as a “blind courier”, such that it is unlikely he knew what he was carrying. He submits that it is likely that he did not even know that this was part of a drug conspiracy. Mr. Cohen submits that it can be inferred that the accused was retained to drop something off without his knowing what it was.
[84] In support of this position, Mr. Cohen submits first that the transaction occurred 6 to 7 months after Project Wheeler began, after the wiretaps were obtained. He submits that substantial information would have been before the court in order to get the wiretap authorizations, many people were involved, and despite the magnitude of the investigation, the accused remained unknown, as did the vehicle, until the time of this transaction. Further, there appears to be no knowledge of or evidence regarding where the cocaine came from. One may infer from this that whoever provided the cocaine may be unknown.
[85] Second, Mr. Cohen submits that the car was not the accused’s, but was leased by a woman named Nguyen and used by a young man named Nguyen, perhaps her son, who was a student pursuant to the evidence found in the car and adduced at trial.
[86] Third, Mr. Cohen submits that there is no evidence that the accused knew what was in the trunk of the vehicle, and there is no evidence that his fingerprints were on any of the items found in the vehicle.
[87] Fourth, Mr. Cohen submits that the scenario presented in the transcripts of intercepted communications is not reasonable. It appears, on the evidence advanced and inferences drawn by the Crown, that Shea would have given the accused the cocaine before he knew that the accused had the money, which is not plausible. He submits that none of the communications has any probative value.
[88] Additionally, he submits that on the theory of the Crown, the accused would have known that he was carrying 1 kg of cocaine and would have suspected that he may be followed and may have displayed some consciousness of surveillance or counter surveillance activity which, pursuant to the evidence, did not occur or was not observed. Had he known there were drugs in the bag, he would have known that he was at risk. There is nothing in his conduct or behaviour to suggest any such knowledge.
[89] Finally, on the subject of the accused’s knowledge, Mr. Cohen submits that other evidence of the accused’s lack of knowledge of what he was carrying includes that he received a bag but did not count the money, suggesting that he was not involved in the negotiation and actual transaction, other than to be a “courier”. Further, there is no evidence to suggest that he knew that there was almost $43,000 in the grocery bag.
[90] Mr. Cohen also argues that the Crown has not proven that the accused actually committed the actus reus. First, he explains that there was no evidence of the street value of 1 kg of cocaine at that time. Second, the Crown has failed to prove that the third party was not involved with the transaction. Third, there is no proof that Hussain did not have the cocaine already in his pants. There was no evidence to suggest that there was a transfer of cocaine to him which he thereafter put in his pants. There were no security cameras to capture such a transfer. And finally, there were no intercepted communications thereafter indicating that the deal had been done.
[91] Mr. Cohen highlights that the car used by the accused was not seized, although Hussain’s car was.
[92] Mr. Cohen submits that, pursuant to this same analysis, the accused is not guilty of possession for the purpose.
The Law
[93] Levi Stewart-Barachin is charged, pursuant to the Controlled Drugs and Substances Act, S.C. 1996, c. 19, with trafficking in a substance and possession for the purpose of trafficking, as follows:
5(1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.
5(2) No person shall, for the purposes of trafficking, possess a substance included in Schedule I, II, III or IV.
[94] He is further charged pursuant to s. 354 of the Criminal Code as follows:
Everyone commits an offence who has in his possession any property or thing or any proceeds of a property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from
(a) the commission in Canada of an offence punishable by indictment
Analysis
[95] I am satisfied beyond a reasonable doubt that Mr. Stewart-Barachin was the one who brought the drugs into the Mall and that he exchanged them for the cash. In the Mall, Detective Constable Connolly saw the known purchaser and the accused meet, along with a third party unknown male. He testified that they all appeared to know one another. While the actual exchange was not seen, the accused exited without the brown gift bag, but instead, had in his hand, the plastic bag from the Metro grocery store, which was found to contain the bottle of water he had bought and the bundles of money amounting to $42,735 Canadian and $200 US. Mr. Hussain, after exiting the Mall and being arrested, was found to have one kilo of cocaine. I am satisfied beyond a reasonable doubt that the exchange of drugs for money occurred at that time between the accused and Mr. Hussain.
[96] Beyond the bare action, the Crown must also show that the accused knew or was willfully blind to the fact that the package contained narcotics or, for the offence of possession of proceeds of crime, that the money was proceeds of crime.
[97] The mens rea for the offences of trafficking and possession for the purpose of trafficking in narcotics is knowledge or willful blindness to the fact that the package contained narcotics: R. v. Collymore, [2003] O.J. No. 2322 (S.C.), at paras. 11-12; R. v. Blondin (1971), 1970 1006 (BC CA), 2 C.C.C. (2d) 118 (B.C.C.A.), aff’d 1971 1411 (SCC), [1971] S.C.J. No. 42. The Crown must prove that the accused knew or was wilfully blind to the fact that the package specifically contained narcotics, as opposed to some other illegal item; but they need not show that the accused knew the precise type of narcotics. The mens rea for the offence of possession of proceeds of crime is knowledge or willful blindness to the fact that the money is proceeds of crime.
[98] A finding of knowledge or willful blindness is also necessary for the actus reus of each offence, since proof of possession requires proof of knowledge (or wilful blindness), consent, and control: R. v. Sandhu, [2016] O.J. No. 5810, at paras. 162-63.
[99] The doctrine of wilful blindness imputes knowledge onto an accused if suspicion is aroused in the accused’s mind such that he sees the need to ask further questions or make further inquiries, but fails to do so: R. v. Sansregret, 1985 79 (SCC), [1985] 1 S.C.R. 570, at para. 22; R. v. Callejas, 2011 ONCA 393, [2011] O.J. No. 2232, at para. 8.
[100] Given my finding that Mr. Stewart-Barachin brought the drugs into the Mall and that he exchanged them for the cash, if knowledge or willful blindness to the fact that the package contained narcotics is proven beyond a reasonable doubt, then all three offences are made out.
[101] I am satisfied beyond a reasonable doubt that the accused knew or was willfully blind to the fact that the package contained narcotics.
[102] I find as much without relying on the intercepted communications.
[103] I do not find persuasive the defence submission that the drugs or money could have come from the third party or that Hussain could have had the cocaine on his person when he entered the Mall. I do not find this latter suggestion to be probable, given that Hussain was entering a public Mall. I do not find the fact that the brown bag was not seen after the accused left the Metro to enter the inner Mall to be significant. None of these defence submissions raises a reasonable doubt in my mind.
[104] I do not find, as urged by Mr. Cohen, that Mr. Stewart-Barachin was merely a “blind courier” such that he did not have the requisite knowledge of what he was delivering. Based on all of the evidence, I am satisfied beyond a reasonable doubt that he knew that he was dealing in drugs and that he was aware that he would be receiving cash in return.
[105] There is sufficient evidence to conclude that Mr. Stewart-Barachin was otherwise connected to the drug trade, based on the additional drugs and bundles of money found in the vehicle. While Mr. Cohen submits that the vehicle was not the accused’s, but was leased by a third party, who may have had it prior to Mr. Stewart-Barachin, and that the contents in the vehicle may have been those of the third party lessor, I am of the view that said third party would not have left bundles of money, packets of cocaine and crystal meth, and the debt book in the vehicle when it was used by Mr. Stewart-Barachin.
[106] The Crown entered into evidence the transcripts of intercepted communications collected during Project Wheeler, which included two conversations which he submitted could be considered without having to consider the exception to the co-conspirators hearsay rule, given that the communications involved the accused himself. Those were the communications made April 7, 2014 at 13:58:28 EDT and at 15:42:11 EDT, which the Crown submits involve the accused. Based on the reading of the two conversations of intercepted communications between Hussain and an “unknown male”, I am satisfied beyond a reasonable doubt that the unknown male in the conversation is the accused.
[107] In the earlier conversation the “unknown male” indicated to Hussain that he was supposed to meet Hussain to drop something off, that he was downtown and would still have to pick it up and then meet Hussain. Hussain advised that he was in the West Mall and that the “unknown male” should call Hussain before he leaves as Hussain had to get the “paper”, that he did not have the paper. In the second telephone call, the “unknown male” identified himself as being at the Cloverdale Mall in a white car and inquired as to whether he should park in front of the Metro store. It was confirmed by Hussain that he should park in front of the Metro store and they would meet inside the Mall. The “unknown male” indicated that he would go inside the Metro store to get something to eat. They were to meet inside the Mall thereafter. The description of the car in which he was, the place where he parked in front of the Metro store and the indication that he was going into the Metro store prior to meeting Hussain in the Mall are all consistent with the descriptions and observations of the accused given above by the police involved in the surveillance and investigation. As indicated above, I am satisfied beyond a reasonable doubt that these intercepted conversations were between the accused and Hussain and took place just prior to the exchange.
[108] Based on the accused’s own statement contained in the transcript of intercepted communications between himself and Shawn Hussain, he had to meet Hussain “to drop something off.” Hussain said to him “I gotta get the… paper right?” Mr. Stewart-Barachin responded “I’m supposed to, I’m trying to meet Buddy at, he says I’m going to meet him by 3 o’clock so by 3 o’clock I’m going to have it. And then I’m going to probably… head toward you.” Planning went into the meeting. Given all of the communications and planning, if Mr. Stewart-Barachin did not have actual knowledge as argued by Mr. Cohen, I find that he was willfully blind, as all of the planning and the indicia of his involvement with the drug trade would have raised sufficient suspicion to make inquiries. Further, while it may have been coincidental, he purchased a bottle of water and obtained a plastic bag at the Metro, in which the cash, in bundles, was ultimately placed. The vehicle that he drove to the Mall, where the meeting occurred, contained additional drugs, namely 10 g of cocaine and packets of crystal meth, as well as numerous bundles of cash and other hidden cash, in addition to the proceeds found in the green plastic bag inside the white plastic bag which he had obtained in the Metro. It also contained a black “debt book”.
[109] Based on all of the evidence above-described, I am satisfied beyond a reasonable doubt that the accused was involved in the exchange of cocaine for money and that he had knowledge of what was being exchanged. If I am wrong in that regard, he was willfully blind to that fact, as analyzed above.
[110] While I am satisfied that my conclusions do not have to be bolstered, the subject transaction also fits into the broader context of the discussions regarding the transaction as evidenced in the other intercepted communications between Hussain and Shea. In this regard, with the exception of the two transcript conversations involving the accused, I must analyze the admissibility of the hearsay evidence not involving the accused pursuant to the co-conspirators exception to the hearsay rule.
[111] In R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, the co-conspirator’s exception is simply summarized in the Carter rule, first set forth in R. v. Carter, 1982 35 (SCC), [1982] 1 S.C.R. 938, as follows:
[8] …Following Carter, co-conspirators’ statements will be admissible against the accused only if the trier of fact is satisfied beyond a reasonable doubt that conspiracy existed and if independent evidence, directly admissible against the accused, establishes on a balance of probabilities that the accused was a member of the conspiracy.
[22] The Carter process allows the jury to consider a hearsay statement by a co-conspirator in furtherance of the conspiracy only after it has found (1) that the conspiracy existed beyond a reasonable doubt and (2) that the accused was probably a member of the conspiracy, by virtue only of direct evidence against him.
[112] Thus, the three step Carter rule is as follows:
Does conspiracy exist beyond a reasonable doubt? In this step, the trier of fact must consider all of the evidence, including the statement.
If so, was the accused a member of the conspiracy? In this step, the trier of fact can only consider the evidence directly admissible against the accused. This excludes the statement.
If so, the trier of fact is entitled to apply the hearsay exception and to consider the evidence of the acts and declarations performed and made by the co-conspirators in furtherance of the objects of the conspiracy as evidence against the accused on the issue of guilt.
[113] Having heard all of the evidence at trial, and applying the Carter rule to that evidence in this trial, I will briefly summarize my conclusions as regards the admissibility of the hearsay statement as follows:
I am satisfied beyond a reasonable doubt that there was a conspiracy to traffic in cocaine;
I am satisfied on a balance of probabilities, based on the direct evidence admissible against the accused, that he was a member of the conspiracy.
Thus, the hearsay exception applies and the hearsay evidence sought to be adduced is admissible.
[114] My analysis is as follows.
[115] I am satisfied, based on all of the evidence, that there was a conspiracy to traffic in cocaine. This is based on the evidence of the police officers as regards Project Wheeler, and particularly based on the information they received and the direct observations they made as regards the exchange of cocaine for money on April 7, 2014 between Stewart-Barachin and Hussain at the Cloverdale Mall, the arrest thereafter of each man in the parking lot of the Cloverdale Mall and the items seized in the searches incident to arrest.
[116] I am satisfied on a balance of probabilities, based on the direct evidence admissible against the accused, that he was a member of the conspiracy to traffic in cocaine on April 7, 2014. He was observed by the various police officers assigned to surveil Hussain and the accused on April 7, 2014, who testified that he entered the Mall with a brown gift bag, went into the Metro store where he purchased a bottle of water which was put in a white plastic bag, and then went into the Mall where he ultimately met Hussain and another unknown male. He emerged from the Mall without the brown gift bag, but with the white plastic bag which, after his arrest, was found to contain the bottle of water he had purchased and a large bundle of money. Hussain emerged on the other side of the Mall where he was arrested. A kilo package of cocaine was found concealed in an inner pocket of his pants.
[117] Based on this direct evidence against the accused, I am satisfied on a balance of probabilities that he was a member of the conspiracy to traffic in the cocaine found on Hussain’s person on April 7, 2014.
[118] I am therefore satisfied that the hearsay exception applies and the evidence of the transcripts of intercepted communications are admissible. The transcripts are further evidence of the accused’s knowledge, and bolster my earlier findings.
[119] As indicated above, however, I am satisfied, even without the transcripts of intercepted communications between Daniel Shea and Hussain, that based on the other evidence adduced by the Crown, Mr. Stewart-Barachin is, beyond a reasonable doubt, guilty of counts 1, 2 and 4 of the indictment as set forth at paragraph 1, above.
[120] The Crown did not proceed on count 3, no evidence was adduced and Mr. Stewart-Barachin is therefore acquitted on count 3.
Carole J. Brown, J.
Released: December 13, 2017
CITATION: R. v. Stewart-Barachin, 2017 ONSC 7504
COURT FILE NO.: CR-16-90000066-0000
DATE: 20171213
HER MAJESTY THE QUEEN
– and –
LEVI STEWART-BARACHIN
Defendant
REASONS FOR DECISION
Carole J. Brown, J.
Released: December 13, 2017