CITATION: R. v. Keith Ritchie, 2017 ONSC 991

COURT FILE NO.: CR-13-0081

DATE: 2017-02-10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen

Claude Richer and Kristen J. Mohr, for the Crown

and -

Keith Ritchie,

Victor Giourgas, for the Accused

Accused

HEARD: March 7, 8, 9, 10, 14, 15, 16, 17, 18, 21, 22, 23 and 30; April 19; June 9, 13, 14 and 17; September 12, 13, 14 and 15, 2016, at Thunder Bay, Ontario

Platana J.

Reasons for Judgment

Introduction

[1] Keith Ritchie is charged with:

i) That KEITH JOHN RITCHIE, on or between the 15^th day of June in the year 2011 and the 16^th day of June in the year 2011 at the City of Thunder Bay in the said Region, unlawfully did conspire together with person(s) unknown or unnamed to commit an indictable offence, to wit, Trafficking in Cocaine, thereby committing an offence, contrary to Section 465(1) (c) of the Criminal Code;

ii) And further that, KEITH JOHN RITCHIE, on or between the 15^th day of June in the year 2011 and the 16^th day of June in the year 2011 at the City of Thunder Bay in the said Region, did participate in or contribute to the activities of a criminal organization to wit: TSEKOURAS et al. for the purpose of enhancing the ability of the said organization to commit the indictable offence of Trafficking in a Controlled Substance, contrary to the Controlled Drugs and Substances Act, contrary to Section 467.11 of the Criminal Code;

iii) And further that, KEITH JOHN RITCHIE, on or about the 15^th day of June in the year 2011 at the City of Thunder Bay in the said Region, unlawfully did traffic in a substance included in Schedule I of the Controlled Drugs and Substances Act, to wit: cocaine, contrary to Section 5(1) of the said Act, thereby committing an indictable offence under Section 5(3)(a) of the said Act;

iv) And further that, on or about the 15^th day of June in the year 2011 at the City of Thunder Bay in the said Region, unlawfully did traffic in a substance included in Schedule II of the Controlled Drugs and Substances Act, to wit: marihuana, contrary to Section 5(1) of the said Act, thereby committing an indictable offence under Section 5(3)(a) of the said Act;

v) And further that, KEITH JOHN RITCHIE, on or about the 15^th day of June in the year 2011 and the 16^th day of June in the year 2011at the City of Thunder Bay in the said Region, unlawfully did conspire together with person(s) unknown or unnamed to commit an indictable offence, to wit, Trafficking in Marihuana, thereby committing an offence, contrary to Section 465(1) (c) of the Criminal Code;

vi) And further that, KEITH JOHN RITCHIE, on or about the 15^th day of June in the year 2011 and the 16^th day of June in the year 2011at the City of Thunder Bay in the said Region, did commit the indictable of Trafficking in a Controlled Substance, contrary to the Controlled Drugs and Substances Act, for the benefit of or in association with a criminal organization, to wit: TSEKOURAS et al. contrary to Section 467.12 of the Criminal Code.

Background

[2] The charges arise out of a police investigation in the City of Thunder Bay known by police as Project Dolphin. On June 15, 2011, police executed a number of search warrants on various residences in Thunder Bay. Among the places searched was the residence of Salvatore Larizza. Police found a box in the garage containing 18 bags of marijuana and one kilo (“brick”) of cocaine. On the same day, police arrested one John Tsekouras and seized a cellphone from him. The phone was encrypted using software known as “PGP” (Pretty Good Privacy) obtained through a supplier, Phantom Security. In a pre-trial application, I ruled the messages in the Tsekouras phone could be admitted into evidence in Mr. Ritchie’s trial (2016 ONSC 765).

[3] Further, I allowed the Crown’s applications, heard during the course of the trial, to permit evidence of Constable Kelly Walsh, who prepared a videotaped, subsequently transcribed, surveillance report despite the fact that a portion of the tape had been lost (2016 ONSC 3018).

[4] Additionally, I allowed the Crown’s application to admit a sworn statement, videotaped and transcribed, of Salvatore Larizza (who was murdered on October 25, 2012), and the transcript of the guilty plea, but not the facts, of Frank Muzzi (2016 ONSC 5565).

[5] The Crown’s case against Mr. Ritchie is built primarily on an investigation known as Project Dolphin which included video and personal surveillance, use of tracking devices, and information obtained from the encrypted cellphone seized from John Tsekouras. The focal issue is whether Mr. Ritchie can be identified, as information obtained from the cellphone uses “monikers” to identify the senders and receivers of messages and e-mails. Later in these reasons, I will detail how I have identified the names of individuals which I attach to the “monikers.” From here on in these reasons, I have accepted the name John Tsekouras as being the person associated to the moniker “Sega Time,” Frank Muzzi as associated to “7710,” Robert Chiodo as “Big Guy,” and Keith Ritchie as associated to “Daft Punk” and/or “Surf Dawg.”

[6] Certain admissions were made by the accused’s counsel at the commencement of trial:

• The quantity of cocaine and marijuana found are consistent with both being trafficked.

• Daniel Embury, Jason Rybak and Kelly Walsh were acknowledged to be experts entitled to give opinion evidence.

• The nature and quantity of the drugs seized.

• A box of drugs, seized at Salvatore Larizza’s residence, contained 18 vacuum sealed packages of marijuana (just over 19 pounds). The same box contained approximately one kilogram of cocaine. The Certificates of Analysis were admitted.

• The continuity of the drugs seized from the point of seizure to subsequent analysis is agreed.

• The continuity of a Blackberry cellphone seized from John Tsekouras, encrypted with PGP software.

• The contents of the cellphone extracted from the Tsekouras cellphone that was seized on June 16, 2011.

• Photos of the seized exhibits from the Larizza residence and the residence of one Frank Muzzi and of the drugs.

• The accuracy of the tracking device which was placed on a vehicle connected to Frank Muzzi and a report prepared by Detective Constable Kelly Walsh.

• The accuracy of the court documents and the information relating to a court appearance of Frank Muzzi on June 15, 2011.

• The prepared Controlled Drugs and Substances Act exhibit list of items seized at the Larizza residence at 301 Belton Road.

• The physical surveillance list of John Tsekouras on June 16, 2011, and the notes of the surveillance team.

• Book of search warrants.

[7] Throughout the course of the trial, certain other admissions were made and documents filed on agreement of counsel:

• The expertise of Constable Tim Tessitore, Palm Beach Police (Florida).

• The affidavit of Lisa Vescio, and the supporting documents from the UPS store, Exhibits 17a and 17b.

• The tracking report of Constable Walsh, initially introduced as an aide memoire only, was admitted as Exhibit 10.

• The report of Constable Jason Rybak on coded languages.

• The affidavit of Direct Cash employee Beryl-Ann Shillingford and documents received from Direct Cash consisting of a Mastercard statement and a prepaid checklist.

• At the request of defence, the Crown admitted as a fact that the Crown has no evidence that Mr. Ritchie entered the United States after late 2009 or early 2010.

• On June 15, 2011, there was a hockey game on television which ended after 11:00 p.m., Thunder Bay time.

The Surveillance

[8] R.C.M.P. Corporal Ron Miller testified that on June 15, 2011, he was part of Project Dolphin and was assigned as part of a surveillance team to follow John Tsekouras. In the course of surveillance, at 11:22 a.m., he began to follow a van previously seen at a residence known to be a potential address for Mr. Tsekouras. He testified that after losing contact for a period of time, Mr. Tsekouras is seen again at approximately 12:00 noon in the vicinity of Woodcrest School where he meets a red pickup truck, which Corporal Miller determines is owned by Robert Chiodo. The van then met up with a truck, Mr. Tsekouras exited the van, and entered the passenger side of the truck. Corporal Miller followed the truck to the area of Salvatore Larizza’s residence. Miller did not stop.

[9] He prepared Exhibit 11, a Surveillance Report. The Surveillance Report shows that the truck then later met up with a green Honda Accord. The vehicles return to the location of the van where Mr. Tsekouras is seen taking a bag from the van and putting it into the Honda. He then is observed making three trips removing paperwork from the van into the trunk of the Honda. Mr. Tsekouras then returned to the truck, which left, followed by the Honda. Corporal Miller followed the vehicles. Both the truck and the Honda pulled off the road and Corporal Miller pulled in behind. Mr. Tsekouras exited the truck and walked toward Corporal Miller. He was observed to take the cover off the back of a cell phone, throw away the back cover, and attempt to smash the phone. This phone was then seized by police, ultimately searched, and information found was used as a basis for the arrest of Mr. Ritchie, and for the search of the residence of Salvatore Larizza where police found various drugs including marijuana, cocaine and hash oil, stored in a vehicle.

[10] Further, he testified that Mr. Tsekouras has a sister, which he suggests can be linked to a message from Sega Time to Mr. Chiodo to the effect that family homes are also raided, including “sis” (Message 32–36). Note: All of the messages referred to form part of the evidence in Exhibit 2. I have attached an Appendix to these reasons which contains the full content of the messages referred to taken from Exhibit 2.

[11] Mr. Ritchie was not a target of any of the search warrants executed that day.

The Search of the Larizza Residence

[12] Constable Dan Irwin was the Exhibits Officer in the search of the Larizza residence at 301 Belton Road. I will not detail his evidence in light of the agreed upon facts by the defence that Exhibit 5A and 5B, the CDSA Exhibit list, shows items that were found in the search of the residence and where each was located. The items listed in Exhibit 5A include Ziploc bags, a Trident scale, rubber gloves, and a bottle of Inositol. Located in the garage and seized by him was a box containing 18 vacuum sealed bags, containing what is agreed upon as marijuana, and one brick of what is agreed upon as cocaine. The garage was not accessible from directly inside the house.

[13] Staff Sergeant Graham was the local Ontario Provincial Police Detachment Commander at the time of the search and was part of the search team of the Larizza residence. He seized a Foot Locker bag with what appeared to be cocaine wrappings in the basement.

The Larizza Statement

[14] Sergeant Justin Dubuc was involved in Project Dolphin from its beginning in February 2010, when it was initially an intelligence gathering project.

[15] As a result of observations throughout the period of this project, he had personal knowledge of the residences of John Tsekouras and Frank Muzzi. On June 15, he was part of a team that executed a search warrant on Mr. Muzzi’s residence, and on a 2007 Lincoln, registered to Salvatore Larizza. Inside the vehicle, he located items shown in the photographs in Exhibit 6 including Ziploc bags and bottles of Inositol powder, which he stated is a cutting agent for cocaine. He testified that during the period of surveillance, it was Mr. Muzzi who drove the Lincoln.

[16] He was also involved in taking a statement from Salvatore Larizza. Mr. Larizza’s residence had also been the subject of a search warrant on June 16. Mr. Larizza was murdered prior to this trial. He had provided a videotaped statement to police which I ruled admissible as a pre-trial application in this trial (2016 ONSC 5565). In that statement, part of the facts I admitted are:

Larizza stated that Frank Muzzi came to his house at about 7:00 p.m. on the 15th of June, 2011, driving a Black Lincoln pickup. Muzzi told Larizza that he had some drugs and wanted to stash them at his place till morning. Larizza had told Muzzi to put it in the garage. Muzzi then went and backed up the black Lincoln truck and put the drugs in the garage. Larizza admitted he did not see the box containing the drugs. Larizza noted that there was someone else in the vehicle with Muzzi but did not see the individual. Police executed the search warrant following morning and located 18 packages of marijuana totaling approximately 19.5 lbs, and 1 kilogram package of cocaine, together in a box in the garage.

[17] Sergeant Dubuc acknowledged in cross-examination that on the 16^th of June, he could not associate Mr. Muzzi to the drugs found at Mr. Larizza’s residence. Further, he acknowledged that at no time in his statement did Mr. Larizza ever mention the name of Keith Ritchie. At the time of taking his statement, he was not aware that Mr. Larizza had been questioned earlier by Sergeant Davis.

[18] In the same ruling, I admitted evidence that Mr. Muzzi entered a guilty plea to four counts, including between the 15^th of June and the 16^th of June, 2011, conspiring with person or persons unknown or unnamed to traffic in cocaine and marijuana. I did not permit facts read in in support of the pleas to be entered.

[19] In November 2012, acting on information retrieved from the PGP cellphone of John Tsekouras, Sergeant Dubuc attended at the UPS store. He spoke to the store manager, Lisa Vescio. Her affidavit and supporting documents, filed on consent as Exhibit 17A and 17B, demonstrate that Keith Ritchie had entered into a three month Service Agreement to rent mailbox Suite 193 at the UPS store at 307 Euclid Avenue, Thunder Bay. He used his passport and driver’s licence as identification.

The Tracking Device and Video Surveillance

[20] Constable Kelly Walsh, as noted earlier, was agreed by the defence to be an expert in the area of covert tracking devices and technology, including their use, installation, configuration, maintenance and interpretation of data. Another application heard in the trial itself was the defence application for an order excluding the videotaped surveillance and part of that videotape was lost. For reasons delivered on June 4, 2016 I dismissed the application (2016 ONSC 3018).

[21] He became involved in Project Dolphin in 2010. His role was to provide technical support. On April 23, 2011, he installed a remote-controlled covert video camera at 225 London Drive, the address of Frank Muzzi. He was responsible for maintenance of the camera and all information was in his sole custody. Based on the information recorded from the camera to a hard drive located at the police station, he prepared logs of what was seen on the camera between 6:30 a.m. to 10:00 p.m. (Exhibit 8). He further prepared video surveillance photos (Exhibits 9 and 9A). He described the process of preparing the logs and the identification of known persons. If an individual was not known, he used as a description “possibly.” He identified vehicles seen in the video surveillance by reference to licence plate number or make and model.

[22] The video surveillance report shows that at 15:57 the Lincoln is seen in the driveway of the Muzzi residence. At 16:40 Mr. Muzzi leaves the house and at 16:41 a male identified as Mr. Ritchie is seen at the passenger side of the Lincoln. The video shows Frank Magisano arriving, and Mr. Muzzi and Mr. Magisano moving away from the Lincoln and having a conversation. Mr. Ritchie and another individual remain at the Lincoln. Mr. Magisano then leaves, leaving Mr. Muzzi, Mr. Ritchie and the third individual in the driveway around the Lincoln. The third individual leaves, and the Lincoln then backs out and leaves the driveway at 17:01. No one is left in the driveway. He acknowledged that on June 15, at approximately 5:00 p.m. when the Lincoln left Mr. Muzzi’s residence, although Mr. Muzzi and Mr. Ritchie are seen together, he did not know who was in the Lincoln. He cannot specifically say Mr. Ritchie left with Mr. Muzzi.

[23] Further, he installed a tracking device on the Lincoln operated by Frank Muzzi, and prepared a tracking report (Exhibit 10) for the movements of the vehicle on June 13, 14 and 15, 2011. Using computer technology and programs, the location of the vehicle could be shown on Google Earth as noted in Exhibit 25. He prepared Exhibit 25, a technical report on the tracking device.

[24] Constable Walsh’s evidence, as he referenced the Tracking Surveillance Report (Exhibit 10), is that on June 13, 2011, the Lincoln was parked at Frank Muzzi’s residence until 2:24 p.m. It moves to several locations throughout the City of Thunder Bay until it returns to 225 London at 6:41 p.m. and stays there until 9:27 p.m. when it leaves. At 11:15 p.m. it stops near the Ritchie family home for three minutes. It goes to the residence of Frank Magisano, stops for approximately 18 minutes, leaves and then returns to Mr. Muzzi’s residence at 225 London and remains there until 11:56 p.m. It leaves and drives to a residence where John Tsekouras was residing at that time.

[25] On June 14, at 12:04 a.m., the vehicle leaves Sequoia Drive. At 2:19 p.m. it is noted as being at a storage area, in Twin City Crossroads.

[26] At 6:30 p.m. the Lincoln is noted to drive to the area of the Wasabi Restaurant on Arthur Street and a UPS store on Euclid Avenue. Constable Walsh proceeded to that area and observed Mr. Muzzi and two other males leave the restaurant at 7:20 p.m.

[27] At 7:31 p.m. it is observed to be in the area of Keith Ritchie’s residence, where it stops several houses from that residence. It leaves and is observed to drive to the 300 block of South Brodie where it stops at 7:44 p.m. Rory Pelletier lives at 331 South Brodie. It stops for one minute.

[28] The Lincoln is then tracked to travel to an area through a rural dirt road with usually just local traffic. It is noted to travel on that road to co-ordinated points noted on the report, make U-turns on two occasions, and ultimately proceed to where it stops at 301 Belton Road, Mr. Larizza’s address. It stops at 8:22 p.m. for approximately 10 minutes.

[29] It is noted to return to 225 London Drive at 8:46 p.m. after a short stop at a convenience store.

[30] Constable Walsh acknowledged in cross-examination that the tracking device could only establish the location of the vehicle, and absent any visual observations, or other evidence, could not establish who was in the vehicle. He agreed that the vehicle is generally within 10–20 feet of where it is pinpointed by the device.

[31] He agreed that with respect to his testimony about June 15, some of his evidence was based on the tracking device, seen on the video and some on the report where video had gone missing.

[32] On June 15 at 8:37 a.m., Mr. Muzzi is observed on the Video Surveillance Report (Exhibit 8) leaving his residence. It arrives at the Provincial Courthouse at 9:13 a.m. Mr. Muzzi is confirmed by Sergeant Dubuc to attend court. After leaving from 1:01 p.m. to 1:41 p.m., it returns to the Provincial Courthouse, leaving at 2:51 p.m. After stopping elsewhere, the vehicle returns to 225 London. Frank Muzzi and Keith Ritchie are seen together with the Lincoln.

[33] He agreed that after 5:00 p.m. the only view of Mr. Ritchie is at 8:46 p.m. Constable Walsh could not identify Mr. Ritchie as one of the other two males seen at the Wasabi restaurant with Frank Muzzi. Although in his report (Exhibit 8), he notes that at 8:46 p.m., “Muzzi arrives in the Lincoln and goes to the house, along with Ritchie.”

[34] Jessica Coley testified that on June 15, 2011 she was at dinner at a local restaurant with Laura Russo, then Keith Ritchie’s girlfriend, watching the Stanley Cup finals. They departed when the game was over, agreed upon by counsel to be after 11:00 p.m. Thunder Bay time. They drove to Frank Muzzi’s residence to pick up Keith Ritchie.

[35] Guylaine Cottreau is a member of the RCMP who, in April 2012, was working as a Liaison Officer in Miami. She was involved in the search of a storage locker in Miami. She attended at the locker together with agents of the United States Drug Enforcement Agency. The lock was cut off the locker and located inside was a blue Honda Civic with Ontario licence plates. Vehicle registration and insurance cards found inside the vehicle (Exhibit 28) bore the name of Keith Ritchie. The vehicle was the subject of a forfeiture order to the Ontario Government.

[36] That vehicle was later transferred to the Sheriff’s Office in Miami where it was subsequently used for training purposes. The evidence of Tim Tessitore, a Deputy Sheriff of the Palm Beach Police, described how he assisted the Miami office of the DEA in locating a hidden compartment within the vehicle, accessed by a hidden relay switch. He had 18 years of experience and was accepted by the defence as an expert in the area of canine interdictions for criminal activity, narcotics and currency seizures, including methods of concealing, shipping and transporting drugs, and how to locate hidden compartments, any electronic tracks in vehicles. He presented a video and photos showing the compartment which contained white powder residue, and two large pill bottles of steroids. His evidence was that he has seen compartments like this many times in which he found illegal drugs.

Documents Relating to Keith Ritchie

[37] Acting with authority of a Production Order, Constable Robert Kushnier obtained Exhibits 31A and 31B from “Cash Money” showing a Mastercard statement from Direct Cash Payments Inc. of Keith Ritchie, prepaid Mastercard checklist, and photocopies of passport and driver’s licence of Keith Ritchie used by Keith Ritchie to obtain the credit card. Exhibit 31C is an affidavit of Beryl-Ann Shillingford of Direct Cash Bank, filed on consent, together with supporting documents. The photocopy of the driver’s licence and credit card seized from Mr. Ritchie’s residence (Exhibit 1) match the documents produced by Cash Money.

[38] Exhibit 17 is an affidavit of Lisa Vescio together with a supporting document for a UPS mailbox service agreement, photocopy of passport and driver’s licence. The number on the bankcard seized from Mr. Ritchie’s residence, and that used as identification for “Cash Money” and UPS is the same.

[39] A review of the Mastercard statement between October 15, 2010 and February 8, 2012, noted charges to the Miami storage facility in the amount of $225.00 per month for a 10x25 storage unit. Constable Miller cannot say whether the amounts were paid.

The Blackberry Analysis

[40] Exhibit 2, filed on consent, is a report prepared by Constable Nicolas Bernier, Forensic Investigator, RCMP Technological Crime Branch. The report details the procedure followed by Constable Bernier which produces a “final device image file.” The result is that data, which was on the phone, was extracted, resulting in a reproduction of the contents of the encrypted phone.

[41] Daniel Embury was accepted by the defence as an expert in the function and the analysis of encrypted Blackberry mobile phones, including extraction, examination and interpretation of electronic data on encrypted Blackberry phones, including the use of third party encryption providers. The defence agreed on the methodology used to obtain the data, the accuracy and the data integrity. Mr. Embury explained the use of the RCMP data extraction tool to decrypt PGP (“Pretty Good Privacy”) phones. He testified that with brief-in security measures the decrypting either works or not. When it works, it decrypts exactly as the message is written, including any misspellings. He explained the technicalities of determining when messages were sent, from and to whom, the use of unique identifiers for phones, and the process used to secure encrypted phones through a provider which offers encrypted services.

[42] Mr. Embury explained that Blackberry devices have a real time clock in the internal chip. There is one constant time source stored as universal time, known as UTC, which is based on CMT. The blackberry then converts the UTC to the local time settings automatically, or as set by the user, which has no effect on the UTC time on the phone. For this reason, adjustments must be made in analyzing the phone to reflect time zone changes, or changes made by the user. In that regard, he noted that the sequence of all messages in the phone must be interpreted in relation to ribbon which is recorded when a message is sent. For this reason, messages could appear to be sent as one time prior to receipt of the message if the receiver of the message is in a different time zone. He further noted that the times can appear to be different in the same stream of messages if they are then forwarded to another recipient. With reference to Exhibit 2, he also stated that at times, if parts of messages appear to be missing, it is because the Blackberry truncates messages which exceed a limit. The full content of the messages is still on the device and is retrievable having been noted as “more.” Exhibit 13 shows the entirety of messages. He also explained that names of users can be different depending on the different monikers which may be used by sender or receiver. He also testified that any phone user outside of a “PGP group,” can only access the group with the permission of the provider, in this case Phantom Security.

[43] Mr. Embury explained that when Exhibit 13, the analysis of the phone, was done, the “from” identification was not shown. After more was learned about the process, and further analysis was done, he was then able to identify the address/person from whom the message was sent. The information was always in the phone, but it was only possible to be “reverse engineered” to determine the “from” in 2012.

[44] While I do not find it necessary to review the technical evidence of Mr. Embury in detail, I do note his evidence that each phone has a unique password for the device and for the keyword to access the phone. The phone communicates only with certain phones within one group. Mr. Embury explained how the names in a device could be different depending on how the sender identified himself and how the receiver did so. He further described how times were determined by individual phones and how a message sent from a phone in one time zone could appear as being received in another time zone as at the time in that zone.

[45] Of importance to my reasoning in this case is his evidence that Exhibit 2 (which is based on evidence in Exhibit 13) shows messages received on the device in reverse chronological order and that the thread in each message should be read from the bottom up. The key to each message is the “ribbon date time,” which fixes the exact time of the message with reference to time as fixed on a universal basis. The ribbon date time is what determines the sequence of messages in the phone.

[46] Mr. Embury also highlighted use of “monikers” as being names used by the users themselves and that more than one moniker may be used. To determine the name of the user, reference must be had to the Address Book of any particular phone. A sender may use different monikers depending on to whom a message is sent, and may be seen as different monikers but to the same phone. As noted earlier, for reasons to be explained, I accept that the monikers used relate to the individuals as identified by the investigators.

The Coded Language

[47] Jonathon Rybak has done over 200 drug investigations in his 16 year career. He acted as the Asset Forfeiture Officer, Drug Intelligence Branch, in Project Dolphin. He was acknowledged by the defence to be an expert and to render an opinion on indicia of drug trafficking, including the use of “coded language.” He reviewed video taken and documents seized in preparing a report of the contents of the cellphone seized, and his own experience and expertise in speaking with dealers, sellers and buyers of drugs, and the street language used. He testified as to his opinion on what certain coded language meant.

[48] He testified that cocaine can be distributed by placing it into “bricks,” stamped with the identification of the distributor, to a dealer, and the buyer can identify where the cocaine is sourced from. He testified that a common stamp in cocaine distributed in Thunder Bay is “batman.” In 2011, cocaine was generally distributed as 88-90% pure at source, and from low teens to 50% purity at street level. The most common cutting agent in cocaine sold in Thunder Bay is Inositol.

[49] He further testified that heating cocaine brings out the impurities. High heat is the best quality. In coded language, purity is expressed as HH (high heat), MH (medium heat) and LH (low heat).

[50] It is sold on the street in small quantities, one ounce being referred to commonly as a “zip.” Other terms commonly used in coded language for a kilogram of cocaine are “units, plates, girls, chicks, birds.” Any of these terms can only be interpreted in the context of how it is being used to determine whether it bears its usual meaning, or its coded meaning. There is no standard or set terminology for coded language, although its use is common so that dealers across Canada can communicate with each other. At times, only those in a particular organization know the meaning of terms.

[51] Constable Rybak also testified that, in coded language, money is commonly referred to as “files” or “paper;” PGP cellphones are referred as “units” or “zappers;” the term “pack” or “PK” is used to identify money or drugs. He acknowledged that coded language is not static, that it develops and changes over time. He further acknowledged that “unit” as used in the messages could refer to a quantity of drugs or a cellphone. In cross-examination, Constable Rybak acknowledged that “PK” could be “purple kush,” a strain of marijuana.

[52] Constable Rybak testified to the words he opined to be coded language in a number of the messages noted in the Bernier Report (Exhibit 13). With reference to Exhibit 2, the RCMP analysis of the cellphone, he was asked to comment on a number of messages. He opined as follows (with reference to the messages in the Appendix to these reasons):

• 404. “Bro my guy is trying to get hold of the chick in toronto before he leaves and is not able to make contact. You must talk to the oriental guy and get him to get a hold of her.” Constable Rybak testified that the use of “chick” refers to a female person in this context.

1. “Send math,” “6100 previous balance,” “30k drop,” “85k drop,” “121100 total credit” shows an accounting of monies, referencing two kilos of cocaine, and Oxycodone pills.
1. “The green pack that u have was it the 17 or 18 pack?” references marijuana.
1. “Also what happened with kush?” “Ya gimme the 18 box. I gota meet him thurs morn. So can u have it somewhere for me then,” Constable Rybak says this references 18 packs of marijuana found in a box.

• 276-271. “I have really nice lg stamps mh 415,” “Nvm those lg are hh,” “Those LG are hh 435 to u there trips and I have mh at 415 to u” Constable Rybak opines the meaning is bricks of cocaine with a stamp “lg” and a medium heat purity, at a price of $41,500.00.

• 242-238. The use of “stamps”, “83 percent,” “fake batmans,” and “90 mh nice bling” all reference cocaine.

[53] He was cross-examined on the meaning in messages of “the 18 box.” He stated that the box found in Larizza’s garage containing the bags of marijuana helped him decide the meaning of this term.

Crown’s Position

[54] Mr. Richer submits that the charges against Mr. Ritchie can be divided into two core groups: Counts 1, 2 and 3 relate to his involvement with John Tsekouras and an individual identified only as Penguin to ship 2 kilos of cocaine. Counts 4, 5 and 6 relate to co-ordinating and participating in the shipment between himself, Mr. Muzzi, and Mr. Tsekouras of 18 bags of marijuana, and 1 kilo of cocaine found in the search of the Larizza residence.

[55] Mr. Richer asks me to find that using a combination of the phone messages, video surveillance, the tracking device evidence and of the Crown witnesses, the identity of the various individuals in the cellphone messages should be confirmed as: Sega Time is John Tsekouras; Surf Dawg and/or Daft Punk is Keith Ritchie; 7710, or the Ape, is Frank Muzzi; Dash is Robert Chiodo.

[56] Mr. Richer submits that the messages show beyond a reasonable doubt that Mr. Ritchie, in conjunction with Tsekouras and an individual in the messages using the moniker “Penguin,” participated in a conspiracy whereby they agreed to traffic and ultimately trafficked in two kilograms of cocaine with others, by having the drugs shipped to Thunder Bay. Mr. Richer relies upon the phone contents showing Mr. Ritchie’s involvement with Mr. Tsekouras in providing his credit card number (message 396), his involvement in sending money in a “case” to Penguin (messages 175–179 and 158–159) and his involvement with getting a tracking number for Mr. Tsekouras to send to Penguin (messages 226–219).

[57] The Crown submits that the evidence establishes that it was Mr. Ritchie who was with Mr. Muzzi when the box of 18 packages of marijuana and one kilo of cocaine were dropped off at Mr. Larizza’s to be stored overnight. In this regard, Mr. Richer relies upon the content in messages 119-133 regarding, “There is 18 there right?” and Mr. Tsekouras’ instruction to Mr. Ritchie to “perf, smoke it all.” He submits that the evidence of the tracking device, the video surveillance, and the personal observations of Constable Walsh lead to the conclusion that it was Mr. Ritchie who was with Frank Muzzi when the “18 box” and the kilo of cocaine were delivered to and stored at Salvatore Larizza’s. Additionally, he notes Mr. Tsekouras’ instructions to Mr. Ritchie in message 301-302: When asked by Mr. Ritchie if he can show “the ape” (whom I accept from other messages is Mr. Muzzi) “where the pk is”, he tells Mr. Ritchie, “Ya sure but tell him 100 percent it has to be out here for 1030 hrs.” Mr. Larizza’s statement evidence is that Mr. Muzzi told him the drugs would be out by morning. Mr. Richer asks me to find that Mr. Muzzi received that information from Mr. Ritchie, which establishes Mr. Ritchie’s knowledge, possession and delivery of the “18 box”, which also contained the cocaine.

[58] Further, the Crown submits that the messages establish Mr. Ritchie participated or contributed to the activities of the Tsekouras criminal organization and that his participation was for the purpose of enhancing the ability of the organization to traffic in controlled substances. He points to the factors noted as being part of a conspiracy and adds further the evidence of the messages which show Mr. Tsekouras as the directing mind, giving instructions to Mr. Ritchie and Mr. Muzzi and controlling the contact with Phantom Security with respect to the PGP phones (message 62–61 to Chiodo – “If anything happens, text ceo@phantomsecure.com and get my user and these users erased – “DaftPunk@maxfinance.7710@maxfinance”).

[59] Mr. Richer argues that even if I accept that there would be phone sharing, as suggested in the cross-examination, when I consider the external corroborative evidence of the surveillance officers and the tracking device, the evidence clearly shows that the sender/receiver of those messages relied on by the Crown to constitute one or more of the offences, is the person identified by the Crown, and that there is no physical evidence that any phones were shared. He further argues that Mr. Embury’s evidence is that encrypted cell phones require more than one password, and that it makes no sense to have a personally secured device and then share access to it with anyone else.

[60] With respect to the credit card used as identification five weeks before the event in question, the Crown notes that Mr. Ritchie still had that same credit card in his possession at the time of the search of his residence.

[61] Further, he submits that because Mr. Tsekouras had other names and calls in his phone does not negate the fact that there are certain individuals who are in a closed group, particularly because communication is only permitted with phones through Phantom Secure: message 353.

[62] As to the argument of no direct contact established between Mr. Ritchie and Penguin, he argues it is clear that Mr. Ritchie is involved in both the shipping and receiving of items, either drugs, or money, or both. He relies on the decision in R. v. Greyeyes, 1997 CanLII 313 (SCC), to argue that where there is any indicia of facilitating the delivery of the drugs or the money, there is a presumption that the person has acted to assist the trafficker. He notes, particularly in messages 261–265, an ongoing relationship where Penguin states “same case as last time,” “tell him to ship smaller cases.” Mr. Richer submits that Greyeyes stands for the proposition that passing money from the seller to the buyer is an indicia of trafficking.

[63] Additionally, he notes R. v. Lomax, 2007 NBCA 6, as authority that where someone oversees the logistics of the exchange of drugs and money, the defence of agent for the purchaser is not available. The Crown submits that the messages demonstrate that Mr. Ritchie shows a concerted effort to assist in effecting the transfer of the drugs and that he is a central cog in the trafficking that takes place between Penguin and Mr. Tsekouras.

[64] Mr. Richer asks me to review and rely upon the decision in R. v. Meyer, 2012 ONCJ 791, [2012] O.J. No. 6235, where Paciocco J. comprehensively reviewed the crime of conspiracy to traffic.

The Defence Position

[65] As noted earlier in these reasons, the defence made certain admissions, including the nature and quantity of the drugs seized, the contents of the cell phone extracted from the Tsekouras cell phone, and the accuracy of the tracking device on the Lincoln operated by Mr. Muzzi.

[66] In his review of the evidence, Mr. Giourgas noted that Corporal Miller, in his analysis of the cellphone contents, could not say who was actually using a particular phone at any given time, simply that a message sent or received, would be to that phone. Corporal Miller agreed that it was possible that, at different times, different people could be using the phone with that phone’s email address. He agreed that without corroboration, he could not tell that somebody in particular was using a certain phone at a given time. Corporal Miller was aware that throughout Project Dolphin, he knew that users were sharing phones. Mr. Giourgas notes that the names on the exhibits filed as being the sender and receiver of the messages are those attributed by the Crown and that absent cooberation, the real user cannot be absolutely known.

[67] Specifically, with respect to Mr. Ritchie, he acknowledges Mr. Ritchie giving a credit card number, but submits that was in a message some five weeks prior to the events in question.

[68] He further notes that at times in the message, monikers are used differently, specifically that “kid” in message 107 is someone who is being arrested, but that is not Mr. Ritchie, who was not arrested that day. He argues that different people could be using the phone and that identities are fluid.

[69] With respect to the transaction alleging the cocaine where it appears Sega Time, (whom I accept is Mr. Tsekouras), is having with Penguin, Mr. Giourgas argues that there is no direct discussion between Penguin and Daft Punk (Mr. Ritchie) with respect to drugs. He submits that assisting the purchaser does not come within the definition of trafficking and that conspiring to possess does not equate conspiring to traffic.

[70] With respect to the alleged transaction of the “18 box,” found at Mr. Larizza’s, Mr. Giourgas submits that there is no external corroborative evidence that there was participation by Mr. Ritchie. He was seen on video surveillance at London Drive, but he was not seen between the hours of 17:01 and 20:46, in which time interval Mr. Larizza said Mr. Muzzi brought the drugs to his residence. He notes that there are no messages confirming that Mr. Ritchie is with Mr. Muzzi during that time. Mr. Giourgas says even if I find that Mr. Ritchie may know what is in the box, there is no evidence he was with Mr. Muzzi when the box was dropped off.

[71] He further notes that, even though Mr. Muzzi was arrested and Mr. Ritchie was seen to be with Mr. Muzzi that day, Mr. Ritchie was not arrested. Mr. Giourgas also notes the testimony of Corporal Miller who originally thought “Daft Punk” was Frank Marino.

[72] Mr. Giourgas submits that the only drug ever discussed in the phone message with respect to the “18 box” was marijuana, and the only time cocaine is ever referenced is following the search of Mr. Larizza’s residence. In particular, he references messages 122–124 when Mr. Tsekouras asks about the 18 box, his instruction is “perf, smoke it all,” which Mr. Giourgas suggests can mean that he is referring only to marijuana. He submits that the reference to “chick” in messages 40–55 must be considered in the context that “chick” used in message 404 can also refer to a female person, and that “chick” as used in Mr. Tsekouras’ query to Mr. Ritchie, “Is there a chick there too?”, does not necessarily translate to “cocaine.”

[73] Mr. Giourgas submits that to find Mr. Ritchie guilty of conspiracy to traffic in the cocaine, and trafficking, I must find he had mens rea, i.e. he had to have knowledge of the cocaine in the box prior to the transaction. He submits that if I find that Mr. Ritchie thought he was trafficking in marijuana, and it turns out there was cocaine in the box, he cannot be found guilty of trafficking in the cocaine. Mr. Giourgas argues that at a minimum, I ought to have a reasonable doubt as to whether Mr. Ritchie knew of the cocaine in the “18 box.” In support of that argument, he notes that Mr. Larizza’s statement indicated that Mr. Muzzi wished to store overnight only what he appeared to indicate, by gesture, as marijuana.

[74] Further, with respect to Mr. Larizza’s evidence, Mr. Giourgas notes that Mr. Larizza’s statement was to the effect that he “believed” someone else to be in the truck with Mr. Muzzi. He gave no description. He submits that Mr. Larizza was not being completely forthright.

[75] Mr. Giourgas submits that despite the Crown’s argument that this PGP network that Tsekouras is plugged into is a closed network, there are a number of other people plugged into it, which suggests that it is really a loose association of people and not an organization per se. He argues that Mr. Ritchie has only sporadic conversations in the many encrypted in the Tsekouras phone.

[76] He notes that the Honda motor vehicle found in the storage facility in Florida has been there for two and a half years without any evidence that Mr. Ritchie entered the United States. He argues that even with evidence of drugs having been concealed within it, there is no probative value to it establishing that Mr. Ritchie was part of a criminal organization.

[77] In short, he submits that the evidence falls short of proof beyond a reasonable doubt that Mr. Ritchie facilitated a criminal organization through his actions, or committed offences for the benefit of a criminal organization or at the direction of a criminal organization.

Analysis

The Monikers

[78] Based on the video surveillance and the phone messages, in particular those noted in messages 15–21, and the personal surveillance evidence of Corporal Miller as to seeing Mr. Tsekouras and Mr. Chiodo at Woodcrest School on or about 11:45 on June 16, 2011, I am satisfied that Sega Time is Mr. Tsekouras, and Dash is Mr. Chiodo.

[79] In message 396, Tsekouras asks for a credit card number from Daft Punk. The response is “5127860004716431,” which is the number of a credit card in the name of Keith Ritchie which was seized from Mr. Ritchie’s residence in the course of a search. Further, a driver’s licence in the name of Keith Ritchie showing photo identification is the same number as a driver’s licence and credit card, used to rent a mailbox at a UPS outlet on Euclid Avenue, which is the same address given by Mr. Ritchie to Mr. Tsekouras in message 406. I am satisfied that the monikers “Daft Punk” and/or “Surf Dawg” relate to Keith Ritchie.

[80] Frank Muzzi was identified in the videotaped statement of Salvatore Larizza as one of the individuals who came to his house at about 7:00 p.m. on June 15, 2011 driving a black Lincoln truck. Mr. Muzzi is seen on surveillance tapes operating that vehicle to Mr. Larizza’s residence. Mr. Larizza’s evidence, which I accept and find reliable, is that Mr. Muzzi wanted to stash drugs at Mr. Larizza’s until the next morning. Mr. Muzzi backed the truck toward the garage. The next morning, police executed a search warrant and located twelve packages of marijuana and one kilogram of cocaine. On June 15, 2011, Sergeant Dubuc attended court in a matter involving Frank Muzzi. He was accompanied by four other officers. All were in plain clothes. All were familiar with Mr. Muzzi. They were in court at all times during the day. I further rely on the evidence of the content of messages 183-200 between Sega Time (Mr. Tsekouras) and 7710, and the evidence of the police witnesses who were in attendance at court, and that of the tracking device, to establish that “7710” is Frank Muzzi.

The Legal Framework

[81] In R. v. Tsekouras, 2015 ONSC 1470, Wright J. summarized concisely the elements of trafficking and possession in paras. 25–26,

24 One traffics in a substance when one sells (offers for sale, exposes for sale, has in his possession for sale and distribution,) administers, gives, transfers, transports, sends or delivers the substance or offers to do any of these things. (Controlled Drugs and Substances Act, section 2)

25 One has possession of a substance when:

a) (actual possession) he has it in his personal possession, or (constructive possession) he knowingly has it in the actual possession or custody of another person, or has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. (CDSA s. 2, Criminal Code s. 4(3))

[82] In R. v. O’Brien, 1954 CanLII 42 (SCC), [1954] S.C.R. 666, the Supreme Court of Canada noted that:

11 The two elements of agreement and of common design are specifically stated to be essential ingredients of the crime of conspiracy. Willes J. in Mulcahy v. The Queen (1868), L.R. 3 H.L. 306 at 317:

A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties… punishable if for a criminal object…

[83] In R. v. J. F., 2013 SCC 12, [2013] S.C.J. No. 12, the Supreme Court stated at para. 52,

In my view, where a person, with knowledge of a conspiracy (which by definition includes knowledge of the unlawful object sought to be attained), does (or omits to do) something for the purpose of furthering the unlawful object, with the knowledge and consent of one or more of the existing conspirators, this provides powerful circumstantial evidence from which membership in the conspiracy can be inferred. To be precise, it would be evidence of an agreement, whether tacit or express, that the unlawful object should be achieved. Ultimately, that issue is one for the trier of fact, who must decide whether any inference other than agreement can reasonably be drawn on the evidence. But, as I will explain, the case at hand illustrates how a constellation of such facts can make a finding of membership a virtual certainty.

[84] Counsel provided me with the decision of Paciocco J. in R. v. Meyer, 2012 ONCJ 791, [2012] O.J. No. 6235, which I found to be a good analysis of the law of conspiracy. Although the alleged conspirators in that case were buyer and seller, the initial comments on the law are helpful. At paragraphs 2-4, he summarizes:

[2] In simple terms, the charge of conspiracy makes it illegal to enter into a serious or genuine agreement with another to commit an unlawful act. The offence of conspiracy can therefore be committed whether or not the offence agreed to ever occurs, or whether that offence has even been attempted: R. v. Dery 2006 SCC 53, [2006] S.C.J. No. 53.

[3] On its face, the crime of conspiracy is deceptively simple. The relevant criminal act or actus reus in a conspiracy offence is nothing more than the “formation of an agreement, tacit or express, between two or more persons to act together in pursuit of a mutual criminal objective”: R. v. Alexander (2005), 2005 CanLII 32566 (ON CA), 206 C.C.C. (3d) 233 at para. 46 (Ont.C.A.). Put another way, before the offence of conspiracy occurs there must be the completion of an agreement between two or more persons to undertake a common, unlawful design. In R. v. Root 2008 ONCA 869, [2008] O.J. No. 5214, aff’d by endorsement 264 O.A.C. 398 n. (S.C.C.), the Ontario Court of Appeal, at para. 66, therefore broke the actus reus of the offence of conspiracy into two components – “the completion of the agreement” and “a common (unlawful) design.” In this case the specifically alleged “completed agreement” is that, between 15 November 2010 and 7 March 2011, Robert Meyer and Mr. Tristan Jones agreed to pursue the mutual criminal objective of trafficking in marijuana.

[4] In addition to the relevant criminal act or actus reus all true criminal offences have a mens rea requirement, or a necessary mental component. In the case of the crime of conspiracy that mental element necessarily overlaps with the criminal act since the act or actus reus of agreeing inherently requires a conscience decision or choice to agree. In other words, that act inherently necessitates an intention to agree. Meanwhile in R. v. Root 2008 ONCA 869, [2008] O.J. No. 5214 at para. 66 the Ontario Court of Appeal described the mens rea element of the offence as “an intention to agree.” Given the actus reus requirement that the parties must act together in pursuit of a mutual criminal objective, the mens rea requirement requires inherently that the accused person must intend to pursue a mutual criminal objective. Not surprisingly, the Supreme Court of Canada recognized in R. v. Dery at para. 47, that the offence of conspiracy is essentially a crime of intention, with both its actus reus and mens rea elements involving a search for intention.

[85] I have also considered and rely upon the legal framework to be applied to the conspiracy counts as considered by Trafford J. in R. v. Tesfai, [2015] O.J. No. 6717, at paragraphs 8 – 11:

8 A conspiracy is an agreement between two or more persons to commit an unlawful act, with the intention of putting the agreement into effect. See R. v. O’Brien (1954), 1954 CanLII 42 (SCC), 110 C.C.C. 1 (SCC). The unlawful act alleged in this case is the trafficking in cocaine and marijuana to Hersi’s customers. The agreement must be completed. It is a crime of intention to commit the substantive offence; the failure to commit the substantive offence is of no legal significance. See United States v. Dynar (1997), 1997 CanLII 359 (SCC), 115 C.C.C. (3d) 481 (SCC). There is no need to prove a defendant participated in any overt acts in furtherance of the unlawful objective of the agreement, as long as he was a party to the agreement. Such parties have a common goal arising from the meeting of their minds whereby they agree to act with each other to achieve that goal…

Thus, a conspiracy is not established by mere proof of the knowledge of one person of the existence of a scheme by another person to commit a crime, or doing acts in furtherance of such a scheme, because the requirement of the mutuality of the criminal objective is not met in such cases.

9 The elements of a conspiracy may be proven by direct or circumstantial evidence…

10 Moreover, if the trier of fact is satisfied beyond a reasonable doubt that a conspiracy of the nature alleged in the indictment existed, the acts or declarations by a probable member of the conspiracy are substantively admissible against the other probable members of the conspiracy, if such acts or declarations are in furtherance of the object of the conspiracy, in order to determine whether or not the complicity of those other probable members has been proven beyond a reasonable doubt…

11 The issue in conspiracy cases is whether the Crown has proven the alleged conspiracy. Proof of more than one conspiracy, or proof of a multi-faceted object of a conspiracy, does not necessarily lead to a reasonable doubt in favor of the defendant. The issue is whether or not the alleged conspiracy has been proven beyond a reasonable doubt…

Two Kilos of Cocaine

[86] The charge of conspiracy to traffic in cocaine is evidenced in Exhibit 2 at message 365, when Mr. Tsekouras messages Penguin that he is “Sending a pack out,” and the discussion determines “2 start.” The same message references Penguin telling Mr. Tsekouras that “Scrapper” – whom I determine to be Mr. Muzzi – owes him “4k.” In message 352, Mr. Tsekouras tells Mr. Muzzi that he is “Going to send the 4k to too buddy he is asking again.” I accept this as a definite link between Mr. Tsekouras, Mr. Muzzi and Penguin. The same conversation shows discussion between Mr. Muzzi and Mr. Tsekouras where Mr. Muzzi is asking for the “18 box.”

[87] Message 347 shows discussion between Mr. Muzzi and Mr. Tsekouras about “I got nice ones coming,” and Mr. Tsekouras says “Make sure u send tomm.”

[88] Message 346 shows Penguin asking Mr. Tsekouras “what u get out?” to which Mr. Tsekouras replies “90” (Message 344).

[89] In message 322 there is discussion between Mr. Tsekouras and Mr. Ritchie about the computers and “canpo” – which I find is Canada Post – being “fucked up” and the need to go to the UPS store.

[90] Messages 242–238 show discussion between Penguin and Mr. Tsekouras in relation to “83 percent,” “batman,” “90 mh nice bling,” and asking for a tracking number. I am satisfied that these messages are referencing a transaction involving cocaine.

[91] In message 239, Mr. Tsekouras asks Mr. Ritchie for the tracking number, and messages 202–224 show Mr. Ritchie’s response that, “He didn’t give me one remember I would have to go back to place I told you yesterday.”

[92] There are a number of messages where Penguin keeps requesting the tracking number. In message 203, Penguin asks “Eta on tracking #,” and Mr. Tsekouras replies in message 202 “15, picking up kid as we speak, going to go there instead of call.” Mr. Tsekouras then asks Mr. Ritchie “When ya ready.”

[93] Message 182 and 181 then a message to Penguin giving a number and saying “Its on truck in richmond as we speak.”

[94] In message 172, Penguin asks Mr. Tsekouras, “You get that pack out yet?”

[95] In message 159, Mr. Tsekouras tells Penguin that he is “waiting for guy with files for one as we speak.” I find that “files” references money. Mr. Tsekouras then asks Mr. Ritchie in message 158, “All good with files bro,” to which Ritchie replies, “Good.” In message 160, Mr. Tsekouras tells Penguin, “Files just came.” I find this to mean that as soon as Penguin confirms receipt of the money, Mr. Tsekouras will have another shipment of money for two kilos ready to go.

[96] In message 175–179, discussion is held between Penguin and Mr. Tsekouras about the money shipped in the same case as last time and on the truck for delivery. I find that these messages show that Mr. Ritchie is actively involved in the logistics of getting money ready for shipping to Penguin and for subsequently arranging for delivery.

[97] In message 158, Mr. Tsekouras asks Mr. Ritchie, “all good with files bro,” to which Mr. Ritchie replies, “Good.” I interpret this to mean that all is ready with the money and it is ready for shipping.

[98] In message 129, Penguin indicates to Mr. Tsekouras, “Its out. Supposed to arrive during business hours.”

[99] On these facts, I find that Mr. Ritchie is active beyond simply being an agent for Mr. Tsekouras. I am satisfied that he is assisting both the seller and the purchaser to complete the transaction. I find that it is apparent from the circumstances that, as in Greyeyes, he intended the consequences that flowed from his or her aid to the principal offender.

[100] At para. 39 in Greyeyes:

Did the appellant intend to assist or encourage the sale? There can be no doubt that the appellant knew he was assisting in the illegal sale of narcotics, and that he intended to do so. His words and actions demonstrate that he deliberately set out to bring together the parties to the transaction and acted as the conduit for delivering the drugs from the seller to the buyer. The appellant may have been motivated solely by a desire to help the buyer, but what he intended to do was to facilitate the sale of narcotics, and this is a culpable intention. Since the appellant actually encouraged and assisted in the illegal sale of narcotics, and since he had the intention of doing so, he was guilty of trafficking as a party pursuant to s. 21(1)(b) and (c) of the Code.

[101] With respect to the transaction involving cocaine from Penguin, the messages clearly demonstrate Mr. Ritchie’s involvement in obtaining tracking numbers and, I am satisfied, in arranging for the transfer of funds. The facts before me in this case are sufficient to demonstrate that Mr. Ritchie was aware of the fact that Mr. Tsekouras intended to traffic in the cocaine, and he intended to assist, and participate with Mr. Tsekouras, and he did so.

The 18 Box

[102] With respect to the “18 box,” I am satisfied that Mr. Ritchie was aware of the contents, including the cocaine. I draw that conclusion based on messages 119–135, “Did you show buddy where it is”, “I have the pack”, and “perf, smoke it all,” among others. In message 42, Mr. Tsekouras asks Mr. Ritchie “Was there a chick brought there 2?”. Mr. Ritchie replies, “ya.” While Mr. Giourgas cross-examined Constable Rybak specifically on the meaning of “chick” as meaning either a female, or a unit of cocaine, I am satisfied that in the context of messages 40–46, during the time of the search warrants being executed, where Mr. Tsekouras asks Mr. Ritchie, “was there a chick brought there 2,” to which Ritchie replies “Ya,” “chick” is interpreted as a unit of cocaine.

[103] Additionally, I have considered the evidence of the surveillance tapes showing Mr. Ritchie, Mr. Muzzi and a third person (Mr. Poirier) in the driveway at 225 London. Mr. Poirier is seen on the video to leave. Mr. Muzzi and another person are seen to leave and although that person is not specifically identified, there is no one left in the driveway after Mr. Muzzi and the other leave in the Lincoln. I draw the conclusion that it was Mr. Ritchie who left in the Lincoln with Mr. Muzzi at 17:01 on June 15.

[104] The tracking device shows the Lincoln travelling to various locations, stopping briefly at Mr. Ritchie’s residence, then going to the Wasabi restaurant. Mr. Ritchie cannot be identified as any of the individuals at Wasabi in the physical observations of Constable Walsh. At 18:32, Mr. Ritchie asks Mr. Tsekouras, “Is that pk there right now?”. The Lincoln leaves Wasabi at 19:20 and stops for one minute at 19:45 at Rory Pelletier’s residence. At 19:47, as shown on the phone time, Mr. Ritchie says, “Ok I have the pk.” Mr. Tsekouras replies “perf, smoke it all.” At 19:48, Mr. Ritchie asks “there is 18 there right,” to which Tsekouras replies, “Ya.” The Lincoln then travels through the City of Thunder Bay, reverses its route on at least one occasion and is then noted at Mr. Larizza’s residence on Belton Road at 20:22 where it stops for 10 minutes. I have considered that the evidence of Mr. Larizza is that Mr. Muzzi came to his residence at around 7:00 p.m. to unload drugs. In this regard, I accept the evidence from the tracking device as to time. At 20:29, Mr. Tsekouras asks, “U safe,” to which Mr. Ritchie replies, “Ya all good.” The tracking device shows the vehicle leaving Mr. Larizza’s at 20:32, makes a brief stop at a convenience store, and arriving at 225 London (Mr. Muzzi’s) at 20:42 (8:42 p.m.). Mr. Muzzi arrives in the Lincoln and goes to the house along with Mr. Ritchie. The video surveillance does not specifically show Mr. Ritchie arriving in the vehicle with Mr. Muzzi.

[105] The evidence of Jessica Coley is that she went to 225 London around 11:00 p.m. when she returned from watching a hockey game at a local restaurant bar and picked up Keith Ritchie.

[106] In considering all of the above factors, I am satisfied that it was Mr. Ritchie in the vehicle with Frank Muzzi between 5:01 p.m. and 8:45 p.m., covering the time period Mr. Muzzi and another male, whom I find to be Mr. Ritchie, went to Belton Road to stash the drugs. He participated in transporting the drugs to Mr. Larizza’s residence for storage.

[107] In Aiello v. R., 1978 CanLII 62 (ONCA), The Court of Appeal overturned the trial judge’s findings that in order to establish possession, the Crown was required to find beyond a reasonable doubt that the respondent knew that a package contained heroin. The ruling should have been that if the respondent was forced to be in control of the package, knowing that it contained a drug, the trafficking in which was prohibited, the knowledge necessary to constitute the offence was established.

The Cocaine in the 18 Box

[108] I find from the messages inquiring about “a chick” that Mr. Ritchie was aware of the cocaine found in the box.

[109] Mr. Richer submits that if Mr. Ritchie is not found to be part of a conspiracy, he may still be found guilty of trafficking. In Greyeyes, the Court considered the role of someone who assists or encourages purchasers in an illegal sale. At para. 32, the Court stated:

Acting as a spokesperson for a purchaser has the effect of assisting both the purchaser and the vendor to complete the transaction. It follows that an agent for a purchaser or one who assists the purchaser to buy the drugs can properly be found guilty as a party to the offence of trafficking under s. 21(1) of the Code.

[110] The Court went on to state at para. 37 the assistance given required the requisite mens rea to prove that “the accused intended the consequences that followed from his or her aid to the principal offender, and need not show that he or she desired or approved of the consequences.”

The Criminal Organization Counts

[111] Section 467.1(1) of the Criminal Code defines “criminal organization” as:

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.

[112] In R. v. Venneri, 2012 SCC 33, [2012] S.C.J. No. 33, the Supreme Court of Canada stated:

[28] In R. v. Terezakis, 2007 BCCA 384, 223 C.C.C. (3d) 344, Mackenzie J.A. explained in these terms the need for flexibility in applying the statutory definition of “criminal organization”:

The underlying reality is that criminal organizations have no incentive to conform to any formal structure recognized in law, in part because the law will not assist in enforcing illegal obligations or transactions. That requires a flexible definition that is capable of capturing criminal organizations in all their protean forms. [para. 34]

[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.

[30] Qualifying “organized” in s. 467.1 by “however” cannot, as a matter of language or logic, be taken to signify that no element of organization is required at all. “Organized” necessarily connotes some form of structure and co-ordination…

[31] “However” and “organized” ― the two words read together, as they are written ― are complementary and not contradictory. Thus, the phrase “however organized” is meant to capture differently structured criminal organizations. But the group must nonetheless, at least to some degree, be organized. Disregarding the requirement of organization would cast a net broader than that intended by Parliament.

[113] The Court in Venneri went on to consider the degree of organization required by section 461.1(1). Fish J. stated that the focus should be on the goal of the legislation “which is to identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members” (para. 40). Fish J. cautioned against limiting the scope of the definition “to the stereotypical model of organized crime – that is, to the highly sophisticated, hierarchical and monopolistic model” (para. 41).

[114] Can the “Tsekouras et al.” as noted in the indictment be considered a criminal organization of which Mr. Ritchie is a member, or contributed to? In reviewing the facts, I note that:

• The communications between the participants in the Tsekouras phone are by PGP encrypted cellphones.

• Mr. Embury’s evidence is that such phones require an added degree of protection by way of a second “key” to access the phone.

• Mr. Tsekouras is the one who communicates with Phantom Secure to acquire the phones (Messages 250–252; Message 353; Messages 62–61).

• Mr. Tsekouras is the directing participant in determining where meetings between he and others should take place.

• Mr. Ritchie takes direction from Mr. Tsekouras as to giving “the ape” (Mr. Muzzi) information as to where the “pk” is (Messages 113–119).

• Mr. Tsekouras is the directing mind behind telling Mr. Chiodo to instruct Phantom Secure to have all the phones of himself, Mr. Ritchie and Mr. Muzzi erased.

• The communications dealing with “send math” (Messages 396–395) are between Penguin and Mr. Tsekouras.

• In message 404, Mr. Tsekouras references, “I can’t send my guy down and nothing materialize… my boy has to leave Toronto at 6 in the morning.”

• In messages 396–395, Mr. Tsekouras is directing Mr. Ritchie to send him his credit card number.

• In messages 226–202, Mr. Tsekouras is directing Mr. Ritchie with respect to getting the tracking number.

• In messages179–175, Mr. Tsekouras is the one communicating the tracking number and type of case. The reference to “same as always” indicates to me that this is not an isolated transaction.

• In messages 146–144, Mr. Tsekouras is directing Mr. Ritchie to tell “the ape” (Mr. Muzzi) to be sure to tell him that it has to be out by 10:30.

[115] I find that the above messages are part of the evidence contained in the exhibits that demonstrates that Mr. Tsekouras, Mr. Ritchie and others are part of a criminal organization whose intent and objective is to traffic in both cocaine and marijuana. I need not find the complete structure, but I am satisfied that Mr. Ritchie by his involvement in arranging for the shipping of monies to Penguin, knowing that the monies were being used to purchase cocaine, contributed to the activities of the organization to commit the offence of trafficking in cocaine.

[116] Similarly, I find that his actions in attending with Mr. Muzzi, transporting the ‘18 box,’ consisting of marijuana and cocaine, knowing that both were going to be trafficked, contributed to the activities of the organization to commit the offence of trafficking in both.

[117] On all of the evidence, I am satisfied beyond a reasonable doubt that Mr. Ritchie is guilty of all counts on the indictment.

______”original signed by”

The Hon. Mr. Justice T.A. Platana

Released: February 10, 2017

CITATION: R. v. Keith Ritchie, 2017 ONSC 991

COURT FILE NO.: CR-13-0081

DATE: 2017-02-10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen

and -

Keith Ritchie

REASONS FOR JUDGMENT

Platana J.

Released: February 10, 2017

/sab

APPENDIX ‘A’

Legislation

Conspiracy

465 (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:

(c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable;

Participation in activities of criminal organization

467.11 (1) Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this or any other Act of Parliament, knowingly, by act or omission, participates in or contributes to any activity of the criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Commission of offence for criminal organization

467.12 (1) Every person who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Trafficking in substance

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.

Punishment

(3) Every person who contravenes subsection (1) or (2)

(a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life, and

(i) to a minimum punishment of imprisonment for a term of one year if

(A) the person committed the offence for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.1(1) of the Criminal Code,

(B) the person used or threatened to use violence in committing the offence,

(D) the person was convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence, within the previous 10 years, or

(ii) to a minimum punishment of imprisonment for a term of two years if

(A) the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years,

(B) the person committed the offence in a prison, as defined in section 2 of the Criminal Code, or on its grounds, or

(C) the person used the services of a person under the age of 18 years, or involved such a person, in committing the offence;

APPENDIX ‘B’

Message Number 404

ACTUAL FROM

ACTUAL TO

SENT DATE

SENT TIME

CONTENT

TSEKOURAS

Jamaican Contact

2010-11-05

17:15:00

Bro my guy is trying to get hold of the chick in toronto before he leaves and is not able to make contact. You must talk to the oriental guy and get him to get a hold of her. A last minute flight is gonna cost 1500 so I can’t send my guy down and nothing materialize. And it has to hook up with her this evening around 11 or so as my boy has to leave toronto at 6 in the morning.

Jamaican Contact

TSEKOURAS

2010-11-05

21:29:23

I’m with the oriental guy now he’s giving me a number for her husband 14162701488 he’s expecting a call

Message Number 396-395

ACTUAL FROM

ACTUAL TO

SENT DATE

SENT TIME

CONTENT

TSEKOURAS

RITCHIE

2011-05-08