R. v. Bullen, 2018 ONSC 4633

Court File and Parties

COURT FILE NO.: 13-30424 DATE: 2018/07/31 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – DAVID JOHN MAYNE BULLEN Accused

Counsel: Roderick W.A. Sonley and Jessica Legrand, for the Crown Genevieve McInnes, for the Accused

HEARD: October 23-27, November 14-17, 27-29, December 6-8, 2017 and February 12-16, 26-28, March 1, June 18-21, 25, 26, 2018 (Ottawa).

REASONS FOR JUDGMENT

JUSTICE M. R. lABROSSE

Overview

1David John Mayne Bullen stands charged of the following offences:

1. that between the 19th day of December 2012 and the 16th day of October 2013, he conspired to traffic cocaine with Michel Côté, Charles Ethier, Viorel Gheorghevici, Jordan McGregor, Ryan Jones, Richard Perron and Michel Pedneault;
2. that between the 19th day of December 2012 and the 16th day of October 2013, he did traffic cocaine with Michel Côté and Viorel Gheorghevici;
3. that between the 19th day of December 2012 and the 16th day of October 2013, he possessed cocaine for the purpose of trafficking with Michel Côté and Viorel Gheorghevici;
4. that between the 19th day of December 2012 and the 16th day of October 2013, as part of a criminal organization, he instructed a person to commit an offence for the benefit of a criminal organization;
5. that between the 14th day of May 1997 and the 18th day of December 2012, he conspired to traffic cocaine with Michel Côté, Jeff Edwards and Stephen Burns;
6. that between the 14th day of May 1997 and the 18th day of December 2012, he did traffic cocaine with Michel Côté, Jeff Edwards and Stephen Burns; and
7. that between the 14th day of May 1997 and the 18th day of December 2012, he possessed cocaine for the purpose of trafficking with Michel Côté, Jeff Edward and Stephen Burns.

2Count 8 on the indictment was withdrawn, at the request of the Crown, on February 8, 2017 at the commencement of the first trial.

3This is the second trial for the accused on these counts. The first trial was started by Ray J. in the spring of 2017 and evidence was heard for 15 days. As a result of issues of disclosure and delay, that trial resulted in a mistrial. However, the evidence from that trial consisted principally of the results of the search warrants executed and police surveillance evidence. The parties consented that the evidence of the first trial before Justice Ray would be admitted into evidence for this trial with the exception of the evidence of Staff Sargent Robert Henderson who revisited the evidence that he had started on March 16 and 17, 2017.

4The Crown relies on the evidence gathered during two investigations conducted by the Ontario Provincial Police known as “Project Mayday” and “Project Adelaide”. Project Mayday started in October 2011 and ended in August 2012. It involved regular surveillance of the accused and others with whom he is accused of conspiring. Project Adelaide followed Mayday and started in December of 2012 and ended on October 16, 2013, which is known as the “take down day”. Project Adelaide was also focussed on the activities of the accused along with those individuals with whom he is accused of conspiring.

5The Crown’s case focuses on the activities of David Bullen along with Michel Côté, who was the central figure from a surveillance perspective. Côté is the most active individual in much of the police surveillance and intercepted communications. Bullen is much less involved in the activities surveyed as throughout the relevant period, he is much more conscious of the potential of police surveillance and views himself as being “hot”. While less active in the day-to-day operations of this alleged criminal organization, Bullen is identified as being at the upper ranks of the criminal organization that includes each of the alleged co-conspirators and others involved in this cocaine trafficking network.

6The Defence states that the Crown has not met its onus of establishing David Bullen’s participation in the larger conspiracy involving those members listed on the Indictment. The Defence does admit that Bullen is guilty of a separate conspiracy with Michel Côté and Viorel Gheorghevici (“VG”) in respect of the first three cocaine purchases by the Police Agent on January 15, February 7 and February 28, 2013. With respect to those same purchases by the Police Agent, the Defence admits that Bullen is guilty of trafficking cocaine with Côté and VG. Otherwise, the Defence states that the Crown has not met its onus with respect to the charges related to the possession of cocaine, that he did not direct a criminal organization and that he is not guilty of the historical charges (Counts # 5-7) of conspiring to traffic cocaine, trafficking and possession with Côté, the Police Agent and Stephen Burns from 1997 to December 18, 2012.

7The Crown’s case is based on certain direct evidence arising from the OPP searches of various residences of participants in the cocaine network who had various levels of dealings with Bullen. Each of them had dealings with Michel Côté. The Crown also relies on circumstantial evidence obtained through police surveillance comprised of photographs, videos and surveillance observations. A significant amount of trial time was spent on evidence relating to intercepted communications, both by text messages and telephone conversations. Exhibit #4 is comprised of over 650 intercepted private communications, some of which involve Bullen and most of which involve Côté or his associate Charles Ethier. Many of these private communications are relied upon by the Crown to establish Bullen’s role at the head of the alleged criminal organization. These communications, which do not involve Bullen, will be considered separately in this decision as part of an analysis of the co-conspirators exception to the hearsay rule to determine their admissibility.

8Separate from these private communications that do not involve David Bullen, there are also numerous communications between Bullen and the Police Agent, Jeff Edwards that to a minimum establish Bullen’s role in the three cocaine purchases by the Police Agent for which the Defence has admitted guilt.

Relevant Evidence

i) Admissions

9As a result of the vast amount of police surveillance evidence, certain admissions were made to deal with the identification of individuals either observed during surveillance or overheard during intercepted telephone communications together with other issues. The Defence made the following admissions:

(a) identity of the Accused is generally admitted – any uncertainty to be raised on a case-by-case basis; (b) identity of the following individuals was generally admitted as it relates to prospective surveillance or intercepted communications: Michel Côté, Charles Ethier, Ryan Jones, Jordan McGregor, Richard Perron, Michel Pedneault, Johanne Valin, Doris Lapointe, Brett Wells, Doug Campbell, John Mericer, VG, Ross McCoy, Daniel St. Georges, Richard Craig and Eric Corbeil. The admission does not apply to their association to the accused; (c) the continuity of all exhibits; (d) the nature of the controlled substances seized to the extent that there are Certificates of Analysis disclosed to counsel; (e) the ability of Officer Perreault to testify as an expert on possession for the purpose of trafficking; (f) the voice identification of the accused and of all the persons participating in the various intercepted oral and text communications, subject to corrections; (g) the use and accuracy of the transcripts and translations of the intercepted communications, subject to corrections; and (h) one officer involved in surveillance on a particular date may provide hearsay evidence of the observations made by other officers as recorded in the surveillance report, subject to the right of Defence to request that a specific officer be called on a contentious matter.

ii) Evidence about the Members of the Conspiracies

Michel Côté

10Michel Côté is clearly the member of the alleged conspiracies who was the most active during the police surveillance. He was surveyed throughout the period of Project Adelaide and also during Project Mayday leaving from his home in Amherst, Quebec on a regular basis to the Ottawa area, to the Bayshore Shopping Centre where he would meet with VG. Côté would then continue in a westerly direction and frequently meet with Jordan MacGregor at Fitz Bar and Grill in Bell’s Corners, continue to Dunrobin to the residences of Robert Thompson and Dennis Bouchard, to Smith Falls to the residence of Jaime Coughlin and then Rideau Ferry area to the Bullen residence. (see Ex. 194)

11On the October 16, 2013 take down, Côté’s residence was searched and police located four cellular telephones, 20 grams of marijuana and lists of contacts and debts.

12Michel Côté’s communications by both telephone and text messages were intercepted but no direct communications were intercepted involving Bullen. However, it was known through various communications that Côté also used a PGP (Pretty Good Protection) device and it is likely that the police surveillance did not intercept all of Côté’s communications.

13Côté’s activities, which directly intersect with David Bullen, can be seen in the various attendances by Côté at the Bullen residence. These contacts are particularly relevant at or about the time of the Police Agent purchases (Buys #2 and #3) of cocaine from VG. In addition, it is apparent that Côté is connected to Bullen’s affairs as he becomes involved with Ryan Jones, Brett Wells and Doug Campbell while Bullen is out of the country in March, April and July, 2013.

Charles Ethier

14Charles Ethier is clearly seen to be Michel Côté’s associate or employee. They both reside in close proximity to each other. He attends at Côté’s residence and at their stash house and often will proceed from there to Ottawa and then in a westerly direction making the same stops as Côté. There is no evidence that Bullen and Ethier ever met although Bullen seems to know of him as Côté’s runner. Ethier is also frequently surveyed meeting up with associates of Michel Pedneault for apparent drug transactions and also with associates of Richard Perron. Pedneault and Perron appear to be Côté’s main suppliers of cocaine.

15On October 16, 2013, Ethier’s house was searched and police found 10 cellular telephones, 65 grams of marijuana, 31 grams of cocaine, $500 bound by an elastic, a digital scale and a blender with cocaine residue.

16Ethier is frequently seen driving to PNL Auto in Hawkesbury and obtaining different vehicles to drive for himself and Côté.

17Côté and Ethier were also closely linked to the property at 288 chemin du Lac Mercier in the Mont Tremblant area. It was apparent that this was the property where Helene Keeney resided. Ms. Keeney is Charles Ethier’s mother. The garage on that property was known as the “Shop” and was viewed by the Crown as the stash house for Côté and Ethier.

18The residence at 288 chemin du Lac Mercier was searched on three occasions: July 26, 2013, October 1, 2013 and October 16, 2013. On two occasions they found cocaine and substances used to “cut” the cocaine whereby it would be broken down and mixed with cutting agents such as “comeback” a weight gain supplement and “diphenhydramine” an antihistamine to increase the quantity. Police also located various drug paraphernalia used in the drug trafficking trade such as a money counter, a blender, a hydraulic press and moulds. On October 16, 2013, a six-page debt list was found that included the name “PED” four different times in the document.

19Côté was also frequently surveyed attending the residence of his ex-spouse Johanne Valin in Gatineau. Valin was also surveyed with Côté on September 27, 2013 sitting on a deck counting large amounts of money. On October 16, 2013, Valin’s residence was searched and the police found over 500 grams of cannabis resin, over 640 grams of marijuana and 18 grams of cocaine, a digital scale, a debt list and close to $30,000 in Canadian currency and $1600 in US currency.

20While Valin is not named in the conspiracy charge, she was clearly involved in a number of drug transactions with McGregor and it would appear that she was assisting Côté in his trafficking operations.

Viorel Gheorghevici (“VG”)

21VG operates the Kojak’s franchise in the food court at the Bayshore Shopping Centre. VG is frequently seen to be meeting with Michel Côté for short visits. He is the person to whom the Police Agent is referred by David Bullen when the Police Agent expresses an interest in buying cocaine. Towards the end of Project Adelaide, VG is at odds with Côté about the repayment of debts. Côté threatens VG that someone will pay him a visit from Montreal to arrange for the collection of the debt. During this time, Bullen interferes to direct that he will look after the collection of VG’s debt.

22At various times during the surveillance, VG is surveyed at the Bayshore Shopping Centre meeting with different individuals who are suspected of being involved in the trafficking of cocaine such as Ross McCoy, Charles Ethier and Ryan Jones.

Jordan McGregor

23Jordan McGregor was surveyed having frequent meetings with Côté and with Valin for apparent drug transactions. Surrounding those meetings are numerous communications between McGregor and Côté or Valin where McGregor is arranging to obtain supplies of cocaine, marijuana and cannabis resin.

24On October 16, 2016, McGregor’s residence was searched and the police found a brick of cannabis resin, 22 grams of marijuana, cellular phones and cash. McGregor had also been surveyed at 62 Breland St. in the City of Ottawa on numerous occasions. The Crown contended that this address was used as McGregor’s stash house. During the October 16, 2013 search of 62 Breland St., the police found 196 grams of cocaine, 8 grams of marijuana, a press, a digital scale, baby bottle inserts and a number of cellular telephones.

Ryan Jones

25Ryan Jones is the person most often intercepted speaking with David Bullen on the telephone. They are clearly friends over and above any involvement in drug trafficking. However, there are a number of occasions where Jones is surveyed attending meetings with Bullen and other individuals known to police. On March 22, 2013, Jones met with Bullen and VG at the Bayshore Shopping Centre. On March 26, 2013, Jones attended a meeting in Montreal between David Bullen and Eric Corbeil whereby Corbeil put a box in Jones’ vehicle. On March 27, 2013, Jones met with the Police Agent and Bullen at the Westgate Shopping Mall.

26On July 8, 2013, Jones met with Charles Ethier on Fletcher Road where the surveillance noted a possible exchange of an item between them. On July 23, 2013, Jones and Ethier meet again and they are seen jumping up and down together. Ethier’s trunk is open and he is seen holding a black bag. This was during the time Bullen was out of the country.

27On October 16, 2013, Jones’ residence was searched and the police found a vehicle purchase receipt showing a $7,000 cash deposit, three vacuum sealed bags of marijuana, and $10,000 in Canadian currency hidden in a shop-vac.

28Ryan Jones has a very different relationship with David Bullen than the other members of the alleged conspiracy. It is evident by the intercepted communications that they are friends and have a business relationship which goes beyond any possible illicit activities. Jones seems to rely on Bullen for business advice and has also borrowed money from Bullen. Most of their intercepted telephone discussions provide very little relevant evidence in this trial. It was apparent that Jones became directly involved with Michel Côté in April 2013 and July 2013 when Bullen was out of the country.

Richard Perron

29Richard Perron is one of the main suppliers of cocaine to Côté and Ethier. As will be seen later in this decision when dealing with certain intercepted communications between Perron and Côté, Perron has a historic connection to David Bullen. This becomes evident on September 19, 2013 at a time when Michel Côté is unable to purchase cocaine from his suppliers due to the amounts he owes them, Perron and Bullen meet and this meeting results in Perron resuming his supply of cocaine to Côté.

30The historical nature of the connection between Richard Perron and David Bullen is seen during the telephone conversation between Bullen and J.D. Kirby where Bullen states that he has been dealing with “Flo” for 20 years and that he has been staying away from Perron because of the police presence.

31Perron has numerous meetings and communications with Michel Côté and Charles Ethier that allow the Court to draw the inference that they are meeting with Perron for drug trafficking related transactions, being either the delivery of money to Perron or the picking up of cocaine from Perron’s runner. The timing of a number of these meetings results in Michel Côté contacting his buyers to offer “work”, which is clearly a reference to cocaine. They also text each other about the price of the cocaine. This is particularly evident on February 26, 2013 when Perron and Côté exchange text messages about purchasing product and they fix a price of “50500”. The timing of this communication is relevant to the 3rd Police Agent purchase of a ½ kilo of cocaine on February 28, 2013. Côté was then surveyed attending the area of Bullen’s residence and the Bayshore Shopping Centre on February 27, 2013 to meet with VG.

32On October 16, 2013, Richard Perron’s house was searched by the police who found $250,000 in Canadian currency, bound in elastics, six cellular telephones and various weapons.

Michel Pedneault

33Michel Pedneault is the second of the two main suppliers of cocaine to Côté and Ethier. The surveillance evidence and communications between Pedneault and Ethier demonstrate that Pedneault uses a runner to meet with Ethier at various places either in Montreal or between Montreal and Mont Tremblant.

34The transactions are of a type that there is little doubt as to the nature of the transactions whereby Côté and Ethier communicate with Pedneault to determine a location and Pedneault’s runner shows up to deliver drugs or pick up money. However, there are no communications between Pedneault and David Bullen. There is no evidence that they have had any prior dealings although Pedneault appears to know Bullen.

35On October 16, 2013, the police searched the residence of a female named Lilliane Carle who was in a relationship with Michel Pedneault. The police found $4,665 in US currency, $4900 in Canadian currency and two cellphones.

Stephen Burns

36There were two relevant dates in this trial when the OPP obtained warrants to search the residences of parties suspected to be participating in drug trafficking: June 27, 2012 and October 16, 2013.

37On June 27, 2012, the OPP searched the residences of Stephen Burns and William Scarf. Some of the items seized at the Burns residence at 633 Pretties Island Road in Carleton Place are of relevance to this trial. In particular, 236 grams of cocaine, over 600 grams of marijuana, $3490 in Canadian currency and a debt list in what the Crown believes is Michel Côté’s handwriting.

38Burns is known to be a full-patch member of the Hell’s Angels and previously with other groups. It is said that he controls a portion of the drug trafficking in the Perth and Smith Falls areas. The Police Agent testified that in the past, Burns was receiving cocaine deliveries from Michel Côté. Following the search of his residence, Burns was arrested and was otherwise not involved in Project Adelaide.

David Bullen

39David Bullen is the focus of Project Adelaide. In various communications, he is also referred to as “Hollywood” or “l’anglais”. It was admitted by the Defence that Bullen was involved in a conspiracy to sell cocaine with Michel Côté and VG in that he aided and abetted in the first three Police Agent purchases of cocaine.

40On February 2, 2012, Bullen’s vehicle was equipped with a tracking device that provided his whereabouts to the police. The tracking device fell off and was found by Bullen in October 2012. In addition, a significant amount of police surveillance was done at his home and when he was out on the road driving about and meeting with various individuals. Six different authorizations were obtained for Part VI authorizations starting on February 25, 2013 allowing police to intercept text and telephone communications involving Bullen, Côté, Ethier and several other individuals who were part of the regular surveillance.

41What differentiates Bullen from many of the other persons surveyed is that he has an active ongoing business named iSolutions with a partner named Steve Murphy who was not alleged to be involved in drug trafficking. The premises of iSolutions were searched by police with a number of general warrants and nothing was seized. Bullen seemed to do business with iSolutions and Steve Murphy in Montreal and in Sri Lanka where they seemed to be investing on renewable energy. In addition, the evidence of the Police Agent seemed to suggest that Bullen was involved in many other illicit businesses, including the resale of stolen merchandise, although these observations were more historical in nature and involved the Police Agent. Bullen also seemed to be involved in loaning out money to various individuals. These other activities are relevant when considering the innocent explanations that may exist when the Court is asked to draw inferences from the surveillance evidence.

42Given the volume of surveillance evidence focused on Bullen’s and Côté’s movements, it is impossible for the Court to refer and make specific findings on each surveillance event. Bullen’s movements can be characterised as often involving a number of shorter meetings with various individuals with whom he meets with frequently. Some individuals are known to police and others are not. This pattern was more obvious during Project Mayday. During these meetings, it is rare that Bullen is seen to be involved in actions that are often associated with drug transactions. He is not seen exchanging packages with individuals or dealing with large amounts of money. On May 22, 2012, he was surveyed entering the Perkins building in Perth with Côté where it appeared that Bullen was holding a plastic bag that could be seen to include bundles of money. The officers who testified said that they could see a twenty dollar bill through the plastic bag. That photograph was entered as Exhibit 148.

43At times, Bullen seems to be aware of the police presence around him. On at least two occasions, he confronted undercover police officers who were surveying him. He was aware of the tracking device that had been installed on his vehicle and that fell off in his driveway. He was also very aware of the police presence on May 24, 2013 when he came face-to-face with surveillance officers near his property.

44Amongst the most relevant of the police surveillance evidence that directly involves David Bullen are the conversations with the Police Agent. These discussions reveal Bullen’s role in facilitating the Police Agent purchases and his apparent involvement in the finances. When discussing pricing with VG at Bayshore and then with Michel Côté in Montreal, Bullen appears to be part of those making a profit with VG and Côté. Bullen’s presence is also significant in the October 9, 2013 meeting in Montreal with the Police Agent and Michel Côté.

45Beyond the scope of what has been admitted to by the Defence is Bullen’s attendance with Richard Perron at the Bar-b-barn in Montreal on September 19, 2013. Leading up to this meeting, Côté’s affaires had grinded to a halt. He was not able to purchase additional cocaine as a result of ongoing debt and collection issues. What is clear is that following the meeting between Bullen and Perron, Michel Côté was given access to the product that allowed him to contact and visit those he supplied on his regular run.

iii) Admissible Private Third Party Communications

46The admissibility of surveillance evidence obtained from the Part VI authorizations to intercept text and phone communications that do not involve David Bullen are subject to the co-conspirators (or co-actors) exception to the hearsay rule. These are communications whereby the Crown seeks to rely on something that a co-conspirator said to a third party or to another co-conspirator that would normally be hearsay.

47I start by highlighting the essential elements of a conspiracy, which is an agreement by two or more persons to do an unlawful act. There must be an intention to agree, the completion of an agreement and a common design. To conspire is to agree. The essence of criminal conspiracy is proof of an agreement: see United States of America v. Dynar, [1997] 2 S.C.R. 462 at para. 86.

48As provided in R. v. Carter, [1982] 1 S.C.R. 938, the “co-conspirator’s exception to the hearsay rule” permits the court to rely on the hearsay utterances of an alleged co-conspirator of the accused if the following conditions are met:

(1) The trier of fact must first be satisfied beyond a reasonable doubt, on all the evidence, that the conspiracy charged in the indictment existed. (2) Based only upon evidence directly admissible against the accused, the trier of fact must then conclude, on a balance of probabilities, that the accused was probably a member of the conspiracy. (3) If the trier of fact concludes the accused was probably a member of the conspiracy, they are entitled to apply the “co-conspirator’s exception to the hearsay rule.” In other words, acts and declarations made by the co-conspirators, in furtherance of the conspiracy, are receivable as evidence against the accused on the issue of his guilt: see R. v. Carter, [1982] 1 S.C.R 938 at p. 947.

49Under the first step, the Supreme Court of Canada has made it clear that the Court is to consider all of the evidence to determine if “as a matter of logic and human experience, an inference of the existence of the agreement is available from the evidence considered in its totality”: see R. v. Puddicombe, 2013 ONCA 506 at para. 112.

50The Court must be mindful in these circumstances that the co-conspirators may have various reasons to not always be truthful in their statements or to exaggerate when speaking to third parties. The Court must thus be alive to the issue that a co-conspirator may have a motive to lie in certain circumstances and thus any statement admitted must still be considered as to its ultimate reliability.

51The second step of the Carter analysis calls for a determination of Bullen’s probable membership in the conspiracy but based solely on the evidence directly admissible against him. As such, the rules of evidence at the second stage are considered more strictly and do not permit the consideration of hearsay: see R. v. Bogiatzis, 2010 ONCA 902 at para. 21. To apply this consideration to the present case as suggested by the Defence, it would be appropriate to consider the intercepted communications of David Bullen for their truth but not the utterances of the other co-conspirators.

52The third step of the inquiry requires a consideration of the acts or declarations to ensure that they were made in furtherance of the conspiracy. This has been interpreted to mean that the acts or utterances are deemed reliable only if they are relied upon by the co-conspirators in attaining their mutual goal, which is the trafficking of cocaine. Those are acts or declarations that the parties themselves are likely to have relied upon in seeking to achieve the common goal: see R. v. Chang (2003), 173 C.C.C. (3d) 397 at paras. 120-121.

53In Chang, the Court of Appeal confirmed that the trier of fact must avoid considering idle conversation, or narrative description of past events: see Chang at para. 121.

Carter Analysis: Stage 1

54The Defence has agreed that, with respect to the first stage of the Carter analysis, the principal parties named in Count 1 of the Indictment have been proven beyond a reasonable doubt to be involved in various independent conspiracies to traffic cocaine, with the exception of Ryan Jones, Jordan McGregor and Michel Pedneault. However, the Defence does not agree that the larger conspiracy as set out in Count 1 has been established beyond a reasonable doubt.

55I disagree. It is well established that the Crown need not prove the participation of every named conspirator on the indictment: see R. v. Paterson (1985), 44 C.R. (3d) 150 at 156 (Ont. C.A.).

56What becomes apparent when the Court considers all the evidence is that there was a conspiracy involving Michel Côté as the main participant for the traffic of cocaine purchased by Côté and Ethier in the Montreal/Mont Tremblant area from Richard Perron and Michel Pedneault. Once the cocaine was purchased by Côté and Ethier, the clear intention was for the cocaine to then be distributed to regular sources, viewed as mid-level traffickers in Ottawa and in various communities west of Ottawa.

57I will now deal with the members of the conspiracy that the Defence disagrees are actual members of any conspiracy. With respect to Ryan Jones, it is acknowledged that he does not have the same level of involvement dealing directly with Côté. However, his involvement becomes evident during the periods that David Bullen was out of the country and Côté became directly involved with Jones. The surveillance also revealed how Jones frequently attended meetings with Bullen and on a number of occasions he was present during meetings with either Côté, VG and with the Police Agent. His participation in the conspiracy is obvious during the intercepted communications with Côté in April 2013 and July 2013 when David Bullen was out of the country. His participation is also clearly established in the Jeep probe where he complains of not having product and that he has paper to deliver to Côté. The seizure of $10,000 in his residence on October 16, 2013, is further indicia of his membership in the conspiracy. His membership in the conspiracy has been proven beyond a reasonable doubt based on all the evidence.

58With respect to Michel Pedneault, he may or may not be unknown to David Bullen. The intercepted communications with Côté reveal that Pedneault certainly knows about Bullen. However, he plays an important part of the conspiracy as one of the two sources of the cocaine purchased by Ethier and Côté that is destined to be sold in the various communities west of Ottawa. His role is equal to the role played by Richard Perron in the realization of the conspiracy and I am satisfied beyond a reasonable doubt of his membership in the conspiracy.

59With respect to Jordan McGregor, he is simply another mid-level trafficker, similar to VG, who received regular supplies of cocaine and possibly other drugs through Côté, Ethier or Valin. While there is no surveillance evidence of apparent drug transactions with Bullen, it is clear from the Jeep Probe that he had an existing relationship with Bullen that he had the ability to request a meeting with Bullen shortly after the Jeep Probe and then his regular dealings with Côté continued. There is no doubt about his membership in the conspiracy.

60The Crown has clearly demonstrated beyond a reasonable doubt, based on all the evidence, the existence of the conspiracy as alleged in Count #1 of the Indictment.

Carter Analysis Stage 2

61The Defence has admitted David Bullen’s involvement in the smaller conspiracies involving Richard Perron, Michel Côté and Charles Ethier and a separate conspiracy involving Michel Côté and VG. However, at stage 2 of the Carter analysis, the Defence challenges that the Crown has established on a balance of probabilities any conspiracy involving David Bullen and either Jordan McGregor and Michel Pedneault or that the larger conspiracy is established.

62When considering the nature of the separate conspiracies agreed to by the Defence, I disagree. It would be an error to separate the activities of Bullen with Perron, Côté and Ethier and then identify a separate conspiracy between Bullen, Côté and VG. I am of the view that the general scheme of the conspiracy was to have Côté and Ethier purchase cocaine from Richard Perron and possibly other sources and to transport it to Ontario for sale to the eventual user through the other co-conspirators and buyers that Côté dealt with on a regular basis. In that sense, the Crown has certainly demonstrated on a balance of probabilities that David Bullen was a member of the conspiracy to purchase cocaine from Richard Perron, to transport it to Ontario through Côté and Ethier and to sell it to various mid-level traffickers such as VG and Ryan Jones.

63When considering the participation of Jordan McGregor and Michel Pedneault in that conspiracy, I have considered the Court of Appeal for Ontario’s decision in R. v. Longworth (1982), 67 C.C.C. (2d) 554 (Ont. C.A.) at para. 45 where it is stated that the participants in a conspiracy need not know each other, nor need they communicate directly with one another. Each need not know the details of the common scheme, though each must be aware of the general nature of the common design and be an adherent to it.

64As such, a person may be part of a conspiracy without being in direct communication with the other conspirators or all of them. Further, a person need not be aware of the identity of the co-conspirators as long as the conspirators act in concert in pursuit of a common goal.

65When applied to the current circumstances, I accept that there is no evidence admissible against David Bullen that he knew that Côté was purchasing cocaine from Pedneault. However, there is admissible evidence that Bullen knew Côté was buying cocaine from Richard Perron in the Mont Tremblant and Montreal area with a purpose of selling it to the other members of the conspiracy in Ontario. That is the general scheme of the conspiracy to traffic cocaine and the scheme is not dependent on Richard Perron being the sole supplier of cocaine. That Côté purchased cocaine from Pedneault as part of the common scheme does not alter the nature of the conspiracy or Bullen’s membership in the conspiracy.

66Similarly, while Bullen may not have personally known of each of the mid-level traffickers to whom Côté was selling, those sales from Côté to Jordan McGregor were part of the common scheme of the conspiracy alleged in Count 1. In addition, the evidence admissible against Bullen demonstrates that Jordan McGregor and David Bullen knew each other as they met alone at different times and were clearly familiar with each other. Furthermore, the ongoing nature of the dealings between Bullen and Côté, as evident in their frequent meetings and the intercepted communications where Bullen speaks of Côté, leads me to conclude that Bullen was probably aware of McGregor as part of the common scheme.

67As such, on a balance of probabilities, I conclude that David Bullen was a member of a conspiracy that included both McGregor and Pedneault and the other conspirators listed in Count #1.

Carter Analysis – Stage 3

68Given the number of intercepted communications (text and telephone) in this case, it is impossible to analyse each of the intercepted private communications and come to a conclusion if that communication is in furtherance of the conspiracy to traffic cocaine. However, it is possible to firstly identify classes of conversations that are clearly in furtherance of the conspiracy and secondly to identify a number of key intercepted communications specifically relied upon by the parties and evaluate those communications on an individual basis.

69I begin with the identification of certain classes of communication that are clearly in furtherance of the conspiracy:

a. Communications between Côté and Ethier on their regular operations of buying from Perron and Pedneault and the discussions about payments and delay in providing payments. This would also apply to communications with both Perron and Pedneault that involve purchasing cocaine, pricing, arranging payment for it and demanding payment for debts. b. Communications involving Côté with VG, McGregor and other buyers about if they need “work” or if they have “paper”. Those discussions are clearly about Michel Côté offering to deliver cocaine to these individuals and seeking payment for the cocaine. c. Communications involving Côté, Jones and Campbell that involve Côté seeking payment from them or asking if they need product are clearly communications where Côté is furthering the sale of cocaine and the payment of debts associated with cocaine. d. Communications between Michel Côté and Doris Lapointe where Mr. Lapointe is being used as a conduit for delivering messages.

70When considering classes of communications that do not in my view further the conspiracy:

a. communications involving Charles Ethier and his girlfriend or his son where he speaks generally about his lack of work and describes some of his activities are part of the narrative or mere statements about the conspiracy and not admissible against David Bullen; b. communications involving Michel Côté and Johanne Valin include lengthy discussions about their personal lives together with some narrative or mere statements about the conspiracy and are not in my view furthering the trafficking of cocaine. This would apply to the March 21, 2013 discussion where Côté says that he and David Bullen could not be away at the same time. This conversation does not further the conspiracy and is not admissible; c. communications where various members of the conspiracy are describing their historic involvement with David Bullen. While it can be argued that these discussions are had to further the various members’ standing within the conspiracy, I find that David Bullen’s various business activities and particularly those described by the Police Agent involving the different illegal activities that he did with Bullen in the past lead me to conclude that those historical references could be referring to various different activities done with Bullen in the past and are not furthering the ongoing conspiracy to traffic; d. communications involving Jordan McGregor and the debt collection he was asked to perform on behalf of David Bullen are not in furtherance of the conspiracy as there is no evidence that those specific debts relate to the trafficking of cocaine. The Court heard evidence that Bullen had a practice of loaning money to different individuals and I am not satisfied that those debts related to cocaine purchases; e. communications between the Police Agent and VG are often discussions about the conspiracy generally. They are often based on information VG purports to have received from Bullen. In the later months of Project Adelaide, VG’s position within the conspiracy is questionable. Bullen speaks unfavorably about him to Edwards when Edwards is looking for a new source for better quality cocaine. In addition, he is threatened by Côté on October 8, 2013 with respect to debts owing and Bullen later says he will look after the collection from VG. All this brings in reliability issues as to the utterances of VG in July and August of 2013. I conclude that those communications are inadmissible as against Bullen.

71I now turn to specific discussions relied upon by the parties in their submissions that have been identified as key discussions to be considered by the Court. Some of these discussions include a combination of utterances that are in furtherance and some that are not and care must be taken to highlight those portions of these conversations that are being relied upon by the Court as evidence against the interests of Bullen.

72I specifically refer to the following communications:

a. March 2, 2013 discussion between VG and Police Agent: Here VG speaks of how Bullen controls the area from Ottawa to Perth and that people are forced to get from him. This again is VG speaking about the conspiracy generally and describing existing features. It is not furthering the trafficking of cocaine and is thus inadmissible. b. April 2, 2013 text conversation between Michel Côté and Richard Perron: Here Côté is speaking of the operation and what he is doing. The utterances about working alone and transferring his side are not said to further the conspiracy. The utterances are simply narrative between the conspirators. The utterances do not at this time influence the actions of Perron in the context of furthering the conspiracy. c. April 15, 2013 discussion between Michel Côté and his son Etienne: Here Côté is describing his activities to his son and what he is doing in the conspiracy. He is speaking about the conspiracy but the information he gives his son does not further the conspiracy to traffic cocaine. It is not admissible. d. April 16, 2013 text messages from Michel Côté to Doug Campbell: The message that Côté has been with his friend for 20 is admissible even if it provides historical information because it is being used to facilitate debt collection to further the conspiracy. This would also apply to the April 8, 2013 message from Michel Côté to Luc from Centre du Camion as the information about Côté having to do both ends of the business is admissible as it is said to further the conspiracy and collect debts and sell cocaine. e. May 24, 2013 discussion between Michel Côté and Doris Lapointe: The discussion where David Bullen had communicated through Mr. Lapointe to advise Côté to “throw the phone in the water and everything else” is clearly in furtherance of the conspiracy to direct Côté to avoid communicating because of the police presence. It is admissible. f. July 26, 2013 discussion between VG and Police Agent: In this conversation, VG describes the compromise on May 24, 2013 when David Bullen discovered a surveillance team near his residence. This discussion is relied upon by the Crown as support for the fact that Bullen had two kilos of cocaine at his house and threw it out in the river off his boat. There are firstly significant reliability issues to the words used by VG as it is not clear what he is suggesting when he says “he (unintelligible) the fucking shit in the boat and he took off (unintelligible)”. Those words do not say what the Crown suggests. In addition, the words are said to describe a past event and not said to further the conspiracy in any way. At best, they are used to explain where things are at in the conspiracy but certainly not to further it. These utterances are inadmissible. g. August 7, 2013 discussion between Michel Côté and Doris Lapointe: This discussion is clearly Côté speaking about the conspiracy and expressing his frustrations to Mr. Lapointe. However, it is not in furtherance of the conspiracy and is thus not admissible. This would also apply to most of the discussions with Mr. Lapointe. h. April 16, 2013 discussion between Michel Côté and Jordan McGregor: These utterances have Côté enlisting McGregor’s help in getting payments while Bullen is away. The utterances are made to further the conspiracy and are admissible as against Bullen. i. August 15, 2013 discussion between Michel Côté and Jordan McGregor: While this utterance speaks to Côté’s frustrations in reaching Bullen, it is a conversation about how to move the conspiracy forward as McGregor reassures Côté that Bullen will call him. This conversation furthers the conspiracy and is thus admissible against Bullen. j. August 19, 2013 – the Jeep Probe: A close review of the discussions in this lengthy intercept, demonstrate what have been referred to as two mid-level traffickers who have gathered to discuss the problems in the conspiracy. Portions of this intercept are admissible as they speak to moving the conspiracy forward with Jones and McGregor stating that they are out of cocaine and McGregor trying to meet up with Bullen to get information on what is happening with the conspiracy. It is also furthering the conspiracy when Jones says he has “paper” to deliver to Côté and suggesting that McGregor could deliver it for him when he goes to Tremblant on the weekend. These utterances would be admissible against Bullen. Otherwise, the remainder of the intercepted discussion deals with general discussion about the conspiracy and McGregor looking to determine if he will remain part of the conspiracy to traffic. Specifically, the portion of this intercept that the Crown relies upon with McGregor making utterances about how long he has worked for Bullen and that he would seek his paper to work somewhere else are not made to further the ongoing conspiracy and are not admissible as against Bullen as they do not further the conspiracy. k. September 10, 2013 text conversation between Michel Côté and Richard Perron: This communication is made in the context of Côté attempting to convince Perron to provide him some cocaine. Côté refers to Bullen to appease Perron. The utterances made in this conversation are made to further the conspiracy. l. September 22 and 24, 2013 text conversations between Michel Côté and Richard Perron: These are admissible against Bullen as the discussions involve the steps that are to be taken to allow for Côté to obtain cocaine from Perron. On September 24th, Perron confirms with Côté the quality of the product delivered. These utterances further the conspiracy and are admissible m. September 23, 2013 discussion between Michel Côté and Doris Lapointe: This discussion is clearly speaking generally about the status of the conspiracy and is not made to further it. It is not admissible.

73While there are numerous other communications that the parties rely upon for various reasons, I have only dealt with those that I am specifically relying upon in this decision. However, communications that have not been relied upon either specifically or as a class of admissible hearsay but addressed by the parties in submissions have still been considered by me to determine if they are in furtherance of the conspiracy. Those that are not have not been relied upon against David Bullen’s interests.

iv) The Police Agent

74On November 25, 2012, Jeff Edwards signed a service provider agreement to become an informant for the OPP and assist with Project Adelaide. The object of the agreement is to provide lawful assistance as required by the Police and to be available to testify truthfully in any legal proceedings. In consideration for his successful completion of his obligations, Edwards could be paid hundreds of thousands of dollars.

75November 25, 2012 also coincides with the date that Edwards says he stopped being involved in crime.

76The Court heard evidence of Edwards’ lengthy criminal record. He is presently 48 years of age and it simply can be said that he is a career criminal. Edwards testified that he met David Bullen in around 1997 and became involved with Bullen in a credit card fraud. Through Bullen, they would sell merchandise obtained through stolen credit cards. After about a year, he started purchasing cocaine from Bullen in amounts ranging from an ounce to ten ounces. The transactions would occur at Bullen’s residence on Wagon Drive in Dunrobin. At this time, Edwards said he was dealing with Bullen on cocaine transactions pretty much weekly.

77When Bullen moved out to Rideau Lakes in Lombardy, Bullen put Edwards in contact with Chris Tessier to avoid having to drive out to Lombardy but he only bought from Tessier roughly once per month as he did not have the same clients. On two occasions, he purchased a kilogram of cocaine. That transaction took place in Montreal and a second time at the Holiday Inn in Kanata. Both times, Michel Côté delivered the cocaine.

78In the mid-2000s, Edwards stayed at Stephen Burns’ residence, a full-patch member of the Outlaws Biker Gang and later Hell’s Angels. They were mostly friends but later Edwards also bought cocaine from Burns. Although he cannot recall in what year, Edwards testified that Michel Côté came to deliver cocaine to Stephen Burns’ residence.

79In or about 2010, Edwards complained about the quality of some of the cocaine purchased from Chris Tessier and this caused a falling out with Tessier and Edwards stopped having dealings with Bullen.

80On December 18, 2012, Edwards first called the Bullen residence and eventually spoke to him. Eventually he met up with Bullen on January 8, 2013 at the Bayshore Shopping Centre and discussed buying cocaine. They met with VG, whom the Police Agent knew from the past, and discussed the purchase of a ½ kilo of cocaine. Of note during this conversation is VG being sceptical that he could get that much cocaine from “Buddy”, his supplier. Bullen responds: “Not if I tell him to he will”. Buy #1 took place on January 15, 2013.

81The Police Agent continued to deal with VG for further purchases of cocaine. Buy #2 took place on February 7, 2013. On the previous day, both Côté and Bullen were surveyed at Bayshore meeting with VG at different times. Buy #3 took place on February 28, 2013. On the previous day, Michel Côté attended at Bayshore and met with VG. Buy #4 took place on July 29, 2013 and Buy # 5 took place on August 21, 2013. Of note during the 4th and 5th buys, the surveillance evidence does not disclose that Bullen had been to Bayshore in close proximity to those transactions. For the 4th buy, Michel Côté was there 5 days earlier and for the 5th buy, it had been several weeks since Côté had met with VG.

82The Certificates of Analyst for the 4th (17% and 19%) and 5th (11% and 12%) buys reveal that the quality of that cocaine was inferior to the other Police Agent buys.

83On July 5, 2013, the Police Agent met with David Bullen at the Golden Palace Restaurant to discuss the poor quality of the cocaine and see if he could purchase from another supplier. Bullen essentially said that they would speak upon his return. Edwards testified that he understood from that discussion with Bullen that on May 24, 2013 after the compromise, Bullen went back into his house to get 2 kilos of cocaine and dispose it from his boat into the river. On this particular incident, I have reviewed the intercepted communications and the additional written submissions of the Crown. While it is evident that Bullen felt that he was arrestable for something on May 24, 2013, I am not satisfied, even on a balance of probabilities, that he had two kilograms of cocaine and that he threw them in the river. I can only conclude that he thought he was “fucked” and that he ran to the boat to escape arrest.

84The Police Agent then met Bullen at his residence on October 7, 2013 to discuss a possible purchase from another supplier than VG. Bullen suggested buying from Côté and suggested that the three could meet in Montreal.

85On October 9, 2013, Edwards met with Bullen and Côté in Montreal where they discussed the purchase of a kilo of cocaine. While discussing price for the cocaine, Bullen says “we” will make 2K on the deal and assured that the quality would be 90% cocaine or better. There was another debt collection discussion about Sandy Wammes and Bullen advised that of the $14,000 debt, Edwards would keep $4000 and $10,000 would go to Bullen and could be given to Côté.

86Ultimately, there were delays by Côté in getting a supply of cocaine for this 6th buy and it did not proceed as the takedown day of October 16, 2013 brought an end to Project Adelaide.

87On cross-examination, Edwards agreed that he had a long history of lying to the police. Throughout his criminal past, he lied to police to avoid arrest and provided false alibi and fake identification to police and had no hesitation involving others to avoid being arrested or lessen his jeopardy. In his dealings with the police as part of becoming a police agent, Edwards agreed that he intentionally withheld information from the police about his involvement in a shooting in Toronto, which he agreed was his most serious offence.

88Edwards agreed that he was very motivated to become a police agent as his finances were grim. He was hoping to sign on as police agent as he was aware that he could make hundreds of thousands of dollars. At the time he became a police agent, Edwards was desperate for cash. Given the delays in the proceedings, Edwards may receive approximately $500,000 for his work as a police agent in Project Adelaide.

89During his testimony in the Jones and Ethier trial, Edwards admitted that he gave incorrect testimony before Hackland J. However, I accept that on these points, while he testified incorrectly, there was no motivation to lie about the circumstances in which he became an agent.

90During his cross-examination, Edwards testified that in 2008, he shot himself in the leg while on his way to shoot someone named Denis Bergeron who owned a hydroponics store on Richmond Road at the request of David Bullen. He provided very little details of the incident other than being with a person named Kevin but provided no last name. During his Vetrovec interview with the police prior to becoming a police agent, he made no mention of going to shoot someone for Bullen. In an earlier interview he told police that Bullen had hired “someone” to shoot Bergeron. Edwards said that he left this information out and that this was not the same as lying. He viewed it as not being completely truthful.

91Edwards also agreed that he was not truthful in his Vetrovec statement to police in that he told police that he had no involvement in criminal activity since 2010. He agreed that he misled police about robberies he had been involved with in 2010-2011, about selling cocaine in 2011 and about shooting up a house near Montreal.

92When testifying about a specific instance that he said Michel Côté delivered cocaine to the Burns residence, Edwards admitted that he never told police that it was Michel Côté but said he had heard the name “Louie”. He only mentioned that it was Côté later to the Crown. He could not explain why he did not initially identify Côté as the person who delivered the cocaine to the Burns residence. In addition, while driving around with the police in Montreal, Edwards told them that he had previously met Côté five times. When he later testified in court, he said two times. Edwards also agreed that Burns was a member of the Hells Angels and that he had not told police that Burns was buying cocaine from Bullen. Edwards lacked credibility on his previous dealings with Côté.

93When challenged on Edwards’ failure to provide the very relevant information about Stephen Burns buying cocaine from David Bullen, Edwards responded that he “may” not have wanted to give all the information and that there were trust issues. This answer is very troubling for the Court. It demonstrates that Edwards is making up his excuses without committing to the answer by presenting a hypothetical about his evidence. Surely, Edwards would know why he would not have given the information to police but he presents his answer as a hypothetical as if he did not know what was going through his own mind.

94On October 7, 2013, Bullen tells Edwards that Sandy Wammes owes him $14,000 but that he cannot find him. He does not say what the debt is for. While Edwards knew the individual named Sandy Wammes as a significant drug trafficker from Ottawa, he testified that it was a cocaine debt. There was no indication from Bullen if the debt is related to cocaine or to some other loan provided by Bullen. Edwards assumes this in his testimony.

95When asked about other individuals alleged to be working with David Bullen, Edwards testified that he did not know Jones or Wells to be involved in drug transactions. In addition, he knew VG from past dealing with him and independent to Bullen. He agreed that Bullen did not tell him that he had to buy cocaine from VG but only directed him to VG for the purchasing of cocaine. On January 15, 2013, he agreed that he could not say that it was Bullen who brought the cocaine to Bayshore for Buy #2. He was told that Bullen was downstairs in Bayshore. Based on what he knew of Bullen’s arrangements, he agreed that it would not make sense for Bullen to bring the cocaine himself.

96In Edwards’ debriefing notes of July 5, 2013, he makes no mention that Bullen had told him that he disposed of 2 kilos of cocaine in his possession into the river. He agreed that the police would be interested in the information that Bullen had two kilos of cocaine in his house. When challenged on this issue, Edwards stated that he is not sure if Bullen had the cocaine. It was his understanding of the discussion but those things are not spoken of openly and that they often use hand signals. This is another situation where Edwards is challenged on his evidence and he responds hypothetically. He was present with Bullen in the restaurant at that time and he should know if Bullen was using hand signals when describing this incident. On September 27, 2015, in the Ethier and Jones trial, Edwards did not testify about any discussion about throwing cocaine in the water off his boat. Ultimately, he agreed that Bullen never said it was cocaine and that it could have been marijuana or cell phones. He lacked credibility in his evidence concerning this event.

97Edwards agreed that in making his reference to VG not wanting to step over Bullen, Edwards had no knowledge of Dave Bullen controlling everything from Ottawa to Perth. Edwards agreed that VG’s statement of not stepping over Bullen related to the fact that Bullen introduced Edwards to VG, not with respect to all the deals made by VG.

98At the end of his cross-examination, Edwards agreed that he was still a junkie or a recovering junkie back in 2011 and 2012 and that he would have no qualms lying to police to get the kind of money available to him as a police agent.

v) Roch Perreault

99Detective Sergeant Roch Perreault testified as an expert witness. Specifically, he was qualified to provide opinion evidence on as an expert in the following areas: trafficking in controlled substances being cocaine, marijuana and cannabis resin, including indicia of trafficking, methods of trafficking, packaging of controlled substances for trafficking, quantities normally trafficked, the use of cutting agents and why controlled substances are cut, debt lists, valuation of drugs seized, purity level as relates to price and level of distribution, hierarchy in drug trafficking organizations at various distribution levels, drug jargon and coded language and the interpretation such language in intercepted communications in this case. It was specified that Det. Perreault would not be qualified to opine on criminal organizations.

100Det. Perreault testified with respect to the coded language used by drug traffickers and agreed that it can vary from one area to another. He spoke of the tools of the trade such as digital scales, weapons, large amounts of currency and debt lists. Drug traffickers will use cell phones in different names and PGP (Pretty Good Protection) devices are used by higher level drug traffickers. He testified that the e-mail address alouette@sebringpgp.com is an address that would be used for PGP technology.

101He spoke of diluting or cutting product and the packaging of cocaine with dime bags at the gram and half gram level and the use of baby bottle bags at the ounce level and saran wrap at the kilo level.

102Det. Perreault described how cocaine arrives in a brick and that after dilution it is often re-pressed to give the appearance that it is still in the original brick format. He identified the press in the Côté-Ethier stash house as being consistent with a press used to make bricks of cocaine. He described that a kilo of cocaine contains 36 ounces, a half-kilo is often 464 grams (or 19 ounces) and that a 9-pack is 9 ounces. While the price varies, a kilo may be sold from 40-50 thousand dollars. Basically, prices will vary and be influenced by the availability of the product on the market.

103Det. Perreault also testified on the items seized at the Côté-Ethier stash house and spoke of the items seized as being consistent with the cutting and re-packaging of cocaine for trafficking purposes. He spoke of how money is packaged in bundles by using elastics. He also commented on the drug lists found and how these are consistent with drug sales and money owed and money paid. He commented on how the figures on the debt list seized in the stash house are consistent for high level trafficking of cocaine.

104Det. Perreault opined on the amount of cutting agent present during the October 1, 2013 covert search of the stash house and the amount seized on the take down date of October 16, 2013. He opined on the amount of cocaine that could have been produced with that amount of cutting agent using the formulae described by Ethier during one of the intercepted communications. He estimated that 2.5 kilos of cocaine was processed during that period.

105He testified on common drug lingo used in the intercepted communications he reviewed:

a. work means drugs or in this case cocaine; b. paper means money; c. fille means a kilogram of cocaine; d. machine means a PGP device; e. girls at 85 at 36 means a kilo at 85% purity for $36,000 per kilogram.

106Det. Perreault also testified on the role of certain actors in this prosecution in the drug hierarchy. He identified Perron and Côté as higher end traffickers, McGregor as a mid-level trafficker and Ethier as a mid to high end trafficker.

107On cross-examination, Det. Perreault agreed that his testimony for Project Adelaide was the first time he had testified on coded language and drug trafficking hierarchy. Furthermore that his opinion on the coded language was based on his review of the file and not with prior experience with this group of traffickers. He agreed that coded language can vary geographically.

108Det. Perreault agreed that his calculation of the amount of cocaine that was created with the cutting agent in early October 2013 is solely based on the intercepted communications by Ethier and that he cannot say that the cutting agent that was there on October 1, 2013 was not possibly moved to another location.

109Otherwise, Det. Perreault’s evidence was not significantly challenged on cross-examination.

General Principles of Law

110There are some fundamental principles that apply to every criminal trial.

111There is the requirement for proof of essential elements to a standard of proof beyond a reasonable doubt. The burden is on the Crown to prove each essential element of an offence beyond a reasonable doubt. That burden never shifts to the accused.

112There is also the presumption of innocence and it remains with an accused throughout the trial. It is only displaced if, after considering all the evidence, the Court is satisfied beyond a reasonable doubt that the accused is guilty. This presumption means that the accused is presumed to be innocent. Accused persons have no obligation to prove that they are not guilty, nor have they any obligation to explain the evidence presented by the Crown.

113This standard of proof beyond a reasonable doubt denotes a very high threshold for the Crown to meet. It is not sufficient that, on the balance of probabilities, the accused may have, or even is likely to have, committed the offence. The offence must be proved beyond a reasonable doubt. That does not mean the Crown must prove guilt of the offence with absolute certainty, which would in most cases be a virtually impossible high standard to meet. But it must be with near certainty; that is to say, closer to the standard of absolute certainty than to a mere balance of probabilities. Reasonable doubt is based on reason and common sense. It is a doubt that logically arises from the evidence.

114If I am going to draw any inferences against the accused, it must be the only reasonable inference open upon the proven facts.

115A Court can always accept all, some or none of the testimony of any witness.

116The accused himself did not testify and it is his right to remain silent. No inference of guilt can be taken from the exercise of that fundamental right. The Court cannot use the silence of the accused against him in building the case for guilt.

Analysis of Counts and Applicable Law

Count #1: Conspiracy to Traffic Cocaine with Côté, Ethier, VG, McGregor, Jones, Perron and Pedneault

117In the case of a conspiracy to traffic in an unlawful substance, the essential elements of the offence that the Crown must prove beyond a reasonable doubt are: (i) that there was a conspiracy between two or more persons; (ii) that the conspiracy was to traffic in an illegal substance; and (iii) that the accused was a member of that conspiracy: see R. v. Henareh, 2014 ONSC 2588 at para. 162.

118In R. v. Buttazzoni, 2015 ONSC 6411, RSJ Daley summarized the following points of law that are applicable to when considering the existence or not of a conspiracy:

42It is not necessary that it be demonstrated that each co-conspirator was aware of all the details of the common scheme, but simply that each had knowledge of its general nature.

43It is well-established that the parties to such an agreement need not have been charged or on trial at the same time; or that the agreement include terms as to the duration of the agreement or the roles of those who are parties to the agreement; or that all parties have to join the agreement at the same time and stay involved in the agreement for the same period or leave the agreement at the same time.

44Although a meeting of the minds between the conspirators, with respect to the object of their agreement, must be established, the Crown need not prove that each conspirator was aware of or communicated with, all other conspirators: R v. Longworth et al. (1982), 67. C.C.C. (2d) 554 (Ont. C.A.).

45In determining whether the requisite actus reus of the offence of criminal conspiracy is present, the inquiry is whether an agreement was reached by the conspirators and not what each conspirator may have done in their efforts to realize their common goal. The fact that one or more parties to a conspiracy agreement is kept in the dark as to the relationship with and as between other parties to the agreement, and the fact that one or more parties to the agreement has no contact with other parties to the agreement, are strategies that may be expected to characterize a conspiracy to import drugs: R v. Nieme, (2006), 208 C.C.C. (3d) 119 at paras. 65 – 66 (Ont. C.A.).

46… The acts of the co-conspirators in carrying out the planned illegal act are not necessarily irrelevant, as the acts carried out by the co-conspirators can often furnish evidence of the existence of an agreement: R. v. Gassyt at para. 17. The offence of conspiracy is more likely to be proven by evidence of overt acts by the conspirators, from which the prior agreement can logically be inferred.

59It is not necessary that all members of conspiracy play, or intend to play, equal roles in the ultimate commission of the unlawful object: R. v. Root 2008 ONCA 869, [2008] O.J. No. 5214 (ON CA) at para. 68.

119As previously set out in step 1 of the Carter analysis, I have identified the conspiracy that the Crown has made out, beyond a reasonable doubt based on all the evidence. I have identified a conspiracy involving Michel Côté as the main participant for the traffic of cocaine purchased by Côté and Ethier in the Montreal/Mont Tremblant area from Richard Perron and Michel Pedneault. Once the cocaine was purchased by Côté and Ethier, the clear intention was for the cocaine to then be distributed to regular sources in Ottawa and the communities west of Ottawa, to mid-level traffickers and these individuals included VG, Jordan McGregor and Ryan Jones. The evidence of Bullen’s meetings at his residence and in Montreal leaves an available inference that the conspiracy would likely have included Bullen with other sources of cocaine purchases.

120When I now turn my mind to specifically exclude those classes of communications and specific communications that I have deemed inadmissible, I conclude that there continues to be an abundance of evidence to conclude that the general conspiracy alleged in Count #1 has been proven by the Crown beyond a reasonable doubt. I specifically reject the position of the Defence that David Bullen’s role was limited to the smaller conspiracies that involved Côté and VG and then that he only aided and abetted the conspiracy between Côté, VG and Perron for Buys #1, 2 and 3. To the contrary, I find that the Police Agent buys were nothing other than individual transactions with certain members of the larger conspiracy. They all followed the same pattern with the cocaine originating from either Bullen or Côté, going to the mid-level dealer VG and then to the Police Agent as the ultimate purchaser. While the quantity of cocaine may be larger than other transactions involving McGregor and VG, they all form part of the larger conspiracy.

121When considering the larger conspiracy and David Bullen’s membership in it, I am satisfied that his membership has been proven by the Crown, beyond a reasonable doubt, for the following reasons:

a. The surveillance evidence clearly establishes David Bullen’s relationships with each of the members of the conspiracy, other than Pedneault. I highlight the following: i. the frequency and timing of meetings surveyed with Michel Côté is obvious and there is no other reasonable inference that can be drawn by the admissible evidence. I have considered the evidence of Bullen’s other business activities and if they could explain the relationship between Bullen and Côté and I conclude that there is no other reasonable innocent inference available; ii. the obvious manner in which Bullen’s meeting with Perron on September 19, 2013 solves the supply problems of the conspiracy, immediately, is a clear indication of the role Bullen played in the conspiracy. While I accept that his level of activity in the conspiracy is less than for Côté, this is easily explained by the fact that throughout Project Adelaide, Bullen considered himself “hot”. He was well aware of the police surveillance as a result of various events such as finding the vehicle tracking device, the May 24, 2013 compromise and the instances during surveillance where he challenged undercover officers. He also confirmed it himself in various intercepted communications such as his discussion with J.D. Kirby; iii. the admissible evidence about Jordan McGregor and how he was able to get a meeting with Bullen two days after the Jeep Probe when things were not going well for McGregor demonstrated Bullen’s role in the conspiracy. Otherwise, there is ample admissible evidence of McGregor’s role dealing with Côté, Ethier and Valin for the trafficking of cocaine as part of the conspiracy; and iv. the admissible evidence about Ryan Jones and how it is obvious that Côté and Ethier stepped into Bullen’s role with Jones when Bullen was out of the country is further evidence of Bullen’s role in the conspiracy, a role which was not evident through the regular surveillance of Bullen as he was much more careful in his dealings with Jones, Wells and Campbell. I have considered the nature of the friendship and other business activities between Bullen and these three individuals but particularly Ryan Jones. I am unable to conclude that there is an available innocent inference to suggest that Bullen was not responsible for the delivery of product and collection of money from Jones, Wells and Campbell. Côté simply filled the void when Bullen was away. In addition, Jones was clearly involved in accompanying Bullen to various meetings with VG, Côté, Edwards and others, which confirm his role in the conspiracy. b. The absence of evidence linking Bullen to Pedneault does not remove Pedneault as a member of the larger conspiracy. He is simply one of Côté’s suppliers who may or may not have been known to Bullen. Even if Pedneault were not a member of the conspiracy involving Bullen, it does not change the nature of the conspiracy alleged in Count #1. It would only remove one supplier. c. The communications intercepted by the Police Agent clearly demonstrate how David Bullen considered himself part of those benefitting from the Police Agent buys. He clearly refers to the $2,000 “we” will make in the conversation with Côté and Edwards in Montreal on October 9, 2013. He is part of the discussion with VG and Edwards on January 8, 2013 when VG summarized the profit “we” will make. In addition, Bullen demonstrates his role in taking on the collection of the debt with VG during the Montreal meeting with Côté and Edwards. d. What is also clear from the intercepted communications involving Bullen is that he was in the process of withdrawing from the conspiracy but this had not yet been done given his ongoing involvement to the end of Project Adelaide and the meetings with Perron and then Côté and Edwards in Montreal in September and October of 2013. While Bullen may have been saying that he was done or that he was staying away for the sake of the members such as Perron, he had not yet done so.

122I conclude that the Crown has met the onus of establishing the conspiracy alleged in Count #1.

Count #2: Trafficking of cocaine with Côté and VG

123The definition of “traffic” is contained in section 2 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “CDSA”). The definition includes to sell, administer, give, transfer, transport, send or deliver the controlled substance, and includes any offer to do any of the aforementioned.

124Section 5(1) of the CDSA makes it an indictable offence to traffic in any of the substances contained in Schedule 1 of the CDSA.

125In R. v. Neal, 2010 ONCA 281, [2010] O.J. No. 1518 (ONCA) at para. 26 the Court of Appeal stated that the definition of traffic casts a very wide net to facilitate the prosecution of individuals who participate in the trafficking of narcotics.

126As stated by the Crown in argument, Counts #2 and #3 relate to the transactions that occurred between the Police Agent and VG with the assistance of David Bullen. There are several meetings prior to some of these transactions, particularly Buys #2 and #3, which allow for the reasonable inference that the cocaine used for these transactions was supplied by either Côté or Bullen, but likely Côté. Regardless, it was supplied for what I conclude are regular transactions that form part of the overall conspiracy.

127I agree with the position of the Defence that the evidence clearly establishes that David Bullen also aided and abetted in the trafficking of cocaine with Côté and VG to the Police Agent in respect of Buys #1, #2 and #3 as Bullen clearly indicated to VG that he would direct Côté to supply the ½ kilo purchases by the Police Agent. However, I have concluded that his role is not limited to aiding and abetting.

128With respect to Buys #4 and #5, I have considered the submission by Defence that the Crown has not met their onus in respect to these transactions. I have considered the following evidence:

a. the intercepted communications between the Police Agent and VG on July 26, 2013, which suggests that Bullen is not involved in Buy #4; b. while there is some evidence to support that VG may have had another supplier of cocaine, it is probable that the cocaine used for Buys #4 and #5 was cocaine previously received from Côté that VG diluted; c. when in Montreal, Bullen refers to Edwards as the person who purchased the ½ kilos – he does not seem to be referring to the smaller quantities of Buys #4 and #5; d. the intercepted conversation between Bullen and Edwards on July 5, 2013 suggests that VG may not have been in good standing with the members of the conspiracy. It is apparent from the surveillance that the frequency of visits by Bullen and Côté to Bayshore from July 5, 2013 to October 16, 2013 is significantly reduced from what it previously was although VG may have been away at times. Ultimately, this becomes a very obvious on October 8, 2013 when Côté threatens VG in regards to his debts and then the next day, Bullen agrees to look after the collection issue; e. the timing of Buy #5 is just after the Jeep Probe where Jones and McGregor complain of the lack of available product. Furthermore, there are significantly fewer meetings between Côté and Ethier and the runners for Perron and Pedneault for the supply of cocaine for Buys #4 and #5; and f. the quality of the cocaine for Buys #4 and #5 is significantly lower than the other transactions.

129While I am of the view that the cocaine used for Buys #4 and #5 probably came through the conspiracy and was simply diluted by VG, the above evidence leaves me with a reasonable doubt that those transactions were conducted by VG outside of the context of the conspiracy and without the assistance, encouragement or knowledge of the members of the conspiracy and that David Bullen was therefore not involved in the trafficking or possession of cocaine for Buys #4 and #5. However, the Crown has met its onus for Buys #1, #2 and #3 and these are sufficient for a finding of guilt on Count #2.

Count #3: Possession of cocaine with Côté and VG

130Section 5(2) of the CDSA provides that “No person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV”. Cocaine is a substance included in Schedule I.

131In order to secure a conviction for this offence against either accused under the indictment, the onus is on the Crown to prove each of its following elements beyond a reasonable doubt:

(1) that the accused was in possession of the substance of cocaine; (2) that the accused knew that the substance was cocaine, and (3) that the accused had possession of cocaine for the purpose of trafficking in it.

132Counsel generally agree that the central issue for this charge is that of possession, which is the first of the three elements of this offence that I enumerated earlier. The first question, simply put, is whether the Crown has proven beyond a reasonable doubt that the accused, David Bullen was in possession of the cocaine used for Buys #1, #2 and #3.

133Possession is a defined term under s. 4(3) of the Criminal Code. It reads:

(a) a person has anything in “possession” when he has it in his personal possession or knowingly: (i) has it in the actual possession or custody of another person, or (ii) 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.

134In short, possession can be in three possible forms:

(1) actual or personal possession; (2) constructive or attributed possession; and (3) joint possession.

135Dealing first with constructive possession, a person who knowingly has a substance in some place, or in the possession of some other person for the use or benefit of him/herself, has that substance in his/her possession, provided that he/she has some degree or element of control over that substance. Knowingly means that the accused is aware of the possession or custody of the substance by another, or in another place, and is not acting through ignorance, mistake or accident: see R. v. Sampson, 2009 NSSC 133 at para 21.

136As for joint possession, there are circumstances in which more than one person can have possession of a substance at the same time. Where any one of two (or more) persons, with the knowledge and agreement of the other(s), has a substance in his/her possession or custody, both of them are in possession of that substance, provided that he/she has some control over it. Knowledge and agreement by the other who is not in actual possession of the substance is essential. Mere indifference is not enough: see Sampson at para. 22.

137Bearing these principles in mind, I now turn to the question of whether the Crown has proven beyond a reasonable doubt that the cocaine used for Buys #1, #2 and #3 was in the possession of David Bullen as alleged.

138While the Defence states that the Crown has not met its onus to establish possession, it argues that this charge would be “kienappled” in any event by the finding of guilt on Count #2.

139As David Bullen was never found in possession of any cocaine, the Crown must establish either constructive or joint possession.

140The Crown relies on R. v. Miller, [1984] B.C.J. No. 1491 (BCCA) in support of its position that where individuals are involved in a joint enterprise, the common intention to carry the offence is sufficient to establish possession, if it is established or can be inferred from the evidence that any one of the co-actors was in personal possession.

141Further, as set out in R. v. Venneri et al., 2012 SCC 33, if one co-conspirator is in possession of an unlawful substance, for the benefit of the conspiracy at large, his fellow co-conspirators may also be in constructive possession of this unlawful substance provided that the Crown can establish a nexus that the drugs seized bare a relation to the conspiracy in question.

142The evidence relevant to possession for Buys #1, #2 and #3 is as follows:

a. Bullen was going to direct Côté to supply the Police Agent with the requested ½ kilo for Buy #1; b. within a week following Buy #1, both Côté and Bullen visited Bayshore; c. on February 6, 2013, the day before Buy #2, Côté was at Bayshore, Côté was at or near the Bullen residence and Bullen was at Bayshore; d. on February 26, 2013, the day before Buy #2, Côté was at or near the Bullen residence and Côté was at Bayshore; and e. on March 3, 2013, the Police Agent met with David Bullen at the Bullen residence and complained of the quality of the cocaine. There is no indication that Bullen expressed any surprise about the timing of the visit being a week after Buy #3.

143The above evidence leads me to conclude that David Bullen was aware of Buys #1, #2 and #3, that he was either directly involved in those purchases given his activities that were surveyed or that he aided and abetted in the realisation of those transactions. I am satisfied that he had knowledge of them, he consented to them and given his role as a co-conspirator, the court may conclude that he had constructive possession of those drugs as the drugs seized which were either in the possession of Bullen or Côté and then to VG. The drugs were delivered to the Police Agent as part of a transaction which results from the conspiracy established under Count #1. This is sufficient for a finding of guilt on Count #3.

Count #4: Directing on Behalf of a Criminal Organization

144David Bullen is charged pursuant to section 467.13 of the Criminal Code: “Instructing the commission of an offence for a Criminal Organization.” The provision reads as follows:

Instructing commission of offence for criminal organization

467.13 (1) Every person who is one of the persons who constitute a criminal organization and who knowingly instructs, directly or indirectly, any person to commit an offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, the criminal organization is guilty of an indictable offence and liable to imprisonment for life.

Prosecution

(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that (a) an offence other than the offence under subsection (1) was actually committed; (b) the accused instructed a particular person to commit an offence; or (c) the accused knew the identity of all of the persons who constitute the criminal organization.

145The Supreme Court in R. v. Venneri, 2012 SCC 33 explained the concept of “criminal organization” in the following passage by Fish J.:

25. To secure a conviction under s. 467.13, the Crown must prove, as a preliminary matter, the existence of a criminal organization and Venneri's membership in it. "Criminal organization" is defined in s. 467.1 as follows:

• 467.1 (1) ...
• "criminal organization" means a group, however organized, that
• (a) is composed of three or more persons in or outside Canada; and
• (b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.
• It does not include a group of persons that forms randomly for the immediate commission of a single offence.

26 The parties disagree as to the degree of organization or structure required to support a finding that a group of three or more persons constitutes a criminal organization under the Code.

27 Some trial courts have found that very little or no organization is required before a group of individuals are potentially captured by the regime: see R. v. Atkins, 2010 ONCJ 262; R. v. Speak. Others, properly in my view, have held that while the definition must be applied "flexibly", structure and continuity are still important features that differentiate criminal organizations from other groups of offenders who sometimes act in concert: see R. v. Sharifi, [2011] O.J. No. 3985 (QL) (S.C.J.), at paras. [page221] 37 and 39; R. v. Battista, 2011 ONSC 4771, at para. 16.

29. … I agree with Mackenzie J.A. that a flexible approach favours the objectives of the legislative regime. In this context, flexibility signifies a purposive approach that eschews undue rigidity. That said, by insisting that criminal groups be "organized", Parliament has made plain that some form of structure and degree of continuity are required to engage the organized crime provisions that are part of the exceptional regime it has established under the Code.

146The Crown has stated that in its simplest terms, a criminal organization is:

a. a group of three or more persons; b. that has as one of its main purposes or main activities the facilitation or commission of one or more serious offences; and c. that if committed, would result in a material benefit including financial benefit by any of the persons who constitute the group.

147The Crown highlights that there must be some degree of organization but it does not need to conform to “stereotypical” criminal organizations. There is no issue that the Crown has established the criteria of serious offence or financial benefit.

148The Crown also relies on R. v. Saikaley, 2017 ONCA 374 at para. 119 and the direction of the Court of Appeal for Ontario that the guiding question in assessing whether a group of individuals forms a criminal organization is whether the group “pose[s] an elevated threat to society due to the ongoing and organized association of their members”.

149As the Court of Appeal stated in Saikaley, every criminal organization will involve a conspiracy but not every conspiracy is a criminal organization.

150The Defence states that Venneri is valuable to the current case in that it draws a clear distinction between a “criminal organization” and drug traffickers who regularly, over long periods of time, deal with each other during the course of executing their independent “businesses”. The Defence also provided a review of the principles from the leading cases relating to criminal organizations:

a. The “criminal organization” provisions in the Code target activity that is separate and distinct from conspiratorial and party related liability. Courts must be on alert to ensure that co-conspiratorial or party liability does not become conflated with the far more stringent and serious liability of involvement with a “criminal organization.”; b. Individuals involved in the trafficking of narcotics will, by the very nature of this clandestine activity, regularly deal with other “like-minded individuals.” Regular and long-term “business” arrangements between individuals involved in the drug trade is an insufficient basis to conclude that such individuals constitute a “criminal organization.”; c. Particularly salient factors that relate to whether individuals involved in the drug trade together constitute a “criminal organization” as opposed to autonomous associates include the following: a clear and consistent hierarchy; exclusive and continuous membership; dealing exclusively with members of the organization, or individuals approved of by the organization; external indicia that the associates are an organization (paraphernalia, regular group meetings, identification by others as an organization, etc); internal indicia that associates are an organization (recognition and reference by the associates themselves that they form a criminal organization); clear indicia of the group itself benefitting from the criminal acts (a shared pool of money, group records regarding drug transactions, group debt and group profit); and, recognition that errors or advantages accruing to one member accrue to the group as a whole.

151The Crown also relies highly on Venneri and Saikaley to support its contention that the members of this conspiracy or some of them constitute a criminal organization. In Saikaley, the Court stated at para. 121: “even small drug operations, where they involve a division of labour, temporal continuity, and an intention by the members to advance their illicit goals through the organization”.

152The Crown advances the theory that in the present circumstances, a finding of the existence of a criminal organization is available involving David Bullen and any two of Côté, Ethier, VG, Jones or McGregor.

153Even in taking a flexible approach to my analysis without relying extensively on formalities that may be common for some obvious criminal organizations such as biker gangs, I conclude that the admissible evidence fails to establish the existence of a criminal organization beyond a reasonable doubt. I say so for the following reasons:

a. It is apparent that there are relationships between certain co-conspirators that are closer than others such as Côté and Ethier and Bullen and Jones. Particularly in the case of Ethier, it would not be difficult to conclude that Ethier worked for Côté. There is no evidence to support the thought that Ethier was working for Bullen or that Bullen stood as one of his employers. The same can certainly be said of Jones who would never have believed that he answered to anyone else than Bullen. I conclude that the synergies present between Côté-Ethier and Bullen-Jones were entirely distinct one from the other; b. the evidence also supports that Côté had no apparent authority to collect from Jones, Wells or Campbell without either involving Bullen or McGregor to convince those three that they needed to pay Côté in furtherance of the conspiracy; c. the obvious signs are not present: the group of co-conspirators had no name, insignia, customs, rituals or other indicia of an organizational structure; d. there was no external recognition by third parties that an organizational structure existed. While some individuals may have viewed Bullen as being in the background of the trafficking activities, I am unable to conclude that this went beyond the conspiracy to traffic; e. the evidence leads me to conclude that there was financial independence between Bullen and Côté. While Bullen supported Côté in dealing with Perron by providing guarantees for Côté, there was no evidence that Bullen assumed responsibility for Côté’s debts with Perron or Pedneault. At no time did Perron or Pedneault attempt to go over Côté’s head to seek payment from Bullen. Perron simply held out on supplying until he received sufficient guarantees from Bullen to continue advancing cocaine. Bullen took the position that Côté’s debts were his own and Bullen had no responsibility for them. f. the evidence is clear that there was complete financial independence with the mid-level traffickers such as VG, McGregor and Jones. There were no shared profits or group record keeping for profits and debts. g. the purchases made by the Police Agent were independent of any existing organization. The Police Agent was free to purchase from whom he wanted, however I recognize that it was Bullen’s belief that the cocaine was being moved out of town; h. there was an absence of evidence showing any group benefit of these traffickers working together as an organization; i. although there are indicia of some territorial control, there are equal indicia of an absence of territorial control in the historical evidence of the Police Agent; j. there is an absence of loyalty within the group. The intercepted conversations where Bullen comments on Côté reveal that Bullen did not take ownership of Côté’s concerns and frustrations and felt that he simply had to look out for his own problems. The absence of loyalty went beyond that in the case of VG where Côté had no hesitation to threaten VG with being visited by someone to collect his debt; and k. while I can clearly say that this was not the type of ad hoc group of individuals who periodically cooperated in the obtaining and selling drugs as was the case in R. v. Battista, I am unable to conclude that it went beyond a group of drug traffickers who regularly, over a long period of time, dealt with each other during the course of executing their independent businesses.

154Even if I consider some of the intercepted communications that I have deemed inadmissible such as the utterances of Côté and McGregor with respect to the longevity of their work with Bullen, the fact that Côté questioned if he had been “fired” and McGregor wanting his paper to purchase cocaine elsewhere, the evidence as a whole still leaves me with a reasonable doubt that this group of drug traffickers had the necessary minimal structure to be considered a criminal organization.

155There is no doubt that this group of drug traffickers pose a threat to society due to their illicit activities. However, I conclude that it is not the type of elevated threat due to the ongoing and organized association of these conspirators which was envisaged by the Court of Appeal in Saikaley. I find David Bullen not guilty of Count #4.

Counts 5, 6 and 7: Conspiracy to Traffic Cocaine, Traffic of Cocaine and Possession of Cocaine with Côté, Edwards and Stephen Burns from May 14, 1997 to December 18, 2012

156Having already set out the applicable law for these offences under Counts #1, #2 and #3, I propose to deal with them together rather than separately.

157It would be rare indeed to have a police agent testify who has no or a limited criminal past. There is a certain expectation that in order to be an effective police agent, one must have been involved in a fair amount of criminality to obtain the necessary knowledge to testify effectively.

158However, I suspect that it may be challenging to match Jeff Edward’s significant criminal history, repeated instances of dishonesty with police, his intentional failure to fully account for his criminal history with police and the evasive manner he testified when challenged by reverting to hypothetical answers about his own behaviour.

159I am left with the inescapable conclusion that to base any conviction on the uncorroborated testimony of Edwards would be very dangerous. I have thus considered his evidence and looked for evidence from other witnesses which confirms Edwards’ evidence.

160Jeff Edwards views an intentional omission of relevant information to be different than lying. This is concerning to the Court.

161Previously in these reasons, I have already concluded that Edwards was not credible in the manner in which he provided the information to handlers on his previous dealings with Michel Côté. There is, however, some corroborating evidence that Edwards and Côté had previous dealings together, such as David Bullen’s reference to Edwards knowing Côté in their October 7, 2013 conversation and the reaction of Michel Côté when he met Edwards in Montreal on October 9, 2013. However, the circumstances of their previous dealings are in doubt. Also, the extent of David Bullen’s participation in any previous cocaine transactions between Burns and Côté or Edwards and Cote has not been clearly established. The Crown relies in part on the surveillance evidence of Bullen and Côté going to the Burns’ residence during Project Mayday in support of the inference that the same type of trafficking would have been going on at the time Edwards says he saw Cote deliver cocaine to the Burns’ residence. However, I am unable to accept Edwards’ evidence that he saw Côté deliver cocaine to the Burns residence.

162I conclude that Edwards’ testimony concerning drug transactions between Michel Côté and Stephen Burns is unreliable. While I accept that there is surveillance evidence placing Côté at the Burns residence on numerous occasions during Project Mayday, it does not suggest activities that are not otherwise encompassed in the Count #1 conspiracy if the Burns residence was simply another destination on his normal run.

163These historical charges also rely on the evidence of Jeff Edwards and his personal drug transactions with David Bullen. He would attend with Bullen on a weekly basis to purchase cocaine when Bullen resided on Wagon Drive. After Bullen moved to Rideau Ferry, the transactions took place through Chris Tessier. He provided no specific reference to any particular transaction and simply referred to them as being at the ounce and multi-ounce level. This evidence is somewhat corroborated by the fact that David Bullen clearly had a significant level of trust in Jeff Edwards as he immediately gave Edwards access to ½ kilo cocaine transactions when Edwards approached him in January 2013. In order for this to happen, I agree with the Crown that it demonstrates that Bullen and Edwards must have had a significant history of criminality and likely one that involved cocaine trafficking. I conclude that it is highly probable that Edwards and Bullen would have conspired to traffic cocaine together in the past.

164Overall, the Crown must establish these offences beyond a reasonable doubt. I highlight the following:

a. on the evidence of Jeff Edwards, the Crown contends that the conspiracy to traffic between Bullen, Côté, Edwards and Burns started in 1997 and continued until December 18, 2012. They propose that there would have been various other participants in the conspiracy over the years; b. Edwards did not provide any specific dates or references to drug transactions with Bullen. He says he met Côté twice during that period for 1 kilo of cocaine transactions with Côté in Montreal and Kanata and that he regularly purchased from Bullen; c. on October 7, 2013, Bullen asks Edwards if he remembers the “Frenchman” and Edwards responds “Who Michel” and then says “The guy we met in Montreal” and Bullen responds “Yeah”; d. in his statements to police, Edwards did not advise police that Bullen was present in Montreal when he purchased the kilo of cocaine from Michel Côté. He stated that the money was to be given to Dave. However, on October 7, 2013, Edwards said: “The guy we met in Montreal”; e. in his statement to police about the delivery of cocaine to the Burns residence, Edwards did not advise them that it was Michel Côté who delivered the cocaine. However, on October 7, 2013, he knew “Michel” by name in his discussion with Bullen. I conclude that there is uncertainty about Edwards’ previous dealings with Côté; f. the Crown relies on the debt list found in the Burns residence on June 27, 2012 with Côté’s handwriting on it. However, it is unclear as to the reason why Burns would have had this document in his residence. I accept that it was likely for debt collection related to drug transactions; g. the Crown relies on the fact that Bullen was in possession of the ITO related to the search warrant for Burns’ residence; and h. finally, the Crown relies on the significant Project Mayday surveillance, which is consistent with the surveillance in Project Adelaide and which is clearly indicia of drug trafficking.

165In the end, I conclude that it is highly probable that David Bullen’s role in drug trafficking did not simply begin at the start of Project Adelaide. On numerous occasions, Bullen comments that he is “getting out”. The inference is clear that he is getting out of something that has been ongoing. However, as agreed by the Crown, Counts #5, 6 and 7 rely on the testimony of Jeff Edwards and the implication Michel Côté and Stephen Burns to establish the conspiracy. Edwards’ testimony about the delivery of cocaine to the Burns residence and the kilo purchases from Côté lacks credibility and reliability. In the absence of this evidence, the strength of the Crown’s case is limited to Edward’s evidence about his personal cocaine purchases from Bullen and the similar pattern of surveillance from Project Mayday.

166I have already stated that absent corroboration, it would be dangerous to convict David Bullen solely on the evidence of Jeff Edwards. I am left with a reasonable doubt by it. I accept that a conspiracy to traffic can be established between two individuals such as Bullen and Edwards. We could even add Chris Tessier to that conspiracy if I accepted Edwards’ evidence on his personal purchases from Bullen. However, this would be a conspiracy that is entirely different than the conspiracy alleged in the Indictment and the principles enounced in R. v. Cotroni, [1979] 2 S.C.R. 256 would apply as the conspiracy as charged has not been proven.

167Finally, the pattern of surveillance during Project Mayday is evidence that the conspiracy to traffic identified in Count #1 probably extended back at least that far but it is not evidence on its own that can lead to a separate conviction as set out in the Indictment.

168I conclude that the Crown has not met its burden with respect to Counts #5, #6 and #7.

Disposition

169For the reasons stated herein, I find David Bullen guilty of Counts #1, #2 and #3 on the Indictment. I find him not guilty of Counts #4, #5, #6 and #7 on the Indictment.

Justice M. Labrosse

Released: 2018/07/31