Court File and Parties

COURT FILE NO.: CR-18-90000223-0000 DATE: 20190614 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ADRIAN BISSOON Accused

Counsel: Elizabeth Bellerose, for the Crown James Mencel, for the Accused

HEARD: April 9, 2019

B.A. ALLEN J.

Reasons for Decision on Sentence (Gardiner Hearing Application)

The Law

[1] Section 723(1) of the Criminal Code provides that before sentence is pronounced the sentencing judge is required to allow Crown and defence counsel an opportunity to make submissions on any facts relevant to sentence. The court shall hear any relevant evidence presented by the parties.

[2] The rules on the admissibility of evidence in a sentencing hearing are more relaxed than in trials, the reason for this being that the presumption of innocence is not at play. Sentencing judges can have a broad range of information before them to achieve the objectives under the Code. It is common ground that facts in dispute are not evidence. It is only when the facts are non-contentious that the judge can accept a representation by counsel as fact.

[3] On a guilty plea, a judge may rely on facts that are agreed upon by the parties. The Crown will read the facts alleged and the defence must be given an opportunity to deny or agree with the allegations. The usual process involves the Crown reading-in enough facts to make out the essential elements of the offence. A guilty plea is only an admission of the essential elements of the offence: R. v. Gardiner, [1982] 2 S.C.R. 368, at pp. 330 and 331 (S.C.C.).

[4] A Gardiner hearing is a hearing of oral evidence from the Crown and defence that is conducted at sentencing where there is a dispute between the parties as to the facts on a guilty plea. This hearing is conducted in accordance to rules set down in the Code at s. 724(3).

[5] Section 724(3) of the Code provides guidance for the resolution of disputed facts where any relevant facts put to the sentencing judge are in dispute. This provision requires in part that a party seeking to rely on a relevant fact has the burden to prove that fact. In determining sentence, the court has to be satisfied on a balance of probabilities of the existence of the disputed fact. The Crown is required to establish, by proof beyond a reasonable doubt, the existence of any aggravating fact.

[6] Where there are contested facts, the issue should be resolved by ordinary legal principles that govern criminal proceedings including resolving relevant doubt in favour of the offender. Where the disputed evidence is circumstantial the sentencing judge must turn their mind to whether they are satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is the view being advanced as to the disputed fact: R. v. Griffen, 2009 SCC 28, at para. 33 (S.C.C.). This allows the sentencing judge to infer a disputed aggravating fact from the undisputed facts provided the judge is convinced of it beyond a reasonable doubt: R. v. Gardiner, at p. 415.

The Plea

[7] Adrian Bissoon was arrested on January 19, 2019. He was charged on a 14-count indictment in connection with five incidents of trafficking cocaine to an undercover officer between October 2016 and January 2017 contrary to s. 5(1) of the Controlled Drugs and Substances Act (“the CDSA”). He was also charged with offering, during the same period, to sell to the undercover officer a prohibited firearm contrary to s. 99(1) of the Code. He was further charged with possession of proceeds of crime obtained in association with drug trafficking and the offer to sell the firearm contrary to s. 354(1) of the Code.

[8] On April 8, 2019, Mr. Bissoon pleaded guilty to three counts of trafficking cocaine (counts 7, 9 and 11) and the charge of offering the firearm for sale (count 14).

The Evidence Before the Court

[9] The drugs sold to the undercover officer were powder cocaine in amounts of 2.36 grams to 7 grams. All transactions were conducted at the same location, 2435 Kipling Ave., except one transaction on January 5, 2017 that was done outside a grocery store but 2435 Kipling Ave. was the initial meeting place. I heard evidence from Officer Greaves who was the undercover officer involved in the investigation. He referred to his memo notes to refresh his memory about his contacts with Mr. Bissoon. The pertinent events are as follows:

• October 16th officer bought 2.36 grams of cocaine from Bissoon for $220;
• October 24th, November 2nd Bissoon tells officer only crack is available and to give notice when he wants powder cocaine;
• November 3rd, 4th and 5th officer contacts Bissoon for purchase of powder cocaine and Bissoon says he is out of product, left product at home; officer missed call; officer buys 3.42 grams of cocaine for $220; Bissoon quotes an amount for powder cocaine saying he will put some aside for the officer; officer testified that on November 5th Bissoon advises him not to cut the cocaine in order to get a better customer base;
• November 5th Bissoon mentions “machine and spraying” or shooting someone who challenges him; officer asks if he sells firearms; Bissoon quotes a price for “Canon 45s, 38s and 9s”; officer testified his experience and training gives him expertise in street slang on firearms; officer asks if a body is attached, i.e., whether shootings attached to firearm; Mr. Bissoon states that type of firearm would be cheaper; Bissoon asks what officer looking for; officer says a 9 mm; Bissoon says he will message officer in coded language “I have a 45 year old girl ready”; the officer testified Bissoon had no problem understanding the street language the officer used;
• November 14th, 15th officer and Bissoon were in touch by exchange of texts;
• November 23rd officer contacts Bissoon for powder cocaine and Bissoon tells him he does not have drugs with him. Bissoon asks and officer agrees and fronts $450 for 7 grams of cocaine; Mr. Bissoon returns and completes deal;
• November 25th officer asks about the “girl” (firearm); Bissoon says he can get one “with a body on it” right now; Bissoon gives asking price of $200; officer to let him know if he is interested;
• December 14th, 15th officer contacts Bissoon to buy a “Cuban” (¼ oz.) the next day; snow storm prevented the sale on December 15th;
• December 16th officer buys 7 grams cocaine for $450;
• December 16th Bissoon tells officer he beat someone and shows his hand which officer sees is swollen; officer asks about firearm and Bissoon says he knows of a “dirty” firearm (involved in a crime) for $2,500; tells officer price is unreasonable and says they would have to go to Windsor in March to get a firearm; officer testified he was aware through his undercover connections that Windsor was known for firearms crossing the border;
• January 4th officer contacts Bissoon about buying a “zip” (1 oz.) of cocaine for $1,650 and asks whether multiples would be at a reduced price; Mr. Bissoon advises it would be about $100 reduction per oz.; Mr. Bissoon then advised officer about how to sell product for more profit; officer ordered ¼ oz.;
• January 4th officer asks about firearm and Bissoon says he is not dealing until March and he would go get a firearm for each of them; officer asks about the “dirty” firearm and Bissoon asks how much officer willing to pay to which officer replied not much;
• January 5th they meet at same location but deal for 7 oz. at $450 is completed at grocery store; Bissoon discusses he wants to expand into heroin and crystal meth;
• January 5th Bissoon calls officer says he has something “sick” which officer testified meant something of interest to him; Bissoon tells officer he can get him a 350 Magnum today for $3,000 and said he bought one for himself yesterday but when he spoke to officer evening of January 4th he never showed firearm or mentioned buying a firearm; officer asked if it was the Windsor link and Bissoon said it was not; officer says he will not front the money;
• January 10th, 16th Bissoon calls and complains about quality of product; officer tells Mr. Bissoon quality of product is poor;
• January 10th Bissoon tells officer in the call that “bitch” (firearm”) was being held for him;
• January 17th officer calls, officer says again he wants firearm; Bissoon calls him back to arrange time for sale; officer again says he will not front money for firearm and wanted Bissoon to bring firearm to the deal;
• January 18th telephone contact between them to deal with powder cocaine and firearm; Bissoon said he would meet officer and would have firearm and drugs;
• January 19th officer contacts Bissoon to make sure drugs and firearm deal will go through; deal completed for 6.18 grams of cocaine for $450;
• January 19th Bissoon came to deal without the firearm; officer had asked for firearm twice and Mr. Bissoon agreed to bring it; officer agrees to put up half the money until Bissoon returns with the firearm at which time he would pay the balance; officer paid $1,600 instead of $1,500 and told Bissoon by text which Bissoon acknowledged by return text; officer tries to contact Bissoon by phone and text; last attempt at 6:33 p.m. with no success; Bissoon arrested in cab; police buy money for the firearm recovered and cellphone seized and number compared to the number used by Bissoon; no firearm was recovered.

[10] There is no dispute on the facts. The dispute rests in the interpretation of the evidence and whether the facts provide support for the Crown’s view that Mr. Bissoon was involved in a commercial drug trafficking operation and intended to sell a firearm to Officer Greaves thereby involving a firearm in his dealings with the officer.

The Parties’ Positions and Court’s Analysis

Drug Trafficking Operation

[11] The Crown sought to have the court consider the following aggravating facts in determining sentence. Mr. Bissoon pleaded guilty to three of the five trafficking charges and none of the proceeds of crime charges. The Crown takes the position that inferences can be drawn to establish the aggravating fact that Mr. Bissoon was involved in an active operation trafficking powder and crack cocaine which he hoped to expand to heroin and crystal meth. In the Crown’s further view the evidence supports the fact that Mr. Bissoon ran a commercial operation from which he made a living.

[12] The Crown points to the evidence that Mr. Bissoon was familiar with street slang in the drug world. Officer Greaves testified that he and Mr. Bissoon had no difficulty understanding each other when communicating in coded language and slang. Also showing the extent of Mr. Bissoon’s involvement in the trade, Officer Greaves testified that Mr. Bissoon talked about being involved as well in the production and sale of crack cocaine. Because of his involvement with crack cocaine, Mr. Bissoon stipulated that Officer Greaves give him notice for Mr. Bissoon to fill an order for powder cocaine. Mr. Bissoon also spoke of expanding his business to heroin and crystal meth.

[13] The more important point the Crown argued was that Mr. Bissoon actually completed five drug deals with Officer Greaves selling him first smaller amounts, 3.6 grams of cocaine, and then doubling the amounts to 7 grams in the latter transactions. There was organization to their dealings. They always met at the same meeting place. When arranging the deals Mr. Bissoon referred to his having to make contact with his “bro”, a person higher up in the drug hierarchy and to having to get back to the officer to let him know about the availability of product and when a deal could transpire.

[14] The Crown submitted that Mr. Bissoon showed further entrenchment in the drug world when he offered the officer advice to not cut the drugs with an agent so he could attain a better client base. As the Crown argued, it can be inferred that Mr. Bissoon was the back-end supplier for the officer who, according to the officer’s testimony, believed the officer was dealing the drugs he sold to him.

[15] Trafficking highly addictive drugs are approached on sentencing with punitive regard. The CDSA provides for mandatory minimum sentences when an offender is convicted of certain serious drug offences, including trafficking, when the charges involve drugs listed in Schedule I and Schedule II of the CDSA, particularly if a firearm or violence is involved. Cocaine is a Schedule I drug.

[16] Courts have also made distinctions on sentencing between levels of drug trafficking operations. Trafficking in drugs for a commercial purpose has attracted greater penal consequences. This type of activity has been viewed as an aggravating factor on sentencing. Lower end trafficking to support an addiction for example has attracted less restrictive measures on the view that the cause of the commission of the offence is to support a drug addiction which is regarded as a health-related issue: R. v. Bui, at para. 2 (ONCA) and R. v. Woolcock, [2002] O.J. No. 4927, at para. 5 (Ont. C.A.).

[17] The defence argues competing inferences to those cited by the Crown can be raised in relation to the drugs.

[18] It is the defence’s view that there is insufficient evidence to prove beyond a reasonable doubt that Mr. Bissoon was actually involved in a substantial commercial drug enterprise. The defence posits that much of Mr. Bissoon’s talk about drug deals with the undercover officer was pure puffery, Mr. Bissoon attempting to falsely enhance his profile in the drug trade. The suggestion is that he was not at the level of drug trafficking that he pretended.

[19] The defence points to the various instances when drug deals were set up by Mr. Bissoon that did not materialize on the dates and at the times he scheduled with the officer. The suggestion here is that Mr. Bissoon’s activity was more amateurish. The defence submitted that Mr. Bissoon’s knowledge of coded language and slang in the street drug culture could have been acquired through the internet, from rap music and television.

[20] I do not accept the inferences the defence asks the court to draw. From my review of the evidence, I am satisfied the evidence overwhelmingly establishes beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that Mr. Bissoon was an active commercial level cocaine dealer. The evidence of Officer Greaves and Crown counsel’s arguments lead me to the conclusion that this is the only reasonable inference that can be drawn from the facts. I will therefore consider Mr. Bissoon’s involvement in a commercial drug trade as an aggravating factor on sentencing.

The Offer to Sell a Firearm

[21] The Crown asked the court to consider a further aggravating fact, the involvement of a firearm in several discussions between Officer Greaves and Mr. Bissoon. The Crown takes the position the circumstantial evidence supports the inference that Mr. Bissoon offered to sell the firearm. And even though he did not sell the firearm to Officer Greaves, he had the intention to sell it.

[22] Courts have also stressed the toxic combination of drugs and guns and the pernicious and enduring threat to public safety and the welfare of the community they pose. “The social ills, including associated criminal conduct fuelled by this combination, is now well recognized”: R. v. Wong, 2012 ONCA 767, at para. 11 (Ont. C.A.).

[23] Crown counsel points to the numerous conversations Mr. Bissoon had with the officer from November 5th to January 19th when he was arrested trying to set up a sale. Crown counsel points to Mr. Bissoon’s seeming facility with street slang about firearms, about his knowledge of Windsor being a source of cross border firearms and Mr. Bissoon’s conversation in which he settled on being able to sell the officer a 350 magnum.

[24] Crown counsel also points to Mr. Bissoon’s posturing during some of the conversations where he speaks about using a firearm to deal with disrespect and challenges to his operation as giving life to an intention to sell the firearm to the officer. Mr. Bissoon seemed knowledgeable about pricing for different types of firearms and familiar with the differentiation in prices for “dirty” guns as opposed to guns that have not been used in crime.

[25] It is the defence’s view that there is also insufficient evidence to support the inference that Mr. Bissoon was truly intending to sell the firearm to the officer. The competing inference the defence wishes the court to consider is that Mr. Bissoon’s talk about firearms was simply Mr. Bissoon attempting to impress who he thought was another drug dealer by using his access to firearms to increase his prowess in the drug world.

[26] I accept the defence’s position.

[27] From November 5th to January 19th Mr. Bissoon made representations to the officer that he would be able to obtain a firearm for the officer. He never did sell him a firearm. But that is not the only fact that points away from intention. Mr. Bissoon’s actions leading to the failure to produce the firearm lend support to the inference that he had no intention to sell.

[28] On several occasions Mr. Bissoon said he would be carrying the firearm to planned meetings with the officer and failed to do so. Mr. Bissoon also on a number of occasions changed the prices and the type of firearm he said he could get for the officer. Those facts combined with never producing a firearm for sale I find point away from intention.

[29] As well, Mr. Bissoon purported that he bought a firearm for himself on January 4th and when he met the officer that evening he never produced the firearm nor mentioned this to the officer. With so many failures to sell a firearm one might expect Mr. Bissoon to have shown his firearm to the officer as proof that he meant business or at least mention that he had purchased one. But he did not.

[30] The officer called Mr. Bissoon twice on January 19th to check about the firearm and Mr. Bissoon assured him he was carrying it with him. When he was arrested that day the police found no firearm. But they did find the money the officer gave him to purchase it.

[31] Officer Greaves testified he is familiar with people in the drug world who attempt to present an image that misrepresents their power in that world such as where it concerns their involvement with firearms. The officer also agreed that it is not difficult for people to obtain information from the internet, social media, rap music and television shows about types of firearms, street slang, coded language, selling prices and where to purchase firearms. So Mr. Bissoon’s familiarity with the ways of the world of illegal firearms is not alone proof that he intended to sell a firearm.

[32] I find the circumstantial evidence can reasonably support a competing inference that Mr. Bissoon did not intend to sell a firearm to the officer. I find that is the only rational inference that can be drawn from the circumstantial evidence.

[33] The Crown has not proven beyond a reasonable doubt that Mr. Bissoon intended to sell a firearm and for that reason the involvement of a firearm as a factor in Mr. Bissoon’s drug trafficking operation will not be considered as an aggravating factor on sentencing.

Disposition

[34] I will consider Mr. Bissoon’s commercial drug trade as an aggravating factor on sentencing. I will not consider the offer to sell the firearm as an aggravating factor.

B.A. ALLEN J. Released: June 14, 2019