Court File and Parties
COURT FILE NO.: CR-18-00000034-0000 DATE: January 7, 2020 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – DEREK SHOREY Defendant
Counsel: James Meloche and Colleen Liggett for the Crown Susan Jane von Achten, for the Defendant
HEARD: May 13, 14, 15, 16, 21, 22, 24 July 22, 23 and 24 Written Submissions October 4, 2019
Reasons
Tausendfreund
OVERVIEW
[1] The accused (“Shorey”) is charged in a 2-count indictment that he trafficked cocaine in the City of Belleville and elsewhere between January 16 to January 25, 2017 and on February 17, 2017.
[2] Shorey did not testify. The bulk of the evidence came from a police agent, Ryan Gaffney (“Gaffney”) who represented himself to targets in this operation as a well-connected person in the illicit drug culture in the Belleville area and elsewhere. The uncontradicted evidence is that one Justine Freeman (“Freeman”) sold cocaine to Gaffney on three occasions in January and February 2017. Freeman pleaded guilty and was sentenced. He did not testify directly. The evidence in this trial came from Gaffney based on his recollection and notes from hours of surreptitiously recorded conversations between Freeman and Gaffney. This intercepted evidence purports to indicate that Freeman discussed with Gaffney details of Freeman’s drug dealing enterprise and Shorey’s alleged involvement in it, as Freeman’s assistant and/or partner.
[3] The central issue and nub of this case is the role, if any, played by Shorey in the above noted cocaine transactions between Gaffney and Freeman. As Freeman’s statements relating to Shorey’s purported involvement in Freeman’s drug dealing enterprise are hearsay, the legal question is whether these statements are admissible by virtue of the co-actor’s exception to the hearsay rule. This is generally known as the “Carter test”, based on the SCC decision of R. v. Carter, [1982] 1 S.C.R. 938 at para 11 and as amplified by the SCC in its decision of R. v. Mapara, 2005 SCC 23 at paras 7 and 8:
[7]…[such] evidence [is] admissible under an exception to the hearsay rule known as the co-conspirators’ exception which permits reception of evidence of what co-conspirators say out of court in furtherance of the conspiracy…
[8] The co-conspirator’s exception to the hearsay rule may be stated as follows:
“Statements made by a person engaged in an unlawful conspiracy are receivable as admissions as against all those acting in concert, if the declarations were made while the conspiracy was ongoing and were made towards the accomplishment of the common object”…[the] co-conspirators’ statements will be admissible against the accused only if the trier of fact is satisfied beyond a reasonable doubt that a conspiracy existed and if independent evidence, directly admissible against the accused, establishes on a balance of probabilities that the accused was a member of the conspiracy.”
CARTER TEST
[4] The Crown seeks to have Freeman’s intercepted communications with Gaffney admitted into evidence against Shorey under the co-actor’s exception to the hearsay rule. To that end, the Crown must satisfy the Carter test. As noted above, this consists of these 3 steps:
The trier of fact must first be satisfied beyond a reasonable doubt that the alleged common unlawful design existed;
Based on evidence directly admissible against the accused, the trier of fact must determine whether the accused was probably a member of or participant in the common unlawful design; and
The statements were made in furtherance of the common unlawful design.
STEP 1 OF THE CARTER TEST
EVIDENCE OF COMMON DESIGN TO TRAFFIC DRUGS
[5] At Stage 1 of the Carter test, the trier of fact must determine whether the Crown has proven the existence of the common unlawful design beyond a reasonable doubt. In that determination, the trier of fact must consider all of the evidence, including the hearsay evidence of the co-actor(s).
[6] At the stage of this first step of the Carter test, the trier of fact must hear and determine this question of whether the Crown has proven the existence of the common unlawful design beyond a reasonable doubt based on “all of the evidence”. [1]
[7] The evidence of Gaffney’s meetings with Freeman, as unchallenged by Shorey, I find to have been lawfully intercepted pursuant to a Part VI authorization. Unless stated otherwise, the reference to Gaffney’s evidence of his “face to face” discussions with Freeman are based on Gaffney’s recollection, the refreshment of his memory based on notes of these discussions made by Gaffney as soon as practicable following those discussions and from the transcript of those intercepted communications.
[8] I now turn to a review of these conversations:
August 3, 2016
[9] On August 3, 2016, Freeman told Gaffney that Freeman had tried handing over his drug connection to Shorey and had said to Shorey “…you can do this, just get it for yourself”.
[10] Freeman further told Gaffney during this conversation that some three weeks earlier, he had dropped his money off to his drug connection for the purchase of a one-half kilogram (“kg”) of cocaine, but that he, Freeman, had yet to travel to pick up the cocaine. He then had directed Shorey to go and pick up this cocaine for Freeman. The applicable part of the transcript of their conversation is as follows:
Freeman - So i/m definitely gonna be going…I might even go later today if not definitely going tomorrow…cuz I left my money…but I gotta go back and get it. Gaffney- Oh you just left it with him then told Shorey to go Freeman- Yeah…I just introduced him [Shorey] to the driver and I was like he’s gonna come pick it up
November 28, 2016
[11] Gaffney arranged a meeting with Freeman in Whitby. They met in a parking lot in Gaffney’s vehicle. The conversation included references to cocaine. They spoke about Freeman having picked up a kg of cocaine, but that half of it was already gone, which a third party had purchased. Freeman told Gaffney that Shorey was selling cocaine for Freeman, at the multi-ounce level of 4-5 ounces at a time. Excerpts of the transcript of their discussion now follows:
Freeman – I just…re-upped. Gaffney testified that “re-up” means to re-stock the cocaine supply. Freeman – Yeah I can still get it. Gaffney – I can get…even just a 9 pack off you. Gaffney testified that “9 pack” means 9 ounces of cocaine. Freeman – I just got one, but I think it’s gonna be gone. Gaffney – Um what do you think that you can do a full one for? Freeman – It’ll be the same. Gaffney testified that this meant that Freeman just picked up a full kilogram of cocaine, that it was already spoken for by other buyers and that the price for the full kilogram would be the same, that is $60,000 for a full kilogram. Freeman – or we’ll just split on one… Gaffney – uh, this guy wants a kinda wants a full one but. Freeman – Oh ok. Gaffney - I’ll see he might split on one he might. Gaffney testified that this meant that he and Freeman were discussing splitting a full kilogram of cocaine, but that Gaffney’s buyer preferred a full kilogram Gaffney - …is it just Shorey that’s Freeman - Yeah Gaffney - like so maybe ask Shorey cuz maybe I’ll just give like Jay his number or something that way Freeman – Yeah, see that’s the thing like I try to I wanna help Jay but man I can’t…he won’t…he’s got guys that take…4 bags. Gaffney testified that when he asked “is it just Shorey’s that’s” he meant “is it Shorey that’s the guy that’s doing this for you”, based on Freeman having spoken before about Shorey taking over his cocaine business. Gaffney further testified that Freeman told him that “he”, referring to Shorey, would not sell low quantities, such as “8-ball” (meaning 3.5 g) to a guy like Jay when he has customers that take 4 ounces of cocaine at a time (“4 bags”). Freeman - …If you want it for yourself…if Shorey’s involved he knows I’ll tell him it’s like Gaffney - yeah Freeman - that’s no problem at all…and he knows the deal anyway…I’ll tell him it’s ok. Gaffney testified that Freeman told him that if the cocaine is destined for Gaffney, Freeman would make sure that Shorey knows not to break it down, meaning not to cut or dilute it, as Freeman knows that Gaffney prefers the highest purity of cocaine.
December 8, 2016
[12] Freeman and Gaffney met that day for breakfast at a restaurant at the 401 and Marysville Road intersection. Freeman told Gaffney that two of Freeman’s customers were splitting a kg of Freeman’s cocaine they purchased from Shorey. Gaffney testified that their reference to “chalk” meant cocaine.
[13] Excerpts of the transcript their conversation read:
Gaffney - …how soon can you get some…chalk [?] Freeman - I’m gonna see Derek today [to] see if he needs a re-up and then usually just takes a day or two.
[14] Gaffney testified that the reference to “Derek” meant Shorey. Note that I will refer to the “Derek” reference in further detail below. Gaffney also stated that “re-up” meant more product, namely cocaine, and that it usually took a day or two to get more product.
Freeman - How much does he want, how much do you want. Gaffney - I don’t know just something (unintelligible) Freeman - an ounce, half ounce something like that Gaffney - Yeah something like that yeah Freeman - Ok, yeah I’m gonna see him today so if there’s any left I’ll grab you some.
[15] Gaffney testified that this discussion was with respect to Gaffney purchasing some cocaine for personal use from Freeman so that Gaffney’s buyer could share it with others. He further testified that when Freeman said he was going to “see him” today, Freeman meant that he was going to see Shorey, to see if Shorey had any cocaine left, and if so, Freeman would pick some for Gaffney.
December 13, 2016
[16] Gaffney and Freeman exchanged 13 text messages that day. Gaffney testified that in those messages Freeman told Gaffney that Shorey usually picked up cocaine with Freeman’s money and that if, he, Gaffney wanted to cut the cocaine, Freeman would do it or let Gaffney go to the safehouse and do it himself.
January 3, 2017
[17] Gaffney and Freeman met in Gaffney’s truck parked in Freeman’s driveway. Gaffney testified that Freeman told him that Freeman had just picked up 1 kg of cocaine, for $55,000 and asked if Gaffney wanted any of it. The transcript reads:
Freeman - …I picked up a…plate for fifty-five Gaffney - oh did you Freeman - yeah, didn’t know if you wanted any of it or want some or whatever… Gaffney - Yeah alright so you got one for …fifty-five Freeman - Yeah so I got a bunch of it left if you want some of it… I bought the whole thing. Gaffney - …so what do you want for nine of it. Freeman - I’ll give it to you at cost…I still got half left. Freeman - If buddy wants that nine, I would like to do that … on a regular basis… Gaffney - Yeah Gaffney testified that Freeman was telling him that if Gaffney’s buyer wanted 9 ounces of cocaine, Freeman would like to do that on a regular basis. Freeman - …I had one of them I gave one to Derek. Gaffney - Right Freeman- he showed them to a guy… Gaffney - Yeah one guy went into a coma or something Freeman - Yeah… Gaffney testified that when Freeman told him that “I had one of them, I gave one to “Derek”, Freeman was referencing their previous conversation of December 13, 2016 about giving one of those sample pills to a friend and a person went into a coma. Gaffney testified that “Derek” refered to Shorey.
January 16, 2017
[18] That day at 10:22 a.m., a red Dodge Dakota pick up truck registered to Shorey was in the driveway of Shorey’s residence at 138 Cannifton Road North in Belleville. At the same time, Freeman’s vehicle was observed in Whitby. That day, between 12:17 p.m. and 1:32 p.m., Freeman’s phone communicated with Shorey’s phone 12 times by way of text messages. Freeman arrived at Shorey’s residence at 3:38 p.m. that day and stayed until 3:57 p.m.
[19] Later that day, there were two text exchanges between Gaffney and Freeman at 4:16 and 4:22 p.m.:
Gaffney – still good to scoop them tickets tonight bud Freeman - Yup Gaffney - Ok, you want me to meet at your place? Gaffney testified that this text exchange meant that he was confirming with Freeman a meeting that night for a cocaine and/or fentanyl transaction.
[20] Freeman was then observed driving to his home at 3244 Harmony Road in Thurlow Ward, Belleville. Two text exchanges followed between Gaffney and Freeman to confirm Gaffney’s attendance at Freeman’s residence, at or about 8:00 p.m.
[21] Gaffney testified that once he arrived, Freeman came outside to the passenger side of Freeman’s truck, retrieved a yellow bag from the truck, walked around and set it on the rear cover of Gaffney’s truck. He asked Freeman what it was. Freeman told him it was the 9 ounces of cocaine that he wanted. Gaffney then placed the bag on the back seat of his truck and drove off with Freeman as his passenger.
[22] Gaffney testified that Freeman gave him the price of $13,750 which Gaffney paid for the 9 ounces of cocaine. Freeman then left the vehicle and Gaffney drove to meet with an exhibit officer who took custody of the bag of cocaine. Gaffney later learned from his handlers that the amount of cocaine was actually 7.5 ounces, rather than the agreed upon 9 ounces. The following is a transcript of the exchange between Gaffney and Freeman concerning this cocaine transaction:
Gaffney - So, what did you want for this? Freeman - What do you think it works out to? It’s $13,750. Gaffney - Ok. Freeman - But you gotta check it because Derek broke it down into 4 bags. Gaffney - right. Freeman - Packs. Gaffney - Yeah Freeman - So I just grabbed 2 of them and then I took another bag and took an ounce out of it and dumped it into one of the bags. Gaffney - so one might be short…or one might be over… Freeman - …no I just didn’t weigh the other bags like he weighed them…So I didn’t check it myself so just check it. Gaffney - right, ok. Freeman – If there’s something…different just let me know. Gaffney - Alright.
[23] Gaffney testified that this conversation meant that:
a. Shorey had taken the original amount of cocaine and had broken it down into 4 separate bags of 4 ounces each; b. Freeman took 2 of those bags which would total 8 ounces and then took an ounce out of another bag to total 9 ounces; c. Freeman did not weigh the cocaine; and d. Freeman told Gaffney to check the weight of the cocaine to make sure that it contained the agreed upon amount.
[24] Certificates of the analyst confirmed the substance to be cocaine which, however, weighed 7.16 ounces rather than the agreed upon 9 ounces.
[25] The evidence that Freeman attended Shorey’s residence, the multiple communications between Freeman’s and Shorey’s phones, the communications between Freeman and Gaffney and the completed cocaine transaction, assist in establishing a common design to traffic cocaine.
January 17, 2017
[26] There were a number of text messages that day between Gaffney and Freeman and between Freeman and Shorey. Between 8:42 a.m. and 11:09 a.m., Gaffney and Freeman exchanged 5 text messages in coded language about the shortened 7.5 ounces of cocaine rather than the agreed-upon 9 ounces. Immediately following these texts, Freeman’s phone communicated with Shorey’s phone 7 times between 11:11 a.m. 3:37 p.m. Freeman then exchanged another 6 texts with Gaffney between 3:55 p.m. and 4:23 p.m. about the same issue. Following that last text exchange, Freeman’s phone communicated again with Shorey’s phone 7 times between 6:41 p.m. and 11:04 p.m.
January 18-23, 2017
[27] During this 6-day period, there were multiple daily text communications between Freeman’s and Shorey’s phones, as follows:
January 18 - 11 Texts January 19 - 2 Texts January 20 - 29 Texts January 21 - 16 Texts January 22 - 23 Texts January 23 - 14 Texts
January 24, 2017
[28] At 6:14 p.m. that day, there was a text from Freeman’s to Shorey’s phone. Gaffney and Freeman then spoke by telephone for 3 minutes. They arranged for Gaffney to pick up the shortfall of cocaine that Freeman owed him. The next day, Gaffney was to pick up the cocaine from the live well of the boat in Freeman’s driveway.
January 25, 2017
[29] Gaffney testified that on that date at 9:20 a.m., he called Freeman to verify that the cocaine was left for him in the boat and where it was. Gaffney attended at Freeman’s residence, walked over to the side of a boat in the driveway. He lifted the cabinet of the live-well and retrieved a vacuum sealed bag of cocaine. Gaffney put the bag of cocaine into a toolbox he had brought with him and locked it. He then met with an exhibit officer who processed it. The bag contained 1.49 ounces, substantially the missing 1.5 ounces from the January 16, 2017 transaction.
[30] These communications and the cocaine transaction between Freeman and Gaffney and the multiple communications between Freeman’s and Shorey’s phones leading to that cocaine transaction, all assist in establishing a common design to traffic drugs.
February 11, 2017
[31] Gaffney and Freeman met at Freeman’s house that day. They discussed Freeman’s cocaine business. During that conversation, a certain Derek Pang (“Pang”) is mentioned several times. Particularly since Pang and Shorey share the same first name and as both Gaffney and Freeman in their various conversations refer to the name “Derek”, it is important that I clarify my finding of whether those references to “Derek” are to Shorey or to Pang.
[32] On December 8, 2017, Gaffney testified and I accept that the first occasion that Pang came up in his conversation with Freeman was on January 16, 2017. Gaffney stated that he from his earlier years as a drug dealer had heard of Pang as a person then involved in the Belleville drug trade. Freeman told Gaffney that:
- he had known Pang for several years;
- Pang had been convicted and sentenced to a 4-year custodial term for drug trafficking;
- as of at least 2016, Pang was out of custody;
- Pang was now unwilling to return to the drug trade;
- Pang, for that reason, limited his involvement in the drug trade to arranging connections between suppliers at various levels.
[33] On January 16, 2017, Freeman had told Gaffney that Pang had connected him with a “Mr. X” who had methamphetamine, fentanyl and cocaine available.
[34] During their meeting on February 11, 2017, Freeman told Gaffney that with Pang’s connection, he had just obtained a kg of cocaine from Mr. X for $50,000. Freeman further stated that Pang was happy to have received $1000 for arranging this transaction. Freeman went on to discuss fentanyl with Gaffney. Freeman told him that the price for a kg of fentanyl from Mr. X was $120,000. This would be a $60,000 investment for each of the two of them. Freeman stated that he would have to sell that kg of cocaine that he had just purchased to allow him to finance his share of the partnership investment in the kg of fentanyl. Freeman continued that he had just sent Shorey to meet with Mr. X to complete the purchase of the 1 kg of cocaine and that he, Freeman, for that reason did not have to meet Mr. X. Freeman paid Pang $1500 for Pang’s part in making the connection with Mr. X. Freeman continued that Pang had supplied Freeman with cocaine in earlier years, but that Freeman and Pang had never worked together to dilute the cocaine on the cocaine press, and that Pang did not really understand the process of diluting cocaine.
[35] Gaffney stated that the only person he knew Freeman to press cocaine with was Shorey. Gaffney further testified that Freeman told him that Mr. X had given Freeman the kg of cocaine upfront, meaning before Freeman paid him for it. Mr. X had left that kg of cocaine in a locker which Freeman’s people then retrieved. “Derek” [Shorey] then met with Mr. X to give him the required purchase funds. Gaffney testified that he believed that Freeman, in referring to “Derek”, meant “Shorey” rather than Pang, based on Freeman’s repeated conversations with him that Pang intended to maintain an arm’s length distance from any illicit drug transactions. I accept and so find that Freeman’s references to “Derek” are to Shorey.
February 13, 2017
[36] When Gaffney and Freeman met that day, Gaffney asked if Freeman had any cocaine available. Freeman told him that he had about 1 half left of the kg that he had purchased from Mr. X. Both agreed to talk about it further the following day.
February 14, 2017
[37] Gaffney and Freeman met that day for about an hour at the Beaufort Pub in Belleville. They discussed the half kg of cocaine. Freeman agreed to have Shorey deliver the cocaine to Gaffney. Freeman would charge Gaffney $26,000 for that half kg. They agreed that Freeman would give Shorey Gaffney’s phone number. During that meeting, Freeman’s phone communicated with Shorey’s phone 5 times, and 2 further times following that meeting.
[38] This transaction could not be completed on February 14, as the parties were otherwise occupied by Valentine’s Day commitments.
February 15, 2017
[39] Gaffney testified that he received a call from a person who identified himself as Derek Shorey who told Gaffney that he, Gaffney, could come to see him anytime. Gaffney understood this to be in reference to Gaffney picking up the half kg of cocaine that Freeman had offered him. Gaffney believed that he recognized Shorey’s voice. Freeman also had told Gaffney that he, Freeman, would give Shorey Gaffney’s telephone number and that Shorey would be calling him. Freeman’s phone that day communicated with Shorey’s 11 times. At 2:58 p.m. there were two communications from Shorey’s phone to Freeman’s and a further two communications at 4:25 p.m. from Shorey’s phone to Freeman’s lasting 49 seconds. Both agreed to put off their meeting until the next day due to weather issues.
February 16, 2017
[40] Shorey texted Gaffney to inquire about their proposed meeting. This contact was followed by 3 calls between Shorey’s and Freeman’s phones. About 2 hours later, Shorey texted Gaffney again suggesting a dinner meeting. Gaffney responded with a proposed late lunch the following day, due to his wife’s illness.
February 17, 2017
[41] During that day, there were various phone communications between Shorey and Gaffney, Freeman and Gaffney and between Freeman and Shorey.
[42] Between 11:32 a.m. 12:28 p.m., Freeman’s phone communicated with Shorey’s 3 times. Following those exchanges, Freeman texted Gaffney as to why Gaffney had not yet connected with Shorey to pick up the cocaine. Following that text exchange, Gaffney texted Shorey:
Gaffney - Hey bro…I was thinking 5:30ish. U good for a pint then? Shorey - Yea sound good bro.
Freeman and Gaffney then exchanged 7 text messages coordinating a meeting among Freeman, Shorey and Gaffney at Freeman’s residence later that evening for a barbeque.
[43] Gaffney texted Shorey;
Gaffney - U going to justins for BBQ? [at 1:50 p.m.] Shorey - Yea [at 1:51 p.m.] Gaffney - K see u there [at 1:51 p.m]
[44] Gaffney arrived at Freeman’s residence at about 7:30 p.m. Shorey was not there. Freeman handed Gaffney a clear Ziploc bag containing 9 ounces of cocaine. They testified that Freeman told him that there were only 9 ounces rather than the agreed-upon 18 ounces, as Freeman had to sell the other 9 ounces to third parties. Freeman told Gaffney that this cocaine had come from Pang’s connection with [Mr. X]. Freeman told Gaffney to keep the purchase price for these 9 ounces of cocaine and to put it towards Freeman’s share of the purchase of the 1 kg of fentanyl that these two had earlier spoken about, as a possible partnership for them.
[45] The total weight of the cocaine was 9.42 ounces.
[46] During this meeting, Freeman told Gaffney that Shorey was losing sleep, as he was nervous from having “this” (pointing to the cocaine that Freeman had given to Gaffney) sitting at his house. This was the cocaine that Gaffney was supposed to have picked up earlier.
[47] Gaffney told Freeman that no one else should know about their proposed fentanyl business and that Gaffney did not want to discuss it around Shorey. Freeman responded that if a deal went south, Shorey needed to know what was going on, in case something bad happened. Freeman told Gaffney that he would let Shorey in on the profits from this proposed fentanyl transaction, as “…he’s always been a partner with me.”
Conclusion on Step 1 of Carter test
[48] Based on the above evidence, including the communications between the phones of Freeman and Shorey, between Shorey and Gaffney and between Freeman and Gaffney and the completed cocaine transactions, I am satisfied beyond a reasonable doubt that there was a common unlawful design between Gaffney and Freeman to traffic in cocaine.
Step 2 of Carter test
[49] To review, I repeat that at Step 2 of the test, as the trier of fact, I must determine on the evidence directly admissible against Shorey, whether I am satisfied on a balance of probabilities that Shorey was a member or participant in the common unlawful design. I must view the direct evidence against the background of all of the available evidence, including the acts and declarations of any co-actors. I further remind myself that I may draw reasonable inferences from the totality of the circumstances. [2]
[50] Any statements made by Shorey are admissible as against him as an “admission against interest” to prove that he was a member of the common unlawful design. [3]
November 28, 2016
[51] During their meeting in Whitby on November 28, 2016, Freeman told Gaffney that with respect to any cocaine destined for Gaffney, Freeman would arrange that Shorey not dilute the cocaine as he, Freeman, knew that Gaffney preferred high purity cocaine.
December 13, 2016
[52] On December 13, 2016 Freeman told Gaffney that Shorey usually picked up the cocaine for him with Freeman’s money.
January 16, 2017
[53] While Freeman was in Whitby that day, a Dodge Dakota pick-up truck registered to Shorey was in Shorey’s driveway at 138 Cannifton Road North in Belleville at 10:22 a.m. Also while Freeman was in Whitby, his phone communicated with Shorey’s phone 12 times between 12:17 p.m. and 1:32 p.m.
[54] Freeman left Whitby at 2:26 p.m. and travelled directly to Shorey’s residence arriving at 3:38 p.m. Freeman returned to his vehicle at 3:57 p.m. and drove away.
[55] The surveillance evidence of Freeman that day attending Shorey’s residence prior to completing a cocaine transaction with Gaffney, coupled with the evidence of multiple communications between Freeman’s and Shorey’s phones proximate in time to the cocaine transaction leads me to find that Shorey is probably a participant in the common design to traffic drugs. In addition, I draw the inference that Freeman attended Shorey’s residence to obtain the cocaine that he then trafficked to Gaffney.
[56] The 7.16 ounce cocaine transaction between Freeman and Gaffney, as set out above, then took place in Gaffney’s vehicle later that evening.
January 17, 2017
[57] Immediately after the text exchange on January 17, 2017 between Gaffney and Freeman in which Gaffney complained that Freeman had supplied him with only 7.5 ounces of the cocaine rather than the agreed-upon 9 ounces, as set out above, Freeman’s phone communicated with Shorey’s phone 7 times between 11:00 a.m. and 3:37 p.m.
[58] Following another text exchange that day between Freeman and Gaffney in which they continued to discuss the shortfall of the cocaine transaction, Freeman’s phone communicated again with Shorey’s phone 7 times between 6:41 p.m. and 11:04 p.m. Based on these multiple phone communications between Freeman and Shorey following Gaffney’s complaint to Freeman, I draw the inference that Freeman probably blamed Shorey for the cocaine shortfall, based on Freeman’s statement to Gaffney that Shorey had broken the cocaine down into 4 bags, leading Freeman to assume that each bag equally contained 4 ounces of cocaine.
January 18-23, 2017
[59] Between January 18th to 23, 2017 there were 95 phone communications between Freeman and Shorey.
January 24, 2017
[60] Freeman and Gaffney arranged for Gaffney to pick up the shortfall of the cocaine from the live well of the boat in Freeman’s driveway.
January 25, 2017
[61] After Gaffney attended at Freeman’s residence that day to pick up the missing 1.5 ounces of cocaine, there were 3 further phone communications between Freeman and Shorey.
[62] Based on the evidence from January 15 to January 25, I draw the inference that Freeman was directing Shorey to make good on this shortfall. Accordingly, I find that Shorey is probably a participant in the common design to traffic in cocaine.
February 14, 2017
[63] During the hour-long meeting that day between Freeman and Gaffney, they discussed Gaffney’s proposed purchase from Freeman of a half kg of cocaine, as detailed above. That included Freeman stating that he would arrange to have Shorey meet Gaffney to complete the cocaine transaction with him, that he would give Shorey Gaffney’s number and that Shorey would call Gaffney. During that time, Freeman’s and Shorey’s phones communicated 7 times.
[64] Based on this evidence, including the phone communications between Freeman and Shorey, I draw the inference that Freeman would likely arrange with Shorey the completion of the half kg cocaine transaction with Gaffney.
February 15, 2017
[65] That day, there were 13 phone communications between Freeman and Shorey. Later that day, Gaffney received a call from a person who identified himself as Derek Shorey and who stated that Gaffney could come and see Shorey anytime. Gaffney’s take of Shorey’s call to him was that the call referred to the half kg of cocaine. Gaffney testified that he exchanged text messages with Shorey later that day to put off their meeting to the following day due to bad weather.
[66] Based on this evidence, I find that Shorey is probably a participant in the common design with Freeman to traffic drugs. I draw the inference that Freeman was probably directing Shorey to contact Gaffney to complete the half kg cocaine transaction with Gaffney.
February 16, 2017
[67] That day, Gaffney and Shorey connected again by text messages. Gaffney stated that he would have to postpone the arranged transaction to the following day based on his wife’s medical condition. Following that exchange, Freeman contacted Gaffney to tell him that he should see Shorey to pick up the cocaine.
February 17, 2017
[68] That day between 11:32 and 12:28 p.m., Freeman’s phone communicated with Shorey’s 3 times. Following those exchanges, Freeman texted Gaffney to ask why Gaffney had not yet connected with Shorey to pick up the cocaine.
[69] Following that exchange, Gaffney texted Shorey to arrange a meeting for the two of them. Shorey and Gaffney then exchanged several text messages culminating in an arrangement for Freeman, Shorey and Gaffney to meet later that evening at Freeman’s residence for a barbeque. Gaffney then texted Shorey:
Gaffney – U going to justins for BBQ? Shorey - Yea Gaffney - K see u there
[70] Based on this evidence I find on a balance of probabilities that Freeman, Gaffney and Shorey agreed to meet at Freeman’s for a BBQ to conclude the half kg cocaine transaction. I find that Shorey is probably a participant in that arrangement.
[71] As detailed above, I find that Gaffney arrived at Freeman’s residence and that Freeman gave him a Ziploc bag containing 9 ounces of cocaine. Freeman told him that there were only 9 ounces rather than the agreed upon 18 ounces of cocaine, as Freeman had sold the other 9 ounces to third parties. Freeman told him to keep the purchase price for these 9 ounces and to put it towards Freeman’s share of the purchase of the 1 kg of fentanyl.
[72] Based on this evidence, I find that Shorey is probably a participant in this cocaine transaction on February 17th, 2017 between Freeman and Gaffney. I further find on the evidence that Freeman was likely directing Shorey as his partner in his drug dealing business to complete this cocaine transaction with Gaffney.
[73] On February 22, 2017 the police executed a search warrant at Shorey’s residence at 138 Cannifton Road North in Belleville. Among other items, they seized:
a. 3 digital scales b. Cellular phone with charger c. 2 small baggies containing white powder residue analyzed to be cocaine found in the dresser drawer of the downstairs bedroom
[74] I find inferentially that Shorey at his residence probably stored the half kg of cocaine that Freeman had offered to Gaffney on February 14, 2017, 9 ounces of which were actually sold to Gaffney on February 17, 2017.
Step 3 of Carter Test
[75] Gaffney’s communication with Freeman were lawfully intercepted pursuant to a Part VI authorization. To have these communications admitted into evidence against Shorey under the co-actor’s exception to the hearsay rule, the Crown must satisfy the Carter test. Step 3 of the test requires that these statements were made in furtherance of the common unlawful design. [4]
[76] The statements and discussions between Gaffney and Freeman to which I referred and canvassed above, were lawfully intercepted pursuant to a Part VI authorization. To the extent that these statements included or referred to then past and planned criminal enterprises beyond the scope of the two counts in this indictment, I considered and relied upon only those statements that referred to or touched upon the allegations raised in the 2 count indictment before the court in this trial.
[77] I remind myself that only those hearsay statements that are in furtherance of the ongoing unlawful design to traffic drugs are admissible for the truth of their contents. To phrase it differently, I turn to the SCC in R v. Mapara, supra at para 8:
The co-conspirators’ exception to the hearsay rule may be stated as follows: “Statements made by a person engaged in an unlawful conspiracy are receivable as admissions as against all those acting in concert if the declarations were made while the conspiracy was ongoing and were made towards the accomplishment of the common object” (J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada (end ed.1999), at p. 303). Following Carter, co-conspirators’ statements will be admissible against the accused only if the trier of fact is satisfied beyond a reasonable doubt that a conspiracy existed and if independent evidence, directly admissible against the accused, establishes on a balance of probabilities that the accused was a member of the conspiracy.
[78] I find beyond a reasonable doubt that Freeman’s hearsay statements set out above are in furtherance of the unlawful common design to traffic drugs. As such, those statements are admissible against Shorey for the truth of their contents, as having satisfied the Carter Test.
Issues Raised by Shorey
[79] In his written submissions, Shorey appears to state that since he was not charged with a conspiracy offence, no evidence of any conspiracy should be admitted in this case. I do not agree. Reliance on the co-actor’s exception to the hearsay rule merely requires that an accused be charged with an offence relating to a common criminal design or activity, such as drug trafficking. The Court of Appeal in R v. Khatchatourov, 2014 ONCA 464 paras 23-24 addresses that issue:
[23] In this case, the only charges against the appellants were offences of fraud; there were no separate conspiracy charges. The appellants contend that the trial judge erred in instructing the jury on co-conspirators in the absence of conspiracy charges being laid against them.
[24] I do not accept this argument. In my view, the trial judge’s decision to charge the jury on the issue of co-conspirators was consistent with the leading authorities at the time, especially R. v. Carter, [1982] 1 S.C.R. 938, and R. v. Bogiatzis, 2010 ONCA 902.
[80] Freeman did not testify. Shorey states that the court must follow a principled approach to determine whether to permit introduction of hearsay evidence. This includes considering the criteria of necessity and reliability. Shorey further states that there was no necessity to introduce hearsay evidence, as Freeman who is said to be in custody and serving a sentence in relation to these matters, could have been brought to court for cross-examination. In addition, failing to call Freeman or making him available for cross-examination is improper and unfair.
[81] The crown responds that it is under no obligation to call Freeman as a witness. How the crown presents its case is entirely its prerogative.
[82] The Ontario Court of Appeal in R v. N.Y., 2012 ONCA 774 provides a reasonable rationale why witnesses like Freeman would not be called to give evidence against a co-actor:
As noted above, and as the trial judge observed necessity can be grounded in more than the availability of the witness; it must be given a flexible definition, and may arise in cases in which one cannot expect to get evidence of the same “value” or quality from other sources see Chang, at para. 105, and R. v. Smith, [1992] 2 S.C.R. 915, at pp 933-34. Statements made by co-conspirators in furtherance of the common design assist in providing a picture of the conspiracy that is unlikely to emerge were the evidence to be given directly by the co-conspirator at trial several years after the events. In United States v. Inadi, 106 S.Ct. 1121 (1986), at 1126(1986), the United States Supreme Court made the same point very succinctly: “Conspirators are likely to speak differently when talking to each other in furtherance of their illiegal aims than when testifying on the witness stand.”
[83] I find that there was no obligation on the crown to have called Freeman as a witness.
[84] Nothing stopped Shorey from calling Freeman as his witness. If Shorey is under the impression that Freeman has information beneficial to his case and believes that not hearing from Freeman makes this trial unfair, then he should have called Freeman as his witness.
[85] Shorey states that the crown’s case relies entirely on what Gaffney and Freeman said. In addition there is evidence based on telephone calls and text messages between them and a text and telephone call to Gaffney purportedly from Shorey. Shorey states that this evidence is insufficient for a finding of a co-conspiracy involving him.
[86] Shorey further asserts that there were no specific statements or acts by Freeman in furtherance of the common illicit design. In response, the crown points to these statements and actions of Freeman:
a) August 3, 2016 At their meeting at the Lonestar restaurant, Freeman told Gaffney that Freeman had tried handing over his drug connections to Shorey and had said to him “…you can do this, just get it for yourself” Freeman had further told Gaffney during this conversation that some 3 weeks earlier he had dropped money off to his drug connection for the purchase of ½ kg of cocaine. He then had directed Shorey to pick up this cocaine for him.
b) November 28, 2016 Freeman and Gaffney met in Whitby. Freeman told Gaffney that Shorey was selling cocaine for Freeman at 4-5 ounces at a time and that Freeman told Shorey that any cocaine destined for Gaffney was not to be diluted.
c) December 8, 2016 Freeman and Gaffney met for breakfast that day. Freeman told Gaffney that two third-parties were splitting Freeman’s cocaine they had purchased from Shorey who had access to a safe house where Freeman stashed his cocaine.
d) December 13, 2016 Freeman told Gaffney that Shorey would pick up cocaine with Freeman’s money.
e) January 13, 2017 That day, Freeman’s phone communicated with Shorey’s 12 times. Freeman arrived at Shorey’s house for about 20 minutes. Later that evening and at the price of $13,750, Freeman gave Gaffney cocaine represented to be 9 ounces. It turned out to be only 7.5 ounces.
f) January 17-25, 2017 During that period, there were numerous texts between Freeman and Gaffney and between Freeman and Shorey, culminating in Freeman’s transfer to Gaffney of the earlier shortfall of 1.49 ounces of cocaine.
g) February 14-17, 2017 Freeman had told Gaffney that he expected to receive a ½ kg of cocaine. They met on February 14, 2017. They agreed that Freeman would ask Shorey to physically arrange the transfer of the cocaine to Gaffney for $26,000. Freeman’s and Shorey’s phones communicated 5 times during that 1 hour meeting. On February 15, 2017, Freeman’s and Shorey’s phones communicated 11 times between 9:10 a.m. and 4:25 p.m. At 5:10 p.m., there were 2 audio communications of 41 and 39 seconds each between Shorey’s and Gaffney’s phones. Gaffney testified that he received a call that day from a person who identified himself as Derek Shorey who stated that he, Gaffney, could come and see him anytime. Gaffney believed that he recognized the caller as Shorey’s voice. Gaffney further stated that Freeman told Gaffney that Freeman would give Gaffney’s telephone number to Shorey who would then call. Later that day in text exchanges with Shorey, Gaffney told him that he, Gaffney, would not be able to meet Shorey that day. On February 16, 2017, Shorey texted Gaffney twice and Shorey’s phone communicated with Freeman’s phone twice. Gaffney responded to Shorey that he could not meet him that day. On February 17, 2017, Freeman’s and Shorey’s phones communicated 3 times between 11:32 a.m. and 12:28 p.m. Following those exchanges, Freeman texted Gaffney to ask why Gaffney had not yet connected with Shorey to pick up the cocaine. Immediately following that exchange, Gaffney texted Shorey to arrange a time and place for the cocaine transaction. Shorey responded - “cool”. Following that exchange, Freeman and Gaffney exchanged 7 texts between 1:43 and 1:50 p.m. to co-ordinate a meeting for Freeman, Gaffney and Shorey that evening at Freeman’s house. Gaffney and Freeman concluded a transaction that evening for Gaffney’s purchase of 9 ounces of cocaine.
h) February 22, 2017 Police executed a search warrant at Shorey’s residence and seized drug paraphernalia including powder analyzed to be cocaine, as already detailed above.
[87] Based on this evidence relating to Shorey between August 3, 2016 and February 22, 2017 which I ruled to be admissible as against Shorey for the truth of their comments, I find that Shorey was involved with Freeman in a common enterprise of trafficking in cocaine.
[88] Shorey asserts that Gaffney’s evidence was strongly undermined through cross-examination, and more specifically through the evidence of Jeff Bruinsma.
[89] Gaffney was cross-examined for more than three days. Yet Shorey failed to cite any instance from the transcript where Gaffney’s evidence was discredited, undermined or shown to be inconsistent.
Evidence of Jeffrey Bruinsma
[90] About 10 years ago, this witness was involved in the drug culture of the Belleville area at the same time as Gaffney was. They knew each other from those years. They were then friends, but no longer so, as of the date of this trial.
[91] The focus of Bruinsma’s testimony was entirely on Gaffney’s character. He did not provide any evidence about the drug dealings and activities between Shorey and Gaffney, Shorey or Freeman and Freeman and Gaffney.
[92] Bruinsma raised two matters with the apparent intent to negatively impact Gaffney’s credibility.
[93] The first matter related to Gaffney’s evidence that Gaffney on one occasion was in Bruinsma’s garage with Freeman and Shorey to press cocaine. Bruinsma stated that Gaffney had lied about this incident, as it had not occurred. This incident was first raised during the cross-examination of Gaffney on May 24, 2019. Counsel for Shorey revisited this incident on July 22, 2019 during the continued cross-examination of Gaffney. At this point, counsel for Shorey had expressed the intention of calling Bruinsma. However, at no time during this line of questioning was Gaffney asked about Bruinsma’s expected evidence that Gaffney had lied about the incident in Bruinsma’s garage. As Bruinsma then testified as such, his evidence is a clear violation of the principle enunciated in Browne v. Dunn (1893), 6 R. 67 H.L. This rule addresses a matter of fairness to allow the witness to adequately respond to the evidence expected to contradict that witness. Based on the transgression of the Browne v. Dunn rule, I have the option to disregard that part of Bruinsma’s evidence, give it very little or any weight, or to accept it.
[94] I note from Bruinsma’s evidence that he clearly had knowledge of certain parts of the evidence in this trial, this, despite the order made at the beginning of this trial to exclude witnesses. Bruinsma’s evidence also reflected a clear animus toward his former friend, Gaffney. Further, Bruinsma conceded that he, for long periods, was addicted to cocaine to the extent that he had experienced regular blackouts which affected his memory.
[95] There was a second violation of the Browne v. Dunn rule concerning Bruinsma’s evidence. On the representation of Shorey’s counsel that Bruinsma’s wife would testify the following day, Bruinsma was permitted to provisionally testify about a series of texts his wife had purportedly received earlier that year on her phone. These messages were from a phone number that was not traced to a known subscriber. These texts, if traced to Gaffney, might have deleteriously impacted his credibility. Bruinsma testified that he believed that Gaffney had sent these texts, evidence which I find did not rise above mere conjecture.
[96] Bruinsma’s wife did not testify. As such, there is no evidence to properly identify these texts which, for those reasons, I will not consider.
[97] As for Bruinsma’s evidence regarding the cocaine press, on the basis of his clear animus directed at Gaffney and his admission that his memory is affected by his drug induced black outs, I do not give weight to his evidence sufficient to challenge Gaffney’s credibility.
[98] Freeman is a convicted felon. Shorey urges that for this reason alone it is dangerous to rely on or give any weight to Freeman’s evidence, based on the SCC decision of R. v. Vetrovec, [1982] 1 S.C.R. 811. Based on this decision, a cautionary instruction has evolved, commonly known as a “Vetrovec Warning”. It is generally given in a jury trial but might also apply to a judge alone trial. A “Vetrovec Warning” generally might state that there is good reason for the jury to approach the evidence of an unsavoury crown witness with the greatest care and caution, but is entitled to rely on that evidence even if not confirmed by another witness or other evidence, but it is dangerous to do so.
[99] Such a “Vetrovec Warning” might also apply to Gaffeny.
[100] I remind myself that the Ontario Court of Appeal in R. v. Pelletier, 2012 ONCA 566 at para 65 reaffirmed the position that it is not mandatory that in a judge alone trial the trier of fact conduct a “Vetrovec caution”. Gaffney was confronted extensively in cross-examination on critical questions about his motivations and background. He was candid in his answers. His evidence was corroborated, consistent and logical. I accept his evidence as credible. As for Freeman, his evidence was received indirectly by way of intercepted communications and amplification from Gaffney. As Freeman’s evidence was given at a time preceding these charges, he would not have had any motivation to misrepresent any evidence relating to Shorey. I find that it is not necessary for me to proceed with a “Vetrovec caution” for either Freeman or Gaffney.
Admissibility of Intercepted Communication
[101] At the start of this trial, Shorey brought a motion to exclude the intercepted communications between Gaffney and Freeman. Shorey asserted that these communications have no relevance to any issue at trial and that an admission of these communications would render the trial unfair, as their prejudicial effect outweighed their probative value. Shorey relied on ss. 7 and 11 of the Charter in support of his position.
[102] I held that this application was then premature. I dismissed the application without prejudice to Shorey to bring a similar application at the conclusion of the evidence at trial. No such application was brought by Shorey, neither at the conclusion of the crown’s case nor the case for the defence.
[103] Shorey attempts to now raise this issue in his written submissions on all of the evidence at trial. I am not inclined to entertain such a motion following the conclusion of the evidence, in the absence of motion material and in the face of the crown’s inability to adequately respond at this stage of the proceedings. Even if I were to consider such a motion to exclude all of the intercepted communications, I note that Shorey does not allege any impropriety in the manner in which these communications were obtained, nor does he challenge the lawfulness of their seizure by the police. All of the evidence was recorded and transmitted into evidence in the manner they were obtained. None of the evidence is conscripted against Shorey.
[104] As there is no articulated basis upon which this evidence should be excluded or deemed inadmissible, I would dismiss the motion, if I were to hear it.
[105] I remind myself of the principles of R. v. W.D.S., [1991] 1 S.C.R. 782. Shorey did not testify. However, I may convict him only if the evidence that I do accept proves his guilt beyond a reasonable doubt.
[106] Based on the evidence the crown has led, I am not left with a reasonable doubt about Shorey’s guilt on either of the two counts. I find Shorey guilty of both counts in the indictment.
Tausendfreund, J. Released: January 7, 2020
COURT FILE NO.: CR-18-00000034-0000 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – DEREK SHOREY REASONS FOR sentence Tausendfreund, J Released: January 7, 2020
References
[1] R. v. Peddicombe, 2013 ONCA 503 at paras 111-112.