COURT FILE NO.: CR-19-50000458-0000

DATE: 20210625

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JERRY BRODRICKS

George Lennox and Dean Sgouromitis, for the Crown

Ashley Audet, for Jerry Brodricks

HEARD: April 19, 20, 21, 22, 23, 26, May 13, 2021

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT

[1] Mr. Brodricks is charged with one count of conspiracy to traffic cocaine, and one count of trafficking cocaine. The conspiracy count alleges that between March 7 and June 29, 2018 Mr. Brodricks conspired with Ishmael Robinson and others to commit the offence of trafficking cocaine. The trafficking count alleges that between April 4 and June 20, 2018, Mr. Brodricks trafficked cocaine. The Crown’s case consists primarily of intercepted private communications, a small amount of physical surveillance, two cocaine seizures, and expert evidence.

[2] The Crown theory is that Mr. Brodricks was a member of an ongoing buy-sell conspiracy with Ishmael Robinson and others to traffic cocaine from the Greater Toronto Area to the Sudbury area. Robinson purchased cocaine in large amounts, distributed the cocaine to Mr. Brodricks and his associates, who then pooled the profits of the sales for Robinson to re-supply. The Crown’s evidence on both the conspiracy and trafficking counts is entirely circumstantial.

[3] The key issue is whether the Crown has proven beyond a reasonable doubt that Jerry Brodricks trafficked and conspired to traffic in cocaine, as opposed to some other substance.

BACKGROUND

[4] In March, April, May, and June the Toronto Police intercepted the communications of people thought to be involved in commercial drug trafficking. Among those the police intercepted and identified were Ishmael Robinson, Jerry Brodricks (also known on the intercepts as “T.Y.”), Joshua Malcolm-Evans, and Andrew Duncan. The police also intercepted Slim (also known on the intercepts as “Tall Man”) and Dre (also known on the intercepts as “Little Dre”). The police were unable to establish the identities of Slim and Dre.

[5] The defence concedes that the Crown has been able to establish beyond a reasonable doubt the voice identification and telephone numbers of Mr. Robinson and Mr. Brodricks.

[6] The Crown’s case relies primarily on the intercepted communications. In addition, the Crown relies on two seizures of cocaine that it says are related to Mr. Brodricks.

[7] The first seizure occurred in Sudbury. Sudbury police arrested Mr. Brodricks in a car on June 22, 2018. He was in the front passenger seat. The Sudbury Police searched the car. The police found cocaine in a plastic bag underneath the front passenger seat. The police also found cash.

[8] The second seizure was from a home in Mississauga on June 7, 2018. The police found Mr. Malcolm-Evans in the process of flushing cocaine down the toilet. The police also found about a half-kilo of cocaine in the home. The cocaine was in two “bricks” of about a quarter-kilo each. The police seized items (including a passport) belonging to Mr. Robinson.

[9] The Crown also relied on the expert evidence of Detective Constable Sean Moxham, a former member of the Toronto Police Drug Squad. DC Moxham gave evidence on, among other things, drug terminology including drug slang.

ANALYSIS

[10] The defence argues that the Crown has failed to prove beyond a reasonable doubt that Mr. Brodricks trafficked (or conspired to traffic) in cocaine, as opposed to some other substance. It is fundamental that once the Crown has particularized a substance in the indictment, the Crown must prove beyond a reasonable doubt that the accused trafficked (or conspired to traffic) in that substance: R. v. Saunders, 1990 CanLII 1131 (SCC), [1990] 1 S.C.R. 1020 at para. 5. Where the Crown’s case is based on circumstantial evidence, as this one is, the Crown must prove that guilt is the only reasonable inference: R. v. Villaroman, 2016 SCC 3 at paras. 35-36. In this case, the defence argues, it would be open to a trier of fact to find that substances other than cocaine were involved.

[11] The key issue in this case is whether, on the whole of the evidence, I am satisfied beyond a reasonable doubt that Mr. Brodricks trafficked cocaine and conspired to traffic cocaine.

(a) Has the Crown proven beyond a reasonable doubt that Mr. Brodricks trafficked in cocaine?

[12] The actus reus of trafficking in a substance is set out in s. 2 of the Controlled Drugs And Substances Act:

traffic means, in respect of a substance included in any of Schedules I to V,

(a) to sell, administer, give, transfer, transport, send or deliver the substance,

(b) to sell an authorization to obtain the substance, or

(c) to offer to do anything mentioned in paragraph (a) or (b)

[13] The mens rea of the offence is the intention to do one of the things set out in the definition of trafficking coupled with knowledge of the illicit nature of the substance: R. v. Schepannek, 2012 BCCA 368 at para. 6.

[14] As Justice Watt noted in his model jury instructions, in order to prove the charge of trafficking cocaine, the Crown must prove each of the following essential elements beyond a reasonable doubt:

• First, that the accused trafficked in a substance;

• Second, that the substance was cocaine;

• Third, that he accused knew that the substance was cocaine; and

• Fourth, that the accused intentionally trafficked in cocaine.

[15] The key elements in this case are the first and second: trafficking and the nature of the substance. As Ms. Audet, Mr. Brodrick’s counsel points out, there is no direct evidence of trafficking cocaine. Trafficking in a substance is usually proven through a sale to an undercover officer or agent, or through police observations of a transaction. In this case there was no sale to undercover officer. The police did not observe any transactions involving Mr. Brodricks.

[16] The defence argues that I should be left with a reasonable doubt about whether the trafficking took place; and about whether the substance was cocaine.

[17] With respect, I disagree. The intercepts, when read in light of the expert evidence, which I accept, prove beyond a reasonable doubt that Mr. Brodricks trafficked in a substance and that he knew that the substance was cocaine.

[18] The Crown relies on several conversations intercepted between May 4, 2018 and May 30, 2018.

[19] On May 4, 2018 at 20:50:19[^1] Mr. Robinson and Mr. Brodricks have a discussion. I have carefully listened to the intercept, and it is clear that during the discussion Mr. Brodricks met with an unknown male and an unknown female. Mr. Brodricks’ conversation in the background is picked up on his phone. Mr. Robinson asks Mr. Brodricks “what kinda change you have?” to which Mr. Brodricks replies “eleven or twelve bands”. DC Moxham, the expert, testified that a “band” refers to a stack of cash amounting to $1,000.00, held together by an elastic band. An unknown female voice can be heard in the background. It may have been on another cell phone, or it may have been on an intercom system. Mr. Brodricks says to her: “You pulling in? Okay I’ll see you in a second.” A few moments later the unknown male and the unknown female can be heard in person. Mr. Brodricks tells them: “Look at it”. The following is the exchange that occurs in the background while Mr. Robinson and Mr. Brodricks talk:

UNKNOWN MALE: Thank you. I know you… you always done me right man. Every time I get back to the house and weight it up it’s always fucking right. You got (unintelligible).

BRODRICKS: Wanna take it up?

UNKNOWN MALE: Yeah.

UNKNOWN MALE: Thanks.

BRODRICKS: Okay.

UNKNOWN MALE: Thanks.

[20] I infer that Mr. Brodricks trafficked drugs in person while talking to Mr. Robinson over the phone. Mr. Robinson and Mr. Brodricks are discussing “bands”, a term in the drug world relating to money. I draw that inference based on the reference to “weight” in the context of the conversation refers to drugs.

[21] On May 5, 2018 at 21:54:42[^2] Mr. Brodricks tells Mr. Robinson to see Monique, as she needs. In a second call at 21:55:47[^3] Mr. Robinson asks “does she have a change” to which Mr. Brodricks replies “no, I took it. Nine, right?” They then confirm that Mr. Brodricks will give her another nine. DC Moxham testified that a “nine-pack” can refer to nine ounces of cocaine. When I listen to all of the calls, I am confident that the reference to “change” throughout is a reference to money. That is clear from the context of the calls. I infer that this call was a discussion about Mr. Brodricks supplying “Monique” with nine ounces of cocaine.

[22] The Crown also relies on conversation with an unknown male on May 10, 2018. That conversation occurred during two calls at 21:52:27 and 22:04:39[^4]. Mr. Brodricks directs another man, who is driving, and makes arrangements for a meeting. This occurs in the background of a three-way conversation with Mr. Robinson and Slim. That conversation appears to be about drug sales. It is unclear that the background conversation is about a meeting to traffic drugs. I think it is certainly possible, but it adds little and I cannot draw that inference from this conversation alone.

[23] The Crown also relies on three conversations on May 11, 2018. Mr. Robinson and Slim discuss a “half a b” in a call at 22:25:38[^5]. Mr. Robinson indicates that he will call T.Y. (The defence concedes that Mr. Brodricks is also known as T.Y.). Slim tells Mr. Robinson that he should tell him that there is a “half a B whop at the Pizza Pizza, right now.” In a call at 22:28:44[^6] Mr. Robinson directs Mr. Brodricks that “there is a… a half a B whop at uh… at the Pizza… at the Pizza Pizza on Elm I think.” There is then some discussion of who Mr. Brodricks is supposed to meet. In the next call at 22:42:23[^7] Mr. Brodricks tells Mr. Robinson that he is at the Pizza Pizza but needs to know who he is seeing as the police are present. Although there is no evidence as to the meaning of “Jakes” it is clear from the context that both men meant police:

BRODRICKS: No, I’m going there but I see fucking jakes…

ROBINSON: Yeah. All right. Wha… what kinda jakes? If it’s just regular fucking squad cars, you don’t have to worry because that doesn’t… that’s not… that’s not…

BRODRICKS: I’m just saying bro, you kjnow already how the game goes. I don’t have to… I don’t have to spell it out to you fam. If… if you’re gonna meet somebody you don’t feel comfortable meeting with them (unintelligible)…

[24] A few moments later Mr. Brodricks has this conversation with an unknown male in the background of his conversation with Mr. Robinson:

UNKNOWN MALE: What’s up bro?

BRODRICKS: Half B?

UNKNOWN MALE: Yeah. Is this… is it soft?

BRODRICKS: No, it’s the white one.

[25] Mr. Brodricks then informs Mr. Robinson “I picked him up.”

[26] I have also listened carefully to the conversation between Mr. Brodricks and the unknown male. I infer that Mr. Brodricks supplied him with cocaine while having a conversation with Mr. Robinson. He then reported it to Mr. Robinson when he said “I picked him up”.

[27] DC Moxham testified that a half B is a half an eight-ball. An eight-ball is an eighth of an ounce of crack cocaine; that “soft” refers to powder cocaine, and that “white” also refers to cocaine. In cross-examination, he agreed that other types of powdered drugs, such as fentanyl, can be white (and can also be dyed a different colour). DC Moxham did say that in his experience “white” only referred to cocaine. There may be some uncertainty as to whether Mr. Brodricks was trafficking powder cocaine or crack cocaine. I find as a fact, however, that whether Mr. Brodricks, Mr. Robinson, or the unknown male were referring to crack or powder, they were still discussing the sale of cocaine.

[28] On May 12, 2018 at 2:33:24 Mr. Robinson calls Mr. Brodricks. He tells Mr. Brodricks to get up, as “the man wants a fucking Cuban.” DC Moxham testified that a “Cuban” is a quarter ounce of cocaine. From the context of the conversation, it is clear that Mr. Brodricks was well aware of the meaning of the term “Cuban”.

[29] Mr. Brodricks was concerned about a police presence while meeting another person to give him a “half B”; and he accepted Mr. Robinson’s characterization that he need not be concerned if the car was only a regular squad car. This consciousness of police is significant in the overall context of the evidence. I accept the expert evidence that the references to words such as “bands”, “Cuban”, “half B” and “nine” all indicate drug trafficking.

[30] No particular call between May 4 and May 30, 2018 is capable of proving, on its own, that Mr. Brodricks trafficked in cocaine. The question is whether based on the totality of the evidence I am satisfied beyond a reasonable doubt that the Crown has done so. In this case, I am. I accept the expert evidence that the words and phrases are particular to cocaine. DC Moxham conceded that it was possible that some phrases and words may refer to other types of substances. His experience, however, was that those phrases and words refer to cocaine. The Crown, of course, need not prove that any particular word or phrase refers to cocaine. That is a matter of weight for the trier of fact. Rather, the Crown must prove beyond a reasonable doubt that the substance was cocaine and Mr. Brodricks knew it was cocaine. Moreover, Mr. Brodricks is not charged with trafficking in cocaine to the exclusion of all other drugs. Even if it is possible that Mr. Brodricks was trafficking in, say, fentanyl or heroin, there are simply too many references by Mr. Brodricks and Mr. Robinson (and acknowledged by Mr. Brodricks) to words that relate to cocaine. The fact that he may have been trafficking in something else as well (and it is not necessary for me to make a finding of fact in that regard) does not leave me with a reasonable doubt about whether he was trafficking in cocaine.

[31] Given that this is a circumstantial case, I must be satisfied beyond a reasonable doubt that guilt is the only reasonable inference. As Cromwell J. put it in R. v. Villaroman at para. 30:

Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences.

[32] A trier of fact should consider other plausible theories or reasonable possibilities which are inconsistent with guilt. The Crown, however,

… does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, 1971 CanLII 13 (SCC), [1972] S.C.R. 2 at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

[33] See: R. v. Villaroman at para. 37.

[34] Is there a reasonable possibility that Mr. Brodricks was trafficking something other than cocaine? To put it another way, is it a reasonable possibility that he did not traffic in cocaine and trafficked in some other drug? In my view, the answer is “no.” It is possible (but unlikely) that he trafficked in some other drug in addition to cocaine but that would not leave me with a reasonable doubt about Mr. Brodrick’s guilt. In this I rely on the evidence of DC Moxham. Although he was pressed in cross-examination and he did admit that some terms could relate to other drugs, those concessions do not lead me to find a reasonable possibility that he was trafficking something other than cocaine, and that was not trafficking in cocaine at all.

(b) Has the Crown proven beyond a reasonable doubt that Mr. Brodricks, Mr. Robinson, and others conspired to traffic in cocaine?

[35] A conspiracy is the agreement of two or more people to do an unlawful act (or do something lawful by unlawful means) coupled with an intention to carry out that unlawful act: R. v. O’Brien, 1954 CanLII 42 (SCC), [1954] S.C.R. 666 at p. 317. The actus reus of the offence is the formation of the agreement to commit an unlawful act; the mens rea of the offence is the intention to agree to carry it out: R. v. Tello, 2018 ONSC 385 at para. 14.

[36] The essential elements that the Crown must prove beyond a reasonable doubt are these:

• First, that there was an agreement among Mr. Brodricks, Mr. Robinson, Mr. Malcom-Evans, Dre and Slim;

• Second, that the agreement was to traffic in cocaine; and

• Third, that Mr. Brodricks was a member of that agreement.

[37] See: United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462 at paras. 86-88; R. v. Buttazzoni, 2015 ONSC 6411 at para. 41.

[38] As noted, the Crown must also prove that conspirators agreed to traffic in cocaine, as opposed to some other substance: R. v. Saunders, at para. 5.

[39] It would be a very rare conspiracy that could be proven by direct evidence. As a result, almost all the evidence is circumstantial. Usually, the conspiracy and membership in it is proven by reference to the acts and declarations of the co-conspirators: R. v. F.(J.), 2013 SCC 12 at para. 53. In this case, that circumstantial evidence consists largely of intercepted communications and the two cocaine seizures.

[40] Ms. Audet, counsel for Mr. Brodricks, concedes in her factum that “the evidence clearly establishes the existence of an agreement and/or an arrangement between Mr. Brodricks, Mr. Robinson, Slim, and potentially Dre to sell something of an illicit or illegal nature for profit.” Her position, however, is that the evidence fails to establish beyond a reasonable doubt that the substance was cocaine.

[41] That was a wise concession, but I disagree that the evidence fails to establish the object of the conspiracy. I am satisfied beyond a reasonable doubt that the object of the conspiracy was to traffic in cocaine. It is possible that the co-conspirators also agreed to traffic in other substances, such as fentanyl, but the Crown need not prove that the object was to traffic cocaine and only cocaine.

[42] I will deal first with the existence of the agreement, or “the program”. I am aware that the defence has conceded this point, but it is necessary to examine the nature of the agreement in order to determine whether the object is really cocaine and whether Mr. Brodricks was a member of that agreement.

[43] Was there an agreement between Robinson, Brodricks, and others to traffic in a controlled substance? This question concerns the first element of the offence: whether there was an agreement to do something illegal. The Crown theory is that the calls among the alleged co-conspirators establish a buy-sell agreement called “the program”. Since the evidence is largely contained in the wiretaps, I must determine, based on all the evidence, including the evidence directly admissible against Mr. Brodricks, whether the Crown has established beyond a reasonable doubt the existence of the agreement.

[44] In several calls Mr. Robinson and Mr. Duncan the negotiate the purchase of cocaine. On April 4, 2018 at 15:04:22[^8] Mr. Duncan asks “When are we gonna get to work?” Mr. Robinson replies “I know. That’s what I’m trying to figure out.” A few lines later the following exchange occurs:

ROBINSON: … why, you have something?

DUNCAN: Obviously.

ROBINSON: Do you have it, or you have to call for it?

DUNCAN: Buddy, don’t worry ‘bout that.

[45] In a call on April 5, 2018 at 16:08:56[^9] Mr. Robinson tells Mr. Duncan that what he has is not “substantial enough” to come to him. Mr. Duncan indicates that if Mr. Robinson has “ten” he can throw him “a half or a three-quarter”. Mr. Robinson indicates that he will try to come up with a twenty.

[46] Shortly after that, at 16:12:59[^10] Mr. Brodricks, Mr. Robinson, Tall Man, and unidentified people have a conversation. Mr. Robinson indicates that he is bringing a “full”. Mr. Brodricks protests that is “crazy… that’s too much workload number one… and then two, there’s so much people up here that has way better.” I am satisfied, based on all the intercepted communications as well as the June 2018 arrest that “up here” refers to Sudbury. They discuss bringing less, and better of whatever it is they are discussing. After discussing numbers, Mr. Robinson discusses “forty four”. He indicates “if we get to sixty-eight, everybody gets a eight.” To which Mr. Brodricks clarifies “eight bands?” There is continued discussion, and Mr. Brodricks is eventually satisfied with “eight” and indicates that he does not mind “putting in.” The also discuss the fact that Dre owes them money.

[47] As noted, DC Moxham testified that a “band” refers to $1000.00. I note that DC Moxham did not opine on the meaning of “full” but it seems reasonable from the context of this call and other calls that a “full” refers to an full kilogram, based on the prices that DC Moxham mentioned. DC Moxham also testified that “work” refers to cocaine, or drugs generally. He conceded that it is a common word and may simply mean a job. I infer in the context of all of the calls between Mr. Robinson and Mr. Duncan generally, as well as Mr. Brodricks and the others, that it does refer to illegal drugs.

[48] A few moments later on the same day (April 5, 2018), at 16:35:19[^11], Mr. Robinson speaks to Mr. Duncan again. Mr. Duncan tells Mr. Robinson that he needs to come up with “nothing less than fifteen.” They speak again at 20:03:31[^12]. In calls at 20:47:29 and 21:09:14[^13] they arrange to meet at a restaurant. A few days later, on April 10, 2018, at 22:15:45[^14] Mr. Robinson tells Mr. Duncan that he is just “opening that thing I got from your brethren.” He complains about the quality of it.

[49] I infer that Mr. Robinson consulted Mr. Brodricks about a financial contribution to the purchase of drugs while he was in the midst of negotiations with Mr. Duncan. Mr. Robinson then received the object of the negotiation from Mr. Duncan’s associates, or “brethren”. He then complained to Mr. Duncan about the quality of the product.

[50] In a call on April 11, 2018 at 17:35:44[^15] Mr. Robinson tells a person identified as Shain Henry that he has “your four”. Henry inquires whether he can see it, and then asks Robinson “Yow can you bring me a gram like you did last time so I could cook it up or whatever, holler at you back and thank you bro, please?” Henry then asks: “Can I get a gram of it or whatever so I can cook it up, make two, three of my custies try it or whatever? And then I’ll say yow bring it e-r-r…”

[51] Neither counsel asked DC Moxham about the term “custies”. The term was used in several calls. From the context, I conclude that it is simply a short form for “customer.” DC Moxham testified that the term “cook” refers exclusively to creating crack cocaine from powder cocaine. That process literally involves cooking with kitchen utensils and other ingredients. In cross-examination, DC Moxham acknowledged that a heroin user would use heat to dissolve it into injectable liquid. That, of course, is a process of cooking. He testified, however, that he had never heard a heroin user associate the word “cook” with that process. I conclude that there is no evidence that the use of the term “cook” in the context of this case refers to any other drug. I conclude that refers exclusively to cocaine, and specifically to the process of making crack cocaine from powder cocaine.

[52] The same day, April 11, 2018, there is a reference to the “program”. There are also complaints about the quality of the “work”. At 19:04:14[^16] Mr. Robinson talks to Slim. The thrust of the conversation is that Mr. Robinson has given him something of poor quality. I excerpt the key points of the conversation:

ROBINSON: … that’s what you said that you’re not giving anybody… your peoples this?

SLIM: Yeah.

ROBINSON: So then, what’s it called, so are… so then those people that you’re not giving whatever to, then what are you doing?

SLIM: What am I doing? They… what you mean? They don’t have nothing.

ROBINSON: They don’t have nothing?

SLIM: How are they supposed to have nothing? If you… if you have sh… if you … if you… if you keep fucking around… if we’re supposed to be doing a program and you’re fucking around, experimenting at work, getting bullshit work. How am I supposed to fucking give my people anything? I don’t understand.

ROBINSON: Yeah but then what (Unintelligible)… but okay, I undertand what you’re saying but it’s not that I’m looking for bullshit. I… I keep going to different peoples trying to find what I’m really looking for. You obviously know that because I even went to your people.

SLIM: You do that, but while you’re down here doing I don’t know what the fuck you’re doing, pay… paying fucking… I don’t know. (Unintelligible) trying to get… trying to get cheap work (Unintelligible).

[53] Slim then complains “I’m gonna lose my customers…” They then have the following exchange:

ROBINSON: Yeah, but you told me that it was… it was… it was… it was two bounces of hard, it wasn’t nothing.

SLIM: No I brought… I brought two bounces of hard and two bounces of soft.

[54] DC Moxham testified that “soft” refers to powder cocaine. Although DC Moxham did not testify about the meaning of “hard”, the context of the conversation suggests that it refers to crack-cocaine.

[55] Slim then describes the program:

SLIM: … yeah, ‘cause at the same time, even this whole fucking program thing, like its supposed to be every week, every two weeks. It’s been like past two weeks, going on two weeks…

[56] On April 27, 2018, Mr. Robinson spoke to Mr. Duncan twice. At 15:15:53[^17] Mr. Robinson tells Mr. Duncan that he gave Mr. Duncan’s “homey” five, because his (Mr. Duncan’s) cut is in there. They then discuss numbers. Mr. Robinson asks for a “whole one” and seven to ten days to pay. Mr. Duncan promises a better deal the next day. At 19:00:33[^18] they speak again. They have the following conversation:

ROBINSON: Okay just say five bands ‘cause I don’t know; and I… I… I don’t wanna say more and I don’t have it and then I have more complications. I have five bands. Give me the thing, bro.

DUNCAN: But I told you all that I have ah that I can get for you is thirteen.

ROBINSON: Thir…thirteen what?

DUNCAN: I… I told you that’s what I would get. Like, you know, wha’ I mean?

ROBINSON: Thirteen of them?

DUNCAN: Yeah that’s all I can get to right now without going to see him. You know wha’ I mean?

ROBINSON: So you can’t try to get eighteen?

DUNCAN: Buddy, are you not listening? That’s all I…

ROBINSON: Okay all right, all right bring the thirteen, fam. Make sure its…

DUNCAN: … I’m not bringing nothing you have to meet me by Sherway.

[57] On that day police observed Mr. Robinson and Mr. Duncan meet in the area of Sherway Gardens. Detective Sergeant Steinwall testified that he was in charge of a crew conducting surveillance on Mr. Robinson. At 20:35 he was in the area of Sherway Gardens. At 22:42 he observed Mr. Robinson’s vehicle, a blue Subaru, enter a roundabout near some condominium buildings. DS Steinwall testified that the person driving the Subaru looked like Mr. Robinson. The Subaru parked. A male that DS Steinwall had observed on April 5 came out of one of the condo buildings. He went into a white Range Rover and retrieved something that appeared to be a small athletic bag. He went over to the Subaru and got into the passenger seat. He left a few minutes later. He was not carrying the bag. DS Steinwall agreed in cross-examination that he could not confirm that the driver was Mr. Robinson from visual observation.

[58] I infer, however, from the series of calls and the observations of the police that on April 27, 2018 Mr. Robinson and Mr. Duncan negotiated a purchase of an illegal drug, likely cocaine. Mr. Duncan then delivered the cocaine directly to Mr. Robinson. The police observed the delivery.

[59] On May 5, 2018 at 21:42:10[^19] Mr. Brodricks tells Mr. Robinson that “Rockey wants ahm… he wants five Jordans but he’s trying to pay fucking fourteen. I told him that… that can’t work.” They discuss “jam”. Robinson tells Mr. Brodricks:

ROBINSON: No, no, no, no, no, no, no, no, you just fucking remix little bit.

BRODRICKS: Oh, lots of remix?

ROBINSON: No, not a lot. You can’t do… he a… he won’t come back. You just remix one of them or like… like a half of one, so now he’s paying that and then whatever; whatever; whatever.

[60] DC Moxham testified that drug dealers cut, or “step on” drugs to reduce the purity. That process involves mixing a cutting agent with the drugs. It increases the volume of the product and therefore the profit. DC Moxham testified that “remix” is a word used for that process. Drugs such as cocaine, fentanyl and heroin are cut in this way. Although the process is used to cut drugs other than cocaine, DC Moxham testified that the term “remix” is generally a cocaine term.

[61] Later in that conversation, Mr. Brodricks tells Mr. Robinson that he needs some money. I infer from this phrase that Mr. Robinson and Mr. Brodricks have a financial involvement.

[62] One feature of the relationship between Mr. Robinson, Mr. Duncan, Slim, Dre, and (to a lesser extent) Mr. Malcolm-Evans is a fairly consistent squabbling – usually, although not always, over money. On May 7, 2018 Mr. Robinson and Slim have a call at 15:54:51[^20]. They complain that Dre owes them money. They also discuss a new “brethren” for whom it is not “thirty-five with this person, this person is four.” The Crown’s position is that this is a discussion of the purchase of cocaine for $40,000 per kilo. Based on the context of the call, and in light of all of the other calls, I agree with the Crown.

[63] On May 9, 2018, at 18:15:23[^21], Mr. Robinson and Mr. Brodicks discuss the fact that Mr. Brodricks left town without calling Mr. Robinson. They then have the following discussion (I excerpt the key parts):

ROBINSON: What you go out there with?

BRODRICKS: I told you, I am like yow, I am gonna try and get a four and a baby. I didn’t get a four and a baby.

ROBINSON: What’d you get?

BRODRICKS: Pardon?

ROBINSON: What’d you get?

BRODRICKS: Like four ounces.

[64] DC Moxham testified that a nine-pack is nine ounces of cocaine, a fairly standard unit of measurement for commercial drug trafficking. Four and a half ounces is, of course, half a nine-pack. This call is also an example where one of the members of the agreement briefly slipped. Mr. Brodricks did not speak using guarded language – he actually used the term “ounces”.

[65] This call is also an example of squabbling over money:

ROBINSON: Bro, it’s just okay, all right. I’ll talk to you later bro. Make sure I get my piece, eh?

BRODRICKS: What?

ROBINSON: Make sure I get my piece of the pie.

[66] In further calls on May 9 and 10, 2018 Mr. Brodricks, Mr. Robinson, Slim, and Dre continue to discuss money, including money that Dre apparently owes.[^22] They discuss “the rose”. DC Moxham testified that he was not familiar with the term “rose”. From the context, I infer that “the rose” involves pooling money but I cannot be certain of that. In any event, I do not have to resolve that question. The discussion on May 10 (at 21:52:27) also included Mr. Brodricks using drug terminology:

ROBINSON: Hey yow my nigga then I’m gonna do my fucking math and I’m gonna get reimburse. Some way, somehow, I’m getting reimbursed, ‘cause I’m not losing. You want to fucking do that and not remember that you sold, I dunno, a ball of his stuff…

BRODRICKS: I sold more that a fucking ball.

ROBINSON: Okay, so then…

BRODRICKS: I give, I give, I give, I give Murdoch back to back fucking half b’s, half b’s, half b come on. So like I don’t know what you’re saying… oh if… if it’s a ball you think I’m supposed to remember well yeah, I only moved a ball for him or a Cuban for him, no.

[67] As noted, DC Moxham testified that a “ball” refers to an eight-ball, or an eighth of an ounce of cocaine. DC Moxham testified that he has never heard the term “ball” used in reference to another type of drug. Nobody, he testified, buys an 8-ball of marijuana. DC Moxham also testified that a “Cuban” is a quarter-ounce of cocaine. He agreed in cross-examination that other drugs are sold in quarter-ounce quantities.

[68] In several more calls on May 10 and 11, the group continues to discuss money. They squabble over the amounts that each individual had contributed and taken out, especially Mr. Robinson. The conversations continue to use guarded language, and refer to terms that DC Moxham discussed as being associated with drug trafficking.

[69] Mr. Brodricks and Mr. Robinson continue to have conversations in May and June, 2018. I do not need to evaluate these calls in detail, as they contain more of the same guarded language, and more of the same discussion (and squabbling) about money. There are other calls with Mr. Malcom-Evans, Dre, and Slim. Based on these discussions, I am satisfied beyond a reasonable doubt that there was an agreement to traffic in an illegal substance. There are simply too many references to drug terms, too many references to money (including terms from the drug trade associated with money), and too many references to the hierarchy of those in “the program” to conclude otherwise. But what was that substance? That is the next question.

[70] Was the agreement to traffic cocaine? In addition to intercepted communications (including the extensive use of terms associated with cocaine trafficking that I have already mentioned), the Crown relies on two cocaine seizures as circumstantial evidence that “the program” involved cocaine.

[71] On June 21 and 22, 2018, the Toronto Police were aware that Mr. Brodricks was in Sudbury. They asked the Sudbury police to conduct surveillance and then arrest Mr. Brodricks. On June 21, 2018 a white Nissan was surveilled by Sudbury police. They observed that it was driven by a blonde woman. Mr. Brodricks was not in the vehicle. The next day, June 22, 2018, Sudbury police stopped the car, searched it, and arrested the people inside. Mr. Brodricks was arrested while he was in the front passenger seat. Jessica Jacobs was driving the vehicle. Shimon James was seated in the rear passenger seat, behind Brodricks. The police located 130 grams of cocaine under the driver’s seat. The police seized $1,770 in cash from Mr. Brodricks; they seized $802 from Ms. Jacobs. A large amount of cash was found in a bag in a trunk.

[72] Ms. Audet argues that the cocaine under the seat has no probative value. There is no evidence, she argues, to directly tie Mr. Brodricks to the cocaine. There is no evidence as to when the cocaine was placed under the seat, who put it there, or whether any of it was in plain view. There is no evidence, she argues, that Mr. Brodricks had knowledge or control of the cocaine.

[73] With respect, I cannot agree. The Crown does not need to prove beyond a reasonable doubt that Mr. Brodricks possessed that cocaine. The Crown does not need to prove each piece of evidence beyond a reasonable doubt; the Crown would obviously be required to do so if Mr. Brodricks were specifically charged with possession of that cocaine in the car.

[74] Rather, the point is that the cocaine in the car is circumstantial evidence of a conspiracy to traffic cocaine. As I have noted, I am satisfied that there was a conspiracy to traffic in an illegal substance. Mr. Brodricks had a large amount of cash on him – over $1700.00 – in close proximity to cocaine. From the intercepted communications, it is clear that Mr. Brodricks did business outside of Toronto. He indicates from time to time that he will be out of town. The business that he was doing involved “bands” of money, “Cubans”, “balls” and “half-balls”, “nine”, “soft”, “white”, and “work” – all terms associated with drug trafficking in general, and, according to DC Moxham, cocaine in particular. At a couple of points, he slips out of guarded language and uses the word “ounce”. Some or all of these terms are also used by others such as Mr. Robinson. I find that it is not coincidental that Mr. Brodricks frequently uses drug trafficking terms and that he is arrested in a car with cocaine. I agree that it is circumstantial evidence that when Mr. Brodricks uses terms associated with trafficking drugs, those terms are specifically about cocaine.

[75] Crown counsel relies on another cocaine seizure that, he argues, is also circumstantial evidence of a cocaine trafficking conspiracy. On June 7, 2018 the police conducted surveillance on Mr. Robinson. His vehicle was observed parked at 665 Falconer Drive, Unit 25, in Mississauga. Mr. Robinson left the residence at 6:53 pm. The police continued to observe the unit.

[76] At 19:35:15[^23] Mr. Robinson and Mr. Malcolm-Evans have a conversation. Mr. Malcolm-Evans says that he is “there.” Mr. Robinson tells him to “go upstairs, go by the… go by the… uh… the sink.” Mr. Robinson gives him further directions to “look in the cupboard to your left hand”. They continue:

MALCOLM-EVANS: Put whatever there, put whatever there?

ROBINSON: Yeah. And… and… and my change.

[77] The police then entered the unit in order to “freeze” it while they obtained a search warrant. Constable Arulandandam testified that he went up the stairs and could hear the toilet flushing. He found Mr. Malcom-Evans in the bathroom. There was white residue on the toilet seat and on the ground. Constable Arulandandam believed it was cocaine or fentanyl. In the event, it tested as cocaine. After obtaining the warrant, the police proceeded to search. The police seized a vacuum sealed bag in an upstairs bedroom that contained what appeared to be a quarter of a brick of cocaine, as well as what appeared to be a debt list and several cell phones. That quarter-brick of cocaine weighed 250.9 grams. The police also found Mr. Robinson’s passport in the residence. The police also found, in the kitchen, $1380 in cash, another quarter brick of cocaine, a scale, and a device to seal packages. The quarter brick of cocaine from the kitchen weighed 252.7 grams.

[78] At 20:37:48[^24] that evening Mr. Robinson has a conversation with Simone. He tells her that the “boys” swarmed the place and that two people were in handcuffs. He mentions that Cause (Mr. Malcolm-Evans’ street name) was arrested.

[79] At 21:49:09[^25] that same evening Mr. Brodricks has a conversation with Mr. Robinson and an unknown male. The unknown male described the police kicking in the door and obtaining a warrant. They told him to take the dog and leave. He warned Mr. Robinson not to come back. Mr. Robinson mentioned that he had been there just before “you guys”. He wondered why the police didn’t come in at that point. They converse again at 23:03:56[^26]. Mr. Brodricks asks “What was this?” They continue:

BRODRICKS: What was this? Ahm, wha… wha… wha… wha… fuck man? Fuck, fuck man.

ROBINSON: A full.

BRODRICKS: What?

ROBINSON: A full.

BRODRICKS: You’re joking.

ROBINSON: No.

BRODRICKS: There?

ROBINSON: Huh? Yeah

[80] Ms. Audet concedes that the intercepted communications establish that Mr. Robinson had an interest in the seized cocaine. She also concedes that Mr. Robinson may have been involved in cocaine trafficking. She concedes as well that Mr. Brodricks may have had some knowledge of Mr. Robinson’s activity. She argues, however, that nothing connected Mr. Brodricks with the seized cocaine. There is nothing to suggest that Mr. Brodricks had any interest in the seized cocaine. She points to intercepted communications where Mr. Robinson expresses alarm about the seizure at Falconer, but Mr. Brodricks does not. There are indeed such communications.

[81] I agree that there is nothing to directly tie Mr. Brodricks to Falconer. I also agree that it seems that Mr. Robinson had more of a financial interest in the seized cocaine than Mr. Brodricks. I cannot, however, agree that the Falconer seizure has no probative value. That seizure cannot be divorced from the totality of the circumstances. Mr. Robinson is clearly associated with the commercial-level amounts of cocaine at Falconer. He and Mr. Brodricks are involved together in “the program.” They clearly had a financial relationship. Mr. Brodricks complained to Mr. Robinson when the “work” was of poor quality, and complained when there was too much “workload”, suggesting that Mr. Robinson was the supplier. It may be that Mr. Brodricks did not have a direct financial interest in the particular cocaine that was flushed down the toilet or seized by the police. That, however, is not the point. I think the point is that the Falconer seizure is circumstantial evidence that “the program” involved cocaine.

[82] When I consider the totality of the evidence, I am satisfied beyond a reasonable doubt that the object of the conspiracy was to traffic cocaine.

[83] Was Mr. Brodricks a member of the agreement? In proving a conspiracy (or any offence involving a joint criminal enterprise) the acts and declarations of one co-actor are admissible against the other co-actors. This is commonly called the co-actors exception (or the co-conspirator’s exception) to the hearsay rule. Martin J.A. explained the rule in R. v. Baron and Wertman (1976), 1976 CanLII 775 (ON CA), 14 O.R. (2d) 173, 31 C.C.C. (2d) 525 (C.A.) at para. 59:

The governing rule of evidence is not in doubt, although its application in a particular case often raises questions of great difficulty. The rule is based upon a principle of agency. If A and B have agreed to achieve a common unlawful purpose, then by their agreement each has made the other his agent to achieve that purpose, with the result that the acts and declarations of A in furtherance of the common design are not only A's acts and declarations but, in law, are also B's acts and declarations. The rule of evidence is not limited to charges of conspiracy but applies to any offence which is the result of preconcert: R. v. Koufis, 1941 CanLII 55 (SCC), [1941] S.C.R. 481. It only comes into play, however, where there is evidence fit to be considered by the jury that the conspiracy alleged between A and B exists. It is clear that where the fact in issue to be proved is whether a conspiracy exists between A and B, A's acts, or declarations implicating B cannot be used to prove that B was a party to the conspiracy, in the absence of some other evidence admissible against B to bring him within the conspiracy.

[84] Martin J.A. reiterated the analysis in R.v. Mota (1979), 1979 CanLII 2966 (ON CA), 46 C.C.C. (2d) 273 (C.A.) at para. 22:

… although the acts and declarations of an alleged co-conspirator in furtherance of the alleged conspiracy may be provisionally admissible, the accused cannot be incriminated or convicted upon such acts and declarations unless there is evidence directly admissible against him, fit for the consideration of the jury, that he was a party to the common design alleged.

[85] There is an evidentiary test to determine if the acts and declarations of alleged co-conspirators are admissible against the accused. The elements of the test were set out in R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938. The test involves three steps:

• The trier of fact must determine based on all of the evidence whether the conspiracy (or joint criminal enterprise) exits. The trier does not decide who is a member at that point;

• The trier of fact must determine whether the accused was probably a member of that conspiracy. The trier of fact may only consider the evidence directly admissible against the accused, although obviously within the context of the other words or declarations from other co-actors; and,

• If the trier of fact gets to this point, he or she may consider the acts and declarations of the co-actors made in furtherance of the joint criminal enterprise against the accused.

[86] The co-actor’s exception to the hearsay rule meets the requirements of the principled approach to the admission of hearsay: R. v. Mapara, 2005 SCC 23 at paras. 23-24 and 31.

[87] I turn now to the application of the Carter test. I must determine first whether the conspiracy to traffic cocaine existed. I am satisfied (as noted above) that it did. I must next determine whether Mr. Brodricks was probably a member of that conspiracy. I must make that decision based on the evidence directly admissible against him. I have little difficulty in finding that he was probably a member of the conspiracy. A key call takes place on May 17, 2018. At 17:41:11[^27] Mr. Robinson, and a female named Nicky discuss “the program”. They discuss who is in the program and who is not in the program. Mr. Brodricks joins the conversation partway through. They discuss his role, as well as Brodricks’ request that Robinson deal with Dre (excerpted):

BRODRICKS: All I’m, all I’m gonna tell you is, that you, like I understand you’re saying, yeah, and I’m the superior look over them, but when somebody calls you and tries to complain to you about anyting, bro this (unintelligible) okay… even if its me, you and Slim that’s in the program, dre is not in the program, okay…

ROBINSON: Bro…

BRODRICKS: But…

ROBINSON: … you’re talking, you’re talking, you’r etalking about, you’re tralking about a fucking pulling Dre to the side. Regardless, Dre has no parts of whatever we’re doing

BRODRICKS: I, I, I understand that, but like I’m telling you, all I ah, that’s all I’m asking from you. You want me, you want me, you want me to run this program how you want it to run, no problem. All I’m asking you is…

ROBINSON: … I, I, yow fams, I told you that you are their boss. I gave you, I, I, I told you that you are their boss. They basically daid you are the boss. Because they said, that what’s it call, anything that they do or whatever they have to report to you, they give you everything. You are their boss. So you know what, you’re gonna have more headaches because you’re there. You are there, present. So you’re the boss, you’re always gonna have headache when you’re a fucking boss…

BRODRICKS: Fam, I, I, I know that, I know when you are on top of management you, there is always gonna be issues…

[88] In that intercepted communication, Mr. Brodricks indicates that he is part of the “program”. The program concerns cocaine trafficking. He also discusses his place in the hierarchy – and adopts Mr. Robinson’s words about his place in the heirarchy. These and other calls demonstrate his probable membership in the conspiracy.

[89] Thus, the acts and declarations of Mr. Robinson (and other members of the conspiracy) in furtherance of that conspiracy are admissible against Mr. Brodricks. In truth, Mr. Brodricks incriminates himself many times over on the intercepts. I mention two events in particular, although there are several others among the intercepted communications.

[90] The acts and declarations in furtherance include the sale of cocaine by Mr. Duncan to Mr. Robinson in the area of Sherway Gardens (observed by the police). It also includes calls between Slim, Dre, and Mr. Robinson that Mr. Brodricks was not party to. For example, in a call I have already mentioned, on May 11, 2018 at 22:25:38[^28] Mr. Robinson tells Slim that he will call Mr. Brodricks to deliver “half a b”. Mr. Brodricks then discusses the sale with Mr. Robinson and goes to the Pizza Pizza, where he sees a police presence.

[91] I have also mentioned the call on April 11 at 2018 19:04:14[^29] where Slim mentions the program and complains to Mr. Robinson about the “bullshit work”. In my respectful view, this is also a declaration in furtherance of the conspiracy.

[92] I am therefore satisfied beyond a reasonable doubt that the Crown has proved this third element of the offence.

[93] Is guilt the only rational inference? As with the trafficking count, I find that there is no reasonable possibility that Mr. Brodricks was conspiring to traffic something other than cocaine, and for many of the same reasons. Again, Mr. Brodricks may have been conspiring to traffic in something other than cocaine as well as cocaine. The evidence that he was conspiring to traffic in cocaine, however, is overwhelming. I say that in light of the frequent references to words associated with cocaine trafficking (as I have already mentioned), and the two cocaine seizures. It would be speculative to find that Mr. Brodricks was conspiring to traffic in something else and not cocaine.

DISPOSITION

[94] Mr. Brodricks is convicted of trafficking in cocaine and conspiracy to traffic in cocaine.

Released: June 25, 2021

COURT FILE NO.: CR-19-50000458-0000

DATE: 20210625

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JERRY BRODRICKS

REASONS FOR JUDGMENT

R.F. Goldstein J.

w

[^1]: Tab 26 of Exhibit 5 (Crown Call Book - referred to in the footnotes that follow simply by tab). [^2]: Tab 29 [^3]: Tab 30 [^4]: Tabs 36 and 37 [^5]: Tab 41 [^6]: Tab 42 [^7]: Tab 43 [^8]: Tab 1 [^9]: Tab 5 [^10]: Tab 6 [^11]: Tab 7 [^12]: Tab 9 [^13]: Tabs 11 and 12 [^14]: Tab 14 [^15]: Tab 15 [^16]: Tab 16 [^17]: Tab 17 [^18]: Tab 18 [^19]: Tab 28 [^20]: Tab 32 [^21]: Tab 33. [^22]: Tabs 34 and 36. [^23]: Tab 68 [^24]: Tab 69 [^25]: Tab 71 [^26]: Tab 74 [^27]: Tab 46 [^28]: Tab 41 [^29]: Tab 16