R. v. Eric Rivard

COURT FILE NO.: CR-21-10000007-00MO DATE: 2021-09-08 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. ERIC RIVARD

BEFORE: MOLLOY J.

COUNSEL: Allison Lee, for the Applicant/Defendant Michael Bernstein, for the Respondent/Crown

HEARD: June 2, 2021

ENDORSEMENT

Introduction

[1] Eric Rivard was charged with one count of possession of fentanyl for the purpose of trafficking. This was one of a myriad of charges laid against multiple individuals after a large criminal investigation known as Project Kraken. The charge involving Mr. Rivard proceeded to a preliminary hearing along with seven other accused persons, continuing for ten days before the Honourable Justice M. Block in the Ontario Court of Justice. Block J. delivered judgment on November 20, 2020, committing all of the accused to trial on all 39 charges before him.

[2] Mr. Rivard brings this application by way of certiorari, seeking to have his committal for trial quashed. The reasons of the preliminary hearing judge are sparse with respect to this particular accused. However, I am satisfied that they are sufficient to permit a proper review and to conclude that there was some evidence upon which he could reach the decision he did. For the reasons that follow, this application is dismissed.

[3] I heard this application together with that of one of the other individuals on the indictment, Omaid Rahmani, but have delivered separate reasons for my decision in that case.[^1]

The Facts

[4] On June 25, 2019, Mr. Rivard drove Edward Greco from Sudbury to Hamilton, and then, on June 26, drove him back to Sudbury. Sudbury police arrested both men upon their return to Sudbury in the car. At that time, Mr. Rivard was in the driver’s seat and Mr. Greco was in the front passenger seat. Police seized a white grocery bag from the floor of the front passenger seat, inside which was a box containing six ounces of fentanyl. This is the subject of the sole charge against Mr. Rivard. Mr. Greco is also jointly charged. Other drugs were found on Mr. Greco’s person, but Mr. Rivard is not charged in connection with those.

[5] Mr. Rivard’s co-accused on this charge, Mr. Greco, was one of the targets of the Project Kraken investigation. There was an authorized wiretap on Mr. Greco’s phone. Police intercepted an exchange of telephone calls and text messages between Mr. Greco and a cell phone registered to Eryk Rivard. As a result of those and other intercepts, police believed Mr. Greco was a drug dealer and that one of his suppliers, Mohamed Aden, lived in Hamilton. They further believed that Mr. Rivard had been enlisted by Mr. Greco to drive him to Hamilton for the purpose of picking up drugs from Mr. Aden.

[6] Cellphone intercepts reveal that on June 25, 2019 Mr. Greco and Mr. Rivard travelled together from Sudbury, leaving Sudbury at 7:45 p.m. and heading south. They stopped at a Travelodge in Richmond Hill for the night. A green Pontiac Sunfire with license plates registered to Eric Rivard was parked outside the Travelodge. This is the same car both men were in at the time of their arrest in Sudbury the next day.

[7] Mr. Greco met with Mr. Aden in Hamilton shortly after 4:40 p.m. on June 26, 2019, at a park near Aden’s residence. Immediately after Mr. Greco and Mr. Aden texted goodbye to each other, Mr. Greco texted his location to Mr. Rivard’s phone. Mr. Rivard then drove Mr. Greco back to Sudbury, at which point they were both arrested.

[8] The cellphone attributed to Mr. Rivard is registered to Eryk Rivard at Unit #2, 389 Antwerp Ave., Sudbury. In one of the texts with Mr. Greco, the person using this phone says that he lives on Antwerp. The address for Mr. Rivard on file with the Sudbury police is 387 Antwerp St., #3, Sudbury.

[9] In addition to the intercepted calls on June 25 and 26, there was evidence of calls between Mr. Greco and Mr. Rivard a few days before. In those calls, there is good reason to believe that Mr. Rivard is referring to a shipment of drugs that was supposed to have been delivered to Sudbury and which did not arrive. The calls refer to the people who were supposed to deliver the drugs suddenly going missing. This was at the same time as police arrested Mr. Rahmani and another co-accused Mr. Lewis, and seized the drugs in their possession.[^2]

Reasons for Committal

[10] In the only portion of his reasons dealing specifically with the charge against Mr. Rivard, the preliminary hearing judge stated:

A substantial amount of fentanyl was found concealed in a Blackberry box on the floor in the front passenger area of the Sunfire on June 26, 2019. I do not agree that there is no evidence that the driver, Rivard, knew of the existence of the fentanyl. In intercepts dated June 23, 2019 Rivard makes comments that clearly reference the unsuccessful delivery of drugs to Sudbury of that date and establish his anticipation of a successful transfer of drugs on June 26. He stands committed in respect of Count 34.

Issues Raised

[11] The applicant submits that the preliminary hearing judge committed two reversible errors undermining the committal for trial: (1) he drew a conclusion about the accused’s knowledge of the drugs that was purely speculative, rather than an inference rooted in the evidence; and, (2) he failed to address the complete absence of evidence on the issue of control, an essential element to constitute possession.

The Test to be Applied

[12] This is not an appeal. The only basis upon which this court can intervene is where the preliminary hearing court judge has lost jurisdiction. A preliminary hearing judge loses jurisdiction if he or she orders committal in the absence of any evidence upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt.[^3]

[13] The test to be applied for committal to trial is the same, whether the evidence is direct or circumstantial. Where there is no direct evidence of an essential element of an offence, the preliminary hearing judge must assess whether the circumstantial evidence is reasonably capable of supporting an inference of guilt. The inference consistent with guilt is not required to be the only inference, or even the most compelling one, but it is required to be a reasonable one that is rooted in the evidence, as opposed to being mere speculation. The Crown’s case must be taken at its highest. Only inferences consistent with the Crown’s case are permitted to be drawn.[^4]

Analysis

[14] The hearing judge referred to Mr. Rivard’s conversations with Mr. Greco on June 23, 2019, as shown in the intercepts. Although the hearing judge did not make a specific finding that there was evidence connecting Mr. Rivard to that phone, it is clear from his reasons read in context that he considered that to be the case. Counsel for Mr. Rivard argued that the hearing judge committed jurisdictional error in failing to refer to the identification of Mr. Rivard’s voice. Again, in my view, there is an available inference based on the whole of the evidence that this was Mr. Rivard’s phone and given the context, it is a reasonable conclusion that it was Mr. Rivard speaking. Since these are reasonable inferences supportive of the Crown’s position, the hearing judge was required to draw them. I find no jurisdictional error. When the discussions on June 23 are read together with the text messages on June 25 and June 26, there is an available reasonable inference that Mr. Rivard knew Mr. Greco was a drug dealer and that he was going to Hamilton to obtain drugs to be brought back to Sudbury. It follows that there is an available inference that Mr. Rivard agreed to drive Mr. Greco to Hamilton and back for that purpose. Again, these are inferences the hearing judge was required to draw.

[15] Mr. Rivard was the driver of the car. Clearly, control of the car is not the same as control of its contents. The fentanyl was not in plain view, but hidden inside a box inside another bag. However, if Mr. Rivard can be fixed with knowledge of the purpose of the trip to and from Hamilton, then there is also an available inference that he knowingly permitted the drugs to be in his car, putting him in joint possession of them.

[16] I recognize that there are other available inferences. However, the inferences drawn, in my view, are rooted in the evidence and go beyond mere speculation.

Conclusion

[17] I find no basis to intervene. This application is dismissed.

Date: September 8, 2021

[^1]: R. v. Rahmani, 2021 ONSC 5716. [^2]: See Rahmani. [^3]: R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 21; R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 16; R. v. Skogman, [1984] 2 S.C.R. 93, at p. 106; United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21; R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 53. [^4]: Arcuri, at para. 23; Sazant, at para. 18; R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 84-91.