COURT FILE NO.: CR-20-50000044-0000

DATE: 20210916

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Carolyn Otter and Adam Schultz for the Crown

• and -

KYLE ALLEGRO

SHAQUILLE BELLE

MARCUS CUMSILLE

Marco Forte for Kyle Allegro

Dirk Derstine for Shaquille Belle

Hilary Dudding for Marcus Cumsille

HEARD: January 4, 6, 11 - 13, 15, 20 - 22, 25 - 28, February 1, 2, 4, March 25 and 26, 2021

REASONS FOR JUDGMENT

TABLE OF CONTENTS

INTRODUCTION.. 1

TRIAL PROCESS. 1

OVERVIEW OF THE ALLEGATIONS. 2

Counts 1 to 3. 2

Count 4. 2

Count 5. 3

Count 6. 3

Count 7. 3

Counts 8 to 10. 3

GENERAL LEGAL PRINCIPLES. 4

The Presumption of Innocence and the Burden of Proof. 4

Elements of Conspiracy. 4

Circumstantial Evidence. 5

COUNTS 1 & 3 – BELLE & CUMSILLE – CONSPIRACY TO TRAFFIC A FIREARM COUNT 2 – CUMSILLE – OFFER TO TRANSFER A FIREARM... 5

Overview.. 5

The Crown’s Evidence. 6

Intercepted Calls. 6

Mr. Cumsille’s Evidence. 8

Personal Background. 8

Relationship with Mr. Belle. 9

The Phone Calls in March. 9

The Phone Calls in June. 10

Analysis – Count 1 – Conspiracy to traffic a firearm, March 2018. 11

Was there a meeting of the minds between Mr. Belle and Mr. Sewell to pursue the unlawful object of trafficking a firearm?. 11

Did Mr. Cumsille intend to carry out the common design of trafficking a firearm?. 12

Analysis – Count 2 – Offer to transfer a firearm.. 15

Analysis – Count 3 – Conspiracy to traffic a firearm, June 2018. 17

COUNT 4 – ALLEGRO – CONSPIRACY TO TRAFFIC IN CONTROLLED SUBSTANCE.. 18

The Evidence. 19

The Funeral Home Delivery. 19

Drug Trafficking Business. 20

Analysis. 21

The Funeral Home Delivery. 21

The Drug Trafficking Business. 23

COUNT 5 – BELLE – CONSPIRACY TO COMMIT ROBBERY.. 26

Evidence. 26

Analysis. 28

COUNT 6 – BELLE – CONSPIRACY TO COMMIT ROBBERY COUNT 7 – BELLE – CONSPIRACY TO TRAFFIC IN CONTROLLED SUBSTANCE.. 29

Evidence. 29

Analysis. 30

COUNTS 8 to 10 – CRIMINAL ORGANIZATION OFFENCES. 32

Overview.. 32

The Charges. 32

The Legal Framework. 32

Evidence. 34

The Music Videos. 34

Name of the Group, Shots Up Mafia. 35

Territoriality. 35

Hierarchy. 36

Roles …………. 36

Support for Members in Jail 38

Analysis. 38

DISPOSITION.. 41

CORRICK J.

INTRODUCTION

[1] Kyle Allegro, Shaquille Belle and Marcus Cumsille are charged in a multi-count indictment with several conspiracy, drug, firearm and criminal organization offences contrary to the Criminal Code and Controlled Drugs and Substances Act (“CDSA”). The charges arise from a police investigation known as “Project Patton,” during which the Toronto Police Service intercepted and recorded the telecommunications of the accused men pursuant to a judicial authorization.

[2] The Crown alleges that the defendants are members of a criminal organization, sometimes known as the Shots Up Mafia, operating around Dundas Street West and Scarlett Road, in Toronto’s west end. According to the Crown, this organization was involved in robberies and in trafficking drugs and firearms.

TRIAL PROCESS

[3] With the consent of all counsel and the three defendants, the trial proceeded by videoconference using the Zoom platform.

[4] The trial was very efficiently and skillfully prosecuted and defended by counsel, who worked together to accommodate the vagaries of scheduling and conducting a virtual trial with multiple participants, all logging in from different locations. I thank them for their able assistance.

[5] The Crown’s case relied heavily on more than 100 intercepted communications between the defendants and others, all of which were heard during the trial. Every intercepted communication is assigned a session number, which I will refer to when speaking of a specific communication. The defendants have conceded that they are the speakers in the calls that the Crown has ascribed to them.

[6] Fourteen rap music videos were also played and filed. Two Agreed Statements of Fact were filed.

[7] In addition, I heard the evidence of several members of the Toronto Police Service, three of whom were qualified to provide opinion evidence.

[8] Ms. Elizabeth Allen, a civilian employee, was qualified as an expert in the translation of Patois to English.

[9] Detective Richard Duffus was qualified, on consent, to give opinion evidence on several matters related to the illicit drug trade, including the quantities, price and purity of drugs, the significance of packaging and other drug paraphernalia, the drug hierarchy, methods of distribution and the role of cash. Following a voir dire, I ruled that he could also provide opinion evidence on the meaning of “coded” or guarded language used in the illicit drug trade.

[10] I also qualified Detective Constable Ryan Smith, on consent, to give opinion evidence about the possession and trafficking of firearms and ammunition. Counsel for Mr. Belle and Mr. Cumsille, however, objected to D. C. Smith giving evidence about “coded” words commonly used in firearms trafficking. Following a voir dire, I ruled that D. C. Smith could testify about the use of slang or “coded” language by persons engaged in firearms trafficking and the meaning of words and phrases that in his experience are commonly used in firearms trafficking.

[11] At the outset of the trial, Mr. Allegro pleaded guilty to Count 4, conspiracy to traffic in a controlled substance. The controlled substance was not particularized in the count. Mr. Allegro admitted all the essential elements of the offence, including the fact that the substance was one listed in Schedules I or II of the CDSA. Counsel agreed that the court would determine the nature of the substance based on the evidence heard at trial.

[12] Mr. Belle and Mr. Allegro did not call any evidence. Mr. Cumsille testified in his own defence.

OVERVIEW OF THE ALLEGATIONS

[13] The Crown alleges that the defendants are members of, or associated with, a criminal organization that included Mr. Belle’s brother, Jason Sewell, men known as Glizzie, Chin and 40, and others. Mr. Belle and Mr. Sewell are alleged to be the leaders of the organization. Mr. Belle ran the organization from inside the penitentiary, where he was detained, while Mr. Sewell ran it on the street. Glizzie, Chin and Forty worked for Mr. Sewell on the street.

[14] Mr. Allegro and Mr. Belle were both incarcerated in the Donnacona Penitentiary during the time relevant to these charges, between March 7 and June 20, 2018. They were housed in adjoining cells.

Counts 1 to 3

[15] Mr. Belle and Mr. Cumsille are charged in Counts 1 and 3 with conspiracy to traffic in a firearm. The Crown alleges that Mr. Belle and Mr. Cumsille agreed to purchase firearms to arm the members of the criminal organization by the summer. Count 2 charges Mr. Cumsille with offering to transfer a firearm.

Count 4

[16] Mr. Allegro is charged with conspiring to traffic in a controlled substance. The Crown alleges that Mr. Allegro and Mr. Sewell worked together in the drug trafficking business. Mr. Sewell sold drugs on their behalf while Mr. Allegro was in custody. The Crown also alleges that Mr. Allegro arranged to have Mr. Sewell deliver and conceal drugs in a funeral home where Mr. Allegro could retrieve them when on leave from the penitentiary to attend his mother’s funeral. The Crown alleges that the two men conspired to traffic in heroin and cocaine. Mr. Allegro disputes the nature of the substances.

Count 5

[17] Mr. Belle is charged with conspiracy to commit robbery. It is alleged that Mr. Belle instructed Mr. Sewell to call a third man, who would pay Mr. Sewell to rob some people in Mississauga.

Count 6

[18] This is a second count of conspiracy to commit robbery against Mr. Belle. The Crown alleges that Mr. Belle and Forty conspired to rob two pimps.

Count 7

[19] Mr. Belle is charged with conspiring to traffic in a controlled substance. The Crown alleges that Mr. Belle and Forty agreed that Forty would fly drugs on to the prison grounds by a drone. Forty would be paid between five and ten thousand dollars to do this.

Counts 8 to 10

[20] The defendants are alleged to have committed specific offences for the benefit of, at the direction of or in association with a criminal organization. The final three counts on the indictment relate to this allegation.

[21] Count 8 charges Mr. Allegro with trafficking in a controlled substance for the criminal organization.

[22] Count 9 charges Mr. Belle and Mr. Cumsille with trafficking in firearms for the criminal organization.

[23] Mr. Belle is charged in Count 10 with being a member of a criminal organization and instructing a person to traffic in firearms for the organization.

[24] These reasons will deal first with some general legal principles, then with the firearms trafficking charges involving Mr. Belle and Mr. Cumsille, followed by the offences charged against Mr. Allegro and Mr. Belle individually. Finally, I will deal with the criminal organization charges against all three defendants.

GENERAL LEGAL PRINCIPLES

The Presumption of Innocence and the Burden of Proof

[25] My analysis of the evidence in this trial is governed by fundamental principles that apply to all criminal trials.

[26] The first is the presumption of innocence. The defendants began this trial presumed to be innocent. Subject only to Mr. Allegro’s guilty plea, the presumption has remained with the defendants throughout the trial. It is only displaced if and when Crown counsel proves the essential elements of the offences beyond a reasonable doubt. It also means that the defendants do not have to prove that they are innocent of any of these crimes.

[27] The second is that the Crown bears the burden of proving the defendants’ guilt on any count beyond a reasonable doubt. This is a very high standard. Probable guilt is not enough. It is not proof of guilt beyond a reasonable doubt. On the other hand, the Crown is not required to establish guilt with absolute certainty. Nevertheless, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242.

Elements of Conspiracy

[28] To secure a conviction for the offence of conspiracy, the Crown must prove three essential elements: 1) an intention to agree; 2) the completion of an agreement to commit an indictable offence; and 3) an intention to carry out the agreement: R. v. O’Brien, 1954 42 (SCC), [1954] S.C.R. 666, at 668; R. v. Cotroni, 1979 38 (SCC), [1979] 2 S.C.R. 256, at 276-277; R. v. Root 2008 ONCA 869, at para. 66.

[29] The essence of conspiracy is an agreement between two or more people to act together to pursue a common criminal objective: R. v. Blake, 2005 32566 (ON CA), [2005] O. J. No. 3777 (Ont. C.A.), at para. 46. Discussing or negotiating the commission of a crime with another person, without an agreement, is insufficient: R. v. Déry, 2006 SCC 53, [2006] 2 S.C.R. 669, at para. 51. On the other hand, the Crown need not prove that the conspirators have worked out all the details of the proposed crime to establish an agreement: R. v. Marshall, 2015 ONSC 4593, at para. 48.

[30] A conspiracy must involve a meeting of the minds. Each conspirator must intend to carry out the criminal objective. A person who only pretends to agree to carry out the common design cannot be a conspirator: U.S.A. v. Dynar, 1997 359 (SCC), [1997] 2 S.C.R. 462, at para. 88.

Circumstantial Evidence

[31] The Crown’s case relies in large part on circumstantial evidence. There is no written contract setting out the details of an agreement between any of the defendants. There are no membership cards showing that any of the defendants are members of a criminal organization. Instead, I am asked to come to these conclusions based on inferences drawn from other evidence, such as the intercepted communications and music videos.

[32] The proper approach to circumstantial evidence and proof beyond a reasonable doubt was discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000. A trier of fact should not draw an inference of guilt from circumstantial evidence unless it is the only reasonable inference that the evidence permits. Inferences consistent with innocence may be based on evidence or the absence of evidence. Alternative inferences, whether based on the evidence or a lack of evidence, “must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”: Villaroman, at paras. 30, 35 – 37.

[33] Circumstantial evidence is not to be considered piecemeal. Rather, the evidence as a whole must be assessed in determining whether the Crown has proven the charge beyond a reasonable doubt. The standard of reasonable doubt does not apply to individual pieces of circumstantial evidence: R. v. Smith, 2016 ONCA 25, at paras. 81 – 82; R. v. Lights, 2020 ONCA 128, at para. 37.

[34] With these principles in mind, I turn to the counts in the indictment. I deal with other legal principles as they arise in relation to the individual counts on the indictment.

COUNTS 1 & 3 – BELLE & CUMSILLE – CONSPIRACY TO TRAFFIC A FIREARM COUNT 2 – CUMSILLE – OFFER TO TRANSFER A FIREARM

Overview

[35] Count 1 alleges that Mr. Belle and Mr. Cumsille conspired with another person on March 28, 2018, to traffic a firearm. The Crown alleges that Jason Sewell was the other person in that conspiracy. Count 2 relates to the same firearm and alleges that Mr. Cumsille offered to transfer a firearm on March 28, 2018. Count 3 relates to a second transaction between Mr. Belle and Mr. Cumsille and alleges that they conspired together between June 6 and 14, 2018 to traffic a firearm. The evidence in support of these three counts is contained in a series of 19 phone calls and text messages.

[36] Mr. Cumsille testified that although he agreed to Mr. Belle’s proposal to sell him a gun, he never intended to follow through on his agreement, and merely pretended to agree to placate Mr. Belle. He also testified that there was only a single agreement made in March 2018. The phone calls and text messages in June 2018 were following up on the March agreement.

The Crown’s Evidence

Intercepted Calls

[37] Mr. Belle called his younger brother, Jason Sewell on March 28, 2018 at 2:08 a.m. and told him to tell Mr. Cumsille that he wanted to buy “that thing he’s selling.” Mr. Belle told Mr. Sewell that he only wanted to pay $2,500 because he was just going to give it back to the “men.” Mr. Belle said that his plan was to buy all he could and give “all you shots up little fucking waste kids” ten of them by summer. [1]

[38] Mr. Belle called Mr. Sewell twice more that day to see if he had called Mr. Cumsille. Mr. Sewell tried to discourage Mr. Belle from buying what Mr. Cumsille was selling, telling him that he did not need that “big ass shit.” Belle disagreed saying that, “you guys need tall-ups.”[2]

[39] At 3:00 p.m., Mr. Sewell spoke with Mr. Cumsille. He told him that, “my bro said that he heard that you’re trying to sell that, and he’ll give you the money right now.” The following conversation ensued:

CUMSILLE: How much was he … is he gonna give me, bro?

SEWELL: How much do you want?

CUMSILLE: Like, I paid thirty-five, bro mm uh … like twenty-nine.

SEWELL: Bye. I’ll call you back right now.[3]

[40] A moment later, Mr. Sewell called Mr. Belle and reported that Mr. Cumsille wanted $2,900. When Mr. Belle said that he was only going to give Mr. Cumsille $2,500, Mr. Sewell replied, “I don’t care bro. He said twenty-nine.”[4]

[41] At Mr. Belle’s direction, Mr. Sewell joined Mr. Cumsille into the call. Mr. Belle told Mr. Cumsille directly that he wanted to buy “that” right now and asked, “Where do I send the money?” Mr. Cumsille asked him if he wanted to email it. Mr. Belle said yes, but he would only pay $2,500, not $2,900. Mr. Belle told Mr. Cumsille that he was going to buy it from him and send it “to these young niggers in Scarlett.” The conversation continued:

BELLE: … Give me a email I’m a send you twenty-five hundred and then fucking drop that off to the young niggers.

CUMSILLE: All right, just send me that, bro.

BELLE: Yeah, is twenty-five good?

CUMSILLE: Yeah bro, just ‘cause it’s you.

BELLE: ‘Cause it’s going right back to the same circle. I don’t want nothing leaving …

CUMSILLE: I know, I know …

BELLE: … our circle right now, bro.

CUMSILLE: I know.[5]

[42] Following this phone call, Mr. Belle called Mr. Sewell and told him that he was going to buy “that” from Mr. Cumsille and give it to “Sixteen.” Mr. Belle asked Mr. Sewell to call Mr. Cumsille and tell him that. Mr. Sewell replied, “Don’t worry bro. I’ll just know already, just stop the phone talking, please bro.”[6]

[43] Two days later, on March 30, 2018, Mr. Sewell called Mr. Cumsille looking to buy some “izzie,” which Mr. Cumsille testified was slang for heroin or fentanyl. Mr. Cumsille said that he had no drugs. Mr. Sewell said that his “runners got knocked on the highway with everything,” and he lost everything. While Mr. Sewell was telling him what happened, Mr. Cumsille brought up the issue of the firearm. He said, “So yow, you’re not gonna go draw for [get] There is no dispute that and give it to the young niggers?” Mr. Sewell said that he did not care about that, he had money to make. Mr. Cumsille asked, “So who the fuck are you gonna send for it? I don’t want it at this guy’s house no more, bro.” Again, Mr. Sewell told him that he did not care about that; it was his brother’s business and had nothing to do with him. He told Mr. Cumsille to tell Glizzie to get it. [7]

[44] There is no dispute that throughout these conversations, Messrs. Belle, Sewell and Cumsille are discussing Mr. Belle’s purchase of a firearm from Mr. Cumsille.

[45] The next communication relevant to Counts 1 to 3 occurred on June 3, 2018 when Mr. Belle was speaking to a man called Forty. He told Forty that he was buying Glizzie a “thing” next week. He later said that he was going to buy Glizzie a “tape” out of his own pocket and give it to Glizzie for free. He said that Glizzie should have it by next week.[8]

[46] On June 6, 2018, Mr. Belle sent a text message to Glizzie and told him to answer his phone because he had a “tall ups” for him.[9]

[47] Mr. Belle spoke to Glizzie by phone moments later and told him that he had a “stick” for him. He said it was a “tall-ups for the hood” and he wanted Glizzie to pick it up. Mr. Belle added Mr. Cumsille to the call, told him that Glizzie was on the line and that he was going to pick “that” up. Mr. Cumsille directed Glizzie to meet someone at Long Branch and Lakeshore. Mr. Belle asked Mr. Cumsille to give his “boy” Glizzie’s number, “so he can have something for the block right now ‘cause they need it.” The call ended with Mr. Cumsille saying he would call Glizzie when it was ready to be picked up.[10]

[48] On June 10, 2018, Mr. Belle sent Glizzie a text message inquiring whether he had picked “that” up.[11] When Glizzie replied that he had not received a call, Mr. Belle gave him Mr. Cumsille’s phone number and instructed Glizzie to call him.[12] When Glizzie called Mr. Cumsille, Mr. Cumsille said that his “boy” would be there later that night or in the morning, and would call Glizzie.[13]

[49] Mr. Belle sent Glizzie a text message on June 14, 2018 asking him whether he had spoken to Mr. Cumsille.[14] Glizzie replied that Mr. Cumsille had told him that someone would call him, but no one had.[15]

Mr. Cumsille’s Evidence

Personal Background

[50] Mr. Cumsille is 27 years old. He was born in Scarborough and lived in the Galloway neighbourhood until he was 8 or 9 years old, when he and his mother moved to the Lakeshore neighbourhood.

[51] Music is a big part of his life. He dreams of being a musician. He started writing and recording music in 2012. He recorded two videos with some friends, who then invited him to be part of their gangster rap group called Shots Up Mafia. With the group, he recorded numerous videos and played live performances as the opening act for major Canadian and American rappers. He last rapped with Shots Up Mafia in 2015. After he was released from jail in 2016, he recorded some solo videos and then joined a rap group called Not Nice.

[52] Fourteen rap videos featuring Mr. Cumsille were made exhibits at this trial. The lyrics refer to a lifestyle of crime, drugs, prison, guns, poverty, and violence.

[53] Mr. Cumsille testified that to be successful as a rap artist, listeners must believe that the rapper is real and rapping about real things in his life. He said that no one wants to listen to a rapper who is a fake and raps about a lie.

Relationship with Mr. Belle

[54] Mr. Cumsille met Mr. Belle and Mr. Sewell in 2009. Mr. Cumsille and Mr. Belle were 15 years old; Mr. Sewell was 11 or 12 years old. Messrs. Cumsille and Belle became friends over the following two years, after which Mr. Belle went to jail. Mr. Belle was still in jail when he contacted Mr. Cumsille in March 2018.

[55] Mr. Belle called Mr. Cumsille periodically from jail asking for small favours, such as sending him canteen money or sending flowers to a girl. Other than sending Mr. Belle canteen money four or five times, Mr. Cumsille did no other favours for Mr. Belle. Mr. Belle often forgot about the requests he had made of Mr. Cumsille from one phone call to the next. Mr. Cumsille explained that Mr. Belle would call him numerous times over a few days and then not again for months.

[56] Mr. Cumsille described two different sides of Mr. Belle’s personality. One day he will be animated, explaining his outrageous ideas and plans to Mr. Cumsille. Those plans would disappear, and the next day he will be dark and angry, making disparaging comments about others.

[57] Although Mr. Belle had been in prison for seven years in 2018, Mr. Cumsille testified that he remained an influential person on the street. He was well-known and respected and had many friends. He continued to speak to many people from prison.

The Phone Calls in March

[58] Mr. Cumsille testified that when Mr. Sewell called him on March 28, 2018 and said that his brother had heard that “you’re trying to sell that,” he knew he was referring to a firearm because the words “that,” “it” and “thing” refer to a firearm in his community. He did not know the source of Mr. Belle’s information. He denied posting a firearm for sale on social media.

[59] Mr. Cumsille did not have a firearm to sell and did not intend to sell Mr. Belle a firearm. He testified that he pretended to have a firearm to sell to keep Mr. Belle happy. He said that he did that for several reasons. On the street, it is important to be seen as helping. If he had said that he did not want to sell a gun, that would be a sign of disrespect. If he had said that he did not have a gun to sell, Mr. Belle might tell people on the street that he was a fake and was rapping about a lie. That would be very damaging to Mr. Cumsille’s rap career. It would also make Mr. Cumsille an easy target if it was known on the street that he did not have a firearm. Finally, he testified that Mr. Belle was often suspicious of his friends and if Mr. Cumsille had said that he did not have a firearm or that he had already sold it, Mr. Belle would think he had sold it to people who were against him.

[60] In their conversation on March 28, Mr. Cumsille asked Mr. Belle if he wanted to email the money for the firearm. Mr. Belle agreed and asked Mr. Cumsille to send him his email address. Mr. Cumsille testified that he never did. Later in the conversation, Mr. Cumsille suggested that Mr. Belle not buy the firearm. Mr. Cumsille testified that he did not want Mr. Belle to send him money because he had no gun to sell to him and did not intend to sell him one.

[61] In the same conversation, Mr. Belle asked Mr. Cumsille if he had any more firearms that he could buy. Mr. Cumsille testified that he invented a story about having seen Brown with four guns to divert Mr. Belle’s attention away from him.

[62] Mr. Cumsille testified that he assumed that Mr. Belle would follow his regular pattern and forget about his request in a few days. In addition, Mr. Cumsille was planning to leave for British Columbia a few days after this call. It was an agreed fact in this trial that Mr. Cumsille was in Vancouver from April 12, 2018 to June 17, 2018.

[63] Mr. Cumsille testified that when Mr. Sewell called him on March 30, 2018 asking to buy heroin or fentanyl, he raised the issue of the firearm because he was nervous that someone may come to his house to pick it up and put him in a bad situation because he had no firearm. He was also nervous that Mr. Sewell might go to his mother’s or stepmother’s home looking for him and the firearm, which would displease his parents. To avoid this, he told Mr. Sewell that the firearm was at a “guy’s” house. Mr. Cumsille dropped the subject once Mr. Sewell said it was Mr. Belle’s issue, not his, and he did not care about it.

The Phone Calls in June

[64] Mr. Cumsille testified that he did not hear about the firearm again until he was in British Columbia and Mr. Belle called him on June 6, 2018 with Glizzie on the call. Mr. Cumsille did not know Glizzie and had never spoken to him before. He testified that he made up the story about calling someone to meet Glizzie and provided complicated directions to a meeting place to make things more difficult. Mr. Cumsille did nothing to obtain a firearm.

[65] Mr. Cumsille was caught off guard when Glizzie called him again on June 10 and he had to think quickly. He told Glizzie that he would send Glizzie’s phone number to the person who had the firearm and Glizzie could expect to hear from that person later that night. Mr. Cumsille testified that he did not send Glizzie’s phone number to anyone. He was simply continuing to pretend to sell a firearm to Mr. Belle.

[66] Mr. Cumsille testified that he knew that Mr. Belle was not trying to buy a firearm for himself. There is no evidence that Mr. Cumsille transferred a firearm to anyone.

Analysis – Count 1 – Conspiracy to traffic a firearm, March 2018

[67] Mr. Belle concedes that he was trying to buy a firearm from Mr. Cumsille. The evidence is clear that Mr. Belle was not buying the firearm for his own use, but to transfer it to others. As Mr. Cumsille testified, Mr. Belle cannot have a firearm in prison. It is also clear that Mr. Sewell and Mr. Cumsille knew that Mr. Belle wanted to buy a firearm to transfer to others. Mr. Belle told both men that.

[68] The Crown argues that Mr. Belle conspired with Mr. Sewell and with Mr. Cumsille to traffic a firearm.

[69] There are two issues for determination:

1. Has the Crown proved beyond a reasonable doubt that there was a meeting of the minds between Mr. Belle and Mr. Sewell to pursue the unlawful object of trafficking a firearm?

2. Has the Crown proved beyond a reasonable doubt that Mr. Cumsille intended to carry out the common design of trafficking a firearm?

[70] Before analyzing the evidence, I remind myself that I can accept some, none, or all of the evidence of any witness.

[71] In addition, I am required to analyze the evidence in accordance with the approach set out by the Supreme Court of Canada in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. If I believe Mr. Cumsille’s evidence, I must find him not guilty. Even if I do not believe his evidence, if it leaves me with a reasonable doubt, I must find him not guilty. Even if his evidence does not leave me with a reasonable doubt, I must find him not guilty unless I am satisfied beyond a reasonable doubt on the basis of all of the evidence that I accept that he is guilty.

[72] I must consider Mr. Cumsille’s evidence in the context of the evidence as a whole rather than in isolation.

Was there a meeting of the minds between Mr. Belle and Mr. Sewell to pursue the unlawful object of trafficking a firearm?

[73] “The actus reus of the crime of conspiracy lies in the formation of an agreement, tacit or express, between two or more individuals, to act together in pursuit of a mutual criminal objective:” R. v. Blake, 2005 32566 (ON CA), [2005] O.J. No. 3777 (C.A.), at para. 46 [Emphasis added.]

[74] Mr. Belle and Mr. Sewell did not agree to pursue a mutual criminal objective. Mr. Sewell expressed his disinterest in acquiring a firearm from the beginning. He told Mr. Belle that he did not need that “big ass shit.”[16] He abruptly ended a conversation with Mr. Belle when Mr. Belle was trying to persuade him that he needed what Mr. Cumsille was selling.[17] He was indifferent when Mr. Belle told him that he would not pay the price of $2,900 that Mr. Cumsille was asking and then hung up while Mr. Cumsille and Mr. Belle were negotiating the price.[18] Mr. Sewell refused to call Mr. Cumsille back for Mr. Belle to tell him who the recipient of the firearm was to be.[19] Later, when Mr. Cumsille asked Mr. Sewell whether he was going to pick up the firearm, Mr. Sewell replied that he did not care about that; it was Mr. Belle’s issue and had nothing to do with him.[20]

[75] There was no consensus or meeting of the minds between Mr. Belle and Mr. Sewell to traffic a firearm. At best, Mr. Sewell aided Mr. Belle to traffic a firearm by contacting Mr. Cumsille to find out the price and adding Mr. Cumsille to a telephone conversation he was having with Mr. Belle.

[76] The Crown has not proved beyond a reasonable doubt that Mr. Sewell and Mr. Belle conspired to traffic a firearm.

Did Mr. Cumsille intend to carry out the common design of trafficking a firearm?

[77] If Mr. Cumsille merely pretended to have a gun to sell to Mr. Belle, there can be no conspiracy between him and Mr. Belle.

[78] After carefully considering Mr. Cumsille’s evidence in the context of all of the evidence, I am left with a reasonable doubt about whether he had a genuine intention to agree to transfer a firearm or to transfer a firearm.

[79] Mr. Cumsille was a reasonably good witness. He answered questions directly and was not evasive. He was frank about his criminal activity and the criminality of some of his friends. He did not hesitate to identify people in the rap videos when asked. He was required to expose himself in public as a person prepared to mislead a friend and a respected person in the community. His evidence remained consistent even after an entire day of cross-examination. It was also consistent with other evidence in the case.

[80] There was nothing inherently implausible about Mr. Cumsille’s evidence. Viewed in isolation, his explanation for his behaviour did not seem logical but when considered in light of all of the evidence, particularly the intercepted communications, it was logical and understandable.

[81] Mr. Cumsille has a criminal record, which includes entries for fail to comply with a youth sentence, fail to comply with a recognizance, fail to appear in court and most recently, in 2017, assault and fail to comply with a recognizance. I have considered his record as one factor in assessing his credibility. I have not placed significant weight on it.

[82] The Crown argues that Mr. Cumsille’s evidence that he only pretended to agree should be rejected because it is self-serving and contradicts the plain language of the telephone calls. Furthermore, it is contradicted by the fact that Mr. Cumsille posted the firearm for sale and repeatedly raised the matter in an unrelated conversation with Mr. Sewell.

[83] I agree that Mr. Cumsille’s evidence is contrary to the language in the calls. That is not surprising given that Mr. Cumsille testified that he was lying to Mr. Belle but wanted him to believe his offer to sell him the firearm. I do not consider his evidence self-serving simply because it does not accord with the Crown’s theory of the case.

[84] I do not accept the Crown’s argument that Mr. Cumsille posted the firearm for sale. My reasons are set out below in my analysis of Count 2.

[85] The only part of Mr. Cumsille’s evidence that caused me concern about his credibility was his explanation for raising the matter of the firearm with Mr. Sewell when Mr. Sewell called him to obtain some heroin/fentanyl.[21] I do not agree with the Crown that Mr. Sewell “repeatedly” raised the issue with Mr. Sewell. The Crown argues that the first time Mr. Cumsille raised the issue with Mr. Sewell was when he said, “You never even went to go draw for the shit yet, bro.” Mr. Cumsille said this while Mr. Sewell was telling him how he lost all of his drugs. Mr. Cumsille was not asked about this interchange. In my view, Mr. Cumsille’s comment is more likely to be about Mr. Sewell’s drug loss rather than the firearm.

[86] Mr. Cumsille raised the issue of the firearm deal at line 92 of the transcript of Session 1366 [22] when he said, “So yow, you’re not gonna go draw for that and give it to the young niggers?” When Mr. Sewell replied that he did not care about that, Mr. Cumsille said, “So who the fuck are you gonna send for it? I don’t want it at this guy’s house no more bro.” When Mr. Sewell said that this was his brother’s issue and it had nothing to do with him, Mr. Cumsille dropped the matter and asked Mr. Sewell if he was going to go to British Columbia with him.

[87] Although I have some difficulty accepting Mr. Cumsille’s explanation that he was worried that Mr. Sewell or someone would go to his house or his mother’s house expecting to find him and the firearm, showing him to be a liar, I am unable to reject it entirely. His explanation is plausible.

[88] Mr. Cumsille’s explanation for pretending to have a firearm to sell to Mr. Belle and his description of the consequences he feared if he did not stay on Mr. Belle’s good side were amply supported by the other evidence in the case. The following are just a few examples.

1. Mr. Cumsille’s evidence that Mr. Belle was an influential person in the community who spoke to many people despite having been in jail for seven years was borne out by the number of different people Mr. Belle communicated with during the time period in the indictment.

2. Mr. Cumsille testified that Mr. Belle had a manic side to his personality when he would be very excited about a grandiose idea that he would quickly forget about and move on to something else. Mr. Cumsille heard nothing from Mr. Belle about the firearm after March 28 until June 6, when Mr. Belle called him again to obtain the firearm. I have found that the calls in June relate to the transaction that was started in March. In addition, the intercepted communications were replete with Mr. Belle’s grand unrealistic ideas. For example, he was going to send a woman to his cousin in New York to obtain twenty firearms to import into Canada.[23] He was going to rob every pimp.[24] He was going to have drugs flown into the penitentiary by drone.[25]

3. Mr. Belle also had a dark sullen side when he would bad-mouth people and put them down, according to Mr. Cumsille. During one call[26] he called three different people a “waste youth,” “waste little kid, and a “waste-ass nigger.” According to Mr. Cumsille, being told you are a “waste” is being told that you are next to nothing.

4. Mr. Cumsille explained that he did not tell Mr. Belle that he had sold the firearm to someone else because Mr. Belle would likely believe that he had sold it to people who were against Mr. Belle. This could have negative consequences for Mr. Cumsille. Mr. Belle could ask someone to harm Mr. Cumsille. Mr. Cumsille’s fears are supported by the intercepted calls. Mr. Belle tried to enlist Mr. Sewell to rob some people from Mississauga.[27] He tried to enlist Forty to rob two pimps and to fly a drone to deliver drugs to the penitentiary.[28] Mr. Belle encouraged Glizzie to “open up” on Mr. Sewell and take “his machine,”[29] essentially telling Glizzie to shoot his brother and take his firearm.

5. Mr. Cumsille testified that it was difficult to say no to Mr. Belle when he made a request. I have made a finding with respect to Counts 6 and 7 that Forty agreed to Mr. Belle’s plan to rob two pimps and to fly a drone on to the penitentiary grounds to appease Mr. Belle, and not to indicate an intention to actually carry out the crime. I made a similar finding with respect to the unknown female Mr. Belle spoke to[30] attempting to find the address of the potential robbery victim.

[89] Finally, I have considered the following:

1. There is no evidence that Mr. Cumsille sent Mr. Belle or Mr. Sewell his email address to facilitate payment for the firearm or that he received any money from Mr. Belle.

2. Although the Crown is not required to prove that any acts in furtherance of the conspiracy were committed, there is no evidence that any firearm was transferred.

3. The intercepted communications demonstrate that Mr. Cumsille did not follow through with his promises to have his friend call Glizzie to arrange to transfer the firearm. He first promised to do that on June 6.[31] On June 10, Glizzie sent a test message to Mr. Belle telling him that no one had called him.[32] Mr. Cumsille again told Glizzie on June 10[33] that he would have his friend call him to arrange the transfer. On June 14, Glizzie told Mr. Belle that no one had called him.[34] Mr. Cumsille testified that telling Glizzie that someone would call him was simply a way of putting up barriers for Mr. Belle, hoping he would forget about the firearm. This supports Mr. Cumsille’s evidence that he did not intend to transfer a firearm to Mr. Belle.

[90] For the foregoing reasons, I am not satisfied beyond a reasonable doubt that Mr. Cumsille intended to agree to traffic a firearm and he is found not guilty of Count 1.

[91] Mr. Belle cannot be found guilty of conspiring with Mr. Cumsille to traffic a firearm and as I have already indicated, I am not satisfied beyond a reasonable doubt that he and Mr. Sewell conspired to traffic a firearm. Mr. Belle is therefore found not guilty of Count 1.

Analysis – Count 2 – Offer to transfer a firearm

[92] Mr. Cumsille is charged with trafficking a firearm by offer. This offence is set out in s. 99 of the Criminal Code as follows:

99. (1) Every person commits an offence who

(a) manufactures or transfers, whether or not for consideration, or

(b) offers to do anything referred to in paragraph (a) in respect of

a prohibited firearm, a restricted firearm …

[93] Justice Doherty discussed trafficking by offer in the context of drug offences in the case of R. v. Murdock (2003), 2003 4306 (ON CA), 176 C.C.C. (3d) 232 (Ont. C.A.). He held at para. 14 that the offence of trafficking by offer is made out if the defendant offers to traffic in a narcotic and intends to make an offer that will be perceived as a genuine offer by the recipient. The Crown is not required to prove that the defendant intended to go through with the offer: Murdock, at para. 9.

[94] This definition of trafficking by offer has been applied to the offence in s. 99(1)(b): R. v. Duncan, 2015 ONCA 928; R. v. Hersi, 2018 ONCA 1082.

[95] Counsel do not disagree about the governing legal principles. Their disagreement relates to what constitutes an offer.

[96] The Crown argues that Mr. Cumsille offered to transfer a firearm in three different ways. First, by agreeing to Mr. Belle’s request to buy a firearm from him. Second, by offering to sell Mr. Belle the firearm for $2,900 and then agreeing to reduce the price to $2,500. Third, by posting the firearm for sale on social media.

[97] The Crown relies on the fact that when Mr. Belle had the first conversation with Mr. Cumsille, he knew the type of firearm that Mr. Cumsille was selling and knew that he was selling only one firearm as evidence that Mr. Cumsille had posted the firearm for sale. I accept that Mr. Belle knew these facts, but in the absence of any other evidence of a post, that inference is speculative.

[98] Defence argues that Mr. Cumsille did not offer to transfer the firearm, but merely agreed to Mr. Belle’s offer to purchase the firearm from him. This, the defence argues, is beyond the ambit of s. 99(1)(b), which must be construed strictly.

[99] The verb “offer” in s. 99(1)(b) is not defined in the Criminal Code. The New Shorter Oxford English Dictionary (Oxford: Clarendon Press, 1993) defines it as “1. An act of offering something for acceptance or refusal … 2. An act of offering a price or equivalent for something ….” The Collins English Dictionary Pocket Edition, 10th ed (Glasgow: Collins, 2016) defines it among other things as “present (something) for acceptance or rejection; propose as payment.” Black’s Law Dictionary, 10th ed (St. Paul, MN: Thomson Reuters, 2014) defines offer as “The act or an instance of presenting something for acceptance …” Justice MacDonnell wrote, “What those definitions imply is that the making of an offer ordinarily requires more than a statement of intent to do something. It requires, as well, the anticipation of a response, namely, acceptance or rejection of what is proposed”: R. v. Hinds 2015 ONSC 1682, at para. 9.

[100] I find that Mr. Cumsille offered to transfer a firearm when in response to Mr. Sewell’s question, “How much do you want?” he replied, “Like, I paid thirty-five bro mmm… like twenty-nine.” The fact that his offer to sell the firearm for $2,900 was in response to Mr. Sewell telling him that Mr. Belle wanted to buy it does not change the fact that he offered it for $2,900. He presented the firearm to Mr. Sewell for $2,900 to accept or reject. As it turned out, his offer of $2,900 was rejected by Mr. Belle, who counter-offered $2,500.

[101] This case is distinguishable from R. v. Hinds and R. v. Burke 2014 ONSC 3199, two cases relied upon by Ms. Dudding. Unlike this case, in both of those cases the cryptic nature of the conversation between the defendant and the suspected offeror prevented the trial judges from finding a clear offer to transfer a firearm.

[102] I also find that Mr. Cumsille intended that Mr. Belle genuinely believe that he would transfer a firearm to him. He testified that he wanted to convince Mr. Belle that he would sell him the firearm to keep Mr. Belle happy so that he would not spread rumours that he was a fake and damage Mr. Cumsille’s rap career and make him vulnerable on the street.

[103] Having found that Mr. Cumsille offered to sell the firearm for $2,900 and intended that the offer be taken as genuine, I find Mr. Cumsille guilty of Count 2.

Analysis – Count 3 – Conspiracy to traffic a firearm, June 2018

[104] Were there two separate agreements to traffic in a firearm?

[105] The Crown argues that the intercepted calls in June 2018 relate to Mr. Belle’s attempt to obtain a second firearm from Mr. Cumsille. Mr. Cumsille testified that in June, Mr. Belle was following up on his March request for a firearm, which Mr. Cumsille had not fulfilled.

[106] When I consider Mr. Cumsille’s evidence in the context of all the evidence, it raises a reasonable doubt in my mind that Mr. Belle was attempting to purchase a second firearm in June. I have considered the following in coming to that conclusion.

1. It is consistent with Mr. Cumsille’s evidence that Mr. Belle often talks about big plans and then forgets about them.

2. There are numerous examples of Mr. Belle’s tendency to raise big ideas with someone and then not speak of them again throughout the intercepted communications.

3. Mr. Belle is trying to purchase the same type of firearm in March and June. He refers to it as a “tall-up” in conversations in March and June.

4. In the final call on March 30[35] between Mr. Cumsille and Mr. Sewell, Mr. Sewell told Mr. Cumsille to “tell Glizzie to go get it [the firearm].” In June, it is Glizzie who has been tasked by Mr. Belle to get the firearm.

5. When Mr. Belle joined Mr. Cumsille into his telephone conversation with Glizzie on June 6,[36] he simply told Mr. Cumsille that Glizzie was on the phone and that he was going to pick “that” up. When Mr. Cumsille questioned who Glizzie was, Mr. Belle said that he was “a young nigger from the block, fam.” If Glizzie had picked up a firearm for Mr. Belle from Mr. Cumsille in March, Mr. Belle was more likely to have said that Glizzie was the same guy who picked up the firearm in March.

6. During that same call Mr. Belle asked Mr. Cumsille where Glizzie should go to get the firearm. Mr. Cumsille knew what Mr. Belle was talking about and did not ask any questions. There was no discussion about price or type of firearm. The Crown argues that this indicates that Mr. Belle had made a new arrangement with Mr. Cumsille for a second firearm. However, it is equally consistent with Mr. Belle arranging to pick up the firearm he had arranged to buy in March.

7. There is no evidence that a firearm was transferred to anyone from Mr. Cumsille in March. Mr. Cumsille moved to British Columbia on April 12, 2018 and did not return to Ontario until June 17, 2018.

[107] For the foregoing reasons, I am not satisfied beyond a reasonable doubt that Mr. Cumsille and Mr. Belle conspired to traffic a firearm between June 6 and 14, 2018. Mr. Belle and Mr. Cumsille are found not guilty on Count 3.

COUNT 4 – ALLEGRO – CONSPIRACY TO TRAFFIC IN CONTROLLED SUBSTANCE

[108] Mr. Allegro pleaded guilty to this count at the outset of the trial. He admitted to the barest of facts that supported the plea. He agreed that between March 26 and June 7, 2018, he conspired with another person or persons to traffic in a controlled substance listed in Schedule I and/or II of the CDSA. The nature of the controlled substance was not particularized in the count and is in dispute.

[109] Counsel agreed that I would determine the remainder of the facts from the evidence heard at trial as I would have done in a Gardiner hearing.

[110] In his written submissions at the conclusion of the trial, Mr. Forte, on behalf of Mr. Allegro, conceded that the Crown had established beyond a reasonable doubt that Mr. Allegro and Mr. Sewell conspired to traffic in a Schedule I substance. The Crown submits that they conspired to traffic in heroin and cocaine.

[111] The Crown relies on seven intercepted calls between Mr. Allegro and Mr. Sewell, together with the evidence of Detective Duffus, to establish that the two men conspired to traffic in cocaine and heroin. The first four calls relate to one specific transaction. During the last three calls, the two men discuss Mr. Sewell’s drug trafficking activities and Mr. Allegro’s share of the profits from those activities.

The Evidence

[112] The Crown relies on two sets of phone calls to prove that Mr. Allegro and Mr. Sewell conspired to traffic in cocaine and heroin.

The Funeral Home Delivery

[113] The first set of calls involve Mr. Allegro asking Mr. Sewell to hide drugs in a funeral home where Mr. Allegro could retrieve them while on a pass from the penitentiary.

[114] The Crown argues that the following evidence establishes that Mr. Allegro and Mr. Sewell conspired to traffic in cocaine between April 3 and 11, 2018.

[115] Mr. Allegro’s mother died on April 1, 2018, while he was in custody in the Donnacona Penitentiary. He was granted a pass from the penitentiary to attend his mother’s funeral on April 13, 2018. During several phone calls prior to April 13, Mr. Allegro arranged to have Mr. Sewell meet someone named “G” to obtain drugs, and to have Mr. Sewell hide the drugs in a washroom at the funeral home where he could retrieve them. The specifics of the calls are as follows.

[116] On April 3, Mr. Allegro informed Mr. Sewell that he would be getting a pass from the penitentiary to attend his mother’s funeral. [37]

[117] On April 10, Mr. Allegro called Mr. Sewell and asked him if he had heard from “G”? Mr. Allegro said that he needed Mr. Sewell to go to the funeral home because he had to “mask my things somehow over there.”[38] While Mr. Allegro and Mr. Sewell were speaking, Mr. Sewell added “G” to the call. He told “G” that he was supposed to come and meet him for Mr. Allegro.

[118] In a further call on April 11,[39] Mr. Allegro gave Mr. Sewell the address of the funeral home and the details of his attendance. He instructed Mr. Sewell to wrap the item tightly with waterproof tape, put it down a toilet at the funeral home and attach it to the toilet bowl with dental floss to allow Mr. Allegro to retrieve it. Mr. Sewell agreed.

[119] During this conversation, Mr. Sewell asked Mr. Allegro to confirm that he was waiting for the “gas” or the “loud.” Mr. Allegro corrected him and replied, “no, … this guy is gonna give you twerk tonight … a half bounce of twerk right now, tonight ... fire twerk.”

[120] It is not disputed that “gas” and “loud” are slang terms for marijuana. Detective Duffus testified that “twerk” means cocaine and that “fire twerk” refers to good cocaine. Mr. Forte argues that “twerk” and “fire twerk” could refer to hashish.

[121] Mr. Sewell asked Mr. Allegro to have “this guy” call him. “G” joined the call. G told Mr. Allegro that he did not have his “shit” yet. G and Mr. Sewell agreed to exchange phone numbers and contact each other.

Drug Trafficking Business

[122] The second set of calls relied on by the Crown involves discussions between Mr. Sewell and Mr. Allegro about Mr. Sewell’s drug trafficking activities.

[123] The Crown argues that these three further phone calls between May 15 and June 7 establish that the two men conspired to traffic in cocaine and in heroin.

[124] In a call on May 15, [40] Mr. Allegro asked Mr. Sewell what he had left of “that”. Mr. Sewell replied that he had more than half left, and that it was not that good. Mr. Allegro agreed that the quality was poor and said, “this guy G … he didn’t give you the real deal.” Mr. Allegro asked Mr. Sewell how much he had “pressed” off of that. Mr. Sewell replied, “I gave one two bliz to Debo, so fuck, only like a fucking twenty-six.” Mr. Allegro urged Mr. Sewell to try to make a “five” off of the rest.

[125] Detective Duffus testified that the word “pressed” means “made”. Mr. Allegro asked Mr. Sewell how much money he had made off of the sale. Detective Duffus also testified that “bliz” means ounces. Mr. Sewell informed Mr. Allegro that he had sold two ounces to Debo and made $2,600. According to Detective Duffus, in 2018, an ounce of cocaine sold for between $1,400 - $1,700.

[126] Detective Duffus testified that in his opinion, Mr. Sewell and Mr. Allegro were discussing the sale of cocaine in session 1348. He based his opinion on the price Mr. Sewell got for the two ounces. He was cross-examined about whether Mr. Allegro and Mr. Sewell were discussing the sale of phenacetin, a cutting agent. Detective Duffus testified that based on the dollar amounts being discussed, he believed they were discussing the sale of cocaine.

[127] In a call three weeks later, on June 3,[41] Mr. Sewell and Mr. Allegro further discussed drug sales. Mr. Sewell told Mr. Allegro that he only had “a half” left. When asked, “half of what,” he replied “I ha…diz, bro.” Mr. Sewell told Mr. Allegro that he had to wait a few more days “’til it’s done” because the purchaser, who was coming from North Bay, needed a few more days. Mr. Allegro asked Mr. Sewell how much he had made off “that”. Mr. Sewell replied that he “made like at least a four-mm.”

[128] Detective Duffus testified that in his opinion, this call relates to the sale of heroin. He based this on the use of the word “diz,” which is a short-form version of “dizzy,” a slang term for heroin.

[129] Four days later in another call,[42] Mr. Sewell informed Mr. Allegro that he was still waiting for the person from North Bay to arrive to purchase the half ounce. He told Mr. Allegro that once it was sold, he had to give Mr. Allegro his share.

[130] Mr. Allegro asked Mr. Sewell three times during that call if he would “see a five” after the sale. He also asked Mr. Sewell to whom he was going to drop the “two-five”.

[131] Detective Duffus testified that he believed that the final discussion was about the sale of cocaine.

Analysis

The Funeral Home Delivery

[132] Mr. Forte argues that the agreement between Mr. Allegro and Mr. Sewell was a buy/sell agreement, and not a conspiracy. The Crown agrees that a buy/sell agreement does not amount to a conspiracy. The Crown argues that they conspired to transfer drugs into the penitentiary via Mr. Allegro.

[133] There is no evidence that Mr. Allegro intended to resell the drugs.

[134] The gravamen of the offence of trafficking contrary to s. 2 of CDSA is making a controlled substance available to others. Every sale of a controlled substance entails a transfer of the substance from one person to another. In my view, to constitute trafficking, a transfer must be more than incidental to a buy/sell agreement. As there is no evidence that Mr. Allegro was purchasing the substance for anything but his own consumption, I find that the funeral home delivery agreement was not a conspiracy to traffic.

[135] If I am mistaken about whether the agreement between Mr. Allegro and Mr. Sewell constitutes a conspiracy to traffic, I am going to consider the meaning of the word “twerk”.

[136] The Crown relies on the evidence of Detective Duffus that the word “twerk” refers to cocaine, and “fire twerk” means very good cocaine.

[137] The Crown gave Detective Duffus a list of words and phrases that were heard in the calls intercepted during this investigation and asked for his opinion about their meaning. Detective Duffus created a lexicon, which is marked as exhibit #10.

[138] Mr. Forte argues that the court cannot rely on Detective Duffus’ evidence because it is neither credible nor reliable for the following reasons. The methodology Detective Duffus used to prepare his lexicon was flawed. He made no notes about the process he followed. He did not consult other coded language experts or subject his lexicon to peer review. He did not cross-reference prior lexicons that he had developed for other cases. He misled the court about his qualifications by failing to include that he was not qualified to give opinion evidence on opioid based drug trafficking in 2017. He misled the court about having listened to the intercepted calls while reading the transcript of the same call to ensure that he understood the context of the call. Finally, he was a combative, careless witness.

[139] I do not agree with Mr. Forte’s description of Detective Duffus’ evidence. I had some concerns about the thoroughness of Detective Duffus’ preparation to give evidence and his tendency to shoot from the hip and then have to retract his evidence. He testified that he was familiar with all of the words the Crown had asked him to review and did not feel the need to consult others or prior lexicons he had created. He admitted things that were helpful to Mr. Allegro.

[140] Detective Duffus’ evidence about slang or coded words in the drug subculture was based on his 30 years of experience as an officer. He has been a detective assigned to the Drug Squad since 2013, and from 2004 to 2009, was assigned to the Toronto Drug Squad East where he worked in an undercover capacity. He has dealt with drug traffickers, drug users, and confidential informants. He has purchased drugs more than 100 times as an undercover officer and has supervised more than 100 purchases by other undercover officers. To carry out these duties safely Detective Duffus had to understand and speak the language of the people with whom he was dealing.

[141] I have reviewed Detective Duffus’ evidence carefully bearing in mind that I can accept some, none or all of the evidence of any witness. I accept Detective Duffus’ evidence that “twerk” refers to cocaine. He testified that he had never heard the word used to refer to hashish as Mr. Forte suggested. Mr. Forte suggested that “twerk” was a combination of the word “twizzy,” which means marijuana and “work,” which means drugs. Detective Duffus testified that he had never heard the word “work” used to refer to cannabis products. It usually refers to harder drugs, such as cocaine, heroin, and methamphetamine.

[142] I also note that Mr. Allegro directed Mr. Sewell to G to obtain the “twerk” to take to the funeral home. In session 1348 on May 15, 2018, when Mr. Sewell complained to Mr. Allegro that the product was not good quality, Mr. Allegro replied, “I know. This guy G is fucking … he didn’t give you the real deal.” For reasons I explain later, I find that session 1348 is a conversation about cocaine. It appears from Mr. Allegro’s response that G supplied the cocaine that they are speaking about. It is reasonable to conclude that G was supplying cocaine to Mr. Sewell to take to the funeral home.

The Drug Trafficking Business

[143] The calls in May and June establish beyond a reasonable doubt that Mr. Allegro and Mr. Sewell conspired to traffic in a scheduled substance as he has acknowledged. Mr. Forte submits that the evidence supports the inference that Mr. Allegro first conspired with Mr. Sewell to traffic in phenacetin. He was, however, aware that Mr. Sewell was trafficking in scheduled substances and Mr. Allegro was sharing in the profits derived from the sale of scheduled substances containing the phenacetin.

[144] The evidence does not support Mr. Forte’s submission. Leaving aside the nature of the controlled substance for the moment, the following portions of the intercepted calls are inconsistent with a discussion about the sale of phenacetin:

1. In session 1348, Mr. Allegro asked Mr. Sewell four times how much “he had pressed off of that.” In response Mr. Sewell finally said, “I gave one two bliz to Debo, so fuck, only like a fucking twenty-six.” Mr. Allegro is not asking Mr. Sewell about the quantity of product that was ultimately made once it was cut with the phenacetin, as suggested by Mr. Forte. Mr. Sewell’s reply makes no sense in that context. Mr. Allegro was asking Mr. Sewell how much money he had made thus far from the sale of the controlled substance.

2. Mr. Forte submitted that Mr. Allegro’s reference to “five” in sessions 1348 and 7439 could be a reference to weight rather than money. This is not borne out in the context of the conversations. In session 1348, after the two men discussed how much money Mr. Sewell had made from the sale to Debo, Mr. Allegro said, “That’s blessed bro, what are you talking about? That’s blessed. … Wait, no, that’s all right still. All right but … just try to make a five off of the rest okay.” In the context of that interchange about earnings from the sale of drugs, I find that Mr. Allegro’s reference to “five” is a reference to money, not weight. Later in the same conversation, Mr. Allegro asked, “Five bro, … that’s where we’re trying to go right now, right?” Mr. Sewell replied, “Yeah.”

In session 7439, after Mr. Sewell said that his customer was coming from North Bay to buy his last “half bounce,” the following interchange occurred:

SEWELL: So, I’m just gonna throw it to this guy …

ALLEGRO: So, did you say a five or no?

SEWELL: What?

ALLEGRO: Do you say a fiver … or no?

SEWELL: Who me?

ALLEGRO: Yeah.

SEWELL: Yeah... as… yeah that … that yeah, I seen that. But once I sell this, I’m gucci.

ALLEGRO: So, you’re saying after that you’re seeing a five?

SEWELL: Yeah once I sell this to this kid, he comes down here, I’m … gucci.

I find that Mr. Allegro’s reference to “five” in this interchange is to the amount of money he believes that Mr. Sewell will earn once he sells the product to the person from North Bay, not to the weight of the product.

3. In session 1348, Mr. Sewell and Mr. Allegro agree that the product Mr. Sewell has for sale is of poor quality. Mr. Allegro said, “I know. This guy G is fucking … he didn’t give you the real deal.” Later, in session 7439, Mr. Sewell told Mr. Allegro that, “there’s no point in keeping it. It’s shit. No one wants it. Everybody’s complaining. So, I’m just gonna throw it to this guy.” When considered in the context of the entirety of these two calls, Mr. Sewell and Mr. Allegro are discussing the poor quality of the controlled substance Mr. Sewell is selling, not a cutting agent.

[145] The evidence concerning the nature of the substance Mr. Sewell was selling is not straightforward. The words “heroin” and “cocaine” are not used in these calls. The only reference to a term that the Crown argues is slang for heroin is heard in session 6606, when Mr. Sewell told Mr. Allegro that he was selling his last half ounce of “diz” to someone from North Bay.

[146] The Crown relies on the evidence of Detective Duffus that “diz” is a short form for “dizzy,” which is slang for heroin.

[147] Detective Duffus acknowledged that slang terms and their meaning can evolve over time. Although many words used in the drug subculture were generic and “global,” “diz” was not one of them. It was not a word commonly used amongst different criminal groups. Detective Duffus had no experience investigating Mr. Allegro or Mr. Sewell or drug dealers from the Dundas Street West and Scarlett Road neighbourhood and was not familiar with any slang or coded language used by those from this neighbourhood.

[148] Given that heroin is a more serious drug than cocaine (although both are serious) and conspiring to traffic in it will attract a more severe penalty, I must be satisfied beyond a reasonable doubt that the substance being discussed in session 6606 is heroin. Detective Duffus’ evidence gives rise to a reasonable doubt on this point for the following reasons.

[149] Detective Duffus testified that he reviewed sessions 1348, 6606, and 7439 individually rather than as a group to understand the context within which slang terms were being used. He testified that session 1348 related to the sale of cocaine, session 6606 related to heroin, and session 7439 related to cocaine.

[150] I do not accept Detective Duffus’ evidence on this point. In my view, session 7439 is a continuation of the discussion in session 6606. Both calls relate to the same sale of the same substance to the person from North Bay. In session 6606, Mr. Sewell told Mr. Allegro that he had to wait a few days for the sale to occur. In session 7439, Mr. Sewell informed Mr. Allegro that the purchaser was on his way from North Bay and that once the sale was completed, Mr. Allegro would receive his share.

[151] It is also a reasonable inference that the first call in this series, session 1348, relates to the same substance. In both session 1348 and session 7439, Mr. Allegro and Mr. Sewell commented on the poor quality of the substance and their desire to earn $5,000 from the sale of it.

[152] Detective Duffus based his opinion that session 1348 related to cocaine on the price Mr. Sewell got for the sale of two ounces to “Debo.” According to Detective Duffus, in 2018, an ounce of cocaine sold for $1,400 to $1,700. Although the price Mr. Sewell got for two ounces was slightly less than that ($2,600), that may have been a function of the poor quality of the cocaine.

[153] Detective Duffus’ opinion that session 6606 related to heroin was based on Mr. Sewell’s use of the words “diz,” “half a bounce,” and “half a ball.” He acknowledged that “half a bounce” and “half a ball” were phrases used to describe a quantity of any drug, not specifically heroin.

[154] The basis for Detective Duffus’ evidence that session 7439 related to cocaine was not clear to me. In chief, he testified that it was Mr. Allegro’s assertion that he was going to give Mr. Sewell’s people something “to press for us” that led him to believe that the conversation was about cocaine. In cross-examination, he referred again to the prices and quantities discussed in session 1348.

[155] Detective Duffus’ opinion that session 1348 was about cocaine is based on the most solid foundation. This opinion, together with his evidence that “diz” is not a generic term commonly used to refer to heroin, his lack of familiarity with the slang used by Mr. Sewell, Mr. Allegro or the people in their neighbourhood, and the reasonable inference that the three calls relate to the same substance, have raised a reasonable doubt in my mind that Mr. Allegro and Mr. Sewell conspired to traffic in heroin.

[156] There is no evidence to support Mr. Forte’s theory that Mr. Allegro and Mr. Sewell originally agreed to sell phenacetin, and as I have already pointed out, the evidence is to the contrary. It is not a reasonable inference that can be drawn from the content of their conversations.

[157] I find that Mr. Allegro and Mr. Sewell conspired to traffic in cocaine.

COUNT 5 – BELLE – CONSPIRACY TO COMMIT ROBBERY

[158] The Crown alleges that Mr. Belle and Mr. Sewell conspired to rob two men from Mississauga.

Evidence

[159] The Crown relies on six intercepted communications and the evidence of Detective Constable Ryan Smith to establish this conspiracy.

[160] On June 1, 2018, Mr. Belle sent Mr. Sewell a phone number by text[43] and instructed him to text the number and say that he is Mr. Belle’s brother. Mr. Belle followed up that message with a phone call to Mr. Sewell 30 minutes later.[44] After being told that Mr. Sewell did not understand the text message, the two men had the following conversation:

BELLE: That nigger wants you … wants you to go find a … (unintelligible) … to get some drops on those guys gonna need … they’re gonna send you paper.

SEWELL: And nigger wants me to find them?

BELLE: So, find drops on those niggers, dog. Those ... niggers I was asking you about from ‘Sauga, bro.

SEWELL: Oh yeah, yeah a man … and he’ll give paper?

[161] Later, Mr. Belle told Mr. Sewell to call the guy and tell him that Mr. Sewell is working hard for him and that Mr. Sewell will “get it done for him.” Mr. Sewell replied, “all right don’t say a word let me just do my work.”

[162] There is no evidence about the meaning of the word “drops.” D.C. Smith testified that “paper” means money.

[163] Mr. Belle called Mr. Sewell back 40 minutes later[45] and told him that, “those foods are gonna be properly yow super sick for you. One of them is … Murda’s nigger.” Mr. Belle went on to explain:

BELLE: Murda’s nigger … Murda says it’s his dog. … I asked him if I could jam him and he said don’t jam him. Well I’m still jamming him, dog.

SEWELL: Real shit.

BELLE: Gonna jam him and we’re gonna jam fucking ahm … We’re gonna jam fucking … some youth … from ‘Suaga named Royal.

[164] D.C. Smith testified that “jam” or “jamming” means planning, committing or having committed a robbery.

[165] Mr. Belle asked Mr. Sewell if he had called the “youth” he told him to call. Mr. Sewell seemed confused about whom he was supposed to call. He told Mr. Belle that he had not understood the text message he had sent him. Mr. Belle instructed him to text the person and say he is Mr. Belle’s brother and, “show him everything that’s going on right? Just show him that’s gonna get done everything, right?” Mr. Sewell remained confused, and asked Mr. Belle, “Who’s that?” Mr. Belle said that he did not want to talk that much. He encouraged Mr. Sewell to just go and talk with the guy … “and everything is gonna be good.” Mr. Sewell, still confused, replied, “So what I do call … message the person and say what?”

[166] An hour and a half later, an unknown male phoned Mr. Sewell.[46] He said that he was replying to a missed call from Mr. Sewell’s number. The two men did not appear to know each other. Mr. Sewell told the male that his brother told him to call him and, “said about some little fucking play or somethin’ like that.” Mr. Sewell told the male that Mr. Sewell’s people knew more about it and that he was going to meet up with them and talk to them in an hour. The male asked Mr. Sewell to try to find the address where, “they drop the stuff off” as soon as possible. Mr. Sewell replied, “Yeah yeah I am waiting to get that A-SAP.” He told the male that he did not know the address yet. The male told Mr. Sewell that he would call him back in a few hours.

[167] Two hours later, Mr. Sewell called the unknown male back and told him that his “broski” was not around but was going to meet Mr. Sewell the next morning and show him everything. The two men discussed meeting afterwards.

[168] The final call took place three days later, when the unknown male called Mr. Sewell and asked him why he hadn’t called him back.[47] Mr. Sewell said that he had not met up with “his guy” that morning. Mr. Sewell said that he would call the unknown male once he had talked to him.

Analysis

[169] Mr. Derstine, on behalf of Mr. Belle raises two issues with the Crown’s submission that these six calls establish that Mr. Sewell and Mr. Belle conspired to rob two men from Mississauga, Murda’s associate, and a man named Royal.

[170] The first issue raised is that there is no evidence that Mr. Sewell and Mr. Belle were discussing a robbery within the meaning of s. 343 of the Criminal Code. There is nothing in the calls to suggest that violence or an offensive weapon would be used. The only evidence suggestive of robbery is D.C. Smith’s evidence that “jam” or “jammed” refers to a robbery. It would be dangerous, in Mr. Derstine’s submission, to place the amount of weight on D.C. Smith’s evidence necessary to find guilt on this count.

[171] However, it is not necessary to rely entirely on D.C. Smith’s interpretation of the word “jam.” In a conversation Mr. Belle had with Forty on June 3, 2018[48] Mr. Belle used the terms “jamming,” “robbing,” and “eat their food” interchangeably to describe the robbing of pimps. I note as well that Mr. Belle used the word “foods” when describing the robberies to Mr. Sewell. He told Mr. Sewell that “those foods are gonna be properly … super sick for you.”[49]

[172] I am satisfied that the discussion between Mr. Belle and Mr. Sewell in session 5916 related to the possible robbery of two men.

[173] The second issue raised by Mr. Derstine is that the Crown has failed to establish that Mr. Sewell and Mr. Belle agreed on the achievement of a mutual criminal objective and has thus failed to prove the actus reus of conspiracy. According to Mr. Derstine, Mr. Sewell was never made aware of the criminal objective, and an agreement was not completed.

[174] The Crown argues that Mr. Sewell and Mr. Belle mutually agreed to rob two men. Mr. Belle recruited Mr. Sewell to help find an address, identified the victims to Mr. Sewell, and connected him to an accomplice. Mr. Sewell connected with the accomplice and agreed to find the address from his friend and get back to the accomplice.

[175] In my view, the Crown has not established that Mr. Sewell and Mr. Belle had a meeting of the minds to achieve a mutual unlawful objective of robbing two men. In the first call,[50] Mr. Sewell said that he did not understand Mr. Belle’s text message. Mr. Belle told him that an unknown male will pay Mr. Sewell to “get some drops on those guys,” and instructed Mr. Sewell to call the unknown male. Mr. Sewell agreed.

[176] In the next call,[51] when Mr. Belle asked Mr. Sewell if he had called the unknown male, Mr. Sewell indicated that he still did not understand Mr. Belle’s message. Mr. Sewell tried to get more information from Mr. Belle, but Mr. Belle said that he did not want to talk and instructed Mr. Sewell to talk to the unknown male. Mr. Sewell asked Mr. Belle what he was supposed to say to the unknown male, indicating that he was not clear why he was to call him.

[177] There is no evidence in these two calls that Mr. Sewell and Mr. Belle agreed to commit an unlawful act.

[178] The three calls between Mr. Sewell and the unknown male provide no evidence of an agreement between Mr. Sewell and Mr. Belle. When Mr. Sewell spoke with the unknown male,[52] he told him that his brother had told him “about some little fucking play or somethin’ like that.” He told the unknown male that he had to meet with his people who knew more about it. The unknown male asked Mr. Sewell to try to find an address as soon as possible. Mr. Sewell said he would.

[179] In the final two calls, Mr. Sewell informed the unknown male that he had not met with his people yet, but that once he did, he would meet with the unknown male.

[180] Although I have no doubt that Mr. Belle was discussing a robbery with Mr. Sewell with a view to having Mr. Sewell commit it, I am unable to conclude that Mr. Sewell agreed to commit it. In the absence of evidence of an agreement, there is no conspiracy, and I therefore find Mr. Belle not guilty of Count 5.

COUNT 6 – BELLE – CONSPIRACY TO COMMIT ROBBERY COUNT 7 – BELLE – CONSPIRACY TO TRAFFIC IN CONTROLLED SUBSTANCE

Evidence

[181] The Crown relies upon a telephone conversation between Mr. Belle and a man called Forty to prove these two offences.[53]

[182] On June 3, 2018, Louka Greaves called Mr. Belle. During that call, Mr. Greaves passed the phone to Forty. Mr. Belle told Forty that he had “two over hundred racks eat foods for you.” Forty asked if they could happen today. Mr. Belle told him that it would take at least two weeks for both of them but Forty would have to start doing his job now if he wanted them. Forty replied, “A hundred percent.” D.C. Smith testified that “eat foods” means a robbery, and “racks” means $1,000.

[183] Later in the call, Mr. Belle told Forty that he was going to line up one for him right now. Mr. Belle called another number and added a woman to the call. Mr. Belle asked the woman if they were robbing that pimp. The woman hesitated and replied that she did not know where he was. She only knew where one of his girls was. Mr. Belle asked her if the girls would know where his spots were. She indicated that she would assume so. The woman said that Telisa would know. Mr. Belle asked her to get the information from Telisa. The woman replied, “She gets home tomorrow. I’ll see.” Mr. Belle asked her to let him know. She replied, “Yeah whatever, goodbye Shaquille.”

[184] When Mr. Belle returned to speak to Forty, he told him that the woman was going to line up her pimp and that Forty would get probably “two or three hundred bands.” D.C. Smith testified that bands means $1,000. Mr. Belle asked Forty to make sure he gave Mr. Belle a nice cut out of it. Forty replied, “Hundred percent.”

[185] Mr. Belle continued to describe a second robbery. He told Forty that it would be more difficult and be worth three to five hundred bands. He asked Forty to hang on while he found out the name of the person to be robbed. Forty said, “I don’t care who it is … what they’re banging. My shit’s ready.” Forty continued, “[unintelligible] anything you’re giving, we’re getting through with it, hundred percent.” Mr. Belle told Forty that he was sending his people to “just eat their food.” Forty replied, “You’re not playing, eh?” Mr. Belle answered that he was just jamming every pimp now to take their money.

[186] Mr. Belle abruptly changed subjects and asked Forty if he knew anyone who could fly a drone. Forty said that he knew how. Mr. Belle told Forty that the “mandem” would pay five to ten bands to “come fly one out here for us.” Mr. Belle said, “We already have one, so I’m gonna drop it off to you, okay.” Forty replied, “Yeah” and yawned. Mr. Belle told him that he was going to get all the drugs and shit ready. Forty replied, “What are we talking about fam, but yeah I’m ready.” Mr. Belle told Forty he would holler at him in a week and a half. The Patois interpreter translated the word “mandem” into “men.” D. C. Smith testified that “mandem” refers to a close trusted friend or associate.

Analysis

[187] Having listened several times to the intercepted telephone conversation between Mr. Belle and Forty, I am not satisfied beyond a reasonable doubt that they conspired to rob two pimps or to fly drugs into the prison. I have concluded this for the following reasons.

[188] First, I am not satisfied that the two men completed an agreement to rob two pimps or to fly drugs into the prison. After reading the transcript of Session 685, one could easily conclude that Forty agreed to every suggestion made by Mr. Belle. However, listening to the audio of their conversation reveals something different. Forty’s tone of voice and inflection belie his stated willingness to do what Mr. Belle requests.

[189] Mr. Belle told Forty that although it would take two weeks to put the robberies together Forty had to start doing his job now if he wanted them. Forty’s unenthusiastic reply, “a hundred percent,” may imply that he wanted the job or that he knew that he would have to start working now if he wanted it.

[190] Forty then listened to Mr. Belle complain for more than three minutes that Mr. Sewell was acting as if he were more important on the street than Mr. Belle. Forty told Mr. Belle that he was “too much” and must be bored. Forty’s tone implies that he is tired of listening to Mr. Belle and is not taking him seriously.

[191] The woman who joined the call sounded equally unimpressed with Mr. Belle’s idea to rob pimps. Mr. Belle asked her if they were robbing “that pimp”. She hesitated before replying that she didn’t know where he was. After Mr. Belle instructed her to learn the pimp’s location and told her he would get back to her, she shrugged him off by saying, “Yeah whatever.”

[192] When Mr. Belle began describing the second robbery to Forty, he was met with silence on the other end of the phone. Mr. Belle said, “Yow” to make sure Forty was listening to him. Throughout the remainder of the conversation, Forty’s replies were those of a person just letting someone talk and blow off steam. There is no energy or enthusiasm in his voice. At one point, he yawned. His tone and the tone of the woman indicated that they were agreeing with Mr. Belle simply to appease him. I am not satisfied that Forty had any intention of committing the robberies.

[193] In addition, the matters left outstanding between Mr. Belle and Forty were sufficiently substantial in nature that it cannot be said that they had completed an agreement.[54] Mr. Belle had to ask the woman he called whether they were “robbing that pimp.” The woman did not commit to finding out the potential victim’s location or to informing Mr. Belle if she did. No other information was given to Forty. The “when,” “where,” “who,” and “how” were all outstanding. This interaction between Forty and Mr. Belle did not cross the line from a general discussion about committing a crime to an agreement to do so.

[194] For the same reason, I am not satisfied that the discussion between Mr. Belle and Forty about flying a drone crossed the line from a general discussion about committing a crime to an agreement to do so. There were too many substantial matters left outstanding at the end of the discussion to convince me beyond a reasonable doubt that an agreement had been reached.

[195] For the foregoing reasons, I find Mr. Belle not guilty of Counts 6 and 7.

COUNTS 8 to 10 – CRIMINAL ORGANIZATION OFFENCES

Overview

[196] The Crown alleges that the defendants, together with others, were part of a criminal organization, sometimes called the ‘Shots Up Mafia’ or SUM. It is alleged that the organization was involved in the trafficking of drugs and robberies to fund its criminal activities and acquiring firearms to protect its members and territory.

[197] According to the Crown, the organization’s structure was simple. Mr. Belle ran the organization from the penitentiary, while his brother, Mr. Sewell, led it on the street. Mr. Allegro, who was in the penitentiary with Mr. Belle at the relevant time, is alleged to be a member. Forty, Glizzie, Chin and others are alleged to be members who work for Mr. Sewell on the street.

The Charges

[198] Mr. Allegro is charged in Count 8 with trafficking in a controlled substance for the benefit of, at the direction of, or in association with a criminal organization.

[199] Mr. Belle and Mr. Cumsille are charged in Count 9 with firearms trafficking for the benefit of, at the direction of, or in association with a criminal organization. However, as they have been found not guilty with respect to the underlying offence, they must be acquitted on this count as well.

[200] Finally, in Count 10, Mr. Belle is charged with being a member of a criminal organization and instructing a person to traffic in firearms for the benefit of, at the direction of, or in association with a criminal organization.

[201] As the existence of a criminal organization is an essential element of each of the counts, I will consider that first. If I so find, I will then consider the counts against each defendant individually.

The Legal Framework

[202] A “criminal organization” is defined in s. 467.1(1) of the Criminal Code as follows:

“criminal organization” means a group, however organized, that

(a) is composed of three of more persons in or outside Canada; and

(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.

It does not include a group of persons that forms randomly for the immediate commission of a single offence.

“serious offence” means an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation.

[203] The Supreme Court of Canada examined the definition of “criminal organization” in R. v. Venneri, 2012 SCC 33, [2012] 2 S.C.R. 211, at paras. 27 - 41. Courts must apply the definition flexibly and not limit it to sophisticated, highly organized criminal groups such as outlaw motorcycle gangs: Venneri, at paras. 27 and 41. However, structure and continuity are essential features of a criminal organization that distinguish them from other groups of offenders who sometimes act in concert: Venneri, at para. 27.

[204] The Ontario Court of Appeal discussed the analysis of the criminal organization provisions set out in Venneri and wrote as follows:

In R. v. Venneri at paras. 27-41, the Supreme Court of Canada sketched out the contours of what “a group, however organized” is meant to portray. Whether a targeted group is a “criminal organization” is to be determined on a flexible basis, not on the basis of pre-conceived notions about what organized crime may look like. At the same time, however, care must also be taken not to overextend the reach of the provisions and turn every conspiracy of three or more persons involving the commission of serious crimes for material benefit into a criminal organization.

This balance between flexibility and overreaching is important. The Venneri decision strikes it in three broad ways:

a) by highlighting the need for “some form of structure and degree of continuity” and coordination, as a means of distinguishing between a criminal organization and other forms of illegal group activity, such as conspiracies, that are already adequately dealt with in the Criminal Code: at paras. 27-31 and 35;

b) by making it clear that the criminal organization provisions are not intended to capture only certain “stereotypical [models] of organized crime” (biker gangs and drug cartels, for example): at para. 41; and

c) by resisting the temptation to adopt a “checklist” of common characteristics or attributes that must be satisfied in every case: at paras. 38-40: R. v. Beauchamp 2015 ONCA 260, at paras. 152-153.

[205] The goal of the criminal organization offences is to “identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members”: Venneri, at para. 40. This goal should be the focus of the application of the definition of “criminal organization.” The Supreme Court described how criminal organizations pose an elevated threat to society in Venneri, at para. 36:

Working collectively rather than alone carries with it advantages to criminals who form or join organized groups of like-minded felons. Organized criminal entities thrive and expand their reach by developing specializations and dividing labour accordingly; fostering trust and loyalty within the organization; sharing customers, financial resources, and insider knowledge; and, in some circumstances, developing a reputation for violence. A group that operates with even a minimal degree of organization over a period of time is bound to capitalize on these advantages and acquire a level of sophistication and expertise that poses an enhanced threat to the surrounding community.

Evidence

[206] I will summarize some of the evidence that the Crown argues demonstrates the hallmarks of a criminal organization. While I refer to only some of the evidence, I have considered all of the evidence, including what other alleged members of the organization did and said in furtherance of the objectives of the organization, to determine whether a criminal organization exists: see R. v. Yumnu, 2010 ONCA 637, at para. 338; R. v. Dawkins, 2021 ONCA 113, at para. 40.

The Music Videos

[207] The Crown’s evidence included fourteen music videos posted on YouTube.

[208] Officer Marchis testified that she did an internet search for “S-Loc”, Mr. Cumsille’s nickname, and discovered fourteen rap music videos featuring Mr. Cumsille. The Crown did not rely on the words in the music videos as evidence of criminal conduct. The music videos illustrated several points relevant to the existence of the criminal organization, such as important geographic areas, the use of the name “Shots Up” and “Shots Up Mafia”, associations between individuals, and the identity of people important to the group.

[209] Mr. Cumsille is rapping in all the videos, and Mr. Sewell appears in most of them. Mr. Allegro appears in Honest, posted in 2013 and in Deeper Then the Ocean, [sic] posted in 2014. Four of the videos were posted in 2013, six in 2014, two in 2015 and one in 2017. There is no evidence about the date I Got You was published.

Name of the Group, Shots Up Mafia

[210] Mr. Cumsille testified that Shots Up Mafia is a gangster rap group that has had success rapping about poverty, drugs, money, gangs, and guns. According to Mr. Cumsille, this is what people want to hear about. He denied that it was a criminal organization, although some of its members have been involved in criminal activity.

[211] Mr. Cumsille testified that Shots Up Mafia was started by Jerome Belle, Shaquille Belle’s cousin. When Jerome invited Mr. Cumsille to be part of the rap group, Jason Sewell was already a member. Shaquille Belle and Mr. Allegro have never been part of Shots Up Mafia, according to Mr. Cumsille. Mr. Cumsille last rapped with Shots Up Mafia in 2015.

[212] During Session 678, both Mr. Belle and Mr. Sewell refer to “Shots Up.” Mr. Belle told Mr. Sewell, “I’ll do one good thing for all you Shots Up little fucking waste kids …” Later in the same call, Mr. Sewell told Mr. Belle that, “K-Money posted … on internet, yeah, we don’t have beef with Shots Up, this, that …” Finally, Mr. Belle told Mr. Sewell that, “Shots Up would have been the sickest set ever.”

Territoriality

[213] The videos show what the Crown alleges is the Shots Up Mafia’s territory, near a townhouse complex at 4020 Dundas Street West, including Scarlett, Eglinton, Dundas and the ‘complex’. The Crown submits that the depiction of these geographic areas in the videos together with the group calling out the name “Shots Up Mafia” identifies the territory as theirs.

[214] The videos also depict specific locations of importance to the group, such as the car wash and the staircase in the complex at 4020 Dundas Street West, where drug sales are transacted by members of the group.[55]

[215] During the many arguments between Mr. Belle and Mr. Sewell about who has the most authority in the neighbourhood, they variously call the area, their ‘hood’, their ‘block’, ‘Scarlett’, and the ‘plex’, identifying it as the territory of the Shots up Mafia, according to the Crown.

[216] Mr. Belle told Mr. Cumsille that he wanted to buy a firearm from him to give to “these young niggers in Scarlett.”[56] He told Mr. Sewell that, “Scarlett keeps getting shelled down dog and we need tapes [guns] over there.”[57]

Hierarchy

[217] Mr. Belle and Mr. Sewell often argued about who was the “top dog” in the neighbourhood, indicating that there was a hierarchy within the criminal organization, according to the Crown. For example, Mr. Belle reminded Mr. Sewell that he would be the boss when he got out of jail, but Mr. Sewell would be right under him. Mr. Sewell noted that Mr. Allegro would be under him.[58]

[218] Mr. Belle proclaimed his leadership role to Mr. Sewell and to Glizzie. He also asked Forty his opinion about whether Mr. Sewell had more authority than he had.[59]

Roles

[219] The Crown argues that the members of the organization had defined roles. Mr. Belle played the role of mentor, adviser, and mediator. The Crown relies on the following in support of this submission.

1. In March 2018, Mr. Sewell complained to Mr. Belle that “Swaggerite” had appeared in a rap video with another group. In retaliation, Mr. Sewell wanted to rob him. Mr. Belle connected Swaggerite with Mr. Sewell by phone to try to resolve the issue. He said Swaggerite and Mr. Sewell, “Let’s end this shit right now.”[60]

2. Mr. Cumsille sought Mr. Belle’s advice when he became entangled in someone else’s legal troubles. He asked Mr. Belle to tell the person that, “… he fucked up by saying my name too.”[61]

3. Mr. Sewell reported to Mr. Belle that someone, “just jammed one of my white boys for a hubs.” Mr. Sewell was debating what to do about it. Mr. Belle gave him advice.[62]

[220] Based on the following, the Crown argues that Forty’s role was to train and care for younger members of the group and to protect the neighbourhood.

1. In a call with Forty and Glizzie, Mr. Belle told Forty to stay with Glizzie and train him well. He also told Glizzie to stay with Forty and make him train him well.[63]

2. In the same phone call, Mr. Belle and Forty had the following exchange:

BELLE: (Unintelligible) at, at the … oh the Monks?

FORTY: What? Those guys are … from my grandpa’s grave those guys are not outside. Ask Glizzie right now. (Unintelligible) … fam, I’m telling you this right now. Fam, yow, these guys are not outside eh. Skins getting burn around those sides.

BELLE: (Unintelligible) yow bro, like the men (Unintelligible)

FORTY: I can’t hear you.

BELLE: The men keep seeing them.

FORTY: Seeing who?

BELLE: Fucking A-B.

FORTY: Oh, on roads?

BELLE: Yeah.

FORTY: I’m not getting no calls.

BELLE: Yeah, I’m gonna make my fucking O …

FORTY: My shit … listen, they … ask the men, my shit’s around every day, my shit’s never gone, twenty-four, seven.

BELLE: (Unintelligible)

FORTY: So, no one can call me telling me nothing.

The Crown argues that in this exchange, Mr. Belle is telling Forty that they are being threatened by the Monks. Forty responds by telling Mr. Belle that if there were a problem, he would get calls and he had received none. This, according to the Crown, implies that he is the protector, or muscle, for their group.

[221] Finally, the Crown submits that Glizzie and Sixteen performed the role of protector of the neighbourhood. This is based on the following.

1. When Mr. Belle was trying to purchase a firearm from Mr. Cumsille in March 2018, he asked Mr. Sewell, “Who’s out there in Scarlett right now?” Mr. Sewell said, “Probably Sixteen.”[64] The Crown argues that Mr. Belle asked Mr. Sewell who was protecting the neighbourhood right now and should receive the firearm he is purchasing. Mr. Sewell told him it was Sixteen.

2. In June 2018 when Mr. Belle was trying to arrange for Glizzie to pick up the firearm, he asked Mr. Cumsille where Glizzie should go to get it. He described Glizzie to Mr. Cumsille as, “The only young nigger I hear that’s fucking on this from the block.”[65] The Crown argues that Mr. Belle identified Glizzie as the recipient of the firearm because he will protect the block.

Support for Members in Jail

[222] There was evidence that Mr. Sewell and Mr. Belle passed messages to each other through Mr. Allegro, who was incarcerated in the same institution as Mr. Belle.

[223] Mr. Cumsille testified that the rap videos he made always contained a “shout out” to a friend who may or may not have been in jail. Shout outs are a sign of respect in gangster rap. Many of the rap videos in this trial contain shout outs to Mr. Allegro and Mr. Belle.

[224] Mr. Belle told Mr. Sewell that Mr. Allegro would be coming home soon and, “we’ll make sure he has like two hundred bands [$200,000.00] in his pocket.”[66] In the same telephone call, Mr. Belle told Mr. Sewell that he had spent $4,000 on Mr. Allegro to allow him to make $20,000 or $30,000.

[225] Mr. Sewell passed on condolences to Mr. Allegro for the loss of his mother and told Mr. Allegro that they were, “gonna get together some change for you.”[67]

[226] As previously discussed, Mr. Sewell agreed to hide drugs at the funeral home where Mr. Allegro could pick them up while on leave from the penitentiary.

Analysis

[227] In my view, what is missing in this case is evidence of structure and cohesiveness to distinguish this group of people engaged in criminal activity from a group of three or more people who commit serious crimes together for a material benefit.

[228] The New Shorter Oxford English Dictionary (Oxford: Clarendon Press, 1993) defines organized as, “3. Formed into a whole with interdependent parts; coordinated so as to form an orderly structure; systematically arranged.” In this case, the parts do not form a whole.

[229] Section 467.1 of the Criminal Code does not require that a criminal organization be well organized, but there must be some evidence that there is a group of people working together toward a shared unlawful end.

[230] The Crown has provided a detailed interpretation of the intercepted communications that in their submission establish the requisite degree of organization. If I accepted the Crown’s interpretation, there would be sufficient evidence to establish a criminal organization. However, I am unable to accept that the Crown’s interpretation is the only reasonable inference that can be drawn from the calls.

[231] I accept that much of the defendants’ criminal activity is centred around 4020 Dundas Street West and in the Scarlett neighbourhood. This is not surprising given that Mr. Belle and Mr. Sewell grew up in that neighbourhood. This also explains why people who were out of custody informed Mr. Belle about events and happenings in the neighbourhood.

[232] I also accept that Mr. Belle was well regarded amongst his peers in his neighbourhood. He was thought of as having experience and wisdom about the criminal justice system and people sought his advice occasionally. This does not make him a leader.

[233] The fact that the alleged members were either armed or seeking to be armed is consistent with Detective Duffus’ evidence that drug dealers often carry firearms to protect their product and their money. And like other entrepreneurs, they wanted to dissuade the competition from their market in the Scarlett neighbourhood.

[234] Although the Crown’s theory is that there is a hierarchy in this group with Mr. Belle as the leader and Mr. Sewell as his “second-in-command,” running things on the street, the evidence is dubious on this point. The two of them frequently argue about who has the most authority or power on the street. This behaviour is inconsistent with a cohesive group working together for a common goal.

[235] There is no evidence that anyone requires the permission of Mr. Belle or Mr. Sewell to do anything. Mr. Sewell shows a surprising lack of respect for Mr. Belle if Mr. Belle is the leader. As I have found when I dealt with the substantive offences, other alleged members of the group do not necessarily jump to Mr. Belle’s commands. The woman Mr. Belle called to find out the location of the pimp he intended to rob humoured Mr. Belle when he instructed her to let him know the location. She simply said, “Yeah whatever.” I found that Forty treated Mr. Belle in the same off-hand manner when he was asked to commit robberies and deliver drugs by drone. This behaviour is inconsistent with the notion of a hierarchy.

[236] Similarly, Mr. Belle is often disrespectful of Mr. Sewell, insulting him, calling him names, and threatening to arm people who are against him. This too is inconsistent with the notion that Mr. Sewell is Mr. Belle’s “second-in-command” running his operations on the street.

[237] The tenor of the conversations between the alleged members of the organization is often warm and affectionate. They were close friends. It makes sense that they would help each other out occasionally. As Mr. Cumsille testified, when a person goes to jail, he finds out quickly who his real friends are. The fact that people put money in Mr. Belle’s canteen account at the penitentiary or give money to Mr. Allegro to assist him when he is released from prison is evidence of friendship.

[238] There is no evidence that profits were being shared amongst the alleged members, other than between Mr. Allegro and Mr. Cumsille. There is evidence to the contrary. When Mr. Belle attempted to recruit Forty to rob some pimps, he asked him to be sure to give him “a nice cut out of it.”[68] Mr. Belle was essentially asking for a commission or a finder’s fee. This is inconsistent with the theory that Forty and Mr. Belle are members of a criminal organization.

[239] I am unable to accept the Crown’s interpretation of the calls related to the roles of the alleged members. Their interpretation may be correct, but it is certainly not the only reasonable interpretation available.

[240] I have no difficulty finding that Mr. Sewell was a mid-level drug trafficker who shared profits with Mr. Allegro. There is evidence that Glizzie and Chin assisted him on occasions. People from as far away from North Bay bought drugs from him. However, there is insufficient evidence of any structure to this group.

[241] In my view, this is a case of several people engaging together in criminal behaviour, particularly drug trafficking, and not a case of a criminal organization as contemplated by s. 467.1 of the Criminal Code. My reasons, in summary, for so concluding include the following:

1. There is no evidence that the alleged members, other than Mr. Allegro and Mr. Sewell, shared profits.

2. No one person held any degree of authority over others.

3. There was no division of labour or distinct roles for the alleged members.

4. There is no evidence that a record of their activities was kept.

5. There is no evidence that there were any rules governing the group.

6. There is no evidence that the group could or would perpetuate itself.

7. The alleged members did not communicate with each other.

8. There was a lack of cohesion amongst the alleged members.

[242] When I consider the evidence as a whole, I am not satisfied beyond a reasonable doubt that the Crown has proved the existence of a criminal organization. As a result, Mr. Allegro is found not guilty of Count 8, Mr. Belle is found not guilty of Counts 9 and 10, and as I have already indicated, Mr. Cumsille is found not guilty of Count 9.

DISPOSITION

[243] Mr. Allegro is found guilty of Count 4 and not guilty of Count 8.

[244] Mr. Belle is found not guilty of Counts 1, 3, 5, 6, 7, 9, and 10.

[245] Mr. Cumsille is found not guilty of Counts 1, 3, and 10. He is found guilty of Count 2.

[246] I do not want these reasons to be taken as a vindication of Mr. Belle, who has conceded that he was trying to purchase a firearm from Mr. Cumsille to transfer to others. It is obvious from reading and listening to the intercepted communications in this trial that Mr. Belle continued to engage in serious criminal activity while incarcerated in a federal penitentiary. However, on the charges that are before me, I am not satisfied of his guilt beyond a reasonable doubt.

Corrick J.

Released: September 16, 2021

COURT FILE NO.: CR-20-50000044-0000

DATE: 20210916

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

KYLE ALLEGRO

SHAQUILLE BELLE

MARCUS CUMSILLE

REASONS FOR JUDGMENT

Corrick J.

Released: September 16, 2021

[1] Session 678

[2] Session 757

[3] Session 759

[4] Session 765

[5] Session 765

[6] Session 770

[7] Session 1366

[8] Session 685

[9] Session 1146

[10] Session 1149

[11] Session 1636

[12] Session 1644

[13] Session1669

[14] Session 1894

[15] Session 1895

[16] Session 757

[17] Session 757

[18] Session 765

[19] Session 770

[20] Session 1366

[21] Session 1366

[23] Session 765

[24] Session 685

[25] Session 685

[26] Session 678

[27] Session 5916

[28] Session 685

[29] Session 685

[30] Session 685

[31] Session 1149

[32] Session 1637

[33] Session 1669

[34] Session 1895

[35] Session 1366

[36] Session 1149

[37] Session 43

[38] Session 605

[39] Session 739

[40] Session 1348

[41] Session 6606

[42] Session 7439

[43] Session 5870

[44] Session 5880

[45] Session 5916

[46] Session 5940

[47] Session 6683

[48] Session 685

[49] Session 5916 at line 57 of the transcript

[50] Session 5880

[51] Session 5916

[52] Session 5940

[53] Session 685

[54] R. v. Mills, (1963) 47 Cr. App. R. 49 at pp. 54-55

[55] See for example, Session 336.

[56] Session 765.

[57] Session 770.

[58] Session 678.

[59] Session 685.

[60] Session 865.

[61] Session 765.

[62] Session 2144.

[63] Session 685.

[64] Session 770.

[65] Session 1149.

[66] Session 678.

[67] Session 43.

[68] Session 685.