ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
THOMAS BELL AND NORMAN STANLEY ROSBOTTOM
Alan Findlay, for the Crown
Robert Barr, for Thomas Bell
Natasha Calvinho, for Norman Stanley Rosbottom
REASONS FOR DECISION
ABRAMS, J
Introduction
1The defendants, Thomas Bell (“Bell”) and Norman Stanley Rosbottom Jr. (“NSRJ”), are charged on a 22 count Indictment.
2The Crown alleges that Bell and NSRJ lead a criminal organization that engaged in drug trafficking, home invasion robberies, kidnapping, and the intimidation of low to mid-level drug dealers and users.
3Oral evidence was heard over approximately 26 days spanning approximately five months with 29 witnesses testifying.
4At the end of the trial, the Crown invited the Court to enter acquittals or non-suits on some of the counts, specifically: 5, 7, 8, 9 and 22.
5The offences the Court must render judgments on – 17 in total – are set out below, chronologically and by incident.
The Indictment
7 March 2018 to 23 September 2018 – Criminal Organization
6Count 1 – Bell alone is charged that he knowingly directly instructed persons to commit indictable offences under the Criminal Code for the benefit of, at the direction of, or in association with the said criminal organization, contrary to section 467.13 of the Criminal Code.
7Count 2 – Bell and NSRJ are jointly charged that they committed indictable offences for the benefit of, at the direction of, or in association with a criminal organization, which included Bell and NSRJ, contrary to section 467.12(1) of the Criminal Code.
7 March 2018 – Jason Russell incident at 219 James Street, Brockville
8Count 3 – NSRJ and Bell are jointly charged that they stole a quantity of Canadian currency from and at the same time used violence to Jason Russell (robbery) contrary to section 344(1)(b) of the Criminal Code.
9Count 4 – NSRJ and Bell are jointly charged that they broke and entered the residence of Jason Russell, and therein committed the indictable offence of robbery (break and enter), contrary to section 348(1)(b) of the Criminal Code.
21 July 2018 – Jamie Poelstra incident
10Count 21 - NSRJ alone is charged that he stole a crate and its contents while using violence (robbery), contrary to section 344(1)(b) of the Criminal Code.
26 August 2018 – Allan Neal ‘park’ incident
11Count 5 – Bell and NSRJ are jointly charged that they committed an assault on Allan Neal, contrary to section 266 of the Criminal Code.
3 September 2018 – Allan Neal Kingston incident
12Count 10 – Bell and NSRJ are jointly charged that they kidnapped Allan Neal, with the intent to confine him against his will, contrary to 279(1.1) of the Criminal Code.
13Count 11 – Bell and NSRJ are jointly charged that they assaulted Allan Neal, and in so doing caused bodily harm to him (assault cause bodily harm), contrary to section 267(b) of the Criminal Code.
14Count 12 - Bell and NSRJ are jointly charged that they uttered a threat to cause death to Allan Neal, contrary to section 264.1(1)(a) of the Criminal Code.
23 September 2018 – Cody Noonan incident
15Count 13 - Bell and NSRJ are jointly charged that they kidnapped Cody Noonan, with the intent to confine him against his will, contrary to 279(1.1) of the Criminal Code.
16Count 14 - Bell and NSRJ are jointly charged that they in committing an assault on Cody Noonan used a weapon, to wit a tire iron or a similar weapon, (assault with a weapon) contrary to section 267(a) of the Criminal Code.
17Count 15 - Bell and NSRJ are jointly charged that they stole a quantity of Canadian currency from and at the same time used violence to Cody Noonan (robbery) contrary to section 344(1)(b) of the Criminal Code.
26-27 September 2018 Weapons Offences
18Count 16 – NSRJ alone is charged that he had in his possession a firearm, a Smith & Wesson revolver, knowing that it was obtained by the commission in Canada of an offence (firearm obtained through the commission of an offence), contrary to section 96(2) of the Criminal Code.
19Count 17 - NSRJ alone is charged that he had in his possession a firearm, a Smith & Wesson revolver, without being the holder of a license to possess said item (firearm possession), contrary to section 91(1) of the Criminal Code.
20Count 18 - NSRJ alone is charged that he possessed property obtained by crime, a Dominion Arms 9mm frame, of a value not exceeding $5,000, contrary to section 354(1)(a) of the Criminal Code.
21Count 19 - NSRJ alone is charged that he had in his possession a firearm, a Dominion Arms 9mm frame, without being the holder of a license to possess said item (firearm possession), contrary to section 91(1) of the Criminal Code.
27 September 2018 - Drug Offence
22Count 20 - NSRJ alone is charged that he trafficked in a substance included in Schedule 1 of the Controlled Drugs and Substances Act (“CDSA”), namely cocaine, contrary to section 5(2) of the CDSA.
Brief Background and Parties Positions
23The Crown alleges that between the spring and fall of 2018, Bell, NSRJ and Allan Neal (“Neal”) were members of a criminal organization, as defined in s. 467.1(1) of the Criminal Code.
24The Crown contends that the purposes of this organization included: drug trafficking, home invasion robberies, kidnapping, and the intimidation of low to mid-level drug dealers and users on the margins of society. Further, the Crown asserts that the organization ultimately turned on Neal and committed serious offences against him.
25The Crown argues that it need not prove that a criminal organization has a name but only that the organization meets the definition of criminal organization in the Criminal Code. That said, the Crown asserts that the Outlaws MC support club, the Dead Eyes Motorcycle Club (“DEMC”) in conjunction with Bell, it’s “one percent” Outlaws MC overseer and instructor, is the organization.
26The Crown contends that Bell, NSRJ and other members of the DEMC referred to themselves as “the regulators”, being those individuals who “sat at the table” at 21 Sevenoaks Avenue, Brockville, Ontario (“Sevenoaks Avenue”), where they planned crimes and followed the directions of Bell and NSRJ.
27The Defence does not dispute that NSRJ was a member of the DEMC or that he was a probationary member of the Outlaws MC. Neither do they dispute that Bell was a “full-patch” member of the Outlaws MC. The Defence does; however, dispute that membership in a club or organization, even if it is one associated with motorcycles, does not make it a gang or a criminal organization.
28The Defence contends that all the complainants, save for Mr. Poelstra, are incredible and unreliable witnesses with a clear motive to fabricate their evidence. Moreover, the Defence asserts that every complainant, except for Mr. Poelstra, has admitted to previously lying under oath when it served their own best interest. Thus, the Defence argues that this trial really comes down to one main issue: Can the Court find, beyond a reasonable doubt, that the accused are guilty based upon the evidence of witnesses who are admitted liars, perjurers, drug dealers, drug addicts, violent criminals and thieves?
29In summary, the Defence says there is no evidence of a criminal organization. There is no substantial identification evidence of Bell and NSRJ being involved in any of the robberies or the home invasions. Further, as no one was found within 21 Sevenoaks Avenue at the time of the execution of the search warrant, there is no evidence that the guns are connected to NSRJ.
General Principles
Disreputable Witnesses
30It is axiomatic, in my view, that to fight organized crime, it is necessary for law enforcement to elicit the aid of insiders who have themselves engaged in serious crimes and to persuade them to cooperate with investigations and prosecutions.1
31The Crown concedes that Neal, Cody Noonan (“Noonan”) and Norman Rosbottom Sr (“NRS”) are disreputable witness and that to rely upon their evidence the Court must find evidence that confirms material aspects of their evidence. I agree.
32Such confirmatory evidence must restore the Court’s faith in the credibility and reliability of the witness, but it need not implicate the accused in the crime. What is meant by “confirming evidence” was set out in R. v. Vetrovec:
The reason for requiring corroboration is that we believe the witness has good reason to lie. We therefore want some other piece of evidence which tends to convince us that he is telling the truth. Evidence which implicates the accused does indeed serve to accomplish that purpose but it cannot be said that this is the only sort of evidence which will accredit the accomplice. This is because, as Wigmore said, the matter of credibility is an entire thing, not a separable one:
... whatever restores our trust in him personally restores it as a whole; if we find that he is desiring and intending to tell a true story, we shall believe one part of his story as well as another; whenever, then, by any means, that trust is restored, our object is accomplished, and it cannot matter whether the efficient circumstance related to the accused's identity or to any other matter. The important thing is, not how our trust is restored, but whether it is restored at all.2
33It is confirmation of a material particular of the evidence of the witness that is required.3 There is no separate rule where the only evidence of the accused's participation in the offence is that of the disreputable witness.4
Neal
34The Crown concedes that Neal craves a sense of belonging to something bigger than himself and looks for short cuts to “success” by committing serious criminal offences. Neal testified that he was attracted to the biker life to have a feeling of “being accepted and being part of something”.5 Even after allegedly being victimized by the organization in this case, Neal supported another biker gang: the Hells Angels.6 He testified that he was raised not to speak to the police7 and that he had concerns about the organization considering him to be a “rat”.8 He admittedly pressured his girlfriend to help him sell drugs.9
35The Crown agrees that Neal committed serious crimes, that he initially lied about having done so to the police, and that he had a motive to fabricate i.e. to protect himself and his girlfriend from incurring charges and jail time.10
36The Crown argues; however, that there is no evidence that Neal had reason to specifically target Bell and/or NSRJ. According to NRS, Neal loved Bell and NSRJ,11 and had no reason to falsely accuse them.12 Thus, the Crown asserts that Neal’s animus towards Bell and NSRJ arises only from his victimization at their hands.
37The Crown contends that while Neal initially lied to the police about his own serious criminal conduct, there is a paucity of evidence that he lied to the police as it relates to the criminal actions of Bell and NSRJ.
38John Vanderweid (“Vanderweid”) claimed that Neal lied to the Court to cover the extent of his drug trafficking. But Vanderweid provided no evidence of Neal lying to the Court regarding the offences committed by Bell and NSRJ.
39Notably, Neal’s criminal record is comparatively minor: mischief and breach of undertaking in 2016 for which he received 18 months’ probation.13 Further, at the time of Neal’s testimony, he had no criminal charges hanging over his head.
40Neal testified that after his alleged kidnapping he did not call the police as he was fearful of the repercussions.14 He testified that NSRJ “scared the shit out of him”.15
41Most importantly, the Crown argues that there is ample evidence that confirms material particulars of Neal’s evidence, some of which directly implicates Bell and NSRJ.
42Neal turned himself in to the police the evening he saw the news that he and Brooke Lachapelle (“Lachapelle”) were wanted.16 Lachapelle went with her parents and turned herself in shortly thereafter.
43Neal’s first interview was on Saturday, October 6, 2018 with DC Grant at the Brockville Police station. Neal did not disclose any crimes committed by himself or crimes committed against him. Neal lied to the police in this statement. Neal had already been remanded into custody in WASH Court prior to meeting with DC Grant.17 Neal testified that he feared being assaulted if he told the police what the accused had done to him.18
44Neal turned his phone over to DC Grant who told him it would be returned after his release.19 After the interview they spoke in the garage and Neal disclosed that he was kidnapped by the accused. Neal testified that DC Grant told him that he could provide a further statement after his release but “he [Grant] didn’t promise me nothing”.20 Neal testified that DC Grant was more interested in Bell, NSRJ and NSR than in the possession charges related to Neal and Lachapelle.21 DC Grant confirmed that Neal discussed the kidnapping when they were in the garage.22
45Neal met with DC Grant and DC Bonham at bail court on Tuesday October 9, 2018 and agreed to give a statement.23 Neal was released on consent but there is no evidence that he was given bail in exchange for his cooperation. Neal testified that he was “under the impression that he was already being release” at the time of the conversation.24 DC Bonham and DC Grant testified that the police did not speak to the Crown to secure Neal’s release.25
46Neal did testify that he believed the police would “see what they could do” on the charges he was facing.26 He also believed that he could help Lachapelle if he cooperated and that the police told him she would not go to jail if he did so.27 He testified that he believed the police wanted damaging information on Bell, NSRJ and NRS.28
47DC Bonham testified that at the bail court meeting, Neal disclosed that he was a victim of the DEMC and the Outlaws MC.29 He testified that no firm promises on charges were given to Neal as that required Crown approval.30
48On Wednesday October 10, 2018 Neal attended Kingston Police and provided his second video statement. His phone was returned to him. Neal knew that the police were interested in Bell and NSRJ, but he recalls no promises being made at that interview.31
49Neal’s final statement was to DC Coe on May 6, 2019. He did mention the Poelstra robbery, the Russell and Mellon robberies; however, through an oversight the police did not follow up.32 Neal testified at the preliminary hearing about all of his criminal conduct: drug trafficking, the Poelstra robbery, the assault of Chad Johnston (“Johnston”), and the train station robbery of Mellon, who never made a complaint to the police.33
50The Crown asserts that despite Neal’s belief that he received a benefit prior to the provision of his police statements, the actual benefit he received was after the statements were provided by not being charged for the offences that he admitted to at the preliminary hearing.
51Neal described the prospect of incurring these charges as a “constant thought”. At the same time, he testified that he did not believe his evidence at trial would impact on whether he was charged or not.34
52Neal and Lachapelle’s possession charges related to the search of 21 Sevenoaks Avenue were withdrawn as there was no reasonable prospect of conviction. Neal’s charges were withdrawn on December 24, 2018.35 Neal subjectively believed that they were withdrawn for his cooperation36 but the Crown asserts that the charges were weak and that all the accuseds’ charges were based on their mailing address alone. Notably, all of those who were initially charged for the search had their charges withdrawn.37
53Neal speculated that his administration of justice charges were withdrawn on July 12, 2019 for his cooperation.38 He wrote a letter to DC Grant to explain that he failed to appear in court out of fear of being assaulted.39 He was told by Vanderweid that he heard people were waiting for him.40 DC Grant testified that the charges were actually withdrawn as their prosecution was not in the public interest. DC Grant did not want Neal to return to Brockville Court for his own safety.41
Noonan
54There is no quarrel that Noonan is a drug addict and a trafficker. He committed perjury at the preliminary hearing when he falsely accused the police of coaching him off the record.42 He has a serious criminal record.43
55Noonan began his statement to DC Grant with, “I can’t say anything. Get me killed.”44 He also feared being labeled a “rat”.45 This fear was exacerbated by the fact that he was in custody.46 The Crown contends this points to a strong motive for him to recant and play down his KGB statement that incriminated Bell and NSRJ. He spent much of his statement trying to negotiate his own charges. It is admitted that his statement is disjointed and at times difficult to follow.
56DC Grant told Noonan that he could not promise him anything as Noonan’s charges were laid by the OPP.47 But DC Grant did tell Noonan he would do everything he could to get him bail.48 In the end, DC Grant never did anything to help Noonan.49 Noonan confirmed this.50 Noonan testified that he knew DC Grant was seeking the truth and that he was not told what to say by the police.51
57The Crown asserts that Noonan’s recantation letter is suspicious as it was given to NSRJ’s sister and then passed on to Defence counsel for NSRJ at the preliminary hearing, effectively bypassing the police and the Crown.52
58All of that said, the Crown argues there is ample evidence that confirms material particulars of Noonan’s evidence regarding his victimization during the Russell home invasion and his kidnapping.
NRS
59NRS is a disreputable witness given his multiple admissions of lying to the police and perjury. However, his dishonesty consistently targeted the case for the Crown and favoured the accused. I agree. He went as far as to strategically “hold back” evidence to help the accused when being cross-examined by the Crown.53
60That said, some aspects of NRS’s viva voce evidence at trial, his statement to DC Grant and his preliminary hearing evidence are credible and reliable. Before being confronted in cross-examination by the Crown with his statement to DC Grant and his preliminary hearing evidence, NRS testified that he told the truth to DC Grant and at the preliminary hearing.54 NRS had no motive to lie to DC Grant to incriminate either Bell or his son.55
61NRS’s claim that his statement to DC Grant was induced is incredible given his evidence at the preliminary hearing that Grant didn’t threaten him or promise him anything and that there was no discussion before the video.56 DC Grant also testified that there was no conversation before the video statement.57
62NRS also declined to mention the alleged inducements until trial in spite of the fact that it would have greatly benefited Bell and NSRJ to do so.58 His claimed inducement involving his wife is a fabrication given that her charges were withdrawn prior to the preliminary hearing.59
63In R. v. Walker the Court of Appeal did not accept that:
[T]he Crown must vouch for the veracity of every statement uttered by every witness that it calls and does not impeach. There are many cases, such as the one on appeal, where the Crown is compelled to call disreputable persons as witnesses because they are the only possible witnesses to whatever it is that occurred. Crown counsel is entitled to invite the jury to be selective as to what part or parts of the evidence of any witness they should choose to believe.60
64In the context of this case, the Crown argues that the Court cannot accept the opposite of what NRS testified to as being proven. However, where there is affirmative evidence that contradicts NRS, the Court may accept that evidence as true.61
Lachapelle
65The Crown contends that Lachapelle is not a disreputable witness. She has no criminal record. She did not tell the police in her statements that Neal was selling cocaine but she explains that she was never asked. She did; however, testify about it [trafficking] at the preliminary hearing when asked.62 Her charges of possession were withdrawn. She testified that she did not know why.63 Her possession charges suffered from the same frailties as Neal’s and all the accused whose charges were based on their mailing address alone.
Fraser
66Chelsea Fraser (“Fraser”) has a significant criminal record.64 She is a drug user and a trafficker. However, there is no evidence that she had any animus towards Bell and NSRJ or anything to gain by testifying for the Crown. She testified that DC Grant made her no promises for her statement and that she chose to speak.65 She was sober when she gave her statement.66 If anything, she may have coloured her evidence to make Bell and NSRJ look better by purporting that they held anti-drug views.67 She declined to call the police in relation to the Russel incident given her and Noonan’s involvement in drugs.68
Russell
67Jason Russell (“Russell”) has a significant criminal record.69 He is a drug addict. He was involved in drug trafficking in that he gave money to Noonan and Fraser to buy drugs for sale and then he consumed his share of the profits.70 He lied at the preliminary hearing about this drug dealing activity.71 The Crown concedes that Russell’s cooperation with the police wavered from time to time and that he was a reluctant witness. He was the subject of a material witness warrant at trial to get him to court to testify in a sober condition.
68That said, Russell had no animus towards Bell and NSRJ. Rather, NRS testified that Russell left the DEMC on good terms with Bell and NSRJ.72 Russell was given no promises by the police in exchange for his evidence. Russell testified that he still has concerns about people coming after him.73 He testified that he feared that if he spoke out, he would be dead.74
69When the police originally visited Russell in Peterborough on May 2, 2019 he was not sober. He was afraid and declined to speak.75 He said that Noonan had “loose lips” as he believed that he had talked about the alleged home invasion to the police [which Noonan had on November 30, 2018].76
70In September 2019 he was sober and contacted the police to arrange his first statement as he thought that no one should be afraid in their own home.77 DC Coe confirmed Russell appeared to be off drugs at his first interview.78
71Admittedly, he did not tell the police in his first statement about NSRJ’s role [in the alleged home invasion] as he was “supposed to be like my brother”. He did; however, implicate Bell and Jesmer.79 When questioned about NSRJ at trial he became tearful.80 He said he loved NSRJ and didn’t want him to get in trouble.81
72At the first interview, DC Coe described Russell’s demeanor as sullen, quiet and dipping his head as if he was trying to hide behind his hat when police raised NSRJ’s name. At that point Russell only said that NSRJ “may have had” involvement in the alleged home invasion.82 At a later safety meeting with police, Russell blurted out that NSRJ was involved and then detailed that in a subsequent statement.83
Saddlemire
73Eric Saddlemire (“Saddlemire”) plead guilty to perjury for lying at the preliminary hearing by saying that he had no memory of the Noonan kidnapping. He testified that he perjured himself as he was “scared for [his] life”.84
74He is a drug addict who has been clean for two years.85 He has a criminal record.86 He lied to DS Fournier when he denied that the drugs found in his wallet were his.87
75He was recently sentenced to a 21-month conditional sentence for offences including perjury and trafficking cocaine.88 Saddlemire’s recent sentence was not a joint submission as the Crown sought actual jail.89
76Notably, Saddlemire was not cross-examined at trial by either accused.
77The Defence argues that, apart from NRS, all the witnesses named above, for the most part, are admitted liars, perjurers, drug dealers, drug addicts, violent criminals, and thieves. Accordingly, the Defence contends that registering convictions against Bell and NSRJ, based on the evidence of these witnesses called by the Crown, is not only dangerous but that it would be the very essence of what wrongful convictions are made of.
Bad Character
78The Crown led evidence of bad character to prove the existence of a criminal organization and to explain delayed complaint.
79There is a general prohibition against introducing bad character evidence for the sole purpose of showing that because of their character, the accused is the type of person to have committed the offence. There are, however, exceptions to this rule. If the evidence is relevant to an issue at trial, and the probative value of the evidence outweighs its prejudicial effect, it may be admitted. Exceptions include providing necessary background or narrative to the Crown’s case.90
80In R. v. Lamirande the Manitoba Court of Appeal explained:
The essential question is whether the impugned evidence was in fact "bad character evidence." The rule excluding such evidence applies only where the sole purpose of evidence touching on character is to show that the accused is the type of person likely to have committed the offence. This point is emphatically made in a number of Supreme Court of Canada decisions. In R. v. B. (F.F.)...
The basic rule of evidence in Canada is that all relevant evidence is admissible unless it is barred by a specific exclusionary rule. One such exclusionary rule is that character evidence which shows only that the accused is the type of person likely to have committed the offence in question is inadmissible.
More recently in R. v. G. (S.G.)....
It is trite law that "character evidence which shows only that the accused is the type of person likely to have committed the offence in question is inadmissible"....
The question then is whether there is a proper purpose for tendering the evidence so as to permit its admission.
The answer provided by the case law is that such evidence is properly admitted in a wide variety of circumstances.91
To summarize, if the "evidence is also relevant to a given issue"... "directly relevant to a key element of the Crown's theory of the case, such as motive, opportunity or means"... "necessary to the development of the Crown's case"... or simply provides "background",,, or "context"... then it is admissible, subject of course to the probative value outweighing the evidence's prejudicial effect, as it so clearly did in this case. It is not simply bad character evidence.
81Uncharged violence may also be relevant to delayed complaint.92 For example, Lachapelle testified that she did not call the police when Neal was kidnapped because “I was 18. I saw Ray be violent before. I was scared.” She also said that from living at 21 Sevenoaks she got into the mindset that “there is no such thing as calling the cops” as you may get “beat the exact same”.93
After-the-Fact Conduct
82In R. v. White (1998) the Supreme Court held that a change in appearance may be evidence of after-the-fact conduct from which guilt may be inferred:
Under certain circumstances, the conduct of an accused after a crime has been committed may provide circumstantial evidence of the accused's culpability for that crime. For example, an inference of guilt may be drawn from the fact that the accused fled from the scene of the crime or the jurisdiction in which it was committed, attempted to resist arrest, or failed to appear at trial. Such an inference may also arise from acts of concealment, for instance where the accused has lied, assumed a false name, changed his or her appearance, or attempted to hide or dispose of incriminating evidence. As Weiler J.A. noted in R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 117 C.C.C. (3d) 226 (Ont. C.A.), at p. 238:
Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.94
83Identity is a critical issue in this case. Some of the offences took place in daylight in front of witnesses who were not familiar with Bell. In those circumstances, it may be significant that Bell dramatically changed his appearance before the preliminary hearing. Neal testified that he did not recognize Bell at the preliminary hearing. He described him as slimmed down and clean shaven and that he “wasn’t the Tom that I knew”.95 This was confirmed by DC Grant.96
84Another explanation is that Bell simply wanted to get in better shape or get out of the biker life. Given the dramatic change in his appearance and the importance of his identity in this case, his change in appearance may be of sufficient probative value from which guilt may be inferred for the Noonan kidnapping and the Russell home invasion.
85Finally, I remind myself that I must consider all the evidence presented during the trial. To that end, I must decide how much or how little I will believe and rely upon the testimony of any witness. I may believe some, none, or all of it.
Legal Framework
Counts 1 and 2
Committing offences for the benefit of the organization - section 467.12 of the Criminal Code.
86Definition of criminal organization - s. 467.1(1):
467.1 (1) The following definitions apply in this Act. “criminal organization” means a group, however organized, that
(a) is composed of three or 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.
87The essential elements of a criminal organization are:
a group of three or more people;
the group must have a structure, coordination and exhibit continuity;
one of the main purposes or activities of the group is the facilitation or commission of serious offences; and
there would likely be a material benefit to the group or any member if the offence(s) were committed.97
88This definition acknowledges that criminal organizations may have concurrent non-criminal activities. It does not require proof that serious criminality is the group’s only purpose or activity to the exclusion of all else. It simply requires that crime be “one of” the group’s “main purposes or main activities”, a significantly broader concept. It does not matter that the group has other main non-criminal purposes or activities.98
89A “serious offence” includes any offence for which the maximum punishment is imprisonment for five years or more or an offence designated by regulation.99 This would include offences committed in the case at bar: kidnapping, robbery, breaking and entering, assault, assault causing bodily harm, assault with a weapon and trafficking cocaine.
90A criminal organization need not have a name or be a classic outlaw motorcycle gang. It need not be a sophisticated organization. Even minimal organization over time provides advantages and therefore an enhanced threat to the public.
91Rather than trying to develop a checklist to define a criminal organization, it is preferable to focus on the legislative goal of undermining groups that pose an elevated threat to society due to their organization. The definition must be flexible because such groups have no incentive to conform to a formal structure. Groups do not have to fit the stereotypical model of a crime organization - that is, highly sophisticated, hierarchical, and monopolistic.100
92In R. v. Venneri the Supreme Court held:
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.101
93The need for flexibility was explained in R. v. Venneri:
In R. v. Terezakis... Mackenzie J.A. explained in these terms the need for flexibility in applying the statutory definition of "criminal organization":
The underlying reality is that criminal organizations have no incentive to conform to any formal structure recognized in law, in part because the law will not assist in enforcing illegal obligations or transactions. That requires a flexible definition that is capable of capturing criminal organizations in all their protean forms.
94I agree with Mackenzie J.A. that a flexible approach favours the objectives of the legislative regime. In this context, flexibility signifies a purposive approach that eschews undue rigidity. That said, by insisting that criminal groups be “organized”, Parliament has made plain that some form of structure and degree of continuity are required to engage the organized crime provisions that are part of the exceptional regime it has established under the Code.102
95The existence of a group and its composition are questions of fact for determination by the trier of fact.103 An individual’s functional connection to the culpable purpose or activity is a relevant factor in determining whether the person is a member of a group, but the absence of a functional relationship is not determinative and consideration has to be given to all of the facts in determining whether the person is part of a group.104 Thus, while a person who provides services to a group or who is a customer of a group is not, on that basis, a member of the group, the issue is one that has to be determined in light of all the facts bearing on the actual relationship between the person and the group.105
96Commission of an offence s. 467.12(1)
467.12 (1) Every person who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
97This offence is aimed at those who actually commit indictable offences for a criminal organization. The essential elements are:
The commission of an indictable offence;
The existence of a criminal organization;
The commission of the indictable offence in one of the following ways:
a. For the benefit of the criminal organization;
b. At the direction of the criminal organization; or
c. In association with the criminal organization.106
98The offence(s) committed must in some degree be connected to the activities of the criminal organization and advance its interests. The offence(s) do not have to be directed by the organization nor committed primarily for its benefit.
99The phrases “for the benefit of, at the direction of, or in association with, a criminal organization” are not mutually exclusive and will often overlap. Their common objective is to suppress organized crime. They are meant to target offences that are connected to the activities of criminal organizations and advance their interests.
100Where the offence was committed “for the benefit” of a criminal organization, the Crown must prove that the accused intended to benefit the organization. Where the offence was committed “at the direction of” or “in association with” a criminal organization, the Crown must prove the accused knew this to be the case.107
101Instructing others section 467.13 of the Criminal Code
Instructing - 467.13(1)
467.13 (1) Every person who is one of the persons who constitute a criminal organization and who knowingly instructs, directly or indirectly, any person to commit an offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, the criminal organization is guilty of an indictable offence and liable to imprisonment for life.
102The essential elements for this offence are:
Membership in an organization knowing that it has as one of its main purposes the facilitation or commission of a serious offence;
Knowingly giving instructions to commit an offence that is for the benefit of, at the direction of or in association with the organization; and
Knowledge or intent that the offence will be for the benefit of, at the direction of or in association with the organization.108
Application of the Law to the Facts
103The Defence does not dispute that both the DEMC and the Outlaws MC are “organizations”; however, it is contested that they are criminal organizations engaged in criminal conduct.
104Put plainly, it is not a crime to simply be a member of the Outlaws MC or the DEMC and membership does not constitute a criminal offence. Even with judicial notice of reputations and 1% status, membership does not create a rebuttable presumption of criminality.
105The Crown must prove beyond a reasonable doubt every essential element of the alleged criminal organization. Specifically, that criminal acts were committed, that they were committed by members of that organization or at the direction of Bell, as a member of that organization, and that the “main” or predominant purpose of the organization is the commission of one or more serious offences from which the organization derives benefit.
106I remind myself that preconceived notions about biker clubs and their notoriety ought not to form a factual finding for a conviction. Such assumptions are in the purview of wrongful convictions.
107In large part, the evidence of the essential mens rea and actus reus elements to find an existence of a criminal organization or that crimes were committed at its direction and for its benefit comes from the mouth of Neal. To that end, Neal’s conduct was a focal of this trial.
108Neal, of his own initiative, devised and executed the planned assault and robbery of a teenager, Mellon, at the train station in Brockville.109 During this robbery the teenager was badly beaten.
109Neal admitted he is not above lying in court if it is in his interest to do so.110 In fact, he admitted to lying in court when he entered a plea to mischief, even though he professed his innocence to the charge at this trial.111
110Neal admitted to lying under oath at the preliminary inquiry when he testified that there were no “off the record” discussions with police when in fact there were such off the record conversations with Detective Grant.112 The first being the conversation in the parking garage after his formal interview with Detective Grant, and the second being at the courthouse immediately before his bail hearing.
111Neal also admitted, under cross-examination, that he lied to police in his very first statement (6 October 2018) regarding no drugs being present at 21 Sevenoaks Avenue.113 Furthermore, he agreed with the assertion that he made a “calculated choice” not to tell the truth.114
112Against this backdrop, the Defence asks the Court to consider that there is a complete absence of any corroborating evidence through traditional investigative techniques. Specifically, there are no wiretap intercepts capturing conversations involving Bell directing anybody to do anything illegal. While there is evidence of some surveillance of Bell’s activities, no observations of criminal activity or the directing of activity were entered into evidence. Likewise, the Defence argues there is no independent corroborating evidence of NSRJ engaging in any criminal behaviour at all, let alone any for the benefit of a criminal organization.
113Notably, the Defense says the Crown lead no evidence of an excessive lifestyle beyond Bell and NSRJ’s limited means. No real property or other property belonging to either accused was seized as offence related property.
114To recall, by insisting that criminal groups be “organized”, Parliament has made plain that some form of structure and degree of continuity are required to engage the organized crime provisions that are part of the exceptional regime it has established under the Code.
Three Or More People
115I find that between the spring and fall of 2018, the membership of the alleged criminal organization was consistent and stable with limited variation over time. Throughout this time frame the members were: Bell, NSRJ, NRS and Neal. From time to time there were additional members on an ad hoc basis, namely: Kyle Gard (“Gard”), Vanderwied, Owen Wayne Jesmer (“Jesmer”), Johnston and Jerry Sicard (“Sicard”).
Structure, Coordination, and Continuity
116What distinguishes a criminal organization from a conspiracy is some form of structure, coordination and continuity.115 Criminal organizations exist even in small operations, where there is a division of labour, temporal continuity, and an intention by members to advance their illicit goals through the organization.116
117In my view, the following attributes of this organization are instructive when considering its structure, coordination, and continuity, specifically:
Hierarchy and rules;
A headquarters;
Division of labour and specialization;
Secrecy; and
Fostering loyalty.
Hierarchy and Rules
118I find that the group had a hierarchy. First, the DEMC members were clearly subordinate to Bell, the 1% Outlaws MC member. NRS testified that Bell was the “one percenter” overseer of the DEMC.117 Moreover, NRS testified that he [Bell] outranked him.118 Notably, Bell’s 1% status was emblazoned on his vest and other items.119
119Further, NRS told DC Grant:
“He’s the full patch. Well he asked me to do something. With him being a, a full patch or whatever, pretty well I’m a puppet.”120 DC Grant asked NRS: “But Norm did know that Tom was running the show”. Am I wrong? Am I wrong?” NRS replied: “Tom’s a one percenter.”121
120NRS also implied to DC Grant that Bell protected him from violence:
Grant: Why would you want him on your side?
NRS: Not that you’d need him, but... I don’t know, just.. you never know. I’m an older guy.
Grant: So for protection?
NRS: Protection, maybe.
Grant: So what kinds of things would he do to protect you?
NRS: Oh, if people knew I was hanging around with him, they wouldn’t mess with me too much.122
121At the preliminary hearing, NRS confirmed the accuracy of the above:
Q. When you said that to Detective Grant, was
that the truth?
A. Yes, people wouldn’t mess with me.
Q. So that’s a truthful statement?
A. Yes.
Q. And people wouldn’t mess with you because
he is a member of the Outlaws, correct?
A. He’s a patch member, yes, a One-Percenter.123
122NRS testified that they [DEMC members] were to follow the chain of command.124
123I find that the DEMC was a support club for the Outlaws MC.125 The centerpiece of the Outlaws vest is “Charlie”, while the centerpiece of the DEMC vest is “Little Chuck”.126
124The phrase “Support Your Local Outlaws” or “SYLO” was prominent in this case. It was carved into the table in the “table room” at 21 Sevenoaks Avenue. Moreover, it was emblazoned on the knife sheaf belonging to NRS127 and on multiple items of clothing.
125The members of the organization wrote their names, code names and rank on the inside of the door to the master bedroom at 21 Sevenoaks Avenue. For example: “Ray, Ray, DEMC Full Blooded” and “Tom 1% Southside”128, who I infer to be NSRJ and Bell, respectively.
126I find that within the DEMC itself there was a hierarchy and the prospect of promotion to the Outlaws MC. Russell testified that when he was a member of the DEMC, NSRJ was DEMC president and then later an Outlaws MC prospect.129 Neal testified NSRJ was the president of the DEMC before he became an Outlaws probate.130
127Neal described the difference between a full patch and a probate as “you weren’t anybody’s bitch” if you were a full patch.131 Probates could be ordered to do things. For example, Neal testified that he and Johnston were ordered to grapple at the Outlaws MC Southside club house and that is where he [Neal] earned the name “tap out”.132
128Neal testified that he wanted to get a DEMC tattoo. To do so he was told by NSRJ that he had “to ask the proper channels”. When Neal got the tattoo on his neck, Bell and NSRJ disapproved. Later, Neal was assaulted by other members for his error.133
129A spiral notebook was located in Bell’s residence that purports to be the DEMC Constitution 2018.134 It is indicative of an organization. It states that the DEMC is a support club to the Outlaws MC. DEMC members are men of honour and loyalty. It sets out penalties for breaching the rules. The DEMC will follow the mother chapter’s [i.e. the Outlaws MC] constitution. Members must follow the chain of command - speaking to the president [NSRJ] who then speaks to the overseeing “one percenter” [Bell]. Members must perform guard duty, and that the DEMC members will swear an oath to support the “Outlaws Nation”. To that end, Neal testified that on one occasion when Bell was thought to be under threat by rival gang members, he and other DEMC members were summoned to attend at Bell’s residence.
Headquarters
130I find that the nature of any organization’s headquarters may be indicative of its criminality. Put simply, the headquarters provides a common meeting place in which criminal enterprises may be discussed, planned, and launched. I find that 21 Sevenoaks Avenue was fortified and secretive, albeit in a somewhat amateurish manner. Further, it contained several weapons.135
131I find that 21 Sevenoaks Avenue was a headquarters that Bell and NSRJ were closely connected to. Bell was, at very least, a frequent visitor, while NSRJ, along with his father, NRS, lived there. Specifically, NRS testified that he spent about four days per week with Bell in the summer of 2018, and that NSRJ was generally with him at the residence.136 Neal testified that Bell was a visitor to 21 Sevenoaks.137 He testified that Bell would come the odd time, sometimes once a week and sometimes once a day.138 Lachapelle testified that Bell attended every second to third day and would stay for a couple of hours.139
132Further, there is other evidence that connects Bell to 21 Sevenoaks Avenue, specifically:
Neal was required to get Bell’s permission to reside there and he paid his rent to Bell.140 Lachapelle testified that she thought the money went to NSRJ, who in turn passed it on to Bell.141
There are numerous photos of Bell in the residence.142
“Tom, One Percenter” is written on the back door of the master bedroom.
He was at the residence the day before the September 27, 2018 police search.
133I find that 21 Sevenoaks Avenue had several security measures in place. DC Rogers testified that there was a trip wire across the front steps that led to the fortified southwest door. There was a DVR in the table room connected to four exterior cameras, a Confederate flag covered the guest room window, skids blocked off the back yard with bottles tied to ropes leading to the basement, garbage bags covered other windows, a fortified back door and there was a sign reading “no electronics beyond this point” on the table room door.143
134Neal testified that he put the bags over the windows after checking first with Bell and NSRJ. The purpose of the bags included the prevention of outsiders seeing “what was going on in the room”, which included law enforcement.144
135NRS testified that the video surveillance system was there for protection against attack by other bikers.145 At the preliminary hearing, he testified that he would watch the cameras for hours on end.146
136There were also several weapons found in the headquarters, many displayed and some hidden. In the table room alone, DC Rogers located a serrated saw or machete hanging on the wall, NRS’s knife, a tire iron, a bat with a chain wrapped around it and shot gun shells.147
137In the basement bedroom occupied by Gard, an Outlaws’ support vest was located. The vest contained brass knuckles and a conductive energy weapon.148 According to Neal, the weapon belonged to Gard who was a DEMC member.149
138In the master bedroom, DC Rogers located a silver Smith and Wesson revolver, the receiver portion of a Dominion Arms 9 mm handgun and a Sig Sauer handgun magazine.150
Division of Labour and Specialization
139I find that the organization had a division of labour and each member had a role to play.
140Neal testified that NRS’s role was “the same as it’s been for everything and he’s just the driver”.151 For reasons to be discussed later in respect of the discrete offences alleged, I find that NRS was the driver for the Youth Arena incident, the Poelstra incident, as well as the incidents involving Neal and Noonan. Notably, NRS told DC Grant that his driving of Bell was what landed him in custody.152
141Again, for reasons to be discussed later in respect of the discrete offences alleged, I find that Bell was the “one percent” overseer and NSRJ was effectively the middle manager and conduit between the Outlaws MC and DEMC.
142With respect to the allegation of drug trafficking, Neal, Johnston and Lachapelle were sellers and Vanderweid and NRS were drivers.
Secrecy
143I find that, except for Bell, the members used code names. For example, NSRJ was “Ray” or “Ray Ray”, “Ray Ray DEMC full blooded” and “Ray Ray Probationary Outlaw”. Neal testified that he did not learn NSRJ’s real name until Neal was probating with the DEMC.153 Lachapelle testified that he was exclusively referred to as “Ray”.154 NSRJ’s code names “Ray Ray DEMC full blooded and Ray-Ray Probationary Outlaw” were written on the back of the master bedroom door, and dated June 24, 2018.155 Notably, NRS testified that they used “code names”.156
144When members of the Outlaws MC and the DEMC were present at 21 Sevenoaks Avenue, women were not allowed to leave their bedrooms except to use the washroom.157
145Neal testified that when he first arrived at 21 Sevenoaks Avenue, electronics such as cell phones were not permitted in the table room when Bell or other members were there. As a result of individuals failing to check their devices at the door, Neal posted a sign on the door that read: “No Electronics Beyond This Point!!!” .158
146NRS testified that the sign was there because they didn’t want people recording things that were said in the table room.159 Again, he testified that he frequently watched the cameras in case of attack.160
147Lachapelle was aware of the sign and assumed that it was “so nothing could be recorded.” She testified that members would go in there for private conversations. You had to be a Dead Eye or an Outlaw to attend. When Bell attended, the women had to go to their rooms with the doors closed.161 She testified that Neal told her to go to her room and that she thought NSRJ was involved because Tegan Fenlong, his girlfriend, had to go to her room as well.162
148Neal testified that no one else was allowed in the table room when Bell and NSRJ were inside alone.163
149Out of respect for the no-phone policy, I find that Neal kept his phone out of the table room on the day of the Youth Arena incident and that Sicard left his phone outside of the room for the final planning of the Poelstra incident.164
Fostering Loyalty
150NRS claimed that the organization was non-criminal or social in nature, but he did testify that loyalty was part of it.165
151The DEMC vest has DEFF (Dead Eye Forever Full-Blood) on it166, which I infer is indicative of fealty to the organization.
152During what was referred to as the “roofing incident”, Neal testified that Bell wanted him back at 21 Sevenoaks Avenue.167 Further, Neal testified that part of the reason he was assaulted at the Youth Arena was that he was perceived to have been disloyal by attempting to form his own organization, the “Unknown Brotherhood”. Just prior to the assault, Bell asked him what 212 stood for.168 After the assault, Neal was taken back to 21 Sevenoaks Avenue and was told by Bell and NSRJ that he was supposed to be earning money at “this table”, and that he was no longer permitted to be friends with Vanderweid.169
The Facilitation or Commission of Serious Offences
153I find that one of the main purposes of this organization was the commission of serious offences including: trafficking, home invasion robberies, kidnapping and violent intimidation. In my view, the commission of these discrete offences, to be discussed further, is evidence of the organization’s criminal purpose and activities, in addition to the following:
The headquarters, as previously discussed;
Weapons, other than those located at 21 Sevenoaks Avenue; and
A culture of condoning crime and violence.
Weapons
154In addition to the weapons found at 21 Sevenoaks Avenue, members commonly carried fixed blade knives on their person. Neal testified that “everybody carried a knife to my knowledge” and that they [knives] were for self-defence.170
155NRS testified that everybody wore a knife as you had to “dress to code”, and compared them to armour.171 He testified that he carried a knife to protect himself from violence.172 Further, he chose his knife for its menacing appearance.173
156Russell testified that both Bell and NSRJ had knives on their belts during the invasion of his home. He testified “they always had knives on their side”.174
157Lachapelle testified that she saw Gard with a taser175, and that he always carried it in his vest.176
158Under the front passenger seat of NRS’s green Grand Prix, DC Rogers found a collapsible steel baton.177 In respect of the vehicle, NRS testified that he had the only key and that besides his law abiding wife, the only other occupants of the car in the summer of 2018 were Bell and NSRJ.178 Incredibly, in my view, he later claimed that other bikers were in the car but that he didn’t know their names.179 Admittedly, Neal was also a passenger in the car from time to time.
A Culture of Condoning Crime and Violence
159By admission, Bell was a member of the Outlaws MC. In my view, the name alone is indicative of disrespect for the law. Further, the DEMC moniker is dark and invokes death. The centerpiece of the DEMC biker vest is a skull.180
160According to Neal, a “one percenter” refers to the one percent of the population “that didn’t confine (sic) to the law”.181
161Outlaws and DEMC vests have a handgun emblem with the end of the barrel pointing at anyone facing the wearer.182 Bell’s Outlaws vest had the letters GFOD (God Forgives Outlaws Don’t) on it. DC Empey testified that GFOD is the motto of the Outlaws MC.183
162There is evidence of animus between the Outlaws MC/DEMC and the Hells Angels and its support clubs. Specifically, on the wall of the table room there was a “Fuck the Hells Angles” t-shirt, a black upside down “Support 81” t-shirt and an upside-down red t-shirt.184 Neal testified that the upside-down red shirt was a “sign of disrespect” to the Hells Angles.185 Lachapelle called it “desecrating”.186 DC Empey testified that the red shirt is associated with the Hells Angels support club, the Iron Dragons.187
163I infer that writing on the living room wall of 21 Sevenoaks Avenue was a death threat directed at the Hells Angles: “Death to Maggots”.188 Neal testified that “maggots” is what the Outlaws call the Hells Angels.189 NRS confirmed this190, as did DC Empey.191
164The Outlaws MC Southside documents “Wing notes”192 found in Bell’s home make reference to “lots of maggots being seen everywhere” and that “RD”, which I infer to be Red Devils, a Hells Angels support club, “might be getting inside info from one of us?” And that “club discussions should not be done in the open...”.
165NSRJ’s Facebook account posted “no snitches allowed” and an “old school snitch remedy” photo showing a gang beating of one victim.193 NRS posted on his Facebook “Black and white [the Outlaws] or black and blue, it’s up to you”194, which I infer to be a general, physical threat to those who do not SYLO, or Support Your Local Outlaws.
Likely Material Benefit
166I find that there was a likely material benefit to the members of the organization as a result of their crimes. For reasons to be discussed later in respect of the discrete offences alleged, I find that, inter alia: Russell was robbed of $6,500; Noonan was forced to pay a $150 tax; Mellon was robbed at the train station to re-supply cocaine; Poelstra was robbed of money and cannabis; there was an attempt to force Neal to withdraw money from the bank to pay off a drug debt; Neal was assaulted at the Youth Arena so he would return and “earn at the table”; and Neal was kidnapped and punished both for leaving the organization and over a drug debt.
167The evidence that Bell and NSRJ acted for the benefit of, at the direction of, or in association with, a criminal organization will be discussed below when dealing with the discrete offences alleged.
168It is not surprising, in my view, given the secrecy of the organization, that it is difficult to produce direct evidence of Bell instructing anyone directly or to commit a crime. That said, I find there is circumstantial evidence that he was an instructor under the enumerated section, specifically:
Neal testified that “Tom would be the command and Ray would be underneath him answering to Tom”.195
Neal required Bell’s permission to reside at the headquarters at 21 Sevenoaks Avenue.196
Neal paid his rent to Bell, even though Bell did not own 21 Sevenoaks Avenue.
When Neal handed in his DEMC vest, it was to Bell.197
When Russell handed in his DEMC vest, it was to Bell.198
Bell is an Outlaws MC 1% member who is superior in rank to all others involved in this case.
Bell had possession of the DEMC constitution.
The constitution states that the “one percenter” is the overseer of the DEMC.
NRS’s evidence of being subservient to Bell to the degree of referring to himself as “a puppet”.
Bell usually rode in the front seat of the car that the organization used to commit offences.199
When there was an alleged shooting at Bell’s residence, everyone [DEMC members included] had to attend.
Noonan’s evidence that Bell acted like a boss during the Russell home invasion.
Neal’s concern when he was told by NSRJ that Bell was unhappy about the Mellon robbery at the train station.
Neal was assaulted at the Youth Arena after Bell appeared to give a signal by whistling.
169For those reasons set out above and for those reasons to be discussed further in respect of the discrete offences charged and on or between the dates alleged, I am persuaded beyond a reasonable doubt that the organization:
Consisted of a group of three or more people, Bell and NSRJ being the principles.
The group had a structure, coordination and exhibited continuity.
One of the main purposes or activities of the group was the facilitation or commission of serious offences.
There was a likely material benefit to the group or any of its members when the offences were committed.
170For those reasons set out above and for those reasons to be discussed further in respect of the discrete offences charged and on or between the dates alleged, I am persuaded beyond a reasonable doubt that:
Indictable offences were committed by Bell, NSRJ and others.
The group consisting of, inter alia, Bell and NSRJ, constituted a criminal organization.
Bell and NSRJ committed indictable offences for the benefit of, at the direction of, or in association with the criminal organization.
171For those reasons set out above and for those reasons to be discussed further in respect of the discrete offences charged and on or between the dates alleged, I am persuaded beyond a reasonable doubt that:
Bell was a member of the criminal organization knowing that one of its main purposes was the facilitation or commission of a serious offence.
Bell knowingly gave instructions to commit offences that were for the benefit of, at the direction of or in association with the criminal organization.
Bell had the requisite knowledge or intent that the offences were for the benefit of, at the direction of or in association with the criminal organization.
Legal Framework
Counts 13, 15 and 21
Robbery – section 344(1)(b) of the Criminal Code
172Section 343 of the Criminal Code sets out four different ways in which robbery may be committed. Section 343 provides as follows:
s. 343 - Everyone commits robbery who
(a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property;
(b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person;
(c) assaults any person with intent to steal from him; or
(d) steals from any person while armed with an offensive weapon or imitation thereof.
It has been said that a robbery is basically a theft accompanied by violence or threats of violence. In simplistic terms, "the difference between 'robbery' and 'theft' is that robbery is committed by confronting and intimidating the person whose property is taken, whereas theft is committed without violence or threats of violence, and often occurs secretly, such that the victim is left unaware of being relieved of their property"200
173The essential elements for robbery are proof of:
(1) stealing;
(2) the use of violence, actual or threatened, to a person or property. Stealing means the commission of theft.201
Application of the Law to the Facts
Jason Russell Incident
Counts 13 and 15
174The Defence argues that Neal’s evidence with respect to this offence, as in relation to all others, should be highly scrutinized. That said, the Defence points out that Neal does not say that he heard either Bell or NSRJ say anything about taking money from Russell using violence.
175Alternatively, the Defence asserts that even if the Crown has proven beyond a reasonable doubt the identity of the accused and that some level of violence was inflicted on Russell, there is no evidence that this amounts to robbery because it was only at the trial that Russell testified, for the first time, regarding the amount of money stolen from him: $6,500.00.
176The Defence contends that if an act of violence was inflicted upon Russell during the home invasion, it was Jesmer who perpetrated the violence and, given the amount of drug trafficking and drug use in the residence, coupled with any number of people coming and going from the home on any given day, two men other than Bell and NSRJ accompanied Jesmer.
177Finally, the Defence argues that, given the conflicting evidence of those witnesses called to testify regarding this offence, the Crown has not proven beyond a reasonable doubt the essential elements of the offence as it pertains to Bell and NSRJ. For the reasons that follow, I do not see it that way.
178Russell testified that he knew the accused well. He felt that he was friends with NSRJ and his family. He frequently hung around the DEMC and became a probationary member. He attended 21 Sevenoaks Avenue on a regular basis.202 He felt that NSRJ wanted to be his friend and that he wanted them to take care of each other.203
179By March 7, 2018 Russell was no longer a member of the DEMC. He returned his vest to Bell. Prior to that, he saw Bell probably daily. He testified that Bell kicked him out of the DEMC, but that Bell also owed him money.204
180He was familiar with NRS’s car.205
181Russell identified the two accused and “Wayne” as the robbers. Bell mentioned “Wayne” during the robbery.206 Russel had met Wayne in the past. Specifically, he had attended Wayne’s residence and met his wife, Katie. Russell and Wayne had daughters of a similar age. He described Jesmer’s house and his truck.207 In my view, his circumstantial identification of Jesmer is accurate.208
182The incident began with rapid knocking on Russell’s front and back doors. Russel refused to open the door despite the individuals’ demands to be let in.209 He looked out the window and saw Bell at the front door. Concurrent with identifying Bell at the front door, he heard knocking at the back door. He was terrified because he knew who it was and because there was no legitimate reason for them to be there.210
183The knocking stopped contemporaneous with David Potter (“Potter” aka “Pizza Dave”) arriving at the front door. Russell took the pizza from Potter and while doing so, he saw a taupe coloured car. It was an older model, like a Ford.211 He shut the door and the knocking resumed 20 seconds later.
184Russell testified that Bell demanded to be let in, and then smashed in the door. Bell hit Russell in the face. Russell ran to the back of the house. He was dragged and kicked. Things were fuzzy because he was “knocked out”.212 In his first statement, Russell told the police that he did not know if Bell hit him. He testified that he said this because he was worried about the repercussions.213 He did mention it [the strike to the face] in his second statement to the police, as well as at the preliminary hearing.214
185Russell was made to stay on the floor. A demand for money was made of him. He was threatened. NSRJ and Wayne were also in his home. Russell testified that he “believed” NSRJ kicked him. Further, Wayne hit him repeatedly with an axe handle. He did not fight back. He only covered himself.215
186In my view, Russell’s evidence regarding NSRJ’s involvement was even-handed, as he candidly admitted that he could only surmise it was NSRJ who kicked him, because he was closest to him.216
187Russell testified that he saw O’Connor being kicked but did not see Noonan assaulted. He described Fraser as “crying the whole time”.217
188Russell testified that he took Bell to his bedroom to get the money demanded of him. Further, he testified that the accused knew he had his pension [money] and that he was spending a lot of money.218
189Russell testified that Bell stole $6500.00 and cocaine from Russell’s sock drawer.219 Admittedly, Russell did not mention the cocaine until trial.220
190I find that Russell’s assertion that he was owed money [by Bell], that he was on a drug spending spree and having $6,500.00 cash on hand is supported by his banking records, which show that he received a $72,745 deposit on January 26, 2018.221
191Russell testified that days after the robbery, the accused instructed him to meet them at a Tim Horton’s. Russell attended as it was a public place; he did not want them coming to his home again.222 They told him not to say anything.223
192Neal testified that NSRJ knew Russell as NSRJ had set up Russell as Neal’s drug customer.224
193Importantly, in my view, there is no evidence of collusion between Russell and the other victims of the home invasion as they lost contact shortly after the offence.225
194The Crown concedes that Fraser was an uneven witness. She did not give a statement until almost two years after the event. Further, she testified that they [the occupants of the house] had all taken drugs two hours before the home invasion.226 Moreover, she had been up for days before the incident while consuming drugs and alcohol.227 That said, in my view, her evidence does not stand alone. Rather, it’s just another piece of the evidence regarding the Russell home invasion.
195Fraser testified that she was aware that Russell received money from his previous employment.228
196She confirms the evidence of Russell regarding who was in the residence, and that they were awoken by loud banging at the front and back doors.229 She heard people yelling that they knew Russell was home, and they wanted him to open the door.230 Admittedly, her evidence is different from Russell’s in that she testified he owed drug money to the DEMC and was worried about it.231 She testified that the money was owed either to the DEMC or to another gang, the Private Army.232
197She speculated that Russell opened the front door, but could not see that aspect of the incident because she was in the living room.233 She saw three men enter.234 She later testified that Russell said he was going to open the door.235 However, in her statement, she said she was pretty sure the door was kicked in.236 The Crown argues, and I agree, that even on this version, the offence is made out as Russell was under duress, if in fact he opened the door.
198Fraser testified that it was Wayne who assaulted Russell by hitting him all over, and that Russell didn’t fight back. She described the beating as “pretty bad” with lots of blood. She testified that Wayne beat Russell with a hammer.237 Afterwards, Russell was bleeding and his face was swollen.238
199Fraser testified that Noonan was kicked by “Norman”, who I infer to be NSRJ, and that his [Noonan’s] lip was split.239 “Norman” told Noonan not to sell drugs to his [Norman’s] sister.240 Noonan did not lose his money as he “blocked his safe”.241
200Fraser testified that “Tom”, who I infer to be Bell, punched O’Connor.242 She described “Norman” as having a scruffy beard and dark hair, and that he was wearing a DEMC sweater. She said that “Tom” was bigger than “Norman” and that “Tom” had a light-coloured beard.243 She further testified that “Norman” kept repeating “Dead Eyes”244, over the course of the incident.
201Fraser testified that she knew the two accused’s names because Noonan told her who they were afterwards.245
202Fraser testified that they were told by Bell and NSRJ that “they owed them money for selling in their town”246, which I find to be a system of taxation or tithing imposed on other, local drug traffickers by Bell and NSRJ.
203Fraser downplayed her own fear, given what she objectively observed, but did admit that she was shaking.247
204When the police arrived at the residence, Fraser and Noonan hid as they were on no contact orders in respect of each other. That same day, Fraser, Noonan and Russell checked into a hotel, the Holiday Inn Express, where they remained from March 7th to the 9th, as Russell didn’t feel safe at home.248 In my view, this confirms their collective fears regarding the home invasion.
205Fraser eventually picked Jesmer out of a photo spread as one of the three men who entered Russell’s home.249 In my view, this confirms the accuracy of Russell’s circumstantial identification of Jesmer.
206Neal provides another connection as he testified that NSRJ told him that Noonan’s girlfriend had been messaging NSRJ about meeting up.250
207The Crown concedes that Noonan’s KGB statement in respect of the incident is disjointed and at times difficult to follow.
208Noonan told DC Grant that NRS was not present at the Russell home invasion. However, he said that NSRJ was there, and that NSRJ kicked him in the face. He said that Bell was there, acting “like a boss”. Further, Bell told Noonan that he should be working for them.251 He said that the accused broke into the house with an axe. He recalled there being four people who entered the home but could only identify Bell and NSRJ as two of the four. He said they were wearing their patches. That he was pepper sprayed and that they tried to get his money, but he hid it.252 He confirmed that they did get cash from Russell.253 He told DC Grant that his tooth was kicked through his lip, as a result of being assaulted.254
209The Crown concedes that Noonan’s report of pepper spray being used, the wearing of patches, and four assailants being present in the home is substantially different from Fraser and Russell’s descriptions.
210O’Connor was in Russell’s residence at the time of the home invasion but was not called to testify. Fraser testified that O’Connor was a hard drug user.255 DC Grant testified that O’Connor is a low-end drug dealer, and that he refused to talk about the incident when interviewed.256
211To recall, Russell testified that one of the home invaders was “Wayne”. In my view, Russell’s evidence on this point is confirmed. Russell was acquainted with “Wayne”. He described “Wayne’s” residence, vehicle, and spouse. Further, DC Grant testified that this information was accurate.257 During a search of Jesmer’s business, police located a book that had the following names written in it: Eldon Yateman (the alias of Neal), Noonan and Saddlemire.258
212DC Grant testified that Jesmer was involved in crime and was the president of a gang known as the Private Army MC.259
213I find that there is a connection between Bell, NSRJ and Jesmer. DC Coe testified that, upon examining Jesmer’s phone, he located artifacts, in the form of log entries of an Apple ID verification, that recognized the phone numbers of Bell and NSRJ. To DC Coe, this signified that Bell’s and NSRJ’s phone numbers had interacted with Jesmer’s phone in some way.260 He said it was most likely via text messages.261
214Jamie McFarlane (“McFarlane”) was a neighbour to Russell. He called 911 on the day of the home invasion.262 He called at 10:23 a.m.263 He lived two doors down from Russell. He heard loud banging and saw two men at Russell’s front door. They were yelling to be let in, but Russell didn’t let them in.264 He did not see the men enter the residence, but they were gone from outside the door and he could hear an argument coming from inside the residence.265 What stood out for him was the “aggressive nature of their banging and yelling into the home.”266
215McFarland took down the plates of two vehicles: a van parked in front of Russell’s home, and a beige Toyota that he saw driving slowly past on the street, several times.267 In my view, this somewhat matches Russell’s description of a “taupe car, like a Ford”.
216The plate on the car, a 2008 Toyota Camry, was registered to a Mike Graham (“Graham”), who by all accounts was a full-patch member of the Outlaws MC at the material time. An unattached plate on the van was registered to Jesmer.268 NRS testified that Graham was a full-patch member of the Outlaws MC and that he was a friend of both Bell and NSRJ.269
217In my view, the presence of Jesmer’s plate on the van confirms Russell’s ability to be an accurate historian.
218McFarlane testified to seeing three men exit Russell’s home, and that one was carrying an axe. They moved quickly getting into the van, then both vehicles left.270
219McFarlane testified that it was a full-sized axe.271 An axe was located at the search of Jesmer’s home. Blood was detected on the axe head and on the handle, but there was insufficient DNA to test.272
220McFarlane later saw Russell on the street but did not note any injuries.273 He was about ten feet from Russell and the interaction was approximately two to five seconds in duration.274
221Potter testified that on the offence date, he delivered a pizza to Russell’s home between 11:30-45 am.275 In my view, given the passage of time, and Potter not having given his statement until October 29, 2019, he is mistaken about the time of the delivery, given the time of McFarland’s 911 call.
222Upon arrival, he saw two men at the front door. They told him that no one was answering. Oddly, no one answered when Potter knocked, despite Noonan having ordered the pizza.276 As a result, Potter called Noonan who said he was concerned about the presence of the men at the door.
223When Potter told Noonan that the men had left, Noonan opened the door and took delivery of the pizza. Potter described the transaction as being rushed.277
224Two to three days later, Potter returned to the residence when he noted that both Russell and Noonan had facial injuries.278 In my view, Potter was in a better position than McFarland to note injuries to Russell, given McFarland’s distance from Russell on the street and the brevity of his observation.
225Stacey Fox (“Fox”) testified that Russell was her next-door neighbour.279 They shared a common wall. She estimated that between 11-11:30 am on the date of the offence, she observed two individuals at Russell’s front door who startled her.280 She went inside and heard forceful pounding on Russell’s front door that lasted approximately ten minutes. Things went quiet for about 15 minutes, and then she heard pounding at Russell’s back door.281
226Neal confirmed that NSRJ knew Russell as NSRJ had set up Russell (aka “Doc”) as his drug customer. Neal identified Russell by the location of his residence, and by the fact that Lachapelle had babysat Russell’s daughter, Brooklyn.282 Lachapelle confirmed that she had babysat Brooklyn, but she did not recall attending Russell’s residence to sell him drugs.283 Russell testified that he has a daughter named Brooklyn, and that at one time had a babysitter by the same first name.284 Russell did not recall having a drug dealer named Allan Neal, but said he had a number of dealers and did not know their names.285
227Neal testified that he witnessed a discussion between Bell and NSRJ in the table room regarding a home invasion. According to Neal, the discussion involved “Doc” on James St E who was in possession of a large amount of money. He heard them describe how they knocked on the door and then kicked the door in and assaulted an occupant.286
228In my view, Neal’s knowledge of this information more likely than not came to his attention from overhearing Bell and NSRJ discuss the incident. I say this because the home invasion took place prior to Neal becoming involved in the organization. Accordingly, he could only have known about the details proffered by Bell and NSRJ if they were said in his presence, or alternatively if he was a participant in home invasion. There is no evidence to support the latter.
229For those reasons set out above, on or about the date alleged, I am persuaded beyond a reasonable doubt that:
Bell and NSRJ broke into Russell’s home by breaking through the front door.
Once inside, Bell struck Russell in the face. Thereafter, Russell was further assaulted by NSRJ kicking him and Jesmer hitting him with an axe handle, thus constituting the use of actual violence.
Bell demanded that Russell give him money. Russell took Bell to his bedroom where he turned over $6,500.00 in cash and a quantity of cocaine, thus constituting theft.
The robbery was for the benefit of, at the direction of, or in association with the criminal organization, as defined above.
NSRJ continued to repeat verbally “Dead Eyes” over the course of the robbery.
Bell, as the 1% Outlaws MC overseer of the organization including, but not limited to, the DEMC, directed NSRJ and/or Jesmer in the commission of this serious indicatable offence.
Jamie Poelstra Incident
Count 21
230The Defence does not dispute that the incident described by Poelstra amounts to a robbery, in that actual violence was inflicted upon him to facilitate the commission of the offence of theft. The Defence does; however, dispute that NSRJ was involved.
231The Defence contends that Poelstra’s girlfriend, Jennifer Greer (“Greer”), was not above doing anything, including stealing from Poelstra, to support her drug habit. Poelstra confirmed as much.
232The Defence argues the more likely inference to be drawn, having considered all the evidence, is that Neal, a local drug dealer, knew Greer and that she was a customer of his. In those circumstances, the Defence asserts that it was Greer who arranged the robbery with Neal, or at least made Neal aware of what money and items Poelstra had in his residence, and specifically where the items were located.
233The Defence contends that rather than being a mere participant in the robbery with NSRJ as the leader, Neal planned and carried out the crime with others. To that end, the Defence argues that the only evidence presented to the Court to suggest that NSRJ was in anyway involved in the robbery comes from the mouth of Neal. I do not agree.
234Neal testified that he, NSRJ, Sicard and NRS (the driver) carried out this home invasion. Neal gave a highly detailed description of how the robbery was planned, carried out and the after the fact destruction of the mace and the stolen lock box.287
235In my view, there are numerous material facts of Neal’s description of the crime that are confirmed by other evidence:
Neal testified the robbery was in July of 2018. This was confirmed by the evidence of PC Jeggo who fixed the date as July 21, 2018.288
Neal testified that NSRJ told him in advance that Poelstra was trafficking in marijuana. This was partially confirmed by PC Jeggo’s observation of marijuana trafficking paraphernalia in Poelstra’s apartment.289 Moreover, Poelstra admitted that he was a past trafficker of marijuana.290
Neal testified that NSRJ said that Poelstra’s girlfriend betrayed Poelstra by telling NSRJ that Poelstra had valuable items to steal. Her disloyalty to Poelstra is confirmed by Poelstra’s evidence that his girlfriend regularly stole from him.291 And that he kept the box locked because of her.292 Further, Poelstra testified that he thought that his girlfriend knew NSRJ.293
Neal testified that the building was unlocked. This was confirmed by PC Jeggo.294
Neal testified that the Poeslstra unit was unlocked. This was confirmed by Poelstra.295
Neal testified that they wore dark clothes. This was confirmed by Poelstra296 and neighbour Ben Thompson (“Thompson”).297
Neal testified they wore hoodies. This was confirmed by Thompson.298
Neal testified that three of them entered the apartment, that they were masked and entered when the occupants were saying good night. This was confirmed by Poelstra.299
Neal testified that he was the first one in and that his eyes are sometimes blue and he had facial hair. Vanderweid testified that Neal’s eyes are “blue, I do believe, like bluish green... muted blue”.300 Poelstra testified that the first one in had blue eyes (albeit “Husky blue”301) and that he had facial hair.302
Poelstra testified that his assailants were about as large as him303; however, Thompson, who I find was not under the stress of a violent assault, including not having been sprayed in the eyes with bear mace, testified that the assailants were significantly smaller.304
Neal testified that NSRJ was the third man in the residence. Poelstra could not describe that assailant.305
Neal testified that they were armed with large canisters of bear mace that were discharged on both victims. This is confirmed by PC Jeggo,306 Poelstra307 and Thompson.308
Neal testified that there was money, eight collectible coins and a significant amount of marijuana in a green, locked, pine box with a lift-up top. Neal testified that the coins were placed in the closet in the table room at 21 Sevenoaks Avenue following the robbery.
Poelstra testified that the wooden box was green, locked and the contents included $4000-$5000 in cash and 1980-85 or 86 silver dollars with an Indian paddling a canoe on them.309
After receiving confidential informant information following the initial search, DC Bonham and DC Grant re-attended 21 Sevenoaks Avenue and looked in the closet on October 9, 2018. There they found silver coins that were previously present but not seized.310 DC Coe testified that the eight silver dollars from the closet were dated from 1972 and 1980-83. Further, they had an Indian paddling a canoe on them.311
Neal testified that NSRJ struck Poelstra in the head with a bat. This was confirmed by the serious head injuries suffered by Poelstra, which were repaired by some forty stitches.312 Further, Thompson saw one assailant carrying a shiny bat.313
Neal testified that Poelstra was hit with the bat when Poelstra got the upper hand over Neal. This was confirmed by Poelstra.314
Neal testified that when they fled the unit, he went in a different direction. Thompson testified that he saw three men flee in different directions.315
Neal testified that he, Gard and Vanderweid burned the box and cans of bear mace in the sand hills near Vanderweid’s residence. Vanderweid confirmed this and said one of the cans of mace exploded.
Vanderweid testified that Neal told him he did the Poelstra robbery with NSRJ and Sicard. In my view, this evidence of a previous consistent statement rebuts the recent fabrication as alleged against Neal in Defence counsel’s cross-examination of him. Defence counsel suggested that Neal implicated NSRJ to curry favour with the police.316
Neal testified that NSRJ planned the robbery, that NSRJ knew Poelstra, and that Poelstra considered them to be friends.317 NSRJ’s sometime residence on Cartier Court was only about 50 meters away.318 In contrast, Neal did not know Poelstra or where he lived.319
Lachapelle testified that Neal told her about the robbery after the fact. She testified that a baseball bat was kept in the basement at 21 Sevenoaks Avenue. She was in the kitchen when she saw NSRJ walk past her going towards his room. He looked at her in such a way as to imply that she should look down, when she saw he was holding a purplish-blue aluminum bat covered in blood. NSRJ had just come in from outside. She did not call the police as she was scared.320
Neal testified that when he returned from destroying the box and bear mace, Lachapelle told him that she saw NSRJ in possession of a bloody bat.321
Neal candidly admitted that he was the one who enlisted Sicard to take part in the robbery so Sicard could build credibility with the organization. Neal also admitted that he was the first one to resort to violence when he discharged the bear spray. He did not demonize NSRJ as he described hearing the loud “ting” of the bat wielded by NSRJ only after Poelstra appeared to be gaining the upper hand against Neal.
236The Crown concedes that Neal did not bring up the Poelstra robbery until his interview with DC Coe on May 6, 2019 as he did not wish to be charged.322
237For those reasons set out above, on or about the date alleged, I am persuaded beyond a reasonable doubt that:
NSRJ, Neal and Sicard broke into Poelstra’s apartment by going through the unlocked door.
Thereafter, Neal sprayed Poelstra and Greer with bear mace.
When Poelstra engaged Neal physically and Poelstra was gaining the upper hand in the struggle, NSRJ struck Poelstra in the head with a bat, resulting in a significant head injury to Poelstra, thus constituting the use of actual violence.
NSRJ, Neal and Sicard located a green pine box in the residence containing $4000.00 to $5000.00 in cash, eight collectible coins and a significant amount of marijuana, which they took, thus constituting theft.
Legal Framework
Count 4
Break and Enter – section 348(1)(b) of the Criminal Code
238Section 348(1) of the Criminal Code sets out four different ways in which a break and enter may be committed. Section 348 provides as follows:
348 (1) Every one who
(a) breaks and enters a place with intent to commit an indictable offence therein,
(b) breaks and enters a place and commits an indictable offence therein, or
(c) breaks out of a place after
(i) committing an indictable offence therein, or
(ii) entering the place with intent to commit an indictable offence therein,323
239Section 321 of the Criminal Code defines what it means to break, it states:
s. 321 - In this Part [Part IX - Offences Against Property]
"break" means
(a) to break any part, internal or external, or
(b) to open any thing that is used or intended to be used to close or to cover an internal or external opening;324
240Section 350 of the Criminal Code address what it means to enter, it states:
s 350. For the purposes of sections 348 and 349,
(a) a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered; and
(b) a person shall be deemed to have broken and entered if
(i) he obtained entrance by a threat or artifice or by collusion with a person within, or
(ii) he entered without lawful justification or excuse, the proof of which lies upon him, by a permanent or temporary opening.325
241The essential elements for this offence are:
Breaking into a place – Russell’s home.
Entering a place – Russell’s home.
Committing, in the circumstances of this case, the indictable offence of theft in the place – Russell’s home.
Application of the Law to the Facts
242For those reasons set out above in respect of Count 3, on or about the date alleged, I am persuaded beyond a reasonable doubt that:
Bell and NSRJ broke into a place- Russell’s home.
Bell and NSRJ entered a place – Russell’s home.
Bell and NSRJ committed the indictable offence of theft in the place – Russell’s home.
243Given that Count 4 arises out of substantially the same facts as Count 3, I hereby apply the principle articulated in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
Legal Framework
Counts 10, 11, 12 and 13
Kidnapping – section 279(1.1) of the Criminal Code
244Section 279(1) of the Criminal Code outlines the offence of kidnapping, it states:
279 (1) Every person commits an offence who kidnaps a person with intent
(a) to cause the person to be confined or imprisoned against the person’s will;
(b) to cause the person to be unlawfully sent or transported out of Canada against the person’s will; or
(c) to hold the person for ransom or to service against the person’s will.326
245The punishment for the offence of kidnapping is outlined in section 279(1.1) of the Criminal Code.
246Kidnapping consists of taking control of another person and transporting that person away from one point to another.327
247The actus reus of the offence of kidnapping is fulfilled when the Crown has proved beyond a reasonable doubt that the complainant is coercively restrained or directed contrary to his own wishes, so that he is not able to move around according to their own inclination and desire for any significant period of time.328
248The mens rea involved with the crime of kidnapping is the intent to confine or move the victim. Specifically, the mens rea that the Crown must prove in order to obtain a conviction must include that specific purpose.
249The essential elements for this offence are:
That the accused kidnapped the complainant by unlawfully taking him and carrying him by force against his wishes to another place.
That the accused kidnapped the complainant with the intent to confine him against his will.
Application of the Law to the Facts
Allan Neal Kingston incident
Count 10
250The Defence contends that, based on Neal’s evidence, the facts surrounding the alleged kidnapping are both internally and externally inconsistent.
251The Defence asserts that this is just another example of Neal attempting to paint Bell and NSRJ as the “bad guys” to deflect from the serious violent crime that he was involved in.
252The Defence argues that Neal got out of Vanderweid’s car voluntarily and thereafter voluntarily accompanied Bell and NSRJ to the bank. As evidence of this, the Defence says that Neal was not threatened or touched by Bell and NSRJ, nor were there any weapons brandished by the accused.
253The Defence contends that the evidence supports the reasonable inference that Neal chose to accompany Bell and NSRJ to the bank because he knew he owed them money for legitimate reasons unrelated to a drug debt. Thereafter, upon realizing that he had insufficient funds in his account, Neal accompanied Bell and NSRJ back to Brockville in hope of collecting the money from someone who owed him money.
254The Defence points to the fact that these alleged crimes were never reported to the police until Neal and Lachapelle saw on the CKWS news that they and others were wanted by the police.
255The Defence argues that when the Court considers the totality of the evidence, it should be clear to the Court that Neal was never coercively restrained or directed to go anywhere contrary to his own desires. He was not forcibly removed from Vanderweid’s car. He was not restrained or held as he walked across the parking lot to NRS’s car. He was not forced into NRS’s car, nor was he forced to walk to the ATM or return with Bell and NSRJ to Brockville. Put simply, all of Neal’s movements were done at his behest or with his express consent. For the reasons that follow, I do not see it that way.
256On August 31, 2018 Neal and Lachapelle received Ontario Works money and bought train tickets to Kingston. They did not give anyone advanced notice that they were leaving. They left when no one else was at 21 Sevenoaks Avenue, and Neal re-set the recording equipment so that their flight would not be recorded.329 Lachapelle confirmed the recorder was re-set and testified that they did not tell the other occupants of 21 Sevenoaks Avenue they were leaving as she was afraid they would not let them leave.330
257Lachapelle also testified that they did not tell their friends Vanderweid and Hailey Moore they were leaving until after the fact.331 Vanderweid confirmed he did not know about the move until after the fact. Vanderweid testified Neal called him and said he stole money and was on the train headed to Kingston.332
258Neal testified that upon arrival in Kingston he changed his phone number (SIM card) at the Cataraqui Town Centre. He called Vanderweid to sell him cocaine. Vanderweid did not recognize the number when Neal called. Neal blocked Bell and NSRJ from his social media.333
259Vanderweid testified that Neal told him he stole the cocaine from 21 Sevenoak Avenue.334
260Notably, only Vanderweid had Neal’s new number, which I find played an integral part in Bell and NSRJ eventually locating Neal in Kingston.335
261Neal testified that Vanderweid attended the 7-Oaks motel in Kingston where Neal and Lachapelle had checked in. Neal sold him his remaining cocaine at a discount. He indicated to Vanderweid the general area in which they were going to be living in Kingston.336 Lachapelle had no recollection of a drug transaction.337
262The next morning (Labour Day) at approximately 8:30 a.m., Neal received a call from Vanderweid who wanted to meet. When Neal and Lachapelle attended the Division St. Tim Horton’s around lunch time, Vanderweid was not parked in the Tim Horton’s lot as they expected. Rather, he was parked in the adjacent No-Frills lot to the south facing Tim Horton’s to the north.
263While Neal and Lachapelle sat in the car, Vanderweid, out of the blue, stated that he received a Snapchat from Johnston who indicated that he knew their location. Vanderweid then inexplicably moved the car so it was facing away from the Tim Horton’s.338 Vanderweid told Neal the sun was in his face, but the sun wasn’t pointing at them.339
264In my view, Vanderweid set-up Neal. His reference to Johnston knowing their location in Kingston is consistent with Vanderweid trying to exculpate himself as being responsible for tipping Bell and NSRJ off.
265In my view, the pretext for moving the car is consistent with Vanderweid intentionally providing Bell and NSRJ with the element of surprise. Further, I infer that the alleged spontaneous text message Vanderweid was to have received from Johnston was actually from Bell and NSRJ, to alert Vanderweid of their arrival.
266Neal testified that Bell and NSRJ approached the car, opened his door, and told him that they were going for a walk. Neal confronted Vanderweid about being set up, which Vanderweid denied. Neal testified that he got out of the car because he believed that if he did not, they would drag him out.
267Neal testified that they walked to NRS’s car, which was in the Tim Horton’s lot.340 Neal was concerned that the situation would escalate if he did not get in. He did not know at that time that he would be going back to Brockville with them.341 On route to the car, Neal was asked what he had said to Cory Greenwood.342 Neal’s relative, Cory Greenwood, was associated to the Hells Angels at the material time.343
268The Tim Horton’s video stills confirm Neal’s evidence that he was located between Bell and NSRJ as they walked him to NRS’s car. The video indicates that Bell and NSRJ walked towards No-Frills at 1:36 p.m., and that at 1:37 and 22 seconds they came back with Neal walking between them.344 The video stills are clear enough to recognize Bell and NSRJ, particularly Bell’s clothes (red track pants with a white emblem on his thigh and an aquamarine green shirt). Similar clothes were located by police in Bell’s residence on December 8, 2018.345
269Bell and NSRJ demanded money from Neal for his drug debt. Neal was told to sit in the front passenger seat while NRS drove, just as he was positioned in advance of the Youth Arena incident. In my view, he was positioned in the front passenger seat to be more easily watched and controlled by Bell and NSRJ who were seated behind him.
270Neal gave detailed evidence regarding their attendance at a branch of the Bank of Montreal (BMO) located near what is commonly referred to as the Kingston Centre. He was accompanied to the ATM by NSRJ. Neal testified that NSRJ told him he would kill him if tried to run. Neal had no money in the bank and returned to the front seat of the car. I find that the trip to the bank was a ruse perpetrated by Neal to put distance between Lachapelle and the two accused.
271Neal testified regarding the route travelled from the BMO branch towards Division St. on their way to the 401. I find that Bell was strategically positioned in the rear passenger seat directly behind Neal. When they arrived at what I infer to be the corner of Concession St. and Division. St., Neal testified that he saw a police car. Neal felt Bell pull him back against the seat. It was then that Neal was told he was being taken to Brockville.346 Neal did not call out for help at Tim Horton’s as he did not know what was going to happen. Further, he would have called out at the bank but there was no one around.347He may have attempted to escape from the vehicle upon seeing the police car but for Bell being able to physically control him from behind.
272DC Bonham checked the bank and found that it had no video camera. He also checked the mall [Kingston Centre] and found that its video had been erased after seven days.348
273On the way to Brockville, Neal was queried as to why he was in Kingston. His phone was taken from him and used to contact Vanderweid, who was told to pick up Lachapelle and bring her to Brockville.349
274During the drive, Neal’s black t-shirt was torn as he evaded a blow, and then was stuck in the back of the head. He assumed it was Bell who struck him, due to Bell’s proximity behind him.
275Upon arriving in Brockville at 21 Sevenoaks Avenue, NRS remained outside while Bell and NSRJ accompanied Neal to the table room, where he was interrogated and accused of stealing money from the till. Neal denied that he had.
276Neal was forced to call Lachapelle on speakerphone 350 to get her to return to Brockville. Neal intentionally peppered his words with pauses to warn Lachapelle off.
277Neal testified that he was beaten by Bell and NSRJ; however, he did not attempt to paint them in the worst light possible. They told him to take his glasses off before they struck him.351 He cleaned up his own blood with his shirt. He put on a reflective shirt to replace the damaged, bloodied one.
278When NRS saw Neal after he was let out of the table room, NRS looked “shocked”. Thereafter, Neal and NRS took NSRJ to the Kensington Quickie where NSRJ threatened Neal if he was to hurt his father. 352
279Neal testified that NRS was summoned by Bell to bring him a coffee. While getting the coffee, NRS got Neal a bottle of water and rag for his injuries.
280Upon arrival at Bell’s home, Neal’s phone was returned to him by Bell who said: “maybe someday you can work your way back in”. Again, Neal did not exaggerate his evidence and paint the accused in the worst possible light.353Rather, his description of Bell was, in my view, more akin to a disappointed patron type figure.
281On the way back to Kingston, Neal admitted to crying while in the car with NRS. NRS was apologetic and told him that he loved him. When he arrived at Lachapelle’s grandfather’s residence in Kingston, Lachapelle was “horrified” when she saw him. Neal stayed in his room for four days to hide his injuries from Lachapelle’s grandfather, Arthur Burns (“Burns”); however, on one occasion Burns saw him.
282Neal had chipped teeth (that were later photographed) as well as injuries to his face and body as a result of the assault. Neal testified he did not call the police as he was fearful of the repercussions.
283A few days later he heard from NSRJ who inquired how he was. Again, Neal did not paint the accused in the worst possible light. He told NSRJ that his lips were sealed.354
284During her testimony, Lachapelle confirmed the unusual location and movements of Vanderweid’s car, as well as his receipt of a text message, before he moved the car. She described Vanderweid as being “really quiet”.
285Lachapelle testified that Bell and NSRJ approached the car and told Neal to get out. Their tone frightened her. They opened the door and told Neal to keep his hands out of his pockets. They told Neal they were going for a walk. She recalled that they had hold of his arms. She could only see them until they arrived at the back of the Tim Horton’s. Vanderweid denied that he was involved and then told her he had to leave.355
286Lachapelle testified that she looked for Neal but could not find him. She tried calling him for about an hour but got no answer. She did not call the police out of fear. After a couple hours Neal called her wanting her to return to 21 Sevenoaks Avenue. He was on speaker phone and sounded scared. Later she received a text from Neal asking to be let into the apartment building. He had on a different shirt (a reflective shirt), he had a rag to his lip and was injured. He hid from her grandfather for a couple of days. She did not call the police as she was afraid it would happen again.356 She told her grandfather that Neal went to see a sick relative because her grandfather did not know they were involved in [motorcycle] club life and she was afraid they would have nowhere else to live.357 She eventually told her grandfather the truth.358
287Burns testified and confirmed some aspects of Neal’s evidence. He said that Neal was gone for the morning. Lachapelle told him it was to visit his sister in Brockville. When Neal came home, he had marks on his face but didn’t show much of his face. Neal went to his bedroom where he remained for almost four days. Later, Lachapelle told him that Neal had been grabbed and beaten.359
288NRS testified that he had never seen a person as badly beaten as Neal in his life.360 He told DC Grant that it “looked like he’d met his worst enemy”361 and that Neal was crying.362 NRS’s evidence at trial attributing the beating to two unknown bikers, as opposed to Bell and NSRJ, is incredible in every sense of the word, for reasons I will explain later.
289In my view, aspects of Vanderweid’s version of what took place before and at the Tim Horton’s is suspect. He testified that on the day of the kidnapping he got a Snapchat text from Johnston saying “I know you’re in Kingston”, yet Vanderweid claims that he did not tell Johnston he was in Kingston and told Johnston he did not know where Neal was.363
290Vanderweid did confirm Neal and Lachapelle’s evidence that Neal was unwilling to go with Bell and NSRJ. He testified that Bell threatened to smash Neal if the Neal reached into his pocket.364 Vanderweid also confirmed that Neal contacted him via text message asking Vanderweid to bring Lachapelle back to 21 Sevenoaks Avenue.365
291The Defence attempted to elicit evidence from NRS that two trips to Kingston in advance of the alleged kidnapping were in relation to a debt Neal owed to NRS for a motorcycle. Neal testified that he never bought a motorcycle from NRS, nor did he owe NRS any money.366
292NRS’s evidence that he and the two accused made two trips to Kingston (Sunday and Monday) to see if Neal was still interested in buying a motorcycle is, in my view, a fabrication. I say that for the following reasons:
NRS testified that he was “obviously” not owed money as Neal never took possession of the bike. He testified that Neal was probably short on cash so NRS “didn’t bother much” about it.367
On the Sunday trip, NRS and the two accused drove all the way to Kingston having no idea where Neal was living.368 They sat and waited for an hour and a half while watching people coming and going from buildings in the north-end of the city.369
Neal’s phone was dead, so NRS called Vanderweid. Instead of asking for Neal’s new number, NRS inexplicably drove all the way to Kingston.370 NRS testified that he never asked for Neal’s number even though he knew Vanderweid had it.371
It is incomprehensible to me why it took three men to make two trips to Kingston to speak with Neal about a debt in relation to a motorcycle that, by NRS’s own admission, Neal never acquired from him. Moreover, why would Bell and NSRJ ultimately approach Neal to speak to him about the non-purchase of the motorcycle when it was purportedly NRS who wanted to speak to Neal? Put simply, the contention is not grounded in the evidence and defies common sense.
NSRJ testified that on the way to Sevenoaks Avenue, Neal made no mention of Lachapelle and made no attempt to contact her.372 This is even though Neal left her behind without a word of where he was going. He confirmed Neal’s evidence that Bell sat behind Neal in the car.373 Notably, NRS testified that Bell and NSRJ went with Neal to the ATM to make sure Neal wouldn’t escape.374 Query, why would Neal want to escape in circumstances of retrieving money from his account to pay for a motorcycle that he never purchased? In my view, the more reasonable inference is that Neal was goose-stepped to the ATM by NSRJ, or NSRJ and Bell together, against his will, to retrieve money to pay an outstanding drug debt owed to them.
To reiterate, NRS’s evidence regarding the presence of two unknown bikers at 21 Sevenoaks Avenue upon their arrival is incredible. NRS told DC Grant that he did not enter the residence,375 but told this Court that he entered and described the angry men confronting Neal.376 NRS was unable to give a meaningful description of the men.377 There is no explanation as to how these men would have known to be present at the material time and place to meet Neal. It makes no sense that NRS would not inquire of anyone who seriously assaulted Neal and why.378 NRS has always maintained that Bell and NSRJ were in the table room that Neal came out of injured.379 In my view, he cannot discount that it was Bell and NSRJ who assaulted Neal.
293For those reasons set out above, on or about the date alleged, I am persuaded beyond a reasonable doubt that:
Bell and NSRJ kidnapped Neal by unlawfully taking him and carrying him against his will, by force from Kingston to Brockville.
Bell and NSRJ kidnapped Neal with the intent to confine him against his will, which they did while assaulting him, and threatening to kill him, throughout the course of the kidnapping from Kingston to Brockville and upon their arrival at 21 Sevenoaks Avenue, for the purpose of collecting a drug debt owed by Neal to the criminal organization.
Cody Noonan incident
Count 13
294The Defence contends that, even taken at its highest, while there is evidence to suggest that Bell and NSRJ were in the vicinity of the incident with Mr. Noonan, that does not place them as having been involved in any pursuit, attack or other contact with Noonan.
295The Defence admits the physical evidence of NSRJ’s DNA located on a ring inside NRS’s car. However, it is known that NSRJ would frequently be in his father’s car. The presence of his DNA does not provide proof of criminal culpability in and of itself. At its highest, the Defence says that it only indicates that at an unknown place and time the item was touched by NSRJ.
296The Defence argues there is no direct evidence of NSRJ, or Bell being involved in any alleged assault on Noonan. At best, there is evidence of NSRJ’s blood being present on a ring inside NRS’s car, but there is no evidence to suggest that: (1) NSRJ was injured during any alleged assault on Noonan; (2) when the blood or DNA was placed on the ring; (3) when the ring was left in the car; (4) who last had possession of the ring; (5) who else may have been in the car, if NSRJ was even in the car at all.
297It is the position of the Defence that PC Francis’ identification of Bell being one of the riders he observed stationary at a stop sign on James St on his motorcycle should be not given any weight. The law on the potential dangers and frailties of identification evidence is well established.380
298Further, PC Francis, while being shown photos of Bell prior to 23 September 2018, had never actually met him. Furthermore, at the time of the short observation of Bell the officer was operating a police vehicle in an urban area with traffic. He could not realistically be expected to focus exclusively on observing the subject. As a result, he was unable to describe the helmet or if the subject was wearing sunglasses. PC Francis could also not articulate any unique or identifying personal features that he observed on the subject to give him confidence that it was in fact Bell.
299PC Francis candidly admitted that he was relying on the patches and the beard to identify Bell and he conceded that in his notes he observed “red and white” patches but acknowledged he could see no red when shown a picture of an Outlaws vest.381
300With respect to the evidence of Saddlemire, at best he observed “four or five bikes”382 and that the one biker who had a beard did not say anything to him. Notably, Bell had a rather pronounced beard at the material place and time, as did NSRJ.383
301The Defence asserts that there is no eyewitness evidence whatsoever that places NSRJ as involved at all in this incident with Noonan.
302The Defence concedes there may be some evidence accepted by the Court that Bell was in the cluster of bikers that originally stopped next to Noonan and Saddlemire. However, there is a complete lack of evidence as to where Bell went from there or what he did, apart from his presence at Tim Horton’s between 4:48 and 4:51 p.m., which is before he is alleged to be observed by PC Francis.384
303The Defence points out that the photos put into evidence of Bell at Tim Horton’s show that he is alone and exiting with a coffee in his right hand. The Defence argues that it would have been practically impossible for Bell to have “chugged” a hot coffee in a few minutes time and joined the other bikers in time to be seen by PC Francis.
304The Defence submits that the Tim Horton’s photos alone ought to raise a reasonable doubt as to Bell’s participation in any aspect of the Noonan incident.
305PC Latham estimated that he received a call for service “minutes” before arriving at the witnesses’ address, which was at 5:02 p.m.385 and it was a “couple of minutes before that he observed the three bikers while on patrol.386 Bell was not even on his motorcycle at this time, let alone driving it. He was at Tim Hortons, as the Defence argues and the photos indicate.
306The Defence contends that even if the Court is satisfied that the man with the beard described by the witnesses is Bell, consider NRS’s evidence that Bell initially pulled up to Noonan but he was the first one to leave.387 The Defence says this makes complete sense when assessing NRS’s evidence in conjunction with the photos taken at Tim Horton’s from 4:48 to 4:51 p.m.
307The Defence asserts that, leaving aside for a moment the issue of identification, the only evidence Noonan was in fact kidnapped by anyone, comes from Noonan’s KGB statement to DC Grant.
308Noonan testified at trial that Bell did not play a role in his kidnapping. Furthermore, he did not see either Bell or NSRJ assault him or witness them direct anyone to do anything to him.388
309During this trial the Crown brought an application to have Noonan’s statement to DC Grant admitted for the truth of its contents. Counsel for the accused vigorously opposed its admission into evidence on the basis that it was extremely unreliable. While the Court ultimately did allow the statement into evidence, finding that it met the threshold requirements for reliability, that ruling does not mean that the statement is ultimately reliable. I agree.
310It is the position of the Defence that none of what Noonan said to DC Grant should be accepted as true. In short, the Defence says Noonan’s statement should be given zero weight, give the number of internal and external factors that make the statement inherently unreliable.
311Throughout the interview Noonan is constantly heard asking for some sort of consideration for his charges. While no direct offers were made, Noonan testified that he hoped that in speaking with the police he would be able to receive a lighter sentence or bail pending his sentencing.389
312The police were very interested in a few people and they wanted Noonan to place those people as involved in his attack on September 23, 2018.
313It was DC Grant who offered up the names of NSRJ and Bell to Noonan.390 Furthermore, before commenting or committing to those names out loud, Noonan grabbed the sheet of paper that DC Grant had written the names on in advance of the interview.391 These were names that DC Grant thought appropriate to write on a piece of paper that he was taking to a key witness interview, not written in ink, but in a bright bold highlighter colour.392
314When Noonan grabbed the paper from DC Grant, he was allowed to hold on to it and read it.393 It is then, and only then, that Noonan brings up the names Bell and NSRJ, as well as other persons on DC Grant’s list.394
315The Defence argues that in assessing Noonan’s evidence, it is important to keep in mind his mental and physical state at the time of both the statement as well as at the time of the incident. As of September 23, 2018, Noonan was not only a drug trafficker he was a heavy user of hard drugs and an addict.395 This is corroborated through the evidence of Russell who testified that Noonan was doing crack cocaine and crystal meth on a daily basis.396 It was also corroborated by Fraser.397
316Noonan himself testified he was “whacked out of it,” daily and in particular on September 23, 2018.398
317In summary, the Defence says that, leaving aside for a moment the issue of identification, there is no evidence to suggest Noonan was ever coercively restrained or directed to go anywhere contrary to his own desires. Noonan was not forcibly placed into NRS’s car, he was not restrained or held while he was in car, he was not forced to go 21 Sevenoaks Avenue, and he was not forced into the residence. All of Noonan’s movements, if they even occurred, with Bell, NSRJ and the NRS, were done either at his behest or with his express consent.
318The Defence argues that kidnapping consists of taking control of another person and transporting that person away from one point to another.399 There is no evidence that this is what happened to Noonan on 23 September 2018.
Noonan KGB Statement
319At the beginning of the interview, DC Grant asked Noonan how he knows NSRJ. DC Grant told Noonan that the police had NSRJ’s DNA. Noonan replied: “what about my jewelry though, when do I get that back”,400 which the Crown contends is evidence of Noonan acknowledging the incident. Noonan told DC Grant he was hit with a tire iron and knows who hit him.401 Without the police mentioning it, Noonan knew that the interview was about the DEMC.402
320Noonan told DC Grant that he was walking on the street with Saddlemire when motorcycles rolled up in front of them and a car beside them. Noonan was grabbed but slipped out of his sweater. He exchanged blows with his attackers. Saddlemire ran. Noonan ran in a different direction. Noonan hopped a fence into a yard and fell to the ground. Two people kicked him in the face. He was asked who kicked him in the face and he said that his name had come up.403
321Noonan said he was put in a car and driven to a house where he was beaten. He was beat by a skinny guy and NSRJ. At one point, Bell looked in the room.404
322Noonan was asked who was driving the car. He said it was “An older fucking guy... Looked like a dad.... It was a shitty fucking old Grand Prix.405
323Noonan grabbed the paper from DC Grant and pointed to the names406: “the driver” [NRS], the one that kicked him in the face and snatched him [NSRJ], and the guy that peaked in on him at 21 Sevenoaks Avenue [Bell].407
324While in the room at 21 Sevenoaks Avenue, they struck him across the face with a tire iron.408 He was told he had to come up with $150 or they would not let him go. He collected the money.409 Both DC Grant and Noonan testified that the piece of paper was upside down with the names written on the back when Noonan grabbed it.410
325Noonan said that the bikers hate him because they want him to sell drugs for them. He admitted that he sold [drugs] for them for a bit.411
326After the incident, he went to the Quickie and the guy [the clerk] asked him if he had been in an accident.412
327The Crown concedes, and I agree, that despite pleading guilty to perjury in relation to his evidence at the preliminary hearing, Noonan was a reluctant and difficult witness. He claimed at trial that he was drunk and high at the time of the kidnapping, which impacted his memory.413 He claimed he was high during his interview with DC Grant.414 DC Grant testified that Noonan was sober and that no conversation preceded the video.415 Noonan agreed that there was no previous conversation contrary to his perjured testimony at the preliminary hearing.416
328Against this backdrop, Noonan testified at trial that:
His apartment burned down earlier in the day.417
Someone tried to grab him when he was walking down the street with Saddlemire. A car and motorcycles were involved. He and Saddlemire ran. Noonan ended up in someone’s backyard.418
Saddlemire ran and Noonan didn’t get away.419
He was beaten up in a back yard.420
There was a person in the back yard with him who had a black beard.421
He lost his jewelry.422
He identified the broken jewelry from 14 Daniel St. as his.423
He has a scar on his head from the alleged kidnapping424 (DC Grant observed the scar, as well as a broken tooth).425
He was hit in the head by “something hard” that was maybe a tire iron.426
After the incident he went to the Quickie store and the employee asked him if he had been in a car accident.427
He thinks he chipped his tooth when he jumped the fence.428
He never owed Michaela Rosbottom money as claimed by NRS.429
He denied having a gun on his person on the day of the kidnapping as claimed by NRS.430
He knew that the two accused and NRS were associates, and he knew of Bell.431
He knew the police were interested in the DEMC but was unsure whether any officer told him the names of the accused before his interview with DC Grant.432 He then changed his evidence in cross-examination claiming instead that unnamed police officers told him the names of the two accused.433 He changed his evidence yet again to say that he did not know how he got the names.434 In re-examination, he testified that the police never gave him specific names and that he knew their [Bell and NSRJ’s] names on his own.435
329Noonan did not deny the truth of his KGB statement. Rather, he repeatedly said that he could not remember or that he did not know what happened in relation to the alleged kidnapping and assault.436
330The Crown seeks to admit three of Noonan’s spontaneous utterances for the truth of their contents. The Crown contends that all three utterances were made by Noonan in close proximity to the event described while Noonan was still under significant pressure from being kidnapped, beaten and injured.
331The Crown argues that all the statements are of a higher quality than his evidence at trial. Further, the statements were made to a person in authority and he had no motive to fabricate any of the statements. He was available for cross-examination and the truth of the statements are confirmed by other evidence.
332Noonan testified at trial that, at the time of his KGB statement, he knew it was a criminal offence to lie to the police.
333The spontaneous statements are:
Noonan’s utterance to Eric Blanchette (“Blanchette”) at the Quickie store that “he got jumped by a biker gang who beat him up and stole his stuff”.
On the way to the station Noonan told PC McArthur that he used to sell drugs for the people who injured him. He said that he and Saddlemire were attacked by bikers. He said that he owed them money, so they beat him with a tire iron.
According to PC Lafontaine, Noonan was questioned by EMS when he said that the injury to his head was from a tire iron, that his arm had been stomped on, and a bunch of people had kicked him.
334The Crown argues that the spontaneous utterances exception was authoritatively defined in R. v. Khan and quoted in the recent decision of R. v. Nurse:
...a spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received.437
335The Court in Nurse also commented on its previous decision in Dakin:
This court revisited the scope of the spontaneous utterance exception in R. v. Dakin (1995), 1995 CanLII 1106 (ON CA), 80 O.A.C. 253 (Ont. C.A.). The appellant argued that Khan had made the test for admission more stringent by insisting on strict contemporaneity. In a judgment released "By the Court", it was held, at para. 20: We do not accept the submission that the Supreme Court of Canada decision in Khan - in which there appears no reference to Clark - has changed the law regarding spontaneous declarations as stated in Clark and has reinstated the principle of strict contemporaneity enunciated in some earlier authorities. The admissibility of the declaration is assessed not simply by mechanical reference to time but rather in the context of all of the circumstances obtaining at the time, including those which tell against the possibility of concoction or distortion....
336In Dakin, the utterance was 45 minutes to one hour after the event438
337The unavailability of the witnesses is not a prerequisite to admission as the utterance may be of such quality that we cannot expect to get evidence of the same value from the same or other sources. If Noonan's viva voce evidence is of equal value, necessity is not made out.439
338Saddlemire was a drug trafficker at the time of the Noonan kidnapping.440 He testified that he was in business with Noonan.441
339On September 23, 2018 he ran into Noonan at the Quickie store on William St., where Saddlemire bought sour cream and bacon chips. Noonan told him he was upset that someone burned down his apartment on Tunnel Ave.442
340DC Grant testified that Noonan resided at the location of the fire on Tunnel Ave.443
341Saddlemire and Noonan left the store and walked west on Pearl St when four or five motorcycles approached them from the west. There was also an older (approximate 2001) four door green car that he thought was a Toyota Camry. There was a driver and three or four occupants.444 The driver had orange hair.445 DC Empey described NRS as having reddish hair that is sometimes darker.446
342The motorcycles cut them off and one biker told Saddlemire not to move or he would kill him. All the bikes surrounded them, and the car stopped. The bikers were wearing black vests.
343Saddlemire was terrified. He ran down Daniel St. A pursuing biker fell while chasing him. Saddlemire jumped a fence and was cornered. He jumped back over the same fence and hid.447 The last he saw Noonan, he was surrounded by bikers.448 Saddlemire lost his wallet, as well as his purchases from the Quickie store.449 Due to his level of fear he sought refuge in a stranger’s home.450
344Blanchette was working at the Quickie store located at the intersection of William and Pearl Streets on the day of the incident. He testified that he saw a regular customer in the store at around five or six in the evening. The male bought an energy drink and had a “man bun”. He struggled to describe the customer’s clothes.451 The same customer came in a second time about thirty minutes later and was now covered in blood. He bought an energy drink.452 The customer told him he got jumped by a biker gang who beat him up and stole his stuff.453
345Erin Brunner (“Brunner”) lived at 14 Daniel St at the material place and time of the incident. The Quickie store is two to three blocks from her home. At about 4:30 p.m., she heard motorcycles passing by. She then saw a person hunched over her deck-box in her backyard and as a result called 911.454
346She described the person in her backyard as a male who was wearing black clothes, had dark hair and a medium build. She noticed that he had a silver metal wallet chain. He was wearing some type of a black hat. She did not recall him having facial hair. She heard motorcycles drive away. She saw a green older car, like an old Honda Civic, drive away as well.455 She called 911 at 4:55 p.m.456
347The Crown contends that when the Court considers the chain wallet, the ring found in Brunner’s driveway with NSRJ’s DNA present on it, Noonan’s KGB statement regarding the man with the dark beard in the back yard, and the evidence of NRS at the preliminary hearing that NSRJ pursued Noonan, this is strong identification evidence that NSRJ was the man in Brunner’s back yard.
348The Crown concedes that Jason Lewis (“Lewis”) was difficult to follow at times, and that he had to refresh his memory on a number of occasions. Having said that, the Crown points to the independent nature of his evidence.
349Lewis was standing on the corner of Daniel St. and Pearl St. when he saw a young male run around the corner from Pearl St. and down Daniel St. towards James St. West. He was being chased by a man. The man said something to the effect of “keep running, I’m going to get you”. The man doing the chasing slipped and fell. Lewis then lost track of them.457
350Thereafter, Lewis saw a second male being chased south on Daniel St. One of the males being chased had a red shirt and the other male being chased had no shirt on.458
351Lewis heard a scuffle around the corner.459 He saw the man doing the chasing return to the area of the scuffle and observed four people with three to four motorcycles parked on the sidewalk and on Pearl St. He saw a young male being dragged across the street by two males.460
352Lewis saw a late 90’s to early 2000’s green car that looked like a Pontiac.461 He later saw the same car being followed by three or four motorcycles headed east on Pearl St. West towards Stewart Blvd. Inside the car he saw the young man without a shirt sitting in the front passenger seat. He had blood on the side of his face. There was someone sitting in the rear passenger seat.
353He saw a police car travelling in the same direction. One of the bikers was wearing an Outlaws patch.462
354Later on, Lewis saw the young man, who was now bleeding, and pointed him out to the police officer [PC McArthur] who was taking Lewis’s statement.463 Three weeks later, Lewis could not positively identify anyone in a photo spread that contained Bell and NSRJ’s pictures. The best that he could do was to comment “maybe” on NRS’s photo.464
355Greg Cowan (“Cowan”) observed Saddlemire running in his fenced backyard at 96 James St. West around 5:00 p.m. on the date of the alleged offence. He estimated that his fence ranges from six to eight feet in height. It appeared to Cowan that Saddlemire had jumped the fence.465
356Saddlemire was scared and asked Cowan to hide him. At one-point, Saddlemire said he was running from bikers. Cowan offered to take him somewhere but Saddlemire was very nervous about leaving the house.466 Saddlemire said he was with someone and was in the wrong place at the wrong time. He also mentioned Outlaw bikers.467 Saddlemire said he was being chased by the Outlaws.468
357PC Francis was leaving a nearby call at 4:50 p.m. while driving north on Perth St. approaching James St., when he heard motorcycles revving and saw three bikes followed by a dark four door sedan going north on John St. at Perth and Pearl, he turned east on Pearl. Where Pearl intersects with John St, he saw three bikes facing north on John St. at the stop sign. PC Francis passed them, and the bikes and sedan pulled in behind him. At Buell St., one bike turned south.469
358When PC Francis initially saw the motorcycles, he recognized the first rider as Bell.470 Francis testified the car was dark blue or purple but didn’t exactly recall the colour.
359Bell had a vest or jacket on with patches on the front torso that PC Francis vaguely recalled as red and white. Video screen shots obtained from Tim Horton’s of Bell captured earlier in the day reveal no similar patches.471 PC Francis recognized Bell in the Tim Horton’s photos.472 PC Francis was ten to fifteen meters from Bell when he encountered Bell on the street.
360At 4:58 p.m., PC Francis was called to 14 Daniel St.473 He estimated that he saw Bell at 4:56 p.m.474 He took a quick glance at Bell and recognized him from a photograph.475 PC Francis’s identification of Bell is supported by NRS who places Bell at or near the scene.
361PC Francis observed Saddlemire at 5:33 p.m., who he described as scared, shaking, visibly upset, panicked eyes and “almost looking like he was in a state of shock”. Saddlemire was wearing a red sweater. Saddlemire said he had been with Noonan but did not know where Noonan went. PC Francis asked Saddlemire what happened and was told that Saddlemire and Noonan were walking together when three individuals on motorcycles chased them. The individuals told them that they were dead. One of them slipped while chasing Saddlemire. PC Francis conceded that Saddlemire was somewhat confused about the details.476
362At 6:28 p.m., PC Francis received a call from other officers that Noonan had been located. Noonan was with PC Lafontaine and PC McArthur. Noonan was injured and drinking an energy drink. He was wearing a grey t-shirt. PC Francis asked him what happened? Noonan replied: “I fell”. Instead of going for medical treatment, Noonan walked away.477
363At 9:50 p.m., PC Francis attended 21 Sevenoaks Avenue in response to a complaint of gunshots or a backfire. He noted a car in the driveway that was like the sedan he saw earlier.478
364On September 23, 2018, PC Lafontaine was paired with PC Francis in the same cruiser. He observed three motorcycles being operated along the same route described by PC Francis. They were called to attend 14 Daniel St. He described damage to the fence as “fresh”.479
365PC Lafontaine testified that PC Francis recognized Bell as one of the bikers. Further, that approximately two minutes passed between PC Francis’s observation and their attendance at 14 Daniel St. He observed that the bikers had crests on their vests identifying them as Outlaw bikers.480
366At 6:24 p.m., PC Lafontaine attended the corner of Pearl St. and Buell St. where he found PC McArthur with Noonan. He observed injuries to Noonan’s head, and that Noonan’s hair was in a “man bun”. At the police station, Noonan was questioned by EMS when he said that the injury to his head was from a tire iron, that his arm had been stomped on, and that a bunch of people had kicked him. PC Lafontaine described Noonan as scared and hesitant to provide information.481 He denied that any officer suggested Bell’s name to Noonan as a culprit.482
367PC McArthur responded to the Noonan incident. He received the call at 4:56 p.m. and located Noonan at 6:19 p.m.483 Noonan was bleeding and sitting on the grass at the corner of Pearl St. and Buell St. He described Noonan as “terrified... shaking, sweating. His eyes were huge... he was looking right through me and continued to look around.” Noonan claimed that he had fallen.484 PC McArthur knew Noonan and testified that he looked terrified and that he had never seen him like that before. Noonan did not appear to be impaired.485
368Noonan refused to get into the ambulance but agreed to come to the police station. On the way to the station he told PC McArthur that he used to sell drugs for the people who injured him. He said that he and Saddlemire were attacked by bikers. He said that he owned them money, so they beat him with a tire iron.486 While waiting for the ambulance he told PC McArthur that “they’re watching.”487
369In his KGB statement to DC Grant, NRS claimed that Noonan pulled a gun on him and members of his organization. Noonan was grabbed and lost the gun. Noonan escaped and was pursued. There were rumours that Noonan was making threats towards the organization.488 NRS told DC Grant that he collected $150 from Noonan that was supposedly a debt owed to NRS’s daughter. He admitted that Noonan was injured at this time.489
370At the preliminary hearing, NRS testified that Noonan waived them over. Bell was on his motorcycle and NSRJ was in NRS’s car with him. NRS described great animus between Noonan and the organization including death threats by Noonan.490 Noonan had a gun that he lost after bikers jumped him.491 NRS testified that an injured Noonan got in the front passenger seat of the Grand Prix and was taken to 21 Sevenoaks Avenue with NSRJ in the back seat. Noonan was taken to the table room where NSRJ and NRS had a conversation with him about the supposed debt he owned to NRS’s daughter. Noonan was then taken by NRS to collect the money.492
371Despite Noonan supposedly pulling a gun on the organization, NRS never reported it to the police, who were merely blocks away, or to DS Fournier, who he spoke to a day later.493
372In his preliminary hearing evidence, NRS claimed he had no problem with Noonan getting in the car despite Noonan allegedly pulling a gun moments earlier. Further, Noonan had no problem getting in NRS’s car despite being chased and injured earlier.
373NRS was shown photographs of his son taken on August 11, 2018. He confirmed NSRJ wore a chain attached to his wallet from time to time.494 Later he testified that it was common for him to do so.495 NSRJ was photographed by DC Empey in July 2018 with what appeared to be a chain wallet.496
374After his car was towed from 21 Sevenoaks Avenue, NRS told DS Fournier on September 24, 2018 that he and NSRJ did not live there.497
375PC Latham was called to 21 Sevenoaks Avenue at 9:32 p.m. on September 23, 2018 in relation to a complaint of a gunshot or motorcycle backfiring. He recognized NRS’s vehicle in the driveway along with a couple of motorcycles. There was no answer when he knocked on the door but there were lights on in the basement.498
376He looked in NRS’s car and noted three silver skull rings. One appeared to have blood on it. The rings were in the console. He also noted blood on the inside passenger door.499
377On October 9, 2018 DC Grant and DC Bonham attended 21 Sevenoaks Avenue and noted that a piece of eavestrough from the garage appeared to have a bullet hole in it.500 DC Grant also found what appeared to be a bullet coating in the driveway.501
378When DC Grant interviewed Noonan, he noted a scar on his head and a chipped tooth.502
379There is an agreed statement of fact regarding DNA, which was marked as exhibit 31.
380DC Rogers testified that the location of the fire at 14 Tunnel Ave was about 100m from the Quickie store on William St, and that 14 Daniel was two blocks from the Quickie store503
381The Tim Horton’s video places Bell, while wearing his vest, close to the Noonan incident both temporally and geographically. He entered the store at 4:48 p.m. and exited two minutes and 41 seconds later.504
382At 14 Daniel St, DC Rogers discovered evidence of violence.505 The gate to the fence at the end of the driveway was broken, there was a Harley Davidson skull ring on the driveway506 (the DNA profile from the inside surface is that of NSRJ), a silver chain507 and a gold and silver chain were located on the driveway508, scattered change was found on the driveway, a storage bin was tilted off the patio, and a gold chain was found in front of the bin.509
383Further signs of violence were found between the garage and the fence at 14 Daniel St. Specifically, DC Rogers found Saddlemire’s wallet with his identification inside, $65 in cash, a partially full Diet Coke and a Quickie bag containing Sour Cream and Bacon Ruffle chips. On September 24, 2018 the wallet was examined further and found to contain a small amount of individually packaged drugs (cocaine and crystal methamphetamine) consistent with trafficking.510
384DC Rogers examined NRS’s green Pontiac Grand Prix, which was seized on the evening of September 23, 2018 wherein he discovered further evidence of violence. He found rings in the back seat where NSRJ is alleged to have been sitting behind Noonan. There was a fleur-de-lis skull ring511 and a skull ring.512 The fleur-de-lis skull ring had NSRJ’s DNA in the form of blood.513
385On the inside of the front passenger seat door DC Rogers located two areas of what appeared to be blood. Swab number two was sent to the Centre for Forensic Science and identified as belonging to Noonan.514
386A tire iron was located at 21 Sevenoaks Avenue in the table room but no blood was detected on it.515
387Presence, knowledge, and party liability were dealt with by the Ontario Court of Appeal in R. v. Carrington:
While knowledge of another's intent to commit a crime and mere presence at the scene do not lead automatically to a finding of aiding and abetting, such factors can be evidence of aiding and abetting: R. v. Dunlop, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881, at p. 896; R. v. McKay, 2012 ABCA 310, 84 Alta. L.R. (5th) 404, at paras. 21-22. Here, by getting into the victim's car, at a minimum, the appellant both abetted, and demonstrated an intention to abet, the other men in robbing the victim of his car. This is not a case where the appellant was a mere bystander. He took an active step of getting into the victim's car that supported the other men in their endeavor, namely, depriving the victim of his car through the use of threats. To be guilty as an aider or abettor, all that is necessary is that the accused intended the consequences that flowed from his or her aid to the principal offender; it is not necessary to show that he or she desired or approved of the consequences: R. v. Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 S.C.R. 825, 8 C.R. (5th) 308, at para. 37. The fact that the appellant's conduct would aid the other men in their endeavour was patent; nothing in the evidence rebuts the conclusion that he intended the consequences of his actions.516
388NRS testified that Bell was present for the confrontation with Noonan. Bell was wearing his Outlaws vest. Other bikers were present and were wearing their vests as well.517 He testified that their group pulled up around Noonan and this included Bell.518 At the preliminary hearing NRS said that NSRJ went in pursuit of Noonan.519 He partially recanted this at trial but still admitted that NSRJ went to look for Noonan.520
389The Crown contends that NRS perjured himself at trial when he denied that Noonan was ever in his car.521 At trial he also denied that Noonan came back to 21 Sevenoaks Avenue or that NRS took Noonan to collect money afterwards.522
390The Crown contends that the evidence proving that Bell was not just a “mere by stander”, but in fact a party to the kidnapping, is as follows:
Bell was a member and instructor of the criminal organization that kidnapped Noonan.
Bell and the other bikers were all wearing their vests at the time.
Saddelmire’s evidence that he and Noonan were surrounded by all the bikes and the car when they were initially confronted.
NRS’s evidence that his group pulled up around Noonan and this included Bell.
PC Francis saw Bell driving away from the scene in tandem with other bikes and the car. The car’s front seat passenger at the time of this observation was Noonan.
Noonan’s KGB statement that Bell was at 21 Sevenoaks Avenue when he was beaten, and Bell looked in on him.
391When I consider all of the evidence, I have no doubt that Noonan and Saddlemire were confronted by a group of bikers, which included NRS who was driving his car with NSRJ onboard, while they were walking along the street. I have no doubt that Bell was present, at least for a time. I have no doubt that the confrontation resulted in both Noonan and Saddlemire fleeing while being chased by bikers. I have no doubt that, at some point, Noonan ended up in NRS’s car and was seen leaving the scene of the confrontation in the front passenger’s seat of the car.
392However, given the equivocal nature of Noonan’s evidence, I cannot be satisfied beyond a reasonable doubt that Noonan was ever coercively restrained or directed to go anywhere contrary to his own desires. I cannot find beyond a reasonable doubt that he was restrained or held while he was in NRS’s car, that he was forced to go to 21 Sevenoaks Avenue and forced to go inside the residence where he was allegedly assaulted by NSRJ, with Bell looking on.
393I agree with the Defence’s argument that, leaving aside for a moment the issue of identification, the only evidence Noonan was in fact kidnapped by anyone comes from Noonan’s KGB statement to DC Grant. While the Court ultimately did allow the statement into evidence, finding that it met the threshold requirements for reliability, that ruling does not mean that the statement is ultimately reliable, except for one piece of evidence, which I will explain. Put simply, it would be dangerous, in my view, to convict on this count given the frailties associated with Noonan’s evidence.
394The one aspect of Noonan’s KGB statement I do accept is that he was forced to pay the criminal organization $150.00, which I infer was a form of taxation for selling drugs in the organization’s market. Recall that the matter of the $150.00 being demanded of Noonan and paid to NRS, which I infer was ultimately paid to the criminal organization, was confirmed by NRS. NRS said that the payment was in respect of a debt owed by Noonan to NRS’s daughter. Noonan denied even knowing NRS’s daughter, which I accept. In my view, this was another fabrication concocted by NRS.
Legal Framework
Counts 6, 11, 12 and 14
Assault and related offences – sections 267 (a)(b) and 264.1(1)(a) of the Criminal Code
395Assault is defined in section 265 of the Criminal Code, it states:
265 (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
Application
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault.523
396Assault with a weapon and assault bodily harm are dealt with in section 267 of the Criminal Code, it states:
267 Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an assault,
(a) carries, uses or threatens to use a weapon or an imitation thereof,
(b) causes bodily harm to the complainant, or
(c) chokes, suffocates or strangles the complainant.524
397The offence of uttering threats is addressed in section 264.1 of the Criminal Code, it states:
264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat
(a) to cause death or bodily harm to any person;
(b) to burn, destroy or damage real or personal property; or
(c) to kill, poison or injure an animal or bird that is the property of any person.525
398The law, as it relates to assaults, assault with a weapon, assault causing bodily harm and uttering threats are very interconnected.
399Assault will have been found to have been committed only when the Crown has proven beyond a reasonable doubt that the accused intentionally applied force to another person without his consent. It will be an assault with a weapon if this intentional application of force included the use of a weapon. It will be assault bodily harm if the intentional application of force resulted in injuries that are more than merely trivial or trifling in nature.
400The mental element required to prove an assault causing bodily harm is the same as that for assault. That the accused intentionally applied force to the person without consent. This means that the Crown is not required to prove that the accused subjectively foresaw the risk of serious injury associated with the assault. Rather, the Crown is only required to prove that the accused was reckless as to whether his act caused harm to the victim.526 However, the offence of assault causing bodily harm is a crime of general intent. A person who assaults another, intending to assault, is criminally liable to conviction for assault causing bodily harm if such harm results. Only if such person did not intend to assault could no assault be found.527
401Assault with a weapon requires that an assault occurred and that a weapon, as defined in section 2 of the Criminal Code,528 was used during the course of that assault.
402An accused will be found guilty of uttering a threat to cause death if it can be established beyond a reasonable doubt that he committed both the required actus reus and the mens rea of the offence, as particularized in the Indictment.
403The actus reus will be made out if a reasonable person fully aware of the circumstances in which the words were uttered or conveyed would have perceived them to be a threat of death. Whereas the mens rea of the offence will be established if the accused intended that the words would be conveyed to intimidate or to be taken seriously. A subjective standard of fault applies. However, in order to determine what was in the accused mind, the court will often have to draw reasonable inferences from the actual words used and the circumstances within which they were uttered, including how the words were perceived by those hearing them.529
Application of the Law to the Facts
Allan Neal park incident
Count 5
404The Defence contends that, as with all other matters based upon the evidence of Neal, the alleged assault at the Youth Arena is incapable of belief. If this was a plan to assault Neal, it makes no sense that he would be taken to such a public place on a summer evening. Rather, it would have been logical for the assault to have been carried out at 21 Sevenoaks Avenue, a place known and frequented by the Bell and NSRJ. I do not agree, for the following reasons.
405Neal testified that on August 23, 2018 he left 21 Sevenoaks Avenue and that he and Lachapelle moved to Vanderweid’s mother’s country home. He testified that he left because he “didn’t want to be a part of it anymore”. He did not tell any of the members that he was leaving as he feared that he could be beaten.530
406When Bell, NSRJ and NRS attended Vanderweid’s mother’s residence on August 26, 2018, Neal described them as having a “very strict demeanour” and that they demanded he get off the roof, where he was working at the time. He testified that they wanted $3000 for a cocaine debt. Neal acknowledged a debt of $450 to NSRJ. Neal conceded that he lied to the police when he told them that the debt was for rent. Neal also testified that Bell wanted him back at 21 Sevenoaks Avenue. Things became so heated that Vanderweid brought out a crowbar, after which the three men left.531
407Later that evening, Neal received a message from NSRJ indicating that Bell had found out about the train station robbery of Mellon and that Neal had to come in [to Brockville] to talk about it. Neal was driven into Brockville by Vanderweid. Neal told Vanderweid to come back for him later that evening.532
408Neal arrived at 21 Sevenoaks Avenue after which he, NSRJ and NRS headed to Bell’s residence. Neal sat in the front passenger seat. NSRJ got into the back seat directly behind Neal, as opposed to the front passenger seat where he usually sat when Bell was not present.533
409They picked up Bell and then drove to an isolated location near the dog-park, behind the Youth Arena, where Neal testified he was assaulted by Bell and NSRJ, after Bell appeared to give a signal by whistling. Neal testified that he did not fight back as Bell was bigger than him and NSRJ “scared the shit out of him”. He testified that his fear of NSRJ was based on NSRJ’s demeanour and that, as he put it: “he doesn’t hold back”.534
410Neal did not exaggerate the gravity of this assault. Rather, he testified that he didn’t “believe that they were going full force”.535
411The location of the assault was separated from the dog-park by trees, it was dark out536 and Neal did not know if there was anyone in the park.537
412Neal testified that the motive for the assault included Neal and Vanderweid’s attempt to form their own organization - “The Unknown Brotherhood” or “212”.538
413On the drive back, Neal surreptitiously texted Vanderweid and told him not to come to pick him up as the accused kept asking where Vanderweid was.539 Neal later got a message to Vanderweid telling him to bring Lachapelle to 21 Sevenoaks Avenue but to drop her off on the street behind the residence (North Augusta Rd.). Neal made this request so the accused would not see Vanderweid.540
414Neal testified that NRS apologized to him, telling him that he did not know the assault was going to occur.541
415In my view, Lachapelle confirms many aspects of Neal’s evidence. She testified that Bell and NSRJ yelled at Neal to get off the roof, where they were working. She described Bell and NSRJ’s voices as angry and that she was scared.
416She thought that Neal did not get off the roof until the three men left, but admittedly her vantage point was not good. She was unaware that Neal owed money.
417She saw Vanderweid get off the roof when the three men were still there. She also saw him pick up a crowbar that he held by his side. She believed that Vanderweid might have told the accused to get off the property. The accused did leave.542 She testified that Neal was yelling back at the accused.543
418Lachapelle testified that later that day Vanderweid took Neal to 21 Sevenoaks Avenue, she believed for the purpose of getting her clothes. She expected Neal to return but Vanderweid returned alone. A few hours later she received a call or text from Neal telling her to come back to 21 Sevenoaks Avenue with Vanderweid and to have Vanderweid drop her off where Vanderweid could not be seen.
419Upon arrival at 21 Sevenoaks Avenue, Lachapelle could hear voices in the table room but the door was closed. When Neal came out, he told her to tell Hailey Moore (Vanderweid’s girlfriend) that they could no longer speak to Vanderweid and Moore. She saw a bruise on the side of Neal’s face. At some point, Neal told her about the Youth Arena assault. She did not call the police as she was afraid. In a Facebook message Lachapelle sent to Moore, she told Moore, among other things, that Neal was not allowed to return to Vanderweid’s mother’s residence, and that Neal was in the table room.544
420Vanderweid testified that when Bell, NSRJ and NRS attended at his residence, Bell was angry at Neal over a $3000 debt. Vanderweid picked up a piece of pipe “in case stuff went south”.545 The accused left a minute later.546
421Later, Vanderweid drove Neal to 21 Sevenoaks Avenue. Neal directed him not to stop at the actual address. Neal said he would be a couple of minutes. An hour later, Neal messaged him and told him to get out of town. Neal said he got beat for moving to Vanderweid’s. In my view, this previous consistent statement rebuts recent fabrication by Neal to get out of his own charges.547 Vanderweid did not call the police because, as he put it: that’s “how he grew up”.548
422For those reasons set out above, on or about the date alleged, I am persuaded beyond a reasonable doubt that:
Bell and NSRJ intentionally applied force to Neal.
Neal did not consent to the force that Bell and NSRJ intentionally applied.
Bell and NSRJ knew that Neal did not consent to the force that they intentionally applied.
423With respect to Count 11, for those reasons set out above in relation to Count 10, on or about the date alleged, I am persuaded beyond a reasonable doubt that:
Bell and NSRJ intentionally applied force to Neal.
The force Bell and NSRJ intentionally applied caused bodily harm to Neal.
424With respect to Count 12, for those reasons set out above in relation to Count 10, on or about the date alleged, I am persuaded beyond a reasonable doubt that:
Bell and NSRJ made a threat – Bell in the parking lot of the No-Frills and NSRJ at the ATM.
The threat was to cause death (NSRJ) or bodily harm (Bell) to Neal.
Bell and NSRJ made the threat knowingly.
425With respect to Count 14, for those reasons set out above in relation to Count 13, on or about the date alleged, I am not persuaded beyond a reasonable doubt that:
- Bell and NSRJ intentionally applied force to Noonan. Given my finding on this essential element, I need not go on to make findings with respect to the other essential elements related to s. 267(a) Criminal Code – Assault with a Weapon.
426With respect to Count 15, for those reasons set out above in relation to Count 13, or about the date alleged, I am not persuaded beyond a reasonable doubt that:
Bell and NSRJ stole a quantity of Canadian currency from and at the same time used violence on Noonan.
To reiterate; however, I do find that Noonan was forced to pay the criminal organization $150.00, which I infer was a form of taxation for selling drugs in the organizations market, for the reasons set out earlier, which in my view is evidence in support of my findings in relation to Counts 1 and 2.
Legal Framework
Counts 16, 17, 18 and 19
Firearms related offences – sections 96(2), 91(1) and 354(1)(a) of the Criminal Code
427Possession of a firearm that was obtained in the commission of an offence is addressed in section 96(1) of the Criminal Code; it states:
Subject to subsection (3), every person commits an offence who possesses a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition that the person knows was obtained by the commission in Canada of an offence or by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence.549
428Unauthorized possession of a firearm is set out in section 91(1) of the Criminal Code; is reads:
Subject to subsection (4), every person commits an offence who possesses a prohibited firearm, a restricted firearm or a non-restricted firearm without being the holder of
(a) a licence under which the person may possess it; and
(b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.550
429Possession of property obtained by crime is dealt with in section 354(1) of the Criminal Code, it states:
354 (1) Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from
(a) the commission in Canada of an offence punishable by indictment; or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence punishable by indictment.551
430Possession is defined in section 4(3) of the Criminal Code:
For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or another person; and
(b) where one of two or more persons, with knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.552
431In the context of any possession-based offences, possession of an object may be established in three ways:
The accused has the object in his or her personal possession.
The accused has constructive possession:
a. The accused has the object in the custody or possession of another person, or
b. the accused has the object in a particular place for his or her own use or benefit, or the use or benefit of another person.
- The accused has joint possession of the object where it is actually possessed by another person with the accused’s knowledge and consent.
432The majority of the Supreme Court of Canada summarized the mens rea of personal and constructive possession in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 15-17:553
For the purposes of the Criminal Code, “possession” is defined in s. 4(3) to include personal possession, constructive possession, and joint possession. [. . .] It is undisputed that knowledge and control are essential elements common to both.
On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty): Beaver v. The Queen, 1957 CanLII 14 (SCC), [1957] S.C.R. 531, at pp. 541-42.
Constructive possession is established where the accused did not have physical custody of the object in question, but did have it “in the actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person” (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person.554
433Joint possession requires both knowledge and consent, which must coexist with some measure of control, that is, some power or authority over the subject-matter:555
434There is no presumption that tenants or occupants of a property possess items found in or on that property.556 Nor is there a presumption that a driver has possession of all items within the vehicle being driven.557
Personal or Actual Possession
435To establish actual possession, the Crown must prove: (i) manual handling of the item by the accused; (ii) knowledge of what the item is; and (iii) some measure of control.558
436Where an accused has been found in personal possession of the property in question, the Crown will probably have little difficulty establishing possession within the meaning of s.4(3). However, even if the accused is found in actual possession, he or she cannot be convicted unless the possession is co-existent with knowledge of what the substance is and some act of control.559
437An accused may be found to have been in actual possession, even though he or she did not physically possess the goods in question at the time of arrest. For example, in March,560 the accused had escaped from a correctional facility at approximately the same time that a car disappeared from the vicinity. The car was found abandoned several days later; the accused’s fingerprint was found on the rearview mirror. The accused was convicted of possession of stolen goods, the court stating that although there was no obligation upon the accused to establish his innocence, in the absence of an explanation, the overwhelming inference to be drawn was that the accused had driven the vehicle and adjusted the mirror. In this regard, reference should also be made to Eustace (1977), 1977 CanLII 3285 (NS CA), 23 N.S.R.(2d) 524, 32 A.P.R. 524 (C.A.).
Constructive Possession
438In order to establish constructive possession, the Crown must prove knowledge and some measure of control or right to control. The absence of one of these elements will result in the accused’s acquittal.561 However, it must be emphasized that the Crown need only prove measure of control or right to control; control for the purpose of constructive possession does not require the accused to actually exercise control over the object in question.562
439Due to the fact that the accused is not in physical possession of the goods in cases of constructive possession, the necessary knowledge and control generally must be inferred from circumstantial evidence. Again, no hard and fast rule can be applied, and each case falls to be determined on its own facts.
440Whether an accused’s fingerprints on an article will support an inference that he was in possession of the article will depend on the circumstances of the case, including when the fingerprint was placed on the item, whether the contents of the article (e.g. bag, bottle) were visible or easily recognizable.563
441The accused’s right of access (exclusive or not exclusive) to the place (public or private) where the article is located is very often a factor in cases of constructive possession. The presence of personal documents or items in a place may establish knowledge of and control over the contents of that place.564 In addition, a key that provides access to a place can establish control over that place.565
442However, where the Crown’s case is entirely circumstantial, the knowledge and control of the accused must be the only reasonable inference available on the facts.566
Joint Possession
443The operative words in the section are “knowledge and consent” and both must be established by the Crown. Mere knowledge is insufficient; consent must be shown on the part of those persons not found in physical possession.567
444The common law has also made it equally clear that the Crown has the burden of establishing these twin elements of “knowledge and consent” beyond any reasonable doubt.568
445As a rule, the courts have avoided any attempt to provide an all-embracing definition of the word “consent” as used to define joint possession under the Criminal Code:569 However, it is clear that consent requires more than mere indifference or passive acquiescence.570
446Consent contemplates some degree of control or influence over the property allegedly possessed. In Terrence,571 an accused passenger had realized that the vehicle in which he was travelling was stolen only after a police chase commenced. The Ontario Court of Appeal held that the requisite measure of control required for the purposes of s.4(3)(b) was not proved. The Crown appealed to the Supreme Court of Canada on the ground that a measure of control on the part of the person deemed to be in possession by s.4(3)(b) is not a constituent and essential element of possession under the section. Mr. Justice Ritchie, for the court, made the following unequivocal statement, indicating the necessity of evidence of control:
As I have indicated, I agree with the Court of Appeal that a constituent and essential element of possession under s.3(4)(b) [now s.4(3)(b)] of the Criminal Code is a measure of control on the part of the person deemed to be in possession by the provision of the Criminal Code and accordingly I do not consider that the Court of Appeal for the Province of Ontario erred in this regard.572
Application of the Law to the Facts
447The Defence argues there is no proof whatsoever that NSRJ was in actual, constructive or joint possession of the items found within 21 Sevenoaks Avenue.
448The Defence contends there were no fingerprints or DNA found on any of the items; there were no personal items belonging to NSRJ in the master bedroom. There are pictures of persons associated with the Outlaws MC and the DEMC; however, none of those images are of NSRJ.
449The Defence asserts that the only evidence connecting NSRJ to the master bedroom is that of Neal and Lachapelle, which should not be given any weight. In addition, there is the evidence of NRS regarding his son’s health and how he had stopped probating for the Outlaws MC due to his health issues.573
450Detective Empey testified and provided the Court with surveillance footage of 21 Sevenoaks Avenue the night before the execution of the search warrant, wherein NSRJ is seen exiting and entering the residence.574 However, in cross-examination it was confirmed that NSRJ had nothing on his person and nothing in his hands, other than a small piece of paper.575 Further, when NSRJ is seen on this surveillance footage, he is of slim build and it not wearing either an Outlaws probationary vest or a DEMC vest.
451The firearms and related illegal items were located by the police during the execution of a search warrant, and were found within a black plastic garbage bag that was closed over.576 The Defence argues that even if the Court was to find that NSRJ attended at 21 Sevenoaks Avenue the night before the execution of the search warrant and was in the master bedroom, the bag was closed over and therefore not in plain view by anyone who may have been in the residence.
452The Defence asserts there is also no evidence that NSRJ or anyone known to attend 21 Sevenoaks Avenue knew that the Dominion Arms 9 mm frame was stolen. Evidence was heard over the course of this trial that the residence was a popular place for numerous people to come and hang out577, and that the doors were never locked. 578
453Nor is there any evidence from anyone that NSRJ was ever in possession of firearms or related items. Furthermore, no firearms or ammunition were seen within 21 Sevenoaks Avenue by Lachapelle,579 Neal580 or NRS. 581
454Lastly, counsel for the Defence submit that it is of vital importance who the police initially charged with having possession of these items. It was not NSRJ. The police, believing that they had reasonable and probable grounds, arrested Neal, Lachapelle, Gard, Josh Dominquez, Sarah Buttle and others582 for what was located within 21 Sevenoaks Avenue, not NSRJ.
455NSRJ has admitted that the Smith and Wesson revolver located at 21 Sevenoaks Avenue is a prohibited and firearm. He has admitted that the Dominion Arms 9mm is a stolen, restricted firearm. He did not admit possession or knowledge that either gun was stolen.583 He has admitted being prohibited from possessing firearms.584
456For the Dominion Arms 9mm, if a suitable slide was added to the frame that was found at 21 Sevenoaks Avenue, it would be a firearm. The definition of firearm requires that it be operable or “can be adapted for use as a firearm,” which means that even if the object is not immediately operable, it can still be a firearm so long as it can be made to fire. For possession offences the case of R. v. Cook is applicable:
In my view, the learned justice of appeal has placed too high a burden upon the Crown. On a charge of possession of a prohibited weapon under s. 90(1), which is a continuing offence, the factors of adaptability and time are of far lesser importance that in an offence of using a weapon in the commission of an offence as in Covin, supra. Moreover, the ability of the accused himself to adapt the weapon is not really a crucial factor. There are many people knowledgeable about guns who could readily assist him in that endeavour.
The accused had the weapon concealed on his person for a purpose. He did not testify at his trial. In my opinion, the evidence is sufficient from which it can be reasonably inferred that he had the capacity by himself or with the assistance of others and within a reasonable time to activate the gun for firing and that therefore it was a firearm and hence a prohibited weapon within s. 84(1) of the Code.585
Possession
457Possession is defined in the Criminal Code to include:
4(3)(a) a person has anything in “possession” when he has it in his personal possession or knowingly
(ii) has it in any place, whether or not that place belongs to or is occupied by him for the use or benefit of himself or of another person....
458For all forms of possession, the Crown must prove two elements: knowledge (mens rea) and; a measure of control (actus reus).
459The Crown contends that it is submitted that NSRJ had constructive possession of the handguns (s.4(3)(a)(ii)).
460In R. v. Degraw the Court of Appeal defined constructive possession:
The three essential elements of constructive possession are:
(1) did the person have knowledge of the character of the object;
(2) did the person knowingly put or keep the object in a particular place, whether or not that place belongs to him; and
(3) did the person intend to have the object in the particular place for his "use or benefit" or that of another person?
See: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17.
To make out constructive possession, there is simply no requirement that the Crown prove that the accused had physical possession or intended to take physical possession of the subject item(s). The plain language of the Criminal Code makes it clear that constructive possession applies where the accused knowingly has an item in a place, "for the use or benefit of [the accused] or of another person"586
461The Crown argues that control can be inferred from the exclusive occupancy of the master bedroom by NSRJ. He had the ability to invite or to exclude others from his own room that contained his personal property. There is no evidence of occupancy by anyone other than NSRJ and historically his girlfriend, Tegan Fenlong, as a co-occupant. The Crown asserts there is no credible evidence of communal use of the bedroom. There is no evidence that Fenlong, who had moved out, owned the firearms.
462In a possession case, knowledge can be (and often is) proven through circumstantial evidence. To convict, the Crown must prove that the accused’s knowledge of the handgun’s presence is the only reasonable explanation. In this case, the Crown says that knowledge has been proven through an accumulative of circumstantial evidence that points to NSRJ’s knowledge of the gun’s presence in his room as the only reasonable inference.
463In this country, a prohibited handgun is a relatively rare commodity and is of monetary value. It is a prized item in the criminal realm and is therefore unlikely to be forgotten or abandoned.587
464The Crown contends that the TV, the TV stand, the quad of cocaine on the TV stand, the Probationary Outlaw’s vest, and other items in close proximity to the handguns, is inconsistent with abandonment. The nature of other items located proximate to the firearm are capable of providing context for inferences of knowledge and control.588
465Two handguns were inside the garbage bag on the floor. This supports an inference of deliberate hiding of two separate items and therefore knowledge.589 There is no other evidence that anyone other than the accused placed the handguns in his own bedroom.
466Neal testified that NSRJ and NRS lived at 21 Sevenoaks Avenue on a full-time basis from the spring to the early fall of 2018.590 They moved in the same day that he and Lachapelle did.591 He testified that NSRJ had his girlfriend, Tegan Fenlong, residing with him for the majority of the summer.592
467Neal testified that he and Lachapelle slept in the guest room, Gard slept in the basement, NRS slept in the table room and NSRJ slept in the master bedroom.593 NSRJ graduated to be a probationary Outlaw in the summer of 2018.594
468Neal identified personal property that links NSRJ to the master bedroom, such as his TV and stand, his Probationary Outlaw’s vest, his SYLO Southside hat and his SYLO Southside shirt. Neal testified that NSRJ was the only Probationary Outlaw in Brockville.595
469Lachapelle testified that NSRJ became a Probationary Outlaw in the summer of 2018, that he wore a Probationary Outlaw vest and that he was the only Probationary Outlaw that she knew in Brockville.596
470She testified that NSRJ and NRS moved in “maybe a few days to a week or so” after she and Neal moved in.597 And that NSRJ’s girlfriend, Teagan, lived there for “a month or two max” in the summer of 2018.598 She testified that NRS lived in the table room, she and Neal lived in the guest room, and NSRJ lived in the master bedroom.599
471Lachapelle identified items in the master bedroom as belonging to NSRJ: a motorcycle helmet, TV, TV stand, the Probationary Outlaw’s vest, and a picture frame with a collage of photos that included images of Bell.600
472Lachapelle testified that she had no idea that NSRJ had a wife, let alone one that he lived with. She saw NSRJ at 21 Sevenoaks Avenue most nights.601
473DC Rogers testified that the master bedroom looked to be the bedroom that was used most frequently and that it “seemed to be occupied” given the furniture and number of personal items located in it. The guest room was clean and spartan in comparison.602 This is borne out by the photographs that DC Rogers took of the house.
474DC Rogers testified that the guest room had no personal items in it.603 This is supportive of Neal and Lachapelle moving out.
475In the master bedroom DC Rogers located a black leather, Probationary Outlaw’s vest on the floor in front of the TV stand. Nearby was a black SYLO t-shirt. To the right of the t-shirt was a black garbage bag containing two handguns. One gun was complete and the other was missing its slide. The slide was located at the Johnston shooting in May 2018 at Cartier Court.604
476NRS confirmed that a photo of NSRJ on the latter’s Facebook page showed him wearing an “MC” ring.605 A similar “MC” ring was photographed on the TV stand but not seized by DC Rogers.606 PC Latham arrested NSRJ on January 14, 2018.607 On arrest he seized the rings but ultimately returned them to NRS.608 PC Latham photographed the rings. The rings in the photograph include skull rings and an “MC” ring that is like the ring on the TV stand near the cocaine in the master bedroom.609
477On the north wall of the same bedroom, DC Rogers located a Sig Sauer handgun magazine that did not match either handgun in the garbage bag.610
478DC Empey photographed NSRJ wearing a similar Probationary Outlaw’s vest as late as July and August of 2018.611
479DC Empey seized a copy of the Outlaw’s Constitution 2017 from a member’s residence in Bancroft. The document indicates that the loss of a Probate Patch is subject to a $500 fine.612
480NRS testified that he and his son always attended 21 Sevenoaks Avenue together and that they attended three days at a time, following which they went to Cartier Court.613 In the statement of Gladys Purvis that was admitted, she says:
“that green car is always coming and going with people. That one that youse (sic) towed. There’s also a couple of young girls, real young that stay there..... [I] see the scruffy guy with the green car all the time. It comes and goes every ten minutes”.614
481NRS testified at trial that their attendance and sleep overs included the month of September 2018.615 He later recanted this.616 He denied attending 21 Sevenoaks Avenue with NSRJ the night prior to the September 27, 2018 search that netted the guns. But he then identified himself, NSRJ and a vehicle similar to Bell’s on the security video at 21 Sevenoaks Avenue on September 26, 2018.617 He later conceded that it was possible that he and NSRJ slept there in September, 2018 two to three nights a week.618 In his statement to DC Grant, NRS identified the front room (i.e. the master bedroom) as his son’s.619
482NRS testified about the importance of taking care of your vest, that you should keep it with you and not lend it.620 And you don’t abandon it.621
483According to NRS, his son was the only Probationary Outlaw in Brockville.622 He could not name or describe any other Probationary Outlaw who would have attended 21 Sevenoaks Avenue.623
484NRS testified in chief that in September, 2018 NSRJ owned a Probationary Outlaw’s vest but denied that the vest found in the master bedroom was NSRJ’s as NSRJ’s vest had no strings.624 NRS was shown photographs of NSRJ wearing a Probationary Outlaws vest with strings attached on July 24 and August 11, 2018.625 NRS then, for the first time, alleged that NSRJ had turned his vest in.626 He testified that NSRJ handed in the vest in July, 2018 despite the fact that he was photographed wearing the vest in August, 2018 by DC Empey.627
485At the preliminary hearing, NRS identified the vest as his son’s. At trial, he testified that he felt that [statement] was correct at the time.628
486DC Empey, who was very familiar with Bell and NSRJ, having observed and photographed them on multiple occasions, identified them at 21 Sevenoaks Avenue on their own video surveillance system between September 25 and 27, 2018.
487DC Empey also conducted surveillance of Bell driving his wife’s white Jeep Compass and was therefore familiar with that vehicle.629 DC Empey also observed the Grand Prix and a vehicle similar to Bell’s [wife’s] jeep at the residence between September 25 and 26, 2018.630 DC Empey also recognized Bell in the video, but it is admitted that the images of him are not as clear as those of NRS and NSRJ.631
488In my view, there is no doubt that NSRJ occupied the master bedroom at 21 Sevenoaks Avenue throughout the Summer and into the Fall of 2018. I have no doubt that he, along with Bell and NRS, were present outside the residence/headquarters the evening prior to the search. I accept that certain items found on the floor of the bedroom at the time off the search belonged to NSRJ, most notably the Probationary Outlaw’s vest, which I find is the same one he is wearing in the photographs entered as exhibits.
489Against this backdrop, in my view, there is reasonable doubt that NSRJ was in actual, constructive, or joint possession of any of the firearms seized, whether in whole or in part. I say that for the follow reasons.
490First, evidence heard over the course of the trial confirms that 21 Sevenoaks Avenue was a popular place for numerous people to come and hang-out, and that the doors were never locked. Notably, there was an absence of evidence that the door to the master bedroom was ever locked and that NSRJ had the only key. Accordingly, the fluid nature of traffic in and out of the residence/headquarters, as well as potentially in and out of the bedrooms, including the master bedroom, militates in favour of a finding of reasonable doubt, in my view.
491Second, there was no physical evidence, such as DNA or fingerprints, tying the guns directly to NSRJ.
492Third, no one, including Neal or Lachapelle, ever saw NSRJ in possession of a firearm over the Summer of 2018, or at any other time.
493Fourth, the police, as a result of conducting the search, subsequently swore Information’s based on reasonable and probable grounds charging Neal, Lachapelle, Gard, Josh Dominquez, Sarah Buttle and others with possession of the firearms, based simply on 21 Sevenoaks Avenue being their mailing address. The police were wrong. The charges were eventually withdrawn. Critically, the police could be equally wrong in respect of NSRJ. Accordingly, it would be dangerous to convict NSRJ on Counts 16, 17, 18 and 19.
Legal Framework
Count 20
Trafficking – section 5(1) CDSA
494Section 5(1) of the CDSA states that:
- (1) No person shall traffic in a substance included in Schedule I, II, III or IV or in any substance represented or held out by that person to be such a substance.632
495The affected drugs and substances are listed in Schedules I through IV of the Act, cocaine is listed as a schedule I substance.
496Trafficking is defined in s.2 of the CDSA as follows:
“traffic” means, in respect of a substance included in any of Schedules I to IV,
(a) to sell, administer, give, transfer, transport, send or deliver the substance,
(b) to sell an authorization to obtain the substance, or
(c) to offer to do anything mentioned in paragraph (a) or (b).633
Actus Reus /Mens Rea
497The actus reus of the offence of drug trafficking will be made out when the Crown can prove beyond a reasonable doubt that the accused actually sold, offered to sell or distributed the controlled drug or substance.
“Sell"
498The term as defined in section 2 of the CDSA “includes” various activities which amount to “selling”, and is not exhaustive.
499Webster's Third New International Dictionary defines "sell" thus: "To give up (property) to another for money or other valuable consideration: hand over to transfer title to for a price; to give up in return for something else..."634
500The requisite elements of a sale are commented on by the Supreme Court of Canada in Poitras:
On the evidence, it was undoubtedly open to the Judge to find that there were present the three essential elements of any sale: the agreement or bargain, the payment of the price and, through the aid of Little, the delivery or conveyance of the property. An alternative view is that the accused aided and abetted an unidentified vendor in selling, and Little in delivering the narcotic to Constable Arsenault. Whichever view one takes, the appellant did unlawfully traffic in a narcotic contrary to the provisions of the Narcotic Control Act. 635
"Offer"
[501] Under section 2 of the CDSA, trafficking also includes offering to do any of the specific acts set out in the definition. This was also true under the NCA.
502The Shorter Oxford Dictionary defines "offer" thus: generally, a proposal, or express one's willingness (to do something), conditionally on the assent of the person addressed..."636 or "proposing to do a thing."637
503R. v. Sherman638 (1977), 1977 CanLII 1908 (BC CA), 39 C.R.N.S. 255, 36 C.C.C.(2d) 207 (B.C.C.A.) illustrates the fact that simply offering to sell is sufficient for trafficking. A charge of trafficking is made out if the accused offers to sell heroin to an undercover officer, even though in fact the accused's intention was not to sell, or deliver, heroin, but to cheat the buyer. An offer to sell or deliver a narcotic is complete once it is put forward by the accused in a serious manner, with the intention that it induce the other to act upon it and accept it as an offer. McFarlane J.A. said:
The trial Judge found:
"For the purpose of this decision I accept from Sherman that he never had any intention of actually going