Court File and Parties

Court File No.: CR-21-10000014-0000 Date: 2022-02-22 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Jonathan Salazar-Blanco, Defendant

Counsel: Susan Adams and Lindsay Kromm, for the Crown Sina Shabestary, for the Defendant

Heard: January 4, 5, and 6, 2022 (remotely by Zoom)

Before: Molloy J.

Reasons for Decision

A. Introduction

[1] Jonathan Salazar-Blanco is charged with conspiracy to commit murder. He elected to be tried by a judge sitting alone, without a jury, and consented to the trial proceeding remotely by Zoom. The evidence before me consisted of an Agreed Statement of Facts, a number of documents filed on consent (mainly text messages and photographs), and the video-taped statement given by Mr. Salazar-Blanco to the police on September 25, 2019, the same day as his arrest on this charge.

[2] It is agreed by counsel that the statement was voluntary, was taken without violating any of Mr. Salazar-Blanco’s Charter rights, and is therefore admissible in evidence before me. I agree.

[3] The Crown’s theory is that the accused conspired with various people to find and kill Alex Vinogradsky, who the conspirators believed to be located in Costa Rica. The suggested motive is related to protecting interests in the tow-truck business, and a retaliation for shootings it was believed were connected to Vinogradsky (including 21 shots fired at Mr. Salazar-Blanco and his friend Sergei Manukian (“Sergei”) on October 31, 2018 while they were in Sergei’s car, and at least one earlier shooting on October 1, 2018, again with multiple shots fired at Sergei while he was in his car with another person).

[4] On the morning following the October 31, 2018 shooting, Mr. Salazar-Blanco flew from Toronto to Costa Rica, the country of his birth and where his mother still had a home. The Crown alleges that, at least in part, the purpose of this trip was to murder Mr. Vinogradsky and that Mr. Salazar-Blanco acquired a firearm in Costa Rica to further that end. That plan was abandoned only when it was later learned that Mr. Vinogradsky was not in Costa Rica, as he had been sighted in Miami.

[5] The defence position is that regardless of what messages Mr. Salazar-Blanco may have sent to the alleged co-conspirators about searching for Mr. Vinogradsky, the Crown has failed to prove beyond a reasonable doubt that Mr. Salazar-Blanco had an actual intention to participate in the alleged scheme.

B. Legal Principles

Conspiracy

[6] The essence of the crime of conspiracy is the agreement to carry out an unlawful act. The Crown must prove beyond a reasonable doubt the following elements of the offence:

(i) an intention to agree; (ii) completion of the agreement; (iii) a common (unlawful) design; (iv) an intention to put the common (unlawful) design into effect. [^1]

[7] Each of these elements must be proven with respect to Mr. Salazar-Blanco. In other words: he must have intended to enter into an agreement; an agreement must have been reached; the objective of the agreement must be unlawful; and he must have intended to put that unlawful design into effect. Each of the co-conspirators’ roles might be different, as is almost invariably the case in a criminal conspiracy.

[8] It does not matter that the criminal act central to the conspiracy was never carried out. The crime is complete upon the agreement itself being reached. Likewise, there is no obligation for the Crown to prove that there were any acts taken in furtherance of the conspiracy. That said, frequently “acts in furtherance” will be important evidence in a conspiracy trial as such acts may “help to establish the core element of the conspiracy – the agreement”. [^2]

[9] It is irrelevant that some aspects of the agreement were not carried out. In particular, a failure to pay a fee promised to one of the conspirators does not undermine the existence of the agreement and is not a defence to a charge of conspiracy. [^3]

[10] However, there must be a genuine intention to agree to carry out the object of the conspiracy. If the accused merely says the words capable of constituting an agreement, but has no intention of actually playing any role in carrying out the agreement, he is not, in law, a party to that conspiracy. Thus, a person who merely pretends to go along with the others without any true intention of following through, is not guilty of conspiracy. In the words of Rand J. in R. v. O’Brien, “Mere words purporting agreement, without an assenting mind to the act proposed are not sufficient.” [^4]

[11] Since O’Brien, there have been many decisions of the Supreme Court of Canada and other Canadian courts upholding the principle that the agreement must be a genuine one and that if one party is only pretending to agree, that party is not guilty of conspiracy. As a corollary, if there are only two parties to a conspiracy and one of them is only pretending to agree, there is no conspiracy at all. United States of America v. Dynar provides a clear illustration of this concept. Following an unsuccessful F.B.I. sting operation, the United States sought the extradition of Mr. Dynar to face various charges in the United States, including conspiracy to launder money. However, the Supreme Court of Canada, referring to its earlier decision in O’Brien, held, “Where one member of a so‑called conspiracy is a police informant who never intends to carry out the common design, there can be no conspiracy involving that person.” [^5]

[12] I agree with and adopt the reasoning of the Saskatchewan Court of Appeal in R. v. Nicholson [^6] in which Jackson J.A. conducts a thorough analysis of the case law on this point and concludes that “pretending to agree” (as opposed to genuine agreement) is a defence to a charge of conspiracy.

Exculpatory Statements

[13] In this case, Mr. Salazar-Blanco gave a long statement to the police. Parts of that statement may be seen as exculpatory. When a statement tendered in evidence contains both inculpatory and exculpatory parts, the exculpatory statements are substantively admissible in favour of the accused. [^7] Such statements are not only capable of being considered for their truth, they may also give rise to whether there is a reasonable doubt as to the guilt of the accused. The usual rules for consideration of the evidence of the accused must be applied. It is not simply a question of whether I believe the exculpatory portion of the statement. Even if I do not, I must consider whether it causes me to have a reasonable doubt. And finally, if the exculpatory portions of the statement do not cause me to have a reasonable doubt, I must still consider whether based on the evidence as a whole, including all aspects of the statement of the accused, the Crown has discharged its onus of proving the guilt of the accused beyond a reasonable doubt. [^8]

C. The Evidence

[14] The evidence in this case can be conveniently grouped into three categories: (1) uncontroverted facts (for the most part, contained in the Agreed Statement of Facts); (2) text messages received and sent by Mr. Salazar-Blanco from the cellphones of two of the alleged co-conspirators, and the inferences that can be drawn from them; and (3) Mr. Salazar-Blanco’s statement to the police (some of which is likely true, some of which is clearly false, and much of which is unclear).

Uncontroverted Evidence

[15] There are five main characters in these events. To avoid confusion, I will refer each of them by the nicknames or abbreviations I have set out in parentheses below.

(1) Mr. Salazar-Blanco (the accused): He is a citizen of Costa Rica and a Permanent Resident of Canada. He has lived in Canada since 2002, having come here with his family when he was about 15 years old. For the most part, he has worked in construction, often concrete work for sidewalks and curbs, and often along with family members. (2) Sergei Manukian (“Sergei”): This man is a friend of the accused. Mr. Salazar-Blanco did some contract work for him, doing construction for medical clinics Sergei was building. He also rented a house from Sergei, where he lived up until the October 2018 shooting. (3) Soheil Rafipour (“Cadi”): He also lived in the same house as Mr. Salazar-Blanco, but apparently in the basement. (4) Girolamo Commisso (“Commisso”): He was generally known by the nickname G or Girolamo. He lived at Ellerslie Avenue in North York and his cell number was 416-317-0408. (5) Alex Yizhak (“Apas”): He lived at an apartment on Bathurst St. in Thornhill and his cell number was 416-274-8195. (6) Alexander Vinogradsky (“Vinogradsky”): the intended victim of the alleged conspiracy to murder. He was involved in the tow truck business.

[16] On October 1, 2018 Sergei and Cadi were seated in Sergei’s BMW when an unknown person shot at the car, riddling it with bullet holes. Both Sergei and Cadi survived. The shooter fled and the case remains unsolved.

[17] On October 31, 2018, Sergei and Mr. Salazar-Blanco were seated in Sergei’s Jeep on Finch Avenue in North York. An Infiniti pulled up next to them and 21 shots were fired into their car. The two suspects in the Infiniti fled the scene, as did Sergei.

[18] On Thursday, November 1, 2018, Mr. Salazar-Blanco flew from Toronto to Costa Rica, arriving in Liberia on the north side of Costa Rica.

[19] Not long after the shooting on October 31, 2018, Sergei was arrested in relation to his conduct after the shooting. He had a court appearance on November 1 and was held in custody until released on bail on November 7, 2018.

[20] As part of a large police investigation known as Project Kraken, which included corruption in the two truck industry, search warrants were executed on the residences of Commisso and Apas. Included in the items seized from those residences were cellphones belonging to both men. It was text messages recovered from those phones that led police to charge Mr. Salazar-Blanco with conspiracy to murder Vinogradsky.

Text Messages and Photographs

[21] Between November 1 and November 22, 2018, both Commisso and Apas exchanged a number of text messages over WhatsApp with a cellphone Mr. Salazar-Blanco eventually admitted was his.

[22] Between 6:22 a.m. and 6:25 a.m. on November 1, Apas and Mr. Salazar-Blanco exchanged a number of text messages in which Mr. Salazar-Blanco advised he was “thru” with “no hiccups”, which I take to be a reference to his having been cleared to board his flight. He said he was departing at 8 and arriving at 12. Mr. Salazar-Blanco’s texts to Apas that morning included one at 6:23:52 in which he said “Love you guys and keep an eye open ima do my best bro I promise” and another at 6:25:32 in which he stated, “You gotta let jefe know and that im gonna need some funds to pay out here for thw monkeys.”

[23] At 12:35:45 p.m. on November 1, Commisso texted “U good?” to Mr. Salazar-Blanco. At 12:41:57, Mr. Salazar-Blanco texted back, “I landed.” At 12:42:07 p.m. Mr. Salazar-Blanco texted Apas that he had landed and immediately asked what had happened in court. Apas provided information about bail proceedings, which are consistent with the situation for Sergei, including that he would be in court again on Tuesday (November 6). At the same time, Mr. Salazar-Blanco was also chatting back and forth with Commisso about the situation with Sergei’s bail. Both Apas and Commisso provided accurate information about the bail proceeding.

[24] At 12:47:40 p.m. Mr. Salazar-Blanco then texted to Commisso, “Just talked to my cuz [cousin] gotta pay the driver to bring him here with the maquina and have to pay that too. He told me don’t go big we go cheap and not that much noise.” Commisso responded asking how much he needed and that he would send it by Western Union. Mr. Salazar-Blanco said he would let Commisso know when he had a concrete number. Commisso then sent a series of messages directing Mr. Salazar-Blanco to keep in touch, let him know if he needed anything, and let him know the number. He then texted “Go check the flights tho returning” to which Mr. Salazar-Blanco immediately responded, “I’m here and not leaving.”

[25] Mr. Salazar-Blanco then texted, “The man gonna need to get paid before the travel here cause their funds are limited to cross country,” followed immediately by “so you might need to western some with short notice.” In his statement to police, Mr. Salazar-Blanco explained this message as referring to the fact that he landed at the airport in Liberia, which was the northern part of Costa Rica, and that his family (including his cousin) lived in the southern part of Costa Rica, a five-hour drive away. Commisso responded that Mr. Salazar-Blanco should let him know how much was needed and he would try to send it through Western Union that day.

[26] Mr. Salazar-Blanco then responded to the earlier portions of this stream of messages stating “Will keep in touch. I’m not moving from the port.” Seconds later, he texted, “I’ll do it with my bare hands if I have to.” They then closed off their communication in a general way.

[27] This entire exchange (from Mr. Salazar-Blanco telling Commisso he had landed, then the reference to the “maquina” coming and the need for funds, and then saying he would do it with his bare hands if he had to) occurred within a space of about 23 minutes. During that same time, Mr. Salazar-Blanco was also exchanging texts with Apas.

[28] At 1:57:17 Mr. Salazar-Blanco texted Apas and asked for the “guy’s full name”. He said he had a “plug” who was “in the system” and who would tell him everything. Mr. Salazar-Blanco also asked for a picture. Apas agreed to provide both.

[29] At 2:01:56 Commisso texted Mr. Salazar-Blanco and asked him if the plug he found was solid, to which Mr. Salazar-Blanco immediately responded “Ya” and said, “They can get me the info”. Commisso replied, “OK, we trying to find correct spelling”. This is a clear reference to the discussion Mr. Salazar-Blanco had already had with Apas about that.

[30] At about the same time, 2:02:30, Mr. Salazar-Blanco texted Commisso that the “piece” would cost $400 American.

[31] At 2:05:26, Apas texted Mr. Salazar-Blanco “Alex or Alexander Vinogradsky”. This was followed about 20 minutes later with two photographs of Alex Vinogradsky. Mr. Salazar-Blanco responded by sending Apas a photograph of the entrance to the airport in Liberia.

[32] Commisso followed up by texting Mr. Salazar-Blanco at 2:16:30, “Apas text correct spelling.” Mr. Salazar-Blanco replied, “I got it bro if he comes by here hes mine.” At 2:27:15, Mr. Salazar-Blanco sent to Commisso the same photograph of the entrance to the airport that he had previously sent Apas. He told Commisso that this was both the entrance and the exit, there was only one way in and one way out. He sent a similar text to Apas.

[33] At 5:12:39 p.m., Mr. Salazar-Blanco texted Commisso a photograph of his outstretched open hand with a handgun lying across it. He then texted, “Its on.” He sent the same photograph to Apas at 5:12:54, followed by the message, “Its on my nigga.”

[34] In a subsequent text to Apas, Mr. Salazar-Blanco said that he had arranged for people to hit the beaches the next day (November 2) but that so far he was unable to find a registration at any hotel for Vinogradsky. He asked for his wife’s name in case the reservation was in her name, but Apas told him that she was still in Toronto. Apart from discussions about Sergei’s bail hearing, there were no further discussions of any substance between Mr. Salazar-Blanco and Apas.

[35] On November 2, Mr. Salazar-Blanco texted Commisso that he was unable to find Vinogradsky. He said he had 30 guys walking around on the beaches, with photos in their hands, and they could not find him. He also said that he had called all the five-star resorts and there was nobody registered under that name. He said he was sitting at the airport watching for Vinogradsky, and also had no luck. He told Commisso that he was going to stay at the airport until the weekend, and keep his guys walking the beaches. On November 3 at 8:39 p.m., Mr. Salazar-Blanco again reported back to Commisso that he had had “no luck”. He also discussed with him what happened at the bail hearing and what was shown on the video footage, including how he might have been implicated.

[36] Finally, Commisso texted on November 3 at 9:00:04 p.m. that he did not believe Vinogradsky was there and that they had a new picture of him in Miami.

Statement to the Police

[37] Mr. Salazar-Blanco’s statement to the police following his arrest covered a period of about four hours. The transcript is 342 pages long. The statement is long, rambling, and often incomprehensible. Much of it seems completely irrelevant to this charge. Mr. Salazar-Blanco speaks English with an accent, has a low, soft voice, and often mumbles. Many parts of the transcript were unintelligible to the transcriptionist, and to me when I listened to the statement. Often, I am unable to discern at all what Mr. Salazar-Blanco is saying; at other times, I can pick out what he is saying and sometimes it is, in my view, inconsistent with what is in the transcript.

[38] Mr. Salazar-Blanco often gave radically inconsistent explanations for things that were put to him, some of which were clearly lies. When confronted with tangible evidence showing the lie, he would often advance another explanation. Often that was also untrue. Many of his explanations were long and convoluted and made no sense at all. This made his story difficult to piece together.

[39] That said, some truths emerge. Eventually, Mr. Salazar-Blanco conceded that the messages on the cellphones of Apas and Commisso were sent and received by him. He also conceded that it was his hand holding the firearm in the photographs sent to Commisso and Apas. Those statements are clearly true.

[40] Early in his statement, Mr. Salazar-Blanco said he decided to go to Costa Rica after shots were fired at him on October 31, 2018. He was fleeing for his life and concerned for the safety of his son. He did not want to continue living in Sergei’s house, who had been targeted at least twice, maybe more. He maintained that he had already purchased his airline ticket for his November 1 departure flight before he was told that Alex Vinogradsky was also going to be in Costa Rica. He said it was just two hours before his flight that he received that information about Vinogradsky.

[41] Mr. Salazar-Blanco said that after the shooting on October 31, he made his way to a friend’s house and a number of people came by to see if he was okay. There would have been, according to him, seven or eight people in the house. He said that these friends gave him varying amounts of money so that he could go home to Costa Rica. He said about $300 of that came from Commisso, Apas gave him $200, some other guys gave him $200 and some $100, one guy gave him $500, and a girl gave him $700. According to Mr. Salazar-Blanco, this is the only money he received from anyone. Although there are references in the text messages to funds being sent by Western Union, Mr. Salazar-Blanco said nothing was ever sent. There is no evidence to the contrary.

[42] Mr. Salazar-Blanco spent most of his statement denying any agreement with Commisso and Apas and denying he sent those texts. Ultimately, however, when he had seen all of these messages and photographs, he admitted to the officer that things “looked bad”. However, he said that nothing he told Commisso and Apas was actually true. He did not have any guys walking the beaches looking for Vinogradsky. He did not stay at the airport and watch to see if Vinogradsky arrived there. He did not have any source at hotels providing him with guestlists. He pointed out that no hotels would give out this kind of information. He eventually conceded that he sent the photograph of a gun in his hand, but said the gun belonged to his cousin. He said he never had any intention of actually looking for Vinogradsky, nor did he ever intend to harm him in any way. He said everything he told Commisso and Apas was a hoax in the hopes of getting money from them. However, he never sent them a message to wire the funds, and they never did.

[43] Mr. Salazar-Blanco said that after spending five months in Costa Rica, he decided (at his mother’s urging) to return to Canada and face the charges against him here. Those charges had nothing to do with the charge of conspiracy to murder Vinogradsky. Indeed, he was on bail with respect to the other charges when he was arrested on this conspiracy charge.

[44] The Crown relies on information provided by Mr. Salazar-Blanco in his statement as evidence of a “multi-faceted” motive for the conspiracy to murder: protection of their interests in the towing business; retaliation against Alex Vinogradsky in relation to the shootings involving Sergei, Cadi and Mr. Salazar-Blanco; and financial gain for Mr. Salazar-Blanco.

[45] Mr. Salazar-Blanco spent considerable time during his interview talking about the relationships and disputes among this group of people. He said that Alex Vinogradsky and Apas had at one time worked together in the tow truck business and that Apas left to work with Sergei in the medical clinic business. He said that at this point Vinogradsky effectively had a monopoly in the tow truck business and also had car dealerships. He said there were disputes between Apas and Vinogradsky about this, with much yelling at each other, and then they would go and have drinks. This apparently went on for a long time back and forth. Mr. Salazar-Blanco himself said that he didn’t follow the arguments. However, he described an incident that occurred “on the 16th” that somehow involved a Durango and a shooting. His incoherent ramblings about this incident are a good illustration of the difficulty in relying too heavily on statements he made in this interview.

Then, it became a little more than what should have happened. Um, on the sixteen, somewhere on the 16th, there’s a shooting at uh, in the, in the back. There was a, a grey Durango that pulled up, us, just that day when, when [Sergei] so the day, just uh….just with another guy. So he’s flinched (ph), whatever, comes in, with Alex inside, comes inside, sees that, uh, [Sergei] is talking to this other guy, which is uh, uh, he comes in and, he sees him, fully stops, reverse. Now, that he sees him, he takes a run, you know, so Alex comes in, almost takes out fucken, uh, [Sergei] on the way ‘cause there’s, you know [UI:01] left side of (ph) his (ph) rounds (ph) doesn’t stop the bullet. Alex pulls out a gun and then shoots him with like with a [UI:03].

[46] Having watched and listened to the recording of the interview, I am unable to improve upon the transcript in any meaningful way. It is largely incomprehensible. However, from a reference made later in the statement, it is possible Mr. Salazar-Blanco is referring to an incident that happened in 2016 rather than “on the 16th”. Also, it is by no means clear whether Mr. Salazar-Blanco is referring to Alex Vinogradsky at this point, as opposed to Apas (Alex Yitzhak), which is a problem throughout the interview.

[47] Mr. Salazar-Blanco referred to things getting worse when Sergei decided to purchase a tow truck dealership. The Crown alleges that this dealership arrangement was between Sergei and Apas and that Mr. Salazar-Blanco rented the dealership. The Crown’s theory is that Vinogradsky caused guns to be planted at the dealership and then contacted the police to report the presence of the guns. The police executed a search warrant, found guns, and Mr. Salazar-Blanco was charged. One of the conditions of his release was that he was not permitted to be on the premises of the dealership. The Crown’s interpretation of this part of the statement is that Mr. Salazar-Blanco was therefore unable to obtain commissions relating to the business, which gave him a direct motive against Vinogradsky even before the October 31, 2018 shooting.

[48] Having listened carefully to the recording of the statement, I am satisfied that Mr. Salazar-Blanco never said that he “rented” the dealership. Rather, he said he “renoe’d” it, meaning he did the renovations. That is consistent with his testimony throughout when he insisted he had nothing to do with the tow truck business and that all he ever did was construction. It is difficult to understand the word that the transcriptionist interpreted as “commission”. I think it might be “conditions”, but the whole section is extremely garbled. I am also unable to conclude from the statement that Apas had become involved again in the tow truck business. The recording is simply too unclear. Mr. Salazar-Blanco does refer to his belief that it was Vinogradsky who tipped off the police about the presence of weapons, but this was after a long, complicated, and incomprehensible story about thefts of truckloads of Nutella and something about weapons being involved and possibly terrorists. On Mr. Salazar-Blanco’s version of these events, there was no way Vinogradsky could possibly know that this had anything to do with Mr. Salazar-Blanco, as he said the guns found by police just happened to be placed on top of some of his personal belongings that he had stored there. Even on Mr. Salazar-Blanco’s convoluted explanation, this had nothing to do with him.

[49] The Crown also refers to Mr. Salazar-Blanco’s description of other shootings, although acknowledging that these descriptions were “vague”. In my view, they are not only vague, but inconsistent with other parts of the statement. I have no way of knowing if they are true.

[50] The Crown alleges that Mr. Salazar-Blanco knew that Cadi had ordered a hit on Vinogradsky, with a reward of $50,000. To illustrate the difficulty of drawing that conclusion, I set out below the transcript of what Mr. Salazar-Blanco said about this. Having listened to it, I am unable to understand it any better than is captured in this portion of the transcript:

You know, after, after, that, that, incident 2016…they have [UI:01] you know. And uh, uh, you know, he said, yo (ph) Alex goes, he’s a tow uh, a tow (ph) dealer (ph) few trucks. You know, if you, then he’s like, you know, “I’ll give you $150,000 for [UI:01] pay [UI:01] this hundred and fifty.” Guys, you made it like this guy’s money. “Look, he’s my homeboy. He’s like my brother. He’s helping me. You think I’m just gonna like – if he dies, if you shot him, I mean, you and I…” Uh, he’s like his son. So, he’s like, yeah, he’s like, so it’s real; right, he owes that money. You haven’t spoken (ph) to (ph) him (ph). He’s like, “Yeah, yeah.” He’s like, “Nothing, $2000, put it your hand right now.” He’s said, “Okay, no problem.” He said, “I’ll put three times the amount.” He’s like, “Yeah, he said he’ll pay me a hundred (ph) thousand dollar an offer (ph) [UI:01] hundred (ph) thousand, yeah.” So Cadi’s like, “No problem.” He’s like, “Let’s go, it’s on”, you know. The guy, Tuggy (ph) was there asking him [UI:01] I know nothing about this some charges….

Like I’m no trying to get into no problems. He’s like, I was in the car when this – you know ‘cause like the way uh, uh, Cadi was fucken making it sound, I [^9] was scared more.

Alex is a [UI:03] I was sitting in the car because no more problems and just like, I’m sorry to say as if I got problems of my own, so whenever uh, Serge comes, he [UI:01]. He wasn’t in the car anyways.

And, uh, he became, the person he put, a, a, bullseye, trying to make a bullseye, trying to un, Cadi and Alex, you know, Alex say he was gonna give him a hundred (ph) fifty (ph) thousand dollars in Cadi’s hand.

And Cadi say, “Yeah, fifty (ph) thousand hm, for Alex’s hit.” Obviously, the guy never went through with it because that was not his money. He said that was something like, $7000 and then he, uh uh, I’m pretty sure, I can almost be certain that money was to buy his uh, girlfriend’s, uh ring so he could propose to her. [^10]

[51] From this, the Crown concludes that the various shootings described by Mr. Salazar-Blanco pushed the tow truck dispute to an extreme level of hostility and that when Cadi’s response to the heightened aggression was to say, “Let’s go, it’s on”, this caused Mr. Salazar-Blanco to be fearful. Further, the Crown’s theory is that Mr. Salazar-Blanco knew that Cadi had put a “hit” on Vinogradsky with an offered reward of $50,000 and Mr. Salazar-Blanco believed this would move the target of the previous shootings from Sergei to Vinogradsky.

D. Analysis

[52] If I believe those portions of Mr. Salazar-Blanco’s statement in which he maintains that he never intended to participate in a plan to kill Vinogradsky and was merely pretending to be going along with it, that would be a complete defence to the charge of conspiracy to commit murder.

[53] I find Mr. Salazar-Blanco to be a completely unbelievable witness. For purposes of illustration, I will focus on what he said in the course of his police statement about his acquisition of a firearm upon arrival in Costa Rico.

[54] Det. Van Allen (who conducted the interview) asked Mr. Salazar-Blanco about a reference in one of his text messages to a “maquina” and suggested that, based on Google translate, this was a Spanish word meaning “machine”. At first, he agreed with her that the word meant “machine”. When the officer then asked what he was referring to, he responded, “I think it was about a tool. I don’t even remember what it was to be honest.” He then claimed that there must be portions missing from the text messages. [^11] Det. Van Allen then directed him to the portion of the text message that referred to the “maquina” and the advice “Don’t go big, we go small, cheap, and not that much noise.” She suggested to Mr. Salazar-Blanco that the only thing that made sense was that this was a reference to a gun. Mr. Salazar-Blanco denied this, and then wandered off onto a tangent about how he grew up poor in Costa Rica, but that his whole family was hard-working and not engaged in any criminal activity. He told a story about his cousin who had been charged with an offence when his taxi had been used in a bank robbery, but was then released because the police found him to be innocent because he had been kidnapped by the bank robbers and tied up and left in the back seat. Det. Van Allen steered him back on point and asked him if he had acquired the handgun for protection, to which he answered, “No.” [^12]

[55] He then went on to explain that he had gone through the process to get a permit to carry a gun in Costa Rica but that he had never bought a gun because his mother did not like guns and they lived in a safe area. This rambling narrative continued for 13 pages of the transcript. [^13] After this, Mr. Salazar-Blanco acknowledged that he was referring in the transcript to some type of “machine” but said that, “You know, whatever we were talking about it, right now, I can’t tell you, I smoked so much weed that uh,uh, I can’t tell you if it was a machine we were talking about.” [^14]

[56] Det. Van Allen then interjected again with her theory that what was being referred to was a gun and that Commisso was going to send the money for the gun to Mr. Salazar-Blanco by Western Union.

[57] Mr. Salazar-Blanco then claimed to suddenly remember what the “maquina” conversation was about. He said “maquina” referred to a car. [^15] Det. Van Allen put to him that this made no sense in light of the reference to wanting the maquina to be small, cheap and to not make much noise. Mr. Salazar-Blanco’s explanation for that was to return to his previous position that there were things missing from the transcript of the text messages. Det. Van Allen pointed out the purchase price of $400. He continued to deny it was about a gun. Then Det. Van Allen showed him the picture he texted to both Commisso and Apas of a handgun sitting in his outstretched palm. At first, he was reluctant to admit this was a picture of his hand, but then conceded it was when the officer pointed out the distinctive nature of the tattoo on his arm, which can clearly be seen in the photograph. Finally, he admitted that it was his hand, but said it was his cousin’s gun and that it was legal. [^16] He denied that he was trying to buy a gun, giving an elaborate explanation of what is required to purchase a gun in Costa Rica. This included a statement (almost in passing) that in fact it was his Dad’s, followed by what seems to be an unconnected and incomprehensible story about how, when he was 14 years old, he was robbed at gunpoint by a member of a gang and during the struggle the robber’s gun went off, killing the robber. Mr. Salazar-Blanco said he was charged and went to trial, but was found innocent because it was self-defence. [^17] He then said that it was because of this problem from when he was 14 that he had asked his cousin to bring something so that he could feel safe. [^18] It was not long after this exchange that Mr. Salazar-Blanco accepted that the text messages “looked bad” for him and said that he had no intention of doing any of the things he told Commisso and Apas he was doing, whether it was hurting Vinogradsky or even searching for him. He said he was merely bluffing the whole time.

[58] These varying versions of the “truth” about the gun are not the only examples of Mr. Salazar-Blanco’s complete lack of credibility. He told lies about almost everything. His dishonesty, in the words of the Crown, “permeates the entirety of the statement.” The Crown made that assertion in relation to a submission that I should disbelieve all of Mr. Salazar-Blanco’s exculpatory statements as being entirely lacking in credibility. I agree. I would not believe anything Mr. Salazar-Blanco said simply because he said it. However, the test is not whether I believe Mr. Salazar-Blanco; the test, at the second stage of the W.D. analysis, is whether this evidence causes me to have a reasonable doubt as to his guilt. Further, even if I did not have a reasonable doubt as a result of his statement, I would have to consider whether, on the basis of the whole of the evidence including his statement, the Crown has proven his guilt beyond a reasonable doubt.

[59] The difficulty here is that I do not find anything Mr. Salazar-Blanco said to be credible or reliable unless there is some independent source of corroboration. I agree with the Crown’s position that many of his exculpatory statements were clearly untrue. However, in my view, Mr. Salazar-Blanco’s dishonesty permeates the entire statement, both inculpatory and exculpatory. For example, his accounts of disputes in the tow truck industry and hits put on people by other people are no more likely to be truthful than his statement that “maquina” referred to a tool or a car.

[60] It is not necessary for the Crown to prove motive in order to establish guilt. However, if motive can be shown, that would be of considerable assistance in determining whether Mr. Salazar-Blanco was a participant in the scheme.

[61] I have no reason to believe that Mr. Salazar-Blanco would have any firsthand knowledge of disputes within the tow truck industry. There is no evidence that places him within that industry and no evidence to show close connections between him and any of the other participants. It could easily be the case that Mr. Salazar-Blanco’s accounts of these disputes and relationships is based on wild, unsubstantiated rumours. It could also be the case that he has simply invented this information. Or, perhaps it is true. However, none of what he said can be relied upon for its truth with any degree of comfort.

[62] The only potential evidence of motive comes from Mr. Salazar-Blanco’s statement to the police, which is not reliable. It follows that I have no reliable evidence as to why Mr. Salazar-Blanco would want to kill Vinogradsky. He does not appear to have a personal grievance against Vinogradsky sufficient to support such an intention. He was not the target of the shooting on October 31, 2018, although he certainly was endangered by it. Mr. Salazar-Blanco seemed to be genuinely fearful for his safety, and wanted to get away from the scene of these shootings. However, I accept that if this fear was genuine, it would be surprising for him to go to Costa Rica after knowing that Vinogradsky was there. On the other hand, he also does not seem to be a likely person to be a hitman for hire. There is certainly no evidence that when Vinogradsky was spotted in Florida, the others expected Mr. Salazar-Blanco to go after him there. That suggests to me that Mr. Salazar-Blanco’s role in this arrangement was opportunistic. He happened to be from Costa Rica and was going to Costa Rica at the same time that others involved received information that Vinogradsky was also going to be in that country.

[63] There is no evidence that Mr. Salazar-Blanco received payment for any services he rendered. There was discussion in the text messages about him being reimbursed for expenses, but no text messages from Mr. Salazar-Blanco about the amount to be paid. The only evidence at all of Mr. Salazar-Blanco receiving payments is in his own statement when he said various people chipped in a few hundred dollars each to pay for his trip to Costa Rica. There is insufficient evidence to support a “murder-for-hire” theory.

[64] There are some aspects of the alleged conspiracy that I find to be solidly confirmed by the evidence. I am satisfied beyond a reasonable doubt that Mr. Salazar-Blanco had some discussions with both Commisso and Apas before he left Canada for Costa Rica, and that those conversations involved him going after Vinogradsky. There is no other rational explanation for the content of the text messages back and forth other than that both Apas and Commisso believed Mr. Salazar-Blanco was going to search out Vinogradsky in Costa Rica and shoot him. It is also clear that upon arrival in Costa Rica, Mr. Salazar-Blanco acquired a firearm. In the photographs he sent of the gun in his hand, it is clear that the gun was loaded. For me, the difficult issue is not whether there was a conspiracy to find and kill Mr. Vinogradsky or whether (based on the limited evidence before me) the other conspirators believed Mr. Salazar-Blanco was doing exactly that. The text messages, together with eventual admissions by Mr. Salazar-Blanco consistent with those messages, satisfy me of that beyond a reasonable doubt.

[65] Rather, the difficulty I have is in determining whether Mr. Salazar-Blanco was a true participant in the conspiracy, as opposed to merely pretending to go along with the others. On this issue, I have Mr. Salazar-Blanco’s statement to police that he never intended to look for, or do any harm to, Vinogradsky and that he was bluffing when he sent text messages to Commisso and Apas suggesting the contrary.

[66] The Crown submits that I should reject those statements as untrue. I agree that Mr. Salazar-Blanco is not credible. His statements alone are not sufficient to convince me he is telling the truth. The issue, however, is whether I have a reasonable doubt as to his intention.

[67] As I have already stated above, it is not necessary for the Crown to prove acts in furtherance of the conspiracy. However, where there are acts undertaken that are designed to advance the objects of the conspiracy, this can be corroborative evidence that the person who undertook those acts was an active and intentional participant in the conspiracy. The Crown points to numerous actions by Mr. Salazar-Blanco as demonstrating he was an active participant in the conspiracy, fully intent on carrying it into effect, as follows:

(a) He traveled to Costa Rica immediately after being shot at and learning that Vinogradsky was in Costa Rica; (b) He received money from various people to cover his cost of going to Costa Rica; (c) He confirmed to Commisso and Apas that he had arrived; (d) He acquired a handgun, and sent a photograph of it to Commisso and Apas; (e) He was watching the entrance/exit of the airport in Liberia and told Commisso and Apas that there was only one way in and out, sending a photograph to confirm that; (f) He remained in a very expensive resort area on the north side of Costa Rica for three days looking for Vinogradsky, despite the fact that he had limited funds and his mother lived in the southern part of the country; (g) He arranged to have his cousin travel a long distance to provide him with a firearm; (h) He obtained from Apas the correct spelling of Vinogradsky’s name and photographs of him; (i) He made calls to the hotels looking to see if Vinogradsky was registered anywhere; (j) He had a “plug” providing him with information (although it is not clear to me whether this was someone at the airport or someone in the hotel management business) (k) He hired 30 men to walk the beaches in the area with photographs of Vinogradsky looking for him; and, (l) He reported back to Commisso and Apas regularly as to his progress.

[68] I will deal with each of these points in the same order as set out above.

(a) Mr. Salazar-Blanco did travel to Costa Rica immediately after the shooting, but there is no evidence that he booked that flight because Vinogradsky was there. The evidence is equally consistent with him deciding to go to Costa Rica because of concerns for his safety and that he did not learn about Vinogradsky being there until after his own flight was booked. (b) The only evidence of money being paid to Mr. Salazar-Blanco to cover the cost of his trip comes what he told the police, and there is nothing to support a theory that these were substantial payments, or that members of the conspiracy gave more than other friends. (c) He did confirm to Commisso and Apas that he had arrived in Costa Rica, but it is apparent from the texts that such communication was expected and it is equally consistent that he was merely doing what he needed to do to appease them. (d) He did acquire a handgun. That says nothing about why he acquired the gun. Although there were discussions about Commisso covering the cost of the gun by a transfer through Western Union, there were no text messages about that actually being done. Mr. Salazar-Blanco said that he neither asked for nor received any money from Commisso or Apas after arriving in Costa Rica. There is no evidence to the contrary. (e) He did send photographs of the airport and said there was only one way in and out and that he was watching that entrance. Apart from the text messages, there is nothing to confirm that he was in fact watching the airport, and nothing to confirm that there was only one entrance/exit. In other parts of his statement to the police he said this was a lie and there are other entrances. Also, it is hard to see how one person could watch an entrance constantly for three days without attracting unwanted attention. (f) There is no evidence that he actually did stay in the north area of Costa Rica during this period; there is only evidence that this is what he told Commisso and Apas. (g) He may or may not have obtained the gun from his cousin. If all he did was take a picture of his hand holding the gun and send it to the others, that is equally consistent with a bluff as with an intention to use the gun. (h) He did obtain the proper name and photographs of Vinogradsky. Again, that is equally consistent with the bluff as with having a true intention to follow through with the object of the conspiracy. (i) There is no evidence that he called hotels seeking to find out if Vinogradsky was registered there. It is unlikely that hotels would give out such information over the phone to a stranger, as Mr. Salazar-Blanco himself pointed out in the course of his police statement. (j) There is no evidence that Mr. Salazar-Blanco actually had a source who was providing him with information. He had very little contact with Costa Rica since he was 15 years old, and his family did not live in the same area of the country. It is unclear how he would acquire an unauthorized source of information so quickly. (k) There is no evidence that Mr. Salazar-Blanco actually made 30 photocopies of the photographs of Vinogradsky and distributed them to 30 guys who proceeded to comb the beaches of the resorts in this area looking for Vinogradsky. There are only Mr. Salazar-Blanco’s texts to the others to suggest he ever did such a thing. He denied the truth of that during his police statement, and it seems implausible that he would have been able to do this. There is no evidence that the cost of such an undertaking was ever paid for, or even that Mr. Salazar-Blanco asked for such compensation. (l) Mr. Salazar-Blanco did report regularly to Commisso and Apas up to the point when they told him that Vinogradsky had been spotted in Miami. This reporting is equally consistent with Mr. Salazar-Blanco pretending to play along as with him being a participant in the conspiracy.

[69] There is no direct evidence that Mr. Salazar-Blanco intended to carry out the conspiracy’s objective of finding and killing Vinogradsky. The only direct evidence as to Mr. Salazar-Blanco’s intention is his statement to the police that he never intended to go through with it but rather was bluffing the whole time. Given Mr. Salazar-Blanco’s utter lack of credibility, my inquiry does not end there. However, while I do not necessarily believe what Mr. Salazar-Blanco said about bluffing, I find it to be plausible. Given that he may never have extracted any payment from his co-conspirators, and their inability to know what he was actually doing in Costa Rica, his bluff was not so potentially dangerous to him as to make it incapable of belief. Based on the exculpatory statements made by Mr. Salazar-Blanco, I am left with a reasonable doubt as to whether he had a true intention to carry out the object of this conspiracy.

[70] If I had proceeded to the third stage of the W.D. analysis, I would have reached the same conclusion. I reject the only direct evidence as to intention (Mr. Salazar-Blanco’s denial) as unreliable. However, there is no evidence that Mr. Salazar-Blanco did anything concrete to further the objective of the conspiracy, regardless of what he told others at the time. Weighing all of the evidence, there is a rational, reasonable, plausible explanation for all of the circumstantial evidence that is inconsistent with Mr. Salazar-Blanco’s guilt. The evidence is consistent with Mr. Salazar-Blanco merely telling the other members of the conspiracy that he would carry through with the plan, without having any true intention of committing murder. Everything he did and said could have been because he was afraid to tell the others involved that he would have nothing to do with their plot and instead played along, pretending to carry out his role without ever actually doing it, and without ever actually intending to do it. I am unable to rule out that possibility on the evidence before me. That same evidence is also consistent with Mr. Salazar-Blanco playing along with the conspiracy as a ruse to get money out of the co-conspirators, although there is no evidence that he ever requested or received any money. It is also reasonably possible on this evidence that Mr. Salazar-Blanco was a full participant in the conspiracy with every intention of carrying out the murder, thwarted only by the inability to find Vinogradsky. Indeed, that might even be the most compelling inference. However, before I can draw such an inference, I must be satisfied that it is the only reasonable conclusion available based on the whole of the evidence. It is not. It is also reasonably possible Mr. Salazar-Blanco was lying to his associates and only pretending to be part of the plan. That being so, I cannot draw the inference consistent with guilt. [^19]

E. Conclusion

[71] Accordingly, I find Mr. Salazar-Blanco not guilty on the charge of conspiracy to commit murder.

Molloy J. Released: February 22, 2022

Footnotes

[^1]: R. v. Root, 2008 ONCA 869 at para. 66. [^2]: Ibid, at para. 67, and cases referred to therein. [^3]: Ibid, at para. 78. [^4]: R. v. O’Brien, [1954] S.C.R. 666 at 670. [^5]: United States of America v. Dynar, [1996] 2 S.C.R. 462 at para. 88. [^6]: R. v. Nicholson, 2018 SKCA 62, in particular at paras. 30-45. [^7]: R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111 at para. 37. [^8]: R. v. W.(D.), [1991] 1 S.C.R. 742 (“W.D.”). [^9]: Defence counsel submits that the transcript is in error here, and that this reference is to Cadi being more scared and not Mr. Salazar-Blanco. That is an equally possible interpretation. [^10]: Transcript of Statement dated September 25, 2018 at pp. 282-283. [^11]: Exhibit 8A, Transcript of Statement to Police, pp. 198-199 [^12]: Ibid, p.213. [^13]: Ibid, pp. 205-217 [^14]: Ibid, p. 218. [^15]: Ibid, p. 220. [^16]: Ibid, p. 232 [^17]: Ibid, pp.232-242 [^18]: Ibid, p. 243. [^19]: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 at paras. 35-43; R. v. Nicholson, 2018 SKCA 62, at paras. 25-105.