NEWMARKET COURT FILE NO.: CR-23-00001-00

DATE: 20240223

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ADAM LUANGPHASI and ALEXANDER LE

Defendants

F. Alibhai, K. Yeh and S. Malik, for the Crown

A. Gerges and J. Vamadevan, for the Defendant, Adam Luangphasi

C. Tarach, for the Defendant, Alexander Le

HEARD: September 12, 14, 15, 18, 19, 20, 21, 22, 25, 26, 28, 29, October 3, 4, 6, 10, 11, 12 & 13, 2023

REASONS FOR DECISION

I. Overview.. 2

II. Nature of the Offences Alleged. 2

A. Conspiracy to Import – Carpet Scheme. 2

B. General Conspiracy to Import 3

C. Criminal Organization. 3

D. Conspiracy to Import – Plane Conspiracy. 3

E. Marijuana Exportation. 3

F. Proceeds of Crime. 3

III. Presumption of Innocence and Burden of Proof. 4

IV. Evidence. 4

A. Assessment of Evidence. 5

B. Admissions. 5

C. Co-Actors’ Exception to the Hearsay Rule. 6

D. Circumstantial Evidence. 6

V. Position of the Parties. 6

A. Crown. 6

B. Mr. Luangphasi 7

C. Mr. Le. 7

VI. Analysis. 8

A. Law Relating to the Conspiracy Counts. 8

B. Count 1: Conspiracy to Traffic Cocaine between December 16, 2020, and May 11, 2021 11

C. Count 2: Conspiracy to Import Cocaine. 22

D. Count 3: Conspiracy to Produce Cocaine. 23

E. Count 5: Conspiracy to Import Cocaine Between May 19, 2021 and July 7, 2021 (the Alleged Guyana Conspiracy) 25

F. Count 7: Conspiracy to Import Cocaine: the Alleged Plane Conspiracy. 33

G. Count 6: Criminal Organization. 37

H. Count 17: Proceeds of Crime. 42

VII. Conclusion. 42

S.E. FRASER, J.:

I. Overview

[1] Mr. Adam Luangphasi and Mr. Alexander Le were arrested as part of a large investigation by the York Regional Police and the Ontario Provincial Police labelled “Project Southam”. A number of persons were arrested in connection with that investigation. Five accused originally appeared on this indictment. At the outset of these proceedings, I severed three other accused from the indictment to be tried separately for different reasons.

[2] Subsequently, a number of counts on the indictment were withdrawn. I will address the remaining counts.

[3] Arising out of the significant surveillance connected to this investigation, the evidence in this proceeding consisted of volumes of wiretaps taken from cellphones and vehicle probes, including those placed in Mr. Luangphasi’s vehicle and that of other unindicted co-conspirators, many of whom are named in separate indictments.

II. Nature of the Offences Alleged

A. Conspiracy to Import – Carpet Scheme

[4] Counts 1, 2 and 3 allege conspiracy to traffic, a conspiracy to import and a conspiracy to produce cocaine between December 16, 2020 and May 11, 2021. It is alleged that this occurred through the importation of carpet and the extraction of the cocaine from the carpet.

[5] Count 1 on the indictment alleges that Mr. Luangphasi and Mr. Le conspired to traffic cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act (CDSA), thereby committing an offence contrary to s. 465(1)(c) of the Criminal Code.

[6] Count 2 alleges that Mr. Luangphasi and Mr. Le conspired to import cocaine contrary to s. 6 of the CDSA, thereby committing an offence contrary to s. 465(1)(c) of the Criminal Code.

[7] Count 3 alleges that Mr. Luangphasi conspired to unlawfully produce cocaine, contrary to s. 7(1) of the CDSA, thereby committing an offence contrary to s. 465(1)(c) of the Criminal Code.

B. General Conspiracy to Import

[8] With respect to Count 5, the Crown alleges that between May 19, 2021 and July 7, 2021, Mr. Luangphasi and Mr. Le conspired to import 40kg of cocaine from Guyana contrary to s. 6 of the CDSA, thereby committing an offence contrary to s. 465(1)(c) of the Criminal Code.

C. Criminal Organization

[9] Count 6 alleges that these accused participated in a criminal organization for the purpose of enhancing the ability of the organization to commit the indictable offence of importing a controlled substance contrary to s. 6(1) of the CDSA, thereby committing an offence contrary to s. 467.11 of the Criminal Code.

D. Conspiracy to Import – Plane Conspiracy

[10] With respect to Count 7, the Crown alleges that between June 9 and July 7, 2021, Mr. Luangphasi conspired with two of the persons severed from this indictment to import cocaine contrary to s. 6 of the CDSA.

E. Marijuana Exportation

[11] On September 25, 2023, Mr. Le pleaded guilty to Count 16, a charge of conspiracy to export cannabis from Canada contrary to s. 11(1) of the Cannabis Act, thereby committing an offence contrary to s. 465(1)(c) of the Criminal Code.

F. Proceeds of Crime

[12] Count 17 alleges that Mr. Luangphasi possessed proceeds of crime exceeding $5,000.00 contrary to s. 355(a) of the Criminal Code.

III. Presumption of Innocence and Burden of Proof

[13] Mr. Luangphasi and Mr. Le are presumed innocent. They have nothing to prove. The presumption of innocence remains with them unless the Crown, through the evidence tendered at trial, satisfies me beyond a reasonable doubt that they are guilty.

[14] A reasonable doubt is not an imaginary or frivolous doubt. It is not based on sympathy for or prejudice against anyone involved in the proceedings. Rather, it is based on reason and common sense. It is a doubt that arises logically from the evidence or from an absence of evidence.

[15] The Crown is not required to prove anything to an absolute certainty. However, I need to be sure that the Defendants are guilty to displace the presumption of innocence. Probably guilty or likely guilty is insufficient. If I conclude that either of the Defendants is probably or likely guilty but I am not satisfied beyond a reasonable doubt, I must make a finding of not guilty.

IV. Evidence

[16] The evidence in this proceeding consisted of several volumes of intercepted communications from the wiretaps of cellphones and vehicle probes. Transcripts of these communications were also produced as an aid. All of the recordings were played in Court.

[17] The recorded intercepted communications present some challenges. First, they are of variable quality. Second, the participants use coded language. To that end, the Crown called Cpl. Rodney MacIntyre who I qualified as an expert to give opinion evidence. I permitted him to give opinion evidence on pricing, the nature and hierarchy of the drug trade, language and jargon, different means of importation, and common ingredients found in cocaine.

[18] Cpl. MacIntyre interpreted several intercepts. The Crown says that I can use his opinion of these intercepts essentially to decode other intercepts which were not the subject of his expert opinion. The Crown submits that I can also use his opinion on the pricing of drugs to identify the drug being discussed. The Defence submits that Cpl. MacIntyre testified that in understanding the coded language used, context is everything. It follows that I should be concerned that, given the limited number of intercepts reviewed by him, I do not have the necessary context to apply his analysis across the intercepted communications. I have considered this and where I apply his analysis of the coded language made in one intercept to another, it is because I find the I have the necessary context to do so.

[19] The Court heard from many officers who conducted surveillance of Mr. Luangphasi and Mr. Le as well as others said to be unindicted co-conspirators.

[20] The Crown does not have to prove the identity of the unindicted co-conspirators beyond a reasonable doubt. Several times in the playing of the intercepts there is reference to B and R. The Crown asserts that they are Basil Dixon and Nathan Brown respectively. This is relevant to the issue of conspiracy and criminal organization, and I will address this further in these Reasons.

[21] There are several intercepts from Guido Aguilar’s vehicle. The Crown asserts that those are between Mr. Aguilar and Mr. Luangphasi. As I have said above, I am able to conclude that Mr. Luangphasi is a participant in those intercepted communications.

[22] Search warrants were executed as part of this investigation. On April 9, 2021, police executed a search warrant at 99 Quail Valley in Markham, Ontario and located what is alleged to be a clandestine drug lab. On July 7, 2021, large sums of cash were seized at the home of Mr. Luangphasi and large amounts of illegal drugs were seized at the home and storage locker of Charlie Walters, an alleged unindicted co-conspirator and alleged member of the alleged criminal organization.

[23] I will expand on this evidence as I assess each of the Counts.

A. Assessment of Evidence

[24] In assessing the testimony of a witness, I must examine the credibility and the reliability of the witness. Credibility is about the honesty and integrity of the witness. Reliability is about the accuracy of the witness’s testimony. A witness who is not credible cannot be relied on. However, a witness who is credible is not necessarily reliable: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514, at p. 526 (C.A.).

[25] By way of overview, the Crown placed before me a large record in the form of wiretap recordings and transcripts of the wiretaps. The investigation also yielded significant surveillance and the Court heard from the officers who conducted the surveillance and received photographs and video evidence. These in turn corresponded to the intercepts such that, if admissible against these two accused, a detailed picture of their movements and conversations would be available.

[26] There is an issue with respect to the admissibility of the some of the intercepts as they are hearsay. This will be addressed later in this decision.

[27] There are three other issues with the intercepts. First, the parties to the conversations use coded language. Second, the quality of the intercepts is variable. This will have an impact on what I can discern from them. Third, in some cases, the wiretaps were in another language and no interpretation was offered except through the transcripts, which were tendered as an aid only. I am unable therefore to rely on the Spanish intercepts.

B. Admissions

[28] A number of general admissions were made under s. 655 of the Criminal Code. Identity and jurisdiction were admitted. The authenticity, continuity and accuracy of the JSI software, session history reports and transcripts of the intercepted calls, including date, time, telephone numbers, directionality and duration were admitted, subject to objections made by counsel to specific intercepts and the finding of fact made with respect to those intercepts.

[29] The parties admitted for the purposes of trial, that there was no issue with the results of the Production Orders, the Subscriber Information, and the LBS Data.

[30] While voice identification was in issue at the outset of the trial, on September 25, 2023, Mr. Le admitted voice identification specifically as it relates to his voice. During submissions, Mr. Luangphasi conceded that there is no issue that the voices in the vehicle and telephone numbers associated with him were indeed his voice. I note that I did receive and assess voice identification evidence, which together with the corresponding surveillance, proves beyond a reasonable doubt that the voice identified as Mr. Luangphasi’s elsewhere, is his voice.

C. Co-Actors’ Exception to the Hearsay Rule

[31] I have heard evidence of statements made out-of-court by Mr. Luangphasi and Mr. Le and other alleged unindicted co-conspirators, or alleged participants in the conspiracy alleged. I note that two general rules apply to those out-of-court statements:

a. an out-of-court statement by anyone other than a person charged is not evidence of the truth of its contents; and

b. an out-of-court statement made by a person charged may only be considered as evidence in relation to that person.

[32] However, there is an exception to those two general rules known as the co-actors’/co-conspirators’ exception to the hearsay rule. I will set out and apply the rule when dealing with the conspiracy/common design counts.

D. Circumstantial Evidence

[33] In R. v. Villaroman, 2016 SCC 33, the Supreme Court of Canada set out at para. 35 how to assess circumstantial evidence. First, when assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. If there is a reasonable inference other than guilt, the Crown has not proven its case beyond a reasonable doubt.

[34] I must also assess other plausible theories and reasonable possibilities that are inconsistent with guilt. These must be based on logic and experience applied to the evidence or absence of the evidence, not on speculation. See: R. v. Villaroman, supra, at para. 36. The basic question is “whether the circumstantial evidence, viewed logically and in the light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”. See: R. v. Villaroman, supra, at para. 38.

V. Position of the Parties

A. Crown

[35] The Crown submits that the intercepts are admissible as against both Mr. Luangphasi and Mr. Le applying the co-actor’s exception to the hearsay rule. Further the Crown asserts that I may use expert evidence to interpret coded language in the wiretaps, in essence, to decode them and that the Crown has proven each element of the conspiracies including the substance particularized in the conspiracy counts.

[36] The Crown also submits that the intercepts demonstrate that the accused were involved in a criminal organization and that the elements of the offence have been made out beyond a reasonable doubt.

B. Mr. Luangphasi

[37] Mr. Luangphasi asserts that I should be left with reasonable doubt on all counts. With respect to Counts 1, 2 and 3, he states that he was not a part of a conspiracy to import, that there was no conspiracy to traffic and that he was not involved with the production of cocaine as alleged. With respect to Count 5, he argues that the Crown has proven neither the conspiracy to import nor the particularized substance beyond a reasonable doubt. With respect to Count 7, Mr. Luangphasi submits that no agreement has been proven and that I should be left with reasonable doubt with respect to the substance. Finally, he asserts that the Crown has proven neither the existence of a criminal organization nor that he possessed proceeds of crime.

C. Mr. Le

[38] With respect to Counts 1 and 2, Mr. Le asserts that he is not a member to any particularized conspiracy. With respect to criminal organization, Mr. Le argues that there was no organization and therefore he did not participate in one.

[39] He notes that there is no evidence linking him to the drugs seized at Charlie Walters or Jefferson Diaz-Parra’s residence. Mr. Le states that there is no evidence that he met with any of Hans Lauro, Nathan Brown, Basil Dixon, Owen Vogelson, Guido Aguilar or Giedrius Kesminas. There are no intercepts where Mr. Le spoke with any of them, despite close surveillance.

[40] He asserts that Cpl. MacIntyre testified only to a few intercepts and that he acknowledged that context is everything in interpreting the language used and that the requisite context does not support the charges.

[41] He asserts that the conversations between Mr. Le at most demonstrated that they were associates, but that the evidence does not demonstrate that he was a member of a criminal organization.

[42] He pleaded guilty to Count 16 which relates to a June 15, 2021 date and he was absent from the meeting that Mr. Luangphasi had with Mr. Kesminas on June 16, 2021.

[43] He states that there are other reasonable inferences available to me on the evidence and that if other reasonable inferences are available, then the Crown’s case has not been proven beyond a reasonable doubt.

VI. Analysis

A. Law Relating to the Conspiracy Counts

[44] I begin with the law of conspiracy and then apply the facts to the individual conspiracy counts in the indictment.

(i) Law of Conspiracy

[45] Section 465(1)(c) of the Criminal Code provides:

465 (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:

(c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable.

[46] A conspiracy is an agreement between two or more persons to commit an offence. To establish the guilt of either accused for any of the counts of conspiracy, the Crown must prove, beyond a reasonable doubt, that:

a. There was a conspiracy between two or more persons;

b. The conspiracy was to commit the offence identified in the indictment; and

c. The accused was a member of that conspiracy.

[47] Justice Boswell recently reviewed the law of conspiracy in R. v. Kesminas, 2024 ONSC 666, at paras. 35 – 40:

A conspiracy is an agreement between at least two people to commit a crime. The agreement itself is the gist of the offence. See R. v. Papalia, 1979 CanLII 38 (SCC), [1979] 2 S.C.R. 256 at p. 276. The actus reus “is established upon proof of the agreement to commit the predicate offence.” See R. v. Root, 2008 ONCA 869 at para. 67.

As Doherty J.A. said in R. v. Alexander (2005), 2005 CanLII 32566 (ON CA), 206 C.C.C. (3d) 233 (Ont. C.A.) at para 46,

The actus reus of the crime of conspiracy lies in the formation of an agreement, tacit or express, between two or more individuals, to act together in pursuit of a mutual criminal objective. Co-conspirators share a common goal borne out of a meeting of the minds whereby each agrees to act together with the other to achieve a common goal.

Mere knowledge of, discussion of, or acquiescence in a plan of criminal conduct is not, on its own, sufficient to make out conspiracy. The accused must be shown to have agreed with one or more others to commit the predicate offence. See R. v. McNamara et. al. (No. 1) (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 at p. 452

While a conspiracy must involve more than one person, it is not necessary that all conspirators be identified or even be capable of identification. See United States of America v. Dynar, 1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462 at para. 88.

The central question in conspiracy cases is not what acts were done in furtherance of the conspiracy but whether there was a common agreement to which those acts are referable. That said, an examination of what was done may help establish the existence of the agreement. Again, see Root, at para. 67.

The mens rea of the offence of conspiracy involves the intention to put the common design into effect. See Dynar at para. 86. In other words, the goal of the agreement – the commission of the substantive offence – is part of the mens rea of the offence of conspiracy. See Dynar, at para. 103.

[48] I adopt and apply those principles here.

[49] With respect to knowledge, in R. v. Root, 2008 ONCA 869, [2008] O.J. No. 5214 (Ont. C.A.), leave to appeal to SCC refused [2009] S.C.C.A. No. 282, the Court of Appeal for Ontario stated at para. 68:

It is trite that the roles of individual conspirators may differ widely. The participants need not know each other, nor need they communicate directly with one another. Each need not know the details of the common scheme, though each must be aware of the general nature of the common design and be an adherent to it. R. v. Longworth (1982), 1982 CanLII 3764 (ON CA), 67 C.C.C. (2d) 554 (Ont. C.A.) at pp. 565-6. Each conspirator does not have to commit or intend to commit personally the offence the conspirators have agreed to commit. R. v. Genser (1986), 1986 CanLII 4729 (MB CA), 27 C.C.C. (3d) 264 (Man. C.A.) at p. 268 affirmed 1987 CanLII 5 (SCC), 1987 39 C.C.C. (3d) 576 (S.C.C.). [Emphasis added.]

[50] I note also that the Crown is obliged to prove the offence as particularized in the indictment as the accused must be “reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and a fair trial”. See R. v. Saunders, 1990 CanLII 1131 (SCC), [1990] 1 S.C.R. 1020. I note that the Crown has particularized specific conspiracies on the indictment and therefore it must prove the offences as particularized and not some other conspiracy, even if there is a related one. See R. v. Saunders, supra.

[51] In short, I must determine whether the Crown has proven beyond a reasonable doubt that the admissible evidence establishes both the actus reus which is the agreement to act together to commit the offence particularized in the indictment and the mens rea which is the intention to put the unlawful common design into effect.

(ii) Co-Actors’ Exception to the Hearsay Rule

[52] As I stated, there is an exception to the general rule prohibiting the admission of evidence from out-of-court statements and the rule that an out-of-court statement made by a person charged may only be considered as evidence in relation to that person. It is known as the co-actors’/co-conspirators’ exception to the hearsay rule. The approach for dealing with the exception was set out by the Supreme Court of Canada in R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938, 137 D.L.R. (3d) 385.

[53] The admissibility of these statements was to be the subject of a pre-trial motion before me, but the parties agreed that the issue could be decided by way of submissions at trial. I must assess what constitutes the evidence for each accused and for each count. In accordance with R. v. Carter, I do so in three steps:

a. The first step requires me to determine, using all of the evidence, whether the Crown has proven beyond a reasonable doubt that there was a conspiracy/common design as alleged in the indictment. Here, the focus is on whether there was a conspiracy/common design, as alleged in the indictment, not who the members were.

b. If I find that the alleged conspiracy exists, the second step requires me assess in respect of each accused whether they were probably a member of the conspiracy/common design. Here, however, I must use only what is directly admissible, that is, only the accused’s acts or statements, to determine probable membership of the accused.

c. If the answer is yes to the second question on a balance of probabilities such that I find that the accused was probably a member of the conspiracy, then I may consider all of the evidence including acts and declarations against that accused to determine whether the Crown has established membership beyond a reasonable doubt. At this point, the statements and acts of others which are made in furtherance of the conspiracy/common design can be relied upon for the truth of their contents to determine if the person is an actual member of the conspiracy/common design. That means that the statements must have been made to advance or accomplish the unlawful object of the conspiracy/common design while the conspiracy was ongoing, and the maker of the statement was a member of it.

[54] I will use this approach for each of the conspiracy counts and the criminal organization count.

B. Count 1: Conspiracy to Traffic Cocaine between December 16, 2020, and May 11, 2021

[55] The Crown alleges that there was a common design to traffic cocaine through the importation of carpet from Bogota, Colombia. The evidence relating to the charge is the intercepts and the surveillance of individuals named in other indictments who were the subject of the Project Southam investigations including Guido Aguilar, Jefferson Diaz-Parra and Adrian Butler. It also involves the product of the searches of two residences and the testing of substances seized from those residences.

(i) Evidence Relating to Count 1

[56] Between January 4 and January 7, 2021, surveillance established that these three men, Mr. Aguilar, Mr. Diaz-Parra and Mr. Butler, were at a Cassia Lane residence in Minden Hills, Ontario. Their movements were being monitored as they were suspected of drug trafficking.

[57] On January 6, 2021, Officer Andre West was monitoring the movements of Adrian Butler in order to identify associates, places frequented and to gather evidence of drug trafficking. He observed Adrian Butler leave his residence at 843 9th Line in Innisfil, Ontario and he travelled to Minden, Ontario. Officer West followed him to Minden, Ontario.

[58] On January 6, 2021, Officer Deyell was conducting surveillance of Adrian Butler in Minden, Ontario. Shortly after 8:00 p.m., Mr. Butler travelled to a local hotel and placed a couple of bags in the dumpster. These bags were seized and would later be processed by Officer West. The contents of the bags included several 4L jugs of dichloromethane, as well as 500 ml bottles of isopropyl alcohol.

[59] On January 7, 2021, the three left Cassia Lane and travelled southbound on Hwy 35 in the Township of Minden. Officer West was monitoring their movements. At 1:04 p.m., Mr. Aguilar attended the Home Hardware in Minden, Ontario and Officer Healey followed him into the store. Officer Healey observed him purchase three to four large buckets with white lids and ammonia.

[60] Also on January 7, 2021, a carpet was delivered to 45 Dowswell Drive, Scarborough, Ontario. The package was sent by DHL Courier from Bogota, Colombia as evidenced by the waybill. It was delivered at 4:22 p.m. to the attention of Abel Lavana Barrios. Ministry of Transportation records identify that Mr. Diaz-Parra’s vehicle was registered to this address during the relevant time.

[61] Officer Moir followed the vehicles of Guido Aguilar and Mr. Diaz-Parra out of the Minden area and, at 5:18 p.m., at 45 Dowswell, he observed an unknown male carrying carpet out of the residence.

[62] At 5:20 p.m., Officer Lidstone observed Mr. Diaz-Parra in Scarborough, Ontario with what looked like a rolled-up carpet in the passenger seat of his vehicle.

[63] From Scarborough, Mr. Diaz-Parra and Mr. Aguilar travelled further into the City of Toronto to 16 Dermot Place in the back parking lot of a complex of houses. They parked along side each other. They were removing approximately 10-15 five-gallon buckets out of Mr. Diaz-Parra’s truck and into Mr. Aguilar’s truck. There was also a large plastic garbage bag taken out with a mop handle sticking out. That was also put into Mr. Aguilar’s truck. From Mr. Diaz-Parra’s truck they took a large cardboard box which looked to be heavy. Mr. Aguilar left the parking lot and attended a No Frills grocery store around the corner.

[64] On that day, at 7:38 p.m., a carpet was observed in the front passenger seat of Mr. Diaz-Parra’s truck. It arrived at 99 Quail Valley Crescent in Thornhill, Ontario, known to be Mr. Diaz-Parra’s home. By 8:12 p.m. the carpet was no longer visible in the truck, presumably having been taken inside.

[65] On January 9, 2021, the police attended the AirBnB located at Cassia Lane in Minden Hills, Ontario where they had been staying. The police entered 1023 Cassia Lane and found cocaine residue inside when tested by Health Canada. The police were informed that when they took possession of the property it had not been cleaned from the previous renters.

[66] On January 10, 2021, at 11:30 a.m., Mr. Aguilar attended 16 Dermot Place. The police were continuing surveillance as they thought that drugs were going to be extracted from that residence. Prior to that, at 11:07 a.m., Officer West drove by 16 Dermot Place and observed Adrian Butler’s car parked on the road and that Mr. Aguilar had parked his truck in front of 16 Dermot Place. Photographic evidence shows Adrian Butler getting into his vehicle and Jefferson Diaz-Parra getting into the truck belonging to Mr. Aguilar.

[67] On January 10, 2021, surveillance followed Mr. Aguilar from his residence at 130 Scarborough Road, Toronto, to a convenience store and then onward to 99 Quail Valley Road where he picked up Mr. Diaz-Parra. They drove to meet Mr. Butler at a truck stop in Bradford. There they removed a large cardboard box from Mr. Butler’s vehicle into Mr. Aguilar’s truck.

[68] On April 6, 2021, Mr. Aguilar spoke with Hans Lauro as identified by a vehicle probe. Mr. Aguilar told Mr. Lauro that they had been having trouble crystallizing it and he told Mr. Lauro that now he had a guy who was going to crystallize it. He asked Mr. Lauro whether he wanted his money or a nine pack.

[69] Cpl. MacIntyre told the Court that “nine pack” is common language in the drug trade to represent 9 ounces or a quarter of a kilogram. In cross-examination, he acknowledged that this could also be used to describe a quantity of methamphetamine. Mr. Aguilar told Mr. Lauro that it was going to be “ninety-four ninety-five”. Cpl. McIntyre’s report indicates that high grade cocaine hydrochloride which is refined in labs is commonly analyzed at 90% purity but can be as high at 97%.

[70] It was Cpl. MacIntyre’s opinion that this call was about cocaine and that Mr. Lauro was expressing that if the cocaine was of high quality, he could move it.

[71] On April 7, 2021, Mr. Aguilar called Mr. Luangphasi asking how much “it is worth right now”. They then had the following discussion:

GA: Okay, he’s gonna give you like six seven hundred uh grams for the thing there

AL: (Unintelligible)

GA: Oh he’s oh he’s shit

AL: (Unintelligible)

GA: Huh

AL: No I don’t (unintelligible) why would I want that it’s garbage.

GA: Oh no no no not anymore brother not anymore he’s finally finished ninety-nine percent pure beautiful he actually… no it was because he didn’t know how to fucking bring it back to life he’s fucking amazing

AL: (Unintelligible)

GA: He’s gonna give you a test to see if you like hello

AL: Yeah I can hear you

[72] Here, Cpl. MacIntyre opines that the reference to bringing it back to life is restoring cocaine back to a high level of purity where it has been dissolved into a liquid medium for smuggling purposes.

[73] The conversation continued where Mr. Luangphasi stated, “It’s supposed to be it’s supposed to be a percentage every week not two every two weeks” and “No no no he said a percentage X amount of dollars per chick”. According to Cpl. MacIntyre, “chick” is used by drug traffickers to refer to a kilogram of cocaine.

[74] Further into the conversation, the following exchange took place:

AL: When is he passing this thing

GA: Sometime this week he said just waiting to finish everything else then he’ll pay everybody this week

AL: Yeah, fucking pray to God he does because if he doesn’t I’m gonna take a lot of joy in what the fuck happens to him.

GA: Try to make everything good

AL: Yeah this guy better pray he does because I swear to God I’m counting the days down bro you know know what I mean

[75] Later in the conversation Mr. Aguilar told Mr. Luangphasi that “we have lots more work brother lots of work’s coming in now” to which Mr. Luangphasi replied, “well send some my way”.

[76] Mr. Luangphasi does not admit that this is his voice on the call as it is from a vehicle probe from Mr. Aguilar’s car. I am certain that it is his voice, having listened to the entirety of the tendered intercepts and given how it aligns with the other communications that follow.

[77] On April 9, 2021, police executed a search warrant at 99 Quail Valley Crescent in Markham, Ontario, the house was known to be the residence of Mr. Diaz-Parra. The search was recorded on video and found a 20L container of hydrochloric acid, 20L container of sulphuric acid, 4L jugs of isopropyl alcohol, 4L jugs of acetone, methyl ethel ketone, 4L jugs of ammonia, 4L jugs of ethel acetate. In addition, there was what Officer Landreville described as a recipe “Recito” and a large zip lock bag containing a beige substance and a white bag containing a white substance. Also found at the residence was a plate with a clumpy hardened white substance. Other items were seized. Several of the items seized were later identified by Health Canada as cocaine. Others were identified as phenacetin and boric acid. Coffee filters, scales, a large container containing some kind of textile in liquid was also found.

[78] Cpl. MacIntyre opined that in his opinion, this was a clandestine drug lab. Cpl. MacIntyre testified that phenacetin is a drug that can be used to bulk up the product of cocaine.

[79] The Court heard from Napol Shalvarjian, who is a Designated Analyst at Health Canada. He receives police exhibits, analyzes them and reports back with a Certificate of Analysis. He had experience in clandestine laboratories. I gave permission for him to give his opinion about synthetic drug production.

[80] He told the Court that cocaine hydrochloride, which is the powder form of cocaine, dissolves in isopropyl alcohol such that isopropyl alcohol may be used to extract cocaine hydrochloride.

[81] He also explained that cocaine hydrochloride can be converted to cocaine base, known as crack, using water, ammonia and dichloromethane. He described the process for so doing. Essentially, if the cocaine was attached to a cloth or other material, you can use isopropyl alcohol to dissolve it, like dissolving sugar into hot water.

[82] To extract cocaine, you have to dissolve it. He described the process of freebasing. This is the process to remove the hydrochloride salt from the cocaine hydrochloride. A person would dissolve the cocaine hydrochloride in a solution, perhaps water, and to it add ammonia. Then if one adds dichloromethane, you will get two layers, an oil layer, which is the dichloromethane which traps the freebased cocaine. That layer can be extracted and from it you can obtain the cocaine base.

[83] He said ammonia is weakly basic and it can be used to remove salt and render cocaine in its freebase form. Sodium hydroxide is a strong base and if it were to be used there would be a danger of destroying the cocaine if used in this process.

[84] Acetone could be used as a purifying agent before the conversion process. Cocaine hydrochloride is not very soluble in acetone but if it were adulterated with something more soluble, the cocaine hydrochloride could be dissolved to leave pure cocaine.

[85] On April 9, 2021, police observed Mr. Aguilar drive to Quail Valley Crescent and then quickly drive away. He was followed to a plaza at which he threw a white plastic garbage bag into the garbage can. When retrieving the garbage bag, police also found a broken cell phone.

[86] On that day, Mr. Luangphasi called Mr. Alexander Le starting the call by saying “you wanna hear something really funny”.

Le: What

Luangphasi: G just G just got a new number and he called me right

Le: Yeah

Luangphasi: He said hey bro oh I need to I have very bad news for you I’m like what he’s like Colo just got raided this morning and they showed him a picture of you and they’re they said they’re investigating you

Le: (Unintelligible)

Luangphasi: This investigation’s been going on for six months and they know about you I’m like okay sure

[87] I pause to note here that I am certain that in this conversation, the G to whom Mr. Luangphasi is referring is Mr. Guido Aguilar for three reasons: the initial used matches Guido, the reference to the new phone and a conversation that takes place on April 13, 2021 between Mr. Aguilar and Mr. Luangphasi.

[88] The conversation continued. In it, Mr. Le appeared fully informed about what Mr. Luangphasi was telling him, despite the scant detail and the use of coded language. He appeared to know who “Colo” is. Colo is a clear reference to Mr. Diaz-Parra. At one point, Mr. Le states “No no its not that just no no dude it’s just the timing it’s like okay he he like he’s supposed to give us money this week or something right …. And then boom he gets raided and then fucking you know”.

[89] Mr. Luangphasi replied, laughing:

So stupid man I’m like you know yeah okay sure bro whatever man I’m like yeah tell Colo I’m still coming for his ass and I’m like okay if they found all this stuff at Colo’s house all this 2C and chemicals how come he’s not in jail and deported he’s not even a citizen here.

[90] They believed that Mr. Aguilar was misleading them and that they did not believe that Mr. Diaz-Parra was raided. Mr. Luangphasi stated: “I’m like bro I’m like just to let you know I pay people to have this kind of information”. Mr. Luangphasi asserted that this is bluster and is not determinative of anything.

[91] The conversation continued:

Le: You wanna know what it is you wanna know what it is they used your 2C and whatever the fucking money that we had there and then

Luangphasi: Yeah to do their carpet shit and they’re all eating off it

Le: And then they’re like you we need to find a way to uh you know

Luangphasi: Yeah

Le: Tell these guys that we lost it let’s think about this for like a week we have a week to think about it and then you know last day and then this shit that they thought up.

[92] Mr. Le argues that the above exchange and the use of the words “their carpet shit” is evidence of non-membership. The conversation continues with the two speaking negatively about Mr. Aguilar and Mr. Diaz-Parra and the quality of the product which the Defence again argues is evidence of non-membership.

[93] On April 13, 2021, Guido Aguilar and Adam Luangphasi spoke and the communication was recorded by way of a vehicle probe on Mr. Aguilar’s truck. I am satisfied beyond a reasonable doubt that these are their voices because they associated with the vehicle and the surrounding circumstances of other calls leaves me with no other reasonable inference as to the identity. In the conversation Mr. Aguilar spoke about a high associated with what I can reasonably infer is a drug. Mr. Luangphasi tells him that he should “try pushing that shit out of town”. Mr. Aguilar appeared to be concerned about what Mr. Diaz-Parra was going to say to the police to which Mr. Luangphasi replied, “I don’t know what is he gonna say some Chinese guy like does he even know my name”.

[94] Later in the April 13, 2021 conversation, Mr. Luangphasi stated “Yep yeah you’re gonna have a huge debt on your head bro” and the later “I mean me and Korky don’t worry about that bro whatever you know it is what it is but your other problems I don’t know if I can help you with that”. The conversation continued about how long it took to “bring it back to life” and what the deal was. During this conversation, Mr. Luangphasi stated “Yeah I know but you said you guys got four or six whatever why didn’t you pay everyone back” to which Mr. Aguilar stated, “there was only two point five came out of everything”. Here I can reasonably infer based on the product seized, the jargon used, that they were expecting to produce four or six kilos of cocaine but that they only produced 2.5kg. At the end of this conversation, Mr. Luangphasi stated “like I’m not gonna come hound you bro but I’m just telling you as a friend how it looks like”.

[95] I can safely conclude from this that Mr. Aguilar was indebted to Mr. Luangphasi and another person.

(ii) Was there a conspiracy between two or more people to traffic cocaine?

Conspiracy

[96] Section 465 of the Criminal Code provides that everyone who conspires with another to commit a summary or indictable offence is guilty of the offence and liable to the same punishment. “Conspiracy” is defined as “a meeting of the minds with regard to a common design to do something unlawful, specifically the commission of an indictable offence.

Trafficking

[97] Section 2(1) of the CDSA defines traffic and sell as follows:

sell includes offer for sale, expose for sale, have in possession for sale and distribute, whether or not the distribution is made for consideration; 

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

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

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

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

otherwise than under the authority of the regulations.

[98] In R. v. Sansalone, 2010 ONCA 281, the Court of Appeal for Ontario found at para. 26 that this definition “casts a very wide net, the goal of which is to facilitate prosecution of individuals who participate in or contribute to the trafficking of narcotics.”

Conclusion on Conspiracy to Traffic Cocaine

[99] I have considered the surveillance and the intercepts as a whole, excepting the Spanish intercepts for which I have no translation. I am satisfied beyond a reasonable doubt that more than three persons including Mr. Aguilar, Mr. Butler and Mr. Diaz-Parra were involved in the importation of cocaine by way of carpet delivery with the intention to extract and produce cocaine in order to sell and distribute the product in Ontario.

[100] Specifically with respect to Count 1, which is conspiracy to traffic, the evidence demonstrates beyond a reasonable doubt that the intention of the agreement was to distribute and sell cocaine contrary to s. 5(1) of the CDSA.

(iii) Was Mr. Luangphasi probably a member of the conspiracy?

[101] As I have indicated, at this stage, using evidence only directly admissible against Mr. Luangphasi, I must consider whether Mr. Luangphasi was probably a member of the conspiracy.

[102] The statements of Mr. Luangphasi demonstrate that Mr. Luangphasi knew Mr. Aguilar, that he had given money to Mr. Aguilar, that he was expecting to be provided with cocaine and that Mr. Aguilar was indebted to him. At one point, as I have noted, Mr. Luangphasi told Mr. Aguilar “try pushing that shit out of town”.

[103] The statements together with timing of the search upon Mr. Diaz-Parra’s residence leading to the finding of a clandestine drug lab allow me to conclude that Mr. Luangphasi was probably a member of the conspiracy.

(iv) Can I conclude beyond a reasonable doubt that Mr. Luangphasi was a member of the conspiracy?

[104] As I have concluded that Mr. Luangphasi was probably a member of the conspiracy, I can now consider all of the evidence bearing on this issue. The Crown must prove beyond a reasonable doubt that Mr. Luangphasi understood the unlawful nature of the plan and that he intentionally joined it. He must be shown to have agreed, and intended to have agreed, to achieve the common unlawful purpose, of trafficking cocaine.

[105] I note that Mr. Luangphasi need not be aware of all of the elements of the plan, or the participants in it, according to R. v. Root, supra, he must be aware of the general nature of the common design and be an adherent to it. Each conspirator does not have to commit or intend to commit personally the offence the conspirators have agreed to commit.

[106] As the Defence highlights, there are no intercepted communications with Mr. Luangphasi prior to April 7, 2021. There are no meetings between Mr. Luangphasi and Mr. Aguilar, Mr. Butler or Mr. Diaz-Parra. However, on Mr. Luangphasi’s own statements it is clear that he knew who Mr. Diaz-Parra was, as he indicated that he had not seen him in over a year.

[107] The Crown submits that Mr. Luangphasi was investing in the operation. Mr. Luangphasi responds that if he was an investor, why would you use the language “their carpet shit” rather than “our carpet shit”. In my view, this applies more to the further count of production than it does to trafficking. However, this is an isolated line does not leave me with reasonable doubt..

[108] Rather, the evidence demonstrates beyond a reasonable doubt that Mr. Luangphasi knew of the operation of producing cocaine, that he had provided money to Mr. Aguilar expecting a return on the product or money. Further, the evidence demonstrates that he was actively conspiring with Mr. Aguilar to source, sell and distribute cocaine.

[109] Examples of Mr. Luangphasi’s voluntary and active membership in the conspiracy are when he spoke with Mr. Le and they talked about what they are expecting to receive within a week, when Mr. Luangphasi used Mr. Aguilar to pass on messages to Mr. Diaz-Parra when he stated “tell Colo”, demonstrating that he knew and had a relationship with Mr. Diaz-Parra, telling Mr. Aguilar to try pushing that out of town, referring to cocaine and other statements that make it obvious that he has an arrangement to participate in the sale and distribution of cocaine. It is also obvious to me that the use of threats of physical harm are part of his means of ensuring that agreements are kept. An example of this is Mr. Luangphasi’s April 7, 2021 conversation with Mr. Aguilar that I have already referenced:

AL: When is he passing this thing

GA: Sometime this week he said just waiting to finish everything else then he’ll pay everybody this week

AL: Yeah fucking pray to God he does because if he doesn’t I’m gonna take a lot of joy in what the fuck happens to him.

GA: Try to make everything good

AL: Yeah this guy better pray he does because I swear to God I’m counting the days down bro you know what I mean

[110] On April 14, 2021, Mr. Luangphasi and Mr. Aguilar spoke again. During this recorded conversation, Mr. Aguilar complained that Mr. Luangphasi “fucked up” his business as he was counting on a percentage that he was going to charge another person. The conversation finished with Mr. Aguilar saying “give me some work” which I interpret to be cocaine to sell.

[111] For all of these reasons, I find that the Crown has met its burden on Count 1 in respect of Mr. Luangphasi and I find him guilty on Count 1.

[112] I will move onto Mr. Le on Count 1.

(v) Does the evidence demonstrate that Mr. Le was probably a member of the conspiracy?

[113] I reiterate that at this stage, I must use the evidence only directly admissible as against Mr. Le. This will include his statements but not the intercepted communications of others. This comes down to calls made on April 9, 2021. There is an intercepted call made on April 13, 2021, but I find that there is nothing in it that assists me with the issue of probable membership.

[114] The first was the call from Mr. Luangphasi to Mr. Le to tell him about the story about Mr. Diaz-Parra getting raided. They speak for just over five minutes. Mr. Le ends this call saying that he will call Mr. Luangphasi back which he does about 15 minutes later. Mr. Le ends the call about six minutes later stating that he will call Mr. Luangphasi back. I have no record of a further intercepted call that day.

[115] It is on the basis of these two intercepted calls that the Crown asserts that I can find probable membership on the part of Mr. Le by his own statements.

[116] I note that when I assess these calls, I will consider Mr. Luangphasi’s statements made in the same communications but not for the truth of their contents. In some limited circumstances, I rely on them to provide context to statements made by Mr. Le. Otherwise, it would be very difficult to know what Mr. Le was talking about. I must do so for context only and not for the truth of Mr. Luangphasi’s statements. In proceeding in this fashion, I rely on R. v. Gagnon, 2000 CanLII 16863 (ON CA) at para. 62 and R. v. Wang, 2013 BCCA 311 at paras. 51-65. In doing so, I must be careful to adhere to the Carter framework.

[117] The first conversation starts with Mr. Luangphasi stating “you wanna hear something really funny”. Mr. Le argues in his defence that this is about friends talking and Mr. Luangphasi is calling him to tell him a story. I reject this argument as it is one line picked from the entirety of a conversation which does not accurately describe this call as whole.

[118] In the first call, Mr. Le responds to the story that Mr. Diaz-Parra’s residence was the subject of a search and that he had been arrested. He stated “no no its not that just no no dude its just the timing its like he’s supposed to give us money this week or something right … and then boom he gets raided and then fucking you know”. In my view, raided commonly means that police have executed a search warrant at a particular location. This is supported by Cpl. MacIntyre’s expert opinion.

[119] In response to what Mr. Luangphasi said, Mr. Le stated “so so G’s in on this bullshit then if he…” Much of this conversation is Mr. Luangphasi speaking with Mr. Le following along. It is clear that Mr. Le understood what Mr. Luangphasi was talking about even though its not always explicit. Mr. Le later stated:

You wanna know what it is they used your 2C and whatever the fucking money that we had there and then …. And then they’re like you we need to find a way to uh you know

Tell these guys that we lost it lets think about this for like a week we have a week to think about it and then you know last day and then this shit that they thought up.

[120] From this conversation, using Mr. Le’s statements, and Mr. Luangphasi’s for context only, I can conclude that Mr. Le is probably a member of a conspiracy to traffic cocaine. I say this because he knew who the parties are, he clearly understood the context of a raid, he then he used the word “us” to describe an actions that he and Mr. Luangphasi had taken.

[121] Mr. Le’s argument is that this conversation is evidence of non-membership as this conversation is about money owed. He asserts that the words “their carpet shit” clearly shows that Mr. Le and Mr. Luangphasi are not members of the carpet conspiracy.

[122] I do not accept that that is a reasonable inference from the conversation as a whole. As I have stated before, knowledge for the purpose of membership does not have to be with respect to all aspects of the conspiracy. It is abundantly clear that Mr. Le and Mr. Luangphasi had invested in the operations of Mr. Aguilar and Mr. Diaz-Parra.

[123] I also find that Mr. Le was upset that Mr. Aguilar and Mr. Diaz-Parra had spent their money on the carpet scheme and were profiting from it. He stated they were getting “free work”, which I find means free cocaine. This begs the question, why would Mr. Luangphasi and Mr. Le be upset if Mr. Aguilar and Mr. Diaz-Parra were using the money to do the thing they invested in? In my view, this goes to an argument with respect to production, not trafficking. The balance of the conversation shows Mr. Le also had an ongoing relationship with Mr. Aguilar and supports probable membership. I find that it is probable that Mr. Luangphasi agreed to buy product from Mr. Aguilar and Mr. Diaz-Parra. Mr. Le stated:

I didn’t know they they were gonna stoop that low man but when I first met G he was still a pretty solid dude bro but you know like you’re so broke.

[124] For this reason, I am satisfied on this step that probable membership has been demonstrated.

(vi) Can I conclude beyond a reasonable doubt that Mr. Le was a member of the conspiracy to traffic cocaine?

[125] I find that the evidence proves beyond a reasonable doubt that Mr. Luangphasi and Mr. Le worked in partnership to invest and fund the activities of Mr. Diaz-Parra and Mr. Aguilar. The evidence is that Mr. Le invested: the use of the word “us” reflects this when Mr. Le and Mr. Luangphasi are talking about money owed. He had knowledge of “their carpet shit”. I have rejected that this is evidence of non-membership. The clear evidence of membership which makes me sure that Mr. Le is a member of the conspiracy is his statement made on April 9, 2021 “he’s supposed to give us money or something right”. I am able to conclude that this means they were supposed to get money or cocaine.

[126] Having determined that Mr. Le and Mr. Luangphasi were acting together, I can rely on an implied agency. Where there is an agreement to commit an unlawful act together, each person implicitly authorizes to become their agent in pursuit of the agreement.. In support of this principle, I rely on R. v. Dawkins, [2021] O.J. No. 848 (Ont. C.A.). In that decision, the Court of Appeal stated at para. 50:

As explained earlier, at its core, the crime of conspiracy is about at least two people agreeing to pursue an unlawful object. By virtue of their joint enterprise, the enterprise being the agreement to pursue the unlawful object, the principle of implied agency is triggered. By reason of their partnership in crime, co-conspirators become one another’s agents, vicariously owning each other's acts and declarations made and spoken in pursuit of the unlawful object during the currency of the conspiracy. As noted in Chang, at para. 55, the historical rationale for this rule rests in the accepted fact that “each party to the conspiracy implicitly authorize[s] the others to act and speak on his or her behalf in furtherance of the conspiracy; acts and declarations of one party could therefore be admitted as evidence against the others”.

[127] When Mr. Luangphasi spoke to Mr. Aguilar on April 13, 2021 at 18:09 p.m., they spoke explicitly about the terms of the agreement and this becomes admissible with respect to Mr. Le’s agreement and actions. Mr. Luangphasi stated, “even Korky’s pissed off I even told him what’s happening and he said yeah sure that story sounds like something someone made up”. In this conversation, I can reasonably infer that Korky is Mr. Le. Mr. Luangphasi went on to say “I mean me and Korky don’t worry about that bro” speaking of himself and Mr. Le as a unit or team. Later in that call there was reference to what was supposed to be delivered “a Nike each”, meaning cocaine.

[128] All of this evidence allows me to conclude beyond a reasonable doubt that Mr. Le was a member of the conspiracy to traffic cocaine.

[129] I find Mr. Le guilty on Count 1 of the indictment.

[130] I will move onto Count 2.

C. Count 2: Conspiracy to Import Cocaine

[131] Section 6(1) of the CSDA prohibits the importation of a Schedule I substance except as authorized in the regulations. The Crown alleges that Mr. Luangphasi and Mr. Le conspired to import cocaine through the importation of carpet as outlined above. The body of evidence on this Count is the same as on Count 1 but the nature of the conspiracy is different and I must employ the same analysis as I did on Count 1 for each accused.

(i) Was there a conspiracy between two or more persons to import cocaine?

[132] While the evidence is circumstantial, there are no other reasonable inferences other than that Mr. Diaz-Parra, Mr. Aguilar and Mr. Butler conspired to import cocaine. The evidence supporting this is that the carpet arrived from Bogota, Colombia. Cpl. MacIntyre testified that Colombia is a source country for cocaine. He informed the Court that 90% of the production of cocaine comes from Colombia.

[133] When the carpet was delivered, it was immediately picked up by Mr. Diaz-Parra from Dowswell Drive as it was observed in his truck minutes after it was delivered. From there, it made its way to 99 Quail Valley in Markham, Ontario but only after Mr. Diaz-Parra was seen with Mr. Aguilar and Mr. Butler at 16 Dermot Place.

[134] The April 9, 2021 execution of the search warrant at 99 Quail Valley revealed numerous substances that would assist with the dissolution of cocaine hydrochloride into cocaine such that cocaine could be produced using the process described by Mr. Napol Shalvarjian.

[135] All of this allows me to make a reasonable inference that two or more persons agreed to import cocaine from Colombia contrary to the CDSA.

[136] I am satisfied beyond a reasonable doubt of the conspiracy and the particularized substance.

(ii) Was Mr. Luangphasi probably a member of the conspiracy?

[137] At this stage, I can only use evidence directly admissible against Mr. Luangphasi which included his own statements. I am not able to conclude from those statements, on a balance of probabilities, that Mr. Luangphasi made a voluntary agreement to import cocaine such that he was part of a conspiracy.

[138] There are reasonable inferences available from his statements that point toward his innocence on this Count. While he appears to have provided money, this can be explained as investing in production or to secure cocaine for trafficking. While he seems to have knowledge of the amount and an agreement about how much cocaine will be provided to him, I cannot find it probable that he made a voluntary agreement such that he was an adherent to the common design to import.

[139] This Count fails at this stage, and I find Mr. Luangphasi not guilty on Count 2.

[140] I will move onto Mr. Le on Count 2.

(iii) Was Mr. Le probably a member of the conspiracy?

[141] I apply the analysis I used for Mr. Luangphasi to Mr. Le. On a balance of probabilities, using only evidence directly admissible against Mr. Le, I cannot conclude that he made a voluntary agreement to import cocaine with others.

[142] Here, the words “their carpet shit” do lead to a conclusion that the importation of the carpet (rather than the trafficking of the product generated from the import) was a scheme belonging to others: i.e. Mr. Diaz-Parra and Mr. Aguilar.

[143] The case on Count 2 against Mr. Le fails at this stage and I find him not guilty on Count 2.

[144] I will move onto Count 3.

D. Count 3: Conspiracy to Produce Cocaine

[145] Count 3 of the indictment alleges that Mr. Luangphasi conspired with others between January 5, 2021 and April 9, 2021 to produce a Schedule 1 substance contrary to s. 7 of the CDSA.

[146] Section 2 of the CDSA defines produce as follow:

produce means, in respect of a substance included in any of Schedules I to V, to obtain the substance by any method or process including

(a) manufacturing, synthesizing or using any means of altering the chemical or physical properties of the substance, or

(b) cultivating, propagating or harvesting the substance or any living thing from which the substance may be extracted or otherwise obtained,

and includes offer to produce.

[147] The body of evidence on this Count is the evidence identified at the first step of Count 1 and Count 2. I am able to use all of the evidence to determine whether there was a conspiracy to produce cocaine.

[148] The evidence clearly demonstrates that there was an agreement to produce cocaine in Canada from the carpet shipped from Bogota and that Mr. Diaz-Parra was working to purify cocaine during this time period. The telephone calls that Mr. Aguilar had with Mr. Luangphasi demonstrate that this originally did not go well but that eventually he was able to work with the cocaine to achieve a high level of purity.

[149] I can easily conclude that there was a conspiracy to produce cocaine and the Crown has satisfied me beyond a reasonable doubt.

(i) Was Mr. Luangphasi probably a member of the conspiracy?

[150] Again on this step of the analysis I will assess the evidence directly admissible against Mr. Luangphasi to assess on a balance of probabilities whether he was a member of the conspiracy to produce cocaine.

[151] It is clear on the evidence that Mr. Luangphasi had knowledge of the scheme to use carpets and even a willingness to purchase the product should it be of sufficient quality.

[152] However, the crime of conspiracy requires an agreement to act together. As noted by this Court in R. v. Dixon, 2012 ONSC 3438, at para. 14:

To constitute the crime of conspiracy, it is not sufficient for two or more persons to agree; they must agree to do something. Discussion and consideration of a criminal plan does not amount to conspiracy. There must be evidence of a real intention to agree to give effect to the criminal plan.

[153] The Crown urges me to draw an inference that Mr. Luangphasi and Mr. Le were investors in the carpet scheme. The Crown submits that I can draw this inference from the April 9, 2021 call between Mr. Luangphasi and Mr. Le where Mr. Luangphasi recounted his call with Mr. Aguilar. In that call, Mr. Aguilar advised him of the search of Mr. Diaz-Parra’s residence. Mr. Luangphasi stated:

And they’re not gonna go and tell him hey there’s an investigation on this guy so I can prepare I’m like that’s the most stupid thing I ever heard in my life tell him I’m still coming for his fucking ass

[154] The Crown asserts that they invested in production and had they not invested, they would not be mad, and this makes them a party to the production.

[155] I do not agree. This invites impermissible speculation. It falls far short of demonstrating a meeting of the minds which is essential to the crime of conspiracy. (See R. v. Papalia, 1979 CanLII 38 (SCC), [1979] 2 S.C.R. 256, at p. 277). I am left without evidence that demonstrates on a balance of probabilities an intention to give effect to a plan to produce cocaine.

[156] For this reason, I go no further with this analysis, and I find Mr. Luangphasi not guilty on Count 3.

[157] I will therefore move onto Count 5.

E. Count 5: Conspiracy to Import Cocaine Between May 19, 2021 and July 7, 2021 (the Alleged Guyana Conspiracy)

(i) Nature of the Conspiracy Alleged

[158] The Crown refers to this as the Guyana conspiracy, the operation of which was to import 40 kg of cocaine from Guyana, 10 kg of which would be purchased by Mr. Luangphasi for $10,000 per kilo.

[159] The evidence on this Count involves surveillance, the expert evidence of Cpl. MacIntyre, and intercepted communications. These communications involve volumes of intercepted communications said to be between Adam Luangphasi, Owen Vogelson, Alexander Le, Charlie Walters, as well as others. Authorizations were sought and granted to place probes in the vehicles of Mr. Luangphasi, Mr. Vogelson and Mr. Walters. A cell phone associated was also intercepted.

(ii) Identity of Co-Conspirators

[160] In these communications there are two other participants. In the intercepts, reference is made to B and R. The Crown submits that B is Basil Dixon and R is Nathan Brown. The Crown submits that it does not have to prove the identity of unindicted co-conspirators beyond a reasonable doubt. See: R. v. Dawkins, 2021 ONCA 113. However, the Crown submits that the motor vehicle registration, the surveillance of the vehicles, and the context allow me to conclude that B is Basil Dixon and R is Nathan Brown.

[161] With respect to Mr. Vogelson, the Crown points to two sets of intercepts which align with surveillance on those dates where Mr. Vogelson met Mr. Luangphasi. The first is on May 19, 2021 at 17:56. Mr. Vogelson arrived in his car, met Mr. Luangphasi at a plaza in the Woodbridge/Vaughan area and entered his vehicle. The time he entered the vehicle matches with the intercept. The vehicle probe in Mr. Luangphasi’s BMW captured a conversation said to be between Owen Vogelson and Mr. Luangphasi. Later in the conversation, at 18:11, Mr. Luangphasi is having a one-sided conversation with someone else. A photo taken by a surveillance officer at 18:12 on that date shows Mr. Luangphasi holding a cell phone to his ear. I can conclude that it is Mr. Vogelson whose voice is captured on the vehicle probe intercept.

[162] Similarly, on May 21, 2021, police observed Mr. Vogelson leaving his residence wearing a salmon-coloured shirt. He again met Mr. Luangphasi at a plaza and entered Mr. Luangphasi’s vehicle. They departed together and drove to Inspire Blvd in Brampton where the vehicle parked in front of a brown Porsche. That Porsche is associated with Basil Dixon. On this day, several persons met outside of the cars in the area. At 18:05, Mr. Dixon arrived at the door of Mr. Luangphasi’s vehicle. At 18:15, Mr. Vogelson and Mr. Luangphasi exited their vehicle. At 18:20, Mr. Brown arrived in his Lexus and joined the group who were seen talking. At 18:40, Mr. Vogelson and Mr. Luangphasi re-entered Mr. Luangphasi’s vehicle and departed. They returned to the plaza to drop Mr. Vogelson at his vehicle.

[163] These movements match up with intercepted communications from Mr. Luangphasi’s vehicle such that I can conclude that it is Mr. Vogelson who is the second participant in those conversations, Mr. Luangphasi’s identity being admitted on this call.

[164] In respect of Basil Dixon, on June 14, 2021, surveillance observed Mr. Dixon exiting Mr. Luangphasi’s vehicle with Mr. Vogelson in the front passenger seat. The man exiting the vehicle entered Mr. Dixon’s Porsche. The vehicle probe in Mr. Luangphasi’s vehicle recorded communications which match up with the timing of the surveillance. I can conclude that the third voice is that of Basil Dixon’s. At 18:02, Mr. Vogelson said “see you tomorrow” to which the voice identified as B replied “Yeah man”. Earlier in this meeting, Mr. Luangphasi also refered to the third person in the car.

[165] There are other intercepts that support this. and I will not detail them further.

[166] I am safely able to conclude that the individual referred to as B is Basil Dixon.

[167] The Crown put forward a similar analysis regarding Nathan Brown. Surveillance and intercepts similarly line up on June 16, 2021, where police observed Mr. Luangphasi and Mr. Giedrius Kesminas who are met by Nathan Brown. The corresponding intercepted communications from Mr. Luangphasi’s vehicle probe have in him in a conversation with two unknown males. One I can conclude is Nathan Brown, the other I can conclude is Giedrius Kesminas who is alleged to be a co-conspirator under Count 7.

[168] The Crown asks that I then turn to a further communication between Mr. Luangphasi and Mr. Le on June 18, 2021 in which Mr. Luangphasi recounted what happened in his meeting with Mr. Kesminas. Mr. Luangphasi tells Mr. Le that R wanted to meet the pilot. Putting these two pieces of information together, I can logically infer that R is Nathan Brown.

(iii) Expert Evidence on the Drug Trade

[169] Before assessing the evidence, it is necessary to review some of the evidence given by Cpl. MacIntyre on the nature of the drug trade. Cpl. MacIntyre testified that while 90% of the world’s cocaine originates in Colombia, it is normally shipped to other South American, Caribbean or Central American countries before going forth to other places. These can be referred to as transit countries. This helps decrease suspicion by officials at the borders of the destination country. It can be shipped by land, by boat or air.

[170] The price of cocaine increases the further it gets from the source. According to Cpl. MacIntyre, a kilogram of cocaine in the jungles of Colombia can be purchased for $2,200 and the price will increase at Colombian ports to $5,500 to $7,000. Once in Canada, a kilogram will sell in the Greater Toronto Area for between $36,000 to $50,000.

[171] He opined that drug importation is like any business because it is a supply and demand. Securing a supply without detection is key to the success of the business and when the supply is detected and seized, that represents a loss to the business. A successful importation model requires the organization to have individuals in the source countries and transit countries to assist with moving a load of drugs without detection.

[172] He further told the Court that the difference in the source and destination value of the cocaine is not pure profit as bribes are paid as are individuals connected to the scheme in source and transit countries. Money is also paid to load drugs “the on fee” and to unload the drugs “the off fee”. The person who puts drugs on for transport is the “on” and the person who picks up the drugs from a transport load without being detected is the “off”. For example, an organization might need to have a baggage handler to get drugs off a plane undetected.

[173] The Defence asserts that there are too many gaps to fill using Cpl. MacIntyre’s opinion. He was provided only 7 to 8 intercepts and opined only on five of them meaning that the Court has only had the benefit of expert opinion on 5/143 intercepts. Without a seizure of drugs connected to the conspiracy, the Defence asserts that I should be left with reasonable doubt.

[174] The Defence also cautions about using the opinion to decode other communications for which no opinion was provided.

[175] The expert noted that there are limits to his analysis: context is everything and some slang is often equivocal.

[176] Mr. Le highlights that one intercept interpreted by Cpl. MacIntyre reflects those limitations. In his opinion, Cpl MacIntyre stated that the communication is consistent with drug trafficking or some other illegal activity. The Defence asserts on that opinion, alone there is another available inference. I accept the validity to the concern, but that one line must be viewed in the totality of the evidence and the necessary context.

[177] The Defence also cautions me about applying the communications interpreted by Cpl. MacIntyre to other communications that he did not review, relying on his statement that context is everything.

[178] The Defence notes that in contrast to this case, in R. v Evans, 2013 ONSC 5550, aff’d 2019 ONCA 715, the expert listened to the relevant intercepts played for the jury. Mr. Le argues that that is significant because as the expert noted, context is everything. They assert that in this case, the Crown cut and paste various intercepts to support its theory. The Defence argues that the limited, handpicked, intercepts leads to a result driven analysis.

[179] I accept that the analysis is context driven. I find, however, that I am able to apply the opinions of Cpl. MacIntyre to decode other intercepts where necessary and where there is sufficient context supports the application his opinion. Where I apply his analysis, it is because I find that I have the necessary context and that the context does not cause me to doubt the application of his analysis.

(iv) Was there a conspiracy between two or more persons to import cocaine between May 19, 2021 and July 7, 2021?

[180] I reiterate that at this stage of the analysis I may use all of the evidence to determine whether the Crown has established beyond a reasonable doubt that there was a conspiracy between two or more persons to import cocaine. I must find intent and agreement to import. The Defence argues that I must also find that there is an agreement on how the product is to be paid for and that these issues must all be resolved prior to the product coming in.

[181] It is obvious that Mr. Luangphasi and Mr. Le were engaged in criminal activity that involved the trafficking of drugs with others including Mr. Vogelson, Mr. Brown, and Mr. Dixon and that they sought to have a supply of drugs for the purpose of trafficking. This is evident by the frequent use of the words “work” and “food”. They met in parking lots. They spoke in coded language. The “they” here does not include Mr. Le as he did not attend meetings.

[182] In an early conversation on May 20, 2021, Mr. Vogelson and Mr. Luangphasi spoke of quantities and pricing. Mr. Luangphasi spoke of having to pay the “on”. There was a concern that they could not let on what their price was for the “on”. They discussed different scenarios in terms of pricing and where they were going to take their profit “then we will take it out from the back end”. From this early conversation, I am able to logically infer that they are talking about drugs which they intended to import and that they are both voluntarily working together to import drugs.

[183] The key issue in question is whether I am able to discern beyond a reasonable doubt that they are working to import cocaine. The Defence asserts that the Crown has not proven beyond a reasonable doubt that cocaine is the substance being imported.

[184] The Crown says that there are facts which logically support that inference beyond a reasonable doubt. Basil Dixon states that Guyana has a lot of coke. Second, the use of $10,000 Canadian and $100,000 transferred from Mr. Luangphasi to Mr. Le to Mr. Walters to Mr. Dixon’s place on June 20, 2021.

[185] On May 21, 2021, Basil Dixon met with Mr. Luangphasi and Mr. Vogelson, and he mentioned Guyana. In further conversation, he stated that he stays away from certain people, “if you and I don’t have business you don’t need to talk”. The inference logically follows that because of Mr. Dixon’s statement and the meeting, these three have business together and that it is evidence of membership. Guyana is mentioned several times at meetings which follow this one.

[186] On May 23, 2023, Mr. Vogelson stated that “it is possible for us to send forty from here to Guyana”. Later, Mr. Luangphasi stated that “make that come through I make some money I can send it to Guyana. Later in the recorded communications, Mr. Vogelson told Mr. Luangphasi that “work is coming Guyana you understand?”. Guyana continued to be mentioned. Next, Mr. Vogelson explained the exchange rate at it pertained to Guyana:

…it’s just the exchange, they go by Guyana rate because when the money goes to Guyana, you have to buy it back in US and if Guyana don’t move …the exchange rate don’t matter the US go up or go down it is still two two ten … so what we have to do you you calculate it by the Guyana exchange rate which it work out to like to 10 something I think Canadian.

[187] To this, Mr. Luangphasi replied “per piece”. Then there was a further discussion of exchange rates. Essentially, the agreement was that $8,200 US would result in just under $10,000 Canadian. Mr. Luangphasi went on to say that he has US money in Barbados and Beijing money in Barbados. Eventually, Mr. Luangphasi suggested “maybe we should be paying $10,000”. There was a further discussion which continued with Mr. Vogelson saying “we can’t we can’t sit back with this” to which Mr. Luangphasi replied “…. Keep going …. Cuz we need to put some on for ourselves too”.

[188] The expert evidence was that Guyana was a transit country for the importation of cocaine and that the price for a kilogram of cocaine in transit countries was between $5,000 and $10,000 in 2021. The Crown summits that I can logically infer from this that it is cocaine which is being discussed here.

[189] Weeks later, Basil Dixon told Mr. Luangphasi “you know why I say Guyana because you can get a lot of coke there” to which Mr. Vogelson replied “But that too but you couldn’t you can get a lot of food in Surinam too” after which there appeared to be a general agreement that those places can provide cocaine.

[190] On June 19, 2021, Mr. Luangphasi called Mr. Le and told him “I need you to arrange that thing for tomorrow eh”.

[191] The next day, Mr. Luangphasi and a person said to be Charlie Walters spoke by phone. Mr. Luangphasi instructed him that he grab something from Markham and from Finch and the 400. The instructions continued. Mr. Luangphasi directed this person to collect “files” from both places and then drop them in Brampton. Shortly after that, a vehicle probe in Mr. Le’s car intercepted a conversation between Mr. Le and a person alleged to be Mr. Walters. The voices match. They had a brief conversation. About a half hour later, Mr. Luangphasi again spoke with the person said to be Mr. Walters. In this conversation, Mr. Walters stated that “so the one that is in a big package it says it says fifty on it … and its all and its all twenties”. Further conversation revealed that Mr. Walters had “60 packaged”. Mr. Luangphasi directed him first to add 44 to this. The Crown submits that this is about putting together $100,000 to be delivered to 264 Inspire Blvd. I am asked to find that $100,000 is the price of 10 kg of cocaine at $10,000 per/kg which accords with the price of cocaine in the transit country of Guyana and that this conversation is about putting together the money for the transaction that would allow them to import 10kg of the 40 that were to be imported.

[192] Det. Beavis testified that vehicle tracking data of Mr. Walter’s vehicle showed it to be in the area of 254 – 259 Inspire Blvd in Brampton from 16:11 to 16:26 hrs. A check in relation to Mr. Walters phone on that date revealed information that Mr. Walters was in the vicinity of Inspire Blvd. Inspire Blvd is where Mr. Luangphasi, Mr. Vogelson, Mr. Brown and Mr. Dixon met on May 19, 2021.

[193] The Crown relies on a June 11, 2021 conversation between Mr. Le and Mr. Luangphasi in support of its assertion that the plan was to important 40 kg of cocaine with Basil Dixon and Owen Vogelson, of which 10 would belong to Mr. Luangphasi and Mr. Le. On that date, there was a discussion about making money on the “on fees”. The transcript tendered in aid says Oxy but the audio in my view uses the words “on fees”. There is a discussion about what appears to be various lines of their business and then Mr. Luangphasi stated, “Ten but out of the forty ten is ours”.

[194] The wiretaps demonstrate that Mr. Le knows who R (Nathan Brown) is and knows about everything that Mr. Luangphasi is doing. Mr. Le clearly agreed “to put in some work”. Work in this context appears to be meaning to lend a hand. Mr. Le and Mr. Luangphasi constantly strategized with each other. They also appeared friendly with each other. When asked what kind of work Mr. Luangphasi said, “you know suck dick”. Despite the sexual connotations here and sexualized banter elsewhere, there is no evidence that they were sexual partners.

[195] The Crown also asserts that Mr. Luangphasi had no qualms about speaking with Mr. Le in front of Mr. Vogelson as Mr. Le called when he was meeting with Mr. Vogelson. It is clear in this instance that the parties did not want to speak much on the phone.

[196] Presented as such, the wiretaps provide an overwhelming case that Mr. Luangphasi and others were working to import cocaine to Canada.

[197] Beyond the cautions about the use of the expert evidence and the concerns about the limited intercepts interpreted, the Defence submits that on the evidence there are other reasonable inferences that point toward innocence. First, Cpl. MacIntyre was not familiar with Guyana.

[198] Second, Mr. Le argues that he is an admitted cannabis exporter and that it is an available inference for me to interpret that the numerous communications referenced are discussions about cannabis rather than cocaine.

[199] I cannot find on the evidence that there are other reasonable inferences available. I am sure that there was a voluntary agreement between Mr. Luangphasi and others to import cocaine and I am satisfied beyond a reasonable doubt.

(v) Was Mr. Luangphasi probably a member of the conspiracy?

[200] Using evidence directly admissible against Mr. Luangphasi, that is, his own statements in the intercepted communications, I can easily conclude on a balance of probabilities that that he agreed to a plan to import cocaine and was a member of the conspiracy. His own words “make that come through I make some money I can send it to Guyana” is but one example. Further, Mr. Luangphasi suggested “maybe we should be paying $10,000”. When Mr. Vogelson said “we can’t we can’t sit back with this”, Mr. Luangphasi replied “…. Keep going …. Cuz we need to put some on for ourselves too”. The totality of his statements overwhelmingly points not only to his membership but his leadership.

[201] In my view the words keep going demonstrate that Mr. Luangphasi voluntarily agreed to take part in the plan and that he wanted to keep going for their own benefit. I am satisfied that he was probably a member.

(vi) Can I conclude beyond a reasonable doubt that Mr. Luangphasi was a member of the conspiracy?

[202] I can easily conclude that Mr. Luangphasi was a member of the conspiracy beyond a reasonable doubt. The evidence as whole clearly demonstrates an agreement with others to source and import cocaine through Guyana. I accept that I can make the inferences urged upon me by the Crown and that there are no other reasonable inferences that point toward innocence.

[203] I appreciate that context is everything, but I have heard the entirety of the intercepted communications tendered and I can easily conclude Mr. Luangphasi intended to voluntarily enter an agreement with others to import cocaine. The Crown has proven the essential elements beyond a reasonable doubt.

[204] I therefore find him guilty on Count 5.

(vii) Was Mr. Le probably a member of the conspiracy?

[205] Again, at this stage, I must use only Mr. Le’s statements to determine membership on a balance of probabilities. It is clear that he and Mr. Luangphasi have a personal relationship such that they could be considered confidants. On May 25, 2021, they spoke about playing baseball and Mr. Luangphasi invited him to play the next time. I agree that in this call it looks like they have similar lines of business. There was discussion about “our cost is fifty K for the load”, but, in this instance, there is a reasonable inference from the language that follows that this conversation is about cannabis “no front here we’re talking about greens bro”. I believe that greens in this context is cannabis.

[206] On June 10, 2021, Mr. Le and Mr. Luangphasi spoke and the conversation was intercepted. In this conversation, Mr. Le clearly understood who B and R were. There was some discussion and then Mr. Le said:

No you told me something happened recently at remember the one hundred something um I’m not gonna say that exact number but you said on one was something recently that that’s why is not the twenty remember you told me the twenty got sent down there.

[207] Mr. Luangphasi acknowledged that and then Mr. Le stated, “yeah so they know about it”.

[208] In this conversation, B and R are discussed. Mr. Le understands what is being discussed. In my view, this establishes probable membership. It clearly aligns with the amount of money being discussed and the other co-conspirators.

[209] I note here that I am not relying on Mr. Luangphasi’s statements for the truth of their contents, but for context.

[210] Later in this conversation, the talk turned to what appears to be other prospective deals including a trip out west to Calgary by Mr. Luangphasi and then a deal that Mr. Le appeared to be making with respect to the Netherlands and Ecuador. However, the facts that other operations are being discussed does not take away from the initial part of the conversation where it is more probable than not that Mr. Le is talking about the money and players involved in the Guyana operation and that he is a participant in it. I can find no reasonable inference pointing elsewhere.

[211] On June 11, 2021, the two spoke again. In that conversation, Mr. Luangphasi discussed a raid that has happened elsewhere and that the operation was going to be delayed for a week. I do not rely on that statement for the truth of its contents but for the context to Mr. Le’s statements that follows. Mr. Le stated, “We should just get everyone on the new fucking one” which I infer to being a new app, and then Mr. Luangphasi proposed “going to burners”, which the expert stated means burner phones. I can reasonably infer that his conversation was about how to communicate without being intercepted.

[212] I find that in these conversations there is tacit agreement by Mr. Le to act in pursuit of a common criminal objective with Mr. Luangphasi.

[213] Many times in his conversations with Mr. Luangphasi, he agreed to put in some work, meaning assistance.

[214] When Mr. Le spokes with Mr. Luangphasi in the many intercepted calls, Mr. Luangphasi typically did most of the talking. Never did Mr. Le say that he did not know what Mr. Luangphasi was talking about. He also did not distance himself. He lent a supportive ear, listening to all of Mr. Luangphasi’s issues and business dealings which he appeared to understand in detail as evidenced by his consistent responses such as “yeah”, “true” and the offering of suggestions.

[215] For these reasons, I am satisfied that membership of Mr. Le has been made out on a balance of probabilities.

(viii) Has the Crown proven beyond a reasonable doubt that Mr. Le was a member of the conspiracy?

[216] I am satisfied that the Crown has proven membership beyond a reasonable doubt. As I have determined Mr. Le’s probable membership, I may consider all of the acts and the statements by others. I accept that he arranged for money to be taken to Charlie Walters in furtherance of the conspiracy. The Crown’s case is overwhelming taken as a whole. While it is circumstantial, there are no other plausible theories or alternatives in my view. It is clear that in addition to this conspiracy that Mr. Le had a separate plan going on involving marijuana, but those aspects of the conversation are clearly distinguishable from the conversations connected to the Guyana conspiracy.

[217] I therefore find Mr. Le guilty on Count 5.

[218] I intend to address the other conspiracy count before addressing Count 6 which is the criminal organization count. I will now move onto Count 7.

F. Count 7: Conspiracy to Import Cocaine: the Alleged Plane Conspiracy

[219] Count 7 alleges that Mr. Luangphasi conspired with others between the 9th day of June, 2021 and July 7, 2021 to commit an indictable offence to import cocaine contrary to subsection 6 (1) of the CDSA.

(i) Was there an agreement between two or more persons?

[220] At this stage of the analysis, I use all the evidence to determine whether the Crown has proven beyond a reasonable doubt that there was an agreement to import cocaine. Again, I am assessing whether there was an agreement and whether the agreement was to commit the offence as particularized.

[221] The evidence consists of intercepted communications, police surveillance and the expert evidence.

[222] The persons involved are Mr. Luangphasi, Hans Lauro, and Giedrius Kesminas as well as others.

[223] The evidence demonstrates beyond a reasonable doubt that there was a conspiracy to import cocaine by creating an operation to hire a private pilot, Mr. Kesminas, to facilitate the importation of cocaine from Colombia, Guyana and other countries.

[224] I will now address the communications that support this finding.

[225] Mr. Lauro and Mr. Luangphasi clearly knew each other well in these calls. Mr. Lauro advised that he had known Mr. Kesminas for a long time and vouched for him.

[226] On June 9, 2021, Mr. Luangphasi was speaking with Mr. Vogelson as captured by a vehicle probe in Mr. Luangphasi’s BMW. During that conversation, Mr. Luangphasi participated in a call with a person said to be Hans Lauro. In that conversation Mr. Luangphasi asked him, “the pilot guy did you talk to him … about going to Jamaica”. The person replied, “yeah he was gonna look into it he doesn’t care he’ll do it um the planes that we have the smaller one they might have to make a stop but we could also rent one big enough to do it”. Mr. Luangphasi expressed a desire to meet the pilot.

[227] Mr. Luangphasi met with Mr. Vogelson and Mr. Dixon in his car. He relayed that his friend has his pilot licence and that he has planes stating that he has to bring passengers or go on vacation and then when he comes back up here, and he just lands at his own property. He told them that his friend owns a school that teaches people how to fly. There was a discussion about whether the pilot can go to Barbados, Guyana and Jamaica. Mr. Luangphasi told them that the pilot can go to Colombia to which Mr. Dixon replied that if he can go to Colombia, he can go to Guyana.

[228] The three had a further conversation about logistics in Guyana and what the pilot would have to do. It is in this conversation that Basil Dixon said “I say Guyana because you can get a lot of coke there” after which Mr. Vogelson mentions Surinam.

[229] I have relied on this conversation in respect of Count 5. I find that I can rely on it as well in respect of this Count because the object that it is being pursued across the different operations is to import cocaine. I understand that in most cases where there are multiple counts on an indictment, the evidence on one count is not admissible on other counts. This issue was addressed in R. v. Sahaidak, [1990] O.J. No. 3228, at paras. 148-152 (Ont. H.C.). There, Justice Doherty (as he then was), addressed the use of evidence across counts on the issue of knowledge in a multi-count fraud indictment. Justice Doherty held at paras. 150-152:

In most cases where a multi-count indictment is before the Court, evidence adduced on one count is not admissible against an accused on the other counts. Where, however, the events underlying the various counts are part of an ongoing course of dealings, and where those events are interwoven and interrelated so that as a matter of logic and common sense, the events underlying one count also enlighten and assist the trier of fact in understanding and assessing the evidence on the other counts, then evidence directly relevant to one count is admissible on the other counts as well. [Citation omitted]

In this case, Mr. Sahaidak’s knowledge of the fraudulent nature of the transactions is the central issue. In my view, evidence of his involvement in and knowledge of any of these transactions is relevant to a determination of his state of knowledge on the other transactions.

[230] I use a similar analysis here. There are ongoing dealings to try to get drugs into the country and it is a matter of common sense that the evidence in the Guyana conspiracy count allows us to understand and assess the evidence in this Count.

[231] At 17:53 on June 9, 2021, Mr. Luangphasi spoke with Mr. Lauro while he was with Mr. Vogelson. In that conversation, Mr. Luangphasi asked whether Mr. Lauro has spoken to the pilot about going to Jamaica and whether he could go to Guyana. They discussed renting a plane that is bigger so that it does not have to make a stop along the way. Mr. Lauro agreed to set a meeting for the next day.

[232] There appears to have been an international drug raid around this time. On June 11, 2021, when speaking with Mr. Lauro, Mr. Luangphasi told him that “we’re gonna delay it another week for our thing” to which Mr. Lauro replied, “No good”. Mr. Luangphasi stated: “I know but we you you hear about those things going whatever whatever right and all those fucking busts overseas”. He explained that the FBI managed to take down four countries so that his matter is delayed.

[233] Mr. Luangphasi asked if the pilot go to the Caribbean “and stuff”. Mr. Luangphasi told Mr. Lauro it is important to meet him, meaning the pilot.

[234] Mr. Luangphasi then engaged in discussions directed at arranging a pilot to bring in drugs from Jamaica, the Dominican Republic and Guyana which are transit countries for cocaine. Some of this discussion overlaps with the Guyana conspiracy discussions. The focus of Mr. Luangphasi’s conversations with others during this time is to source cocaine and find a way to move it. Mr. Lauro again agreed to set up a meeting with the pilot for the next day.

[235] The Defence asserts that the particularized substance is not made out.

[236] On June 14, 2021, in a conversation with Mr. Vogelson, they had a further discussion about getting a pilot and essentially that if they get a pilot, they’ll be good. They have a further conversation about other persons involved, B and R and difficulties associated with them and then Mr. Luangphasi stated:

How am I gonna call when I’m not doing the on or the off like what the fuck my job is to pass money and get the work that’s my job your job is to get the work and their job is to fucking load it and send it you know what I mean so we done our part we come through fucking stressful bro it really is but fuck man I’m telling you B’s past due and tell fucking B … another four that’s ten ….. I’ll pay the on …. Ask him

[237] On June 14, 2021, Mr. Lauro informed Mr. Luangphasi that the pilot’s wife’s father went into a coma and that while he was supposed to speak with him that day, the pilot was going to keep him posted. Mr. Lauro told Mr. Luangphasi that the pilot has flown him a bunch of times so he’s capable of it. Mr. Luangphasi asked if he takes people on vacation. Mr. Lauro says that he hasn’t done that yet but if you have your own plane, no one really looks at you, you just pay to park your plane.

[238] The back and forth continued and culminated in a meeting on June 16, 2021 in Bronte Rd in Burlington, Ontario. In arranging this meeting, Mr. Lauro identified his friend as Greg. The meeting took place between Mr. Luangphasi, Mr. Brown and Mr. Kesminas.

[239] Mr. Kesminas was identified by his vehicle and driver’s licence photograph. The conversation was picked up by vehicle probe as they were standing next to Mr. Luangphasi’s vehicle. He told Mr. Luangphasi that he would be away until July 6 or 7, 2021 as his wife’s father had passed away and he had to go to Lithuania for the funeral. Mr. Luangphasi told him that the trip would probably be to Jamaica or the Dominican Republic. Mr. Luangphasi told him that he can get him clear to Hamilton and that the weight is going to be 300 kilos. Mr. Luangphasi clarified, at least 300 to 500 kilos and that he has a specialist mechanic who can figure out a spot and set it up all nice and that when he returns to Canada, customs “will know 100% they will call me to declare you and that’s it.”

[240] Mr. Luangphasi then discussed renting a jet. He explained that he had a pilot and a private jet. The pilot was from Halifax but he died of a heart attack the previous year.

[241] Mr. Kesminas informed him that when you rent a jet you rent the pilot as well. The discussion then turned to buying a plane. Mr. Kesminas would later go on to explain that it might be better to get a turbo prop plane.

[242] Mr. Luangphasi explained he has “customs in Hamilton” and “customs at Pearson” but that it is cheaper in a smaller place. He reassured Mr. Kesminas that he would be looking after everything and that he is experienced.

[243] They discussed “emergency landings” in places such as Grimsby in order to avoid detection. Mr. Kesminas told him that his reputation in Hamilton is high. Mr. Kesminas explained that he could not go to the United States and that his routes would require not stopping in the United States. Mr. Kesminas explained that a turbo prop can go to Jamaica or the Dominican Republic.

[244] At the end of the meeting, Mr. Luangphasi told him to go on this trip and then after (i.e. meaning that their work will begin after he returns). Mr. Kesminas asked for Mr. Luangphasi’s number so that he could send something, and Mr. Luangphasi provided him with his cell phone number, urging him to contact him directly.

[245] After the meeting, Mr. Luangphasi continued to speak with Nathan Brown. Mr. Luangphasi told Mr. Brown that he trusts the guy who introduced him to Mr. Kesminas as he has known him for “like ten fucking years selling fucking shit to him all fucking ten years”. Further he stated that his friend owns part of the private school. He told Mr. Brown that his guy has known the pilot for 20 years and that his buddy vouches for him.

[246] They continued speaking and Mr. Brown said, “let’s do this” to which Mr. Luangphasi responds “yeah”.

[247] After the meeting with Mr. Kesminas, on June 16, 2021, Mr. Luangphasi called Mr. Le and told him that he should have picked up his phone earlier because “you may have missed the most important meeting in the world”. He told him that his dreams might be coming true. He did not wish to discuss it over the phone.

[248] Mr. Luangphasi then called Mr. Lauro “so we’ll talk to him when he gets back” and then referred to the funeral. He thanked Mr. Lauro.

[249] The entirety of this meeting, together with the expert evidence about transit countries and the nature of Mr. Luangphasi’s drug trafficking operation which includes the trafficking of the cocaine satisfies me beyond a reasonable doubt that there was an agreement to import cocaine in contravention of s. 6(1) of the CDSA.

(ii) Was Mr. Luangphasi probably a member?

[250] Using only evidence directly admissible against Mr. Luangphasi, I am easily satisfied that the Crown has proven Mr. Luangphasi’s membership on a balance of probabilities. Mr. Luangphasi’s statements that he was the leader and driver of the plan. He sought to have his own means by which to bring cocaine into the country. He sought out the meeting with Mr. Kesminas and then coordinated with Mr. Brown to facilitate the meeting.

(iii) Has the Crown proven Mr. Luangphasi’s membership beyond a reasonable doubt?

[251] The Crown has met it burden. The evidence overwhelmingly demonstrates that Mr. Luangphasi sought to import cocaine by having his own pilot to do so as he had in the past. He pursued a meeting with Mr. Kesminas and reached an agreement to secure a plan that would allow for the smuggling of cocaine into Canada from Jamaica, Guyana or the Dominican Republic. The totality of the evidence points only in this direction that Mr. Luangphasi had a clear intention to put into effect a plan with others to import cocaine.

[252] I find him guilty on Count 7.

G. Count 6: Criminal Organization

[253] Count 6 on the indictment alleges that Mr. Luangphasi and Mr. Le with others, participated in the activities of a criminal organization for the purpose of enhancing the ability of the organization to commit the indictable offence of importing a controlled substance, contrary to s. 6(1) of the CDSA, thereby committing an offence contrary to s. 467.11 of the Criminal Code.

[254] S. 467.11 of the Criminal Code provides:

(1) Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this or any other Act of Parliament, knowingly, by act or omission, participates in or contributes to any activity of the criminal organization is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that

(a) the criminal organization actually facilitated or committed an indictable offence;

(b) the participation or contribution of the accused actually enhanced the ability of the criminal organization to facilitate or commit an indictable offence;

(c) the accused knew the specific nature of any indictable offence that may have been facilitated or committed by the criminal organization; or

(d) the accused knew the identity of any of the persons who constitute the criminal organization.

(3) In determining whether an accused participates in or contributes to any activity of a criminal organization, the Court may consider, among other factors, whether the accused

(a) uses a name, word, symbol or other representation that identifies, or is associated with, the criminal organization;

(b) frequently associates with any of the persons who constitute the criminal organization;

(c) receives any benefit from the criminal organization; or

(d) repeatedly engages in activities at the instruction of any of the persons who constitute the criminal organization.

[255] Section 467.1 of the Criminal Code provides that:

(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.

(2) For the purposes of this section, section 467.11 and 467.111, facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed.

(3) In this section and in sections 467.11 to 467.13, committing an offence means being a party to it or counselling any person to be a party to it.

(4) The Governor in Council may make regulations prescribing offences that are included in the definition serious offence in subsection (1).

[256] The actus reus of the offence is set out in ss. 467.11(1) which is to participate in or contribute to the activities of the criminal organization. The mens rea requires proof that the accused:

a. Had knowledge of the existence of the criminal organization

b. Knowingly participated in the activities of the criminal organization; and

c. Did so for the purpose of enhancing the ability of the criminal organization to facilitate or commit an indictable offence.

[257] In R. v. Abdullahi, 2023 SCC 19, the Supreme Court of Canada reviewed the criminal organization framework. The Court noted at paras. 76 to 88 the distinguishing features of a criminal organization which I summarize as follows:

• The group must have “some form of structure and degree of continuity” before the “exceptional regime” of the organized crime provisions of the Criminal Code is engaged;

• A purposive approach must be undertaken in order to identify and undermine groups that posed an enhanced threat to society due to the institutional advantages of structure and continuity. Those advantages include sharing customers and resources, developing specializations, dividing labour, fostering trust and loyalty and developing reputations in the community, including for violence. These advantages allow the criminal organization to elude law enforcement more effectively;

• To counteract these advantages, Parliament created special tools in the Criminal Code including authorization and warrant provisions, sentencing provisions and other statutory provisions;

• The structure and continuity aspects of the provisions distinguish organized crime from serious crime committed by three or more people; and

• A flexible factual assessment must be conducted when assessing structure and continuity.

[258] The rationale for purposive approach to determining whether a group is a “criminal organization” was set out in R. v. Vennari, 2012 SCC 33, [2012] 2 S.C.R. 211, at paras. 40-41:

It is preferable by far to focus on the goal of the legislation, which is to identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members. All evidence relevant to this determination must be considered in applying the definition of “criminal organization” adopted by Parliament. Groups of individuals that operate on an ad hoc basis with little or no organization cannot be said to pose the type of increased risk contemplated by the regime.

Courts must not limit the scope of the provision to the stereotypical model of organized crime -- that is, to the highly sophisticated, hierarchical and monopolistic model. Some criminal entities that do not fit the conventional paradigm of organized crime may nonetheless, on account of their cohesiveness and endurance, pose the type of heightened threat contemplated by the legislative scheme.

[259] Looking at the statutory provisions and the case law, I conclude that to make out this Count, the Crown must prove beyond a reasonable doubt that there is a group of three or more persons, the group has some degree of structure and degree of continuity, the group shares a common goal of which one of its main purpose involves the facilitation or commission of serious criminal offences for the material benefit of the group as a whole or to the individual members of the group. See: R. v. Evans, 2013 ONSC 7003, [2013] O.J. No. 5677 (Ont. S.C.J.), at paras. 6 and 9; affd (on conviction) 2019 ONCA 715

[260] The Crown alleges a criminal organization existed between at least Mr. Luangphasi, Mr. Le and Mr. Walters.

[261] On June 19 and 20, 2021, Mr. Luangphasi instructed Mr. Le and Mr. Walters to collect and transport the money for the Guyana conspiracy. The Crown asserts Mr. Luangphasi is the person at the top and he directed them to collect money for the benefit of the organization.

[262] On May 31, 2021, Officer Lidstone was conducting surveillance. The original plan was to identify a man coming to meet Mr. Le at 273 South Park Drive which was known to be the condo where Mr. Le lived. They had received information that an individual would be picking up something from Mr. Le and that it could be money. An unknown male was observed carrying a red reusable shopping bag in one had which appeared to be half full and the top was squished together. The unknown male moved quickly through a row of townhouses where Mr. Le lived. While the object of the surveillance was to conduct surveillance on Mr. Le, Officer Lidstone decided to shift to follow the unknown male. They witnessed a man leaving Mr. Le’s residence with a red grocery bag.

[263] The operation shifted to follow the vehicle. The vehicle was misplaced in the area of Major MacKenzie and Berrens Street in the City of Vaughan. The wiretaps from that time revealed that Mr. Le was communicating with an unknown person who was coming to meet him. The man told him that he thought he was being followed. Mr. Le instructed him on how to determine if he is being followed. Mr. Le asked him “did you drop the paper yet?”. Paper is understood to be money. Immediately after this call Mr. Le called Mr. Luangphasi to tell him that “B” says he is being followed and asked what to do. Mr. Le then called the unknown male back and told him what do to evade the police. The Crown submits that he was picking up money for the organization.

[264] On June 1, 2021, Mr. Le and Mr. Luangphasi spoke in the context of a surveillance photo being taken of him. The Crown submits that this call provides more evidence of the structure of continuity and structure of the criminal organization, in particular, Mr. Luangphasi’s statement that ““Old Man” and “Beams” can’t be in the picture anymore”. The Crown submits that this shows Mr. Luangphasi’s power and his ability to dispense with people. The Crown also argues that if things were going to be done differently, that there was a way to do things before.

[265] The Crown relies on a statement made by Mr. Luangphasi that after “Law” he was “just going to do greens”, meaning cannabis, to which Mr. Le replied, “no you’re not”. It is urged upon me to infer that there was more to Mr. Luangphasi’s operation than just cannabis and also that Mr. Le had knowledge of the operations.

[266] On one occasion, Mr. Le said “we should get everyone on the new one” and then Mr. Luangphasi expressed a need to get everyone on burner phones. The Crown asserts that this means that there is a group which Mr. Le and Mr. Luangphasi direct and that Mr. Luangphasi wants everyone in his organization on a safe communication plan. They discuss the costs associated with that. I heard from Cpl. MacIntyre that burner phones are common in the drug trade in order to reduce the chance of calls being intercepted.

[267] On May 24, 2021, Mr. Luangphasi spoke with Mr. Walters:

AL: The nine you took from Hulk

CW: (unintelligible)

AL: So what I am gonna do is I’m gonna charge you ten for that and then

CW: Yeah

AL: I’ll owe whatever what (unintelligible)

CW: Yeah

AL: Whatever at least grab you another two and then I’ll owe you four so then you’ll owe me ten K but I’ll still owe you four zips

[268] The Crown submits that this means that Charlie Walters is being directed to sell drugs for Mr. Luangphasi.

[269] Mr. Walters was the subject of a search on July 7, 2021, and there were large quantities of many different kinds of drugs found there. The Crown submits that I can reasonably infer that the drugs seized were those of Mr. Luangphasi’s organization.

[270] The Crown notes that Mr. Le was running a cannabis export operation and that he has pleaded guilty to this.

[271] I reject the Crown’s assertion that Mr. Le was trafficking Oxy for the organization. The proper interpretation of this call is that they profit on the “on fees”.

[272] The totality of the evidence shows that this is a sophisticated group. Mr. Luangphasi was able to know from the police whether a person was under investigation and stated that “he pays people to get information”. This more than bluster. He used fear in his dealings with others threatening physical harm. He and Mr. Le appear to have an extensive network of connections of other criminals.

[273] However, the Crown has not satisfied me beyond a reasonable doubt that there is structure and continuity to support the charge of criminal organization. I cannot be certain that the Mr. Luangphasi directed Mr. Walters in the manner the Crown asserts. I also do not have the evidence that Mr. Luangphasi’s relationship with Mr. Walters is longstanding. I cannot be certain either of the membership or that there is continuity to it.

[274] The inferences that the Crown asks me to draw would be speculative.

[275] For this reason, I am left with reasonable doubt, and I find Mr. Luangphasi and Mr. Le not guilty on Count 6.

[276] I will move onto Count 17.

H. Count 17: Proceeds of Crime

[277] Heaps of cash (including $33,050 in a shoebox of the primary bedroom closet and $7,620 in a pocket of a jacket in the primary bedroom closet), a crypto key, and other things were found at Mr. Luangphasi’s residence when a search warrant was executed on July 7, 2021.

[278] The Crown says it logically follows that the money found represents proceeds of crime.

[279] Other than the fact that Mr. Luangphasi was involved in criminal activities, there is nothing that ties this money to those activities. He shared the bedroom with another person, and we do not know if the money belonged to her.

[280] In my view, the Crown has not proven this Count beyond a reasonable doubt and there will be a finding of not guilty on Count 17.

VII. Conclusion

[281] In respect of Mr. Luangphasi, I find him not guilty on Counts 2, 3, 6 and 17. I find him guilty on Counts 1, 5 and 7.

[282] In respect of Mr. Le, I find him not guilty on Counts 2 and 6 and guilty on Counts 1 and 5. He has already been found guilty on Count 16.

Justice S.E. Fraser

Date: February 23, 2024

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

ADAM LUANGPHASI and ALEXANDER LE

Defendants

REASONS FOR DECISION

Justice S.E. Fraser

Released: February 23, 2024