NEWMARKET COURT FILE NO.: CR-23-00000002-0000 DATE: 20240531

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – BASIL DIXON and NATHAN BROWN Defendants

COUNSEL: F. Alibhai, K. Yeh and S. Malik, for the Crown P. Klumak, for Mr. Dixon G. Dorsz and T. Newby-Parkes, for Mr. Brown

HEARD: October 23, 24, 25, 26 27, 30, 31, November 1, 3, 14, 2023

A.A. CASULLO, J.:

I. Overview

[1] Basil Dixon and Nathan Brown are charged with offences arising from an investigation initiated by the Ontario Provincial Police (“OPP”) and York Regional Police in 2020, dubbed “Project Southam”. This was a large-scale investigation with many individuals charged.

[2] Regarding Count One, Mr. Dixon is charged with conspiring with other persons known and unknown to commit the indictable offence of importing cocaine between May 19, 2021, and July 7, 2021, contrary to s. 465 of the Criminal Code, R.S.C., 1985, c. C-46.

[3] Regarding Count Three, Mr. Dixon and Mr. Brown are charged with conspiring with other persons known or unknown to commit the indictable offence of importing cocaine between June 9, 2021, and July 7, 2021, contrary to s. 465 of the Criminal Code.

[4] Two other accused were initially named on this indictment: Owen Vogelson, who plead guilty prior to trial, and Charlie Walters, who was severed from the indictment at the outset of trial and will be tried separately.

[5] The trial proceeded on re-election to be heard by a judge alone. As is their right, neither Mr. Dixon nor Mr. Brown testified. They submit that the Crown has failed to prove beyond a reasonable doubt the various essential elements of the offences. As this is primarily a circumstantial case, there are inferences other than guilt available on the evidence that should lead to Mr. Dixon and Mr. Brown being acquitted.

II. The Trial

[6] The Crown’s case against Mr. Dixon and Mr. Brown relied almost exclusively on 117 interceptions of private communications between the defendants and others, which had been culled from thousands of intercepts. The Crown also relied on the surveillance observations of various OPP officers.

[7] The intercepts were derived from either telephone calls, or audio probes placed in and around cars. Each was assigned a numeric identifier. Each intercept consists of segments of up to ten minutes. If a conversation lasted longer than ten minutes, a new Session was created for every additional ten minutes. Thus, a 30-minute conversation would be broken down into five separate but successive, Sessions.

[8] Beyond the four accused named in the original indictment the intercepts also captured Adam Luangphasi, the indisputable ringleader; Hans Lauro, Mr. Luangphasi’s right hand man; Alexander Le, Mr. Luangphasi’s confidant; and Giedrius Kesminas, the pilot.

[9] The phone intercepts were clearly audible and easy to follow. The vehicle probes were frustratingly difficult, not only to listen to, but to comprehend. Above the voices could be heard seatbelt warning beeps, traffic in the immediate vicinity of the vehicle, sirens, and music, and a general, ambient buzz that was rarely absent.

[10] The identities of Mr. Dixon and Mr. Brown are admitted only so far as they are the accused before the court and were arrested on July 7, 2021. However, voice identification of Mr. Dixon as captured in the intercepts, and both the identity and voice identification of Mr. Brown, as captured in the intercepts and surveillance, are not admitted.

[11] The court heard from sixteen witnesses. Detective Constable (“DC”) Mark Donnelly introduced the intercepts and provided evidence on voice identification. Two additional intercepts were entered by defence during DC Donnelly’s cross-examination.

[12] Twelve officers testified about what they observed during surveillance: the parties they observed meeting, where the meetings were held, etc. Through these officers, photographs and videos of meetings were introduced as exhibits.

[13] Corporal Rodney MacIntyre of the Royal Canadian Mounted Police was qualified to provide expert opinion evidence on, inter alia, the pricing, distribution and value of drugs, methods of drug importation, as well as language and jargon utilized in the drug trade.

[14] Corporal MacIntyre authored two reports that were entered as exhibits. The first report, dated February 27, 2023, contained information on the production and sources for cocaine. Also referenced were eight incidents unrelated to Mr. Dixon or Mr. Brown.

[15] The second report is dated September 5, 2023. It contains excerpts from five conversations, and Corporal MacIntyre’s opinion as to whether the conversations are consistent with the nature and hierarchy of the drug trade.

[16] Corporal MacIntyre adopted the contents of the two reports during his evidence in chief, opining that the conversations referenced in the September 5, 2023, report were consistent with drug trafficking.

[17] DC Beavis was the Lead Investigator on Project Southam. Through DC Beavis, the Profile Photographs Brief was marked as Exhibit 14 [1]. DC Beavis identified Mr. Lauro, Mr. Dixon, Mr. Kesminas, Mr. Brown, Mr. Vogelson, Mr. Le, Mr. Walters, and Mr. Luangphasi. While he had never met them, he was able to identify the men by reviewing the various surveillance conducted on each, including photos and videos taken throughout the course of the Project Southam investigation.

[18] Over Mr. Klumak’s objections, I also permitted DC Beavis to introduce as exhibits the results of Ministry of Transportation (“MTO”) record checks he conducted on vehicles observed during surveillance. These searches revealed that during the relevant charge period:

• Mr. Dixon and/or Phylicia Dixon, were the registered owners of a brown 2014 Porsche, plate number CMEP 289.
• Mr. Brown was the registered owner of a black 2015 Lexus, plate number CHMH 884
• Mr. Vogelson and N. Pollydore were the registered owners of a silver 2014 Nissan, plate number CPRL 275
• Ms. Tanya Luang was the registered owner of a white 2021 BMW, plate number CSTZ 080. This is the same plate number that appears on the white BMW used by Mr. Luangphasi, into which the vehicle probe was placed, and which is captured in the video and photographic surveillance. Ms. Luang’s address was listed at 12 Laurelhurst Crescent in Vaughan. Mr. Luangphasi’s home address pursuant to the Surveillance Reports (see Exhibit 13), is 12 Laurelhurst Crescent in Vaughan.

[19] DC Balazs testified to the arrest of Mr. Dixon on July 7, 2021. He also described what a PMC is for the court, as references to PMCs are sprinkled throughout the intercepts. A PMC is akin to a pallet. However, it is aluminum, not wooden. Items being transported by air are placed on top of the PMC.

Admissions

[20] A number of admissions were made by way of three Agreed Statements of Fact (“ASF”) pursuant to s. 655 of the Criminal Code. In the first ASF the authenticity, continuity, and accuracy of the JSI software, including date, time, phone numbers, directionality, accuracy of the probes and duration was admitted. The parties took no issue with the results of the Production Orders, Subscriber Information, and LBS Data. The phone numbers used by Adam Luangphasi, Charlie Walters, Owen Vogelson, Hans Lauro, Alexander Le and Giedrius Kesminas were also admitted.

[21] The second ASF contained admissions as to what was found during the July 7, 2021, search of Mr. Walters’ residence.

[22] The third ASF contained admissions as to what was found during the July 7, 2021, search of Mr. Dixon’s residence including Canadian currency in mostly twenty-dollar bills totaling $23,660, in the brown Porsche bearing license plate number CMEP 289.

III. Fundamental Legal Principles

[23] Two fundamental principles must be kept foremost in mind in any criminal trial in Canada.

[24] First, Mr. Dixon and Mr. Brown are presumed innocent until the Crown proves the offences beyond a reasonable doubt.

[25] Second, I am not to lose sight of the fact that the burden always remains on the Crown to prove every element of every offence beyond a reasonable doubt. Reasonable doubt is “a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 30. Reasonable doubt does not involve proof to an absolute certainty, nor is it proof beyond any reasonable doubt, such as an imaginary or frivolous doubt: R. v. Starr, [2000] 2 S.C.R. 144.

IV. Applicable Law

Elements of Conspiracy

[26] In this case the Crown has alleged two conspiracies. In the first, Mr. Dixon conspired with Mr. Luangphasi, and others, to import cocaine from, amongst other locations, Guyana. In the second, Mr. Dixon and Mr. Brown conspired with Mr. Luangphasi and others to import cocaine using the services of Mr. Kesminas.

[27] Section 465(1) of the Criminal Code provides that 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.

[28] The Crown must prove three essential elements to make out the offence of conspiracy: an intention to agree; the completion of an agreement to commit an indictable offence; and an intention to carry out the agreement: R. v. O’Brien, [1954] S.C.R. 666, at p. 668.

[29] The gist of the offence of conspiracy is the agreement itself. The crime is complete when two or more persons agree to commit an indictable offence: Papalia v. R., [1979] 2 S.C.R. 256 at pp. 276-277.

[30] There is no need for the Crown to prove that any steps were taken to commit the substantive offence, although acts done in furtherance of the offence may assist in establishing the conspiracy: R. v. Douglas, [1991] 1 S.C.R. 301, at para. 48.

[31] The conspirators do not need to agree on every detail of the plan. It is enough that they agree to commit substantially all of the elements of the offence that is the subject of the conspiracy: R. v. Lessard (1982), 10 C.C.C. (3d) 61.

[32] As Doherty J.A. described in R. v. Alexander and Blake (2005), 206 C.C.C. (3d) 233 (Ont. C.A.), at para. 48:

The actus reus of the crime emphasizes the need to establish a meeting of the minds to achieve a mutual criminal objective. This emphasis on the need for a consensus reflects the rationale justifying the existence of a separate inchoate crime of conspiracy. Confederacies bent upon the commission of criminal acts pose a powerful threat to the security of the community. The threat posed by a true agreement to jointly bring about a criminal end justifies a pre-emptive strike by the criminal law as soon as the agreement exists, even if it is far from fruition. However, absent a true consensus to achieve a mutual criminal objective, the rationale for the crime of conspiracy cannot justify criminalizing joint conduct that falls short of an attempt to commit the substantive crime.

[33] The mens rea of conspiracy is the genuine intention to commit the indictable offence: R. v. Wang, 299 C.C.C. (3d) 431, at para. 44.

[34] What the court must examine is what was agreed, not what was done. As the Court of Appeal states in R. v. Root, 244 O.A.C. 41 (“Root”), at para. 67,

In conspiracy cases, the important inquiry is not about the acts done in pursuit of the agreement, but whether there was, in fact, a common agreement in the first place to which the acts are referable and to which the alleged conspirators were privy.

[35] As Allen J. reminds us in R. v. Shanker, 2023 ONSC 5812, at para. 17 (j), referencing the Court of Appeal in R. v. Mills (1962), 47 Cr. App. R. 49, “[n]egotiations alone will not suffice, and sometimes it may be very difficult to determine whether the parties are merely negotiating or have agreed to do something if it is propitious to do so.”

Circumstantial Evidence

[36] There is typically no smoking gun in conspiracy cases. There are no written contracts drawn up, no memoranda of understanding setting out the agreement to conspire, and thus the charges must be proven through circumstantial evidence. Rarely is the evidence linear and bundled together in a tidy package. That is certainly the case here.

[37] In 1933, the Supreme Court of Canada in Paradis v. The King, [1934] S.C.R. 165, at p. 168, grappled with the realities of establishing a conspiracy:

Conspiracy, like all other crimes, may be established by inference from the conduct of the parties. No doubt the agreement between them is the gist of the offence, but only in very rare cases will it be possible to prove it by direct evidence. Ordinarily the evidence must proceed by steps. The actual agreement must be gathered from “several isolated doings” having possibly little or no value taken by themselves…

[38] It is well-settled law that the burden is on the Crown in a circumstantial case to prove beyond a reasonable doubt that guilt is the only reasonable inference from the evidence: R. v. Villaroman, [2016] 1 S.C.R. 1000, at para. 20.

[39] The defence need not persuade me that there are other more reasonable, or even equally reasonable inferences that can be drawn. The “mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt”: R. v. Griffin, 307 D.L.R. (4th) 577, at para. 34.

[40] The question is “whether the circumstantial evidence, viewed logically and in light of human experience, is capable of supporting an inference other than that the accused is guilty?”: Villaroman, at para. 38. If so, then Mr. Dixon and/or Mr. Brown must be acquitted.

[41] In this case, the Crown submits that when the evidence is viewed in its totality, namely the intercepts and the surveillance observations, along with Corporal MacIntyre’s guidance in terms of coded language, I can be convinced beyond a reasonable doubt that the gravamen of the offence has been made out.

The Co-Conspirator Exception to the Hearsay Rule

[42] Precisely because it is so rarely possible to prove conspiracy through direct evidence, over the years the co-conspirator exception to the hearsay rule has developed. This allows out-of-court acts and declarations of others to be admitted as evidence against an accused.

[43] The exception operates as follows. If the Crown proves the existence of a conspiracy beyond a reasonable doubt, two further steps must be taken, as set out in R. v. Carter, [1982] 1 S.C.R. 938.

[44] First, considering only the evidence directly admissible against each accused, I must determine whether the Crown has proven that Mr. Dixon and/or Mr. Brown were probably members of the conspiracy.

[45] Second, if I find that Mr. Dixon and/or Mr. Brown were probably members of the conspiracy, I can use the acts and declarations of other members of the conspiracy against Mr. Dixon and/or Mr. Brown to decide if they are guilty beyond a reasonable doubt. These other members would include Mr. Luangphasi, Mr. Vogelson, and Mr. Kesminas.

[46] Of course, employing the co-conspirator’s exemption is unnecessary when there is direct evidence against an accused in a conspiracy case.

V. Positions of the Parties

Crown

[47] The Crown submits that the evidence before the court – including the intercepts and the surveillance – overwhelmingly prove each element of the conspiracies beyond a reasonable doubt.

Mr. Dixon

[48] Mr. Dixon asserts that the Crown’s burden has not been met in respect of a conspiracy to import cocaine. Without conceding that there is conspiracy, Mr. Dixon submits that at its highest, the Crown’s evidence against him can support only a conspiracy to import marijuana.

Mr. Brown

[49] Mr. Brown argues that the Crown has not proven beyond a reasonable doubt that he is the “R” referenced in the intercepts. Further, the circumstantial evidence relied upon by the Crown is not only inconsistent with guilt, it actually points away from guilt.

[50] Both Mr. Dixon and Mr. Brown submit that the Crown has failed to establish that the only reasonable inference to be drawn from the circumstantial evidence is that of guilt beyond a reasonable doubt.

VI. Expert Evidence – The Drug Trade

[51] Drug importers are participating in an illegal enterprise, and the goal is to get the drugs where they want them without either law enforcement or a competitor, who may steal the drugs, finding out. Accordingly, it is commonplace to use jargon, or coded language, to prevent others from finding out what they are talking about.

[52] During his testimony, Corporal MacIntyre provided, inter alia, the following interpretations for coded language:

• ‘Chick’ is a kilogram of cocaine;
• ‘Work’ is used by drug traffickers to indicate that they either have drugs to sell (i.e., “I’m looking for work”), or they are looking to buy drugs (i.e., “do you have any work?”);
• At times drugs are referred as ‘food’ to reduce the chances of being detected by law enforcement (i.e., “I have food”, “I need to get food”);
• The ‘on’ or the ‘door’ is the person who loads the drugs onto the mode of transport in the transit country;
• The ‘off’ is the person who removes the drugs from the mode of transport in the destination country;
• ‘Paper’ is money;
• ‘Fast’ and ‘slow’ are references to the mode of transportation – fast is via plane, slow is via boat;
• A reference to a ‘wire’ can mean sending money, although depending on the context in which the word is used, it can also refer to someone who has a wire on; and
• A ‘burner’ is slang for a mobile phone purchased with a set number of prepaid minutes. When the minutes are used up, the phone is discarded. Burners are typically purchased with cash to avoid the risk of the phone being traced back to the user. Burner phones are often used by those involved in the drug trade to impede law enforcement’s ability to intercept their phone calls.

[53] Columbia is the largest source country for cocaine, producing about 90 percent of the cocaine that enters Canada. Because the country is known as a producer, cocaine is typically moved through a transit country to avoid detection at the Canadian border.

[54] Modes of transportation include on someone’s person (i.e., in a backpack), via land crossing, private and commercial air transport, cargo and marine vessels, pleasure craft, commercial sea container ships, even semi-submersible boats.

[55] There are any number of transit countries in the Caribbean, some of the better-known ones being Jamaica, St. Lucia, and the Dominican Republic. The common feature amongst transit countries is their geographic proximity to Columbia.

[56] Importers need people on the ground in transit countries to move the drugs, so networks are established, and bribes are paid.

[57] Cocaine can be imported in bricks, and at times logos are pressed or stamped into the bricks and used as identifiers. While other drugs may use stamps as well (i.e., pills), in Corporal MacIntyre’s experience it is cocaine that is generally stamped.

[58] Corporal MacIntyre explained that the drug business is similar to other businesses, in that everyone along the route has to be paid. Cocaine is bought relatively cheaply in the source country, and as it moves through the source country to the ports, then the transit country, and then to the destination country, the price increases at each step. This is the rationale for paying ‘on fees’ and ‘off fees’ – the individuals who are physically moving the drugs face significant risk.

[59] In 2021, a kilogram of cocaine could be purchased for $2,200 in Columbia’s interior. By the time it reached one of the country’s ports, the kilogram would sell for between $5,500 and $7,000. The price would continue to increase as it left the country and got closer to the consumption market. By way of illustration, in 2021, a kilogram of cocaine would go for between $36,000 to $56,000 in the Greater Toronto Area.

[60] When large quantities of cocaine are being imported, it is not unusual for a number of individuals, or even groups, to go in on the purchase together. Oftentimes, on such larger purchases, the full price is not required in advance. Instead, a down payment is made at the outset, and the balance is paid when the drugs are sold.

[61] In cross-examination, Corporal MacIntyre fairly agreed that “food”, “on” “off” “fast” and “slow” are terms used to describe all drugs, not only cocaine.

VII. Identification

[62] The OPP conducted a significant amount of surveillance over the course of Project Southam. In respect of Mr. Dixon and Mr. Brown, there are video recordings, photographs, and eyewitness observations made by the surveillance team.

[63] As noted, there were a total of 119 intercepts entered into evidence. These intercepts were played in court. While drafting these reasons, I listened to each intercept a second time. While there were some inaccuracies in the transcripts (which were provided as an aide to the court, and not treated as evidence), the transcribers passably captured the conversations heard via vehicle probes.

[64] The Crown provided a Voice Identification Brief that was entered as Exhibit 4A [2]. This document contained transcriptions of conversations in which certain individuals identified themselves.

[65] For example, in Tab 3, Mr. Luangphasi identifies himself as Adam Luangphasi to a representative of the Bank of Montreal. Similarly, in Tab 13, Mr. Vogleson identifies himself as Owen Vogleson when booking an appointment for a blood test.

[66] There were no corresponding conversations in which Mr. Dixon or Mr. Brown confirmed their identity. In fact, at no point in the intercepts are Mr. Dixon or Mr. Brown ever referred to by their names. The Crown submits that the man identified as “B” is Mr. Dixon, and the man identified as “R” is Mr. Brown.

[67] Given this lacuna in vocal identifiers, the Crown turned to other means of identifying the voices.

[68] DC Donnelly was called as a witness because he was familiar with the voices of Mr. Dixon and Mr. Brown. Following a bifurcated voir-dire, I permitted DC Donnelly to give evidence that he recognized the voices on the intercepts to be Mr. Dixon and Mr. Brown. The Crown submitted that DC Donnelly was well positioned to give voice identification evidence, as he was part of the wire room operation, and had reviewed thousands of wires and intercepts. More significantly, DC Donnelly conducted the post-arrest interviews of Mr. Dixon and Mr. Brown on July 7, 2021, each of which lasted around an hour.

[69] On the stand, DC Donnelly testified that, based on this one-time, face-to-face interaction with each accused, he could confidently say that the voices he heard on the intercepts were Mr. Dixon and Mr. Brown.

[70] During cross-examination, DC Donnelly conceded that when he was listening to the wiretaps, he was also relying on the contemporaneous surveillance evidence – photographs, videos, and reports – to buttress his opinion that the speaker was either Mr. Dixon or Mr. Brown.

[71] As Mr. Dorsz submitted, there has been much judicial ink spilled on the frailties of voice identification and voice recognition evidence. In R. v. Dodd, 322 C.C.C. (3d) 429, at para. 79, the Court of Appeal held that “voice identification evidence is even more fraught with dangers than eyewitness identification evidence. It ought to be treated with extreme caution.”

[72] Because DC Donnelly’s conclusions were based on limited exposure to the sound of Mr. Dixon and Mr. Brown’s voices, I do not have confidence in his ability to identify their voices for the following reasons.

[73] First, he confirmed that for the entirety of the 120-day investigation, over the course of which he monitored intercepts and wiretaps, he did not know who the man identified as “B” was, and the only time he came face-to-face with Mr. Dixon to hear his voice was post-arrest.

[74] Second, he could not specify when, or even if, he reviewed the audio intercepts following the post-arrest interviews of Mr. Dixon and Mr. Brown, with the express purpose of confirming that they were the individuals captured on the intercepts. If he did listen to the audio again, it was not for the purposes of identifying the speakers. Further DC Donnelly confirmed that he never listened to the post-arrest interview recordings to shore up his voice identification opinion. The Crown chose not to play the post-arrest interviews for the Court. I believe this would have been valuable evidence.

[75] Third, while DC Donnelly was on the stand, testifying as to who was speaking on any given intercept, he was working from the transcripts of the intercepts (Exhibits 5A, 5B and 5C), which included the target name, the Session number, the date, the place of communication, and the parties to the communication. Thus, the answers to the Crown’s questions were squarely before for him.

[76] Finally, DC Donnelly confirmed that he was not formally trained in voice identification. When asked to describe Mr. Dixon and Mr. Brown’s voices, he struggled to find appropriate signifiers. He did say Mr. Dixon had a thick voice with an accent, and a full sound. Mr. Brown had an accent when using certain words, and his pitch varied. However, DC Donnelly could not identify their accents.

[77] Ultimately DC Donnelly was in no better position than the Court to determine who the voices on the intercepts were, and I give his evidence no weight.

[78] Given that they did not testify, I do not know what Mr. Dixon and Mr. Brown sound like. However, based on the following circumstantial evidence, I am satisfied the Crown has proven beyond a reasonable doubt that Mr. Dixon is “B”, and Mr. Brown is “R”.

Mr. Dixon is “B”

[79] “B” figures prominently throughout the intercepts, either by direct participation, or through references to him found throughout the intercepts.

[80] Session 306 records a conversation between Mr. Luangphasi, Mr. Vogleson, and “B”, in or around Mr. Luangphasi’s BMW, on June 9, 2021. Four separate Sessions were created during this meeting (Sessions 303, 304, 306 and 307, all captured by the probe in Mr. Luangphasi’s vehicle), with Session 306 falling toward the end of the meeting. On my review the three men are speaking about drugs during the conversation.

[81] The Crown submits that at 03:20 [3] seconds, Mr. Luangphasi exclaims “Oh B, please man try to get this up, not this one, the next one man” and to which B replies “Yeah, I need to, I think Sharkman look forward to (unintelligible) and I’ll get it.” Thus, by replying “yeah” to Mr. Luangphasi’s plea, Mr. Dixon confirms he is “B”.

[82] However, my review of the intercept reveals that Mr. Luangphasi actually says, “Oh D, please man try to get this up, not this one, the next one man.” D frequently appears throughout the intercepts as a supplier of drugs from other countries. Thus, the Crown’s theory fails based on this utterance.

[83] However, further Session 306, at 09:40, a car door is heard opening and closing, and it sounds as though someone is exiting the car. The following words are spoken:

B: … all right Mr. Luangphasi: All right bro thank you B: Yeah man Mr. Vogleson: B, I’m gonna hit you up B: All right

[84] There is a second intercept in which Mr. Dixon answers to “B”. In Session 371 (probe in Mr. Luangphasi’s vehicle), at 01:11, Mr. Luangphasi says “Oh man I don’t wanna miss this week B”, to which “B” replies, “No we got most.” Again, Mr. Dixon is answering to a statement directed to “B”.

[85] Based on my review of the intercepts, the voice that answered Mr. Vogelson with “all right” in Session 306, and the voice that answered Mr. Luangphasi with “no we got most” in Session 371, is the same voice that is ascribed to “B” in all of the intercepts.

[86] I have also reviewed video surveillance in which “B” is captured. On June 14, 2021, DC Deyell was tasked with surveilling a possible cannabis shipment to the US. He set up surveillance in a Costco parking lot and captured the following:

• White BMW, plate number CSTZ 080, parked in the lot.
• Brown Porsche, plate number CMEP 289, parked a few spots away from the BMW.
• Mr. Luangphasi exiting the BMW to speak on the phone, and then re-entering.
• A man exited from the back passenger side of the BMW. As DC Deyell zoomed in on the man, Mr. Vogelson is seen sitting in the front passenger seat of the BMW. The man who got out of the BMW walked over to the brown Porsche and gets into the driver’s seat.
• A short time later, Mr. Luangphasi walking over to the Porsche and speaking to the sole occupant, sitting in the driver’s seat, through the passenger door.
• Mr. Luangphasi walking back to his BMW.
• The Porsche driving away.

[87] The man depicted leaving Mr. Luangphasi’s BMW and getting in the brown Porsche was Mr. Dixon as he sat before me in the courtroom.

[88] Defence asserts I cannot determine for certain that Mr. Dixon is “B” because the intercepts contain numerous other references to “Bs”. There are indeed other references: there is a reference to “B Balik”, and another to “B Bobby”. There is also “Beej”, “Beams”, and “B Guy”.

[89] Defence further argues the intercepts show that Mr. Dixon owed Mr. Luangphasi money, and surely Mr. Luangphasi would not work with him if that was the case. However, it appears that everyone is out for themselves in the drug trade, and if an alliance works at one juncture, and falls flat at another, that does not preclude a future alliance. In any event, losing money on transactions is not unheard of – recall Mr. Luangphasi’s comment that another individual owed him $20,000, but owed someone else a “couple hundred racks.” Without context I cannot say what denomination a rack is, but I assume it is significant – Mr. Luangphasi alludes to the fact that the person who was owed that amount might resort to unsavoury methods of debt recovery.

[90] Much like DC Donnelly, I am not trained in voice identification, and the appropriate phraseology is outside of my ken. However, in comparison with Mr. Vogelson, whose voice has more of a sing-song quality, Mr. Dixon’s voice is flatter and lower, at times even monotone, with a gravelly timber.

[91] Based on inferences I have drawn from the intercepts, the surveillance footage, and the ownership records for the 2014 brown Porsche bearing plate number CMEP 289, I am satisfied that Mr. Dixon is “B” beyond a reasonable doubt.

Mr. Brown is “R”

[92] The intercepts also contain numerous references to “R”. However, the only time R is captured by an intercept is on June 16, 2021. This is the intercept which has assisted me to conclude that Mr. Brown is “R”.

[93] The groundwork for this conclusion begins earlier. On June 9, 2021, Session 307 (cell phone call captured on the probe in Mr. Luangphasi’s vehicle), Mr. Luangphasi asks Mr. Lauro whether the pilot can go to Guyana. Mr. Lauro said the pilot can go anywhere. Mr. Luangphasi asks Mr. Lauro to set up a meeting with the pilot. Mr. Lauro askes “are you guys interested?”, to which Mr. Luangphasi replies “yeah, yeah I’m gonna (unintelligible) I’m gonna set something up bro.”

[94] On June 11, 2021, Session 131 (probe in Mr. Luangphasi’s vehicle), Mr. Luangphasi tells Mr. Lauro that he really needs to meet with the pilot because “I want to do something.”. Mr. Lauro confirms he is trying to set up the meeting.

[95] On June 14, 2021, Session 372 (probe in Mr. Luangphasi’s vehicle), Mr. Luangphasi tells Mr. Vogelson: “I am going to see the pilot guy tomorrow (unintelligible) I’m gonna try to bring R.”

[96] On June 14, 2021, in Session 373 (probe in Mr. Luangphasi’s vehicle) Mr. Luangphasi says to Mr. Vogleson: “But we just need R to clear the guy here in Hamilton.” The “pilot guy” and the “guy” in Hamilton is Mr. Kesminas.

[97] On June 14, 2021, Session 169 [4] (Mr. Luangphasi’s cell phone) Mr. Luangphasi asks Mr. Lauro if he can set up the meeting, if not on that day, June 14, 2021, then the next day, June 15, 2021.

[98] On June 14, 2021, Session 179 (Mr. Luangphasi’s cell phone) Mr. Lauro tells Mr. Luangphasi the pilot was going to be busy the next day and couldn’t meet. The next day being June 15, 2021. There are no intercepts for June 15, 2021.

[99] Session 215 on June 16, 2021, (Mr. Luangphasi’s cell phone), contains a short conversation in which Mr. Luangphasi asks Mr. Lauro if he can set up the meeting “today like ASAP.” Mr. Lauro undertook to call the pilot.

[100] On June 16, 2021, in Session 217 (Mr. Luangphasi’s cell phone), Mr. Lauro confirmed the meeting would take place at “Bronte” at 1:00 that day, and that the pilot drove a S63 Mercedes.

[101] I have also relied on the surveillance conducted on June 16, 2021, in concluding that “R” is Mr. Brown. Four officers gave evidence about their observations on June 16, 2021: DCs Van Schyndel, Rickaby, Houston, and Pickens.

[102] DC Van Schyndel was surveilling Mr. Luangphasi for a suspected meeting at a Tim Horton’s on Bronte Avenue and the QEW highway. DC Van Schyndel found Mr. Luangphasi’s car at a plaza. No Tim Horton’s is depicted, but there is a sign above one of the businesses identifying it as the Bronte Road Animal Hospital.

[103] DC Van Schyndel’s four videos depict the following: in the first, Mr. Kesminas arriving at the strip mall and parking his blue Mercedes two spaces away from Mr. Luangphasi’s white BMW, which was already there; in the second and third, Mr. Kesminas and Mr. Luangphasi standing talking by the Mercedes; and in the fourth, Mr. Kesminas and Mr. Luangphasi standing talking at the BMW, which has its tailgate raised.

[104] DC Rickaby’s three videos capture Mr. Luangphasi and Mr. Kesminas standing and speaking at the BMW’s tailgate.

[105] DC Houston’s first video captures Mr. Brown arriving at the parking lot. He is driving a black Lexus with plate number CHMH 884. This plate number corresponds with the MTO’s records identifying Mr. Brown as the registered owner of the black Lexus (Exhibit 15B).

[106] DC Houston zooms out and captures all three men in the parking lot in one frame. Mr. Kesminas is on his phone, leaning against his Mercedes; Mr. Luangphasi and Mr. Brown are standing at the BMW’s tailgate.

[107] DC Pickens’ video shows the three men standing and talking at the rear of the BWM, with its tailgate raised.

[108] DC Houston’s second video depicts the three men standing and talking at the BMW’s tailgate. It also shows Mr. Kesminas getting into his car and driving away.

[109] The intercepts at Sessions 414 to 422 [5] (all captured by the probe in Mr. Luangphasi’s vehicle) parallel these surveillance videos. Sessions 414 and 415 contain a conversation between just Mr. Luangphasi and Mr. Kesminas. At 02:55 in Session 416, Mr. Luangphasi has a one-sided telephone conversation with an unidentified male, asking where “he” is. Mr. Luangphasi tells the unidentified male that he will wait there for “him.” Mr. Luangphasi and Mr. Kesminas then lament about people who show up late for meetings.

[110] At 04:06 Mr. Luangphasi is heard saying, “oh, he’s right there.” Mr. Kesminas has a one-sided conversation on his cell phone. At 04:56 a man yells out “I went all the way to Matheson.” Mr. Luangphasi and this man speak amongst themselves while Mr. Kesminas completes his phone call. At 06:14, Mr. Kesminas joins the two men:

R: How are you doing my brother Mr. Kesminas: Good huh we’re brothers now eh

[111] The three men continue speaking through to Session 418, until Mr. Kesminas leaves. His departure is captured by the audio starting at 07:41:

Mr. Kesminas: (unintelligible) R: Okay my brother Mr. Kesminas: (unintelligible) Mr. Luangphasi: All right man have a good trip even though (unintelligible)

[112] Mr. Luangphasi and the man continue speaking through Sessions 419 to 422.

[113] I have also reviewed surveillance in which “R” is captured. On April 27, 2021, DC West had set up surveillance at 2626 Weston Road in Toronto. At 13:08 Mr. Luangphasi parked his white BMW (CSTZ 080) beside a black Lexus (CHMH 884). He watched the occupants of both cars get out and have a conversation. DC West was able to identify the man Mr. Luangphasi met with as Mr. Brown after running plate number CHMH 884 through the MTO database, as the search came back with Nathan Brown listed as the registered owner.

[114] A photograph taken by DC West of this interaction on April 27, 2021, was entered as an exhibit. The photograph depicts Mr. Luangphasi and another man standing to his left. They are in a parking lot. The man standing to the left of Mr. Luangphasi was Mr. Brown as he sat before me in the courtroom.

[115] Accordingly, based on inferences I have drawn from the intercepts, the surveillance footage, and the ownership records for the 2015 black Lexus bearing plate number CHMH 884, I am satisfied that Mr. Brown is “R” beyond a reasonable doubt.

[116] I pause to note that although the photograph of Mr. Brown speaking with Mr. Luangphasi falls outside of the date range of Count Three, I have used this piece of evidence for identification purposes only. In other words, Mr. Brown’s meeting with Mr. Luangphasi approximately five weeks before June 9, 2021, will have no bearing on my consideration of Count Three.

[117] With the identification of Mr. Dixon and Mr. Brown established, I now turn to the evidence in respect of the alleged conspiracies. I will reference only the intercepts and surveillance evidence upon which I have relied in arriving at my conclusions.

[118] Were I to look at one single conversation in isolation, it would be difficult to determine what was being discussed. However, circumstantial evidence is not to be considered on a piecemeal basis. Rather, the evidence as a whole must be assessed in determining whether the Crown has proven the charge beyond a reasonable doubt. The standard of reasonable doubt does not apply to individual pieces of circumstantial evidence: R. v. Smith, 333 C.C.C. (3d) 534, at paras. 81 – 82; R. v. Lights, 149 O.R. (3d) 273, at para. 37.

VIII. Count One – Conspiracy to Import Cocaine – Mr. Dixon

[119] The Crown alleges that between May 19, 2021, and July 7, 2021, Mr. Dixon conspired with a number of people, and in particular Mr. Luangphasi and Mr. Vogelson, to import cocaine from Guyana. The goal was to import 40 kilograms of cocaine from Guyana, 10 kilograms of which were earmarked for Mr. Luangphasi. The Crown submits that the charge is made out when the evidence – the intercepts and the surveillance – is considered in its totality.

[120] Count One can be made out by the group’s efforts to bring cocaine into Canada from Guyana.

May 21, 2021 (Session 63, Exhibit 5A, Tab 8)

[121] The communication intercepted is initially between Mr. Luangphasi and Mr. Vogelson, but Mr. Dixon joins at the 03:30 mark. It was captured by the probe in Mr. Luangphasi’s vehicle. The men are agreeing that the cocaine would come from Guyana.

Mr. Luangphasi: Some bullshit going on I don’t like it bro B: How come Mr. Luangphasi: Fucking B: He said its too small Mr. Luangphasi: I don’t like it B: (unintelligible) Mr. Vogelson: It it its too big B: (unintelligible) Mr. Vogelson: Smaller better B: No no no Mr. Vogelson: I know what you trying to say (laughs) B: Yeah you know what I mean B: Everybody link up Mr. Vogelson: Mm B: Somewhere there Guyana Mr. Luangphasi: I still don’t like it

May 23, 2021 (Session 112, Exhibit 5A, Tab 13)

[122] This conversation took place between Mr. Luangphasi and Mr. Vogelson. It was captured by the probe in Mr. Luangphasi’s vehicle:

Mr. Luangphasi: How much is he gonna bring up for me if I give him like sixty Mr. Vogelson: Give him (unintelligible) oh you know what sixty whatever you pay for right you at least can get twenty but you probably gonna still owe him some money right but lets say you get twenty you still gonna get another twenty Mr. Luangphasi: Ask him Mr. Vogelson: Because he’s never he’s never played you like that you see what I’m saying Mr. Luangphasi: But ask him if Mr. Vogelson: It is possible for us to send forty from here to Guyana (unintelligible) but you got the money down there you said you need it to come outta there so you put in in Guyana Mr. Luangphasi: But if I do that I’d rather buy the brick from yard Mr. Vogelson: Which one Mr. Luangphasi: The forty (unintelligible) what are they are they good Mr. Luangphasi: Well if Raptor does it I can use some of the paper I make to do that ride it in with Raptor cuz he’s doing two things and nothing even come Mr. Vogelson: With who Raptor Mr. Vogelson: No I’m just saying like let’s say Raptor says yes Mr. Vogelson: Uh huh Mr. Luangphasi: Make that one come through I make some money I can send it to Guyana Mr. Vogelson: No you gotta make some money (unintelligible) Mr. Luangphasi: No because what if nothing comes bro I I can’t have everything stuck Mr. Vogelson: What what’s stuck Mr. Luangphasi: In Jamaica Mr. Vogelson: The shit has to come Mr. Luangphasi: No its four months five months Mr. Vogelson: Which one oh you’re talking about the party oh bro Mr. Luangphasi: Yeah but I’m just no I’m just saying like I can’t have more of my shit stuck in Jamaica nothing we haven’t landed I can’t bro

May 23, 2021 (Session 115, Exhibit 5A, Tab 16)

[123] Another conversation between Mr. Luangphasi and Mr. Vogelson was captured by the phone probe in Mr. Luangphasi’s vehicle. At one point the two are discussing where to bring their drugs in from:

Mr. Luangphasi: Well let’s see who comes first Raptor or B Mr. Vogelson: I have the fucking place open that’s all you need to know two three days bro then we load up fucking yea because this is good time time with this guy here we good Jamaica gets hot and work still fucking comes in not now there’s still a bunch of work from Trinidad and that bro the fucking work’s been coming Guyana you understand

May 26, 2021 (Session 169, Exhibit 5A, Tab 22)

[124] The conversation on this day is between Mr. Luangphasi and Mr. Vogelson. It was captured by the probe in Mr. Luangphasi’s vehicle. Mr. Vogelson tells Mr. Luangphasi that he thinks he is being followed. Mr. Luangphasi asks who he’d met up with recently, and Mr. Vogelson recalled that he met up with Mr. Dixon and Mr. Brown on Victoria Day, when they sat outside of Mr. Dixon’s home and were “talking shit.” The two men commiserate that this meeting might have precipitated the tail on Mr. Vogelson.

Mr. Luangphasi: You just (unintelligible) you gotta stop meeting up with people though bro Mr. Vogelson: huh Mr. Luangphasi: You gotta stop meeting up with people talking and nonsense get followed man they’ll follow you to fucking Guyana

May 27, 2021 (Sessions 189-192, Exhibit 5A, Tabs 29-32)

[125] The conversation on May 27, 2021, took place between Mr. Luangphasi and Mr. Vogelson. It was captured by the probe in Mr. Luangphasi’s vehicle and runs for four full sessions, three of which are referenced here.

Session 189

[126] Mr. Luangphasi thinks he too is being followed, and Mr. Vogelson may have noticed the car that was following him. Mr. Luangphasi then asks for a business update, and Mr. Vogelson fills him in on the Guyana transaction:

Mr. Vogelson: Well we get (unintelligible) um what B said he’ll do it at eighty-two (unintelligible) Mr. Luangphasi: (unintelligible) Mr. Vogelson: (unintelligible) Mr. Luangphasi: Hundred bucks lower Mr. Vogelson: No no no he no he said he can do it at eight but he has to pay these guys and he can’t (unintelligible) because he make enough now for them but the fact that we’re giving him space he can do that you see what I’m saying Mr. Luangphasi: Eighty-two Mr. Vogelson: Yeah Mr. Luangphasi: Right Mr. Vogelson: He can do eighty-two but he only have he have sixteen Mr. Luangphasi: Hm hmm Mr. Vogelson: He will sell me eleven for good price Mr. Luangphasi: Which one the (unintelligible) Mr. Vogelson: The ten Mr. Luangphasi: And that five is for who Mr. Vogelson: That’s for you know you will eat with me Mr. Luangphasi: Yeah Mr. Vogelson: So you don’t have to worry about that plus gonna pay you gonna pay the um Mr. Luangphasi: Food? Mr. Vogelson: The fee (unintelligible) Mr. Luangphasi: Yeah Mr. Vogelson: (unintelligible) it’ll be five thousand (unintelligible) Mr. Luangphasi: (unintelligible) Mr. Vogelson: (unintelligible) Mr. Luangphasi: But that five is split between who though Mr. Vogelson: It’s just him it’s it’s his own but you know he gonna give Fat Boy he gonna give Balik something a bit to me too so the five is gonna split between us (unintelligible) whatever what what I’m saying if he said okay remember now it’s his own Mr. Luangphasi: Yeah Mr. Vogelson: So however he deal with it its when we we we split however these guys split (unintelligible) split in between the four of us I’m gonna make that between me you Balik and the Fat Boy Mr. Luangphasi: What about R Mr. Vogelson: Well yeah R R uh was with us too right everybody’s gonna eat something it’s not too big but everybody gonna see something right Mr. Luangphasi: And what about the uh Mr. Vogelson: So all the pressure’s not on you Mr. Luangphasi: and what about the um Mr. Vogelson: The only problem we try to work on the exchange and I no understand why these guys have one strict one time for next week let me explain it to you Mr. Luangphasi: Oh for the wire for the food Mr. Vogelson: No there’s no wire it’s just it’s just the exchange they go by Guyana ex-

Session 190

[127] The Guyana transaction discussion continues. Mr. Luangphasi wants to pay ten thousand Canadian per kilogram of cocaine:

Mr. Vogelson: -change rate because when the money goes to Guyana you have to buy it back in US and if Guyana don’t move (unintelligible) the exchange rate don’t matter the US go up or go down it is still two two ten Mr. Luangphasi: Right Mr. Vogelson: So what we have to do you you calculate it by the Guyana exchange rate which it work out to like two ten something I think Canadian Mr. Luangphasi: Per piece Mr. Vogelson: Yep Mr. Luangphasi: Ten what Mr. Vogelson: Huh Mr. Luangphasi: Ten what Mr. Vogelson: Ten thousand Canadian (unintelligible) Mr. Luangphasi: (unintelligible) ten two ten three ten four ten five Mr. Vogelson: Ten no (unintelligible) ten nine or something Mr. Luangphasi: So (unintelligible) Mr. Vogelson Yeah Canadian Mr. Luangphasi: And he’s selling eighty-two hundred one thousand dollars more Mr. Vogelson That’s right Mr. Luangphasi: Depending how much eighty-two hundred US is to Canadian under ten K Mr. Vogelson: Right but this would be the exchange and everything Mr. Luangphasi: That’s expensive that that’s a thousand dollars more he’d charging us Mr. Vogelson: That could be Mr. Luangphasi: This is Mr. Vogelson: What exchange rate Mr. Luangphasi: This is eighty-two hundred US to Canadian dollar Mr. Vogelson: And it comes to nine eight (unintelligible) Mr. Luangphasi: Nine five under ten K Mr. Vogelson: Right Mr. Luangphasi: So he’s trying to charge us Mr. Vogelson: No but this is what I’m telling you the Guyana exchange rate is what fucked it up because it’s two ten he gotta pay (unintelligible) that’s all I’m saying Mr. Luangphasi: So then he’s not really giving us work at eighty-two then Mr. Vogelson: Even it it’s at eighty-two if we get eighty-two thousand US and we go pay Jamaica that’s what we’ll be paying you get what I’m saying but that fucking exchange to Guyana is making the difference right there make a thousand dollar what is the difference or Mr. Luangphasi: I have US money in Barbados and I have Baijan money in Barbados Mr. Vogelson: Well let me see because the thing is Mr. Luangphasi: Eighty-two bro (unintelligible) ten ten nine (unintelligible) let’s say he’s trying to charge us eleven K Mr. Vogelson: Mm hmm Mr. Luangphasi: That comes up to like Mr. Vogelson: (unintelligible) Mr. Luangphasi: Eleven thousand Canadian Mr. Vogelson: Canadian Mr. Luangphasi: (unintelligible) nine one Mr. Vogelson: Exchange (unintelligible) the extra Mr. Luangphasi: But this is what he’s charging us per per piece Mr. Vogelson: Mm hmm Mr. Luangphasi: Ninety-one I told you White Boy will give it to me for eighty-five tops Mr. Vogelson: Eight five Mr. Luangphasi: Tops but that’s like Mr. Vogelson: So okay Mr. Luangphasi: (unintelligible) Mr. Vogelson: What eight five would work out to without the fucking exchange and let them deal with it Mr. Luangphasi: Ten two five Mr. Vogelson: So you want to do that huh I’d tell them hey you (unintelligible) willing to pay five with no fucking exchange just the US exchange that’s why we end up owing Dreddy that money the way they exchange it they don’t charge it to wire but the Guyana exchange rate don’t change Mr. Luangphasi: The question is should we be (unintelligible) should we still be working Mr. Vogelson: Oh when we sit on the Western (unintelligible) we can’t we can’t we can’t sit back (unintelligible) Mr. Luangphasi: But if we stop (unintelligible) going

Session 192

[128] Mr. Luangphasi and Mr. Vogelson continue to discuss the Guyana transaction, and it appears that Mr. Luangphasi is concerned about having enough money:

Mr. Luangphasi: K bro you hear anything let me know Mr. Vogelson: Yeah man get home get home safe don’t stress (unintelligible) Mr. Luangphasi: We gotta make it this time bro we can’t fuck man Mr. Vogelson: But listen to this right Mr. Luangphasi: I need to get the money in so I can throw on for us fuck everyone else man Mr. Vogelson: But listen to what I say Guyana if you give that twenty-five (unintelligible) you still could negotiate because he give you five but you still could ask for fifteen and you pay him the fifteen you got five kay you see what I’m saying so you still come 40 and you thrown on you make him throw on the balance or whatever to yard twenty-five twenty-five and you come through you get the sale he's not here Fat Boy not taking from you Fat Boy (unintelligible) whatever you know what I mean so bro we don’t need nobody I’m telling you we don’t need nobody

June 9, 2021 (Session 303, Exhibit 5B, Tab 66)

[129] This conversation took place between Mr. Dixon, Mr. Luangphasi, and Mr. Vogelson. It was captured by the probe in Mr. Luangphasi’s vehicle. The men are talking about Beige, who owes Mr. Luangphasi ten or twenty thousand dollars, but owes someone else “a couple hundred racks.” The discussion then turns to how the group is going to get the cocaine into Canada.

Mr. Dixon: Yeah all right you know my friend in England is telling me that he can get a private boat anywhere apart from Colombia and Jamaica Mr. Luangphasi: My guy here he has his pilot license he has planes everything can we do anything with that Mr. Vogelson: Could he go Mr. Luangphasi: Yeah he can go he has to bring passengers or he has to go on vacation Mr. Dixon: Right Mr. Luangphasi: He owns a he owns a school that he teaches people how to fly Mr. Dixon: Right Mr. Luangphasi: So Mr. Dixon: O well he can he can he can drop it Mr. Luangphasi: So we can go to Jamaica through the airports (unintelligible) Mr. Vogelson: We could ask him we could ask him to go with R Mr. Dixon: Yeah Mr. Luangphasi: And this guy’s actually like close friends with my boy Mr. Dixon: Yeah Mr. Luangphasi: And my boy said he’ll go with him Mr. Dixon: Yeah can can they go to Barbados um Guyana Mr. Luangphasi: I don’t know I never asked I think Jamaica is yeah Columbia he says (unintelligible) Mr. Dixon: If he can go to Columbia he can go to Guyana

June 9, 2021 (Session 304, Exhibit 5B, Tab 66)

[130] This conversation took place between Mr. Dixon, Mr. Luangphasi, and Mr. Vogelson. It was captured by the probe in Mr. Luangphasi’s vehicle. They are figuring out the logistics of sending the pilot to pick up drugs in Guyana:

Mr. Luangphasi: Yeah I can send him to Guyana if need be Mr. Vogelson: Well let’s do that Mr. Vogelson: Ok let me tell you where we at with White Boy and them sent the information that people have to send an email Mr. Dixon: Hm hmm Mr. Vogelson: To Guyana government Mr. Dixon: Hm hmm Mr. Vogelson: All right for um what you call it for approval to the guy coming to discuss (unintelligible) Mr. Dixon: Right Mr. Vogelson: so they just waiting right now for that to confirm Mr. Vogelson: My guy what got the food in Barbados Mr. Luangphasi: Mm hmm Mr. Vogelson: He got in Suriname Mr. Dixon: Yeah Mr. Vogelson: You understand and he wanna find a way he want us to go half and half (unintelligible) by next week Mr. Dixon: Yeah Mr. Vogelson: Find a way for him to (unintelligible) to come out he go half and half with us Mr. Dixon: Right Mr. Vogelson: So if you put ten he can put ten with us Mr. Luangphasi: Well I have the plane so if you wanna do anything with that its there Mr. Luangphasi What I don’t get it Mr. Vogelson: Ok they they already sent this information to us Mr. Dixon: Right Mr. Vogelson: To give to the pilot Mr. Dixon: Right Mr. Vogelson: So the pilot then now gonna send this information to Guyana Mr. Dixon: Right Mr. Vogelson: They already did a proposal and they coming in good for business Mr. Dixon: They just want to email back and forth like these people (unintelligible) Mr. Dixon: Right Mr. Vogelson: This guy will call somebody who can fly like a business plane Mr. Dixon: Yeah Mr. Vogelson: Go to Guyana they load up this guy gonna come back up but it’s the good thing with this pilot is we already got his corporate (unintelligible) which is in Hamilton Mr. Dixon: You know why you know why I say Guyana because you can get a lot of food there Mr. Vogelson: But that too but you couldn’t you can get a lot of food in Suriname too Mr. Luangphasi: Man I just wanna do this thing and get it out of my fucking conscience but yeah if you need that PJ [6] I won it I met the guy I’ve been to his fucking whatever his school he wants to make money Mr. Dixon Yeah Mr. Luangphasi: He told me how it works everything Mr. Dixon: Well you got gotta you got (unintelligible) Mr. Luangphasi: It was like and he’s like why don’t you come hire me to go to Jamaica for a vacation Mr. Dixon: Okay Mr. Luangphasi: I’ll fucking fly you there I’m not I ain’t flying back (laughs) with you I said (unintelligible) don’t fucking no you don’t have to so Mr. Dixon: Yeah Mr. Luangphasi: Yeah but I gotta pay for this fucking PJ so it better fucking get on man Mr. Dixon: (unintelligible) Mr. Luangphasi: I ain’t paying a couple hundred grand or whatever it fucking cost eighty thousand hundred something thousand and it doesn’t get loaded Mr. Dixon: Yeah Mr. Luangphasi: You know what I’m trying to say Mr. Dixon: Yeah Mr. Luangphasi: Yeah Mr. Dixon: Yeah Mr. Luangphasi: Cuz you I have to rent a plane Mr. Dixon: Exactly Mr. Luangphasi: So Mr. Vogelson: (unintelligible) Mr. Dixon: Okay Mr. Luangphasi: So what PMC not this one the next one Mr. Dixon: Yeah that’s what we’re working towards Mr. Luangphasi: A million percent Mr. Luangphasi: He can go to yard whenever I want him to go Mr. Luangphasi: He can go to Guyana I don’t know how it works but he said he’d (unintelligible)

June 14, 2021 (Sessions 368-382, Exhibit 5C, Tabs 77-92)

[131] On June 14, 2021, Mr. Luangphasi, Mr. Vogelson and Mr. Dixon met for an extended period of time. There are fourteen intercepts captured by the probe in Mr. Luangphasi’s vehicle, and two intercepts from Mr. Luangphasi’s cell phone.

[132] For a brief period, the conversation was only between Mr. Luangphasi and Mr. Vogelson with Mr. Dixon joining in a few minutes later. Prior to his arrival, Mr. Luangphasi and Mr. Vogelson spoke about the “food” that was due to arrive Wednesday, which Mr. Dixon had arranged. The nature of the food was not described, although “500” was coming.

[133] Various topics were discussed once Mr. Dixon arrived, including burner phones, communicating via WhatsApp, exporting greens (marijuana) to Barbados, “R” clearing the pilot (reference above), delivering product to Europe, Mr. Kesminas’ clearance at the Hamilton, Grimsby and Burlington airports, the fact that the pilot had never done a drug run before, his ability to rent a plane, how much the plane would hold, passenger airlines opening back up after COVID-19, and PMCs.

[134] Mr. Luangphasi discussed how much cocaine would be imported:

Mr. Luangphasi: Cuz they have the small one all right Mr. Dixon: Yeah Mr. Luangphasi: Maybe we just do thirty forty I dunno Mr. Dixon: Yeah no I I’ll talk to him Mr. Luangphasi: Or do we do like thirty and leave room for ten for Mr. Dixon: Yeah Mr. Luangphasi: For them right Mr. Dixon: Yeah Mr. Luangphasi: Forty yeah whatever no the big one can hold sixty and the other one can hold forty Mr. Dixon: Right Mr. Luangphasi: Yeah so we do thirty-five and let them on for five Mr. Dixon: Yeah Mr. Luangphasi: Something I dunno whatever they wanna do man I just wanna get this shit out there ya know what I mean (unintelligible) Mr. Dixon: Yeah we need to make some money Mr. Vogelson: Know what I’m saying Mr. Luangphasi: But I have so much work there I got forty. Four with B and then if B comes through on Thursday Mr. Vogelson: Yeah but you don’t wanna touch you don’t wanna touch your five fours

[135] Approximately 25 minutes into the conversation Mr. Dixon leaves. The intercept continues with a discussion about Monk and White Boy, and how Monk might be lying. Mr. Luangphasi asks, “should I ask B?”, and Mr. Vogelson said yes. There is silence on the intercept for just over two minutes.

[136] When the discussion continues Mr. Luangphasi explains what the confusion was with Monk, which seems to have stemmed from R’s inability to deliver on his promises. Mr. Luangphasi asks whether he should “fucking punch out R or what.” Mr. Vogelson stands up for R, confirming that “he for real.” Mr. Luangphasi expressed concern that Mr. Dixon “might not come through.” If he did not, Mr. Luangphasi would “fucking take back twenty and give it to fucking Mass.”

[137] DC Deyell captured a portion of the June 14, 2021, meeting on two videos. In his second video, Mr. Dixon is seen exiting the BMW and returning to his car. A short while later, Mr. Luangphasi gets out of the BMW and walks over to talk to Mr. Dixon, who is sitting in his brown Porsche. Mr. Luangphasi speaks to Mr. Dixon briefly and walks back to his BMW. The surveillance matches up with the timing of the intercept in Session 370.

Application of the Legal Principles to Count One

[138] I now turn to applying the applicable legal principles to Count One. I will begin by making findings of fact gleaned from the Crown’s evidence.

[139] Mr. Luangphasi is clearly a high-level drug trafficker with his hand in multiple drug enterprises, including cocaine, marijuana, and oxy. A businessman interested in making money, Mr. Luangphasi was prepared to import and export product. The intercepts are replete with hustles, side hustles and allegiances.

[140] His reach was far. Countries he had established networks in included the Netherlands, Dominican Republic, Montego Bay, Jamaica, Yard, Mexico, Puerto Rico, “C-Town”, Ecuador, “GT”, Bahamas, and Barbados. There were references to Columbia, but I did not get the impression Mr. Luangphasi had connections there.

[141] Mr. Luangphasi did not work alone. Close to him he kept two trusted foot soldiers, Mr. Le and Mr. Lauro (Session 303, line 243: “my boy”). It was clear through the intercepts that he trusted these two men unreservedly.

[142] He also had working relationships with others whom he did not fully trust, but who were necessary adjuncts to carrying on his enterprise, including Mr. Dixon and Mr. Brown (see Sessions 114 and 178, in which Mr. Luangphasi expresses his dissatisfaction with both).

[143] And then there is Mr. Vogelson. Mr. Vogelson played an interesting role, a broker if you will. He was the liaison between Mr. Luangphasi and other drug dealers – White Boy, Fat Boy, Law, Monk, Mouse, Tommy, Balik, Beej…the list goes on. As Corporal MacIntyre said, when large imports were being contemplated, dealers might go in on a purchase together. There were several instances of Mr. Luangphasi going “half and half” with these other importers, deals which were facilitated by Mr. Vogelson.

[144] Mr. Dixon featured prominently in the intercepts. He was clearly working with Mr. Luangphasi and Mr. Vogelson. There are a few exchanges about more light-hearted issues such as family and children, but the vast majority of their discussions were about the movement of illegal drugs.

[145] Marijuana is definitely one of the drugs that was being handled by the group, although the overwhelming majority of the intercepts were in respect of cocaine. Corporal MacIntyre advised the court that British Columbia is well-known for producing marijuana, although he could not speak to its importation or exportation.

[146] I find that when marijuana was discussed it was referred to as greens, donkey butter, etc., and the role the group played was in its export, not its import. See for example Sessions 0024, 139, 301 and 122.

[147] In support of Mr. Dixon’s submission that he was only involved in marijuana with Mr. Luangphasi, counsel drew my attention to Session 107, a discussion between Mr. Luangphasi and Mr. Le. In the transcript Mr. Le is quoted as saying “B is saying he is being followed,” and Mr. Luangphasi is quoted as saying, “The only thing that I ever do with B is greens, I never let him go near anything (unintelligible).”

[148] My review of the transcript reveals that it is not “B” who thinks he is being followed, but “Beams”, rendering this submission moot. Support for my conclusion is found in Session 082, another discussion about surveillance between Mr. Luangphasi and Mr. Le:

Line 46: No no no Beams not tripping because the licence plate he gave me Line 281: Yeah like that time that’s when fucking Beams seen him Line 233: Yeah like I don’t think Beams is tripping to be honest with you

[149] I conceded that the word “cocaine” was never used throughout the entirety of the intercepts. However, we know the group used coded language, and I find there was a consistency to the words used when cocaine was being discussed. For example, it was referred to as ‘work’ or ‘food’, and it was mentioned when transit countries were mentioned. Guyana, certainly, but also Barbados, Dominican Republic, Jamaica, and Yard. Yard was not defined, but more than once it was referenced in conjunction with Jamaica, so I trust Yard is slang for Jamaica (see for example Session 306, line 230; Session 416, lines 105-106).

[150] In Session 27 on May 27, 2021 (probe in Mr. Walters’ vehicle) Mr. Walters and Mr. Luangphasi discuss both cocaine and marijuana, and the difference in vocabulary when speaking about the two different drugs is clear:

Mr. Walters: When you getting when you getting work in Mr. Luangphasi: Fuck bro I don’t even know Mr. Walters: As soon as you do I’m taking half Mr. Luangphasi: (Unintelligible) Mr. Walters: Okay Mr. Luangphasi: (unintelligible) Thursday Mr. Walters: Mm Mr. Luangphasi: Either after the weekend or after next weekend Mr. Walters: Okay yeah by that time I’ll definitely most likely be out Mr. Luangphasi: Yeah um did you get rid of the hash yet or no Mr. Walters: No not fully Mr. Luangphasi: Okay (unintelligible) like those three chomps or whatever the fuck it was Mr. Walters: Well I find I found fucking cuff right Mr. Luangphasi: You (unintelligible) the greens

[151] The number “40” was referenced more than once, which may or may not lend itself to the Crown’s theory that Mr. Luangphasi intended to import 40 kilograms of cocaine and keep ten for himself. Other numbers came up as well – often in confusing calculations posited by Mr. Luangphasi.

[152] “On” and “off” fees were referenced during the cocaine discussions. Such fees were not mentioned during the marijuana discussions.

[153] The names D, Monk, Balik, White Boy, and Raptor also figure during discussions of cocaine.

[154] “Chicks,” slang for cocaine according to Corporal MacIntyre, came up in at least three Sessions:

Session 077 Mr. Luangphasi: and then I can sell three chicks for you guys This Session also contained groupings of numbers: Mr. Luangphasi: No no cuz the other way I’m doing fucking three sixty bro no two sixty one sixty on twenty-one eighty one eighty plus eighty is what two sixty Session 306: Mr. Luangphasi: I’m just hoping they can hold chicks for deposit Also referenced in this Session are Jay, Yard, Guyana, Monk and Mouse. Session 205: Mr. Luangphasi: I don’t know and then I also gotta get fifteen more chicks Mr. Vogelson: No I’ll get we got the fifteen more chicks Also referenced in this Session is “off”, Jamaica, Barbados, and Monk.

[155] COVID-19 had an impact on Mr. Luangphasi’s business. In May of 2021 he had been waiting five months for a shipment from Jamaica. He needed drugs to make money. To gain control of the supply he required, he decided to hire a pilot. White Boy had the same idea:

Session 369

Mr. Dixon: Yeah why don’t you talk to your boy White Boy and just find out some things (unintelligible) Mr. Luangphasi: Find out what Mr. Dixon: Like if he can do it (unintelligible”) Mr. Luangphasi: But is he actually doing it with him Mr. Dixon: That’s what he said Mr. Vogelson: He’s doing the private jet Mr. Luangphasi: White Boy’s doing the PJ whose PJ is it Mr. Vogelson: Huh Mr. Luangphasi: Whose PJ is it Mr. Vogelson: Whose private Mr. Luangphasi: Yeah Mr. Vogelson: The private is is is Brown Man

Conclusion on Count One

A. There was a conspiracy between two or more people to import cocaine between May 19 and July 7, 2021

[156] Based on the intercepted communications, I am satisfied that Mr. Dixon conspired with at least one other person to commit the substantive offence of importing cocaine. The parties to the agreement were, at a minimum, Mr. Dixon, Mr. Luangphasi and Mr. Vogelson.

[157] The intercepts do not contain preliminary discussions that would fail to give rise to an intention to carry out a common agreement to import. By May 21, 2021, the intercepts demonstrate that the group planned to import cocaine from Guyana, and Mr. Dixon agreed to be part of the importation.

[158] By June 9, 2021, the group had taken steps to put the plan in place. Through White Boy, Mr. Vogelson had received advice about importing from Guyana using a pilot, including sending an email to the Guyanese government in advance of the pilot arriving. Mr. Dixon understood that Mr. Luangphasi was going to pay for a private jet, and Mr. Dixon confirmed that the plan was to get the PMC on “the next one.” Mr. Luangphasi emphatically agreed to this “a million percent.”

[159] As Nakatsura J. held in R. v. Robinson, 2016 ONCJ 442, at para. 35:

…I recognize that that even one call can prove an agreement beyond a reasonable doubt. In addition, a conspiracy need not be a complicated one. The plan can be simple. The agreement does not have to be well thought out or even a considered one. Furthermore, the co-conspirators do not need to agree upon the details of the plan or even be aware of these details. Finally, I understand that there can be a conspiracy even though it may be conditional or there may be some form of reservation.

[160] The Crown’s burden is to prove the existence of an agreement beyond a reasonable doubt. I do not agree that the lynchpin of the Crown’s submissions on this count is the utterance of Mr. Dixon that “they have a lot of food in Guyana.” I have made my determination considering the totality of the evidence, and I am satisfied that the only rational conclusion to be culled therefrom is that Mr. Dixon conspired with Mr. Luangphasi and Mr. Vogelson to import cocaine from Guyana.

B. Mr. Dixon was probably a member of the conspiracy

[161] Here I must use only evidence that is directly admissible against Mr. Dixon. This consists of what Mr. Dixon said on the many intercepts he participated in. The intercepts even reveal a division of labour.

[162] In Session 304 (line 85) Mr. Dixon told Mr. Vogelson it was his job to send the email to the Guyanese government. This is the email that will ensure the pilot lands and clears customs in Guyana. In Session 369 (line 161), Mr. Dixon confirms that if the pilot gets caught with “it”, he will be responsible.

[163] In Session 306, Mr. Dixon confirms that he is taking the initiative on the plan.

[164] Session 370 is particularly illustrative:

Mr. Dixon: It’s it’s not one set of man doing it you know what I mean there’s somebody who have to put the load up right they got to come through there’s somebody who have to move it through somebody who put the load on it somebody let it go through you understand what I’m saying so it’s (unintelligible) it’s all different people you remember I tell you there’s some guy wanted ten million dollars he was the one who responsible for what go on what so you so you have the PMC now we have to get somebody to put a load on it and then and then put it on the plane

[165] I am satisfied that Mr. Dixon was probably a member of the conspiracy.

C. Mr. Dixon was a member of the conspiracy beyond a reasonable doubt

[166] Having resolved steps one and two of the Carter test in the affirmative, I now turn to consider whether Mr. Dixon was a member of the conspiracy beyond a reasonable doubt. This consideration takes into account all of the evidence, including the intercepts. If I find that Mr. Dixon was a member of the conspiracy beyond a reasonable doubt, then the hearsay evidence is admissible to prove the offences charged.

[167] On the totality of the evidence, including the hearsay evidence, the only reasonable inference available is Mr. Dixon was a willing and able participant in the conspiracy to import cocaine from Guyana.

[168] He was in direct communication with Mr. Luangphasi, the conspiracy’s leader. He was also the conduit between Mr. Luangphasi and fringe members of the drug subculture who may have wanted to share in the “on.” He took part in numerous meetings in furtherance of the conspiracy with Mr. Luangphasi and Mr. Vogelson. He described the role of his co-conspirators with clarity.

[169] The crown has met its burden of proving that Mr. Dixon is guilty as charged.

IX. Count Three – Conspiracy to Import Cocaine – Mr. Dixon and Mr. Brown

[170] The Crown alleges that between June 9, 2021 and July 7, 2021, Mr. Dixon and Mr. Brown conspired with a number of people, and in particular Mr. Luangphasi and Mr. Vogelson, to import cocaine. Once again, the Crown submits that the charge is made out when the evidence – the intercepts and the surveillance – is considered in its totality.

[171] The defence argues that the Crown has failed to prove the existence of a conspiracy, as it failed to prove “a meeting of the minds” between Mr. Brown, Mr. Dixon, and the others.

[172] Defence submits that when crafting a conspiracy, there will undoubtedly be complicated steps to achieve the end goal of buying drugs in another country. Here there’s no evidence, for example, of even a phone call to the transit country discussing the purchase. However, Session 304 demonstrates how uncomplicated the transaction really was – all Mr. Luangphasi had to say to Mr. Brown was “tell him to buy them”. In Session 170 (referenced at paragraph 179), Mr. Brown was identified as a door. As the door, Mr. Brown was the conduit in the transit country.

[173] The defence submits there are other possible inferences to be drawn on the evidence. For example, instead of importing cocaine, I can draw the inference that the group was loading drugs in one country, selling them in another country that is not Canada, and sending the money back to Canada. This can be established by the references to Ecuador and the Netherlands.

[174] The intercepts relied upon in respect of Mr. Dixon and Count One are equally applicable to Mr. Dixon and Mr. Brown on Count Three, along with the following additional evidence from the intercepts.

[175] Mr. Brown is referenced often in the intercepts. At times his repute is untarnished. At other times he is being disparaged.

May 19, 2021 (Session 19, Exhibit 5A, Tab 5)

Mr. Vogelson: But I don’t R is very detailed you know man Mr. Luangphasi: Yeah Mr. Vogelson: And if he can’t do it he says no fuck that (unintelligible) Mr. Luangphasi: Very smart guy too R Mr. Luangphasi: All right fair (unintelligible) I like R a lot (unintelligible)

[176] Defence asserts that Mr. Brown was anathema to Mr. Luangphasi et al., and they refused to work with him. For example, in Session 063, at line 135, Mr. Luangphasi tells Mr. Vogelson “all right well we’re not working with us R no more we’re gonna go to the boss because R’s no good.”

[177] With respect, the defence is incorrect. Mr. Luangphasi was actually referencing a discussion he had with another group of drug entrepreneurs who were looking to him for assistance, and perhaps wanting to strong-arm Mr. Brown out of Mr. Luangphasi’s good graces. I say this based on the conversation leading up to the quote above, and more particularly what Mr. Luangphasi says next: “I know they’re just saying that but they don’t want me to go to him you know what I’m trying to say?”

[178] It is clear Mr. Luangphasi anticipated working with Mr. Brown on the conspiracy. For example, he expected Mr. Brown to be part of the meeting with Mr. Vogelson and Mr. Dixon:

June 14, 2021 (Session 368, Exhibit 5C, Tab 78)

Mr. Luangphasi: R’s coming? Mr. Dixon: No Mr. Luangphasi: No Mr. Dixon: No Mr. Luangphasi: Oh shit I thought R was coming Mr. Luangphasi: So do is he can rent we could rent him a jet fly him off to Dominican I have my guys are confident they can do it in Dominican but I don’t know R (unintelligible) Mr. Vogelson: Um (unintelligible) don’t matter I don’t think it matter really (unintelligible) Mr. Dixon: Yeah don’t matter he he he’s just wondering if it was gonna get done he wanna be sure it get done Mr. Luangphasi: Well this is why I thought he was coming today I was gonna talk to him today

[179] On May 26, 2021, in Session 170, Mr. Brown was referenced as a door:

Mr. Vogelson: but R is the door and somebody else he got another door because he telling B he asked if B if if I didn’t because somebody will tell him to Balik will right

[180] The intercepts of June 16, 2021 (probe in Mr. Luangphasi’s BMW) capturing the discussions between Mr. Luangphasi, Mr. Brown and Mr. Kesminas are critical in making my determination on Count Three.

June 16, 2021 (Sessions 414 – 422, Exhibit 5A, Tabs 100 – 107)

[181] For the first two and one-half sessions just Mr. Kesminas and Mr. Luangphasi are meeting. Mr. Kesminas tells Mr. Luangphasi that he has to go to Lithuania, but will be back July 6 or 7, 2021. Mr. Luangphasi confirms that anything the group sets up would have to be for after July 7, 2021.

[182] The two nail down the transit countries and discuss the logistics of importing:

Mr. Luangphasi: Um probably Jamaica Mr. Kesminas: You said Dominican Mr. Luangphasi: Yeah I it will be Dominican or Jamaica or probably both but most likely well both let me know about both Mr. Kesminas: Kay Mr. Luangphasi: Both are doable (in the form of a question) Mr. Kesminas: Okay it’s gonna matter how much weight Mr. Luangphasi: Three hundred kilos (in the form of a question) Mr. Kesminas: That’s not much Mr. Luangphasi: At least three to five hundred we have a specialist mechanic huh Mr. Kesminas: (unintelligible) I’m counting other people right Mr. Luangphasi: Yeah I have a specialist mechanic Mr. Kesminas: Yeah Mr. Luangphasi: And he will tell like you know he’s even if that (unintelligible) the panel the mechanic he’ll help figure out a spot we can use set it up all nice and when you come back customs here we’ll they will know one hundred percent they will call me to declare you and then that’s it Mr. Luangphasi: Cuz um I don’t know much about this when you rent let’s say you rent a jet does it come to Hamilton and you lease from there or do you lease from where you pick it up Mr. Kesminas: No it’s uh usually this is fucked up when you rent you rent from the pilot you don’t rent the plane from them but I’m thinking how um how often we did this then we can buy one Mr. Luangphasi: Buy what a plane Mr. Kesminas: Yeah cuz I have a couple already but then we can buy one that’s for that distance and don’t fucking worry about it Mr. Luangphasi: Is it worth it Mr. Kesminas: Hundred percent

[183] The conversation between the two men continues in Session 415:

Mr. Luangphasi: Cuz I have I have customs in Hamilton for sure and I have customs at uh Pearson but Hamilton’s a lot cheaper for us it’s a smaller place my guy that’s coming here he has everything so that’s why I need him to be here I don’t know why he said he was just at the Tim Hortons Mr. Kesminas: So so let’s plan this again like that and then we can meet up another day maybe more on the Mr. Luangphasi: Oh no he’ll be here in like he’s supposed to ask you questions he’ll be here in like two seconds just just I called you out I asked Hans to bring you out eight minutes away I asked I asked Hans to call you out so cuz he’s more uh advanced in (unintelligible) he’s the one who talks to the customs Mr. Luangphasi: Guy’s almost here you can answer some of his questions you can ask him some other questions and then

[184] By Session 417, Mr. Brown has joined the meeting. As predicted by Mr. Luangphasi, he asks Mr. Kesminas several questions. Mr. Kesminas recommends buying a plane versus renting one:

Mr. Kesminas: Cuz when we talked um bro I was thinking is to like renting a a plane first of all like you don’t know what you are renting second of all in most cases we have to rent to the pilot Unknow Male: I thought Mr. Kesminas: Sorry Unknown Male: I though you’re the pilot Mr. Kesminas: yeah no I’m saying when you’re renting it Unknown Male: Yeah Unknown Male: Uh and I think the best is to get one but not a jet uh a turbo prop plane

[185] The conversation continued. Mr. Kesminas spoke about the benefits of flying jets versus turbo props to import drugs. With the small turbo prop, a pilot can fake an emergency landing and unload the drugs. This would be difficult to do with a jet, which needs a longer runway to land. Mr. Kesminas confirmed that turbo props can carry a lot of weight, to which Mr. Brown asked, “yeah like what like how much like say four hundred?”

[186] Mr. Luangphasi suggested doing a dry run. Mr. Kesminas misunderstood and said that was a waste of money and gas – if the group did not know what they were doing in terms of security, then there would be no sense in moving forward with the plan: “right so I know I can fly that I can fucking guarantee from point A I’ll go to point B from that point is that your fucking problem not my problem.”

[187] Mr. Brown clarified that the suggestion was to rent instead of buying the first time, not to go down empty and come back empty. The group discussed that if their first trip went well, they would buy a house or a condo to make their flights down appear legitimate.

[188] Mr. Brown suggests that Mr. Kesminas is in fact not a pilot, he just owns a flight school. I do not find favour with this argument. He was very clear that this job was “to fly the plane.”

Session 418

[189] In Session 418, Mr. Kesminas undertakes to look for a plane:

Mr. Luangphasi: (Unintelligible) so what do you think about the (unintelligible) Unknown Male: (unintelligible) Mr. Luangphasi: Yeah so maybe even go on your trip (unintelligible) Mr. Kesminas: Yeah yeah I’ll look (unintelligible) in the next two days I’ll take a look Mr. Luangphasi: So after the 7 th Mr. Kesminas: I’m gonna find out about the plane I’ll know before

[190] Before he leaves the meeting, Mr. Kesminas tells the men that his reputation at the Hamilton airport is so good that when he lands, customs officials typically do not check his plane.

[191] After Mr. Kesminas is gone, Mr. Brown asks Mr. Luangphasi how much he trusts him. Mr. Luangphasi replied, “well I trust my buddy the guy that introduced me to him I trust him I’ve been working with him for like ten fucking years, selling fucking shit to him all fucking ten years.” He then mentions that his buddy (who is Mr. Lauro) and Mr. Kesminas own a flight school together in Hamilton. A short while later, Mr. Brown says, “for me security first”, which Mr. Luangphasi agrees with. What follows are other portions of the conversation that I could discern.

[192] In Session 419 Mr. Brown again asks whether Mr. Kesminas can be trusted:

Mr. Brown: So you think you got the pilot Mr. Luangphasi: I don’t know I just met him but Mr. Brown: (unintelligible) Mr. Luangphasi: My guy is a good guy Mr. Brown: Your guy knows him Mr. Luangphasi: Yeah for longer than I’ve known him for I know my guy for ten years he’s known him longer but I never talked to my guy about business I just chill with him give him work I never talk about the fast or whatever…

[193] In Session 420 Mr. Luangphasi gives Mr. Brown the approval to buy the cocaine:

Mr. Brown: That’s what I said once you (unintelligible) then we will we we will buy the product no problem Mr. Luangphasi: all right tell him to fucking buy it Mr. Brown: Yeah

[194] In Session 422 the men talk about the risks they face as importers:

Mr. Luangphasi: Greg [7] doesn’t give a fuck eh he’ll (unintelligible) Mr. Brown: That’s what I am saying we have to think for him he doesn’t fucking care he doesn’t think about security Mr. Luangphasi: As long as you cover it he just thinks that everything’s you Mr. Brown: Yeah Mr. Luangphasi: Cover me that’s it I’ll go fly Mr. Brown: Yeah, that’s all Mr. Luangphasi: But he’s he’s kinda true like (unintelligible) right Mr. Brown: Yeah yeah Mr. Luangphasi: That’s his job eh Mr. Brown: Yeah you see those guys they don’t face what we face Mr. Luangphasi: Yep Mr. Brown: Their life is he walks in (unintelligible) looking at him thinking fucking million dollar credit (unintelligible)

[195] In support of the theory that there is no common design to import, and Mr. Luangphasi could just as easily be said to be exporting, defence points to Mr. Luangphasi’s utterance at the June 16, 2021, meeting. Once Mr. Kesminas had departed, Mr. Luangphasi states in session 418: “so I think it’s doable I don’t know all I’m gonna do is just fly the fucking things down in yard.” In other words – exporting.

[196] However, my review of Session 418 has Mr. Luangphasi saying “thing” and not “things.” I find that he is referencing getting the plane to Yard. This is buttressed by the first entry in Session 419, where Mr. Luangphasi continues: “that’s my part man…”

[197] Mr. Luangphasi has rigid theories about roles. Two days earlier, in Session 380, he explained the roles of his associates to Mr. Vogelson:

Mr. Luangphasi: 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 to them their job is to fucking load it and send it to you know what I mean so what we done our part we come through fucking stressful bro it really is but fuck man I’m telling you B’s past two and tell fucking B five four two another four that’s ten (unintelligible) I’ll pay the on (unintelligible) ask him

[198] As noted above, the June 16, 2021 meeting captured by the intercepts matches the surveillance captured by officers Van Schyndel, Rickaby, Houston, and Pickens.

[199] Prior to June 16, 2021, Mr. Brown and Mr. Dixon were captured on surveillance. Details of some of these observations are set out below. Because they fall outside of the dates on Count Three, the observations do not form part of my consideration on the conspiracy charge. But much like the intercepts do, they confirm that Mr. Brown was no stranger to this group of men.

[200] At 6:08 p.m. on May 21, 2021, DC Moir observed Mr. Luangphasi and Mr. Vogelson meeting with Mr. Dixon on the sidewalk outside of Mr. Dixon’s home, located on Inspire Boulevard in Brampton, Ontario. About fifteen minutes later Mr. Brown arrived and joined the meeting.

[201] At 5:27 p.m. on May 23, 2021, DC Crosby was surveilling Mr. Dixon’s home on Inspire Boulevard when she observed Mr. Dixon stepping out of his home and meeting up with Mr. Vogelson at the green electrical box in the vicinity of Mr. Dixon’s home.

[202] On May 27, 2021, at 2:18 p.m. DC Rickaby observed Mr. Luangphasi, Mr. Vogelson, Mr. Dixon, and Mr. Brown meeting in a Home Depot parking lot on First Gulf Boulevard in Brampton. DC Rickaby was able to identify the men because they had all been subject to previous surveillance; he had also reviewed Persons of Interest Reports for each of them which listed their photographs.

[203] There is video footage of this meeting as well. While Mr. Luangphasi, Mr. Dixon and Mr. Vogelson can be identified by their faces, Mr. Brown’s back is to the camera during all three videos. So while it is likely him, I have not made a determination in this regard.

[204] On May 30, 2021, DC Deyell was in the vicinity of Mr. Dixon’s home in Brampton at 4:25 p.m. He first saw Mr. Vogelson and Mr. Luangphasi arrive in Mr. Luangphasi’s white BMW. At 2:29 p.m. he observed a black Lexus and a brown Porsche park in front of Mr. Dixon’s home. At 4:25 p.m. the men walk out from the area to the rear of Mr. Dixon’s residence to the sidewalk in front of the house; Mr. Brown first, followed by Mr. Dixon, Mr. Luangphasi, and Mr. Vogelson a minute later.

Application of the Legal Principles to Count Three

[205] I now turn to applying the applicable legal principles to Count Three. As with Count One, I will begin by making findings of fact gleaned from the Crown’s evidence. This task is made easier because unlike Count One, the gist of Count Three is not shrouded in coded language.

[206] The meeting on June 16, 2021, which Mr. Luangphasi pushed Mr. Lauro to arrange, was clearly about the importation of drugs. The transit countries were confirmed to be either Jamaica or Dominican Republic. Mr. Kesminas made it clear he had no interest in flying to Columbia, the primary source country for cocaine according to Corporal MacIntyre (Session 417).

[207] Mr. Kesminas queried what the drugs would weigh, as that would have a bearing on the size of the plane they required. Mr. Luangphasi confirmed they were looking to bring in three to five hundred kilograms of cocaine. Later, Mr. Brown asked if the plane could hold 400 kilograms.

[208] There was a discussion of how the drugs were to be hidden in the plane. Mr. Luangphasi confirmed he had a mechanic at the ready who would find the best way to conceal the drugs.

[209] The decision was made to use a turbo prop plane. This made fake emergency landings easier to carry out at smaller airports. Mr. Kesminas undertook to find a plane before he left on his trip to Lithuania. Mr. Kesminas and Mr. Luangphasi agreed that if the group was to set anything up, it would have to be after his return on July 7, 2021.

[210] Defence argues that on June 16, 2021, matters were left outstanding between the members of the conspiracy that were inimical to the completion of the agreement, and thus the desired result was never achieved.

[211] Further, there is no evidence that Mr. Dixon or Mr. Brown ever acted on their discussions about importing cocaine. As counsel notes, there is an evidentiary gap between June 20, 2021, and their arrests on July 7, 2021. This break in evidence supports the defence position that an agreement had not been reached. At best, what was discussed was an anticipated crime.

[212] Recall that Mr. Kesminas was not due to return until July 6, 2021 or July 7, 2021. This may explain why the intercepts went silent. I need not determine this, however.

[213] In this case, this lack of further evidence cannot be the litmus test by which a finding of conspiracy is foiled. As the Court of Appeal held in Root, at para. 70:

The fact that an agreement to commit a crime is conditional on the occurrence or non-occurrence of some event does not necessarily mean that there is no unlawful agreement. However, negotiations alone will not suffice, and sometimes it may be very difficult to determine whether the parties are merely negotiating or have agreed to do so something if it is possible or propitious to do so (emphasis in original).

[214] Also, at para. 71:

Conspiracy, like attempt, is a crime of intention. Its factual element or actus reus is established upon proof of the agreement to commit the predicate offence.

[215] I have found beyond a reasonable doubt that by the time Mr. Kesminas left the meeting on June 16, 2021, an unlawful agreement to import cocaine had been established with Mr. Dixon and Mr. Brown. Full stop.

Conclusion on Count Three

A. There was a conspiracy between two or more people to import cocaine between June 9, 2021, and July 7, 2021

[216] The Crown argues that the evidence of a conspiracy in respect of Count Three is overwhelming.

[217] When I consider the whole of the evidence before me, namely the intercepted communications, I am readily satisfied beyond a reasonable doubt that Mr. Brown and Mr. Dixon conspired with at least one other person to commit the substantive offence of importing cocaine. The parties to the agreement were, at a minimum, Mr. Dixon, Mr. Brown, Mr. Luangphasi, and Mr. Kesminas.

[218] As with Count One, the intercepts do not point to preliminary discussions that would fail to give rise to an intention to carry out a common agreement to import. These were neither negotiations nor fruitless conversations that were abandoned before an agreement was reached. These discussions demonstrate a meeting of the minds.

[219] The evidence establishes that the common design emerged on June 9, 2021, when Mr. Luangphasi first advanced the notion of using a pilot to Mr. Vogelson and Mr. Dixon (Session 303). There was an intention to agree. Although not part of the conversation, Mr. Brown was part of the plan (Session 301, lines 20-26, lines 58-60).

[220] During the Home Depot meeting on June 14, 2021, the details were refined. After this meeting Mr. Luangphasi took steps to put the plan in place. He arranged a meeting with Mr. Kesminas. During the June 16, 2021, meeting Mr. Brown, an experienced “door”, peppered Mr. Kesminas with questions. Mr. Kesminas undertook to look for a plane that would suit the group’s needs. Mr. Brown said he would buy the drugs if Mr. Luangphasi were happy with the pilot. Mr. Luangphasi instructed Mr. Brown “tell him to fucking buy it.”

[221] The conspiracy was in effect by June 16, 2021, and continued until the arrest of the parties.

[222] Once again, I cannot find on the evidence that there are other reasonable inferences available. I am satisfied beyond a reasonable doubt that between June 9, 2021, and July 7, 2021, Mr. Dixon, Mr. Brown, and others had formed an agreement to act together to import cocaine.

[223] There need be no acts in furtherance of the plan to prove a conspiracy exists. Here, however, there were acts in furtherance of the plan. Mr. Luangphasi and Mr. Brown met with Mr. Kesminas to discuss importing cocaine from Guyana. More importantly, Mr. Vogelson sent the email to the government in Guyana as advised by White Boy.

B. Mr. Dixon and Mr. Brown were probably members of the conspiracy

[224] Using only evidence that is directly admissible against each accused, I now have to determine on a balance of probabilities whether each was a probable member of the conspiracy to import cocaine.

[225] Here, I am readily satisfied that Mr. Dixon and Mr. Brown were probably members of the conspiracy. In support of their probable membership in the conspiracy, the evidence shows clear planning and preparation. There is no doubt from the communication that they agreed to work with Mr. Luangphasi and Mr. Kesminas to bring the cocaine in from either Jamaica or Dominican Republic.

[226] In respect of Mr. Dixon, I reach this conclusion based on the following two exchanges during the June 14, 2021, Home Depot meeting. Here, Mr. Dixon had to explain the logistics of hiring a pilot to Mr. Luangphasi:

Session 374

Mr. Luangphasi: So if I go to him and just like look here’s money for the plane you go there I don’t Mr. Vogelson: No you don’t gotta tell him here’s money just tell him (unintelligible) Mr. Dixon: No no no no Mr. Vogelson: You make your arrangements (unintelligible) Mr. Dixon: No you you you no you know what it is here it is (unintelligible) R talk you (unintelligible) R talk you understand come to a conclusion what plane you’re gonna use what spots we have whatever then you’ll make a decision you understand now you have some knowledge in it like you you you their (unintelligible) job and you don’t know the fuck what they do at their job you understand what I’m saying so you have to first do your research what we gonna do how we gonna do where then you say all right it's all yours you know what I’m saying

[227] The second exchange is referenced in paragraph 134 above, in which Mr. Dixon and Mr. Luangphasi were discussing how much cocaine to bring in, and Mr. Dixon said, “yeah we need to make some money.”

[228] In respect of Mr. Brown, I conclude he was probably a member of the conspiracy to import cocaine based on his participation in the June 16, 2021 meeting with Mr. Dixon and Mr. Kesminas, buttressed by the following:

• Mr. Luangphasi made it clear in more than one intercept that Mr. Brown was an important part of the plan; and
• at the outset of the June 16, 2021 meeting, Mr. Luangphasi stressed to Mr. Kesminas how important it was that he speak with Mr. Brown.

[229] Mr. Brown was not only fully aware of the nature of the common design, but he also had a hand in crafting it.

C. Mr. Dixon and Mr. Brown were members of the conspiracy beyond a reasonable doubt

[230] Moving to the third step of the Carter analysis, considering all of the evidence including the hearsay utterances that were made in furtherance of the conspiracy, the next question is whether it has been proven beyond a reasonable doubt that Mr. Dixon and Mr. Brown were members of the conspiracy.

[231] The answer is a resounding yes. On the totality of the evidence, I find that the Crown has established beyond a reasonable doubt that Mr. Dixon and Mr. Brown were key members of the conspiracy to import cocaine into Canada. Even though the evidence is circumstantial, their guilt is the only reasonable inference that can be drawn.

X. Conclusion

[232] In respect of Mr. Dixon, I find him guilty on Counts One and Three.

[233] In respect of Mr. Brown, I find him guilty on Count Three.

CASULLO J.

Released: May 31, 2024

[1] Until DC Beavis took the stand, the Profile Photographs Brief had been marked as Exhibit A and used by officers to identify certain individuals. [2] Exhibit 4B contained the corresponding audio intercepts. [3] The times I reference in each Session reflect the time stamp in the intercept itself, not the time of the day the words were uttered. [4] This Session number is lower than the Sessions numbers being referenced, as each device being tapped generates its own series of Session numbers. This Session is captured from Mr. Luangphasi’s cell phone. [5] Session 421 was not introduced by defence, not the Crown. [6] At line 54 of Session 415 Mr. Luangphasi explains to Mr. Kesminas that “PJ” means a private jet. [7] Mr. Kesminas’ first name is Giedrius, but he also goes by Greg.