DATE: 20240913

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

AMMAAN CHARLEY

G. Crisp and A. Schultz, for the Crown

A. Charley, Self-represented

P. Rochman, Amicus Curiae

HEARD: January 9-12, 15-17, 19, 22-26, 30-31, February 1-2, 12-13, 20-21, June 10, 2024

REASONS FOR JUDGMENT

Contents

I. GENERAL LEGAL PRINCIPLES. 4

A. The Presumption of Innocence and the Burden of Proof. 4

B. Findings in Other Cases. 4

C. Evidence of Discreditable Conduct 5

D. Circumstantial Evidence. 5

E. Co-Conspirator’s Exception to the Hearsay Rule. 6

II. NON-CRIMINAL ORGANIZATION COUNTS IN THE INDICTMENT. 7

A.. Counselling Possession of a Firearm (Count 3) 7

(i) Evidence. 7

(ii) Analysis. 8

B. Conspiracy to Commit Robbery on March 30-31, 2020 (Count 7) 9

(i) Evidence. 9

(ii) Analysis. 11

C. Conspiracy to Commit Robbery/Counselling Robbery and Point Firearm on May 21, 2020 (Counts 8, 9 and 12) 12

(i) Evidence. 12

(ii) Analysis. 15

D. Firearm Possession Offences (Counts 13, 14, 21) 16

(i) Evidence. 16

(ii) Analysis. 17

E. Trafficking Cocaine (Count 18) 17

(i) Evidence. 17

(ii) Analysis. 18

F. Conspiracy to Traffic Controlled Substance (Count 19) 19

(i) Evidence. 19

(ii) Analysis. 21

G. Conspiracy to Traffic Controlled Substance (Count 20) 21

(i) Evidence. 21

(ii) Analysis. 22

III. CRIMINAL ORGANIZATION COUNTS IN THE INDICTMENT. 23

(i) Overview.. 24

(iii) Evidence. 27

(iv) Analysis. 29

B. Instructing Possession of a Firearm and Counselling Possession of a Firearm for the Benefit etc. (Counts 1 and 2) 29

(i) The Meaning of “Instruct”. 29

(ii) Analysis. 30

C. Instruct Robbery, Conspiracy to Commit Robbery, Counselling Robbery for the Benefit etc. (Counts 4, 5 and 6) 30

(i) Evidence. 30

(ii) Analysis. 32

D. Instruct Point Firearm, Counsel Point Firearm for the Benefit etc. (Counts 10 and 11) 33

E. Instruct Trafficking, Trafficking and Conspiracy to Traffic for the Benefit etc. (Counts 15, 16 and 17) 33

IV. DISPOSITION.. 34

SCHRECK J.:

[1] “Project Sunder” was a large-scale police investigation that took place over the course of several months in 2020. The targets of the investigation were a group of racialized young people living in a neighbourhood around Eglinton West Avenue in Toronto. The police believed that these individuals were part of a criminal street gang known as the “Eglinton West Crips” (“EWC”) that was involved in drug trafficking, robbery, firearm possession and other criminal offences committed in the area where they lived as well as other locations, some of which were far outside the City of Toronto. The police used a variety of investigative techniques, including the interception of private communications, covert cameras, surveillance, and searches of various people and locations.

[2] A number of people were arrested at the conclusion of the investigation and charged with a variety of offences. One of those people was Amman Charley, who is alleged to have played a leadership role within the EWC. Mr. Charley is charged on a 21-count Indictment with a variety of firearms, drug trafficking, robbery, conspiracy and criminal organization offences, the particulars of which are set out in Appendix “A”. Mr. Charley has elected to be tried in this court without a jury and to represent himself with the assistance of counsel appointed as amicus curiae.

[3] Mr. Charley’s trial took place over the course of several weeks. Although Mr. Charley was self-represented, he conducted his defence responsibly and made a number of admissions which shortened the trial considerably. Amicus Curiae provided invaluable assistance to Mr. Charley and the Court in ensuring that the evidence of the Crown’s witnesses was tested through cross-examination and that Mr. Charley’s position and defence were clearly put forward. Crown counsel were mindful of Mr. Charley’s status as a self-represented accused and acted within the best traditions of the Crown by ensuring that Mr. Charley was treated fairly while at the same time forcefully advancing their position.

[4] The Crown’s case rests primarily on intercepted communications, over 350 of which were played during the trial. The Crown also relies on the evidence of various police officers, video taken from covert cameras, and a number of music videos posted on public social media. The defence did not call any evidence.

[5] Given the nature of the trial, it would be impossible for me to summarize all of the evidence. Most of the counts in the Indictment relate to a wide timeframe between March 6 and August 22, 2020. In considering whether any count has been proven, I have necessarily relied on the Crown’s written submissions in determining which portions of the evidence are relevant to each particular count. Some of the counts relate to specific events. Others relate to ongoing conduct over a lengthy period of time. Where I am satisfied beyond a reasonable doubt that a particular count has been proven by certain pieces of evidence, I have not necessarily gone on to consider whether it could also have been proven by other evidence.

[6] These reasons will be structured as follows. First, I will outline some general legal principles that apply to all or most of the counts in the Indictment. Next, I will consider each count in the Indictment, summarize the evidence that relates to that count, outline the legal principles that specifically apply to that count, and come to a determination of whether the Crown has proven that count beyond a reasonable doubt. I will consider those counts that do not allege criminal organization offences first. I will then consider whether the Crown has proven the existence of a criminal organization beyond a reasonable doubt. If it has, I will then consider each of the criminal organization counts.

I. GENERAL LEGAL PRINCIPLES

A. The Presumption of Innocence and the Burden of Proof

[7] Mr. Charley is presumed to be innocent of each and every count in the Indictment. He may only be convicted on any count if the Crown proves the essential elements of that count beyond a reasonable doubt. The burden to do so rests with the Crown. There is no onus on Mr. Charley to prove anything, least of all his innocence. Proof beyond a reasonable doubt is a significant standard. While proof beyond a reasonable doubt is not the same as absolute certainty, it is closer to that standard than it is to proof on a balance of probabilities. In applying the burden of proof, I must consider each count separately.

B. Findings in Other Cases

[8] As noted earlier, several other people were also charged. Some of them have pleaded guilty and some have been tried and convicted of various offences.[^1] Mr. Charley is alleged to have committed some offences in concert with some of those individuals, including Vito Bailey-Ricketts, Kyle Guillaume, Brian Herrington, Carlton Jones and others. The fact that any of those individuals were convicted is irrelevant to the issue of whether the Crown has proven Mr. Charley’s guilt beyond a reasonable doubt. Regardless of what the Crown may have been able to prove in other trials, it still bears the burden of proving Mr. Charley’s guilt based only on evidence heard at this trial: R. v. Berry, 2017 ONCA 17, 345 C.C.C. (3d) 32, at para. 35. More specifically, the fact that people Mr. Charley is alleged to have conspired with have been found guilty of conspiring with Mr. Charley is not admissible to prove the existence of a conspiracy or Mr. Charley’s membership in it: R. v. Tsekouras, 2017 ONCA 290, 353 C.C.C. (3d) 349, at paras. 176-177.

[9] Similarly, the fact that other judges in other trials have concluded that a criminal organization existed or that the EWC is a criminal organization is irrelevant to my determination of that issue. The Crown bears the burden of proving the existence of a criminal organization based on the evidence heard at this trial: R. v. Ciarniello, 2006 BCSC 1671, 147 C.R.R. (2d) 351, at paras. 66-67; R. v. Kirton, 2007 MBCA 38, 214 Man. R. (2d) 59, at paras. 17-18.

C. Evidence of Discreditable Conduct

[10] In this case, the Crown seeks to prove that Mr. Charley had a leadership role in a criminal street gang, that he engaged in a wide variety of criminal conduct and associated with others who did so. Much of this evidence is directly related to the counts in the Indictment. However, some of it is not and could support an inference that Mr. Charley engaged in criminal activity apart from that with which he is charged or other forms of discreditable conduct.

[11] I do not intend to catalogue all of the examples of this type of evidence. Some of it is admissible to prove the existence of a criminal organization: R. v. Evans, 2019 ONCA 715, at paras. 200-202. Some of it is relevant to understanding the nature of the relationship between Mr. Charley and others. Whatever use is made of it, it is important that I instruct myself about what use cannot be made of this type of evidence.

[12] I must not use evidence of any uncharged discreditable conduct to infer that Mr. Charley has a propensity to engage in criminal conduct and is therefore more likely to have committed the offences he is charged with: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 33-36, 139-142; R. v. Cook, 2020 ONCA 731, 153 O.R. (3d) 65, at para. 40; R. v. Phan, 2020 ONCA 298, 387 C.C.C. (3d) 383, at para. 90. I must not find Mr. Charley guilty of any offence in order to punish him for other conduct he is not charged with.

[13] The same rule applies to evidence across counts. If I find Mr. Charley guilty on one count, I cannot use that finding to infer that he is guilty on another count arising out of different events: R. v. T.C., 2019 ONCA 898, 383 C.C.C. (3d) 341, at para. 42; R. v. Tsigirlash, 2019 ONCA 650, at para. 23.

D. Circumstantial Evidence

[14] The Crown’s case with respect to most of the counts is circumstantial. The approach to be taken to circumstantial evidence was discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30, where Cromwell J. explained that “an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits.” Considering circumstantial evidence in this way ensures that the trier of fact does not “fill in the blanks” or draw an inference of guilt too readily.

[15] Cromwell J. went on to caution that in considering whether the circumstantial evidence gives rise to reasonable inferences other than guilt, those alternative inferences need not be based on proven facts and may be based on “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt, provided that they are rooted in logic and human experience applied to the evidence or the absence of evidence: Villaroman, at paras. 35-37; R. v. Stennett, 2021 ONCA 258, 408 C.C.C. (3d) 141, at para. 60. This is because a reasonable doubt can arise from the evidence, or from an absence of evidence. However, the Crown is not required to negate every possible conjecture, no matter how fanciful or irrational: Villaroman, at para. 37. Put another way, a trier of fact cannot act on alternative interpretations of the circumstances that are unreasonable: Stennett, at para. 61.

[16] In considering whether an inference is reasonable, it is instructive to consider the cases respecting the test for committal at a preliminary inquiry in cases where the Crown relies on circumstantial evidence. It is clear from those cases that in order to be reasonable, an inference need not be “easily drawn”, “likely” or “probable”: R. v. Kamermans, 2016 ONCA 117, 346 O.A.C. 31, at para. 20; R. v. Katwaru (2001), 2001 CanLII 24112 (ON CA), 52 O.R. (3d) 321 (C.A.), at para. 41; R. v. Dwyer, 2013 ONCA 368, at para. 4. It follows from this that alternative inferences need not be as strong or as compelling as an inference of guilt to be reasonable. Put another way, it is not enough for the Crown to prove that guilt is the strongest reasonable inference. It must be the only reasonable inference.

[17] Ultimately, the issue is whether there is any other way of looking at the case as a whole that is reasonable such that there is a doubt about the accused’s guilt, when assessed logically and in light of human experience: R. v. Choudhury, 2021 ONCA 560, at para. 19.

E. Co-Conspirator’s Exception to the Hearsay Rule

[18] In relation to many of the counts, Mr. Charley is alleged to have conspired or acted in concert with other individuals and the Crown relies on the acts and declarations of those individuals, none of whom were witnesses at this trial. Such out-of-court statements are usually considered to be inadmissible hearsay. However, in cases where there is a conspiracy or other joint criminal enterprise, the statement of one co-conspirator or co-actor may be admissible against the others in certain circumstances by virtue of what is commonly known as the co-conspirator’s exception to the hearsay rule.

[19] To use the out-of-court statements of an individual in this way, the Crown must prove (1) beyond a reasonable doubt that a conspiracy existed; (2) on a balance of probabilities that the accused against whom the statements are sought to be admitted was a member of the conspiracy, based only evidence directly admissible against him; and (3) that the out-of-court statement at issue was made by another member of the conspiracy and was made in furtherance of it: R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938; R. v. Kler, 2017 ONCA 64, 345 C.C.C. (3d) 467, at paras. 63-67; R. v. Baron and Wertman (1976), 31 C.C.C. (3d) 525 (Ont. C.A.), at p. 533; R. v. White (1997), 1997 CanLII 2426 (ON CA), 114 C.C.C. (3d) 225 (Ont. C.A.), at p. 274.

[20] The exception does not apply only to conspiracies and may also be invoked in cases where a common criminal enterprise is alleged to have existed: R. v. Trudel (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), at para. 118; R. v. Bogiatzis, 2010 ONCA 902, 285 C.C.C. (3d) 437, at para. 33.

[21] While I have discussed the rule in terms of statements, it applies equally to acts done by co-conspirators: Kler, at para. 68.

II. NON-CRIMINAL ORGANIZATION COUNTS IN THE INDICTMENT

A. Counselling Possession of a Firearm (Count 3)

(i) Evidence

[22] This count alleges that Mr. Charley counselled “another person” to commit the offence of possession of a firearm while knowing that its possession was unauthorized, contrary to s. 92(1) of the Criminal Code. The Crown relies on a number of intercepted communications which are summarized below, as well as the evidence in relation to Counts 8, 9 and 12, which is summarized later in these reasons.

[23] On March 15, 2020, Mr. Charley spoke to Mr. Guillaume and said, “I think it’s go time for the condo. She just sent me a Snap of the blicky.” Mr. Guillaume asked how they were to go about this and Mr. Charley told him that they would probably get a “smutty” to knock on the door and “say whatever is clever.”[^2]

[24] In a May 2, 2020 call with Mr. Bailey-Rickets, in the context of complaining about the conduct of other people, Mr. Charley mentioned that he gave a gun to someone who did not use it and put it “in the closet to collect dust.”[^3]

[25] During a lengthy conversation about drugs on May 12, 2020 between Mr. Charley and Mr. Guillaume, Mr. Charley said that the proceeds of drug sales should be used to purchase firearms and that this was what someone called P-Loc did:

But at the same time he’s gonna buy … guns. He’s gonna buy guns. Anytime they’re for sale, if you have money … if you have money, you’re supposed to buy guns.[^4]

[26] In a June 2, 2020 call, Mr. Charley told Mr. Guillaume that “Dizzle gave me his knockin’” and that “I told him I’m gonna chuck it on you.”[^5] Mr. Guillaume told Mr. Charley that “Shorty just told me she’s gonna give me a rack.” Mr. Charley told Mr. Guillaume to “take that rack and give it to Mump.” Later in the conversation, Mr. Charley said, “I’m gonna go get the budsky, at least you’re gonna have the pole, fam.”

[27] In a July 2, 2020 call between Mr. Charley and Mr. Guillaume, they discuss a “four five” and the fact that someone else had one but Mr. Guillaume did not because what he did not have a “belly.”[^6] Mr. Charley replied, “If it doesn’t have a belly … it doesn’t count.” Mr. Charley told Mr. Guillaume that “unless you get one today, you don’t have a stick” and “when you said four five, I’m thinking four five live action, ready to go right now.” Later, he said, “It it’s not a handgun, fam, then … forget about it.” It is an agreed fact that “four five” is a term used to refer to a .45 calibre handgun, “belly” is a reference to a magazine, and “stick” is a reference to a firearm.[^7]

[28] The evidence outlined later in relation to Counts 13, 14 and 21 shows that on August 22, 2020, Mr. Charley called Rashida Beckett to ask where a particular gun was and she told him that she believed it to be in the garage. Mr. Charley later went to her home to retrieve it.

(ii) Analysis

[29] The offence of counselling an offence that is not committed is defined in s. 464 of the Criminal Code.[^8] The elements of the offence were explained in R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432, at para. 29:

In short, the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. And the mens rea consists in nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct. [Emphasis in original].

There is no requirement that the accused be the originator of the plan to the commit the offence, provided that there is proof that he encouraged or induced its commission: R. v. Root, 2008 ONCA 869, 241 C.C.C. (3d) 125, at para. 85.

[30] While the March 15 and June 2, 2020 conversations between Mr. Charley and Mr. Guillaume were likely about guns, there is some uncertainty in this regard. Unlike with other terms such as “stick,” there is no agreement or any evidence as to the meaning of the terms “blicky,” “knockin,” “pole” or “rack.”

[31] The Crown submits that the calls between Mr. Charley and Ms. Beckett “provide clear evidence that Mr. Charley is counselling Ms. Beckett to obtain knowledge and control of the firearm that he ultimately picked up from her house.”[^9] I do not agree. Ms. Beckett clearly already had knowledge and control of the firearm. It was Mr. Charley who was attempting to gain knowledge and control of it.

[32] However, it is clear from the May 2, 2020 call that Mr. Charley gave guns to other people. Giving a person a gun necessarily entails encouragement to possess it. In the May 12, 2020 call, Mr. Charley was clearly telling Mr. Guillaume that he should buy guns. With respect to the July 2, 2020 call, although the terms “four five,” “belly” and “stick” can have other meanings, the fact that they were used in the same conversation, as well as Mr. Charley’s mention of a handgun, makes it clear that the conversation was about guns and that Mr. Charley was giving Mr. Guillaume advice about the type of gun he should have. In these circumstances, that advice amounts to encouragement to possess. While there may be other examples of Mr. Charley counselling other to possess firearms, the examples outlined above are sufficient to ground a conviction.

[33] Mr. Charley is accordingly found guilty on Count 3.

B. Conspiracy to Commit Robbery on March 30-31, 2020 (Count 7)

(i) Evidence

[34] Mr. Charley is alleged to have conspired with Selena Everington-Hamm, Tivaughn Fraser and Carlton Jones on March 30 and 31, 2020 to rob an individual of money and jewelry because the alleged intended victim had been extorting Ms. Everington-Hamm by threatening to publicize a video of her engaged in sexual activity. The robbery did not take place. It is the Crown’s theory that this was because certain actions by the police deterred Mr. Charley and the others from carrying out their plan.

[35] On the evening of March 30, 2020, Ms. Everington-Hamm called Mr. Charley and told him that she needed his help to “break into someone’s home” because the person was blackmailing her with a sex video.[^10] She told Mr. Charley that she wanted to “go in his house … and take his money.” When Mr. Charley asked her if the person was “the fraud guy,” she replied that it was. She said that she wanted to hurt him and take his money and that she knew where he lived. Mr. Charley asked if the person’s money was “there right now” and Ms. Everington-Hamm replied that it was. She described the location of the person’s residence in Scarborough.

[36] During the conversation, the following exchange took place:

EVERINGTON-HAMM: I mean we could hurt him, that’s what I was thinking, but …

CHARLEY: And that’s …

EVERINGTON-HAMM: … I want to take his money.

CHARLEY: … definitely gonna happen ‘cause I’m not gonna have that. You’re crazy. I’m gonna … I don’t know, well, that’s not for you to worry about but I’m gonna do him something.”

Mr. Charley later said that he would “shoot him in his face.” After some discussion about the way they could get to the person’s home, Mr. Charley and Ms. Everington-Hamm agreed to meet at a gas station at Victoria Park Avenue and Sheppard Avenue.

[37] At 11:15 p.m., less than half an hour after Mr. Charley ended the call with Ms. Everington-Hamm, he received a call from Tivaughn Fraser, who was looking for his glasses and believed that he may have left them in Mr. Charley’s car.[^11] Mr. Charley told him that he “might have a food” and that he was “figuring it out more about it right now. It’s in Scarborough.” He told Mr. Fraser to stay where he was and that he would “have word” for him in the next 20 minutes.

[38] Calls between Mr. Charley and Ms. Everington-Hamm between 11:35 p.m. and 11:44 p.m. indicate that they were at the appointed meeting place and trying to find one another.[^12] At 11:45 p.m., Mr. Charley called Mr. Fraser and told him that “it’s a go.” He told Mr. Fraser to meet him at the gas station and that they would use Mr. Charley’s car. At 11:54 p.m., Mr. Fraser called Mr. Charley and told him that he was at a gas station on Kennedy Road and wanted Mr. Charley to come there as fast as he could. At one point in the conversation, Mr. Charley said, “bring a duffle if you have a duffle or something.”[^13] Mr. Fraser replied, “All right.”

[39] At 12:14 a.m. on March 31, 2020, Mr. Charley called Carlton Jones and had a conversation that included the following:[^14]

CHARLEY: You wanna go on a foods right now?

JONES: [Unintelligible].

CHARLEY: It’s in the … it’s in Scarborough.

JONES: Oh, what’s [unintelligible].

CHARLEY: For some bread, for some bread. [He then appears to address another person]. What else is there? What else [unintelligible]?

UNKNOWN WOMAN: [Unintelligible].[^15]

CHARLEY: Jewellery?

UNKNOWN WOMAN: Uhn uhn.

CHARLEY: No jewellery? Damn.

UNKNOWN WOMAN: [Unintelligible] had a ring on his finger.

Mr. Charley told Mr. Jones that “there’s money and possibly a ring.” He asked him if he wanted to come along and that a person called T-Rex would be coming as well. Mr. Charley said that he did not know if it was a “two-man” or a “three-man,” but believed it to be three because the person they were discussing lived in the basement and there were older people living upstairs. Mr. Charley said that “A man might have to hold the old people.” Mr. Jones indicated that he would come. Mr. Charley provided him with a location to meet.

[40] After hearing the intercepted communications, the police began conducting surveillance on Mr. Charley’s vehicle, a Nissan Rogue. At 12:20 a.m., the Nissan began to drive in tandem with a Honda Accord. At one point, both vehicles stopped and a woman got out of the Honda and into the Nissan.

[41] At 12:28 a.m., a police officer conducted a traffic stop of the Nissan and observed that the occupants were Mr. Charley, Ms. Everington-Hamm, Mr. Fraser and two unidentified women.

[42] There were several telephone calls between Mr. Charley and Mr. Jones following the traffic stop in which they discussed their respective locations in order to meet. At 1:32 p.m., Mr. Charley received a text message from Ms. Everington-Hamm which contained a specific address.[^16]

[43] A police officer in a marked police car went to the area where they believed Mr. Charley to be in order to deter him from committing the robbery they believed he was planning. The officer activated his emergency lights and drove around the area. At one point, he stopped next to Mr. Charley’s car and asked him whether he had seen two people on bicycles who were suspected of having committed a robbery. Mr. Charley’s vehicle left the area at about 1:45 a.m.

(ii) Analysis

[44] A person is guilty of conspiracy where he or she “enters into an agreement with one or more other persons to commit a criminal offence, intending to achieve that criminal object”: Canada (Attorney General), v. Lalonde, 2016 ONCA 923, 133 O.R. (3d) 481, at para. 16. In order to prove the offence of conspiracy to commit robbery, the Crown must prove beyond a reasonable doubt that Mr. Charley formed an agreement with at least one other person to commit a robbery. The offence of robbery is defined in s. 343 of the Criminal Code and can be committed in a number of ways. The common element is a theft or attempted theft that involves violence or a threat of violence.

[45] The call between Mr. Charley and Ms. Everington-Hamm shows that she wished to hurt the person who was extorting her and that Mr. Charley agreed that this “was definitely gonna happen.” He later asked Mr. Fraser and Mr. Jones to join him on a “food.” While there is no direct evidence as to the meaning of “food,” the 12:14 a.m. call with Mr. Jones makes it clear that their intention was to obtain some “bread” and possibly some jewellery. Mr. Charley indicated that three people were required because there might be people living upstairs and that someone would have to “hold them.”

[46] It is clear that Mr. Charley intended to go to an individual’s home to inflict some sort of violence on him and to steal his belongings and that Mr. Fraser and Mr. Jones agreed to do this with him. These facts are largely proven by Mr. Charley’s own words without the necessity of resorting to the co-conspirator’s exception to the hearsay rule. However, to the extent that it is necessary to rely on the declarations of others, the exception undoubtedly applies in this case. There was an agreement, Ms. Everington-Hamm, Mr. Fraser and Mr. Jones were parties to it, and their declarations were made in furtherance of it.

[47] Based on the foregoing, the Crown has proven beyond a reasonable doubt that Mr. Charley conspired with others to commit a robbery. Mr. Charley is accordingly found guilty on Count 7.

C. Conspiracy to Commit Robbery/Counselling Robbery and Point Firearm on May 21, 2020 (Counts 8, 9 and 12)

(i) Evidence

[48] Mr. Charley is charged in Count 8 with having conspired with “a person or persons” to commit the indictable offence of robbery. He is charged in Count 9 that he counselled “another person” to commit robbery. In Count 10, he is charged with having counselled “another person” to commit the offence of pointing a firearm.

[49] These counts are based on an allegation that during a series of intercepted telephone conversations between Mr. Charley and Mr. Guillaume on May 21, 2020, they discussed a plan Mr. Guillaume had to rob a youth of a firearm while armed with a firearm. It is alleged that during these conversations, Mr. Charley formed an agreement with Mr. Guillaume to commit the robbery and also counselled him to do so, as well as to point a firearm at the intended victim.

[50] On the morning of May 21, 2020, Mr. Guillaume had a telephone conversation with an unidentified man who told him that someone called L.S. had been “bopped off” after claiming that he had a “thirty” on him.[^17] During the same conversation, Mr. Guillaume spoke to another man identified as “Ace” who said that he was the one who had “bopped” L.S.

[51] Later that morning, Mr. Guillaume called Mr. Charley and asked him if there were any “knockers” that he could use because he was “trying to do a little food for a little thirty bopper real quick.”[^18] Mr. Charley asked whether “C.J.” (Mr. Jones) had Bizzie’s (Brian Herrington) “thing.” Mr. Guillaume replied that Mr. Jones was not answering him.

[52] Mr. Guillaume told Mr. Charley that he already knew where the “things” were and that the two “tall ups” were in a bag under the bed and the “next thirty bopper” was on the dresser. Mr. Guillaume said that he had the “perfect excuse” to do what he was planning to do because the people he was referring to had pulled a gun on L.S. Mr. Charley told Mr. Guillaume not to waste time on the “tall up” and to get the “thirty” if he could.

[53] Later the same day, Mr. Guillaume and Mr. Charley had another telephone conversation where they discussed various topics.[^19] At one point, Mr. Guillaume took a call from another person. When he resumed speaking to Mr. Charley, he told him that the person he had just spoken to was his “youth with the ha-beezy” who wanted to know if he was still coming.

[54] At one point, Mr. Charley said that he thought that C.J. had “it” and Mr. Guillaume replied that he probably did. Mr. Charley said, “So tell him come with you, bro” to which Mr. Guillaume replied, “Come with me for what?” Mr. Charley said, “not come with you but tell him just ... make it seem like he’s coming with you….” Mr. Guillaume replied that C.J. did not drive. Mr. Charley asked whether Mr. Guillaume needed someone to drive and Mr. Guillaume replied that “Biggz” would do so.

[55] Later in the conversation, Mr. Charley told Mr Guillaume that he would himself take the gun from C.J. as soon as he was able to, that it belonged to Bizz, not C.J., and that he was really taking it from Bizz. The conversation continued:

CHARLEY: My nigger, you’re … you’re not in the field, kid. You guys are trying to take it from C.J. ‘cause o’ whatever C.J. is doing but that’s … that’s why I said was wrong, cuz.

GUILLAUME: Basically I just wanted it because he’s not mod … he’s not doing nothing, bro.

CHARLEY: No, no, for sure but I’m saying your … your argument that you were gonna use was ‘cause of C.J.

GUILLAUME: Oh, yeah, yeah, yeah.

CHARLEY: But my argument has nothing to do with C.J., he’s just the holder so he just gonna have to be the one to … he’s gonna have to be the one to holler at Bizzy and tell him why his thing’s gone. But I’m gonna … I’m taking it ‘cause of Buzzy, pussy, you’re off the … you’re on the bench. Uh, you’re on the bench and you’re [bring heat on us], you don’t need a gun, you’re good.

[56] Mr. Charley later mentioned “T-Rex” and said that he could call him and tell him that he had a “food” and “just drive, for to … let me use your stick.”

[57] Mr. Guillaume described how L.S. had been robbed after he told people that he had a “thirty popper on him.” The conversation continued:

CHARLEY: Who, L.S. told them he had it on him?

GUILLAUME: Yeah.

CHARLEY: And he didn’t have it on him?

GUILLAUME: Yeah.

CHARLEY: And then popped off on him?

GUILLAUME: Yeah.

CHARLEY: Trying to take it from him?

GUILLAUME: Yeah. And then they … they shook him down, and then give him back his things.

CHARLEY: So why was he telling people that he had the banger on him?

GUILLAUME: I don’t know. The kid almost lost his life.

CHARLEY: Yeah, if you want to get killed … you’ll get popped with his gun, fam.

GUILLAUME: Yeah, like popped off.

CHARLEY: Don’t tell niggers you have a gun and you’re not gonna pop off, bro, not smart.

[58] Later in the conversation, Mr. Charley told Mr. Guillaume that the “key to a good food … is to make the person feel comfortable.” Mr. Guillaume said that he did not want to mess up like he did the last time. Mr. Charley then provided Mr. Guillaume with advice on how not to mess up, including:

Once you get the gun in your hand, cock one o’ the dome and you put it to his fucking head, bro, like … smoke him if he flinch … if he flinches, fam.

Mr. Charley also advised Mr. Guillaume to always keep his back to the door.

[59] Later that day, Mr. Charley called Mr. Guillaume and asked him whether he had done “what you said you were gonna do.”[^20] Mr. Guillaume replied that he had not, for reasons that are unclear.

(ii) Analysis

(a) Conspiracy to Commit Robbery (Count 8)

[60] As discussed earlier, to obtain a conviction for conspiracy, the Crown must prove that the accused entered into an agreement with one or more persons to commit a criminal offence. As noted in R. v. McNamara (No. 1) (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont. C.A.), at p. 451 (aff’d 1985 CanLII 32 (SCC), [1985] 1 S.C.R. 662 sub nom. R. v. Canadian Dredge & Dock Co.), “[t]o constitute the crime of conspiracy it is not sufficient for two or more persons to agree; they must agree to do something.” The Crown must prove “the formation of an agreement, tacit or express, between two or more individuals, to act together in pursuit of a mutual criminal objective”: R. v. H.A. (2005), 2005 CanLII 32566 (ON CA), 206 C.C.C. (3d) 233 (Ont. C.A.), at para. 46.

[61] It is clear that Mr. Guillaume had formulated a plan to commit a robbery and that he discussed this plan with Mr. Charley. However, it is not clear that Mr. Charley agreed to do anything. At one point, he indicated an intention to take C.J.’s gun, but this does not appear to have been in order to facilitate the robbery because he told Mr. Guillaume, “you don’t need a gun, you’re good.” At another point, he suggested that he could call T-Rex to ask him to drive Mr. Guillaume, but it is not clear that he agreed to do so. Based on all the evidence, I am not satisfied beyond a reasonable doubt that Mr. Charley entered into an agreement to commit the robbery. He is accordingly found not guilty on Count 8.

(b) Counselling Robbery (Count 9)

[62] The elements of the offence of counselling an offence that is not committed contrary to s. 565 of the Criminal Code were discussed earlier in relation to Count 3. In this case, it was clear that Mr. Guillaume had already formulated the plan to commit the robbery before he called Mr. Charley.

[63] I recognize that there is no requirement that the accused be the originator of the plan to the commit the offence, provided that there is proof that he encouraged or induced the commission of the offence: R. v. Root, 2008 ONCA 869, 241 C.C.C. (3d) 125, at para. 85. However, it is not clear to me that Mr. Charley was encouraging or inducing Mr. Guillaume to commit the offence as opposed to merely discussing with him the details of an offence that Mr. Guillaume was clearly intent on committing regardless of what Mr. Charley said. Put another way, it is not clear that the offence was “likely to be committed as a result of the accused’s conduct”: Hamilton, at para. 29. For these reasons, Mr. Charley is found not guilty on Count 9.

(c) Counselling Point Firearm (Count 12)

[64] Mr. Charley clearly told Mr. Guillaume how to use a firearm during the commission of a robbery, including that “you put it to his fucking head.” However, this portion of the conversation must be considered in the context of the earlier conversation where Mr. Charley told Mr. Guillaume that he did not need a gun. Considering the conversations together, it may be that Mr. Charley was counselling Mr. Guillaume to point a firearm at the victim of the robbery he was planning, but it could be that he was simply giving him general advice on how a robbery with a firearm should be committed. While I strongly suspect that it is the former and not the latter, there is sufficient ambiguity that I am unable to come to a conclusion with the requisite degree of certainty. As a result, Mr. Charley is found not guilty on Count 12.

D. Firearm Possession Offences (Counts 13, 14, 21)

(i) Evidence

[65] Mr. Charley is charged with possessing a restricted firearm with readily accessible ammunition knowing that he did not have an authorization or licence to possess it, contrary to s. 95(1) of the Code (Count 13), possessing a restricted firearm knowing that he was not the holder of a licence to possess it, contrary to s. 92(1) (Count 14), and possessing a firearm while prohibited from doing so, contrary to s. 117.01(1) (Count 20).

[66] The Crown relies on various intercepted communications in which Mr. Charley mentioned possessing a gun.[^21]

[67] The Crown also relies on the evidence of events on August 22, 2020. On that date, Mr. Charley had a telephone conversation with Rashida Beckett in which he asked her where his “big cuz” was.[^22] Ms. Beckett replied that it was in the garage. Mr. Charley told her that he needed it. Ms. Beckett said that she would double-check that it was there and call him back. She called him back later that day and told him that it was there.[^23] Mr. Charley said that he would see her in a bit.

[68] The same day, police officers conducting surveillance on Ms. Beckett’s residence in Toronto observed Mr. Charley arrive there in a vehicle and enter the residence. Several hours later, Mr. Charley was seen leaving the residence carrying a black backpack and then get into his vehicle. The police blocked Mr. Charley’s vehicle with one of their own. Mr. Charley exited his vehicle and was arrested. The police searched Mr. Charley’s vehicle, where they located the black backpack. It was later found to contain a handgun.

(ii) Analysis

[69] It is agreed that Mr. Charley did not have any authorization or licence to possess a firearm during the relevant time and that he was subject to an order prohibiting him from doing so.[^24] Thus, the only issue is whether the Crown has proven that Mr. Charley possessed the firearm. To prove possession, the Crown must prove that the defendant had knowledge of the nature of the item in question, some control over it, and an intention to possess it: R. v. Pham, (2005), 2005 CanLII 44671 (ON CA), 77 O.R. (3d) 401 (C.A.), at paras. 15-16, aff’d 2006 SCC 26, [2006] 1 S.C.R. 940; R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273 at para. 45.

[70] It is clear from the intercepted communication that Mr. Charley went to Ms. Beckett’s residence to retrieve something. He then left with the backpack containing the firearm. The only reasonable conclusion is that Mr. Charley went there to retrieve the firearm and therefore had knowledge of its presence in the backpack of which he had clearly taken control. As a result, Mr. Charley is found guilty on Counts 13, 14 and 21.

E. Trafficking Cocaine (Count 18)

(i) Evidence

[71] The Crown alleges that Mr. Charley trafficked cocaine on numerous occasions, both alone and in concert with others, in various places, including Toronto and Thunder Bay.

[72] The Crown relies on numerous intercepted conversations with respect to Counts 18 and 19. One of them was an April 12, 2020 telephone conversation between Mr. Charley and an unknown man.[^25] During the conversation, Mr. Charley asked the man whether he wanted some “work” and said that he could give him a “bounce.” He asked the man how much money he had and he replied that he had a “grand.” The conversation continued as follows:

CHARLEY: I’ll give you … I’ll give you ten grams.

UNKNOWN MALE: Yo, story the fuck up, nigger. Ten grams, what the fuck is that?

CHARLEY: Yo, fam, are you high? Yo, you know a half bounce right now is going for 18, fam.

Mr. Charley then indicated that he was joking and that “a full thing is going for 18. A half a bounce is going for nine bills.”

[73] The conversation continued:

CHARLEY: For a grand, I’ll give you fifteen grams.

UNKNOWN MALE: All right, how much is an ounce? Keep it real. You could sell a ounce for 14?

CHARLEY: No, fam. I’ll see you a bounce for 17 max.

UNKNOWN MALE: Yo, yo, stop this.

CHARLEY: That’s the cheapest I’m going, fam. I’m not going nothing less than that.

After further discussion, Mr Charley offered the man 17 ½ grams for a “grand” and said, “I’ll give you a extra beezy on a half bounce.” The man declined and the conversation ended.

[74] It is an agreed fact that “work” is a term for drugs and “bounce” mean an ounce, or 28 grams. It also an agreed fact that in 2020, the street value of an ounce of powder cocaine was between $1400 and $1700 and that the price was higher than usual in the spring of 2020 because of the pandemic.[^26]

[75] On May 18, 2020, Mr. Charley had a telephone conversation with an unknown male. The man told Mr. Charley that he had paid “72 for a full” and that he was “not making nothing on you” and was “just telling you that’s what this work is going for.” [^27] He told Mr. Charley that he was “getting rid of them for 10K right now” for “four and a halves.” Mr. Charley asked if he could get it that day or the next day and the man replied that he could get it in the morning. It is an agreed fact that what was being discussed was cocaine, that “72 for a full” meant $72,000 for a kilogram of cocaine, and that “four and a half” was a reference to four and a half ounces of cocaine.[^28]

(ii) Analysis

[76] There can be no doubt that in the April 12, 2020 conversation, Mr. Charley was offering to sell the person he was speaking to an ounce of cocaine for $1700. This is clear from the context of the conversation and the price being discussed, which was consistent with the street value of an ounce of cocaine at the time. The fact that the transaction did not ultimately take place is of no moment as the term “traffic,” as defined in s. 2 of the Controlled Drugs and Substances Act, includes an offer to sell: R. v. Campbell, [1997] 1 S.C.R. 565, at para. 25.

[77] While Mr. Charley was the purchaser in the May 18, 2020 call, the amount he was purchasing, four and a half ounces, is obviously not for personal use. This leads to the inference that it was Mr. Charley’s intention to resell it and that he followed through on that intention.

[78] These are but two examples of telephone calls in which Mr. Charley discussed the purchase and sale of cocaine. Based on these calls, the Crown has proven that Mr. Charley trafficked cocaine during the time frame in the indictment and he is found guilty on Count 18.

F. Conspiracy to Traffic Controlled Substance (Count 19)

(i) Evidence

[79] It is an agreed fact that on March 9, 2020, Mr. Jones took a bus to Thunder Bay, where he was picked up by someone driving a BMW X5 who took him to an address on Syndicate Avenue.[^29] On March 13, 2020, the same BMW drove to the parking lot of a housing complex where a man occupying the passenger seat engaged in a hand-to-hand drug transaction with another person.

[80] On March 14, 2020, Mr. Jones had a telephone conversation with Mr. Bailey-Ricketts and told him that he was “dry out” and that he “don’t have nothing.”[^30] Later that day, Mr. Bailey-Ricketts spoke to Jose Lopez-Valencia about “getting work from someone out here.”[^31] Mr. Lopez-Valencia said that “they’re asking for the other thing” rather than “work” and that they could “arrange like getting it from … somebody here.”

[81] Mr. Bailey-Ricketts then spoke to Mr. Charley and told him that he planned to “fly in tomorrow.”[^32] Mr. Charley asked what was going on with his “youth out there” (a reference to Mr. Jones), to which Mr. Bailey-Ricketts replied that he was “making the best of his opportunities ‘cause I put him in there with trizzy.” It is an agreed fact that “trizzy” refers to a location where drugs are trafficked or stored.[^33] Later in the conversation, Mr. Charley mentioned that “C.J.” (Mr. Jones) owed him money. Mr. Charley said that he was “gonna send them into … one of those spots to … draw for a rolly for me” but did not know “who we selling the rolly to.” Mr. Bailey-Ricketts replied that “Your boy, he’s gonna buy it.” Mr. Charley said that this would “clear my debt” and he would “get some work.” Mr. Bailey-Ricketts said that “our needs are gonna be paid for.”

[82] On March 17, 2020, Mr. Bailey-Ricketts flew to Thunder Bay and attended the same address on Syndicate Avenue.[^34] Mr. Bailey-Ricketts and Mr. Jones took part in a number of intercepted communications that day which indicate that they were engaged in drug trafficking.[^35]

[83] On March 18, 2020, Mr. Charley had a telephone conversation with Mr. Jones and asked him whether he had any money for him.[^36] Mr. Jones said that he did. They agreed to “go” on the 19th and Mr. Jones told Mr. Charley that he would “holler at you when I touch down.” Calls involving Mr. Jones and Mr. Bailey-Ricketts later that day indicate that they continued to engage in drug trafficking.[^37]

[84] Beginning around March 26, 2020, there were a number of conversations involving Mr. Charley, Mr. Jones, Mr. Lopez-Valencia, Mr. Guillaume and Mr. Bailey-Ricketts about Mr. Charley and others travelling to Thunder Bay.[^38] On March 29, 2020, Mr. Charley, Mr. Guillaume and Mr. Lopez-Valencia drove to a hotel in Thunder Bay, where they met with Mr. Bailey-Ricketts, who was driving the BMW. All four of them then went to the address on Syndicate Avenue. Mr. Lopez-Valencia was carrying a duffle bag.[^39]

[85] On March 30, 2020, Mr. Bailey-Ricketts and Mr Valencia-Lopez had a conversation in which Mr. Bailey-Ricketts said that the “boys” did not want to stay in the “trizzy.”[^40] They also discussed drug trafficking.

[86] On May 7, 2020, Mr. Bailey-Ricketts and Victoria Dittmer drove the BMW to Thunder Bay and attended the Syndicate Avenue address.[^41] They then went to an Econo Lodge hotel and entered it carrying bags, which they took to Room 127. Later that day, Mr. Bailey-Ricketts and Ms. Dittmer were stopped by the police while driving the BMW. They were found to be in possession of 1.8 grams of cocaine. A subsequent search of Room 127 resulted in the seizure of almost 30 grams of cocaine, a digital scale, and $225 in cash. A search of the Syndicate Avenue address resulted in the seizure of over 20 grams of cocaine and a digital scale.

(ii) Analysis

[87] The evidence establishes that Mr. Bailey-Ricketts, Mr. Jones and Mr. Valencia-Lopez engaged in drug trafficking in the Thunder Bay area and did so in concert. This proves beyond a reasonable doubt that a conspiracy to traffic drugs existed.

[88] Mr. Charley’s own acts and declarations, particularly his conversation with Mr. Bailey-Ricketts on March 14, 2020, his conversation with Mr. Jones on March 18, 2020, and his attendance at the Syndicate Avenue address in Thunder Bay on March 29, 2020, establish that Mr. Charley was a member of the conspiracy. In my view, this evidence proves Mr. Charley’s membership beyond a reasonable doubt and there is no need to resort to the co-conspirator’s exception to the hearsay rule.

[89] It is clear from all of the evidence that Mr. Charley was part of an agreement with Mr. Bailey-Ricketts, Mr. Jones, Mr. Valencia-Lopez and others to obtain drugs which were then trafficked in the Thunder Bay area and that Mr. Charley received at least some of the profits. He is therefore found guilty on Count 19.

G. Conspiracy to Traffic Controlled Substance (Count 20)

(i) Evidence

[90] In its written submissions, the Crown describes Count 20 as being “focused on the conspiracy to source drugs after Mr. Bailey-Ricketts is arrested and to continue to traffic drugs within the GTA.”[^42]

[91] The Crown relies on the May 18, 2020 conversation between Mr. Charley and an unknown male summarized earlier in relation to Count 18 in which Mr. Charley sought to purchase a significant amount of cocaine.[^43] Mr. Charley was also involved in a number of calls with the unknown male on May 19, 2020 in which they arranged a meeting.[^44]

[92] Mr. Charley had a telephone conversation with the same unknown male on May 22, 2020 in which he asked, “did you thing out that one for me?”[^45] The unknown male asked Mr. Charley if it was for him and Mr. Charley replied, “It’s not for me, it’s for my nigger, but I was gonna … just get it from you and then give it to him.” Mr. Charley asked the man for “four and a half” and said that he could “charge me 10, I’ll have your money in a couple of days, fam.” The man replied that he could not provide anything without being paid in full. Mr. Charley then said, “I have a whop, he wants to meet you at the Metro at Keele.” The man agreed and asked when “when is he gonna be ready?” Mr. Charley replied that he would “link” him.

[93] Mr. Charley had a conversation with a different unknown male on August 12, 2020 in which he said that he needed “a nine.”[^46] The man agreed to provide a “nine rack” for “25 on the bird.”

(ii) Analysis

[94] The evidence clearly establishes that Mr. Charley agreed to purchase cocaine he intended to sell from at least two different people. The Crown submits that this amounts to a conspiracy to traffic cocaine. However, it is well established that an agreement to purchase drugs cannot, without more, establish a conspiracy between seller and purchaser: R. v. Longworth, Freeman, Newton and Wolfe (1982), 1982 CanLII 3764 (ON CA), 67 C.C.C. (2d) 554 (Ont. C.A.), at p. 567.

[95] The issue of when a buyer of an illegal drug who purchases it from a seller with the intent to traffic it can be said to have entered into a conspiracy with the seller was the subject of a discussion by Paciocco J. (as he then was) in R. v. Meyer, 2012 ONCJ 791. As Paciocco J. explained, there were two lines of authority with respect to this issue which arise out of different readings of the Supreme Court of Canada’s decision in R. v. Sokoloski, 1977 CanLII 17 (SCC), [1977] 2 S.C.R. 523. The first held that when the seller knows that the buyer intends to resell the drug, then he has conspired with the buyer. The second holds that more is required and that there must be proof that the seller and the buyer entered into an agreement to carry out the mutual objective of trafficking.

[96] After an exhaustive discussion of the general principles of conspiracy law, Paciocco J. concluded that the second approach was correct (at para. 25):

In my view, the law of conspiracy therefore requires more when applied to seller/buyer drug transactions than proof that the seller knows the buyer intends to resell. It requires proof beyond a reasonable doubt of an agreement between the alleged conspirators to carry out mutual unlawful acts of trafficking albeit, given the ratio in Sokoloski, without necessarily requiring proof of an agreement by each co-conspirator to jointly engage in or participate directly in the actual acts of trafficking that form the subject of the common agreement.

[97] Paciocco J. based his conclusion on R. v. Alexander (2005), 2005 CanLII 32566 (ON CA), 206 C.C.C. (3d) 233 (Ont. C.A.), where Doherty J.A. had stated (at para.46):

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

It follows from the mutuality of objective requirement of the actus reus that a conspiracy is not established merely by proof of knowledge of the existence of a scheme to commit a crime or by the doing of acts in furtherance of that scheme. Neither knowledge of nor participation in a criminal scheme can be equated with the actus reus of a conspiracy. [Citations omitted].

The approach in Alexander was re-affirmed by the Court of Appeal in R. v. Esseghaier (appeal by Jaser), 2024 ONCA 448, at para. 249, and R. v. Nguyen, 2016 ONCA 182, 346 O.A.C. 375, at para. 21, and adopted by the Supreme Court of Canada in R. v. J.F., 2013 SCC 12, [2013] 1 S.C.R. 565, at paras. 51-52.

[98] In most of the calls relied on by the Crown, the evidence shows only that Mr. Charley agreed to purchase drugs from a seller and that the seller knew that Mr. Charley intended to traffic them. For the reasons explained in Meyer, this is insufficient to make out a charge of conspiracy to traffic because there is no proof of an agreement to carry out a mutual criminal objective.

[99] However, the call on May 22, 2020 does not involve an agreement to purchase drugs. Rather, the seller did not agree to sell drugs to Mr. Charley because he was unable to make immediate payment. As a result, Mr. Charley was unable to conclude a transaction he had arranged with another party and he instead assisted the unknown male to conclude the transaction himself. It is unclear whether Mr. Charley was to profit from the transaction. Whether the transaction ultimately occurred is unknown.

[100] There is no question that if the unknown male had concluded the transaction, Mr. Charley would be guilty of trafficking as a party pursuant to s. 21(1)(b) of the Criminal Code because he aided in the commission of the offence. However, aiding the commission of an offence is not the same as conspiring to commit the offence and acts done in furtherance of an offence committed by another person do not necessarily make one guilty of conspiring with that person, although it can provide evidence of such a conspiracy: J.F., at paras. 44-52, 61, 64; R. v. Trieu, 2008 ABCA 143, 89 Alta. L.R. (4th) 85, at paras. 26-33.

[101] To prove conspiracy, the Crown must prove that there was an agreement “to act together in pursuit of a mutual criminal objective”: Alexander, at para. 46. Based on this record, I have a reasonable doubt as to whether Mr. Charley and the unknown male agreed to act together in pursuit of a mutual criminal objective. As a result, Mr. Charley is found not guilty on Count 20.

III. CRIMINAL ORGANIZATION COUNTS IN THE INDICTMENT

A. The Existence of a Criminal Organization

(i) Overview

[102] In the remaining counts, Mr. Charley is charged with various criminal organization offences. In some, he is charged with committing offences for the benefit of, at the direction of, or in association with a criminal organization, contrary to s. 467.12 of the Code. In others, he is charged with instructing others to commit offences for the benefit of, at the direction of, or in association with a criminal organization, contrary to s. 467.13. With respect to each, the Crown must prove beyond a reasonable doubt that (1) a criminal organization existed; (2) that Mr. Charley committed or instructed others to commit the offence in question; and (3) that Mr. Charley’s actions were undertaken for the benefit of, at the direction of, or in association with the criminal organization.

(ii) Definition of a Criminal Organization

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

467.1 (1) The following definitions apply in this Act.

criminal organization means a group, however organized, that

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

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

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

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

[104] The definition in s. 467.1 must be applied flexibly and is not restricted to large, highly organized criminal groups, such as outlaw motorcycle gangs or the Mafia: R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280, at para. 152. At the same time, the Crown must establish that the group alleged to be a criminal organization has some degree of structure and continuity: R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at para. 76; R. v. Venneri, 2012 SCC 33, [2012] 2 S.C.R. 211, at paras. 27-29. The group must be, to at least some degree, organized, as was made clear in Venneri, at paras. 30-31:

Qualifying “organized” in s. 467.1 by “however” cannot, as a matter of language or logic, be taken to signify that no element of organization is required at all. “Organized” necessarily connotes some form of structure and co-ordination, as appears from the definition of “organized” in the Shorter Oxford English Dictionary on Historical Principles (6th ed. 2007), vol. 2:

Formed into a whole with interdependent parts; coordinated so as to form an orderly structure; systematically arranged. [Emphasis added; p. 2023.]

In French, the definitions in Le Grand Robert de la langue française (electronic version) are consistent with this: it defines the noun “organisation” as the [translation] “[a]ction of organizing (something); the result of such an action” and the verb “organiser” as “[t]o give a specific structure or composition, order, or method of functioning or administration to” (emphasis added).

“However” and “organized” ― the two words read together, as they are written ― are complementary and not contradictory. Thus, the phrase “however organized” is meant to capture differently structured criminal organizations. But the group must nonetheless, at least to some degree, be organized. Disregarding the requirement of organization would cast a net broader than that intended by Parliament.

[105] The purpose of the criminal organization offences is to “identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members”: Abdullahi, at paras. 78-80; Venneri, at para. 39. The way in which criminal organizations pose an elevated threat was explained in Venneri, at para. 36:

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

Because of this, “[s]tereotypical hallmarks such as territoriality, hierarchy, exclusive membership and violence are indicia of a criminal organization, but are not necessary conditions”: R. v. Saikely, 2017 ONCA 374, 135 O.R. (3d) 641, at para. 120; Venneri, at paras. 37-38.

[106] In considering whether the existence of a criminal organization has been proven, the following caution from Abdullahi, at para. 85, must be borne in mind:

The flexibility with which the definition of a criminal organization is applied must not become an invitation for irrelevant considerations or improper reasoning. The risk of improper reasoning is especially acute where an accused is a member of a marginalized community, underrepresented among police, lawyers, jurors, or the judiciary, and whose characteristics and practices may well be less familiar and possibly the subject of biases, prejudices, or stereotypes among those tasked with enforcing the law and passing judgment. The courts have recognized the risks of racial bias or stereotypical reasoning, including subconscious biases, in the criminal justice system (see, e.g., R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128, at paras. 21-22; Barton [2019 SCC 33, [2019] 2 S.C.R. 579], at paras. 195-97). Just as the definition of a criminal organization must not be limited to stereotypical models of organized crime, care must also be taken not to identify a criminal organization merely because the group appears to satisfy some stereotypical model. The trier of fact’s focus when tasked with identifying a criminal organization needs at all times to remain fixed on whether the particular group in question possesses the distinguishing qualities of a criminal organization, i.e., structure and continuity.

[107] The following principles emerge from the foregoing review:

• the definition of a criminal organization must be applied flexibly and is not restricted to large, well-organized groups or stereotypical models of organized crime;

• the Crown must prove that the group had some degree of structure with interdependent and coordinated parts, although the structure need not be complex;

• the application of the definition should focus on the legislative goal of identifying and undermining criminal groups that pose an elevated threat to society by working collectively;

• characteristics such as territoriality, hierarchy, exclusive membership and violence are indicia of a criminal organization, but are not necessary conditions;

• the trier of fact must not consider irrelevant information or base the determination on improper reasoning, stereotypes or biases, especially where the accused is a member of a racialized or marginalized group.

(iii) Evidence

(a) Overview

[108] The Crown’s focus on the criminal organization counts was the EWC, which the Crown submits is a criminal organization. To this end, the Crown relied on not only the intercepted communications, but also on evidence of association between alleged members, rap music videos and social media posts. In my view, the real issue is not whether the EWC is a criminal organization, but rather whether the people with whom Mr. Charley allegedly committed offences were sufficiently organized to meet the definition of a criminal organization. It is noteworthy in this regard that there is evidence in the intercepted communications which suggests that some EWC members are “neutral” or “not active.”[^47]

[109] Because of this, I have not relied on the rap videos or the social media posts. They establish the existence of a group that identifies itself as the Eglinton West Crips, but the existence of such a group is not in issue. They also establish connections between various individuals, but these connections are already established by the intercepted communications. More importantly, reliance on rap videos, many of which include imagery related to gangs and criminal activity, carries with it a “risk that they may trigger or inflame stereotypical assumptions about race and culture”: R. v. Mills, 2019 ONCA 940, 151 O.R. (3d) 138, at para. 122; R. v. Skeete, 2017 ONCA 926, 357 C.C.C. (3d) 159, at paras.156-157. These are the types of stereotypes that Abdullahi reminds us to be cautious of in considering whether the existence of a criminal organization has been proven.

[110] As noted earlier, characteristics such as territoriality, hierarchy, exclusive membership and violence are indicia of a criminal organization. Although they are not necessary conditions, considering whether their existence has been established is a useful starting point for the analysis.

(b) Hierarchy

[111] During a conversation with Mr. Guillaume on April 23, 2020, Mr. Charley said:

Listen, this is what supposed to happen. You’re supposed to be able to send these niggers on a food and they bring back every last dollar to you. You understand? Then you bring every last to me. I bring every last dollar to V-Dizzle and he tells me what they fuck we’re doing. You understand what I’m saying? That’s how it’s supposed to be.[^48]

[112] In a call on August 12, 2020, Mr. Charley explained to Mr. Guillaume that the “Soviet Union” is “the government of all of you niggers” and that if anybody wanted to make a “set” they had to know that “your set is not run by … yourself. There’s a fucking boss.”[^49]

[113] On more than one occasion, Mr. Charley referred to others, including Mr. Guillaume, as “soldiers.”[^50]

[114] In a call on March 28, 2020, Mr. Charley said the following to Mr. Jones:

Niggers can apply and fucking pledge their allegiance…to the fucking Soviet Union then we could rock, if not then niggers choose their lane and stay where the fuck they’re at. You know what I’m saying? This is not no democracy fam, it’s a fucking dictatorship, communism.[^51]

In the same call, Mr. Charley stated that “there’s no free will” and that “if niggers can’t take orders and get told what to do I don’t want to fucking deal with you.”

(c) Exclusive Membership

[115] In a conversation with Mr. Herrington on March 15, 2020, Mr. Charley discussed who is or is not a gang member, and who is an “active” Crip and who is not.[^52]

(d) Territoriality

[116] On March 10, 2020, Mr. Charley told Mr. Guillaume that he was supposed to be “patrolling” because there were “opps” wearing red standing near Dufferin Street and Eglinton Avenue West.[^53]

[117] As well, the evidence respecting the conspiracy to traffic drugs in Thunder Bay and other areas where none of those involved in the trafficking lived shows a proclivity to engage in trafficking within defined territories.

(e) Violence

[118] As outlined earlier during the review of the evidence relating to Counts 3, 7, 13, 14 and 21, there is evidence that Mr. Charley and others possessed firearms and at least contemplated using them.

(iv) Analysis

[119] The evidence outlined earlier with respect to some of the conspiracy counts, particularly conspiracy to traffic in controlled substances, shows that Mr. Charley and others acted in concert with each playing different roles. They did so in the context of a clear hierarchy in which some individuals, including Mr. Charley, had authority over others. One of the main purposes of the group was the commission of serious criminal activity, especially drug trafficking. Based on all of the evidence, I am satisfied beyond a reasonable doubt that Mr. Charley and several others, including but not limited to Mr. Jones, Mr. Bailey-Ricketts, Mr. Guillaume and Mr. Herrington, were part of a criminal organization.

[120] Even if the Crown has proven that Mr. Charley is a member of a criminal organization, this does not mean that he necessarily must be convicted of all of the criminal organization offences he is charged with. Being a member of a criminal organization is not an offence, nor is every offence committed by a member of a criminal organization necessarily a criminal organization offence. The Crown must prove that Mr. Charley committed or instructed the commission of an offence “for the benefit of, at the direction of, or in association with” the criminal organization.

B. Instructing Possession of a Firearm and Counselling Possession of a Firearm for the Benefit etc. (Counts 1 and 2)

(i) The Meaning of “Instruct”

[121] For the reasons outlined earlier, Mr. Charley is found guilty of counselling others, particularly Mr. Guillaume, to possess firearms. However, counselling and instructing are not the same thing. The meaning of the latter term in the context of s. 467.13 was discussed in R. v. Gardner, 2013 ONCJ 351, at paras. 54-55

In my view, when deciding what “instructs” means for the purpose of s. 467.13, the legislative intent of the section must be borne in mind. A conviction under s. 467.13 exposes the accused to life imprisonment. As Chiasson J.A. noted in Terezakis [2007 BCCA 384, 223 C.C.C. (3d) 344] at para. 80:

Parliament imposed escalating maximum sentences. It considered that committing a crime to benefit a criminal organization is more serious than enhancing the ability of the organization to commit crime and that it is very serious for a member of a criminal organization to instruct another to commit an offence for the benefit of, at the direction of, or in association with the organization.

As Justice Pringle noted in Willis [2007 ONCJ 605], the Oxford Dictionary defines “instruct” as: “to direct” or “to command”. The word “instruct” connotes the exercise of authority, even if specific authority within the criminal organization need not be proved: Willis at para. 117; Terezakis, at paras. 75 and 77.

(ii) Analysis

[122] Having reviewed the intercepted communications, it is not clear to me that Mr. Charley “directed” or “commanded” anyone to possess a firearm, although he clearly encouraged such possession. I appreciate that in some circumstances, words that literally amount to a suggestion can in fact be a command. For example, when a judge tells a witness who is being bound over that he should attend court on a specific date, or asks the witness to please attend on that date, the judge is in fact giving a command. It may well be that Mr. Charley was intending to give commands with respect to the possession of firearms. However, I am not satisfied of this beyond a reasonable doubt. As a result, Mr. Charley is found not guilty on Count 1.

[123] With respect to Count 2, I have already concluded that Mr. Charley counselled Mr. Guillaume to possess a firearm. Given that he has referred to Mr. Guillaume as a “soldier” on more than one occasion, it can be inferred that Mr. Charley’s suggestion that Mr. Guillaume obtain a firearm was related to Mr. Guillaume’s role as “soldier” and was clearly made “for the benefit” of the criminal organization. Mr. Charley is accordingly found guilty on Count 2.

C. Instruct Robbery, Conspiracy to Commit Robbery, Counselling Robbery for the Benefit etc. (Counts 4, 5 and 6)

(i) Evidence

[124] According to the Crown’s submissions, these counts relate to the evidence of the events of March 30 and 31 which underly Count 7, the events of May 31, 2020 which underly Counts 8, 9 and 12 as well as evidence relating to an alleged plan to commit a robbery on March 22, 2020 which is not the subject of a substantive count.

[125] The allegations related to March 22, 2020 are based on a series of calls involving Mr. Charley and Mr. Jones, who discussed a plan to attend an address where an unidentified woman told them that the alarm was not on and that she would “bust the door.” It appears that their interest was in the storage room of the address.[^54] At one point, Mr. Charley said:

She’s gonna bust the door. But she said there’s the storage room downstairs and you might have to take him down to, but I’m not gonna take him down to the storage. I’m just gonna tell him to give me the key for it or whatever.

[126] In a later call, Mr. Bailey-Ricketts became involved and told Mr. Charley that he was on his way. Mr. Charley told him that someone “took the alarm off and is gonna fly the gate.” He later said that the unidentified woman had told him that the alarm was already off but that she had given him the code anyway.[^55]

[127] The Crown also relies on a call between Mr. Charley and Mr. Herrington on April 23, 2020. Mr. Herrington called Mr. Charley and told him that he had been on a “food,” after which the conversation continued as follows:

CHARLEY: Which food you guys go on? The same one …

HERRINGTON: [Unintelligible].

CHARLEY: … I sent C.J. on?

HERRINGTON: No, no, no, no. What? Crazy. That would be your food, no? That’d be…

CHARLEY: [Unintelligible].

HERRINGTON: … [crazy if the men] … that’d be [crazy if the men] did that.

CHARLEY: Huh?

HERRINGTON: That’d be [crazy if the men] did that. What’re you taking about?

CHARLEY: No it wouldn’t. I sent him to go do it.

HERRINGTON: What, like with you though?

CHARLEY: No, I told him I’m not coming. I told him go do it.

HERRINGTON: What today … today [unintelligible] …

CHARLEY: I was literally just before …

HERRINGTON: [unintelligible].

CHARLEY: … you guys cut I literally just told him and he said he’s going.[^56]

(ii) Analysis

(a) March 30-31, 2020

[128] The conspiracy to commit a robbery on March 30 and 31, 2020 began when Ms. Everington-Hamm contacted Mr. Charley and suggested robbing a man who had been extorting her. Mr. Charley agreed and recruited Mr. Fraser and Mr. Jones to participate. The robbery eventually did not take place because of the intervention of the police. For the reasons outlined earlier, I am satisfied beyond a reasonable doubt that Mr. Charley conspired with the others to commit a robbery.

[129] I am not satisfied beyond a reasonable doubt that Mr. Charley instructed anybody to commit a robbery. He told Mr. Fraser that he “might have food” and asked Mr. Jones if he “want go on a foods right now,” but at no point did he clearly command or direct either of them to participate. As a result, Mr. Charley cannot be convicted on Count 4 on the basis of this evidence.

[130] I am, however, satisfied beyond a reasonable doubt that Mr. Charley’s participation in the conspiracy was done “in association” with the criminal organization based on his recruitment of Mr. Fraser and Mr. Jones, both of whom were also members of the organization. In these circumstances, it can be said that Mr. Charley’s membership in the organization assisted in the commission of the offence: R. v. Drecic, 2011 ONCA 118, 276 O.A.C. 198, at para. 3. As a result, Mr. Charley is found guilty on Count 5 in relation to March 30 and 31, 2020.

[131] Mr. Charley is not charged with the substantive offence of counselling robbery in relation to the events of March 30 and 31, 2020. However, he clearly encouraged Mr. Fraser and Mr. Jones to participate: Hamilton, at para. 29; Root, at para. 85. The fact that all three of them were members of the organization assisted in Mr. Charley’s ability to counsel them. As a result, he is found guilty on Count 6.

(b) March 22, 2020

[132] While it is clear that Mr. Charley and the others were planning some sort of theft-related illegal activity, it is not clear that this was a robbery as opposed to a theft. Their target was clearly a storage unit and it appears that the woman had already disabled the alarm. At one point, Mr. Charley stated that he would tell someone to give him the key, but it is not clear who he was referring to or whether he intended to resort to violence or threats to obtain the key. Even if this was a robbery, Mr. Charley did not instruct anybody to commit it, so this evidence cannot support a conviction on Count 4. If it was a robbery, it could support a conviction on Counts 5 and 6, but those counts are made out on the basis of other evidence in any event.

(c) May 31, 2020

[133] For the reasons outlined earlier, I am not satisfied beyond a reasonable doubt that Mr. Charley conspired with anybody in relation to the events of May 31, 2020 or that he counselled anybody, let alone instructed them, to commit robbery. As a result, the evidence in relation to May 31, 2020 cannot support a conviction on Counts 4, 5 and 6.

(d) Call With Mr. Herrington on April 23, 2020

[134] It is clear from the conversation between Mr. Charley and Mr. Herrington on April 23, 2020 that Mr. Charley had directed Mr. Jones to commit a robbery. Given that both Mr. Charley and Mr. Jones were members of the organization, the Crown has proven beyond a reasonable doubt that Mr. Charley instructed Mr. Jones to commit the offence of robbery in association with a criminal organization. Mr. Charley is accordingly found guilty on Count 4 as well.

D. Instruct Point Firearm, Counsel Point Firearm for the Benefit etc. (Counts 10 and 11)

[135] Counts 10 and 11, which allege instructing the offence of point firearm or counselling the commission of that offence for the benefit of, at the direction of, or in association with a criminal organization, relate to the substantive offence charged in Count 12. For reasons explained earlier, I am not satisfied beyond a reasonable doubt that Mr. Charley is guilty on Count 12. It follows that he cannot be convicted on Counts 10 and 11.

E. Instruct Trafficking, Trafficking and Conspiracy to Traffic for the Benefit etc. (Counts 15, 16 and 17)

[136] The evidence of Mr. Charley’s participation in drug trafficking was summarized earlier in relation to Counts 18 and 19. It is clear that Mr. Charley was part of a fairly sophisticated scheme to transport and traffic drugs in different areas and that he played a leadership role. He did so together with other members of the criminal organization.

[137] Mr. Charley’s obvious leadership role makes it clear that he directed others to fulfil specific roles within the trafficking operation and that he expected them to follow his orders because it was a “dictatorship” like the Soviet Union. The inference that he instructed others to engage in trafficking is inescapable. He did so for his own benefit and the benefit of others in the organization, and he was able to do so because of his membership in the organization.

[138] Based on this, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Charley instructed others to traffic in controlled substances, conspired with others to traffic in controlled substances, trafficked in controlled substances himself, and did all of this in association with and for the benefit of the criminal organization. As a result, Mr. Charley is found guilty on Counts 15, 16 and 17.

IV. DISPOSITION

[139] Mr. Charley is found guilty on Counts 2, 3, 4, 5, 6, 7, 13, 14, 15, 16, 17, 18, 19 and 21.

[140] Mr. Charley is found not guilty on Counts 1, 8, 9, 10, 11, 12 and 20.

Justice P.A. Schreck

Released: September 13, 2024

Appendix “A” – Counts in the Indictment

CC: Criminal Code, R.S.C. 1985, c. C-46

CDSA: Controlled Drugs and Substances Act, S.C. 1996, c. 19.

DATE: 20240913

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

AMMAAN CHARLEY

RULING

P.A. Schreck J.

Released: September 13, 2024

[^1]: Ex. 12, Agreed Statement of Fact; Ex. 32, Agreed Statement of Fact. The reasons for judgment in other trials arising out of the same investigation are reported as R. v. Reid, 2023 ONSC 441 and R. v. Bailey-Ricketts, 2023 ONSC 4721. [^2]: Ex. 3-3, Item 020. [^3]: Ex. 3-11, Item 012. [^4]: Ex. 3-12, Item 001. [^5]: Ex. 3-15, Item 004. [^6]: Ex. 3-15, Item 030. [^7]: Ex. 28, Agreed Statement of Fact: Firearm and Ammunition. [^8]: A person who counsels the commission of an offence that is committed would be guilty of the offence as a party by virtue of s. 21(1)(c) of the Code. [^9]: Crown Submissions, Para. 364, fn. 12. [^10]: Ex. 3-6, Item 002. [^11]: Ex. 3-6, Item 004. [^12]: Ex. 3-6, Items 005, 006. [^13]: Ex. 3-6, Item 008. [^14]: Ex. 3-6, Item 011. [^15]: The unknown woman is likely Ms. Everington-Hamm. She is heard in the background and appears to have been in Mr. Charley’s company. [^16]: Ex. 3-6, Item 017. [^17]: Ex. 3-13, Item 001. [^18]: Ex. 3-13, Item 003. [^19]: Ex. 3-13, Item 004. [^20]: Ex. 3-13, Item 010. [^21]: Ex. 3-15, Item 014, 015, [^22]: Ex. 3-15, Item 031. [^23]: Ex. 3-15, Item 032. [^24]: Ex. 1, Agreed Statement of Fact [^25]: Ex. 3-9, Item 001. [^26]: Ex. 27, Agreed Statement of Fact. [^27]: Ex. 3-14, Item 009. [^28]: Ex. 27, Agreed Statement of Fact. [^29]: Ex. 12, Agreed Statement of Fact. [^30]: Ex. 3-3, Item 15. [^31]: Ex. 3-3, Item 16. [^32]: Ex. 3-3, Item 17. [^33]: Ex. 27, Agreed Statement of Fact. [^34]: Ex. 12, Agreed Statement of Fact. [^35]: Ex. 3-4, Items 003, 004, 006, 007. [^36]: Ex. 3-4, Item 014. [^37]: Ex. 3-4, Items 017, 018, 019, 020, 021, 022, 023, 025, 026, 027, [^38]: Ex. 3-4, Items 025, 026, 035, 036, 037, 038. [^39]: Ex. 12, Agreed Statement of Fact. [^40]: Ex. 3-4, Item 039. [^41]: Ex. 12, Agreed Statement of Fact. [^42]: Crown Submissions, para. 192. [^43]: Ex. 3-14, Item 009. [^44]: Ex. 3-14, Items 010, 011, 012, 013. [^45]: Ex. 3-14, Item 016. [^46]: Ex. 3-15, Item 025. [^47]: Ex. 3-3, Item 19c. [^48]: Ex. 3-11, Item 006. [^49]: Ex. 3-15, Item 026. [^50]: Ex. 3-2, Item 002; Ex. 3-15, Item 026. [^51]: Ex. 3-5, Item 031. [^52]: Ex. 3-3, Item 019c. [^53]: Ex. 3-2, Item 020. [^54]: Ex. 3-5, Item 003. [^55]: Ex. 3-5, Item 004. [^56]: Ex. 3-11, Item 005.