R. v. Caines, 2011 ABQB 331

Court of Queen ’ s Bench of Alberta Citation: R. v. Caines, 2011 ABQB 331 Date: 20110513 Docket: 081572687Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - John Norman Caines Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice John J. Gill _______________________________________________________ [ 1 ] The Accused is facing six charges: 1. One count of conspiracy to unlawfully traffic in cocaine contrary to section 465(1) of the Criminal Code . 2.

One count of possession of cash monies of a value exceeding $5,000 knowing that all or part of the property was obtained by the commission of an offense punishable by indictment contrary to

section 355 (

a) of the Criminal Code . 3. One count of trafficking in cocaine contrary to section 5(1) of the Controlled Drugs and Substances Act .

4. Three counts relating to the storage of firearms in a careless manner contrary to section 86(1) of the Criminal Code . [ 2 ] The alleged offences concerning conspiracy, trafficking and possession allegedly took place between October 18, 2005 and October 29, 2005. The three firearms charges relate to weapons found at the Accused’s residence on May 31, 2006. Overview [ 3 ] The conspiracy, trafficking and possession charges relate to the Accused’s alleged involvement in a cocaine distribution operation which was trafficking large quantities of cocaine in the Ft. McMurray area.

Co-conspirators include the alleged leader who is the Accused’s son, Jeffrey Caines, and Charles Flight a former co-worker and friend of the Accused. Evidence [ 4 ] The evidence put forward at trial included an Agreed Statement of Facts, a large volume of intercepted telephone calls and surveillance reports, and a number of police witnesses. The Accused testified. [ 5 ] I will address the evidence of the Accused later in the judgment.

The rest of the evidence establishes that there was a cocaine distribution operation in which Jeffrey Caines (“Jeff Caines”), Charles Flight (“Flight”), Joshua Penton (“Penton”) and others conspired to traffic large quantities of cocaine in the Ft. McMurray and Edmonton areas.

Jeff Caines was the head of the operation, Flight was Jeff Caines’ courier, and Penton was one of Jeff Caines’ customers or distributors. [ 6 ] The evidence as it relates to the conspiracy count can be grouped into three significant incidents: a September 15, 2005 delivery, the collection of proceeds on October 19 and 20, 2005 and the collection of proceeds and transport of drugs on October 25 to 27, 2005. September 15, 2005 [ 7 ] The surveillance and wiretap evidence establishes that on September 15, 2005 Jeff Caines had two telephone conversations with Mr. Alcantara.

The focus of the conversations related to Jeff Caines arranging a delivery of a sum of money to Mr. Alcantara. An arrangement was made for Flight to deliver the money to Mr. Alcantara. Later in the evening, Flight contacted Alcantara to pick up the money at Flight’s residence. Alcantara was later observed picking up the money. October 19 - 20, 2005 Incident [ 8 ] The surveillance and wiretap evidence establishes that on October 19, 2005 the following took place: (

a) Flight pre-arranged with several individuals to collect money; (

b) Flight travelled by car to Ft. McMurray, Alberta to collect money;

(

c) the money Flight collected was owed to and belonged to Jeff Caines; (

d) upon arriving home in Edmonton from Ft. McMurray, Flight requested that the Accused count and verify the amount of money he had collected; (

e) the Accused was observed arriving at the apartment building where Flight lived; (

f) Flight ultimately delivered the money to Jeff Caines; (

g) the amount of money collected was $24,000; (

i) the money consisted of proceeds from drug sales. October 25 to 27, 2005 Incident [ 9 ] The surveillance and wiretap evidence establishes that between October 25 and 27, 2005 the following occurred: (

a) Flight arranged for several individuals to collect money for him; (

b) Flight collected the money in Ft. McMurray; (

c) Flight travelled to Pitt Meadows to pick up a 4 kg cocaine shipment; (

d) the money Flight collected belonged to Jeff Caines; (

e) the cocaine shipment belonged to Jeff Caines; (

f) the money consisted of proceeds from drug sales. [ 10 ] Specifically on October 25, 2005 Flight called Penton who advised that he was around “24 or 25” and that as soon as Flight’s “share’s there, they’re coming”. Penton also told Flight that he would call him that night. [ 11 ] Later at 2:16 p.m. Flight suggested that he should have the Accused “pick that up for me”. The Accused confirmed that he could if Flight wanted him to do so. [ 12 ] Then at 6:35 p.m. Flight confirmed that he wanted the Accused to “pick up that stuff and take 3 or 4 men that you need”.

He later indicated the Accused would have “22 to 25 people”. Flight then gave the Accused Penton’s telephone number and advised that he had arranged this with Penton. Flight again indicated to the Accused to “pick that up and bring it, put it in the microwave” for Flight to collect the next morning. [ 13 ] On October 25, 2005 at 9:39 p.m. Flight called the Accused and advised him that he had arranged to meet Penton at 6:00 a.m. the next morning. Flight then indicated that he would “take 3 out of what I got there, and leave and you go get it at my place, how’s that”.

Flight added that he did not want to “leave himself short”, because he did not “know what he got, he said . .. I said you know it’s 20, it’s 25 people, 26 people, 30 people, how many fucking people have you got”. He added that Penton did not know. [ 14 ] On October 26, 2005 at 8:53 a.m. Flight told the Accused that Penton did not meet with Flight so he could not collect the money. The Evidence of the Accused

[15] The Accused testified as follows: (

a) He knew that his son Jeff Caines was involved in the illegal drug trafficking business, supplying cocaine to customers for a profit.He knew Jeff Caines was a drug dealer and did not have any other sources of income. He had no role in Jeff Caines drug business. Hewas never a participant in the drug running operation. (

b) The Accused knew that his friend Flight worked for Jeff Caines in the drug business as a courier. Flight would pick up anddeliver cocaine to Jeff Caines’ customers, and collect drug proceeds from those customers and deliver them to Jeff Caines. He knewwhen Flight drove to Ft. McMurray during the period of October 19 to 27, 2005, that he went to pick up money which was drugproceeds. They had many telephone conversations together. During one of these conversations he told Flight he did not want to talk onthe cell phone to him because they were having a “crude conversation”. (

c) On October 20, 2005 at Flight’s request, the Accused counted a large sum of money that he knew was drug proceeds that Flighthad just collected from Jeff Caines’ customers in Ft. McMurray. The Accused counted the drug proceeds by hand. It took some time andit could have been $19,000, or $23,000, or $24,000. He only counted money on one occasion and he did it as a favour for his friendFlight. (

d) On October 25, 2005 Flight asked him to do another favour which was to call Penton to see if Penton had money for Flight. TheAccused believed Penton to be a customer of Jeff Caines, and that the monies to be collected were drug proceeds. He testified that he didnot want to do it but did it as a favour to Flight. (

e) On October 25, 2005 the Accused called Penton to see if he had the drug proceeds. When he called Penton to ask for money heknew it was drug related. He made the call to Penton to see if he had the money. Josh was not in town so he reported back to Flight andvolunteered to call him again the next morning to assist in the collection of the drug proceeds. He called Penton a second time and left amessage. He knew that the money to be picked up by Penton amounted to approximately $22,000 in drug proceeds. He made the call toPenton reluctantly. (

f) His son Jeff Caines maintained a residence in Calgary, 151 Valley Crest Close N.W. Calgary, Alberta. (

g) The Accused registered Jeff Caines’ Corvette motor vehicle in the Accused’s name, because Jeff Caines did not want to beassociated to the motor vehicle due to his drug business. Jeff Caines did not want to have motor vehicles in his name because of his drugbusiness. Jeff Caines did not want to be associated with the vehicles, therefore the Accused put the vehicles in his name to help his son. (

h) The Accused knew that in the course of Jeff Caines’ drug business they used coded language such as “people” and “labourers” torefer to money. According to the code a “labourer” or “people” would represent $1,000, for example 25 people is a reference to $25,000and 22 labourers was a reference to $22,000. (

i) On October 26, 2005 the Accused picked up $3,000 that Flight had left for him in Flight’s microwave oven. He had lent Flight$6,000 some time ago and the $3,000 that was left in the microwave by Flight was a payment on this loan. He does not know whereFlight got the money from. He believed that Flight may have had this money as a result of doing a paint job or it might come from drugs.At one point he spoke to Flight about the $4,000 he was getting from Jeff Caines but he needed this for one of the tanning salons. (

j) The Accused knew Flight was a courier for his son Jeff Caines, and was going to British Columbia to pick up drugs. Analysis of the Accused’s Testimony [16] The Accused testified and therefore his credibility is important and the principles set out in R. v. D.W.,

(SCC) , [1991] 1 S.C.R. 742 are applicable . [ 17 ] While the Accused admitted to certain facts that were irrefutable based on the evidence (for example: his knowledge of the existence of the drug operation in general, Jeff Caines’ and Flight membership and involvement in that drug operation, and the coded language that was used in the drug operation) he denied any intention to participate in the drug trafficking and provided explanations for what were apparently criminal activities or intentions. [ 18 ] I do not find the Accused’s denials and/or explanations with respect to certain facts that link him to the drug operation and the drug conspiracy to be credible due to the inconsistencies and evasiveness in his testimony.

His testimony appeared designed to mislead the court and minimize his involvement. The following are examples of inconsistencies and evasiveness which are particularly significant. The Accused’s Intention to Collect Drug Proceeds From Joshua Penton [ 19 ] The Accused denied that he intended to actually collect the drug proceeds from Penton. However other evidence of the actual actions of the Accused undermine his denial and support the inference that he did in fact intend to collect the drug proceeds. [ 20 ] He testified that on October 25, 2005 he called Penton to see if he had the drug proceeds.

He knew that the money to be picked up by Penton was approximately $22,000 in drug proceeds. Penton was not in town so he reported back to Flight and volunteered to call him again the next morning to assist in the collection of the drug proceeds.

He called Penton a second time and left a message. [ 21 ] The evidence in its totality on this point leads to only one reasonable inference: - the Accused intended and attempted to collect the drug proceeds from Joshua Penton. [ 22 ] I find that the Accused’s testimony that he agreed to collect drug proceeds but that he did not intend to pick them up was designed to mislead the Court regarding his intent to collect the drug proceeds. The $3,000 Received was Drug Proceeds not a Loan Repayment [ 23 ] The Accused admitted on October 25 to 26, 2005 he received $3,000 from Flight.

But he claimed the money was a partial payment towards a loan he gave Flight and he did not know whether the money was drug proceeds collected from Ft. McMurray. [ 24 ] I find that this explanation is not credible. The Accused knew the $3,000 was drug proceeds that Flight had collected from Jeff Caines’ Ft. McMurray customers.

I find that the most reasonable inference is that the Accused was given the money pursuant to or as a result of his involvement in relation to the drug operation and not as a loan repayment from Flight. [ 25 ] I come to this conclusion for the following reasons. [ 26 ] The Accused admitted that when he discussed obtaining the $3,000 from Flight, Flight was returning from Ft. McMurray where he had just collected drug proceeds. He also knew that Flight was going to use the drug proceeds he had just collected to pay for a shipment of cocaine which Jeff Caines had acquired to supply his customers.

[ 27 ] Penton’s drug proceeds were part of the amount Flight was collecting. The Accused agreed to collect Penton’s share. From these drug proceeds the Accused was supposed to keep $3,000 or $4,000. Therefore the Accused was to received $3,000 to $4,000 of Penton’s payment for cocaine that he had previously been supplied with by Jeff Caines’ drug operation. [ 28 ] There is no reference linking or identifying the $3,000 to $4,000 as partial payment on a past loan. In their discussion Flight told the Accused “you’re going to pick up that stuff and take 3 or 4 men that you need . . . 3 or 4 people”.

The reference is to what the Accused needed not to what was owed. This implies that the money was being provided for business purposes not a personal loan payment. [ 29 ] The Accused claimed he loaned Flight $6,000 and none of it had been paid back. [ 30 ] If this was a loan payment, then Flight had no reason to use coded language.

The loan was apparently for legitimate purposes, meaning that arranging for repayment would not involve illegal activity and therefore there would have been no concern over discussing this money using coded language. [ 31 ] The evidence is that the money was originally to be taken straight from the drug proceeds collected from Penton. This was not Flight’s money. He was collecting on behalf of Jeff Caines for the purpose of financing a drug shipment (which was seized the next day in Banff).

Flight would have had no authority to use the drug operation’s profits to pay a personal debt. [ 32 ] Flight apologized for only giving the Accused $3,000 as opposed to the $4,000 explaining he did so because he was concerned he would be short of money. This conversation took place at the time Flight was collecting drug proceeds to pay for a cocaine shipment. This required him to collect a specific amount.

This implies that the $3,000 that Flight gave the Accused came straight from the drug operation’s drug profits, not Flight’s own money. [ 33 ] In one of the taped conversations between Flight and the Accused, the suggestion is that it was Jeff Caines who originally told Flight to give the Accused the $4,000 out of the drug operation’s proceeds with no reference or connection being made to this being a payment on a loan between Flight and the Accused. [ 34 ] In

summary the cumulative effect of the evidence leads to only one reasonable inference, namely Flight gave the Accused $3,000 from the drug operation’s profits at the direction of Jeff Caines. I conclude that the Accused’s testimony in relation to the loan was calculated to mislead the Court as to the true purpose for the payment. The Accused’s Reasons for His Request on October 20, 2005 for a Face to Face Meeting with Mr. Flight [ 35 ] The police intercepted a private communication between Flight and the Accused lasting 24 minutes and 58 seconds.

Approximately 17 minutes into the conversation the Accused requests to speak to Flight in person. As a result the content of their intended conversation could not be intercepted. The reason given for this in Court was that he was concerned about the crudeness of the conversation they were having. However this explanation is not credible when the evidence is examined. The request from the Accused came approximately 17 minutes into the conversation and the majority of that 17 minutes consists of crude language. If the Accused had been truly concerned about the crudeness he would have made the request much earlier.

In addition much of the 6 or 7 minutes that follows the request also contains extremely crude conversation. [ 36 ] The circumstances of the call are totally inconsistent with the Accused’s testimony. He had plenty of time to interrupt Flight prior to the 17 minute mark of the conversation which was riddled with crude exchanges. After making this request, when his supposed intentions would have been fresh in his mind, he immediately re-engaged in the crude exchanges he supposedly wished to stop.

Further he was an active participant in all the exchanges and initiated some of them. [ 37 ] Most telling is when Flight attempted to end the call, the Accused extended it with a crude exchange. Clearly the Accused was not concerned with the crude exchanges being recorded.

[ 38 ] The Accused admitted the intention of the request was to have a conversation with Flight in person to prevent the police from intercepting the content of the conversation. Flight was a courier for the drug operation. The Accused admits to being privy to the drug operation. In the circumstances the only reasonable inference that can be drawn is that the intended conversation concerned issues related to the drug operation. [ 39 ] When testifying, the Accused clearly misrepresented the true nature of the intended conversation.

I infer that the reason for this misrepresentation is that the conversation concerned illegal activity. I find his testimony was designed to mislead the court regarding his true involvement in the drug operation and conspiracy. The Accused’s Claim to Disapprove of Jeff Caines’ Cocaine Operation [ 40 ] The Accused claimed to disapprove of Jeff Caines’ cocaine operation. This testimony is not credible as his actions indicate the opposite: 1. He assisted Jeff Caines by acting as nominee and registering Jeff Caines’ Corvette to insulate Jeff Caines from his assets in an attempt to avoid prosecution. 2.

The Accused assisted in counting drug proceeds from Jeff Caines’ drug operation. 3. The Accused agreed to collect drug proceeds from Penton related to Jeff Caines’ drug operation. 4. He kept $3,000 of those drug proceeds. [ 41 ] The only reasonable inference is that contrary to his testimony, the Accused did not in fact disapprove of the drug business. [ 42 ] His testimony that he did disapprove was calculated to mislead the court as to his opinion of the drug operation. The Accused’s Knowledge of the Purpose of Mr.

Flight’s Trip to British Columbia on October 25 [ 43 ] In his testimony the Accused was initially evasive about the purpose of Flight’s trip to British Columbia on October 25. Only after being pressed on the point did he reluctantly admit knowing in advance that Flight was going to drive to Vancouver to pick up a cocaine shipment for Jeff Caines’ drug operation.

Summary [ 44 ] I find that when the Accused’s testimony is considered in detail it is apparent he made certain admissions calculated to portray himself as credible, however his evidence in relation to questions of his involvement in the drug operation and conspiracy is not credible and was calculated to mislead the court.

Analysis and Decision Conspiracy to Traffic Cocaine [45] The elements required to prove a conspiracy have been discussed by the Supreme Court of Canada. [46] In the case of R. v. Cotroni, (SCC), [1979] 2 S.C.R. 256 Mr. Justice Dickson states at 276: The word "conspire" derives from two Latin words, "con" and "spirare", meaning "to breathe together." To conspire is to agree. Theessence of criminal conspiracy is proof of agreement. On a charge of conspiracy the agreement itself is the gist of the offence: Paradis v.R. [ (SCC), [1934] S.C.R. 165], at p. 168. The actus reus is the fact of agreement: D.D.P. v.

Nock [[1978] 3 W.L.R. 57(H.L.)], at p. 66. The agreement reached by the co-conspirators may contemplate a number of acts or offences. Any number of personsmay be privy to it. Additional persons may join the ongoing scheme while others may drop out. So long as there is a continuing overall,dominant plan there may be changes in methods of operation, personnel, or victims, without bringing the conspiracy to an end.

Theimportant inquiry is not as to the acts done in pursuance of the agreement, but whether there was, in fact, a common agreement to whichthe acts are referable and to which all of the alleged offenders were privy. In R. v. Meyrick and Ribuffi [(1929), 21 Cr. App.

R. 94(C.C.A.)], at p. 102 the question asked was whether "the acts of the accused were done in pursuance of a criminal purpose held incommon between them", and in 11 Halsbury (4th ed.), at p. 44 it is said: It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to showa meeting of minds, a consensus to effect an unlawful purpose. There must be evidence beyond reasonable doubt that the alleged conspirators acted in concert in pursuit of a common goal. [47] Conspiracies are often proven through inference. In Paradis v.

The King, (SCC), [1934] S.C.R. 165 at 168Rinfret J., as he then was, said that: . . . Conspiracy, like all other crimes, may be established by inference from the conduct of the parties. No doubt the agreement betweenthem 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 mustproceed by steps.

The actual agreement must be gathered from “several isolated doings”, (Kenny - “Outlines of Criminal Law”, p. 294)having possibly little or no value taken by themselves, but the bearing of which one upon the other must be interpreted; and theircumulative effect, properly estimated in the light of all surrounding circumstances, may raise a presumption of concerted purposeentitling the jury to find the existence of the unlawful agreement. [48] A conspiracy to traffic cocaine is an agreement between two or more persons to illegally traffic cocaine.

Cocaine traffickingnecessarily involves handling and counting of money resulting from the sale of cocaine. There is no requirement by the Crown toestablish the Accused actually handled any cocaine. The agreement to traffic constitutes the offence. Once the agreement is made theoffence has been committed. [49] An accused may join an ongoing conspiracy by entering an existing agreement that has already been forged by two otheraccused. [50] In this case, there is no dispute that a conspiracy to traffic cocaine existed for some time involving Jeff Caines, Flight, Pentonand a number of other individuals.

The Accused admitted to knowing of the cocaine distribution network run by his son Jeff Caines. Heacknowledged that Jeff Caines trafficked large quantities of cocaine in Ft. McMurray, and that Flight was Jeff Caines’ courier whotransported the cocaine from British Columbia to Jeff Caines’ customers in Alberta and collected the drug proceeds from thosecustomers, delivered them to Jeff Caines and that Penton was one of Jeff Caines’ customers. The surveillance evidence supports all ofthese admissions.

[ 51 ] Each individual had a specific role in the cocaine trafficking conspiracy. Jeff Caines financed and oversaw the operation; Flight was the courier of the cocaine and drug proceeds; Penton was a customer who sold the cocaine at the street level. [ 52 ] The evidence when considered as a whole establishes that the Accused was a member of the drug operation and conspiracy. He was aware of the drug trafficking operation and clearly agreed with one of the conspirators (Flight) to carry out one or more acts in furtherance of that operation. [ 53 ] His actions in the drug operation were financial in nature.

He verified drug payments made by customers and when asked attempted to collect drug proceeds. [ 54 ] His involvement and membership in the drug operation conspiracy is the only reasonable inference that can be drawn from the overall evidence and the Accused’s actions. To summarize: 1. The Accused knew Jeff Caines was the head of a cocaine distribution operation involving an agreement between a number of individuals who traffic cocaine. 2. The Accused acted as nominee for Jeff Caines’ Corvette in order to insulate Jeff Caines from police detection and prosecution. 3.

On October 20, 2005 the Accused verified the amount of drug proceeds collected by Flight in the course of the drug operation. This was obviously done for the purposes of assisting in the operation. The drug proceeds were used to purchase future shipments and compensate the members of the operation. 4. Flight approached the Accused to verify the total of drug proceeds collected as he believed the amount collected was wrong . If the Accused was not a part of the operation it is very unlikely that he would have been privy to the amounts owing. 5.

On October 24, 2005 the Accused agreed to and attempted to collect drug proceeds from Penton for cocaine previously supplied to him. These drug proceeds were earmarked to assist in financing the next cocaine shipment. The collection of the drug proceeds was of great assistance to the drug operation. 6. The Accused was supposed to take $4,000 from the drug proceeds collected on October 25 at Jeff Caines’ direction. He only received $3,000 because Flight was concerned that he would not have enough for the cocaine shipment.

There was no reason for a portion of the drug operation money to be given to the Accused unless it was connected to his membership in the drug operation. The claim that this money was partial payment of a loan is not credible. 7. The Accused was privy to the code used by the drug operation when referring to drug proceeds. This coded language was used to disguise the true content of the discussion. 8.

The Accused arranged a face to face discussion with Flight, the reasonable inference being that this was done to avoid police intercepting the content of the intended conversation. [ 55 ] The Accused’s evidence as to his lack of criminal intention is not believable for the reasons outlined above. It does not raise a reasonable doubt regarding his involvement in the conspiracy to traffic cocaine. Further, I am convinced beyond a reasonable doubt of the guilt of the Accused on the basis of the balance of the evidence which I do accept.

Nothing in the evidence raises a reasonable doubt about the Accused’s guilt on this count.

[56] I find the Accused guilty of conspiracy to traffic cocaine. Count Number 6 - Trafficking Cocaine [57] The definition of “traffic” in s. 2 of the Controlled Drugs and Substances Act includes to sell, administer, give, transfer,transport, send or deliver the substance. The term “sell” includes offer for sale, expose for sale, have in possession for sale and distribute,whether or not the distribution is made for consideration. [58] The Accused argues that the evidence does not support a finding that the Accused is guilty of trafficking.

The Accusedsubmits that trafficking or selling, consists of the supplier selling a product and the purchaser providing money for the purchase of thatproduct. The act of counting of money received from trafficking (being some of the evidence relied on by the Crown) is not an actnecessary to the actual trafficking. Ensuring that the correct payment has been received, while probably a good business practice, is not anecessary incident of the sale because the sale is complete before the money is counted. That is, the offence was complete before this actwas completed. [59] In R. v.

Neal, 2010 ONCA 281, 263 O.A.C. 201, Mr. Justice LaForme states: 25 ...Parliament has determined that the traffic in narcotics such as GHB poses a significant risk to society. They have thereforeenacted wide ranging legislation to prohibit this trade. I agree with the reasons of Dubé J.A. in R. v. Rousseau, (1992), (QC CA), 70 C.C.C. (3d) 445 at 451 (Que. C.A.), leave ref'd, [1992] S.C.C.A. No. 394, [1992] 1 S.C.R. x that the intention ofParliament was to "prohibit all forms of action which encompass the circulation of narcotics." 26 The

definitions of "sell" and "traffic" in the CDSA, in my view, cast a very wide net, the goal of which is to facilitate prosecution ofindividuals who participate in or contribute to the trafficking of narcotics. [60] Section 21(1) of the Criminal Code provides that a person is a party to an offence if he or she: (

a) actually commits it, (b)does or omits to do anything for the purpose of aiding any person to commit it, or (

c) abets any person in committing it. [61] In R. v. Lee, 2010 CMAC 5, O’Reilly J.A. for the Court states: 12 ...to be convicted as a party to the offence of trafficking under s. 21(1)(b), one must intentionally perform some act that assists thevendor. ... 16 ...a person can be convicted of trafficking either by committing one of the acts constituting trafficking according to the statutorydefinition (e.g., selling or delivering) or by intentionally committing

an act that assists the principal offender. In the latter case, it will beimportant to consider whether the accused ...did something that aided the seller (or deliverer, etc.)... [62] In R. v. Funaro, 2003 BCSC 135, the accused received money from an undercover officer and counted it. Funaro told theundercover officer that the officer could then go to Valente's house to get what he wanted. The word “cocaine” was not mentioned.Funaro advised that there would be a problem if the officer did not leave the money with him.

At trial, Funaro insisted that he did notknow what the money was for and he neither knew nor suspected that it was for cocaine. Rather, he said he assumed it related to sale ofillegal liquor. In convicting Funaro as a party, Allan J. stated:

47 ...Funaro clearly wanted to distance himself from any direct involvement in a cocaine transaction. It was obvious from his evidence that he drew a line between certain illegal activities such as gambling and possession of stolen property, including but not limited to liquor on the one hand, and drugs and guns on the other.

My assessment of him as a witness is a man who would agree to handle the money end of the cocaine transaction at Valente's request while artificially distancing himself, at least in his own mind, from the drug aspect of the deal... [ 63 ] Despite the wide net cast by the statutory definition, the acts of the Accused in this case do not fit quite so neatly within the definition as did Funaro’s acts in the sense that Funaro received money relating to a particular sale prior to the undercover officer obtaining possession of the drugs, and Funaro directed the officer to the location. [ 64 ] Nevertheless, the evidence in the present case establishes that the act of counting or verifying drug proceeds was integral to Jeff Caines’ business of trafficking in cocaine.

This was a wholesale operation involving collection of proceeds from distributors and customers. The verification of the correct amount of payment received during various cocaine transactions was part of the payment process. To accept the Accused’s argument would be to ignore the nature of the ongoing wholesale trafficking operation in this case. Jeff Caines’ cocaine operation involved ongoing purchases and sales of cocaine. The circulation of money within the operation was essential to, and ultimately facilitated, the sale of cocaine for profit.

Verification of monies received on various transactions was therefore integral to the operation. [ 65 ] The Accused knew the circumstances surrounding the provenance of the proceeds. He was a member of the drug operation and conspiracy. He was aware of the drug trafficking operation and clearly carried out one or more acts in furtherance of the trafficking.

The drug proceeds were to be used to purchase future shipments and compensate the members of the operation. [ 66 ] In this case, I am satisfied that the Accused is liable as a party under s. 21 to trafficking between October 18, 2005 and October 29, 2005 on two different reasons. First, the Accused admitted that he verified the drug proceeds Flight had collected for payment of previously supplied cocaine. The evidence established that the amount of drug proceeds he verified was $24,000 representing payment for over half a kilogram of cocaine.

By participating in the verification of the amount of drug proceeds collected he was a party to trafficking. Secondly, at Flight’s direction, the Accused made two calls to Penton and left a message for the specific purpose of facilitating collection of proceeds from drug sales. [ 67 ] I find the Accused guilty as a party to trafficking cocaine.

Count Number 5 - Possession of Proceeds of Crime [ 68 ] The defence concedes that the evidence supports a conviction on this charge. [ 69 ] The Accused admitted that on October 20, 2005 Flight asked him to count a large sum of money, which he knew were drug proceeds Flight had collected for Jeff Caines’ drug operations, i.e. for payment of cocaine Flight had previously supplied to his customers. As the drug proceeds were obtained by the illegal trafficking of cocaine, the $24,000 constitute proceeds of crime.

The Accused further admitted that he counted the money by hand, meaning he took possession of the money when he counted it. [ 70 ] I am satisfied the evidence establishes the sum counted was $24,000. Consequently when the Accused took possession to count and verify the amount, he was in possession of proceeds of crime over $5,000. [ 71 ] I am satisfied therefore that the evidence establishes that on October 26, 2005 the Accused was knowingly and purposely in possession of proceeds of crime over $5,000. I find him guilty on this count. The Firearms Charges

[ 72 ] The evidence established that on May 31, 2006 the RCMP searched the residence located at 6311 - 160 Avenue, Edmonton, Alberta. During this search they seized four firearms being one handgun, one shotgun, and two rifles. The handgun was seized from a safe in the master bedroom. It did not contain a trigger lock. The shotgun and two rifles were seized off the top shelf in the master bedroom. The shotgun had a trigger lock, while the two rifles .306 and .301 did not have trigger locks. The shotgun and the .306 calibre rifles were each situated in an unlocked fabric case.

The bolts were removed from both rifles and were in the safe. The .303 calibre rifle was not in a case. The bullets for the firearms were located in the safe. The top shelf was approximately 6 feet in height and its contents including the firearms were at eyesight and within easy reach for an adult male. The closet door was not locked. [ 73 ] The Crown submits that the regulations require a trigger lock or other means of securing firearms for the purpose of ensuring they are safely stored.

Given no steps were taken to secure the .306 and .303 rifles and they were left within easy sight and access it is submitted that they were stored in an unsafe manner. [ 74 ] The Storage, Display, Transportation and Handling of Firearms by Individuals Regulations , SOR/98-209 states at paragraph 5(1) as follows: STORAGE OF NON-RESTRICTED FIREARMS 5.

(1) An individual may store a non-restricted firearm only if (

a) it is unloaded; (

b) it is (

i) rendered inoperable by means of a secure locking device, (ii) rendered inoperable by the removal of the bolt or bolt-carrier, or (iii) stored in a container, receptacle or room that is kept securely locked and that is constructed so that it cannot readily be broken open or into; and (

c) it is not readily accessible to ammunition, unless the ammunition is stored, together with or separately from the firearm, in a container or receptacle that is kept securely locked and that is constructed so that it cannot readily be broken open or into. (2) Paragraph (1)(

b) does not apply to any individual who stores a non-restricted firearm temporarily if the individual reasonably requires it for the control of predators or other animals in a place where it may be discharged in accordance with all applicable Acts of Parliament and of the legislature of a province, regulations made under such Acts, and municipal by-laws. (3) Paragraphs (1)(

b) and (

c) do not apply to an individual who stores a non-restricted firearm in a location that is in a remote wilderness area that is not subject to any visible or otherwise reasonably ascertainable use incompatible with hunting. [ 75 ] The three firearms in question are all non-restricted firearms. The shotgun was stored in compliance with the regulations by virtue of the fact that it was stored with a trigger lock. The two rifles were stored in compliance with the Safe Storage Regulations in that they were stored with the bolts removed.

The bullets for the firearms were not in the rifles but in the safe. [ 76 ] The Crown has failed to prove that the rifles were stored in a careless manner contrary to section 86(1) of the Criminal Code .

[ 77 ] I find the Accused not guilty on these three charges.

Summary [ 78 ] In

summary I find the Accused guilty on Count Number 4 Conspiracy, Count Number 5 Possession of Proceeds, and Count Number 6 Trafficking. I find him not guilty on Count Numbers 1, 2, and 3 being the firearms offences. [ 79 ] The Defence requested that the Court withhold entry of any convictions in order to give the Defence an opportunity to bring a stay application. The Crown did not object. I therefore order that the entry of these convictions be withheld until counsel have addressed that issue and further direction is given by this court.

Heard on the September 8 th , 2009, April 7 th , June 28 th , September 7th, 2010, February 25 th , March 29 th , April 8 th and May 4 th , 2011. Dated at the City of Edmonton, Alberta this 13th day of May, 2011. J.J. Gill J.C.Q.B.A. Appearances: Dennis Hrabcak Public Prosecution Service of Canada for the Crown Paul Moreau Moreau and Company for the Accused