R v Scher, 2021 ABQB 803

Court of Queen’s Bench of Alberta Citation: R v Scher, 2021 ABQB 803 Date: 20211008 Docket: 140307802Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Christopher Mark Scher, Michael Mirr Janecek and Steven Manuel Doporto Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.A. Millar _______________________________________________________ I. Introduction [ 1 ] The three Accused have been charged with the following offences: i. Conspiracy to import cocaine between September 1, 2011 and January 2012 pursuant to s 465 (1)(

c) of the Criminal Code , RSC 1985, c C-46 . ii. Conspiracy to traffic cocaine between September 1, 2011 and January 2012 pursuant to s 465 (1) (

c) of the Criminal Code . iii. Possession for the purpose of trafficking cocaine on October 29, 2012 pursuant to s 5(2) of the Controlled Drugs and Substances Act , SC 1996, c 19 [the “ CDSA ”].

iv. Trafficking of cocaine on October 29, 2012 pursuant to s 5(1) of the Controlled Drugs and Substances Act . II. Chronology of Proceedings [ 2 ] The Crown’s evidence was heard between June 12, 2017 and June 15, 2017. The Crown called the following witnesses: Austin Hill, Trevor Millard and Officers Grant Stephen, Ryan Huggan, Laird Linklater and Allison Blue. The Crown’s case also included the transcript and audio recordings of intercepted private communications. [ 3 ] At the outset of the first trial, the accused brought challenges under s 11(

b) of the Canadian Charter of Rights and Freedoms on the basis of R v Jordan , 2016 SCC 27 . After the Crown closed its case, I found that the delay was not justified and granted a stay of proceedings for all the accused. The Court of Appeal reversed this decision and set the stays aside: R v Scher , 2018 ABCA 365 . The matter was remitted back to the Court of Queen’s Bench so that the trial could continue to its conclusion. [ 4 ] The accused, Mr. Janecek, testified on May 3-4, 2021. Mr. Scher and Mr. Doporto elected to call no evidence. [ 5 ] Final arguments were presented on August 3, 2021. III.

Outline of Case A. Theory of the Crown [ 6 ] The Crown’s theory of the case is that Scher, Doporto, and Janecek operated a cocaine distribution business in the Calgary area. In order to obtain stock for distribution, the three accused relied on Austin Hill to smuggle drugs from the United States (“US”) in a vehicle with a hidden compartment (the “Truck”). The Crown alleges that the three accused provided Hill with the Truck, instructions, money for expenses and contacts in Los Angeles from whom to purchase the cocaine.

The three accused also provided Hill with a cover for his trips to the US by having him purchase and import snowmobiles for their recreational vehicle business, Rush Powersports. [ 7 ] After making four successful trips to the US, Hill was ultimately arrested by US authorities when returning to Canada with a significant amount of cocaine (either 44 or 62 kilograms). Hill took a plea deal with US authorities in exchange for his “substantial” cooperation with Canadian authorities in the prosecution of Scher, Janecek, and Doporto. As a result of the plea deal, Hill received no jail time.

Hill’s evidence forms the backbone of the Crown’s case. The Crown submits that there is direct, compelling evidence from Hill regarding the details and the parameters of an ongoing conspiracy implicating the accused in a conspiracy to import and traffic cocaine from the US into Canada. [ 8 ] To substantiate Hill’s testimony, the Crown also led evidence from Trevor Millard, a former close friend of Doporto’s who observed his distribution of cocaine in the Calgary area. Millard stored and distributed marijuana with Doporto from May of 2013 to November of 2013, when the police executed a search warrant on his home.

Like Hill, Millard took a plea deal to cooperate with the police and received no jail time. [ 9 ] The Crown also submits that Hill’s evidence is substantiated through audio recordings and evidence seized from Scher’s home in the execution of police warrants. The recordings contain intercepts from hidden probes located in Scher’s home, as well as 17 jailhouse calls made by Hill to various individuals while he was detained in the US.

At Scher’s home, the police seized significant amounts of cash – some of which was found in a hidden location – supporting the theory that Scher was engaged in the drug trade. [ 10 ] The Crown submits that typically conspiracy cases are based on indirect evidence whereby the details of the agreement forming the center of the conspiracy would be inferred by circumstantial evidence constructed from the conversations and actions of persons in furtherance of the conspiracy.

In this case, there is direct compelling evidence from Hill regarding the details and the parameters of an ongoing conspiracy implicating the accused in a conspiracy to import and traffic cocaine, possession for the purpose of trafficking and trafficking cocaine from the US into Canada. [ 11 ] The recordings and the search warrants executed by the police were part of Project Al bet, run by the Alberta Law Enforcement Response Team Combined Forces Special Unit (“ALERT CFSEU”).

This is a joint task force of Royal Canadian Mounted Police (“RCMP”) and Calgary Police Service (“CPS”) officers created to investigate organized crime groups in the Calgary area. The targets of Project Al bet were Scher, Doporto and Janecek. The Project commenced around February of 2013. B. Defence 1. Mr. Doporto [ 12 ] Counsel for Mr. Doporto submits that convictions cannot rest upon uncorroborated Vetrovec witnesses because their evidence is problematic. Accepting the evidence of such witnesses without independent and material corroboration is inherently offensive to a fair trial.

This case turns on the evidence of two Vetrovec witnesses: Hill and Millard. Both were active drug traffickers and Hill was involved in the importation at issue in this case.

According to defence counsel for Doporto, the two key witnesses provided vague, inconsistent and uncorroborated accounts of their criminal activities at trial and only pointed the finger at Doporto after they were in serious trouble. [ 13 ] Hill gave Doporto’s name in an effort to avoid a life sentence in an American jail and Millard offered up information about Doporto after he was arrested in possession of a loaded handgun, a large amount of marijuana and cash. Millard was promised he would not be charged if he agreed to provide incriminating evidence about Doporto.

Neither witness signed an immunity agreement with the

Crown or the police. 2. Mr. Scher [14] Mr. Scher submits that the Crown’s case consists of a complex web of inadmissible hearsay evidence mixed with inherentlyunreliable and incredible evidence from very high-risk, unsavoury witnesses. In particular, Scher submits that there is no evidenceconnecting any of the three accused to: 1. Any financial payment being made for cocaine; 2. Any source of capital to fund the purchase of cocaine for distribution; 3. Any communication with any wholesale supplier of cocaine; 4. Any bank account or assets as proceeds of millions of dollars in profits; 5.

Any subsequent sales of the massive amounts of cocaine allegedly imported; nor 6. Any forensic evidence of any kind such as fingerprints, DNA or drug residue. 3. Mr. Janecek [15] Counsel for Janecek submits that his evidence provided at trial was reliable and truthful which should lead to an acquittal.Furthermore, the intercepted communications tendered by the Crown do not originate from Janecek and do not reflect membership in aconspiracy nor are evidence of any required element of the charges on the Indictment. IV. Legal Principles A. Legislation 1. Conspiracy [16] Section 465 (1)(

c) of the Criminal Code provides: Except where otherwise expressly provided by law, the following provisions apply in respect to conspiracy: (

c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (

a) or (

b) is guilty of anindictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, beliable. [17] A conspiracy is an agreement between two or more parties with the common goal to commit a criminal offence. The basicelements of a conspiracy are: (

i) an intention to agree; (ii) the completion of an agreement; and (iii) a common unlawful object. The actusreus of conspiracy is the fact or proof of an agreement to put a common design into effect. The mens rea consists of an actual intent onthe part of the conspirators to agree to pursue a common unlawful object and an intention to put the common design into effect: UnitedStates of America v Dynar, (SCC), [1997] 2 SCR 462. [18] Each conspirator must be proven to have knowledge of and to have agreed to act in furtherance of the common goal.

Evidenceof planning or negotiation is not sufficient to establish a conspiracy in the absence of an actual agreement: R v Ruiz, [2000] OJ No 2713. [19] The offence is complete upon the agreement being made between two or more persons to commit a crime “even if nosubsequent acts in furtherance of the agreement are undertaken”: R v Alcantra, 2009 ABQB 524 (reversed in

part 2013 ABCA 163,leave to appeal denied 2014 CarswellAlta 142) at para 39. The agreement is rarely shown by direct evidence: Alacantra at para 62. [20] The Crown in some circumstances may rely on hearsay evidence to prove the crime of conspiracy: R v Lam, 2005 ABQB121. 2. Cocaine Trafficking [21] All three accused are charged with possession for the purpose of unlawfully trafficking cocaine and trafficking of cocaine onOctober 29, 2012 contrary to s 5(1) and 5(2) of the CDSA. [22]

Section 2 of the CDSA adopts the definition of possession found in the Criminal Code at s 4(3): (3) for the purpose of this Act: (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him for the use or benefit of himself or of another person;and

(

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [23] On a preliminary point, there was an issue that arose between the parties with respect to jurisdiction in Counts 3 and 4.Defence counsel submits that the Crown is unable to prove beyond a reasonable doubt that the accused committed the offences “at ornear Calgary, Alberta” as Hill was arrested in Nevada. Having done so, Defence counsel argues that the Crown was obliged to prove theoffence as particularized.

I disagree with Defence counsel on this point. I agree with the Crown that if there is “real and substantial link”between the offences and Alberta, then the Counts can be particularized as “at or near Calgary, Alberta”: see R v Libman, (SCC), [1985] 2 SCR 178. [24] 3. Reasonable Doubt [25] The Crown is required to prove beyond a reasonable doubt that the accused are guilty of each of the essential elements of theoffences. Absolute certainty is not necessary to convict, rather the required standard is something more probable than guilt.

The burdenof proof remains with the Crown and in the context of these offences never shifts to the accused: R v Lifchus, (SCC),[1997] 3 SCR 320; R v Starr, 2000 SCC 40. [26] The accused, Janecek, testified in this case. Given the conflicting evidence, I must apply the framework provided by theSupreme Court of Canada in R v W(D), (SCC), [1991] SCJ No 26 (SCC). The W(

D) framework provides guidance inapplying reasonable doubt to credibility. The framework was clarified in R v Ryon, 2019 ABCA 36, and amended in R v Achuil, 2019ABCA 299 (leave to appeal denied 2020 CarswellAlta 1769). The Court in Ryon instructs at para 51:

i) The burden of proof is on the Crown to establish the accused's guilt beyond a reasonable doubt and that burden remains on the Crownso that the accused person is never required to prove his innocence, or disprove any of the evidence led by the Crown. (Subject to thecaveat that this does not apply to defences, such as that found in s 16 of the Criminal Code, where the onus rests with the proponent ofthe defence.) (ii) In that context, if the jury believes the accused's evidence denying guilt (or any other exculpatory evidence to that effect), or if theyare not confident they can accept the Crown's version of events, they must acquit. (Subject to defences with additional elements such asan objective component discussed at para 31). (iii) While the jury should attempt to resolve conflicting evidence bearing on the guilt or innocence of the accused, a trial is not acredibility contest requiring them to decide that one of the conflicting versions is true.

If, after careful consideration of all the evidence,the jury is unable to decide whom to believe, they must acquit. (iv) Even if the jury completely rejects the accused's evidence (or where applicable, other exculpatory evidence), they may not simplyassume the Crown's version of events must be true. Rather, they must carefully assess the evidence they do believe and decide whetherthat evidence persuades them beyond a reasonable doubt that the accused is guilty.

Mere rejection of the accused's evidence (or whereapplicable, other exculpatory evidence) cannot be taken as proof of the accused's guilt. [27] A criminal trial is not a credibility contest. The Court does not choose one side in a dispute in determining guilt; the evidenceis not to be examined separately or in isolation. The test is whether on the totality of the evidence, viewed as a whole, the Crown hasproven the charges beyond a reasonable doubt. W(

D) acts as a guide in establishing and focusing on the meaning of reasonable doubt insituations where the accused testifies. 4. Vetrovec Witnesses [28] Defence counsel submits that both Hill and Millard are unsavoury witnesses and thereby require caution according to theprinciples outlined R v Vetrovec, (SCC), [1982] 1 SCR 811. Defence counsel (for Doporto) submit that while it islegally possible for a trier of fact to accept a Vetrovec witness’ testimony without confirmatory evidence, because Hill and Millard’sevidence are central to the Crown’s case, it would be an error to rely on their evidence alone.

While it is possible for one Vetrovecwitness to confirm the evidence of another Vetrovec witness, this Court should not do so here. Hill and Millard only agreed to cooperateafter they were caught committing crimes and both were facing lengthy jail sentences. [29] A Vetrovec witness is one with a disreputable and untrustworthy background: Vetrovec at 821. In R v Lawrence, 2020 ABCA268, the Alberta Court of Appeal confirmed a number of non-exclusive characteristics of a witnesses which may draw special scrutiny;these characteristics were initially outlined in R v Vallee, 2018 BCSC 892.

The Court in Lawrence confirms the following potentialindicators at para 26: 1. Did the witness have any motive to lie or mislead the court? 2. Did the witness receive benefits for cooperation such that there is a risk he is lying to the court? 3. Did the witness have a long criminal history? 4. Did the witness have a history of lying to or manipulating the police? 5. Was the witness an accomplice with knowledge of the circumstances such that it would be easy to falsely implicate the accused? 6. Did the witness have access to disclosure or other information that may explain his evidence or how it was given? 7.

Did the witness minimize his own wrongdoing?

8. Did the witness exhibit selective memory? 9. Did important evidence emerge only after the witness exhausted his memory or after prodding by police? 10. Did new information emerge for the first time at trial despite many previous statements? 11. Was the witness evasive? 12. Was the witness testimony inconsistent with external evidence, particularly objective evidence that has been accepted? 13. Did the witness provide prior inconsistent statements? 14. Was the witness internally consistent: did the witness evidence change in testifying? 15.

Upon the application of common sense, is the witness evidence impossible, improbable or unlikely? [ 30 ] If a witness falls within this disreputable and untrustworthy category, the trier of fact “should view the testimony of [such a witness] with great caution, and …it would be wise to look for other supporting evidence before convicting”: Vetrovec at 832. Such other evidence has since been called corroboration. In some circumstances, it is safe to accept the evidence of a Vetrovec witness without confirmatory evidence: R v Khela , 2009 SCC 4 .

Furthermore, appellate courts have confirmed that one Vetrovec witness can confirm the evidence of another if it is accepted: Lawrence at para 31 . [ 31 ] I must also be mindful that the traditional modes of assessing credibility remain relevant: internal consistency, consistency with other evidence, corroboration or contradiction, the ability to observe, demeanour, motive and inherent plausibility. V. Evidence of Witnesses A. Mr.

Austin Hill [ 32 ] As the Crown’s case is largely reliant on the evidence of Hill, and to a lesser extent that of Millard, I have summarized their evidence in detail. [ 33 ] At the time of his testimony, Hill was 36 years old. He was born in Kelowna, grew up in Cranbrook and moved to Calgary when he was 17 years old. He entered the carpentry trade with his uncle and completed his Journeyman’s Exam. He worked in carpentry and commercial concrete and eventually owned his own business, employing up to 32 people at the peak.

The business was successful until the recession in 2009, resulting in bankruptcy for Hill in 2011. [ 34 ] Hill testified that he became acquainted with Scher in 2001, but it was not until 2009 that a friendship developed between the two men. Hill first became aware that Scher sold cocaine in 2004 during a bachelor party. Hill believed that he purchased cocaine from Scher in 2004. Hill and Scher entered into a legitimate business venture where they did labour leasing in Saskatchewan.

Hill was the foreman on site and Scher was responsible for locating the labourers over the internet and organizing payroll. [ 35 ] Hill gave evidence that he expressed an interest to get involved in selling cocaine in 2010. He perceived it as easy money and was envious. Eventually, he expressed an interest to Scher that he wanted to become more involved in order to make more money.

According to Hill, this led to a meeting between Hill, Scher and Doporto at a Milestones restaurant in Market Mall, where they discussed the potential of Hill smuggling cocaine from the US into Canada. [ 36 ] Hill testified that in mid-2011, he met with Scher to discuss a trip to the US to smuggle cocaine. According to Hill, Scher told him that he had found a vehicle in Edmonton for the smuggling operation. The Truck had a hidden compartment for transporting drugs. Hill gave evidence that he met with Scher at a Calgary restaurant and Scher showed him the bill of sale for the Truck.

In the fall of 2011, Hill registered and insured the Truck in his own name in order for it to look more legitimate when he crossed the border. Hill also got a license plate for the Truck. [ 37 ] Hill testified that he next met Scher and Janecek at a Vietnamese restaurant in Country Hills, Calgary, where the Truck was parked out back. Hill was given the keys and then drove the Truck across the city to Scher and Janecek’s shop, Rush Powersports, in the Ogden area in Calgary.

Scher and Janecek told Hill that the business was theirs and they used the business to sell dirt bikes, quads and snowmobiles. [ 38 ] Hill testified that the Truck was a ¾ ton GMC and had a sequence of buttons to push to access the hidden compartment. The compartment was pushed up by two hydraulic lifts and underneath was a black steel box for storage. Hill described the compartment, how it functioned and that it could hold 40 pounds of marijuana and quite a few kilograms of cocaine. Scher told Hill that he paid $80,000.00 for the vehicle.

It was Scher’s idea to register and insure the Truck in Hill’s name to make it seem more legitimate when crossing the border. When Hill was not using the Truck, he believed that it was parked at Rush Powersports or in Janecek’s garage at his Calgary home. [ 39 ] In late 2011, Scher and Hill discussed driving the Truck down to the US. Scher advised him that this trip would happen in the next couple of weeks. Hill was told that his payment would be $1,000.00 per kilogram plus money for incidentals. 1. January 2012 Trip [ 40 ] Hill testified that he attempted a first trip down to the US in January of 2012.

He explained at trial that the purpose of the trip was to bring cocaine back to Canada. According to Hill, he was told via PGP phone (an encrypted email phone) to head to Los Angeles

(“LA”) and wait for instructions. Hill picked the vehicle up from Rush Powersports and received money for incidentals. He left Calgary and drove to the US via the Waterton Border Crossing which turned out to be closed. He gave evidence that he then drove to the Fernie Crossing, but by that time the Truck began running erratically and he drove back to Calgary. [ 41 ] He testified that the next day, he drove to Edmonton and left the Truck with a mechanic. Hill then flew back to Calgary. His flight was paid for by Scher.

Once the vehicle was ready, he flew to Edmonton, met the mechanic, picked up the vehicle and drove it back to Calgary. 2. February 2012 Trip [ 42 ] Hill gave evidence about his trip on February 2012. In February of 2012, Hill embarked on another trip to the US. Hill received his instructions for the second trip from Scher. He drove down to Salt Lake City in one day. Once in LA, Hill again received instruction by the PGP phone to call a number. He called and arranged for the pick-up of 20 kilograms of cocaine in Culver city, LA. Once he reached LA he did not know who he was communicating with via the PGP phone.

Once he arrived at the mall parking lot in Culver city, he followed the unnamed contacts to another area called Inglewood. There he met with “a white guy and a Mexican guy”. They took him to a house where they counted out 20 kilograms of cocaine. Hill put the drugs in the Truck and covered them with a blanket before getting on the highway for Canada. [ 43 ] On the way home, Hill stopped in Idaho and purchased a snowmobile which he testified, served as a cover for his trip. The snowmobile pick-up was arranged by Janecek; Hill knew this because he was being emailed on the PGP phone from Janecek’s email address.

Hill then crossed the US-Canada border and drove to Rush Powersports where he dropped off the Truck. He then received payment for the trip at the rate of $1,000.00 for each kilogram of cocaine. Hill indicated that he received, in total, $140,000 from smuggling cocaine [on all trips]. [ 44 ] The Truck remained at Rush Powersports. 3. April 2012 Trip [ 45 ] Hill gave evidence that on this trip, he was expected to pick up 40 kilograms of cocaine. He received instructions from Scher and Janecek and was provided with money for the incidental expenses. He gave evidence that he picked up the Truck from Rush Powersports.

On this trip, he again drove to Salt Lake City through the Peigan border crossing. His contact in LA was the same Caucasian man he met during the February 2012 trip. This time he stayed in an LA hotel for a few weeks as there were delays for instance, the hidden compartment in the Truck was not working properly. [ 46 ] He testified that because the compartment was not working properly, the contact was trying to find a secluded area for Hill to work on the Truck. When Hill picked up the contact, he indicated that he had found a place, but there was a risk of being robbed at that location.

Hill decided not to take the risk, so he had the contact pass him the drugs in an alleyway. According to Hill, he then moved the drugs to the cab of the Truck and drove to Las Vegas where Janecek had a house. He and Janecek worked on the Truck the evening of his arrival and again in the morning until the compartment was fixed and could open properly. [ 47 ] Hill testified that once the compartment was working, he loaded up the cocaine and drove back to Canada. He stopped in Utah to pick up a snowmobile.

From Utah, Hill went to the Canadian border where he had trouble with paperwork for the snowmobile. [ 48 ] Hill testified that after a search of the Truck by the border guards, he was able to return to Canada. After crossing the border, Hill took the Truck to his home in Airdrie because Scher and Janecek were not available to store it. Hill gave evidence that the next day, Scher and Janecek came together to pick up the cocaine and the Truck. Scher had paid Hill $10,000.00 up front for this trip. He testified that he received the remaining $30,000.00 from Scher in a back alley downtown Calgary a few days later.

Hill later testified that at the time he was paid the remainder of the money for the trip, Janecek was still in Las Vegas. This discrepancy in Janecek’s location was canvassed during cross-examination. 4. June 2012 Trip [ 49 ] Hill gave evidence that for the June trip, he again received incidental money from Janecek and instructions from Scher. The amount of cocaine to be picked up was in the range of 30-40 kilograms. Hill testified that he once again, drove south through Salt Lake City and then to Venice Beach, LA.

After some delay, he received instruction to call a number and meet a “Mexican guy” at a 7-11 in Venice Beach. Hill showed the man a dollar bill to verify the serial number. The serial number technique was used for the first time during this trip although Hill had discussed it previously with Scher and Janecek via the encrypted phone. According to Hill, he picked up another snowmobile on the way back to Canada. After returning to Calgary, he went to Rush Powersports, met with Scher and Janecek and dropped off the Truck. 5.

September 2012 Trip [ 50 ] On this trip, Hill testified that Scher was less involved while Doporto became more involved. Hill testified that Scher advised him that he was stepping away as he had something else going on and “didn’t want to be caught up with two things at once.” Hill gave evidence that he received incidental cash from Janecek and instructions from Doporto.. Hill was given instructions to go to Sun City, LA where another Canadian individual had picked up the cocaine. Hill spent the night in LA at a Motel 6 and then picked up 50 kilograms of cocaine the next morning before heading back to Canada.

He took the usual route. He loaded the cocaine into the hidden compartment in the Truck. While driving back, Hill noticed that the hidden compartment was askew so he stopped in the Lake of the Fire area of Las Vegas and adjusted it before continuing on to Canada. He testified that he picked up a snowmobile on the way; Janecek had organized the snowmobile pick-up. [ 51 ] Hill gave evidence that after crossing into Canada, he took the Truck to Rush Powersports where he met Doporto. He had to

wait for Janecek because they did not have a key. Doporto removed the cocaine from the Truck and loaded it into the under-storage box in his car, a Honda Ridgeline. Janecek paid Hill $10,000.00 and brought the remaining amount of $40,000.00 to Hill’s jobsite in south Calgary. Hill testified that he overheard Doporto and Janecek discussing the cocaine. Specifically, he heard Doporto say he was going to test it. Janecek responded by saying they should only test some of it. 6.

October 2012 Trip and Arrest [ 52 ] According to Hill, Janecek gave Hill a ride to the GM dealership in Calgary, as they were getting work done on the Truck. After they retrieved the Truck, Janecek gave Hill money for incidentals and a radio transmitter to check the Truck for bugs. After that, Hill drove through the Piegan border crossing, through Salt Lake City and then to LA. Janecek made an appointment for the Truck to get checked for bugs at a “spystore”. The checks came up negative. [ 53 ] Hill testified that at some point, he received contact information from Doporto regarding the pick-up of the drugs.

Hill met his contact the next morning at a McDonalds. The contact transferred the drugs into the cab of his Truck and provided directions to a storage area in Rancho Cucamonga where they could load the drugs into the hidden compartment. Hill testified that he stopped at the storage unit where he counted and loaded the drugs into the hidden compartment – he had 62 kilograms of cocaine. He then drove back to Canada. [ 54 ] Hill gave evidence that the Truck’s engine started smoking as Hill passed Las Vegas. He pulled over into the parking lot of the Rio Hotel.

He looked under the hood and saw that the alternator was “fried”. He found a mobile mechanic service and the next morning a mechanic came to fix the Truck. Hill testified that he informed Janecek and Doporto about the issue. He testified that once the Truck was fixed, he began driving back to Canada, but was pulled over by a state trooper for hitting the yellow line on the highway. The trooper was accompanied by two vehicles. Hill was asked some questions and advised he could leave, but before he could leave, the state trooper asked him if he had any drugs.

Hill said “no”, yet was asked by the trooper if he would consent to a search of the Truck. He agreed. The drug dog was deployed from one of the vehicles resulting in Hill’s arrest and initial detention at the police headquarters in Las Vegas. The Las Vegas Police were eventually able to open the hidden compartment of the Truck. Hill was charged and detained at Clark County Detention Centre. He remained in custody there from October 29, 2012 to June 2013. [ 55 ] Hill testified that members of the Drug Enforcement Administration (the “DEA”) first spoke with Hill the morning after his arrest.

Hill initially indicated that he knew nothing. Hill gave evidence that he had previously discussed with Scher what would happen if he ever got caught. Scher told him they would look after him which he understood to mean that they would cover his legal expenses or hire a lawyer. Hill testified that he received no help while he was in custody. The DEA did not approach Hill again until months later when he changed his mind about talking to them. He testified that he was motivated to cooperate because of the potentially lengthy prison sentence and the lack of help from Scher, Janecek and Doporto.

Eventually, Hill made a deal with US law enforcement officials to avoid a jail sentence. [ 56 ] Hill testified that he first told the American authorities what he knew. Canadian agents then travelled to the US to listen to his information. He testified that his lawyer and the district attorney reached a deal contingent on Hill providing substantial assistance to Canadian authorities; specifically, the deal meant he was released on probation, but faced a term of incarceration of 6-15 years if he reneged on the agreement.

In the US, Hill pled guilty to mid-level trafficking (less than one ounce of cocaine) and was released on probation into the custody of Immigration where he spent a month in jail and was then deported back to Canada. 7. PGP Phone [ 57 ] Hill testified that he used a PGP phone to communicate with Scher, Janecek and Doporto. He understood that it could be wiped remotely if the password was inputted incorrectly into the phone.

Hill explained that the ‘black squid code’ was used as a method to transmit numbers via letters whereby either Scher or Janecek would send Hill a phone number of a contact from whom to pick up the cocaine in LA. 8. Meetings with Other Groups [ 58 ] Hill testified that while he worked for Scher, Janecek and Doporto, he also had meetings with another individual and he considered the possibility of working for another group. He spoke to an acquaintance named Tony and had two or three meetings with him.

After these meetings, Scher and Janecek came over to Hill’s home and were irate that Hill had spoken to Tony because it meant that his identity was no longer insulated. They advised him that if he kept speaking to Tony, “bad shit” would happen. Hill did not speak to Tony again as he was scared. 9. Cross-Examination [ 59 ] Hill admitted that in addition to dealing drugs he has also been a drug user himself. He testified to having used every drug with the exception of heroin and fentanyl. Hill admitted that it may have affected his memory. He has also done steroids.

Prior to meeting Scher, he sold drugs including ecstasy, cocaine and steroids. However, when he met Scher in 2009 he was no longer selling drugs. Hill recalled that he started selling cocaine again in 2010 and that he sold any substance he had the opportunity to sell during that time. [ 60 ] Hill agreed that when he was arrested he did not know Doporto’s last name. He was not his close friend. They had met, but “that’s as far as it’s gone.” He referred to him as “Steve”. B. Trevor Millard [ 61 ] At the time of his testimony, Millard was 31 years old. He met Doporto in 2008 or 2009. Millard lived with Doporto from

early 2010 to March of 2012. During this time, he worked the night shift at a Gold’s gym to supplement his income because the oil and gas industry had started doing poorly. [ 62 ] Millard testified that when he first moved in with Doporto, he was unsure what he did for a living. Initially, Doporto told Millard that he did some personal training and was interested in getting into oil and gas. He eventually realized that Doporto was distributing marijuana and cocaine.

Millard gave evidence that he first started seeing cocaine around the house and then observed Doporto selling it to other people when Millard was out for lunch with him. Millard also observed instances when someone would come to the house to sell cocaine. When this happened, the sale would take place in an open space in the kitchen. When the sale was happening, the people present were Doporto, Millard and the seller. Millard testified that the seller was typically “a short Asian fellow”.

According to Millard, the seller would take out a bag and show the cocaine to Doporto who would test it before deciding whether or not he wanted it. In terms of testing the cocaine, one of the better processes is to heat it with baking soda and water, turning it into crack cocaine, and then seeing how it reacts. If Doporto was satisfied with the product he would purchase the “brick". If he was not satisfied, the seller would wrap up everything and leave. Millard testified that typically, Doporto would be presented with a brick wrapped in something that would conceal the smell.

He would pay in cash, the usual price being $50,000.00 for a brick. The cash would be kept in several different locations around the house. [ 63 ] Millard explained during his testimony at trial, that Doporto would break the brick down into smaller portions (a process that Millard assisted with) and then put it away for safekeeping. After that it would be distributed to clients, one of whom was Scher. Millard met Scher while he was living with Doporto.

Scher, Doporto and Millard spent time together one winter snowmobiling and also took a trip to Las Vegas for a bachelor party for one of Scher’s friends. [ 64 ] Millard testified that he and Doporto discussed vehicles with hidden compartments, because Doporto was interested in using one to transport marijuana. On one occasion, Doporto told Millard that Scher was bringing over a truck with a hidden compartment and asked Millard if he wanted to take a look at it.

Millard was not interested in seeing it, but his bedroom window overlooked the driveway and he believes he saw the Truck pulling in and later heard it leaving. According to Millard, he only briefly glimpsed at it and during his testimony described it as a four-door pickup truck that was dark in colour and of GMC make.

He also noted the wheels looked too small for it. [ 65 ] Millard testified that after the truck left, Doporto came up to Millard’s room and told him about the truck – that it had a hidden compartment and that it could be opened through a series of relays and switches. [ 66 ] Millard testified that in March of 2012, he decided to move in with a friend who lived on a ranch in Okotoks. Once Millard moved in with Wagner, in March of 2012, he started selling cannabis with him.

Millard had minimal contact with Doporto after this, but they did go to a wedding together in May of 2012. [ 67 ] While Millard lived with Doporto, he himself sold drugs. He testified that initially, he sold marijuana to people at the gym he worked at. He would buy one or two ounces from Doporto, split it up and sell it to friends.

During the time he was dealing, he occasionally used marijuana and tried cocaine on three or four occasions. [ 68 ] Millard testified that after he moved out of the Doporto residence, in May of 2013, he met with Doporto and they both agreed to get back into the cannabis distribution business. Initially, Millard testified that he was uncertain if he wanted to get back into selling drugs, but because the oil and gas business was in the spring lull he decided to sell drugs again. The business was supposed to be a 50/50 partnership. Initially, Millard was responsible for storing cannabis while Doporto sold it.

He testified that later on, Doporto became less interested in selling cannabis and Millard ended up taking on most of the responsibilities. The business lasted from May of 2013 to November of 2013 when a search warrant was executed on Millard’s home. [ 69 ] While Millard worked with Doporto, conversations took place about the fact that Doporto and Scher were importing cocaine. It first came up when Millard was told by Doporto in the summer of 2013 about the Truck being detained in the US.

Doporto told him that Hill had been driving the Truck with $500,000.00 worth of product hidden in it when the Truck was seized. Doporto told Millard that Scher, Doporto and Janecek were the financial investors in the cocaine that Hill was bringing back. As part of their cocaine importing business, Hill was the driver who would go to the US to pick up the cocaine and bring it back to Canada.

Millard had met Hill at the bachelor party he attended in Las Vegas. [ 70 ] Millard testified that he was not charged with any drug related offences in exchange for an agreement to testify against Doporto and Scher – a decision that he made after speaking to a lawyer for a few months. At trial, he identified the three accused in the courtroom. Millard agreed that his motivation for testifying was so that he would get neither jail time nor a criminal record.

He also wanted to clear his conscience as he believed cocaine should be off the street. [ 71 ] Millard agreed that he used steroids when he was living with Doporto. He developed severe acne from the steroid use and had other adverse reactions. He testified that Doporto had a positive influence on him in terms of how to treat his body in a healthy way, however, he denied that Doporto told him to quit steroids. Doporto recommended him for the job at Gold’s gym. While he was living with Doporto, Millard sold cannabis to a client who was beat up because he had bought from him.

This client came back to Millard and putt his life in danger. Doporto was supportive of Millard and helped him through it, putting his own life at risk. [ 72 ] In November of 2013, the police executed a search warrant of Millard’s house. The search was conducted by 10-15 officers. Millard was treated roughly and forced to the ground at gunpoint. After this altercation, the police searched the house and put Millard in the back of a police car for three hours. He was expecting to be charged with possession. At the end of the search, the police officers gave him their card and said they wanted to talk with him.

Millard was shocked he was let go. He spent the night in a hotel and called a lawyer the next morning. Millard did not reach out to the police officers. Instead, they got a hold of him and told him he could either sit down for a conversation or he would be arrested. Millard met them in Red Deer. During that first meeting, he was not offered any deals. He was only told that they would see what they could do in exchange for information from him. In addition to the charges for possession, Millard was also in legal jeopardy because of a loaded gun the police found while searching his home.

Millard testified that he bought a firearm from Doporto when they were working together dealing drugs. Millard kept the loaded gun in a bedroom drawer. He was told

that this was a more serious offence than the one for possession of marijuana. During the search, the police also found scales, a money counter, other items relating to the marijuana business, as well as $20,000.00 in cash. [ 73 ] After the conversation with the police officers in Red Deer in November of 2013, Millard spoke to them again on January 13 and 14, 2014. Between November of 2013 and January of 2014, Millard was in touch with his lawyers, but did not speak to the police.

Millard admits that he had a hard time blaming Doporto, because of all the things Doporto had done for him. [ 74 ] When Millard gave his statement to the police, he did not know exactly what he would get in exchange for giving the information. However, to a certain extent, Millard admits he was thinking about the fact that this could help him stay out of jail. C. Mr. Janecek [ 75 ] Mr. Janecek, testified on May 3 and May 4, 2021. At the time of his testimony, he was 44 years old.

He was born in Calgary and now resides in Surrey, British Columbia. [ 76 ] Janecek testified that in 2013 he was running a business called Rush Powersports. The business imported power sporting equipment from the US. Essentially, it involved purchasing vehicles in the US and bringing them back to Calgary. Janecek testified that they found the vehicles through the classified ads or through various established contacts in the US. In the beginning, He was partners with Scher in this business.

Scher was actively involved in the day-to-day business of the company. [ 77 ] Janecek gave evidence that initially, he would gather or find the vehicles in the US and bring them back to Canada himself. Scher was the salesperson in the business. As the business evolved, Janecek hired a contractor to bring the snowmobiles back to Canada: Livingston International. He would often pay for the vehicles in cash. In total, they imported 100 dirt bikes and 25 snowmobiles (“sleds”) from the US. Every vehicle that came across the border was accompanied by import documentation.

They were required to fill out the appropriate paper work for customs. Janecek was shown a form during direct examination that included information about the port of entry, vendor code, value for duty (value of vehicle purchased) and value to be determined (the amount of money the vehicle was worth). There was a duty tax to be paid with every vehicle. The dirt bikes and sleds were stored at the business, located in Ogden. [ 78 ] He testified that during the time he ran Rush Powersports, he was also employed by CP Rail. Janecek testified that Rush Powersports was busy and was a financial success.

Rush Powersports stopped operating at the end of 2013 when he was arrested. [ 79 ] Janecek gave evidence that he first met Hill around 2005 at a gathering at Scher’s house. In 2009, they took a “boys” trip to Las Vegas. He described himself as an acquaintance of Hill’s. There were a group of them who went to Las Vegas each year, from 2009 until 2012. These trips included Hill and Scher. Millard and Doporto also went on a couple of the trips. [ 80 ] Janecek agreed that Hill knew the name, location and nature of the Rush Powersports business. He was also familiar with the importation of snowmobiles from the US.

Janecek further agreed that Hill knew that he had a girlfriend, Dena Hoezle, who was living in his Las Vegas house. [ 81 ] Janecek denied having any dealings with Hill to import cocaine. Hill did not work for Rush Powersports and he never brought back a sled for the business. Janecek denied ever providing Hill with expense money for his trips to the US. He denied ever entering into an agreement to import drugs from the US. Further, he denied that on October 29, 2012, he was in possession of cocaine for the purposes of trafficking. Janecek denied ever meeting with Hill at a Vietnamese restaurant in Country Hills.

He also denied ever delivering a truck to Hill. [ 82 ] Janecek also denied providing Hill with a PGP phone. He testified that prior to these proceedings, he was unaware of what the term “PGP phone” even meant. Numerous questions were put to Janecek during direct examination regarding his involvement with Hill, all of which he denied. [ 83 ] Janecek found out that Hill was in custody on the date of his arrest, October 29, 2012. He testified that he found out “through a couple of sources, but Chris Scher for sure”.

He had no contact with Hill while he was in custody. [ 84 ] Janecek testified that he was aware that when Hill was arrested he made a number of phone calls. Some of the calls were directed to Hill’s girlfriend at the time, Ashley Scherrer. Janecek was asked about a specific phone call Hill made to her. The initial “M” was used during the call and when Hill gave testimony he indicated that the “M” referred to Janecek. During the call, Hill said to Ashley “Yes, I just have to get the rest of the money.

See[sic] and Mike is giving it to me.” [ 85 ] Janecek agreed that on October 29, 2012, he and Scher met with Ashley at that time. The discussion at that particular point in time was about money and the fact that Hill was in jail. Janecek denied that there was an agreement between Hill, Scher, Doporto and himself that he would pay Hill’s bail and legal fees if he were arrested. [ 86 ] Dena Hoezle was living in Janecek’s house in Las Vegas at the time of Hill’s arrest. In a phone call with Hill, Dena indicated that “the one that gave it …5 grand …, his phone is completely shut off.. like turned off.

And the other one’s been turned off for a few days.” Hill indicated that the two individuals being referred to in the above part of their conversation were Scher and Janecek. Janecek was asked about this conversation. [ 87 ] Janecek agreed that he shut off his phone and indicated he did so because Hill was “bad news”. He learned that Hill was involved in serious illegal activity and wanted nothing further to do with him. [ 88 ] Janecek agreed that he was aware that Hill and Scher were running a company at one point in time called Platinum.

He testified that it did not surprise him that evidence was led that Scher sold cocaine. He admitted that he knew that Scher sold cocaine. He testified that he did it at a “small time level”. In his view, there was a difference between “a gram of cocaine and 50 kilograms”. He agreed that in 2012 he was aware that “not only was Mr. Scher [his] business partner at Rush, he also side-lined as a drug trafficker.”

[ 89 ] Janecek testified that Doporto was not involved with Rush Powersports. He was not close friends with Doporto. D. Officer Grant Stephen [ 90 ] Officer Stephen is a member of the RCMP and in this role works with Alert CFSEU. He started in this unit in 2013. Prior to that, he was a member of the commercial crimes unit for three years. [ 91 ] Officer Stephen was an investigator on Project Al bet. This was a project that targeted Scher, Janecek and Doporto.

The investigation started in February of 2013 and Stephen’s involvement ended on December 12, 2016. [ 92 ] Officer Stephen was the search coordinator during the execution of the search warrant on Scher’s house in Douglasdale. He was also responsible for exhibit handling. [ 93 ] The Crown relied on Officer Stephen to introduce and verify the photographs in Exhibit 7. These were the photographs taken during the execution of the search warrant on Scher’s house as part of Project Al bet. There are 22 photos in Exhibit 7, all of which are described at pages 41-42 of the Transcript

Summary. In general, they contain photos of cash found in the home, bills addressed to both Scher and Rush Powersports, several telephone bills and electronics seized from the home. E. Officer Ryan Huggan [ 94 ] Officer Huggan is a member of ALERT CFSEU. At the time of his testimony, he had been a member of this unit for five years. His duties during Project Al bet included surveillance, assisting with general searches or search warrants and conducting subsequent arrests and interviews of the accused. [ 95 ] The Crown relied on Officer Huggan to introduce and verify the photographs in Exhibit 8.

Officer Huggan took these photographs during the execution of a covert search warrant that occurred while audio probes were set up in Scher’s home. Police, along with the Electronic Surveillance Unit and the Special Entry Section, executed the warrant on August 14, 2013 as part of Project Al bet. [ 96 ] Exhibit 8 contains 37 photos that primarily show two key items found in Scher’s home. The first was a bundle of cash amounting to an estimated $50,000.00, found hidden above the electrical panel in the basement of the home.

The second was a duffle bag full of cash and invoices from Rush Powersport, found hidden under the bed in the master bedroom. Office Huggan indicated that the cash bundles appear to correspond to the amounts listed on the invoices, but he did not have an opportunity to count the money. In addition, several photos depict cellphones or cellphone bills found in the home in Scher’s name. F. Corporal Allison Blue [ 97 ] Corporal Blue has been a member of the Major Crimes Unit (“MCU”) with the RCMP for 12 years. At the time of her testimony, she had been a member of MCU for about three years.

Prior to that, she had been a member of ALERT CFSEU for about four years. [ 98 ] While part of ALERT CFSEU, she was an investigator on Project Al bet where she was a line room officer. Her role involved reviewing intercepted calls, marking them up for investigation and certifying the transcripts and completed voice identifications. [ 99 ] In addition to reviewing intercepts, Corporal Blue also reviewed some jailhouse calls made by Hill from the US and provided summaries of those calls. She had no involvement in their transcription. G.

Officer Linklater [ 100 ] Officer Linklater has been a member of CPS for 16 years and a member of ALERT CFSEU for five years. On November 14, 2103 he was involved in the surveillance of Janecek, Scher and Doporto. VI. Assessment of the Evidence A. Janecek [ 101 ] The accused, Janecek, testified at trial; he was the only accused to do so. As such, the W(

D) analysis must be applied. The innocence or guilt of the other two accused can also be assessed by the examination of Janecek’s evidence. Janecek denied that there was ever any agreement with Hill, or anyone else, to import or possess cocaine for the purpose of trafficking. Janecek denied any involvement in a conspiracy with Scher, Doporto and Hill related to the same. [ 102 ] Janecek testified that he ran the Rush Powersports business. He confirmed that the company imported snowmobiles from the US. Some of the imports are documented in the partial list marked as Exhibit 11.

The evidence of Janecek about selling cocaine is that it was a ‘side-line’, in other words, not his main source of employment. [ 103 ] The Crown pointed out that Janecek’s testimony actually corroborated much of Hill’s evidence, for instance that: 1. Janecek and Scher were business partners; 2. They had a business in the Ogden industrial area called Rush Powersports;

3. Rush Powersports imported “sleds” from the US. Specifically, from Idaho and Utah; 4. Hill understood some of the documents used to import “sleds” from the US; 5. Janecek had a house in Las Vegas where his ex-girlfriend resided at the time, whom Hill relied on for assistance, post-arrest; 6. Janecek assisted with the purchase of the vehicles from the US; 7. Doporto was never formally employed by Rush Powersports; 8. Janecek knew that Scher was a drug trafficker and sold cocaine as a side-business; 9. Janecek was with Scher when Hill made a jailhouse call to Ashley regarding bail money; and 10.

Janecek confirmed that he turned his phone off because of Hill’s arrest in Las Vegas. [ 104 ] Most of Janecek’s evidence consisted of denials of the involvement in the conspiracy to import cocaine into Canada. I note that simply rejecting the defendant’s testimony denying the commission of an offence because it is a bare undetailed denial reverses the burden of proof. It should always be with the Crown: R v CLS, 2021 ABCA 147 . [ 105 ] I acknowledge that Janecek does corroborate some of Hill’s version of events. I accept that he and Scher were business partners and operated Rush Powersports.

I also find that they imported sleds from the US. He also agreed that he was aware that Scher was a cocaine trafficker. However, I cannot be sure that his denial of the allegations can be believed. There were certain portions of his evidence that I question. For example, he confirmed that he was with Scher when Hill made a call to Ashley to discuss the bail money. This confirmed that Hill had reached out for help on the day of his arrest. Janecek also confirmed that he turned his phone off because of Hill’s arrest. I find his reasons for turning off his phone questionable.

I am not certain I can believe all of his evidence. [ 106 ] I am mindful that the trial is not a credibility contest. I must carefully review all the evidence and if after careful consideration of all the evidence I am unable to decide who to believe I must acquit. Even if I completely reject the accused’s evidence I must not simply assume the Crown’s version of events. In this case I do not completely reject Janecek’s evidence but I am unsure if I can believe all his evidence. With these principles in mind, I turn to review further evidence. B.

Hill/Millard [ 107 ] The defence contended that both Millard and Hill are Vetrovec witnesses for the purpose of this trial. The Crown does not disagree about attaching a Vetrovec label to the witnesses.

However, the Crown submits that the evidence of the witnesses is not unsupported, nor is it a series of bald, uncorroborated claims and self-serving assertions; rather, it must be read in context with all of the evidence, including the evidence of the accused, Janecek. [ 108 ] The Crown acknowledges that there are inconsistencies and questions regarding their motives to testify against the accused, but these inconsistencies and motives are reasonably explained when analyzed with all the evidence in mind; this Court can safely rely on the evidence of both Hill and Millard to support a conviction. [ 109 ] I have summarized Hill’s evidence in detail above.

Overall I note that Hill was very nervous on direct and cross-examination. He was at times halting and appeared to be searching for an answer. His demeanour was of a witness who was not confident in his testimony. After his cross-examination I did not assess him as being truthful. I acknowledge that the events occurred between 2011 and 2013 and he was arrested in 2017. Given the gap in time, it is understandable that his memory may falter.

However, in addition to potential gaps in memory there are certain portions of his evidence that I find problematic. [ 110 ] According to Hill, the first meeting with Scher and Doporto to discuss the potential of smuggling cocaine from the US into Canada occurred in 2010. In his evidence, Hill claimed that he met with Scher and Doporto at a Milestones restaurant in Market Mall in 2010. In cross-examination, however, he conceded that he never mentioned Milestones earlier in any of his police statements. He did not mention it seven years ago and testified that “No one told me, no.

It was just locked away in my memory.” This inconsistency in his evidence, provides me with uncertainty as to whether this meeting ever occurred. Further, there is no evidentiary basis upon which to conclude that there was an agreement to commit the crime of importation or possession of cocaine for the purpose of trafficking. There was no evidence provided in terms of what was said at this meeting. [ 111 ] A further inconsistency in Hill’s evidence is found in the discrepancy in the dates of when the Truck was registered.

I note that there was no progression of the “plan” between the men until mid-2011 when Hill testified that he had another meeting with Scher. After this meeting, Hill testified that Scher advised him that he had located the Truck. Hill testified that in the fall of 2011 he met with Scher and got a bill of sale from him for the Truck. However, the bill of sale in evidence showed that the Truck was not registered until January 24, 2012. Hill confirmed that the dates were incorrect.

There is no direct evidence before me that Scher, Doporto or Janecek were involved in the purchase or registration of the Truck. [ 112 ] Furthermore, I find that Hill was very specific with respect to some of the evidence he provided, yet vague with respect to other details. For example, when he brought the Truck to the mechanic in Edmonton, he could not recall the name of the mechanic nor which area of the city the mechanic was located in. Further, he was unable to describe the physical appearance of the mechanic in any great detail despite having met with him twice.

In addition, Hill was unable to describe the physical appearance with any great detail of the “contacts” he met with in LA, but could only describe them as a “white guy” and a “Mexican guy”. This description is vague. [ 113 ] Hill claimed that Janecek arranged for the purchase of a snowmobile on his first and second trips to the US. However, there is no corroborating evidence that Janecek arranged for the purchase of either snowmobile. I do not accept Hill’s testimony on this point that Janecek arranged for the purchase of the snowmobile.

[ 114 ] Hill was incorrect when he described the period of time he spent in the US during the April 2012 trip. He testified that he had to stay a couple of weeks as there were delays with the Truck malfunctioning. The border crossing records, however, show that he entered the US on April 17, 2012, and returned to Canada on April 23, 2012. At most he stayed in the US for seven days.

I acknowledge that memories may be faulty when trying to recollect events from a number of years ago but there is a significant difference between a couple of weeks and seven days. [ 115 ] Hill provided conflicting evidence when he was testifying about the second trip. He initially stated that after arriving back in Canada, Scher and Janecek picked up the Truck the next day. He confirmed that he provided the same evidence at the preliminary inquiry.

Hill then came to the realization that Janecek could not have been the one to pick up the Truck because he had also provided inconsistent evidence that Janecek was in Las Vegas at the time. [ 116 ] Hill testified about a radio transmitter, but it was not tendered in evidence. He gave evidence that in October of 2012 he drove with Janecek to pick up the Truck from the GM dealership. His evidence was that Janecek gave him incidental money and a radio transmitter. He also testified that they stopped at a “Spy Store” to have his Truck checked for “bugs”.

No evidence was tendered to support the fact that he ever went to a Spy Store. [ 117 ] Hill gave evidence that he communicated through a PGP phone. There was no evidence before me of a PGP phone or any evidence of the communications which occurred via the device. The police did not tender any seized phones. No photographs were tendered indicating that any phones were seized from Hill upon his arrest in Las Vegas. [ 118 ] During cross-examination, Hill referred to other individuals with whom he had worked or had meetings with regarding drug deliveries.

He admitted that in addition to “Tony” whom he had two or three meetings with, he also worked for other individuals including Anthony Nguyen and Ken So. Hill acknowledged that he had made a few deliveries of cocaine for these two individuals. He confirmed that both Nguyen and So were “big time” drug dealers selling cocaine. Hill also admitted that Nugyen, So and several of his other friends owned vehicles that had hidden compartments in them. [ 119 ] Hill started cooperating with the DEA a few months after his arrest.

He testified as follows: “ I [...] decided to help myself out and talk to them.” When asked what made him decide to talk to them, he stated: “the lengthy prison sentence I was facing and just the lack of help that I was getting from my so-called friends that I thought would help me”. Hill decided to see if he could help himself get out of prison and avoid a sentence by cooperating with the DEA in the States to provide information. [ 120 ] Hill also admitted that he did not know Doporto’s last name and only referred to him as Steve.

On November 4, 2012, he asked Dena in a telephone call what Steve’s last name was, to which she replied “Doporto.” The Crown asked him why he was referencing Steve, to which he responded: “I just didn’t remember his last name, and I was getting mentally geared for having some information to present.” The Crown then asked “and you indicated that you were getting mentally geared to present some information. What does that mean?” He responded: “That means that thoughts started coming through to help myself out of this prison situation that I put myself in”.

This statement is concerning as it indicates he was looking at all ways to avoid a prison sentence. [ 121 ] Overall I find that there are inconsistencies in Hill’s evidence, at times he is vague and his evidence is lacking in detail, whereas in other areas he is very specific. His admission that he spoke and worked with other drug dealers is also concerning. [ 122 ] I turn now to my assessment of Millard’s evidence. Overall, Millard’s testimony was unconvincing, unsupported and contradictory in some respects.

One area of concern I have with Millard’s evidence is that he claimed to have seen a “dark” vehicle out of the window of the house he was sharing with Doporto. He described the vehicle as a GMC, four-door pickup truck. He was invited by Doporto to look at the vehicle, but he declined. He stayed in his room. During cross-examination, he agreed that officers showed him photos of the truck that had been seized in Las Vegas. The truck in the pictures was sandy coloured. He agreed that the truck the police showed him was not the same colour as the truck he claimed to have seen at Doporto’s residence.

In fact, in his January 14, 2014 statement he described the truck he saw through the window as being black in color. He testified that the vehicle in the pictures looked like the same vehicle he saw, but agreed that it was not the same colour. Based on his evidence, it does not appear that it was the same Truck that Hill was using. [ 123 ] Initially, Millard failed to mention in court that he was arrested for possession of a firearm. He only mentioned the drug possession charges. He admitted that he was never charged and stated: I agreed to testify against Mr. Doporto and Mr. Scher and –and Mike in exchange.

It took me a while to come to this conclusion, for sure. Initially, I saw a lawyer. I spoke with him for a few months and then, yeah, eventually, I –I went the route of communicating with the police and – and moving forward with their investigation and helping them out. [ 124 ] Millard agreed that he was testifying to avoid being prosecuted for the possession of a firearm and for the possession of marijuana, both of which the police found in his residence. He confirmed that he was not charged and that was a “big reason” why he was testifying.

He also claimed that he wanted to clear his conscience as it is better “that this cocaine is off the streets.” [ 125 ] I note that Millard testified that he moved out of Doporto’s house in March of 2012 because he “just didn’t want to be around Mr. Doporto or his business anymore”. Yet, afterwards, he still teamed up with Doporto to run a cannabis distribution business. 1. Vetrovec Considerations [ 126 ] I find it appropriate in this case to approach both Hill and Millard’s evidence with caution.

I approach Hill’s evidence with extreme caution in light of his accomplice status, motivation to lie and some of the vague details he provided at trial. I find that both Hill and Millard had a significant motive to lie or mislead the court. Hill was facing a lengthy prison term in the US if he did not give the DEA substantial assistance. He testified that he “decided to see if he could help himself out of prison, avoid a sentence, and cooperate with the DEA in the US to provide information.” He told the DEA what he knew and the Canadian authorities subsequently came down to meet him.

He made a deal such that he would be released on probation if he provided “substantial assistance” to the Canadian

authorities. He ultimately plead guilty to having one ounce of cocaine and was deported to Canada. [127] With respect to Millard, it is unknown what deal was ultimately agreed upon, however, based on his testimony I can concludethat he too would have faced charges and a prison sentence. He confirmed that he was offered a deal such that no charges would be laidon what was found in the house: no jail time nor a criminal record, which was a big reason why he was testifying.

Millard did not agreeto provide information until after he was arrested. [128] I have concluded that both Hill and Millard benefitted from their cooperation with the authorities. At the risk of being repetitive,they both avoided prison terms. Hill, in particular, clearly avoided a prison term in the US. [129] While it is legally possible for this Court to accept Vetrovec witness testimony without confirmatory evidence, I find that in thiscase, both Hill and Millard’s evidence is central to the Crown’s case and it would be dangerous to rely solely on their evidence for aconviction.

Hill and Millard agreed to cooperate only after they were arrested and facing lengthy prison sentences. It would be unsoundto convict on their evidence alone. Even the Crown acknowledged in their closing oral submissions, that a conviction based on Hill andMillard’s evidence alone “would be dangerous.” However, the Crown states that there is adequate corroborating evidence to supporttheir testimony. C. Highlights of Other Evidence 1. Jailhouse Calls [130] While Hill was in custody in the US, he made numerous telephone calls to his then girlfriend, Ashley Scherrer. The calls wererecorded.

The Crown has tendered the transcripts and audio recordings of the “jailhouse calls” in evidence as Exhibit 2. There were 17calls tendered that were recorded between October 29, 2012 and November 16, 2012. At trial, Hill was asked to comment on the phonecalls and to explain the communications. [131] The Crown submits that the audio recordings of the calls are primary evidence as they contain qualities of speech which havesignificant evidentiary value whereas the transcripts cannot transmit the qualities of speech as well.

The Crown further submits that thejailhouse calls are a continuation of Hill’s trial testimony of the events post-arrest and are to be considered in light of this viva voceevidence, as they assist the trier of fact in following the discourse more clearly.

The Crown explained that the “evidence did not stop themoment he got arrested.” According to the Crown, it is clear that Hill realized that the calls were being recorded and he attempted, in thebeginning, to shield Janecek, Scher and Doporto as part of their agreement to assist him if he was ever caught. [132] The Crown submits that the calls illustrate that once Hill was arrested, he attempted to contact his supports in Canada, inparticular, his girlfriend at the time. At a certain point near the beginning of November of 2012, however, he began to realize that hisfriends did not have his back.

This directly speaks to his motivation for testifying. Therefore, the calls should be considered by this courtin assessing Hill’s motivation in testifying. [133] Defence counsel for Doporto submit that the calls are tainted; Hill knew that the telephone conversations were being recordedand, therefore, was in control of curating the content of the calls. Defence counsel also submit that the calls are hearsay and are,therefore, presumptively inadmissible. Hearsay evidence is presumptively inadmissible unless it falls within a traditional exception to thehearsay rule.

Hill’s conversations cannot be considered for the truth of their contents because they are hearsay. The recordings can onlybe used to prove that the utterances were made. Further, what Dena or Ashley said in these conversations is strictly hearsay as they werenot called as witnesses. [134] Defence counsel also submit that the courts should be cautioned against using hearsay evidence as part of the “narrative”: R vStauth, 2021 ABCA 88. This exception has been used as a way to get otherwise inadmissible evidence before the trier of fact.

In Stauth,Justice Veldhuis stated at para 36 that “narrative evidence should only be tendered to contextualize relevant evidence for the purpose ofmaking that evidence intelligent or sensible”. [135] I note that it is settled law that out of court statements are generally inadmissible to prove the truth of in the contents of thestatement. Participation in an alleged conspiracy can be proven by declarations of other participants in furtherance of the commonunlawful purpose, once the Crown has established that a conspiracy existed and the accused was probably a member: R v Barrow (SCC), [1987] 2 SCR 694.

In Alcantara, Justice Sulyma stated as follows at para 57: In my view, wiretap statements of alleged co-conspirators made in the formation or furtherance of a conspiracy are admissible to provethe conspiracy, whether because they are circumstantial evidence rather than hearsay or because, as hearsay, they meet the principledapproach. [136] However, in this case, the calls were made after the alleged conspiracy ended and, therefore, this exception does not apply.

Hillwas aware that the calls were being recorded and therefore cannot be used as independent evidence to corroborate his story. [137] Further, I note that neither Dena nor Ashley were called as witnesses in this trial. Therefore, none of Ashley or Dena’sstatements are admissible to prove the truth of their contents; the statements are hearsay. 2. Interception of Private Communications [138] Three authorizations to intercept private communications were issued pursuant to

Part VI of the Criminal Code: 1. July 31, 2013 (PA 1671); 2. August 8, 2013 (PA 1704); and

3. September 18, 2013 (PA 1709) [ 139 ] The principal persons targeted for interception were Scher, Janecek and Doporto. As a result, 29 interceptions were entered at trial as Exhibit 9. They spanned a time frame between August 1, 2013 and November 9, 2013. The Crown focused on two interceptions in their written argument: one between Scher and Michael Ann Gorner and one between Scher and Doporto. [ 140 ] On August 27, 2013, there was a conversation between Scher and Gorner. Gorner indicates that she wants him to stop partying and get a job.

She says: “You want to live off drug dealer money for the rest of your life. Like you must know you’re never going to change.” [ 141 ] On October 10, 2013, at approximately 2:45 p.m. there was a conversation between Scher and Doporto. The conversation lasted approximately an hour and the conversation covers a number of topics. Some of the conversation relates to Hill’s arrest. Scher also discusses Dena and indicates that she gave Doporto’s name to Hill. Doporto asks: Like all of us... Like all our names do you think? Or just particularly mine. But like am I the first one...How did she know I was involved ...

Well what the fuck is she dropping my name. [ 142 ] The following discussion was part of the same conversation: Scher: All they can get us is (indiscernible) to conspiracy. But it (indiscernible). Doporto: The conspiracy. Scher: Yeah. Doporto: Yeah. You think they’re pretty good with that or what. Scher: Probably, yeah. Scher: They’d have a fucking hard time, I think. Doporto: I just wanna go through the States. Like I’m not worried about them coming here. [ 143 ] There is some discussion about whether Hill should get a hold of Dena and tell her to get a lawyer.

The conversation then shifts and Doporto mentions Dena’s meeting and that she does not attend it. Scher agrees that Dena ought to attend the meeting and suggests that Mike get involved. [ 144 ] The conversation continues: Doporto: Well I think you should tell her to move that meeting. And if its, if they start pressing her tell her just get a lawyer and will cover it and I think the best way to do that. Scher: And what is your obligation as a witness to anything. For questioning. Nothing Doporto: Just say I don’t know. I don’t remember.

Scher: The problem is and I’m pretty sure the only reason why she’s involved is the phone calls. Doporto: (indiscernible) Scher: to her..from between him to her. Well the only way he could call, he can call Canada... Doporto: Yeah Scher: he’d call her and she’d patch him through Doporto: Oh I see. Well she could say I don’t know (indiscernible). Scher: (indiscernible) I knew his girlfriend and his girlfriend asked me to do it.

And that’s as far as it goes Scher: Mike gonna have to come in the fuckin picture [ 145 ] The two men also appear to discuss PGP phones and remote wipes during this hour-long conversation. [ 146 ] In my view, it is clear from the evidence that Doporto and Scher are involved in some type of drug business. In fact, with respect to Scher, Janecek states as such in his testimony. However, it is not clear from the conversation that they were involved with Hill at all nor that they were specifically involved in the conspiracy to traffic large amounts of cocaine from the US.

I find that these phone calls fall far short in corroborating the entirety of the story told by Hill and Millard. [ 147 ] Other evidence before me included the evidence from Officer Linklater. On November 14, 2013, Officer Linklater was involved in the surveillance of Janecek, Scher and Doporto. Specifically, he was tasked with approaching Doporto to “stim” conversation. This would be done by presenting a situation to Doporto that would cause him to react and call either Scher or Janecek.

Officer Linklater approached Doporto in a parking garage and identified himself as a police officer who wanted to speak to him. Doporto was uninterested. He then advised Doporto that he was not there to arrest him, but that he would eventually be arrested for what happened in Las Vegas and that he needed to think about where his loyalties lay. Doporto indicated he was interested, but eventually

rolled down his window and took Officer Linklater’s business card. The officer neither promised anything nor threatened Doporto. The interaction lasted less than four minutes. [ 148 ] Eventually, Officer Linklater was directed to Ogden where he saw Doporto’s vehicle parked in front of Rush Powersports. He also observed Janecek’s vehicle there.

He then saw Janecek, Scher and Doporto standing in the middle of the parking lot. [ 149 ] The Officer’s interaction with the accused was limited to his attempts to take pictures of them and saying to them how ironic it was that they met shortly after he had seen and spoken to Doporto.

Officer Linklater did not have any individual conversation with Scher as part of this encounter, nor did he ever tell him that he was going to be arrested. [ 150 ] While it is certainly suspicious that the three accused met shortly after Officer Linklater approached Doporto in the parking garage, this evidence falls short of establishing, beyond a reasonable doubt, that the men were involved in a conspiracy with Hill. I also recognize that I must consider the totality of the evidence and not consider it on a piece by piece basis. 3.

Seizure of Items from Scher’s House [ 151 ] On April 13, 2013, the police executed a covert entry into Scher’s residence to install house probes. A general search was also conducted and a bag of money was located above the fuse box in the rafters. At this time the money was only photographed and was estimated to be approximately $50,000 in cash. The police also located documents that appeared to be invoices related with Rush Powersports. Police photographed and checked the money. Huggan testified that the amount of the money appeared to match the invoices although the police did not count it.

Other items that were located included a Food Saver vacuum sealer and plastic baggies and Fido cell bills in Scher’s name. [ 152 ] Between November 28-29, 2013, the police executed a search warrant on Scher’s house and seized items. During the course of the search, the police took photographs. They did a quick search of the house and located a bag of money in the basement on the west side of the house, up and above the fuse panel. One of the items seized and photographed was a bag of money totalling $23, 010.

Documents including banking documents relating to Rush Powersports were also seized. [ 153 ] While these items could be tied to drug trafficking, they do not specifically link Scher to the cocaine importation that Hill was involved in. The items most certainly cannot be linked to Doporto or Janecek. VII. Conclusion [ 154 ] Based on my review of all the evidence, I find that the Crown has not established, beyond a reasonable doubt, that there was a conspiracy to import cocaine nor that there was a conspiracy to traffic cocaine between the three accused.

I also find that the Crown has not established beyond a reasonable doubt Counts 3 and 4: trafficking and possession for the purposes of trafficking. While it is clear from the evidence that Hill knew Doporto, Scher and Janecek, I am not satisfied that the Crown has established that there was an agreement between them. I have outlined the reasons for not convicting on the basis of Hill’s evidence, and to a certain extent, Millard’s evidence, alone. Their evidence is problematic and must be treated with caution given their motivation to lie.

As outlined above, I also noted some inconsistencies in their evidence and did not find them to be credible. However, even if I believed all of their evidence, based on Vetrovec considerations, it would be dangerous to convict on their evidence alone. [ 155 ] Although I did not entirely believe Janecek’s evidence, I find that the Crown has not proven their case beyond a reasonable doubt based on the totality of the evidence.

After a careful review of the interceptions entered as exhibits at trial and, in particular, the two interceptions outlined in the Crown’s written brief, I find that they do not assist the Crown in proving these charges beyond a reasonable doubt. Further, all of the intercepted and recorded conversations were made

[…]