2019 QCCQ 7787, 2019 QCCQ 7787

R. c. Salem 2019 QCCQ 7787 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division No: 500-73-004100-141 DATE: November 27, 2019 ______________________________________________________________________ BY THE HONOURABLE SALVATORE MASCIA, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v. FADI SALEM Accused ______________________________________________________________________ JUDGMENT [1] ______________________________________________________________________ [ 1 ] Mr.

Fadi Salem has been charged on a two-count indictment with the following: 1) Of having participated between January 15, 2014, and February 11, 2014, in a conspiracy to possess heroin for the purposes of trafficking, s. 5(2) of the Controlled Drugs and Substances Act and s. 465 of the Criminal Code ; 2) Of having in his possession on February 11, 2014, heroin for the purposes of trafficking, s. 5(2) and 5(3)

a) of the Controlled Drugs and Substances Act. [ 2 ] At trial, the accused did not dispute his involvement in both offences, but raised duress as a defence. He gave evidence that he participated in the scheme under threats made by a co-conspirator to himself and to his family. The trial was effectively confined to the issue of duress. General overview of the facts [ 3 ] In January 2014, the RCMP intercepted a package containing heroin that was destined for an address in Etobicoke (Toronto), Ontario.

From the evidence, one gathers that the original importer of the heroin had to pick up the package at a FedEx office in Toronto and then deliver it to a drug dealer in Montreal, Mr. Dereck Clarke. [ 4 ] For one reason or another, the importer of the package did not or would not accept delivery thereof. In what appears to be a « plan B », Mr.

Clarke recruited the accused in order to reroute the package containing the heroin to the latter’s address at 528, 2 nd Avenue, in Verdun, Quebec. [ 5 ] After several calls made over a period of seven days with the customer services agents at FedEx, the accused succeeded in rerouting the package to his home address. Before the package was sent out, however, the police removed the heroin and replaced it with an inert substance [2] .

Next, they rigged the package with an alarm designed to alert them that it was being opened. [ 6 ] Right after accepting delivery of the package, the accused hopped on a cab and headed to the apartment building on Westminster Street where Mr. Clarke lived. He was observed entering the building with a package in his hand and exiting a few minutes later empty-handed. He then took the same cab back to his residence where he was waiting for another package of heroin that was to be delivered by Canada Post. The delivery of this second package was also done at the behest of the co-accused, Mr.

Clarke. [ 7 ] The police were following the accused’s every move. They had even wire tapped his cell phone. [ 8 ] The officers that followed the accused to Mr. Clarke’s Westminster address were waiting to receive the signal that the package was being opened before entering the apartment. They didn’t have to wait too long. A few minutes after the package was delivered, the alarm sounded. The police immediately barged in the apartment and proceeded with the arrest of Mr. Clarke.

On the floor of the living room, they found the opened FedEx package that originally contained 452 grams of heroin. [3] [ 9 ] Before being arrested, Mr. Clarke managed to make a call to the accused telling him that the police were at his door. A few minutes later, the accused called a woman who lived at the same block apartment on Westminster Street to inquire about what happened to Mr. Clarke. She confirmed that the police had taken him away.

A short time thereafter, it was the accused’s turn to receive an unwelcome knock at the door by the police [ 10 ] At the Montreal detachment of the RCMP, he was interviewed at length but made no mention of having been compelled by

threats uttered by Mr. Clarke to receive two packages of heroin at his residence. At trial, he explained that he lied during the policeinterview because he could not be sure that Mr. Clarke was arrested and no longer in a position to do him harm. And even then, theaccused could not rest assured that Mr. Clarke—a well-connected drug dealer with a criminal record of violence—would not call uponhis friends or affiliates to exact vengeance. The truth, he insisted, was that he acted under duress. [11] In recounting his situation, the accused set out his particular circumstances as well as his relationship with Mr.

Clarke. Hedescribed himself as a drug addict (cocaine and cannabis) and Mr. Clarke as his principle drug supplier. According to the accused, Mr.Clarke was quite generous as far as drug dealers go—always giving him a little bit more drugs for the money. He felt that Mr. Clarkewas probably prepping him for some favours down the road. [12] According to his explanations, he agreed to help the co-accused reroute a package to Montreal without giving it much thought.In his mind, it was just a small favour which, in turn, might score him some free drugs from Mr. Clarke.

It never crossed his mind thatthe package could contain illicit drugs. However, upon returning home, he reflected on the matter and had second thoughts about thefavour Mr. Clarke asked of him. [13] The following day, at Mr. Clarke’s apartment, the accused told him that he was not interested in rerouting the package from theFedEx office in Toronto to his address in Verdun. His exact words to Mr. Clarke were « I don’t want to be a part of it ». [14] Mr. Clarke, unfortunately, did not respond too well to the accused’s sudden decision to withdraw his promised help and hethreatened him with serious bodily harm.

The threats also included harm to the accused’s family if the latter persisted in opting out of thescheme to reroute the package: « I know where your mother lives » [15] From the accused’s account, Mr. Clarke was particularly keen in having the package rerouted according to plan. In a fit ofanger he pushed his forearm onto the neck of the accused and backed him up against the wall. While exerting pressure on the neck of theaccused, Mr. Clarke said « you are not going to mess with my retirement package. » His tone of voice was firm and he was angry. [16] The accused recounted that he took the threats seriously.

To begin, Mr. Clarke was physically bigger and stronger than himself.Next, Mr. Clarke was a drug dealer with a criminal past that included weapons charges. He was known to be aggressive, intimidating andhad a visceral hatred of police. He even boasted that he had bullets designed to « kill cops ». As for the accused, what could he possiblydo to counter the threat? He was but a hapless and frightened addict with no one he could turn to for help, not even the police. [17] Given the circumstances, he had no choice but to go along with the scheme. It was either that or face the certain wrath of Mr.Clarke.

Just as frightening, he feared reprisals from unsavoury characters Mr. Clarke claimed to be affiliated with. [18] In agreeing to carry out Mr. Clarke’s marching orders, the accused was somewhat comforted by his belief that FedEx policy didnot allow for the rerouting of packages when declined by the original recipient. Secure in the knowledge that the package could not bedelivered, he then pretended to go along with the rerouting scheme. [19] Though he was conscripted against his will in Mr. Clarke’s scheme, the situation offered some advantages.

Firstly, as thepackage could not be delivered by FedEx (so he thought), he would not be forced to break the law. Secondly, by playing along orpretending to help, he would appease Mr. Clarke and perhaps score some free drugs for his feigned efforts. Position of the parties —The defence [20] At the conclusion of the trial, counsel for the accused, Me Robert Israel, admitted that both the actus reus and the mens rea ofthe offences had been proven beyond a reasonable doubt, but argued that the offences were committed under duress.

Hence, the accusedwas entitled to be excused from criminal liability because during the relevant time frame he acted under compulsion by threats. [21] In his oral pleadings, Me Israel, stated that « free will was at the heart of the defense. » The accused was not free to choose to bea part of the conspiracy. Instead, his « will » was overborne by the real and serious threats made by Mr. Clarke. [22] In excusing a criminal act based on the premise that the threatened person is deprived of his freedom of volition, Me Israelreferred to the following passage in the Supreme Court decision of R. v.

Ruzic, 2001 SCC 24 , [2001] 1 SCR 687, at para. 39: Moral involuntariness is also related to the notion that the defence of duress is an excuse. Dickson J. maintained in Perka that an excuseacknowledges the wrongfulness of the accused’s conduct. Nevertheless, the law refuses to attach penal consequences to it because an“excuse” has been made out. In using the expression “moral involuntariness,” we mean that the accused had no “real” choice but tocommit the offence.

This recognizes that there was indeed an alternative to breaking the law, although in the case of duress that choicemay be even more unpalatable – to be killed or physically harmed. (Emphasis added) [23] In support of the defense position that the accused was compelled by threats to participate in the scheme, Me Israel highlightedthe following points: • The nature of the relationship between the two men: The evidence points to an unequal relationship between the accused and Mr. Clarke.

The latter is clearly the one giving orders while theformer only has a subservient role of carrying out the orders without question. • Opposing Interests in the successful completion of the scheme

The evidence indicates that Mr. Clarke was keener than the accused in getting the package from Toronto to Montreal. When difficulties arose with the shipping of the package or with it being rerouted to Montreal, it’s Mr. Clarke who texts or communicates with his contacts oversees to apprise them of the situation. As for the accused, he merely waits for more instructions. Even in the wiretapped conversations, all he wants to do is get a package and be done with it as soon as possible: «I’m going to be in and out. » • A well-grounded fear that the threat would be carried out The accused’s account of Mr.

Clarke’s capacity for physical violence and intimidation was corroborated by the following pieces of evidence: (

i) A text message sent by Mr. Clarke to the accused reprimanding or scolding him for a call he made without his (Mr. Clarke’

s) permission; (ii) Mr. Clarke had a criminal record which included convictions for acts of violence and weapons charges; (iii) The testimony of the accused in which he recounted the threats uttered by Mr. Clarke targeting the accused and his family; (iv) The assault the accused suffered at the hands (not to say the elbow) of Mr. Clarke at the latter’s apartment. [ 24 ] Next, with respect to the accused’s feigned participation in the scheme, defense counsel pointed to a recording between the accused and a friend where he mentions that he « got lucky. »

In his testimony, the accused claimed that he « got lucky » because the FedEx office had informed him that the package would be destroyed; consequently, he wouldn’t have to worry about breaking the law. The destruction of the package was his lifeline or his ticket to get out of the scheme scot-free. Contrary to all expectations, however, the package was eventually delivered and his hopes lay dashed where offerings fell. With his lifeline gone, he had no choice but to follow through with his

part in the scheme. —The Crown [ 25 ] Not surprisingly, the Crown, represented by Me Mathieu Stanton, argued that the situation of the accused did not lend itself to a defense of duress. Firstly, he noted that the factual basis for such a defence has not been established. More particularly, the accused’s story of being compelled to act on account of threats he received by the co-accused, is not credible. To begin, nothing in the intercepted communications or in the text messages suggests that the accused was being coerced by the co-accused, Mr. Clarke.

For that matter, the said communications suggest a cordial and professional relationship between two individuals who were co-operating for the same purpose: getting a package of heroin rerouted from a FedEx office in Toronto to an address in Verdun. It’s only in the uncorroborated testimony of the accused that Mr. Clarke is portrayed as a boorish goon who by threats and acts of violence was capable of coercing an unwilling actor to participate in his illicit scheme. [ 26 ] Next, the aforementioned evidence supports the view that the accused was a ready and willing participant in the scheme.

To quote from Me Stanton: « He was extremely active in the entire process. » Thus, his actions cannot be explained as compliance to coercion, but rather as a willing and interested participant in the scheme. [ 27 ] Me Stanton conceded that a liberal

interpretation of a word or two in the intercepted communications, when taken out of context, could corroborate the accused’s testimony that he was coerced into the scheme or that he merely pretended to be a part of it. However, the bulk of the said communications is only consistent with the accused’s active and willing participation in the scheme. While on the phone with the FedEx representatives, he is persistent: he wants that package rerouted to Montreal and he gets upset or frustrated when it appears that he’s getting the run around from the customer-services representatives. [ 28 ] What is more, the accused’s

interpretation of the intercepted communications cannot be trusted. For one thing, he displayed a knack for selective memory: when confronted with portions of the recorded evidence that were compromising, the accused conveniently answered that he couldn’t remember the conversation or the message. At times, he would explain away compromising words or phrases by stating that he was merely « mumbling ».

Worse still, he provided explanations which simply made no sense when considered against the bulk of the evidence. [ 29 ] The credibility of the accused was also compromised by the fact that he made a false statement to the RCMP following his arrest [4] . [ 30 ] Still on the issue of credibility, Me Stanton noted that the Court should be wary of a defence of duress which only comes up for the first time at trial some five years after the facts. [ 31 ] In sum, the factual underpinning for the defence advanced by the accused was not made out: no coercion, no duress. [ 32 ] Next , assuming that the accused’s testimony regarding the threats incurred was at least capable of raising a reasonable doubt, the defense of duress must still fail as there was a reasonable and legal alternative to violating the law.

More particularly, a reasonable person in the situation of the accused would have alerted the police. But rather than take the obvious and very plausible avenue of escape, he chose to participate in the scheme. [ 33 ] In sum, the accused’s free volition was not overborne by the threats of the accused as he had a clear opportunity to refuse to do

the criminal act and also to avoid the threatened harm. Detailed review of the evidence Agreed statement of facts [ 34 ] Four officers were called to testify in the present matter. For the purposes of this decision, however, it is not necessary that I summarize their testimonies. As mentioned earlier, the accused did not deny his involvement in the scheme to reroute a package containing heroin to his home address in Verdun. Throughout the trial the issue was uniquely focussed on the defence of duress.

In the cross-examination of the police witnesses, Me Israel stuck to the bits and pieces of evidence that would corroborate the accused’s claim of coercion. For instance, the investigator was questioned on matters relating to the criminal record of the co-accused, Mr. Clarke. [ 35 ] Next an agreed statement of facts signed by the parties renders a detailed

summary of the officers’ testimonies superfluous. One part of the said statement concerned admissions of a technical nature, i.e., voice recognition in the intercepted communications as well as the matter of matching addresses and phone numbers with the correct accused.

An admission was also made with respect to the nature, quantity and chain of possession of the two controlled substances, to wit: 2 packages containing heroin, one a FedEx package containing 452 grams of heroin and a second one, a Canada post package containing 221 grams of heroin. [ 36 ] The second part of the admissions was a neat recap of the police investigation that led to the arrests of the accused and Mr. Clarke. With some minor modifications and omissions (and with differently numbered paragraphs), I reproduce hereafter certain portions of the said statement: I.

On or about January 17, 2014, the US Customs and Border Patrol advised the RCMP that a FedEx package containing 452 g. of heroin destined for Canada had been intercepted. II. After a first controlled delivery was attempted in the Toronto area, the RCMP proceeded to prepare a second controlled delivery in Montreal. III. On February 10, 2014, the RCMP obtained a wiretap authorization to intercept Mr. Salem’s private conversations. IV. On February 11, 2014, a controlled delivery of the intercepted FedEx package containing heroin was undertaken and the said package was received by Mr.

Salem at his residence: 528, 2 nd Avenue, Verdun in Montreal. V. Shortly after receiving the package, Mr. Salem was then observed entering a taxi with the said package. VI. While in the taxi, Mr. Salem communicated with Mr. Clarke by telephone and advised him that he was on his way. VII. Mr. Salem arrived outside of Mr. Clarke’s residence at 5465 Westminster Avenue apt. 37, entered with the package unopened and was then seen leaving without the package aboard the same taxi. VIII. Then, after receiving a signal indicating the package had been opened, RCMP officers entered Mr.

Clarke’s residence to discover him in possession of the opened package. IX. Mr. Clarke and Mr. Salem were arrested that same day. [ 37 ] A third part of the statement concerned other sundry matters such as the exactitude of the transcripts of the intercepted communications and surveillance reports. [ 38 ] The admissions made by the parties saved valuable court time and resources and ensured that the trial proceeded in a timely manner. I thank the parties for their efforts at narrowing the issues and minimizing the facts in dispute.

The intercepted cell phone conversations, the call recorder conversations and the text messages (loose lips sink ships) —General comments [ 39 ] A major part of the Crown’s evidence consisted of intercepted and recorded communications between (

i) the accused and Mr. Clarke and (ii) the accused with a third party (usually a customer-services agent at FedEx). As we shall see, a first series of intercepted communications was obtained via a court-authorized wiretap on February 10, 2014. Essentially, the wiretap captured the conversations between the accused and Mr. Clarke. By this time, FedEx had confirmed the delivery of the package and the police were tracking its every move—from the time the accused accepted delivery thereof to the time he handed it over to Mr. Clarke.

A second series of conversations were actually recorded by the accused himself on his own cell phone from February 4, 2014, to February 10, 2014. For the most part, they record the conversations of the accused with FedEx personnel in which he inquires as to the status of the package he wants rerouted to Montreal. Also included in the self-recorded messages were conversations between the accused and Mr.

Clarke where the former updates the latter on matters relating to the rerouting of the package (a sort of progress report). [ 40 ] The Crown’s case also consisted of a series of text messages extracted from the cell phone of Mr. Clarke. [ 41 ] In the following

section of the decision, I will review the contents of the conversations and text messages. Each one of them will be followed by my comments and analysis. More particularly, how do the said conversations and texts—taken separately or as a whole —advance the case of either party? Do they corroborate the position of the Crown that the accused was a ready and willing participant in the scheme or do they provide evidence that the accused was compelled by threats of violence to partake in the plan?

Likewise, do they provide any support for the accused’s contention that he was only pretending to participate in the scheme (as he knew full well that FedEx policy did not allow for rerouting of packages)?

[ 42 ] In the course of his testimony, the accused was examined and cross-examined with respect to the contents of the recorded conversations. In order to avoid redundancies, the review of each conversation will also include the comments or explanations of the accused. [ 43 ] This

section of the decision is unfortunately lengthy—one might even say «tedious». However, this is very much a case where the devil is in the details. While the prosecution claims that the communications are conclusive of the accused’s willing and active participation in the scheme, the defense offers an innocent explanation for seemingly damning or prejudicial evidence. [ 44 ] Aside from the accused’s testimony, no other witnesses were presented to corroborate his defense of duress.

In assessing a defence of duress, a court must be mindful that the defence is subject to abuse and that verification of a spurious claim may prove difficult [5] . Accordingly, the Court is required to apply reasonable but strict standards for the application of the defence [6] . In the end, much will depend on the evaluation of the evidence [7] . In this case, the bulk of the evidence is in the conversations and in the text messages. —Conversations from the micro sd recorder (self-recorded calls) [ 45 ] Audio files were extracted from the memory card of the accused’s cell phone.

From the said audio files, the Crown filed into evidence 18 conversations that cover the period from Feb 4, 2014, to Feb 10, 2014. A transcription of the said conversations was filed as Crown’s exhibit P-8. [ 46 ] As mentioned above, these phone conversations were recorded by the accused himself. According to his explanations, he installed a call recorder application in his smart phone in order to recall « things that were said » or «things to do ».

He insisted that the recordings had nothing to do with the present matter. [ 47 ] In the first conversation, dated Feb 4, 2014, the accused was speaking with an unidentified female working at the FedEx customer services department. [8] Though the conversation was short, the accused seemed to be impressed by the service he was getting. He event thanked the agent: FS: [9] Wow, you guys are awesome. Thank you for doing that for us…for me.

I guess, you guys will call me… [ 48 ] Just a few lines later, the accused appeared quite pleased that FedEx will give him the heads up when the package will be delivered UF: [10] And that way you’ll know when it's coming. FS. Ok cool. [ 49 ] Later that same day, the accused relayed the contents of the FedEx call to Mr. Clarke: [11] FS: Yeah, it’s still there so tomorrow. Nothing happened so it’s gonna be tomorrow. [ 50 ] A few lines down in the transcript of the call, the accused added the following comments: FS: I hope so.

I certainly hope so… [ 51 ] Let us recall that the accused claimed that he was just pretending to go along with the scheme as he knew full well that FedEx policy prohibited the rerouting of a package. But here, in this short conversation, he appeared to be upbeat and optimistic. I add that there was nothing threatening in the words or in the tone of voice of Mr. Clarke. For that matter, in all the conversations (including those from the wiretap), there was no suggestion that Mr. Clarke was threatening or intimidating towards the accused.

He doesn’t even raise his voice. [ 52 ] On the 5 th day of February 2014, at 10 a.m., the accused was checking in on the expected delivery of the package with a FedEx customer services agent. After giving the agent the tracking number of the package, he expressed his frustration with the delays. He wanted answers and he wasn’t going to stand for the runaround: FS: It was sent to Toronto. I rerouted to Montreal. I have been fighting yesterday all day.

Listen, why don’t you just tell me what’s going on please because… [ 53 ] Once again, the tone of this conversation puts in doubt the accused’s claim that he was only playing a role and that the last thing he wanted was for the package to be sent to his address in Verdun. Quite the contrary, he comes off as the dissatisfied and persistent customer who is frustrated by the fact that there were delays in filling his order.

If anything, one gets the impression that he truly wanted the package to arrive pronto. [ 54 ] A few minutes later, at 10:13 a.m., the accused was on the phone with Allison, another customer services agent with FedEx [12] . As soon as the conversation began, he expressed his frustration with the delays in rerouting the package. To bring home the inconvenience of the whole situation, he stated that he had to take time off from work so as to make sure he’d be home when the package arrives. He’s s also upset that he had been placed « on hold » while the matter was being looked into.

As in his previous conversation, he’s tired of the runaround and won’t put up with it anymore. FS: Hi. Hi Allison, I’m not very happy right now…the last person just left me on hold for 20 minutes and I...I’m really fed up. I’m gonna give you.....Take this tracking number down: 797.....

Please don’t put me on hold...I know there’s a lot of notes involved… I’m fed up.... It needs to come to Montreal . I’m taking days off from work ...people are leaving me on hold no more...Please tell me what’s going on. [ 55 ] One does not get the impression from this conversation that the accused was the least bit pleased with the knowledge that the process of rerouting the package to Montreal appeared to be stalled. Clearly, he’s frustrated by the delays and expressed in no uncertain terms that the package had to be shipped out quickly.

If the accused was merely acting, he was doing a very good job for someone he didn’t really have to impress, the customer-services agent. [ 56 ] A few lines down, the accused gave his cover story to the customer service agent: he claimed to be the uncle of the original recipient. In recounting his cover story, he appeared to be irritated by the fact that he has to repeat the same information every time he calls: FS: He’s my nephew…and we’ve explained it a million times yesterday. Seriously I have been asked on every phone call: Who am I? What’s my phone? What is this? Every single time.

That same question, it’s been 24 hours same questions... same everything. And I get put on hold and nobody comes back . [ 57 ] For an individual who claimed that he never wanted to receive the package, he comes off as being particularly persistent in his demands. He wanted results and he was tired, upset and frustrated with the rigmarole he had to put up with every time he called. [ 58 ] A few lines down in the transcript of this conversation, he once again relays to the customer service agent that he was fed up of waiting.

He won’t take « no » for an answer and insisted on delivery that same day : FS : No, no, no. I won’t go on hold. I cannot wait anymore…I’m not taking more days off. This thing has to be here today…How can something like this happen? [ 59 ] Interestingly, to impress upon the customer services agent the importance of getting the package to him without undue delay, the accused stated that he won’t be «taking any more days off». From the accused’s testimony, however, we know that he was unemployed at the time. Once again, if he was merely acting, he was squandering a great performance for someone he need not impress.

If anything, it appears that the accused was going the extra mile to impress upon the agent the importance of shipping out the package as soon as possible. [ 60 ] At the end of the conversation, Allison, the customer-services agent, informed the accused that the package will « hopefully » be out on a shuttle or a plane by night time. The accused appeared to be satisfied with the situation and he thanked Allison for her good work: FS: O.K. Cool…you’ve done great …You’ve done great …You’ve done so much.

Thank you so much for all your help…Just make sure that someone calls me because I’m sitting here waiting, that’s all…You’re great. I appreciate you…I really appreciate you. [ 61 ] Does the accused sound like an individual who does not want the package delivered? Likewise, does he sound like a person who’s disappointed or the least bit apprehensive by the fact that the package will now be delivered? Not in the least. For that matter, he appeared to be rather satisfied with the turn of events.

He even thanked the customer services agent profusely for her efforts in moving things along. [ 62 ] A few minutes later that same day, he was on the phone with Mr. Clarke to relay the latest developments with FedEx [13] . In this conversation, he patted himself on the back for his efforts in securing the delivery of the package to Montreal. He even boasted about how firm he was with the FedEx customer services agents: FS: It’s finally approved…with possibility of delivery tonight cause I fuckin raised hell…I asked her « what is this? How can you guys do this to us? »

She explained the delays, it needed to be approved because the original sender refused to pay…so it needed some time for the management to approve it and I just got them to approve it right now. I raised hell and just to make sure it’s more confirmed, I told her « I need your boss….I need your boss to call me…I’m not happy… People put me on hold and they don’t come back…» There are no more delays. I got the final concrete word it’s going to be here tomorrow.

I know it’s going to be here tomorrow…Now, I’m not even worried…I know for a fact that it’s moving. [ 63 ] Perhaps, one may make the case that the accused was boasting in order to impress and appease Mr. Clarke. But when viewed with the previous conversation, the accused was merely recounting the firm stance he took with the customer-services people at FedEx. Judging by his tone of voice and word choice, he seemed rather upbeat and positive. [ 64 ] As for Mr. Clarke, he said very little in this conversation and appeared to merely acknowledge the information relayed to him by the accused.

When he does speak, nary was a threatening word heard. [ 65 ] Later on that same day, at 1:49 p.m., the accused was on the phone with a woman [14] . He talked at length on different topics ranging from the comforts of his new apartment to the dangers of bacteria in food. The recording, however, did not capture the words of

the woman. It is the lengthiest of all the self-recorded calls made by the accused—the transcription thereof takes up five full pages. [ 66 ] Despite its length, the only interesting part of this recording is on the very first line of the transcript. The accused was recorded saying: « Hi…big package…Big box of heroin, bye bye...». In his testimony, the accused explained that he was on the phone with his wife. Questioned about the meaning of his words « Hi…big package…big box of heroin, » he couldn’t really answer.

He surmised that he was talking or mumbling to himself while waiting for the person on the other line to answer. In the end, he said that he couldn’t remember that specific call and dismissed it as « zombie call ». In other words, a meaningless collection of words. [ 67 ] Though the accused claimed he was probably mumbling to himself while waiting for someone to answer, it should be noted that the words « Hi…big package…big box of heroin » were spoken after he answered with the word « Hi ». By answering « Hi », one could safely surmise that the recipient of the call was already on line.

Hard to believe, therefore, that he was merely mumbling random words while waiting for someone to answer the phone. [ 68 ] Later, at 3:31 p.m., the accused was on the phone with Mr. Clarke [15] . In this short conversation, the accused confirmed that the package was in transit: FS: It was authorized from everybody…I confirmed that everybody got the authorization. I’m here waiting...I’m here and alert… [ 69 ] The accused sounded positive.

He also gave the impression of being quite active in securing the transfer of the package to Montreal. [ 70 ] Fifteen minutes later, the accused was once again on the phone with Mr. Clarke. Though the recording does not capture the voice of Mr. Clarke, one quickly gathers that the accused was calling to make sure that all bases were covered in the scheme to reroute the package. More particularly, he wanted to make sure that nothing was left to chance and that all the participants would know what to say so as to not blow the cover story.

The transcript of the call begins with the accused expressing the following qualms: FS: Well that’s the mysterious part? They don’t say. They just keep asking me the same questions over: « How are you related to this person? » They ask me that same question a million times… [ 71 ] A few lines down, he asked Mr. Clarke for advice: FS: Just help humour me. To answer my question very simply. It’s one of us that answers the phone?

UM [16] : —- FS: So he knows what he’s doing. [ 72 ] A few more lines down, the accused voiced his concern that the original recipient of the package in Toronto would mess up and say something stupid: FS: So if I call that number and he answers, what’s going to happen? If they call him and they ask him about your uncle, he goes: « What the fuck are you talking about? » [ 73 ] After a reply from Mr. Clarke (which was not picked up in the call recorder), the accused persisted with his concerns.

In the passage that follows, one will note that the accused was rather bold for someone who claimed to having been subjugated by Mr. Clarke: FS: Out of his hand, I understand, but you’re not listening to my question …But what is in his hands is the phone, when they call that number. UM: —- FS: They called that number yesterday twice, that’s why I told you that yesterday…They called that number yesterday several times and he’s the one they’re concerned for whoever is on that number cause he is the original recipient... UM: —- FS: Does he know to say: Yeah, it’s been rerouted and its OK?

UM: —- FS: Right so when FedEx calls him and tells him « OK so we’re rerouting the package » and he says, « Yeah sure or is he going to say, I don’t…» [ 74 ] In defense’s closing arguments, Me Israel asked that I compare and contrast the differences in the efforts made by the accused and Mr. Clarke in getting the package rerouted to Montreal. It was pointed out, for instance, that when difficulties arose, Mr. Clarke communicated immediately with his contacts in India. In the same vein, it was argued that Mr.

Clarke had a keener interest in taking possession of the drugs than the accused. [ 75 ] Perhaps, one may make the case that Mr. Clarke was more active with the suppliers and original importers of the heroin. One may even make the case that Mr. Clarke’s interest in rerouting the package from Toronto to Montreal was greater than that of the accused. No doubt, among those involved in the conspiracy, Mr. Clarke was higher up the food chain than the accused. This being said, this last conversation shows that the accused took positive steps in making sure that there were no loose ends in the plan.

In any case, being the low-man on the totem pole is no defense to a charge of conspiracy. [ 76 ] This conversation is also telling with respect to the relationship between the accused and Mr. Clarke. In expressing his concerns

over a potential foul up, the accused did not give the impression of being an individual dominated or subjugated by Mr. Clarke. His concerns were voiced freely. At one point, he even seemed to be exasperated with Mr. Clarke’s response (not recorded) when he stated: « But you’re not listening to my question. » [ 77 ] In cross-examination, the accused skirted around all potential difficulties by stating that he couldn’t recall that conversation. [ 78 ] On February 6, 2014, at ten minutes past noon, the accused was on the phone with a customer services representative at FedEx [17] .

Once again, the accused was inquiring about the package and the delays in shipping it to Montreal.

At the end of the first page of the transcript, he appeared to be concerned that the package might still be in the Toronto office of FedEx: FS: I really hope that it’s not still in Ontario….It’s been there for a while… [ 79 ] The concerns expressed by the accused to the customer services agent are totally incompatible with his testimony in court to the effect that he was hoping that the package would never be rerouted to Montreal. [ 80 ] At the end of the second page of the transcript of the recording, it appeared that the accused was told by the customer services representative that the package was destroyed.

Given his testimony in court, one would expect that the accused would be pleased if not outright elated by this last bit of news. As the package was destroyed, he now has been given an opportunity to wiggle out of his obligations to Mr. Clarke. But instead of being pleased or comforted by the news, the accused, as evidenced in the following passages, appeared to be genuinely frustrated and upset: FS: Who asked for it to be destroyed? UF2: —- FS: The shipper requested it to be destroyed? UF2: Right___the shipper requested___for it to be destroyed. […] FS: Why would anybody want to destroy a package?

What is wrong with people? [ 81 ] In his testimony, the accused claimed that he was happy when he got the news that the package was destroyed. In describing how he felt, he stated: « my voice went up half a tone. »” [ 82 ] When asked to explain his choice of words (« Why would anybody want to destroy a package? What is wrong with people? »), the accused simply stated that he was trying to be funny. [ 83 ] From listening to the recording, I did not get the impression that the accused’s voice went up half a tone in glee.

As for his attempt to explain away his choice of words as mere humour, I did not get the sense that he was trying to be funny. Who would be laughing, the clerk on the other side of the line? I think not. If anything, he appeared to be genuinely exasperated and upset.

In the end, the accused’s facile explanation was nothing more than a desperate attempt to smooth away a compromising piece of the evidence. [ 84 ] It’s also quite surprising that five years after the fact, the accused was able to recall that his words were nothing more than a failed attempt at humour. [ 85 ] Circa 20 minutes later, there was another call between the accused and Mr. Clarke [18] . The conversation began with the accused asking Mr. Clarke if he had spoken to « the people in India. » Confused and worried about the information he had just received by the FedEx agent, he asked Mr.

Clarke to make some inquiries: FS: Make some phone calls man…cause my name is on the thing and they have my phone number on this thing and the address and everything… [ 86 ] As the most vulnerable person in the scheme, the accused’s words may be seen as a cry for help. However, it is still surprising that the self-described wimp, gave orders to the person subjugating him: « Make some phone calls man…» [ 87 ] The next recorded conversation was on February 7, 2014 [19] .

It’s in this conversation that the accused appeared to be telling his friend on the other line that the package was flagged in Toronto, but that he «got lucky. » In his final summing up, Me Israel argued that this conversation was the most trustworthy and the most indicative of the accused’s state of mind at the time of the events. More particularly, it corroborates the accused’s testimony that he never wanted the package to be rerouted to his address in Verdun. [ 88 ] The relevant portions of the conversation read as follows: FS: It got caught in Toronto UM: ___ FS: Yeah, it got___ caught and open in Toronto.

I can tell you about it after. Yeah, it’s a disaster , but uh, I got lucky, I got so lucky . [ 89 ] In his testimony, the accused explained that he was talking to a good friend of his, Gino. He added that his friend was well aware of his predicament. [ 90 ] The accused also elaborated on what he meant by the use of the words «disaster» » and « I got lucky » when explaining the situation to his friend. According to his explanation, it was a «disaster» only for Mr. Clarke and his partners. For him, however, it was a

godsend. He got « lucky » in the sense that the package would no longer be delivered to his address and that he had a free pass to get out of the scheme. [ 91 ] Admittedly, the said words or phrases, taken in isolation, could be construed in the sense of the accused getting a « lucky break ». If one searches long and hard enough, one can certainly find a word here and there in the transcript that could be made to fit one’s theory. This being said, the conversation was relatively short and relatively ambiguous.

I note, for instance, that when he used the word « disaster » in the conversation, he never indicated that it applied to someone else, i.e., Mr. Clarke. [ 92 ] Next, the use of the phrase « caught and open » makes no sense if the accused was actually referring to the package destined to be rerouted to Montreal. If indeed the package was «caught and opened» the authorities would be alerted to the illicit drugs contained therein.

Why, then, would the accused still agree to accept a package which would lead, indubitably, to his immediate address? [ 93 ] The phrase « caught and open » is also incoherent when juxtaposed with previous conversations where the accused is under the impression that the package was «destroyed». A package that’s « caught and opened » is not necessarily destroyed. Then, I note that in this relatively short conversation, the accused never uses the word «destroyed» when referring, seemingly, to a package.

In the end, one has to wonder if the conversation actually refers to the package destined to be rerouted to Montreal. [ 94 ] I add that the supposed destruction of the package did not relieve the accused of his obligations towards Mr. Clarke. Even if he did « get lucky » with the FedEx package, he was still waiting on another package to be delivered by Canada Post. Despite his so-called lucky break, he was still beholden to Mr.

Clarke. [ 95 ] Finally, I find it odd that the accused, five years after the fact, can recall not only the conversation but also the particular meaning of the words or phrases that he uttered. Given the weight of the evidence, I am of the view that the accused was grasping at straws, hoping to find a word or two that could be twisted into an innocent explanation. —The intercepted communications (wiretaps) [ 96 ] The phone conversations caught on wiretap cover two consecutive days: February 10 to February 11, 2014.

The last date, of course, coincides with the delivery of the package containing heroin and with the arrest of the accused and Mr. Clarke. In all, 12 conversations were filed into the court record. For the most part, they involve the accused and Mr. Clarke. A transcript of the said conversations was produced as Crown exhibit P-6. [ 97 ] On February 10, 2014, at 10:59 p.m., the accused was on the phone with Mr. Clarke [20] . At the beginning of the conversation, the two men have the following exchange: FS: I’m still waiting for my soap bar.

UM: OK. so you’re not happy. [ 98 ] On cross-examination, the accused denied any suggestion that the term « soap bar » was a reference to the package from Toronto. [ 99 ] Later in this conversation, the accused referred to his efforts in getting the package to Montreal as « work. » It also appeared that he will be paid for his « work », but only after Mr. Clarke gets paid first: FS: Well, you know what, you’ve spoiled me, yes …but this is work.

UM: ___ FS: I stayed home all fucking day, I’m not asking for anything, I’m waiting for you know… UM: I know but you can’t get paid before I get paid bro, how is that gonna work? [ 100 ] A few lines down in the transcript, we read the following: FS: Nobody is getting paid, nobody is getting paid yet. UM: Exactly, and you’re still smoking for free, so you should be happy. FS: I thank you I just want, you know what I want…I just want to do a job In and out, you know, this whole lingering thing is pissing me off, so tell me do you have any news?

UM: Well, that one definitely is gonna be there tomorrow… [ 101 ] A few lines further still, the conversation alluded to financial rewards for the accused once the job is done: UM: At the end of the week, you’re gonna be happy, don’t’ worry about it. FS: Well, that’s too far. UM: Let’s say that before tomorrow it comes, well tomorrow you’re going to be happy but, the other one should be there before

Friday F: I’m not worried bro, you’re good, we’ll talk tomorrow, call me as soon as you wake up. [ 102 ] Questioned by Crown counsel about what he meant by the words « but this is work », the accused answered that he couldn’t recall. Next, when questioned about the meaning of the phrase « this whole lingering thing », the accused simply replied that he was « only mumbling ». [ 103 ] At various times in his testimony, the accused denied that he was being paid for his participation in the scheme. It was fear of punishment at the hands of Mr.

Clarke rather than the potential for financial gain that explained his participation in the scheme. Yet, the aforementioned conversation left no doubt that he was expecting financial compensation for his « work » [ 104 ] When confronted in cross-examination with the words pronounced by Mr. Clarke, « You’ll get paid when I get paid », the accused countered by saying, « I can’t be held accountable for the words of someone else ». However, to use a term that’s been bandied about in the news of late, the general tenor of the conversation suggested a quid pro quo. To begin, he didn’t seem surprised by Mr.

Clarke’s words. Nor did he respond with a quizzical, « what are you talking about? » The conversation continued normally as if he understood or implicitly accepted what Mr. Clarke had just told him. Moreover, when the accused said « I’m not worried, you’re good » when taken in context, could only mean that he trusts that Mr. Clarke will honour his word and pay him after he (Mr. Clarke) gets paid first. There is no other rational explanation for those words. [ 105 ] The next intercepted communication was caught on Feb 11, 2014, at five minutes past midnight [21] . The accused tells Mr.

Clarke that he received notice that the package will be delivered. He appeared to be worried that the plan might unravel and that the authorities might be on to them. Mr. Clarke, however, was reassuring UM: If there was something wrong or they want to put you in jail, they’re not gonna give you a heads up, say: « yeah we’re coming. » Your door would have been knocked off a long time ago… [ 106 ] Mr. Clarke also added: UM: If worse comes to worse, you know how to deal with it. [ 107 ] In the accused’s testimony, he explained that the afore-mentioned phrase was an instruction from Mr.

Clarke to keep quiet in case the authorities intervened. [ 108 ] In the next conversation, at 10 minutes past midnight, the accused asked Mr. Clarke if he could confirm the message he just received from FedEx—that is, that the package will be arriving that day [22] . [ 109 ] Just three minutes later, the accused was once again on the phone with Mr. Clarke [23] . For the benefit of Mr. Clarke, he played back the FedEx message confirming delivery of the package later that day. [ 110 ] The next conversation, at 15 minutes past midnight that same day, is of particular interest as we hear the accused asking Mr.

Clarke for money—presumably for his services in rerouting the package to Montreal [24] : F: Out to delivery for you tomorrow, you better have the $1,500 dollars for me this week, ready. UM: Say that again? F: No I won’t you heard me… UM: I didn’t hear anything. F: I said you better have …. UM: I heard… [ 111 ] Two things are worth noting from this conversation. Firstly, the accused asked for a specific sum of money, $1,500. Secondly, for a person who was supposedly afraid of Mr. Clarke, the accused was surprisingly bold. He didn’t simply ask for payment, he demanded payment : « You better have ».

In the same vein, when Mr. Clarke asked him to repeat what he just said, the accused defiantly answered: « No I won’t, you heard me. You better have…» [ 112 ] Immediately after the said exchange, the accused increased his monetary demands: FS: You better have 15 grand. UM: 15 what? FS: nothing, nothing…. … FS: 15 what, 15, 15, what did I say? 15 grand, I’m such a … UM: You got big dreams, we all do. FS: What (laughs) 15, 15 grand wow.

FS: You know, you’re a funny guy, you remind me of Jerry Seinfeld. [ 113 ] Remember, the accused in his testimony was adamant, he never took money for his participation in the scheme. During the cross-examination, when asked to elaborate on the monetary demands he made to Mr. Clarke in the aforementioned conversation, all he could offer were evasive and ambiguous explanations: he was « mumbling », he was « screwing up », he was merely uttering « random thoughts » and he was « trying to be funny. [ 114 ] From my vantage point, I see no evidence of « mumbling » or mere « random thoughts » when the accused told Mr.

Clarke, in no uncertain terms « you better have $1,500 for me this week. » When asked by Mr. Clarke to repeat what he said, he answered quite firmly, « No I won’t you heard me…». Once again, there is nothing that suggests that he was « mumbling » or rattling off a series of incoherent and disjointed thoughts. Nor did I get a sense that he was trying to be funny. [ 115 ] Demanding that the $1,500 be paid « this week » was also consistent with the first intercepted communication where Mr. Clarke told the accused that he (the accused) will not be made immediately, but only after he (Mr. Clarke) gets paid first.

At the risk of redundancy, it is worthwhile repeating the following two phrases uttered by Mr. Clarke in that first conversation: You can’t get paid before I get paid bro, how is that gonna work? At the end of the week, you’re gonna be happy, don’t worry about it.” [ 116 ] This being said, I agree, that there was evidence of « mumbling » and attempts at humour when the accused later upped his monetary demands to $15,000. Even Mr. Clarke appeared to be amused. He referred to the accused as a « funny guy » and added that he reminded him of Jerry Seinfeld, a well-known American comedian.

However, the attempts at humour at the end of the conversation does not diminish in the least the compromising part of the evidence where the accused firmly and unequivocally demanded the payment of $1,500 dollars. [ 117 ] From the surveillance report, we know that the accused took delivery of the package at 12:22 p.m. [25] Two minutes later, he called Mr. Clarke to inform him that he’ll be arriving at his place in 20 minutes [26] . He also added that he would need money for the cab fare. As for Mr. Clarke, he only inquired about which package came first, the one from FedEx or the one from Canada Post.

FS: Be downstairs for money for the cab, OK? It’s in my hands. UM: Which one came first? Which one came? FedEx? FS: Yeah… [ 118 ] In the same conversation, the accused mentioned that he would be quick about his business—no doubt, to hurry back to his apartment so as to receive a second package of heroin to be delivered by Canada Post. Interestingly, the accused set his course of action without instructions from Mr. Clarke: FS: I’ll be there...I won’t stay I’m not coming there to stay...I’m dropping it off, and I have to be back here right away for other stuff anyways...So you just be ready for me.

I’ll call you when I’m five minutes away. [ 119 ] Just a few minutes later, at 12:30 p.m., Mr. Clarke called the accused [27] . He told the accused that it was better that he stays at his apartment just in case the second package would arrive. The accused, however, had already left his apartment and was on his way to Mr. Clarke’s residence. [ 120 ] At 12:36, the accused called Mr. Clarke [28] . Among the points of interest, Mr. Clarke affirmed that he only trusted the accused to do the job (of receiving delivery of the second package): UM: Cause I don’t want somebody else taking care of it.

I want you to take care of it. FS: All right, I’ll take the same taxi back. No problem, I’ll just uh, drop the box real quick and pick up and get my stuff and then I’ll come right back home, no, no, problem. [ 121 ] A few lines down, Mr. Clarke stated that he will be giving the accused some drugs when he comes to the apartment. Also, after verifying the contents of the package, he will give the accused his money: UM: I’m going to give you now when you come, I’m going give you something to smoke and the taxi money to get back.

I’m gonna open it, and when I see everything is proper set, then I’m going to give the money. FS: What? UM: Once everything is good, I’m gonna come to give you the money after , don’t worry, I just got to open it and make sure. FS: I’m not worried about, I’m not worried about that, I’ll come see you tonight, don’t worry about it.

UM: I’m gonna come and give you what I have to give you cause there’s another one coming in here, what I’m saying is when you come now in the building, go on like the f...go up the first stairs there’s a camera, I don’t want to be seen on a camera you giving me anything. [ 122 ] Cross-examined on the contents of this conversation, the accused repeated that he never asked for money nor did he ever expect any money for his participation in the scheme. At best, he hoped to score some drugs from Mr. Clarke. Despite his protests, the words of Mr.

Clarke to the effect that he will pay the accused after he examines the contents of the package is entirely consistent with previous conversations discussed above. Regretfully for the accused, the weight of the evidence leads to no other conclusion than that he will be

paid for his services. [123] At 1:06 p.m., the accused received a call from Mr. Clarke informing him that there’s a problem—the police are at his door. Bythis time, the accused had completed the delivery of the package to Mr. Clarke and was back at his apartment in Verdun waiting for thearrival of a second package from Canada Post. [124] At 1:17 p.m., the accused called an unidentified woman living at the same apartment as Mr.

Clarke.[29] He’s obviously worriedand wanted the woman to make the following verification: FS: Tell me if anything bad is happening with anybody in the building...I’m checking on something and I know what I’m doing. [125] Less than an hour later, the unidentified woman called him back and informed him that the police had arrested Mr. Clarke[30]. —The text messages from Mr. Clarke’s cell phones [126] The evidence in this case also included two series of text messages. The messages were extracted from the cell phone of Mr.Clarke.[31] [127] The first series of messages were between Mr.

Clarke and an individual identified as « Laz » on the text message box of thescreenshot. When considered against the backdrop of all the evidence, the messages confirmed that Mr. Clarke and «Laz» wereconspiring to bring drugs into the country. [128] A text message dated January 30, 2014, confirmed that the package containing heroin was first destined for an address inEtobicoke, Ontario. More particularly, the person identified as « Laz » sent a message to Mr.

Clarke in which he gives the address of theimporter: 21 Massey Grove Crescent, Etobicoke, Ontario[32]. [129] In another message, dated February 3, 2014, sent from Mr. Clarke to Laz, one reads the address of the accused: 528 2nd Avenuein Verdun[33]. In the context of this case, the message strongly suggests that the package sitting at the FedEx office in Toronto wouldnow be rerouted to the residence of the accused. In a subsequent message, dated February 6, 2014, Mr.

Clarke even forwarded the nameof the accused, Fadi Salem, as well as his address[34]. [130] The second series of messages involves the accused and Mr. Clarke. For the purposes of this decision, I will limit myself to thereview of one text dated February 3, 2014. The text sequence begins with the accused informing Mr. Clarke that he’s « on the phonewith FedEx. » Judging from Mr. Clarke’s response, one gathers that he was none too pleased by the accused’s initiative: Why did you call them? Who told you to call WTF? I never told you to call u told to sit and wait!

What are you doing? (Sic) [131] For Me Israel, this message confirmed the unequal relationship between Mr. Clarke and the accused. While the former givesorders and expresses his discontent at the slip-up of an underling, the latter subserviently obeys and endures the reprimands hurled at himby a superior. Moreover, the tone of the text lends credence to the accused’s claim that he was bullied and coerced by Mr. Clarke. —Other cell phone messages made by Mr. Clarke in furtherance of the conspiracy [132] The defense filed into evidence a collection of text messages between Mr.

Clarke and another individual (or individuals) whoused a cell phone with the following number: 447459336895[35]. The messages number 20 in total and cover the period from January25, 2014, to February 4, 2014. [133] For the purposes of this decision, it is not necessary that I proceed with a detailed review or analysis of the contents of the textmessages. In filing the said text messages, defense counsel wanted to show that Mr. Clarke was much more involved than the accused inthe overall scheme to possess heroin for the purposes of trafficking.

Also, defense wanted to make the point that the accused’s nameappeared very late in the scheme’s time line. Once again, underscoring the fact that the accused, unlike Mr. Clarke, was not among theprinciple players involved. He only joined the conspiracy at the very end when a « plan B » required the recruiting of a fall guy to reroutethe package from Toronto to Montreal. The back-up plan also entailed Mr. Clarke coercing the accused so as to ensure the latter’sservile cooperation. [134] This argument of the defence will be disposed of immediately. To begin, I do not doubt that Mr.

Clarke was a more importantplayer than the accused in the conspiracy. Likewise, I do not doubt that the accused was at the very bottom of the totem pole andobviously the most vulnerable of those involved in the scheme. As the proverbial « small fry » he runs the greatest risk of being caughtby the police: his name and address are on the package. What is more, he will be accepting delivery of the package. The others, higherup on the food chain, can sit back and wait to see if anything goes wrong before putting their hands on the drugs.

The accused, in a sense,serves as a first line of defense or buffer for the bigger fish. [135] One must remember, however, that the essence of criminal conspiracy is proof of an agreement[36]. Being the « small fry »changes nothing on the issue of whether or not the accused agreed to participate in a common design, part of which involved himrerouting a FedEx package from Toronto to his home address in Verdun.

The accused may have been a minor player in the conspiracy,but his role was nonetheless necessary to its completion. [136] Likewise, the fact that the accused appears to have joined the conspiracy late in the game is of no help to his defense. Nor is itrequired that he know every member of the conspiracy throughout the entire time. As the Supreme Court explained in R. v. Papalia; R. v.Cotroni, (SCC), [1979] 2 SCR 25, at page 276:

To conspire is to agree. The essence of criminal conspiracy is proof of agreement. On a charge of conspiracy the agreement itself is thegist 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 oroffences. Any number of persons may be privy to it. Additional persons may join the ongoing scheme while others may drop out.

Solong as there is a continuing overall, dominant plan there may be changes in methods of operation, personnel, or victims, withoutbringing the conspiracy to an end. The important inquiry is not as to the acts done in pursuance of the agreement, but whether there was,in fact, a common agreement to which the acts are referable and to which all of the alleged offenders were privy. (Emphasis added) [137] In R. v.

Longworth and al (ON CA), Martin J.A., stated that I agree that it is not necessary to show that parties to a conspiracy were in direct communication with each other, or even that they wereaware of the identity of the alleged co-conspirators. Moreover, it is not necessary to show that each conspirator was aware of all thedetails of the common scheme, but it must be shown that each of the conspirators were aware of the general nature of the common designand intended to adhere to it.[37] [138] In sum, it is not necessary that the accused be part of the original plan to commit a criminal act.

Also, the accused need notknow the identity of all the participants in the conspiracy; and still less does he need to have had dealings with everyone involved in theconspiracy. As the conspiracy evolves, the actors can change over time. Additional testimony of the accused (tying up some loose ends in the evidence) [139] Thus far in this decision, my review and analysis of the evidence has focused on the conversations and text messages of theaccused and Mr. Clarke.

How does this evidence contradict or corroborate the accused’s defense of duress or how does the said evidencesupport the Crown’s view that the accused was a willing and ready participant in the scheme? I also juxtaposed the accused’sexplanation with the some of the conversations and commented on the credibility of the explanations he offered. [140] To complete the evidence presented at trial, I will now deal with certain aspects of the accused’s testimony that is notnecessarily related to the said conversations and text messages. [141] The accused recounted the manner in which Mr.

Clarke recruited him to reroute a FedEx package from Toronto to his residencein Verdun. At first, it was nothing more than a favour that was asked of him: « I need a favour. I need you to get on the phone withFedEx. » [142] According to the accused, Mr. Clarke told him that he (the accused) was uniquely qualified for the task of rerouting the packageon account of his « previous work experience ». [143] The accused promptly agreed to help and added that he « thought nothing of it ».

At that moment, he didn’t have the slightestsuspicion that the package he agreed to reroute to his home address contained heroin. [144] However, once he went back home, he had the opportunity to mull the matter over and had second thoughts. On the followingday, at the residence of Mr. Clarke, he told him « I don’t want to be a part of it. » The latter did not take to well to the accused’s noticethat he was withdrawing his services. After being bullied, threatened and assaulted, the accused was brought back into the fold andagreed to help in rerouting the package.

It’s also at this time that he learned that the package—destined to his address—contained heroin. [145] For the reasons that follow, the accused’s claim that he did not know of the true contents of the package when he initially agreedto help in rerouting it to his address is not credible. To begin, the accused knew that he was dealing with a drug dealer.

It is difficult tobelieve that he didn’t know, or at least suspect, from the outset that the package contained illicit drugs. [146] The claim that he had second thoughts only after having had a chance to mull the whole matter over doesn’t mesh with his claimthat FedEx policy does not permit rerouting of packages. More particularly, if the accused was secure in the knowledge that packagescouldn’t be rerouted, why have misgivings or second thoughts about accepting the package at his address?

For all he knows, the packagewill never arrive; so there’s no need to worry, let alone have second thoughts. [147] Next, his entire account of the reason given by Mr. Clarke to solicit his services (previous work experience) sounds totallycontrived. Let us remember that the accused was merely asked to help reroute a package. In and of itself, this is not a complicated task:one gets on the phone with the FedEx customer services people and makes the necessary request. No special skills or training arerequired. No need to be a whiz in human relations to get the job done.

Yet, the accused wanted the court to believe that it’s on account ofhis previous work experience that Mr. Clarke asked to do him a favour. [148] I add that the accused was rather vague on how his previous work experience made him uniquely qualified for the job. Morelikely, the accused was recruited on account of the fact that he does not have a significant criminal record; thus, more capable of flyingunder the radar of the police. [149] Also, the manner in which the accused announced to Mr. Clarke that he wanted to withdraw his services puts in doubt the claimthat he had no knowledge of the contents of the drugs.

More particularly, by his choice of words he indicated that he knew from theoutset what he was getting involved in: The next day, I had a chance to think about it and I told him that «I don’t want to be a part of it. » By his words, he’s stating two things: (

i) that he’s already part of a scheme and (ii) that he knows from the very beginning that thepackage contained illicit drugs. Why else would he say « I don’t want to be a part of it? » Remember, in the accused’s testimony, hewould have uttered these words before being informed by Mr. Clarke that the package contained drugs. In recounting his story, the

accused got caught in a catch-22: How can you claim at once that you « want out » or that you don’t want to be a «part of something »when you have no idea that you’re « part of something » to be begin with? In the same vein, how can you claim to « want out » or tohave had second thoughts when you purportedly do not know, let alone suspect, the illicit nature of the package’s contents?

The accusedwas obviously « part of it », from the moment he agreed to reroute the package. [150] Finally, at the risk of being redundant, the recorded conversations are consistent with an individual who was a willing and readyparticipant in the illicit scheme from the outset. [151] The accused described his relationship with Mr. Clarke as one of drug dealer-addict. He also added that Mr. Clarke was a rathergenerous drug dealer. For thirty dollars, Mr. Clarke would give him one quarter to a one half gram of cocaine and throw in a free joint ofmarijuana. The accused commented that Mr.

Clark was prepping him up in anticipation of a favour he (the accused) would have toreturn. [152] The accused and Mr. Clarke were also neighbours in the same block apartment on Westminster Street for circa one year. Aboutone month prior to his arrest, the accused moved out of his Westminster apartment to another apartment in Verdun. Apparently, Mr.Clarke was upset by the accused’s decision to move away. [153] Here, too, the testimony of the accused sounds contrived. Firstly, this part of the testimony was rendered while the accused wasringing out various facets of Mr. Clarke’s unpleasant personality.

The goal was to portray him as an individual who was easily brought toanger, even when it came to mundane or minor matters such as the accused moving to another apartment. [154] Next, if the accused was really being prepped or set up in anticipation of favours he would have to return, why would Mr. Clarkebe upset with the former’s decision to move to another apartment? Would it not stand to reason that Mr.

Clarke, a known criminal anddrug dealer, would not want a package containing heroin to be delivered to an address associated with him, lest it raise the suspicions ofthe authorities? [155] The accused claimed that he didn’t seek the protection of the police as he couldn’t be sure that Mr. Clarke would be arrested andout of harm’s way. Likewise, upon his arrest, he couldn’t tell the authorities the truth as he was not certain that Mr. Clarke had also beenarrested.

He admitted to having lied in the statement that he made during the police interrogation. [156] From the evidence, however, the accused surely knew that Mr. Clarke was arrested, just like himself, on the 11th day ofFebruary, 2014. One will recall a conversation, transcribed at tab 11 of exhibit P6 in which he asked an unidentified woman to see ifanything happened to Mr. Clarke. A little less than one hour later, the same unidentified woman called the accused back informing himthat the police have arrested Mr.

Clarke[38] The law The test for the defence of duress [157] There is very little difference between the statutory and common law versions of the defence of duress. The main difference isthat s. 17 lists a number of offences which are exempt from this defence.[39] [158] Pursuant to Ruzic, supra and R. v. Ryan, 2013 SCC 3 , [2013] 1 SCR 14, the requirements for the application of adefence of duress are the following: (

i) There must be a threat of death or bodily harm directed against the accused or a third party; (ii) The accused must reasonably believe that threat will be carried out; (iii) The offence must not be one of the excluded offences, and the accused cannot be a party to a conspiracy or criminal associationsuch that the person is subject to compulsion; (iv) Duress does not apply if the accused had a safe avenue of escape, to legally and safely extricate himself from the situation ofduress – this element is assessed on the modified objective standard of a reasonable person similarly situated, taking into account theparticular circumstances and human frailties of the accused; (

v) There must be a close temporal connection between the threat and the harm threatened such that the accused loses the ability toact voluntarily –(Ruzic at para 65). This requirement is linked with the requirement that the accused have no safe avenue of escape. Athreat too far removed in time would cast doubt on its seriousness and on claims of absence of a safe avenue of escape.

This requirementis also measured on the modified objective standard of the reasonable person similarly situated; and (vi) The threat must be proportional to the criminal act committed, with the proviso that proportionality incorporates the requirementthat the accused demonstrate “…some fortitude and…put up a normal resistance to the threat (Ryan, at para 53).[40] [159] If the evidence will support a reasonable doubt about each of these elements then the Court must find the accused not guilty.

Onthe other hand, if the Court is satisfied beyond a reasonable doubt that any of these elements is not available on the evidence, then theaccused is not excused from criminal liability for his actions. —Air of reality [160] A defendant is not entitled to present a duress defence at trial unless a court first determines that it has an « air of reality ».Simply put, the « air of reality » test requires sufficient evidence for a particular defence to be put before a jury. In R. v. Osolin (SCC), [1993] 4 SCR 595 Cory J. explained that the test as follows:

The term air of reality simply means that the trial judge must determine if the evidence put forward is such that, if believed, a reasonablejury properly charged could have acquitted.[41] (Emphasis added) [161] The « air of reality » test calls upon the trial judge to determine whether, based on the evidence as a whole, there is a « real issueto be decided by the jury » and not how the jury should decide the issue.[42] As the Court explained in R. v. Cinous, 2002 SCC 29, [2002] 2 SCR 3, at para. 54: The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence.

That question is reservedfor the jury. See Finta, supra; R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330. The trial judge does not makedeterminations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factualinferences. See R. v. Bulmer, (SCC), [1987] 1 S.C.R. 782; Park, supra. Nor is the air of reality test intended to assesswhether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day.

The question for the trial judgeis whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue. [43] (Emphasis added) [162] With respect to the nature of the evidential burden that rests with the accused, the Court, at para. 52, explained that: The air of reality test is concerned only with whether or not a putative defence should be “put in play”, that is, submitted to the jury forconsideration. This idea was crucial to the finding in Osolin that the air of reality test is consistent with the presumption of innocenceguaranteed by s. 11(

d) of the Canadian Charter of Rights and Freedoms. [163] If the defence establishes that there is an « air of reality » to each of the requirements of the test for duress, the onus then shiftsto the Crown to establish beyond a reasonable doubt that the accused did not act under duress[44]. [164] In deciding whether the defence has an « air of reality », the court is performing a gatekeeper function:[45] In effect, the «air ofreality» test avoids having to consider defences which have been described as meritless, outlandish, fanciful, far-fetched and speculativeand not founded on evidence:[46] [165] In the context of a judge sitting alone the test is only concerned with whether or not a defence should be considered. [47] It isnot whether it should or would be accepted by finding the Crown has not proven beyond a reasonable doubt that the defence does notapply.[48] Tightening up the defense of duress —The reasonable man [166] The accused who raises the defence of duress admits to having broken the law, but claims that he is not liable as he was coercedto do so by threats from another individual.

This is an exception to the general principle of criminal law that those who choose to breakthe law are held responsible for the crimes that they commit. The basis for the defense is that duress overwhelmed an accused’s will,thus depriving him of his freedom of choice. One who is forced to act under compulsion, does not act voluntarily. [167] Despite recognition of this basic principle, the limits of duress are somewhat less elastic, as the defence does not rest on thenotion that a person may commit acts with impunity so long as they are saving themselves[49].

Though one doesn’t expect acts ofheroism from the threatened accused, quick and cowardly acquiescence to the threats should not be accepted either. As a matter of publicpolicy, the accused has an obligation to show reasonable firmness in countering the threats. As the Court explained in Ruzic. Supra, atpara. 62 The common law of duress, as restated by this Court in Hibbert recognizes that an accused in a situation of duress does not only enjoyrights, but also has obligations towards others and society.

As a fellow human being, the accused remains subject to a basic duty toadjust his or her conduct to the importance and nature of the threat. The law includes a requirement of proportionality between the threatand the criminal act to be executed, measured on the objective-subjective standard of the reasonable person similarly situated. Theaccused should be expected to demonstrate some fortitude and to put up a normal resistance to the threat. The threat must be to thepersonal integrity of the person.

In addition, it must deprive the accused of any safe avenue of escape in the eyes of a reasonable person,similarly situated. (Emphasis added) [168] Accordingly, the threats in a case of duress must be of such a kind as to overbear the ordinary courage or firmness of areasonable man placed in the same circumstances of the accused: The courts will take into consideration the particular circumstances where the accused found himself and his ability to perceive areasonable alternative to committing a crime, with an awareness of his background and essential characteristics.

The process involves apragmatic assessment of the position of the accused, tempered by the need to avoid negating criminal liability on the basis of a purelysubjective and unverifiable excuse. [50] [169] In R. v. Ryan, at para 65 , the Court, after quoting the aforementioned passage from Ruzic, added the following comments: In other words, a reasonable person in the same situation as the accused and with the same personal characteristics and experience wouldconclude that there was no safe avenue of escape or legal alternative to committing the offence. If a reasonable person, similarly situated

would think that there was a safe avenue of escape, the requirement is not met and the acts of the accused cannot be excused using thedefence of duress because they cannot be considered as morally involuntary. —Spurious claims [170] In Ruzic, the Court recognized that the defence of duress is likely to be susceptible to « practical risks and problems relating toevidence » given that proof of the duress is likely to rest on little more than the testimony of the accused.

The difficulty in assessing suchevidence and the need to test the reasonableness of such evidence was highlighted by the Court at para. 59 of its decision: The assessment of a defence of duress at common law may carry with it a number of practical risks and problems relating to evidence. At times, as in the case at bar, proof of the defence may rest on little more than the accused’s own evidence. Verification of a spuriousclaim of duress may prove difficult. Hence, courts should be alive to the need to apply reasonable, but strict standards for the applicationof the defence.

In the end, much will depend on the evaluation of the evidence and on the soundness of the instructions given to jurorsduring a jury trial. [171] A decision from the House of Lords, Regina v. Hassan, 2004 UKHL 22 addressed the same practical difficulties in assessing adefense of duress.

At para. 20 of the decision, Lord Bingham of Cornhill quoted with approval the comments made by Professor Sir JohnSmith in another unrelated case: Duress is a unique defence in that it is so much more likely than any other to depend on assertions which are peculiarly difficult for theprosecution to investigate or subsequently to disprove.[51] [172] The Law Lord then added the following comment of his own: T

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