r v. XIOMARA MARTINEZ, 2022 QCCQ 5446

R. c. Martinez 2022 QCCQ 5446 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and Penal Division” N° : 500-01-191050-191

(05) DATE : July 19, 2022 PRESIDED BY THE HONOURABLE LORI RENÉE WEITZMAN, J.C.Q. THE QUEEN Prosecutor v. XIOMARA MARTINEZ Accused JUDGMENT [ 1 ] Xiomara Martinez is charged with four counts of trafficking heroin, on May 1, May 16, June 19 and June 25, 2018 (contrary to section 5(1)

(3) a) of the Controlled Drugs and Substances Act (CDSA)), and one count of conspiracy to traffic in heroin between January 1, 2018 and June 30, 2018 (contrary to section 465

(1) c) of the Criminal Code (Cr. C.)). I. CONTEXT [ 2 ] At the start of the trial, the parties provided a list of admissions tailored to streamline the evidence which allowed the Court to focus on the main question at issue which is Ms. Martinez’s involvement in the traffic of heroin and conspiracy to do so, during the period noted above. The defence admits the existence of a conspiracy to traffic heroin involving ten named individuals but submits that the evidence is insufficient to prove the participation of Ms. Martinez among them.

Wiretap evidence obtained pursuant to valid judicial authorizations was also tendered into evidence by admission, none of which includes any conversation with, or directly about, Ms. Martinez. Several police witnesses testified as to their involvement in an extensive surveillance operation during which 31 heroin purchases were made by undercover officers. [ 3 ] With this backdrop, the Court must determine whether the Crown has proven Ms.

Martinez’s participation in this conspiracy, beyond a reasonable doubt and whether, on the four dates specified, the proof has established beyond a reasonable doubt that she did traffic heroin. [ 4 ] Ms. Martinez chose not to testify, as is her constitutional right. The parties agree that the evidence against her is entirely circumstantial. The theory of the Crown is that she provided heroin to the organization for sale on the street. Ms. Martinez’s position is that the circumstantial evidence falls well short of proof beyond a reasonable doubt of her guilt. II.

THE EVIDENCE AND INFERENCES DRAWN [ 5 ] As part of the list of the agreed facts presented, [1] the parties have admitted that the criminal organization involved in the trafficking of heroin was led by Dany Durand. Managers were in charge of coordinating pickups of the heroin. Christian Nitu was a manager for the organization, responsible for supervising the runners. Marc-André Lagacé-Carrière was in charge of separating packages of 50 g of heroin into smaller bags in order to sell them on the street.

He also had similar manager responsibilities to those of Nitu. [ 6 ] Runners (Maxime Samuel, François Jarry and Simon Leclerc) would supply the drugs to the sellers and collect the profits made on the street.

Each street seller (Stéphane Tardif, Frédéric Bonenfant and Jean-Gabriel Giguère) was given a specific pre- established work shift and had to report to a supervisor (Alain Joly). [ 7 ] The organization would pay $5,750 for each package of 50 g of heroin and replenished its stock approximately every 5 days. [ 8 ] In addition to these admissions, the Crown presented evidence obtained from wiretaps, text messages and physical police surveillance. [ 9 ] It must be noted that since Ms. Martinez was not a party to the intercepted conversations and text exchanges and because none

of the individuals involved in this conspiracy testified, the content of these exchanges is hearsay and presumptively inadmissible against her. However, an exception to that rule exists for statements made and acts done by a person engaged in a conspiracy if the declarations were made or acts done while the conspiracy was ongoing, and in furtherance of the conspiracy. The Court must therefore identify whether the conditions for the application of this exception, as set out by the Supreme Court of Canada in R. v. Carter [2] are present.

The Carter rule [ 10 ] The Supreme Court of Canada explained the exception to the hearsay rule as it applies to co-conspirators as follows: The trial judge must bear in mind that in order to convict an accused upon a charge of conspiracy the jury, or other trier of fact, must be satisfied beyond a reasonable doubt that the conspiracy alleged in the indictment existed, and that the accused was a member of it.

In deciding the issue of membership for the purpose of determining guilt or innocence on the charge contained in the indictment, the hearsay exception may be brought into effect, but only where there is some evidence of the accused’s membership in the conspiracy directly admissible against him without reliance upon the hearsay exception raising the probability of his membership. It is not necessary that the directly admissible evidence be adduced first before any evidence of the acts and declarations of other conspirators may be received.

The exigencies of the trial would make a chronological separation of the evidence impossible. At the end of the day, however, before the hearsay exception may apply, such evidence on the threshold issue of membership of the accused in the conspiracy must be present. [3] [ 11 ] In R. v. Barrow , [4] the Supreme Court of Canada reiterated this rule setting out a three- step process, as follows: 1. The trier of fact must first be satisfied beyond reasonable doubt that the alleged conspiracy in fact existed. 2.

If the alleged conspiracy is found to exist then the trier of fact must review all the evidence that is directly admissible against the accused and decide on a balance of probabilities whether or not he is a member of the conspiracy. 3. If the trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy then he or they must go on and decide whether the Crown has established such membership beyond reasonable doubt.

In this last step, only the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators done in furtherance of the object of the conspiracy as evidence against the accused on the issue of his guilt. Application of the Carter Rule First step [ 12 ] In this case, the parties have admitted the existence of a conspiracy to traffic heroin. Thus, the first of the three steps is established, beyond reasonable doubt. Second step [ 13 ] Following the second step, the Court will review all of the evidence directly admissible against Ms.

Martinez in order to determine whether, on a balance of probabilities she was part of this conspiracy. At this stage of the analysis, the Court may “also consider evidence emanating from co-conspirators as a backdrop, or, to put it another way, for contextual purposes”. [5] [ 14 ] The Court must determine whether the evidence discloses that Ms. Martinez did anything that would make it more probable that she was a member of the conspiracy. The evidence of conversations and texts exchanged between the other members of the conspiracy provide the context within which to analyse the actions of Ms. Martinez.

They are not admissible for truth of their contents but may, however, be used to explain and interpret the actions of Ms. Martinez as she was observed by surveillance officers. As the Québec Court of Appeal held in Langille , [6] the trial judge is not “precluded from considering such wiretap evidence that is hearsay” for the purpose of the “contextual framework” within which to assess the admissible direct evidence against the accused. [ 15 ] The evidence against Ms.

Martinez will be reviewed chronologically, referring to the facts surrounding the observations made by the surveillance team on four different occasions. May 1, 2018: [ 16 ] At 10:18 a.m., Nitu (a manager who supervises the runners) texts Jarry (a runner) to come and see him at 7 p.m. and that his appointment is at 8 p.m. [ 17 ] At 3:52 p.m. Nitu tells Jarry the appointment is moved to “9h” and that he should come to see him at “8h”. [ 18 ] At 7:27 p.m., Nitu gives Jarry the address (1650 apartment 15, St Jean Baptiste) and tells Jarry that he will be waiting for him.

Jarry is seen arriving at that address and leaving four minutes later, at 8:04 p.m. Although he is not overtly carrying anything, he is walking with his left arm close to his body . [ 19 ] At 8:33 p.m., Nitu reminds Jarry of the appointment at “9h”, which will be at Starbucks on Highway 15 on “Marcel”. [ 20 ] Jarry arrives at the Starbucks on Ch. Lucerne at 8:47 p.m. driving a black Lincoln (MKX 2016). He asks Nitu whether it’s “the bathroom or outside”.

Nitu tells him it will be outside. [ 21 ] Jarry and an unknown woman are seen entering the Copper Branch restaurant (at 9:11 p.m.) and then going back to the car (at 9:15 p.m.). [7]

[ 22 ] At 9:18 p.m. a gray Hyundai Entourage driven by Ms. Martinez pulls up next to the Lincoln right next to the Starbucks. She exits the Hyundai and enters the back seat of the Lincoln. One minute later, she gets back into her car and drives away (at 9:19 p.m.). [ 23 ] At 9:29 p.m., Ms. Martinez stops her vehicle on Décarie Boulevard where she leaves it parked and walks to a black Nissan Rogue (X93 NQE) occupied by an unknown man. She is seen putting her arms inside the passenger window. Next, she approaches and speaks to an unknown man who is a passenger in a burgundy Dodge Caravan.

She takes place in the driver’s seat of the Caravan and drives to her address on Alexis Nihon, after dropping off her passenger at another address. [ 24 ] The driver of the black Nissan Rogue also drives to Ms. Martinez’s address. May 16, 2018 [ 25 ] At 2:38 p.m. Nitu tells Jarry that his appointment will possibly be at 9 p.m. At 4:48 p.m. Dany Durand (the head of the organization) asks his brother Simon Durand if everything is settled.

Five minutes later, Simon answers “9”. [ 26 ] At 5:08 p.m., Nitu tells Jarry the appointment is at 10 o’clock and asks him to see him at 9:30 p.m. at the cemetery. [ 27 ] Ten minutes later, Nitu asks Leclerc (a runner) to meet him at 7:45 p.m., that Jarry (“l’autre”) will see him at 9:30 p.m. [ 28 ] At 7:25 p.m., Nitu asks Leclerc where he is. Leclerc answers that he is just arriving on his street.

Two minutes later, Leclerc, driving a blue Kia (X97FZT) arrives at 838 Beaugrand in Repentigny, (this is the home address of Marc-André Lagacé-Carrière who was in charge of separating packages of 50 g of heroin into smaller bags). Nitu gets in the car and they leave. [ 29 ] At 7:43 p.m., the Kia stops close to Nitu’s residence (850 St Jean Baptiste). Nitu walks towards his address and exits five minutes later. He then goes back to the address and is seen exiting again and going back to the Kia.

According to the police observation, he seems to be turning his head and looking around while he was going in and out. [ 30 ] At 8:04 p.m. Nitu texts Jarry to meet the blue Kia at 9:30 p.m. at the Marché aux Puces 5 Étoiles to pick up the money, then at 10 at the “usual place”. He tells Jarry to meet him back at the cemetery. [ 31 ] At 9:26 p.m., Jarry parks the black Lincoln next to the blue Kia in the parking lot of the Marché aux Puces on Metropolitan East. This corresponds to the time and the place as noted above. Leclerc gets out of the Kia and enters the back passenger seat of the black Lincoln.

Two minutes later he gets back into his Kia and both vehicles leave. [ 32 ] At 9:27 p.m., Simon Durand updates Dany Durand that the appointment is now at “10”. [ 33 ] Just before 10:00 p.m., Jarry parks the black Lincoln at the Starbucks on Lucerne. This is evidently the “usual spot”, as it is the same Starbucks where Jarry was seen on May 1. Jarry is with an unknown woman, later identified as his girlfriend, who enters the Starbucks. [8] [ 34 ] At 10:05 p.m. a black Nissan Rogue driven by Ms. Martinez (X93 NQE) parks next to the black Lincoln. The Nissan Rogue is the same car that Ms.

Martinez had approached on Décarie Boulevard on May 1. Ms. Martinez exits the Nissan Rogue and takes place in the back, passenger side, of the Lincoln. After one minute, Ms. Martinez goes back to the Nissan and both vehicles leave. [ 35 ] At 10:16 p.m., Nitu, who had earlier asked Jarry to meet him at the cemetery, asks him how long it will take him to arrive. Jarry answers “15”. [ 36 ] However, Jarry will never make it to the cemetery as he was intercepted by the police, ten minutes after leaving the Starbucks. His car was searched and the police seized 50.06 g of heroin.

As noted above, Jarry was responsible for picking up the heroin (50 g at a time) and bringing it to be separated into smaller bags for sale on the street. [ 37 ] During this time, from 10:33 p.m. to 11:10 p.m., Nitu is seen in the cemetery. He is trying to reach Jarry and he is hiding behind the tombstones. [ 38 ] Following Jarry’s interception, at 11:08 p.m., he calls Lagacé-Carrière (in charge of separating the heroin into smaller bags) and tells him of his arrest and that things did not go well. June 19, 2018 [ 39 ] At 12:00 p.m.

Samuel, a runner for the organization, tells Nitu (a manager supervising the runners) he is one hundred dollars short to make the $5,750 (which is the amount to purchase 50 g of heroin). At 1:32 p.m. Nitu confirms to Samuel that the appointment is at 4h and he suggests to “faire ça dans son char” (i.e., to get into the other person’s car). [ 40 ] At 3:53 p.m., Ms. Martinez, driving a gray Mazda 5, stops next to Samuel in the parking lot of the Guzzo Theater. Samuel enters the car and he is dropped off at a bus stop three minutes later.

Ten minutes later, Samuel is seen in the Metro, taking a purple plastic bag out of his front pant pocket, and then putting it back in his pocket. [ 41 ] At 5:44 p.m., Samuel and Leclerc meet on the street. [9] Samuel gives Leclerc a purple rectangular small bag (identical to what he was holding in the Metro), and receives a white small object from him. They “fist-pump” before going their separate ways. June 25, 2018

[ 42 ] On June 24, 2018, a conversation between Samuel and Nitu indicates that Samuel will be getting “more” the next day. On June 25 th , Nitu and Samuel are still discussing apportioning quantities and collecting money. They expect to get more today from “Alain”. At 2:42 p.m., Nitu tells Samuel the meeting is at 6. [ 43 ] At 5:00 p.m., Ms. Martinez is seen as a passenger in a Land Rover Evoke. She exits the vehicle and takes place as the driver of a Ford Windstar (X52 LTR), and heads to her address on Alexis Nihon.

A little later she is again seen at her address, taking place as the driver in the Ford Windstar with a white plastic bag in her hands. [ 44 ] From there she drives to the Guzzo Theater where Samuel again enters her car on the passenger side, just as he did six days earlier. This meeting takes place at 6:00 p.m. (the meeting time he discussed earlier with Nitu). Samuel spends only a few seconds in the car and then walks to the bus stop. Ms. Martinez leaves in the Windstar. [10] Conclusion on the second step [ 45 ] A review of the evidence allows the Court to conclude that on four occasions, Ms.

Martinez showed up in a car at the time when members of the conspiracy had planned a meeting. Each time she was seen in a car with one of the members of the conspiracy for a very brief moment.

On these four occasions, twice she entered the back seat of the car driven by a runner for the organization for a minute and twice she picked up a runner for the organization only to let him off seconds or minutes later. [ 46 ] Considering the conversations and text exchanges as context and as the backdrop of the activities in furtherance of the conspiracy to traffic heroin, and without resorting to the content of these conversations as proof of what was said, there is, at the very least, evidence on a balance of probabilities that Ms. Martinez was a member of this conspiracy.

Third step [ 47 ] Having concluded on a balance of probabilities that Ms.

Martinez was a member of the conspiracy, the Court must decide if the evidence has established such membership beyond a reasonable doubt, which it will do in the following section. [ 48 ] This question will be decided with reference to the conversations and text exchanges summarized as part of the second step, this time with the hearsay statements in furtherance of the conspiracy being admissible for their truth. [ 49 ] In addition to the conversations reviewed above for context, several admissible hearsay statements are also relevant to the analysis.

These will be outlined below. [ 50 ] On May 1, 2018, when Jarry arrives at the Starbucks at 8:47 p.m. for the 9:00 p.m. meeting, he asks Nitu whether it is “the bathroom or outside”. Nitu tells him it will be outside, adding, “he will recognize you or it will be the woman”. Indeed, Jarry does not enter the Starbucks, but Ms. Martinez approaches his car in the parking lot. While Jarry is parked outside of Starbucks, he receives a text from Nitu at 9:18 p.m. asking if he saw the person (“tu la tu vu”). At 9:20 p.m., one minute after Ms.

Martinez left, Jarry confirms that he has seen the person (“oui la oui”). [ 51 ] On May 20, 2018, Nitu and Leclerc discuss Jarry’s arrest (which occurred four days before). They mention that he had “seen her at 10 sharp”. They mention that Leclerc had given Jarry the money that time. Nitu tells Leclerc that the meeting had been with the “same guys” as usual. [ 52 ] On June 19, 2018, at 3:11 p.m. Nitu asks Samuel if he is on his way and Samuel tells him he will be there in ten minutes.

Nitu asks Samuel if it is the girl that he usually sees (“c’est la fille que tu vois d’habitude”) and Samuel answers yes. [ 53 ] Later that afternoon, after Samuel meets with Ms. Martinez, he meets Leclerc on the street where they are seen making an exchange. Ten minutes later, Samuel confirms to Nitu that he made the transfer and that he received two “normals” (“J’suis allé porter ça à l’autre et il m’a donné 2 normal là”). [ 54 ] A review of several conversations indicates that a “normal” refers to the quantity of heroin sold on the street.

There are three different sizes available, and these are sold in different size bags according to the weight of the drugs. III. ANALYSIS [ 55 ] The issue of Ms. Martinez’s participation in the conspiracy must be analyzed according to the framework presented by Justice Moldaver speaking for the Supreme Court of Canada in R. v.

J.F : [52] In my view, where a person, with knowledge of a conspiracy (which by definition includes knowledge of the unlawful object sought to be attained), does (or omits to do) something for the purpose of furthering the unlawful object, with the knowledge and consent of one or more of the existing conspirators, this provides powerful circumstantial evidence from which membership in the conspiracy can be inferred. To be precise, it would be evidence of an agreement, whether tacit or express, that the unlawful object should be achieved.

Ultimately, that issue is one for the trier of fact, who must decide whether any inference other than agreement can reasonably be drawn on the evidence. But, as I will explain, the case at hand illustrates how a constellation of such facts can make a finding of membership a virtual certainty. [ 56 ] Because the evidence against Ms. Martinez, regarding her knowledge of and participation in the conspiracy as well as the four alleged instances of trafficking heroin, is entirely circumstantial, the Court must apply the test set out by the Supreme Court of Canada in R. v. Villaroman .

Thus, her guilt on these counts must be the only reasonable conclusion available based on the totality of the

evidence. [11] If any other reasonable inference can be drawn on this evidence compatible with innocence, then she must be acquitted. [ 57 ] The Québec Court of Appeal summarized this principle in Dubourg c. R. [12] explaining that a guilty verdict based on entirely circumstantial evidence can only be reasonable where a proper appreciation of all of the evidence leads to the conclusion that the only reasonable inference is the guilt of the accused . [ 58 ] The Court will thus review all of the evidence linking Ms.

Martinez to the conspiracy in order to determine whether her guilt has been established beyond a reasonable doubt. [ 59 ] On four separate occasions, Ms. Martinez is the person who showed up at the time and place designated by individuals involved in the conspiracy to traffic heroin. [ 60 ] On May 1, 2018 , after her very brief meeting outside Starbucks in the backseat of Jarry’s car (a runner for the organization), Ms. Martinez drops off her car and leaves it on Décarie Boulevard. She then meets a person in a Nissan Rogue where she is seen putting her arms inside the passenger window.

She drives home in a different car. Although no exchange is observed in the Lincoln, the circumstantial evidence establishes that the purpose of the meeting was related to the conspiracy to traffic heroin. [ 61 ] On May 16, 2018 , the police observe Nitu and Leclerc in a Kia together as they go to Nitu’s address around 8:00 p.m. Nitu then texts Jarry that he should meet the Kia at the Marché aux Puces 5 Étoiles at 9:30, to pick up the money.

Nitu also confirms to Leclerc that he should be looking for a black Lincoln. [ 62 ] At 9:26 p.m., the two cars, the black Lincoln and the blue Kia, meet in the parking lot of the Marché aux Puces 5 Étoiles. The circumstantial evidence establishes that when Leclerc enters the back passenger seat of the black Lincoln it is to collect the money as discussed. Both cars both leave two minutes later.

Ten minutes later, Nitu texts Leclerc to verify that the meeting has taken place, and Leclerc confirms that it has. [ 63 ] Jarry then drives to the “usual spot” that is, the Starbucks [13] , at the designated time, (10:00 p.m.). Ms. Martinez shows up there, five minutes later. This time she is driving the Nissan Rogue that she had approached after leaving Starbucks on May 1st.

She enters the backseat of the black Lincoln with a purse in her hands and spends one minute there before leaving in her own car. [ 64 ] The conversations indicate that the earlier meeting at the Marché aux Puces was for Leclerc to give Jarry the money for the purpose of purchasing heroin. Although no exchange is observed between Jarry and Ms. Martinez in the back of the Lincoln, minutes after Ms. Martinez leaves the car, Jarry is stopped by the police who seize 50.06 g of heroin in his vehicle.

This amount of heroin coincides with the admission by the parties, that the organization replenished its stock of 50 g of heroin approximately every five days. [ 65 ] On June 19, 2018 , another meeting is planned, in a conversation between Samuel and Nitu referring to Samuel being 100 short of “$5,750”, the amount needed to purchase 50 g of heroin. Perhaps related to Jarry’s arrest in May, which occurred after a meeting at the usual spot, i.e. Starbucks, the meeting place has changed.

Conversations and texts indicate that the meeting is to take place between Samuel (a runner) and “the woman they usually see” at 4:00 p.m. [ 66 ] At 3:53 p.m., Ms. Martinez picks up Samuel in the parking lot of the Guzzo Theatre and then drops him off at a bus stop three minutes later. No exchange is observed but Samuel is seen 10 minutes later in the Metro holding a purple plastic bag. An identical bag will be handed to Leclerc about two hours later in exchange for a small object.

Ten minutes after this exchange with Leclerc, Samuel confirms to Nitu that the transfer was made and they discuss the apportioning of heroin. [14] [ 67 ] On June 25, 2018 Samuel is to be at a meeting at 6:00 p.m. Ms. Martinez is seen entering a Ford Windstar with a white plastic bag in her hands and driving once again to the Guzzo Theatre where she meets Samuel at 6:03 p.m. Once again, Samuel enters her vehicle and then is dropped off 30 seconds later. A few minutes after that, at 6:11 p.m., Samuel updates Nitu that it is done. [15] [ 68 ] On each of the four occasions, Ms.

Martinez showed up at the meeting that had earlier been discussed by the members of the conspiracy, twice at the Starbucks and twice at the parking lot of the Guzzo theatre. The conversations and text exchanges between the members of the conspiracy are very short and sometimes in code. They never refer explicitly to the traffic of heroin. Yet an overview of all of the evidence indicates quite clearly that the meetings were in furtherance of the conspiracy to traffic heroin. The participation of Ms. Martinez on each occasion is brief. There is no direct evidence of an exchange of heroin for money.

Nevertheless, a review of the entirety of the evidence points exclusively and inextricably to only one conclusion: that Ms. Martinez was a member of this conspiracy and that she went to these four meetings as a participant, actively involved in this conspiracy to traffic in heroin. [ 69 ] As to the four counts of trafficking, the Crown must prove beyond a reasonable doubt that Ms. Martinez did traffic, as it is defined in the CDSA: Traffic means, in respect of a substance included in any of Schedules I to V, (

a) to sell, administer, give, transfer, transport, send or deliver the substance, (

b) to sell an authorization to obtain the substance, or (

c) to offer to do anything mentioned in paragraph (

a) or (b) [ 70 ] The Court must determine whether, on each of the four occasions of the meetings with a runner, the circumstantial evidence leads to the inexorable conclusion that Ms. Martinez “sold, administered, gave, transferred, transported, sent or delivered heroin”.

[ 71 ] Despite the theory of the Crown that these meetings were meant to replenish the heroin for sale on the street, the evidence does not establish beyond a reasonable doubt the exact purpose of the meetings and what took place at each one. [ 72 ] On May 1, 2018, after the meeting with a runner, Ms. Martinez is seen changing cars and putting her hands inside the passenger window of a car that was waiting for her on the street. Yet no item is seen being transferred nor was any transfer observed at the meeting in the Lincoln.

The evidence is not sufficient to conclude that she sold (or transferred or transported or delivered) heroin, beyond a reasonable doubt. [ 73 ] On May 16 2018, there is similarly no direct evidence of a transfer of any items between Ms. Martinez and the runner. Although only minutes after the scheduled meeting Jarry is arrested with almost exactly 50 g of heroin in his car (the amount that would be replenished every five or six days), the evidence does not establish beyond a reasonable doubt that Jarry received that heroin from Ms. Martinez.

Again, the purpose of their meeting is not in evidence and it cannot be said that the only rational inference to be drawn was that Martinez supplied the heroin to him. [ 74 ] On June 19, 2018, Samuel is seen leaving Ms. Martinez’s car and is then seen in possession of a purple plastic bag that he transfers to another runner. The circumstantial evidence establishes that this bag contained heroin, but it does not establish, beyond a reasonable doubt, that Martinez gave Samuel that bag at their meeting. [ 75 ] On June 25, 2018, after meeting with Ms. Martinez, Samuel confirms to Nitu that “it is done”.

Later that evening, Samuel tells Nitu that he gave them “$5,750”, [16] which corresponds to the amount paid for 50 g of heroin. The circumstantial evidence permits an inference that Samuel met with Ms. Martinez for the purpose of purchasing heroin and that the transaction was completed for the usual amount of $5,750 , but it cannot be said that this is the only rational inference to be drawn from the meeting between Ms. Martinez and Samuel. [ 76 ] Ms. Martinez’s meetings in furtherance of the conspiracy might have involved some type of participation or help other than her furnishing drugs to the organization.

It is not for the Court to speculate what this involvement might have been: it is sufficient to recognize that the evidence does not establish beyond a reasonable doubt that she sold drugs to them. IV. CONCLUSION [ 77 ] A review of all of the circumstantial evidence presented leads the Court to find that the only reasonable and logical conclusion, without resorting to conjecture and speculation, is the guilt of Ms. Martinez, beyond a reasonable doubt on the charge of conspiracy.

No other rational inference can be supported by this evidence. [ 78 ] On the four counts of trafficking, the Court is left with a reasonable doubt that Ms. Martinez trafficked in heroin on each of those dates. FOR THESE REASONS, THE COURT FINDS Xiomara Martinez guilty of count 5; ACQUITS Xiomara Martinez of counts 1-4. __________________________________ LORI RENÉE WEITZMAN, J.C.Q. Me Marie-France Plante Me Mathieu Longpré Attorneys for the Prosecution Me Joseph Elfassy Attorney for the Defence Hearing Dates: 3, 4, 5, 6, 9 and 10 May, 2022