R v Lugela, 2023 ABCJ 288

In the Alberta Court of Justice Citation: R v Lugela, 2023 ABCJ 288 Date: 20231221 Docket: 220227987P1 Registry: Calgary Between: His Majesty the King - and - Phillipe Lugela Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4 . By Court Order, information that could identify ME must not be published, broadcast, or transmitted in any way. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Decision of the Honourable Justice P.J. Mason When I gave my judgment in court, I indicated I would be providing written reasons in due course. These are those reasons, and they incorporate the outcome of discussions between counsel and the court on Count 19 of the Information on October 19, 2023.

INTRODUCTION [ 1 ] The Accused, Phillipe Lugela was charged with a total of 21 offenses including one count of robbery with a restricted firearm, kidnapping, firearms offences, possession for the purposes of trafficking in controlled substances, and breaches of release order for a series of allegations stemming from events that took place over the course of two days in January 2021. [ 2 ] Mr. Lugela has been in custody since his arrest. He pled not guilty, and the matter was set for trial. Preliminary applications were dealt with by this Court last year, and the trial was heard in May and June of this year.

Final argument was received in early September. The matter was adjourned to today’s date for the decision due to my schedule. [ 3 ] Counsel for the Accused argued that Mr. Lugela’s

section 10(

b) Charter rights had been violated by police conduct and sought to have evidence, that police collected in a subsequent search warrant of Mr. Lugela’s residence, excluded from the trial proper. The Court found that there was a breach of Mr. Lugela’s right to counsel under

section 10(

b) of the Charter of Rights and Freedoms (“the Charter ”) for the delay in allowing him to access counsel but, after conducting a Grant analysis under section 24(2) of the Charter the Court was not persuaded to exclude the evidence gathered by the police in their search warrant of the Lugela residence. [ 4 ] The Crown called 13 witnesses in total in the voir dire and the trial. Mr. Lugela called no evidence on the voir dire, nor on the trial.

VERDICTS [ 5 ] The Crown conceded that they had not proven their case as it related to counts 14 and 21. Accordingly, he was found not guilty of those offences and this Court had 19 offences to address in this decision. [ 6 ] Through counsel, Mr. Lugela maintained his plea of not guilty to possession for the purpose of trafficking for a number of drugs but conceded simple possession of those substances including Percocet, methamphetamine, fentanyl, and cocaine on counts 11, 16, 17 and 18. [ 7 ] For the reasons set out below, the Court has found Mr.

Lugela guilty of the following charges: Counts 2 – 10 including various weapons charges and breaches of release order, Count 11 on the lesser included offence of simple possession of Percocet, Count 15 the possession of the Smith and Wesson handgun with ammunition, and Counts 16-18, on the lesser included offenses of simple possession of methamphetamine, fentanyl, and cocaine. [ 8 ] On most of the other counts not referenced already, the court found Mr. Lugela not guilty, namely: Count 1 – Robbery, Count 12 careless storage of the FX-9, 9mm rifle without reasonable precautions.

Count 13 possession of the FX-9, 9mm rifle without a license. Count 20 – use of a restricted firearm in kidnapping ME. [ 9 ] That leaves one final count on which the Court sought further comment from counsel, based on comments towards the end of the oral arguments: Count 19 – possession of cannabis for the purpose of distribution pursuant to s 9(2) of the Cannabis Act of Canada . [ 10 ] Counsel for Mr. Lugela conceded simple possession of the other substances on the basis that they were found in bedroom 2, which was occupied by Mr.

Lugela. [ 11 ] At just over 244 grams of the substance, which was valued by the Crown’s drug expert at in excess of $2400, it was unclear to me as whether Crown was still seeking a conviction on this count (as there was some vague mention about a lesser offence)? Or was counsel for Mr. Lugela prepared to concede that cannabis in this amount was sufficient evidence to support a conviction under this

section of the Cannabis Act ? Canadians are able to possess cannabis within the allowable limits and the evidence before the Court supported an inference that some of it may have been lawfully obtained but even then, this was a substantial amount of cannabis. I sought further comments from counsel at the end of my oral remarks and the Crown decided to enter a stay on that offence. FACTS [ 12 ] The background information leading up to the charge was essentially uncontested.

At midnight and/or into the early morning hours of January 6, 2021, an individual met with the complainant, ME (the initials are used pursuant to the publication ban imposed before the trial proper began), in the parking lot of a school in Northeast Calgary. [ 13 ] As a result of that interaction, ME reported an alleged robbery (with the use of a firearm), to the Calgary Police Service (CPS) through several phone calls on January 6 and a subsequent interview. ME identified the Accused as the person who robbed him. As a result of the report of that robbery, the CPS began an investigation.

In the course of that investigation, they interviewed ME. [ 14 ] Based on the information obtained in their investigation, Mr. Lugela was the subject of CPS surveillance officers for several hours on January 7, 2021. The resources also included the use of the CPS helicopter, HAWC. Mr. Lugela was operating a motor vehicle registered to his sister.

He was followed by many members of the CPS and, ultimately, was arrested in a high risk take down in Airdrie, Alberta via the tactical squad (TAC) of CPS. [ 15 ] A subsequent search of the vehicle, pursuant to a search warrant dated January 8, 2021, located a significant amount of Canadian currency and a loaded Smith and Wesson MP9 handgun inside a black bag found inside a “Skip the Dishes” bag in the trunk of that vehicle. Evidence of that search was captured in part through photographs found in Exhibit 20 . [ 16 ] Court makes the following findings of fact: 1.

The Court was satisfied that ME correctly identified Mr. Lugela as the person who interacted with him the night of the alleged robbery. 2. Based on the evidence of the surveillance officer Howden, and the video footage he shot during surveillance, I am satisfied that Mr. Lugela put the black bag in the trunk of the vehicle at the Husky gas station located at Coventry Drive at approximately 2:27pm on January 7, 2021.

3. Exhibit 7 contained two DNA reports, the first which indicated there was DNA of mixed origin on the gun/magazine of the with a profile of the major component being identified as Male 1. The second report determined that the DNA profile of Male 1 was the same as the known DNA profile of Mr. Lugela’s DNA with the possibility of selecting an unrelated person at random being assessed at 1 in 8 quintillion. 4. Mr. Lugela was in possession of the Smith and Wesson MP9 handgun with ammunition based on the following pieces of evidence: a.

ME identified that specific weapon to the CPS in significant detail and indicated Mr. Lugela was in possession of it. b. The surveillance video ( Exhibit 11 ) and the testimony of the CPS surveillance officer was sufficient to prove that Mr. Lugela had put the black “satchel or man” bag in the trunk of the vehicle he was driving at 2:27pm. c. The proximate temporal connection between the black bag being put in the trunk of the vehicle at 2:27pm and the arrest of Mr. Lugela at 3:12pm in Airdrie. d.

Despite extensive surveillance resources being deployed there was no evidence that anyone else accessed the trunk between the time Mr. Lugela placed the black bag in the trunk and the time of his arrest. e. The vehicle Mr. Lugela was driving and using that day was seized at the time of the arrest and taken to a secure location where it was searched by the CPS the next day. f. The execution of the search warrant of the vehicle led to the recovery of the same model of Smith and Wesson handgun, loaded with ammunition, as described by ME to the CPS. g.

That same Smith and Wesson handgun was found in a black bag of a similar description to the one given by the surveillance officer. h. The placement of the gun in the black bag and in the trunk was a form of concealment. The black bag was further hidden inside a Skip the Dishes bag along with the identification of a third party. i. Mr. Lugela’s DNA was recovered on the handgun itself, albeit the DNA was of mixed origin. His DNA was the major component of the mixed DNA sample. 5. At the time of his arrest, Mr. Lugela was bound by a firearms prohibition order. 6. At no relevant time was Mr.

Lugela the holder of a license for a restricted weapon. 7. Mr. Lugela was bound by a release order with two weapons prohibitions – both referenced firearms and one referenced ammunition. 8. CPS had obtained a search warrant for Mr. Lugela’s residence (“the Residence”) at 355 Coventry Road NE, Calgary AB. Mr. Lugela lived at the Residence with his parents and several siblings. That search warrant was authorized on January 6, 2021. The execution of that warrant took place on January 7, 2021, after Mr. Lugela had been arrested in Airdrie. 9.

During the execution of that search warrant on the Residence, CPS searched in the basement which included two bedrooms, a common room, a laundry/utility room, and a closet. They located, inter alia , several items including the following: a. 3.2 grams of powder cocaine b. 133 grams of methamphetamine c. 1.2 grams of fentanyl d. 29.8 grams of carfentanil e. 30 capsules of MDA, totaling 7.2 grams f. 244.4 grams of dried cannabis g. 21.5 grams of phenacetin h. Packaging material i. Two functional digital scales j. $4000 in Canadian bank notes k.

Live ammunition for a variety of firearms including shotguns and handguns l. A suppressor for a firearm m. An FX-9, 9 mm caliber rifle. 10. These items were found throughout the various locations in the basement. 11. Mr. Lugela admitted he was the person who normally occupied Bedroom 2.

12. Mr. Lugela did not have exclusive access to Bedroom 1, the common room, the laundry/utility room and the closet. ISSUES [ 17 ] Has the Crown proven the essential elements of the offences charged to Mr. Lugela before the Court? ANALYSIS Counts 2-10 [ 18 ] As will be set out in greater detail below, while I was left in doubt on the charges of robbery and kidnapping from ME’s testimony related to his interaction with Mr. Lugela that led to him reporting a robbery, I did accept some of his testimony as valid.

As stated above, I do accept the part of ME’s evidence about a specific model of Smith and Wesson handgun that Mr. Lugela had. ME identified that specific weapon to the CPS in significant detail. [ 19 ] I have also set out that much of the evidence that convinced me that Mr. Lugela was in possession of the Smith and Wesson handgun that found in the trunk of the vehicle he was using when he was arrested.

Based on that evidence I was satisfied that he had knowledge, care and control of the handgun. [ 20 ] I do note that an unidentified female did access the trunk earlier in the day and, although that showed that others could access the trunk, it was not sufficient to raise a reasonable doubt about Mr. Lugela’s possession of the gun based on the totality of facts available to the Court. [ 21 ] The CPS video surveillance was consistent with the placement of a black bag in the trunk of the vehicle.

While the Court could not definitively identify it as a black bag the surveillance officer noted, nonetheless the description of the black bag by that officer was remarkably similar to the black bag that was found in the trunk and seized by CPS. I was satisfied it was one and the same bag. [ 22 ] The fact that the black bag was found in a Skip the Dishes bag clearly visible when the trunk was first opened by CPS was not entirely unexpected. It was concealed further, yes, but Mr. Lugela could have easily inserted the black bag into the Skip the Dishes bag when he put the black bag in the trunk of the vehicle.

Additionally, it was consistent with Mr. Lugela seeking to conceal the weapon within the trunk itself. Given the fact that he was dealing with a loaded semi-automatic handgun, it was not surprising that he would make such a choice. [ 23 ] It should be noted that a bank card in the name of a third party was found in the bag with the gun, but this was not sufficient, in and of itself, to displace the finding that Mr. Lugela was in possession of the handgun based on all the evidence available to the Court. [ 24 ] As a result of those factual findings set out above the Crown has proven Count 2. Mr.

Lugela was bound by a firearms prohibition and was in possession of a firearm in contravention of that order. [ 25 ] As to Count 3, the photographs in Exhibit 20 clearly showed the loaded handgun being transported in a trunk, inside two soft cover bags, without a trigger lock and easily accessible to anyone who came across the item.

It was not stored as required by law. [ 26 ] For Count 4, there is an acceptable inference that this handgun, loaded, in its ready-to-fire state, without any precautionary locks or storage, concealed in a bag, was possessed for a purpose that was dangerous. [ 27 ] Count 5, the handgun was concealed, first in the black bag, second in the Skip the dishes bag, and third in the trunk of the vehicle. [ 28 ] Count 6, Mr. Lugela did possess the handgun and did not possess a valid restricted firearms license for the handgun. [ 29 ] Count 7, Mr.

Lugela was observed in the vehicle, driving the vehicle, and placing the black bag in the trunk of the vehicle. He was an occupant of a vehicle where he knew the handgun was in the black bag in the trunk. [ 30 ] Count 8, Mr. Lugela was, at the relevant times, bound by a release order that prohibited him from possessing “any knives, clubs, firearms, baton, anything that can be designed for use as a weapon…”. The possession of the handgun was in contravention of that condition. [ 31 ] Count 9, stemmed from a second condition in the same release order that bound Mr.

Lugela, and which prohibited him from possessing “any firearm, restricted or prohibited weapons, replica firearms, crossbows, ammunition and explosives or explosive devices…” His possession of the handgun and ammunition was in contravention of that condition. [ 32 ] Count 10, Mr. Lugela was bound by a release order with a curfew. Based on the accepted evidence of ME, the court was satisfied beyond a reasonable doubt that Mr. Lugela was in breach of that order. The FX-9 Rifle Charges [ 33 ] The FX-9 Rifle charges stem from the seizure of the weapon from Bedroom 1 in a case under a bed. Mr.

Lugela admitted occupying Bedroom 2. He did not make the same concession for Bedroom 1. This was an unlocked bedroom in the basement of the house. Mr. Lugela could have had access to the bedroom but so could others. The gun was not in plain sight but in a case, under a bed.

[ 34 ] Without putting too fine a point on this, Mr. Lugela comes from a notorious criminal family in Calgary. Two of his brothers have been sentenced to lengthy penitentiary sentences for murder using firearms. Another brother was well known to the CPS. Mr. Lugela himself was a client of the Serious Habitual Offender Program (SHOP) unit of CPS which targeted known serious habitual offenders in the community for extra surveillance and preventative enforcement. The CPS was well aware of the Lugela family. For obvious reasons, Courts must be particularly careful to avoid a bias against Mr.

Lugela for the prior acts of himself or others in his family when dealing with matters before them. That would lead to unfair proceedings where he could be found guilty because of bad character or guilt by association. That will not be the case here. [ 35 ] Clearly the FX-9 was found in Bedroom 1, but an important question remained: who put it there? Several other people could have put the FX rifle under the bed without Mr. Lugela’s knowledge. There was insufficient evidence to conclude that it could only be Mr.

Lugela who put it there. [ 36 ] The Court also noted that there was a box for storing a Smith and Wesson handgun found under the same bed. Given that Mr. Lugela was already found to possess a Smith and Wesson handgun it would be easy to draw a conclusion that he must have put the box in that location. Tempting though that might be, the location of the box in and of itself, was not sufficient to conclude that Mr. Lugela put the box there. The DNA testing of the handgun showed that others handled it. Given the nature of his family and associates, another person could have put the box there without his knowledge.

I do accept that the location of the box was deeply suspicious. In fact, even if it may be more likely than not that Mr. Lugela put the rifle, the ammunition and the other assorted items under the bed that does not meet the threshold of proof beyond a reasonable doubt. Accordingly, the Court cannot find him guilty of these charges. [ 37 ] There was also additional ammunition in the form of 9mm bullets found in the closet. As with the FX-9 rifle and other items found in Bedroom 1, and the items found in the laundry room, these items could have been placed there by a person other than the Accused.

It was troubling that some of the ammunition appeared to match the ammunition found in the handgun from the car. However, ammunition would never be readily distinguishable as belonging to the same batch once it was removed from its original packaging. Trafficking Charges [ 38 ] Similar issues arose on the possession for the purpose of trafficking charges. The items discovered by the CPS in the execution of the search warrant on the Residence were numerous and troubling.

The drug expert report was comprehensive, but his conclusion was based on the totality of the evidence seized by the CPS throughout the basement of the Residence. [ 39 ] There was a veritable pharmacy of controlled substances found in the home. Much of it was found in the laundry room. Items associated with the Accused were also found in the laundry room. However, the police only identified and collected material in that room that was associated with the Accused. There may well have been items associated with other individuals that were not catalogued.

This could have given a potentially skewed view of who controlled the laundry room. Nonetheless it was a room which anyone in the house could have accessed. [ 40 ] For the purposes of this analysis, I have discounted the younger children (aged approximately 9 and 13) in the home. However, I had no reason to discount the other adult members of the family who resided there and/or the adult members of the family who had not resided there.

Given the notorious nature of the clan Lugela, it was equally possible that someone other than the Accused could have been responsible for the placement of the drugs and cash. [ 41 ] The Court was mindful of the taped and translated calls between the Accused and his sister. These conversations appeared to show that he was aware of a bundle of cash that was composed only of $5 bills as was found in the laundry room.

It was always going to be a difficult thing for the Crown to establish ownership of a bundle of cash stored in an unusual way, and in an unusual location when there were multiple people who lived together and any of them could have been the owners of that bundle.

To my mind, there was insufficient evidence of the provenance of the bundle of cash that would distinguish it as belonging to this Accused. [ 42 ] Again, it was perhaps even probable that these items were put in the various locations by the Accused, but not to the level of proof beyond a reasonable doubt. [ 43 ] Once the drug expert was given a hypothesis that dealt only with the contents of Bedroom 2, he was not able to conclude that the substances were possessed for the purposes of trafficking.

Accordingly, despite the obvious suspicions the Court (and others) may have had, the evidence did not meet the very high threshold of proof beyond a reasonable doubt. [ 44 ] The Court accepted Mr. Lugela’s admission that he possessed the drugs in Bedroom 2 and accordingly finds him guilty of the lesser and included offences of the simple possession charges under the Controlled Drugs and Substances Act. Robbery and Kidnapping [ 45 ] The vast majority of the evidence regarding the robbery and kidnapping charges came from ME.

The Court was cognizant of the CCTV video with the apparent white towel evidence that corroborated some of ME’s version of events, but this was evidence where the relevance of that material emanated directly from ME’s description of what occurred that night. [ 46 ] ME was a curious witness. His version of events had him attending a dark, empty parking lot to pick up a number of video game consoles. He conceded he knew he might be buying stolen merchandise. The deal was brokered by a friend, and he was expecting to meet a stranger.

To his surprise the person who approached his vehicle was someone he knew from high school, Mr. Lugela. [ 47 ] His knowledge of Mr. Lugela was – on his version – not substantial. They both attended the same school but did not know each other particularly well. He was aware of Mr. Lugela’s involvement in crime. ME denied smoking drugs with Mr. Lugela despite

using the phrase “smoked up.” His explanation that “smoked up” meant just cigarettes was unusual. It gave the impression that he was trying to minimize his involvement with Mr. Lugela in earlier times. [ 48 ] ME gave self-serving answers about not being involved in crime. Counsel for Mr. Lugela pointed out that ME was in custody on serious charges and ME became defensive and argumentative.

It gave the impression that he was trying to minimize his own troubles despite telling the Court that he was not involving himself in crime. [ 49 ] ME also gave inconsistent and contradictory answers about his use of electronic messaging and social media interaction with Mr. Lugela after their interaction. At one point he said he messaged Mr. Lugela but then also said the message didn’t go through. He also described being a follower of Mr.

Lugela on a social media platform but then not being able to direct message him because he was blocked. [ 50 ] ME’s description of how things unfolded once the handgun was produced was subjected to significant cross examination. That cross examination highlighted the difficulty ME would have had in seeing the small, precise, black markings found on an all-black handgun in a moving car, while he was driving … at night. ME said he could see the markings because of the illumination of the dashboard of his car.

I accepted that there would be significant ambient light in the car, but it was more difficult to accept that he could see both sides of the gun so clearly in those conditions whilst he was driving on a significant public road where the speed limit is 70 km/h. [ 51 ] Nonetheless, I was satisfied that ME had knowledge of Mr. Lugela having such a weapon. [ 52 ] ME’s reaction to the gun was interesting. People react to danger in different ways. When he said he was not afraid of the gun, that seemed odd but, perhaps, not inconceivable, in all the circumstances. [ 53 ] ME’s reporting of the robbery was unusual.

In the first 911 call he reported being robbed but seemed more interested in whether he got his money back. Some of this may have been down to the fact that he was directed to report the matter online (surprisingly), despite calling in a robbery and that he knew who had done it. The nature of this interaction could have been due to the fact that, based on what he told the 911 call taker, he was no longer in immediate danger. [ 54 ] ME then called back a second time and described being robbed but he also said the person ran off with his money.

He then gave inconsistent information about how many video game consoles he was buying and how much they would cost. What he described in this second call was Mr. Lugela going to get the video game consoles from another car and taking off. That call ended when 911 said that they would send someone to his residence to speak to him. [ 55 ] ME then called a third time and said, “someone armed robbery me basically” and complained that CPS was taking so long. It was only in this third call that first mentioned that Mr. Lugela had pulled a gun on him.

It gave the impression that ME was escalating the violence associated with the interaction as way to get a faster response from the police. [ 56 ] Further, ME’s testimony in court was significantly at odds with the different versions he gave on the 911 calls. Most courts are used to minor variations of a version of events over time.

However, in this case there were three incomplete versions that gave a variety of information that seemed different in nature given to the 911 call takers and then a more comprehensive but somewhat contradictory version given in court. [ 57 ] A more troubling part of his evidence was the message he sent to Mr. Lugela at the end of the police interview. After giving the statement, ME was left in the interview room on his own and said: “fuck you Philly I know you’re going to see this.

I told you not to fuck me over when I was coming to pick the shit up … I told you not to then, you fucking lied to me.” [ 58 ] This statement, on its face, was a further contradiction of ME’s version of events. At the very least, it showed a prior understanding of who he was meeting and ME’s concern about the possibility of being ripped off in advance of the meeting which made the choice of meeting place all the more curious. [ 59 ] When taken as a whole, ME’s testimony was difficult to accept.

It may well be that his money was taken from him, or even that he was robbed, that night but his changing versions over the course of the 911 calls, the information he supplied in the police interview, and his viva voce evidence made it difficult to accept the armed robbery version. Again, it may well be that ME was the victim of a crime, but the Court was not satisfied beyond a reasonable doubt that he was the victim of an armed robbery. [ 60 ] Intertwined with doubt about ME’s credibility on the armed robbery was the doubt about ME’s credibility on being taken to the Gold’s gym location against his will.

While this Court may have harbored grave suspicions about Mr. Lugela’s conduct on the night, it was not sufficient to meet the very high test of proof beyond a reasonable doubt. Heard on the 19 th day of October, 2023. Dated at the City of Calgary, Alberta this 21 st day of December, 2023.

P.J. Mason A Justice of the Alberta Court of Justice Appearances: D.Spaner; W.Tran for the Crown R.Snukal for the Accuse d