R. v. Shields, 2014 NSPC 21

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Shields, 2014 NSPC 21 Date: May 30, 2014 Docket: 2408446, 2408452, 2408443, 2408449 Registry: Halifax Between: Her Majesty the Queen v. Kyle Shields and Patrick Scott TRIAL DECISION (some identifying information has been removed) Judge : The Honourable Judge Anne S.

Derrick Heard: December 2 – 13, 2013; January 6, 7, 9, 31, February 17, 18 and 20, 2014 Decision: May 30, 2014 Charges: section 5(1) of the Controlled Drugs and Substances Act , and section 465(1) of the Criminal Code of Canada Counsel: Mark Donohue and Jeffrey Moors, for the Crown Brad Sarson for Kyle Shields; Trevor McGuigan for Patrick Scott i TABLE OF CONTENTS Page Introduction .............................................................................................................................. 1 The Organizational Structure of this Decision...................................................................... 2 The Case against Kyle Shields and Patrick Scott .................................................................. 2

PART 1 – First Principles: The Presumption of Innocence and Reasonable Doubt .......... 2

PART II – Introducing the Targets and the Evidence of Identity ....................................... 3 Authorizations to Intercept Private Communications......................................... 3 Voice Identification – General ........................................................................... 4 Voice Identification – Kyle Shields ................................................................... 4 The Police Interview of Kyle Shields.......................................................... 6 BBM Messaging.................................................................................................. 8 Kyle Shields’ Vehicles ....................................................................................... 9

PART III – The Expert Evidence of Sgt. Gordon Vail......................................................... 9

Qualifying the Drug Trafficking Expert ............................................................. 9 Sgt. Vail’s Qualifications ................................................................................. 11 Sgt.

Vail’s Preparations .................................................................................... 15 Drug Distribution Networks ............................................................................ 15 Categories of Traffickers .................................................................................. 16 Trafficking Cocaine and the Practices of “Stepping” on, “Shorting”, and “Fronting” .............................................................................. 16 Stash Houses..................................................................................................... 18 Guarded Conversations and Coded Language ................................................ 18 ii Keeping Accounts – Cash and Score Sheets ................................................... 19 The Use of Phones ........................................................................................... 19 Pricing Cocaine Hydrochloride and Crack Cocaine ........................................ 19 Trafficking Cannabis Marijuana....................................................................... 20

PART IV – The Admissibility of the Intercept Evidence................................................... 21 A Principled Analysis – Necessity and Reliability ............................................. 22

PART V – Circumstantial Evidence and the Drawing of Inferences ............................... 23 The Law of Inferences....................................................................................... 23 Evidence of Illegality ....................................................................................... 24 The Only Rational Inference is Illegality ......................................................... 28 Pieces of the Puzzle .......................................................................................... 29 The Value of Trusted Associates ............................................................ 30 The Stash House at 1980 St.

Margaret’s Bay Road ............................... 30 The Search of Apartment 12A, 1980 St.

Margaret’s Bay Road ............. 31 Kyle Shields and the Stash House.......................................................... 32 Exhibit 10 – the Nissan Maxima Tracking Log ...................................... 37 The Practice and Mechanics of Re-Supplying ................................................. 39 Transporting for Resale or Distribution is Trafficking ..................................... 74 Does the Evidence Prove Cocaine?.................................................................. 74 The Meaning of “Minutes”, and Drug Debt Evidence ........................... 76 The Search of […] Sapphire Crescent, Lower Sackville ....................... 103 Drawing the Inference that Kyle Shields Was Trafficking Cocaine .............. 104 iii

PART VI – “Bridgewater” Pat ............................................................................................ 104

The Intercepts ................................................................................................. 104 Drawing the Inference that “Bridgewater” Pat was Trafficking in Cocaine . 126 Is “Bridgewater” Pat Patrick Scott? .............................................................. 129 Voice Identification – Patrick Scott ..................................................... 130 Subscriber Name Evidence ................................................................... 133 Police Surveillance Following Up Intercepts Arranging a Meet ........... 133 The Weight to be Given to the Identification Evidence ....................... 134 Physical Appearance Evidence ............................................................. 135

PART VII – Were Kyle Shields and Patrick Scott Involved in a Conspiracy to Traffic Cocaine? ................................................................................................................... 135 The Law of Conspiracy .................................................................................. 135 Has the Crown Proven Beyond a Reasonable Doubt the Existence of a Conspiracy? ............................................................................................. 137 Has the Crown Proved that Kyle Shields was Probably a Member of the Conspiracy?.......................................................................................... 138 Has the Crown Proved that Patrick Scott was Probably a Member of the Conspiracy? ......................................................................................... 138 Has the Crown Proven Beyond a Reasonable Doubt that Shields and Scott Are Each Guilty of Being Members of the Conspiracy? ...................... 139 Conclusion ...................................................................................................... 145 By the Court: Introduction [ 1 ] The Crown is alleging that in the period of June 30 to October 11, 2011, Kyle Shields was engaged in the business of trafficking cocaine, a

Schedule 1 drug, and that in this time frame he was also involved in a conspiracy “with persons known and unknown” to traffic in cocaine. Patrick Scott is jointly charged on the cocaine trafficking and drug trafficking conspiracy charges, although the investigative narrative that purports to include him does not start until August 9, 2011. The identities of Shields and Scott must be proven by the Crown beyond a reasonable doubt and I will be referring to the person who appears on the scene on August 9 as “Bridgewater” Pat. [ 2 ] Kyle Shields was arrested on October 11, 2011 at […] Sapphire Crescent.

He was asleep in a large bedroom in the basement of the house. He identified himself to Cpl. Darren Slaunwhite as “Kyle.” [ 3 ] Patrick Scott was arrested on December 21, 2011 at 106 Albro Lake Road, an apartment building where police had previously observed someone they believed to be him. [ 4 ] Other individuals were also charged on the original Information - John Field, Ryan MacInnis, and Suzanne Davidson. The Crown alleges that these individuals were co-conspirators with Kyle Shields and also trafficked cocaine. [ 5 ] Trafficking is defined in

section 2 of the Controlled Drugs and Substances Act ( CDSA ). It means (

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

c) to offer to do any of these things, otherwise than under the authority of the regulations. [ 6 ] The Crown’s case, arising out of a drug investigation named H-Timber, relies on

Part VI intercepts of voice and text conversations, physical surveillance, expert evidence, and the seizure of exhibits. The intercepted private communications are telephone conversations, text messages, and Blackberry Messenger (BBM) text messages. [ 7 ] There is a very significant amount of evidence to be analyzed in this case. Crown counsel says it amounts to an overwhelming case

against Shields and Scott. Mr. Sarson and Mr. McGuigan submit that enough of the evidence is ambiguous, unclear, and inconsistentwith the charges to raise a reasonable doubt. The Organizational Structure of this Decision [8] My reasons are organized into seven parts:

Part I deals with first principles;

Part II deals with the targets of the

Part VIauthorizations, the general issue of identity and the specific issue of the identification of Kyle Shields;

Part III deals with the expertevidence of Sgt. Gordon Vail;

Part IV deals with the admissibility of the intercept evidence;

Part V with circumstantial evidence and thedrawing of inferences;

Part VI deals with someone identified on the intercepts as “Bridgewater” Pat whom the Crown alleges is PatrickScott; and

Part VII deals with the conspiracy charge. The Case against Kyle Shields and Patrick Scott [9] The fundamental issue in this case is whether the Crown has proven beyond a reasonable doubt that Kyle Shields and Patrick Scottwere trafficking cocaine during the summer and into the early fall of 2011. As there is no direct evidence of trafficking, the Crown reliesheavily on the

Part VI intercepts and Sgt. Vail’s testimony about them, reliance that has led to the Defence attacking the

interpretation ofthe intercepts urged by the Crown and Sgt. Vail’s opinions underpinning that

interpretation. The Crown has conceded that its prosecutionfails unless it is able to prove beyond a reasonable doubt that there was trafficking by Shields and Scott in cocaine. Even if I am satisfiedthere was trafficking in a controlled substance and a conspiracy to traffic in it, there is no basis for convictions unless the Crown clearsthe hurdle of proof beyond a reasonable doubt that the controlled substance was cocaine.

PART I – First Principles: The Presumption of Innocence and Reasonable Doubt [10] Defence counsel have correctly emphasized that it is not the responsibility of Shields and Scott to demonstrate, establish, or provetheir innocence or to explain away the allegations made against them. They are not required to explain the evidence presented by theCrown. They are each presumed to be innocent until proven guilty beyond a reasonable doubt.

The Crown bears this onus of proofbeyond a reasonable doubt throughout the trial and it never shifts. [11] The onus resting upon the Crown to prove guilt beyond a reasonable doubt is inextricably linked to the presumption of innocence.(R. v. Lifchus, (SCC), [1997] S.C.J. No. 77, paragraph 27) A reasonable doubt is a doubt based on reason and commonsense which must be logically based upon the evidence or lack of evidence. A reasonable doubt is not a doubt based on sympathy orprejudice, or one that is imaginary or frivolous.

Proof establishing the probability of guilt is not sufficient to establish guilt beyond areasonable doubt. It is not proof beyond a reasonable doubt when guilt is suspected. Proof beyond a reasonable doubt falls much closer toabsolute certainty than it does to a balance of probabilities. (R. v. Lifchus, paragraph 36; R. v. Starr, 2000 SCC 40 , [2000]S.C.J. No. 40, paragraph 242)

PART II – Introducing the Targets and the Evidence of Identity Authorizations to Intercept Private Communications [12] On June 29, 2011, a

Part VI Authorization was granted by Justice Heather Robertson. (Exhibit 2) The primary individuals targetedwere SD, Kyle Ernest Shields of […] Sapphire Crescent, Lower Sackville and John Willis Field of […] Charles Road, Timberlea whowere identified as “Principal Known Persons.” The authorization identified “Other Known Persons” for interception and observation asincluding: MB, KD , and Ryan MacInnis. [13] A further Authorization was granted on August 24, 2011 by Justice Patrick Duncan (Exhibit 3) for the interception of thecommunications of SD, Kyle Shields, and John Field.

In addition to these “Principal Known Persons”, “Other Known Persons” wereidentified and included MB, KD, Ryan MacInnis, RC, Suzanne Davidson, and JW. [14] The August 24 authorization permitted the interception of the communications of Kyle Shields and John Field when made overdevices that included Blackberry device with PIN # 230B7844 (alleged to be used by Kyle Shields) and Blackberry device with PIN #23964853 (alleged to be used by John Field.) Voice Identification – General [15] Identity is an essential element in this case to be proven by the Crown beyond a reasonable doubt.

Central to this prosecution is theidentity of the speakers on the intercepts. Shields and Scott have put voice identification on the intercepts in issue: they do not concedethat it is either of their voices on any of the intercepts. They also do not concede that they are the authors of any of the relevant textmessages. [16] Shields and Scott do however concede the identities of John Field and Ryan MacInnis as the speakers and texters captured by theintercepts.

I can say from having listened to these calls that even without the Defence concession on the issue of the identity of JohnField’s voice, I readily came to know it was his voice. John Field’s voice is quite high-pitched and he has a noticeable tendency to speakrapidly. [17] Where evidence is given as it has been here, by police officers as to voice identification, the officers are testifying as witnesses offact based on their familiarity with the voice. It is not necessary for the trier of fact to hear from an expert. (R. v. Williams, (ON CA), [1995] O.J.

No. 1012 (C.A.), page 5 (Q.L. version) Where voice identification is in issue, the trier of fact must decide theweight to be given to the evidence led for the purpose of identifying who was talking on the intercepted recordings. A judge is entitled touse her own senses to evaluate the recorded voices as part of determining the issue. (R. v. Wu, [2010] A.J. No. 1327 (C.A.), paragraph50) [18] These principles apply to the assessment of the voice identification issue for each of the accused although I will not be dealing withthe issue of identity in relation to Patrick Scott until later in these reasons.

Voice Identification – Kyle Shields [ 19 ] There are several sources from which the Crown draws its evidence for the identification of Kyle Shields’ voice – intercepted calls where Shields identified himself or was identified, the police interview ( Exhibit 107 ) in which Shields can be heard speaking, and the evidence of Cpl. Charla Keddy, who listened to 17,000 intercepted calls which, according to her, enabled her to be able to identify Kyle Shields’ voice. [ 20 ] I found I did not have to resort to considering what weight to give Cpl. Keddy’s opinion about Kyle Shields’ voice.

There were enough occasions where Shields identified himself or was identified, including in the context of his police interview, to enable me to familiarize myself with the distinctive characteristics of his voice. Shields’ voice has a deep tone and his speech has a drawn-out, languid quality. [ 21 ] The Crown introduced five intercepted calls in which Kyle Shields identifies himself. These calls occurred on July 4, 2011 (Sessions 504 and 152) , July 20, 2011 (Session 4458), August 2, 2011 (Session 4891) , and October 9, 2011 (Session 12883) . [ 22 ] On July 4, 2011 a call was made from 802-5449 (Session 504) .

Kyle Shields identified himself in an inquiry about an impounded car. He left a message indicating his name is Kyle Shields and that he can be reached at 802-5449. [ 23 ] The evidence establishes that 802-5449 was a number subscribed to a Kyle Shields of […] Sapphire Crescent in Lower Sackville. [ 24 ] Another call (Session 152) was made about the impounded car on July 4, about 20 minutes after Session 504. The call was placed by someone using a number subscribed to an E.S.,[…]. Once the call had been answered, the phone was handed over to a man who identified himself as Kyle Shields.

Shields explained the situation with the impounded car and his frustrations about its status. [ 25 ] On July 30, 2011, Shields had a lengthy telephone call (Session 4558) . He used 802-5449 and in placing an order for a skincare product, provided his name, mobile phone number (902 802 5449) and his address ([…] Sapphire Crescent, Lower Sackville) with its postal code. [ 26 ] On August 2, 2011, there was a call from 802-5449 to someone in Fort McMurray (Session 4891) .

The man leaving the voice mail message identified himself as “Kyle.” [ 27 ] On October 9, 2011, Shields placed a take-away order with May Gardens Chinese Food in Sackville (Session 12883) . He used his mobile phone – 802 5449. He gave his name – Kyle, his address – […] Sapphire Crescent, and his mobile phone number – 802 5449. He also made the request that the delivery be made to the side door of […] Sapphire. [ 28 ] At the material times, Kyle Shields was living at […] Sapphire Crescent in Lower Sackville. [ 29 ] Other calls also identify Kyle Shields as one of the speakers.

On July 7 (Session 280) , a caller asks for “Kyle”. The individual who comes to the phone later in the call identifies himself as “Shields.” In Session 692 on July 22, a caller asks for “Kyle” and Shields takes the phone.

On August 5, in a telephone conversation between Suzanne Davidson and someone using the mobile phone subscribed to Kyle Shields, Davidson refers to the man she is talking to as “Kyle”. (Session 5294) [ 30 ] There is a telephone conversation on August 21 between the person alleged by the Crown to be Kyle Shields and Ryan MacInnis at 19:02:23 hours. (Session 7434) MacInnis is trying to learn to play guitar. Shields is in a jolly mood. He playfully suggests that “Dad” could probably show MacInnis “a few things” and goes on to explain: “I said, you know Daddy out here…Like I’m multi-talented, bro.

You just think Shields is just…This big guy, big and sexy and he can’t do nothing else?...Not only is he, ah, musically gifted but he’s a multi-talent on the football, baseball and hockey fields…I’m not too good at the guitar buddy…I said, Dad’s not too good with musically-wise on the guitar.” [ 31 ] It is obvious from Shields’s jovial comments that he is referring to himself, that “Dad” is him, and he identifies himself as “Shields”.

The Police Interview of Kyle Shields [ 32 ] The interview (Exhibit 107) of Kyle Shields following his arrest on October 11, 2011 was admitted into evidence for the sole purpose of voice identification. [ 33 ] Shields tells Cst. Racicot he is hung over and tired and emphasizes that he will not talk. He does however have enough of a conversation with Cst. Racicot for me to assess his voice. In the conversation Shields refuses to discuss anything related to the investigation. In the back and forth between him and Cst.

Racicot such as it is, Shields denies any knowledge of the investigation and what is being alleged against him. [ 34 ] At various times, Shields refers to Cst. Racicot as “bro” and has the same languid, unperturbed manner of speech. His voice in the interview sounds the same as the voice the Crown purports is the voice of Kyle Shields on the intercepts. The voice has the same intonation and timbre.

It sounds as though Shields may have a slight cold or congestion and he coughs a few times through the interview but the voice is unmistakably the same. [ 35 ] In addition to saying “bro” the same way he does on the intercepts, Shields also says at one point “100 percent”, exactly the way the voice on the intercepts alleged to be Kyle Shields says it.

He also says at the end of the interview: “I can’t help you, man” in the same voice heard on the intercepts that the Crown alleges is Kyle Shields’ voice. [ 36 ] I have listened, several times, to the numerous intercepted telephone conversations between June 30 and October 10, 2011, in which the Crown alleges that Kyle Shields was a participant. These include the calls I described earlier. I am satisfied beyond a reasonable doubt that the voice alleged by the Crown in the intercepted calls is the voice of Kyle Shields. It is the same voice as the

voice in the self-identifying calls and, as I have noted, is quite distinctive. I came to recognize the voice with its low register and lazycadence, again and again in the calls. [37] The intercepted calls also acquainted me with Kyle Shields. Not only did I come to recognize his voice but the content of the callsrevealed consistent features of his lifestyle and personality. Kyle Shields liked to eat out and enjoyed drinking. He did not appear to beworking: certainly he slept late and had a lot of flexibility in his

schedule throughout the week. Whereas his contacts mentioned theirwork, Shields never did. He liked to go to the gym and work out, was an enthusiastic fan of spinning classes, played softball, and wasunfailingly accommodating, easy-going, and unflappable. [38] The evidence establishes beyond a reasonable doubt that Kyle Shields spoke regularly on a mobile phone subscribed to him withthe number 802 5449. I am satisfied beyond a reasonable doubt that he also texted using that phone. There is no evidence that sheds anydoubt on this: 802 5449 was Kyle Shields’ mobile phone and throughout the

Part VI investigation, he used it exclusively to make andreceive calls and send and receive texts. BBM Messaging [39] The Crown introduced intercepted BBM messages for August 14, September 19, 26, 29 and 30. (Exhibit 11) Cst. Skidmore, thelead investigator for this Operation H-Timber file, testified that when the authorization is granted for a BBM interception, there isinformation that supports the device belonging to the named individual and ties the subscriber to that PIN #. Cst. Skidmore testified thata PIN is specific to a device, not a phone number.

The Blackberry messages (BBM) are logged by Blackberry and downloaded by a “PINdump”. The investigators got them once a day. [40] The time shown on the BBM is the time assigned by Blackberry – UTC, the Universal Time Coordinate which is the same asGreenwich time. The evidence indicated that UTC/Greenwich time is four hours ahead of local Halifax time. [41] I am satisfied beyond a reasonable doubt that Kyle Shields sent the BBM messages which the Crown alleges were messages fromhim.

Nothing else makes sense: there is nothing to suggest that anyone other than Kyle Shields was using the device with the PIN #subscribed to him. And certain individuals, for example, John Field, who were using the BBM messaging service to communicate withShields, also communicated regularly with Shields via his cell phone. None of the intercepted conversations indicate that Field wasBBM messaging PIN #230B7844 with someone other than Kyle Shields.

The only reasonable inference to be made is that there wouldhave been some mention of this by either Shields or Field. [42] As will be evident from my reasons in due course, the content of the BBM messages also leaves no doubt that they were beingexchanged by the parties tied by PIN # to their respective devices. The BBM messages fit seamlessly into the texting and calls alsooccurring between Kyle Shields and various individuals including John Field.

I also note that a cell phone and Blackberry device wereseized by police from […] Sapphire Crescent. (Exhibits 30 and 31) Kyle Shields’ Vehicles [43] Police surveillance included visual observations of vehicles driven by Kyle Shields. He had two vehicles registered in his name: ablack convertible BMW, Licence Number EUK 333 and a grey Volkswagon Jetta. Police officers conducting surveillance throughout theinvestigation saw him in those vehicles.

PART III - The Expert Evidence of Sgt. Gordon Vail [44] At the start of these reasons I identified the types of evidence which the Crown has relied on to build its case against Shields andScott. I am going to provide some greater detail now of the evidence of Sgt. Vail who testified at length about illegal drugs and drugtrafficking and also gave his opinion about the intercepted communications. At this time I am going to give an overview of Sgt. Vail’stestimony about the drug trade. I will later discuss his evidence about the intercepts. Qualifying the Drug Trafficking Expert [45] Sgt.

Gordon Vail was qualified to provide opinion evidence in relation to: • the packaging, pricing, quantities, jargon, paraphernalia, distribution, and use of cannabis marijuana, cannabis resin, cocainehydrochloride, and MDMA; and • the

interpretation of private communication within the context of coded conversations and drug subculture terminology; and • the features of drug distribution networks which include the use of “couriers/runners”, stash locations, counter surveillancetechniques, and drug distribution network hierarchies. [46] Sgt. Vail was qualified without objection from Shields and Scott although Defence counsel expressed some reservations about Sgt.Vail’s expertise and made submissions about the weight his evidence should be given, which I will discuss in due course. The Defenceposition rested largely on the fact that Sgt.

Vail’s primary roles in recent years have not involved cocaine and cannabis trafficking. [47] I note that in the Supreme Court of Canada’s recent decision of R. v. Sekhon 2014 SCC 15 , [2014] S.C.J. No. 15, LeBel,J. (in dissent but not on this point) observed, “A substantial body of case law supports the admission of evidence from experienced policeofficers on such subjects as the organization of the illegal drug trade, methods of transporting and selling drugs, methods for avoiding thedetection of drugs, and drug jargon”, citing R. v. Joyal (1990), (QC CA), 55 C.C.C. (3d) 233 (Que.

C.A.); R. v.Ballony-Reeder, 2001 BCCA 293; R. v. Klassen, 2003 MBQB 253 (paragraph 73). [48] The cautions of LeBel, J. in Sekhon are worth repeating here:

[74] …The customs of the illegal drug trade will generally be relevant to the matters at issue in drug trials. Such customs are likely to be outside the knowledge of the trier of fact, so evidence about them will be necessary to assist him or her in assessing the other evidence that has been adduced.

Moreover, it is open to a trial judge to conclude that a police officer is qualified to give expert evidence on the basis of the officer’s experience and training in the investigation of drug-related crimes. [75] At the same time, this Court has repeatedly cautioned that expert evidence must not be allowed to usurp the role of the trier of fact. The trier of fact, whether a judge or a jury, is responsible for deciding the questions in issue at trial.

Judges must be especially cautious where the testimony of police expert witnesses is concerned, as such evidence could amount to nothing more than the Crown’s theory of the case cloaked with an aura of expertise. The courts have clearly recognized the risk that expert evidence could usurp the role of the trier of fact in the assessment of credibility, and even in the decision on the ultimate issue of guilt or innocence.

I see no reason to believe that this danger is less real where the evidence is given by a state agent like a police officer rather than by a scientific expert. [76] The Mohan requirement of necessity is the primary safeguard against the inappropriate proliferation of expert evidence. But even where the expert’s evidence is broadly necessary, as in this case, it should be assessed with special scrutiny as it approaches the “ultimate issue”: Mohan , at p. 24; R. v. J.-L.J ., 2000 SCC 51 , [2000] 2 S.C.R. 600 , at para. 37 .

The decision to qualify an expert witness does not end the need for scrutiny of the expert’s evidence. A properly qualified expert could stray into expressing inadmissible opinions about the guilt of an accused, and the trial judge must ensure that the expert’s testimony stays within the proper boundaries of such evidence and maintain the integrity and independence of his or her own fact-finding function as regards the credibility of witnesses and the guilt or innocence of the accused. Sgt. Vail’s Qualifications [ 49 ] Sgt. Vail’s curriculum vitae (cv) was entered as Exhibit 117.

He has been a member of the RCMP since 1990. Since 2011 he has been the Sergeant/Investigator with “H” Division Professional Standards Unit. In this role he is responsible for Code of Conduct investigations relating to RCMP members employed in Nova Scotia. [ 50 ] From August 2010 to September 2011, Sgt. Vail was the Shift Supervisor for the Halifax District RCMP Tantallon Office. He was responsible for the supervision of shift Constables and provided guidance and direction in investigations that included, but were not restricted to, CDSA matters. [ 51 ] During the period of October 2005 to August 2010, Sgt.

Vail was NCO in charge of the Synthetic Drug Operations Unit and responsible for synthetic drug investigations and the dismantling of synthetic drug labs in Nova Scotia and Newfoundland. His work included lectures concerning the production and identification of methamphetamine and ecstasy. [ 52 ] It was in the period of October 1997 to October 2005 and during investigations in July 2007 and September 2008 that Sgt. Vail was most recently engaged directly with the cocaine and cannabis drug trade.

His cv notes that he was involved in several major drug importation cases where both cannabis and cocaine were found in the multi-kilogram and ton weight. He assisted with the surveillance of targets and the handling of exhibits, noting concealment and packaging techniques. He was also involved in street level investigations of cocaine and crack cocaine trafficking and performed duties that included surveillance, take-downs, searches, and interrogations of suspects. Sgt.

Vail acted as cover person for police agents involved in the evidentiary purchase of controlled substances and interaction with confidential human sources. [ 53 ] Sgt. Vail’s duties during this eight year period included the preparation of

Part VI investigations, and the coordination of major project files which focused on the trafficking networks of multi-kilogram drug dealers. [ 54 ] I also note that from March 1994 to March 1995, Sgt. Vail was part of a two member street level drug enforcement team out of the Lower Sackville Detachment. He was involved with numerous street level investigations of cannabis marijuana, cannabis resin, crack cocaine, and psylocibin. He dealt with sources and conducted numerous residential and vehicle searches leading to the seizure of these controlled substances. [ 55 ] Sgt.

Vail’s cv indicates that over the years he has taken courses that have included such subjects as drug pricing and packaging, drug identification and field testing, national and international drug trafficking trends, surveillance, warrant preparation, source handling, and raid planning (two week Drug Investigational Techniques Course – August 1998); forms of trafficking, methods of packaging and distribution and prices and paraphernalia (three week Operational Undercover Training Course – October 1999). [ 56 ] Some of the investigations that Sgt.

Vail has been involved in include: • Operation “Hurry” – December 8, 1997 to December 17, 1997, a controlled delivery and

Part VI investigation involving one accused and 700 grams of cocaine. Sgt. Vail had duties as the exhibit officer and dealt with packaging, concealment, reviewing transcripts of private communications, and dealing with a police agent. • Operation “Hovel” – April 1998 to October 1998, a street level cocaine investigation involving seven accused and cocaine/crack cocaine (grams/eight balls) and cannabis resin and marijuana (grams/ounces). Sgt. Vail’s duties included file coordinator, exhibits, surveillance, and agent handler. • Operation “Hammer” – September 1999 to December 2001, a

Part VI investigation involving nine accused and cannabis resin, cannabis marijuana, and cocaine (possession for the purpose of trafficking and conspiracy). Sgt. Vail’s duties included exhibits, reviewing intercepts of private communications, agent handler, surveillance, and packaging. • Operation “Horn” – May 2003 to June 2004, a

Part VI investigation involving nine accused and cocaine, crack cocaine, and cannabis marijuana (possession for the purpose of trafficking and conspiracy.) Sgt. Vail’s duties included surveillance, reviewing the intercepts of private communications, exhibit person, and packaging. • Operation “Herdsman” – January 2005 to September 2005, a

Part VI investigation involving twenty accused (trafficking,

possession for the purpose of trafficking, and conspiracy) and the utilization of an undercover operator. Sgt. Vail was the leadinvestigator whose responsibilities included surveillance, reviewing intercepts of private communications, exhibits, packaging, coverperson and suspect interviews.

Operation Herdsman involved intra-provincial cocaine trafficking, and drug distribution networks thattrafficked crack cocaine, cocaine, and ecstasy via “dial a dope” operations and crack houses. • Operation “Huda” – July 2007, an undercover operation involving nine accused and the purchase of cocaine, crack cocaine, andcannabis (trafficking). Sgt. Vail was the cover person for the operation. • Operation “Ivory” – September 2008, an undercover operation involving four accused and the purchase of crack cocaine(trafficking). Sgt. Vail was the cover person for the operation. [57] Sgt.

Vail has also been involved in investigations, including

Part VI investigations, of interprovincial trafficking and importation ofcannabis marijuana, cannabis resin, cocaine, and MDMA, and investigations of indoor cannabis marijuana “grows.” [58] In the period of November 2004 to November 2013, Sgt. Vail was qualified in the Provincial and Supreme Courts of Nova Scotiaas an expert on the same basis as in this case on 27 occasions. In April 2012, Sgt. Vail was qualified as an expert in the Nunavut Court ofJustice in Iqaluit. Eighteen of these occasions involved testimony concerning cocaine and/or crack cocaine. On eight occasions Sgt.

Vailtestified about cannabis marijuana or resin either exclusively or in addition to giving evidence about cocaine or other drugs. [59] Sgt. Vail testified to having authored over 150 expert reports, primarily dealing with cocaine, crack cocaine, cannabis marijuana,and cannabis resin. The Defence established that Sgt. Vail has disagreed with the Crown theory of the case on only a handful ofoccasions. However I do not know what formed the basis of the disagreement and whether, for example, on a charge of possession forthe purpose of trafficking, Sgt.

Vail viewed the evidence as making a case for personal possession. [60] While I will have more to say about Sgt. Vail’s evidence later in these reasons, I can say that I accept his expertise as it relates tothe drug trade for cocaine and cannabis marijuana. I find that his significant experience satisfies me he possesses the “special knowledgeand experience going beyond that of the trier of fact.” (R. v. Marquard, (SCC), [1993] S.C.J. No. 119) His opinionevidence meets the Mohan criteria. (R. v. Mohan, (SCC), [1994] S.C.J.

No. 36) I note that he testified to having kept hisknowledge current by regular consultations with drug investigators and undercover operators. [61] I wish to emphasize that while Sgt. Vail offered his opinion about the subject matter of certain intercepts the ultimate determinationabout the intercepts has been mine to make. I have drawn the inferences I consider are supported by the evidence. Logic, common sense,and context have assisted me in my

interpretation of the telephone conversations and texts. Sgt. Vail’s expertise has informed myunderstanding of the drug trade and assisted me in my assessment of what was being discussed in the intercepted communications. Sgt. Vail’s Preparations [62] In preparation of his expert report, Sgt. Vail reviewed intercepted private communications - in the case of some intercepts,numerous times, police notes, photographs, the Crown brief, video surveillance, and cautioned statements. In October 2013 he attendedthe RCMP exhibit vault and again reviewed the exhibits for this case. Sgt. Vail described the utility of

Part VI intercepts in a druginvestigation: intercepts allow police to look into how drug distribution networks operate. Drug Distribution Networks [63] Sgt. Vail testified that drug distribution networks are hierarchical and that individuals at the top of the hierarchy seek to isolatethemselves from police interdiction. Traffickers tend to employ people with whom they have developed a trusted relationship. Theyavoid selling to people they either don’t know or who have not been vouched for by others in their inner circle.

Traffickers are keenlyaware of police investigative techniques and the use of confidential sources. [64] Sgt. Vail testified that the drug business, like other commercial enterprises, has as its objective, incurring and maintaining the profitmargin. In Sgt. Vail’s words: “It is all about incurring profit and continuing the profit cycle.” [65] Sgt. Vail noted that many traffickers will engage in multi-commodity sales to attract a broader range of clients by selling a varietyof products. The products being sold can be both controlled and non-controlled substances. Sgt.

Vail testified that product diversificationmeans more clients and increased profit margins. Categories of Traffickers [66] Sgt. Vail testified that the three main categories of traffickers in the Halifax marketplace are high-level, mid-level, and street level.High level traffickers are able to purchase and distribute 10 to 20 kilogram amounts per month. The lower end of high-level traffickingwould involve purchasing and distributing single kilogram and half-kilogram amounts. Mid-level traffickers deal in less than half-kilogram amounts. Their trade is in 250 gram- and 100 gram- and down to ounce level-amounts.

Street level traffickers deal in ounceamounts at the higher end, down to gram amounts. Trafficking Cocaine and the Practices of “Stepping On”, “Shorting” and “Fronting” [67] Cocaine is produced in Peru, Bolivia, and Columbia and exported from either Columbia or Mexico by the ton. Large scaleorganized crime groups will export ton amounts which they have purchased in bulk and then sell in lower weights at higher prices,immediately increasing their profits. [68] Certain Canadian markets are bigger than Nova Scotia, due to population, such as Ontario and British Columbia. Sgt.

Vaildescribed a high end dealer in Nova Scotia as someone who imports five to ten kilograms [69] As cocaine moves down the drug distribution network, it gets adulterated or “stepped on.” The addition of non-controlled

substances such as benzocaine, lidocaine, novocaine, or caffeine reduces the purity of the cocaine but increases volume thereby enhancing the profit margin of the seller. [ 70 ] Kilogram amounts of cocaine are usually packaged in bricks with wrapping and tape. In order to create the illusion of purity, “stepped on” cocaine will be re-compressed into a brick with the use of a hydraulic press. As Sgt. Vail explained: “Savvy individuals will step on the cocaine and then re-press it to make it look unadulterated.” It was Sgt.

Vail’s evidence that hydraulic presses are a “clear cut indicator of cocaine being stepped on.” [ 71 ] Sgt. Vail gave an example of how adulterated cocaine earns a profit for the trafficker. The trafficker who buys 100 grams of cocaine for $5000 has paid $50 a gram for his purchase. He can then “step on” that 100 grams, bulk up his inventory, and sell the further adulterated product for $100 per gram.

A mid-level drug trafficker could purchase 100 grams of 70 percent pure cocaine hydrochloride, add 100 grams of a cutting agent such as lidocaine, and have 100 additional grams of 35 percent pure product to sell for a profit. [ 72 ] In addition to purchasing in bulk and selling lesser amounts at higher prices and “stepping on” the product, drug traffickers increase their profit margins by “shorting” their purchasers. For example, Sgt. Vail explained, a “street ounce” of cocaine is normally 24 to 26 grams whereas an actual ounce is 28 grams.

An “eight ball” of crack cocaine is supposed to be 3.5 grams but purchased on the street an “eight ball” may be as little as 1.8 to 2.5 grams. A street gram of cocaine will not weigh out as a gram, it may actually only weigh .8 of a gram. The “shorting” process is achieved through the use of scales.

A drug trafficker may purchase 50 grams of “stepped on” cocaine which he then breaks down using scales that can weigh to a tenth of a gram, and sells in smaller, “shorted” street amounts. “Shorting” enhances the trafficker’s profit margin. [ 73 ] Drug traffickers rely on trusted relationships and vouching by trusted associates. Trust functions not only in determining who gets access to a trafficker, it may also lubricate the business aspect of the transaction. Trust underpins the concept of “fronting”, where a purchaser takes possession of the drug with payment to the seller being deferred. Sgt.

Vail explained that “fronting” occurs regularly in mid- and street-level trafficking. [ 74 ] As the drug business is primarily a cash-only business, the fronter will only accept cash and will set the terms of when and how the drug indebtedness is to be paid. He will accept deferred payment only as long as he can continue the business cycle. Sgt. Vail testified that in his experience services or labour may sometimes be accepted for the repayment of drug debts. [ 75 ] Trusted people may also benefit from discounted prices. A trafficker may offer a discounted price to long-standing, regular clients. Sgt.

Vail testified that there is no discounting at the lowest street level of sales, the gram level. Stash Houses [ 76 ] Traffickers higher up the drug distribution network often use off-site locations for storing their inventory. Sgt. Vail testified that stash houses are used regularly in the cocaine trade. It was Sgt. Vail’s evidence that it is very rare for higher level drug distributors to keep large amounts of cocaine at their residences because they are aware of the risk of a

section 11 CDSA warrant being executed. Cocaine traffickers want to avoid the loss of any of their expensive product due to drug-rips or police seizures so they tend to safeguard it using stash houses. [ 77 ] Trust is a factor in the relationships developed by higher level drug traffickers and the individuals they put in charge of the stash houses. [ 78 ] As street level traffickers can’t afford a stash house, they carry smaller amounts of an adulterated product and rely on a number of clients. They need to sell frequently as they are vulnerable to

section 11 Controlled Drugs and Substances Act (CDSA) searches and vehicle stops. The street level trafficker is aware that being found in possession of large amounts of cocaine can lead to charges under section 5(2) of the CDSA , possession for the purpose of trafficking. Sgt. Vail testified that

Part VI intercepts show that drug traffickers, including at the street level, are aware of the risks of heavier sentences for section 5(2) convictions. Guarded Conversations and Coded Language [ 79 ] Sgt. Vail testified that awareness of police investigative techniques and

Part VI intercepts has led drug traffickers to engage in guarded conversations and use coded language. He offered the example of arranging a meeting: rather than using specific terms that characterize a discussion about a legitimate subject, drug traffickers will use guarded language, saying, “Let’s meet at that spot” or “Let’s meet where we met last week.” The product that is the subject of the transaction either won’t be mentioned or coded terminology will be used. Sgt. Vail has heard many coded terms for cocaine. [ 80 ] Sgt.

Vail acknowledged that none of the terminology used in the intercepted private communications in this case was familiar to him and did not constitute universal terms for the drugs the Crown alleges were being discussed. Universal terms for cocaine are “white” and “blow”. “Green” and “weed” are universal terms for cannabis. [ 81 ] Sgt. Vail testified that individuals who are “deeply entrenched in the drug trade” are very careful on the telephone because they are aware of police investigative techniques. Keeping Accounts – Cash and Score Sheets [ 82 ] Sgt.

Vail testified that the drug business is a cash and carry business. As large deposits are likely to attract police investigation, drug traffickers keep cash on hand. Score sheets are used to keep track of what is owed. The accounting is “very rudimentary, very elementary” and in Sgt. Vail’s experience, names, initials and numbers are used. The Use of Phones [ 83 ] Sgt. Vail testified that drug traffickers use nominees for their phones and register them in fictitious names or the names of

associates with no criminal histories. Drug traffickers tend to only give out their phone numbers to people they know. Phones will getchanged and if the trafficker is arrested, he will abandon the pre-arrest phone and get a new one. Pricing Cocaine Hydrochloride and Crack Cocaine [84] Cocaine is never sold in pound amounts: it is always sold in kilogram, gram, and ounce amounts. [85] Sgt. Vail testified that in October 2011, a kilogram of cocaine hydrochloride – powder cocaine – sold for $47,000 to $49,000 perkilogram in Nova Scotia. Five hundred grams or half a kilogram sold for $24,000 to $26,000.

One hundred grams sold for $5000 to$5500. An ounce of cocaine fetched $1800 to $2200 and a gram of cocaine went for $80 to $100. Gram and half-gram amounts ofcocaine hydrochloride are the weights at the lowest level of purchase. [86] Sgt.

Vail testified that the prices he quoted were subject to variation depending on the purity of the cocaine, that is, the extent towhich it had been adulterated or “stepped on.” [87] These prices were identical for crack cocaine which is easily made from cocaine hydrochloride using baking soda, water and heat. [88] Crack cocaine is sold in amounts as small as 20 “rocks” which is two-tenths of a gram. In 2011 this amount of crack cocaine soldfor $20. [89] Sgt.

Vail noted that cocaine hydrochloride and crack cocaine are very addictive with the result that users are constantly after theirsuppliers, sometimes twice a day. In Operation Herdsman, a dial-a-dope case, during the six months of the

Part VI intercepts there were90,000 intercepted calls. Trafficking Cannabis Marijuana [90] Cannabis marijuana is most commonly grown indoors in soil. It is sold in pound, ounce, and gram amounts. Pricing may varydepending on the strain as some strains are more sought after. Sgt. Vail testified that in 2011, a pound of marijuana in a multi-poundtransaction was selling for $1300 to $1500; a pound on its own sold for $1800 to $2600; an ounce sold for $200 to $300; and a gram soldfor $10 to $20. Only very high quality cannabis marijuana sold for as much as $20 a gram. [91] Sgt.

Vail testified that the profit margins for marijuana are lower as it cannot be “stepped on.” Traffickers buy in bulk and sell inlower quantities for higher prices. The only other method available to a marijuana trafficker for increasing the profit margin is to “short”purchasers. [92] Sgt. Vail acknowledged that sometimes “shake” is added to what is sold. In cannabis marijuana, “shake” is essentially what chaffis to wheat. [93] Typically stash houses are not used as much by mid-level marijuana traffickers as they are by mid-level cocaine traffickers.

Sgt.Vail testified that traffickers are acutely aware that the penalties for marijuana trafficking are lower than the penalties for cocainetrafficking. Guarded conversations and coded language is still used but it was Sgt. Vail’s evidence that guarded conversations are notresorted to as much by marijuana traffickers as by cocaine traffickers. [94] Another difference in the marijuana trade according to Sgt. Vail is the extent to which the trafficker is being contacted bypurchasers. Sgt.

Vail testified that based on his experience, purchasers are not calling their supplier every day for grams of cannabismarijuana “because marijuana is not cost prohibitive and a personal user can buy an ounce to keep going.” Sgt. Vail did acknowledgethat the active ingredient in marijuana, THC, does degrade and the product has to be stored carefully to preserve its potency.

PART IV – The Admissibility of the Intercept Evidence [95] Although there has been no challenge to the admissibility of the

Part VI intercept evidence, I am going to briefly address the legalprinciples that permit me to consider this evidence on the cocaine trafficking charges. I will later discuss how the intercepts are to beconsidered in relation to the conspiracy charge. [96] An out-of-court statement, including a statement made in intercepted private communications, which is admitted for the truth of itscontent is hearsay. An out-of-court statement offered only as proof that the statement was made is not hearsay, and is admissible as longas it has some probative value. (R. v. Evans, (SCC), [1993] S.C.J.

No. 115, paragraph 16) [97] Hearsay is objectionable because it is understood to be unreliable and untrustworthy. The Supreme Court of Canada explained thisin R. v. Khelawon, 2006 SCC 57 , [2006] S.C.J. No. 57: …the central reason for the presumptive exclusion of hearsay statements is the general inability to test their reliability. Without themaker of the statement in court, it may be impossible to inquire into that person's perception, memory, narration or sincerity. …the ruleagainst hearsay is intended to enhance the accuracy of the court's findings of fact, not impede its truth-seeking function.

However, theextent to which hearsay evidence will present difficulties in assessing its worth obviously varies with the context. In some circumstances,the evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding…When it isnecessary to resort to evidence in this form, a hearsay statement may be admitted if, because of the way in which it came about, itscontents are trustworthy, or if circumstances permit the ultimate trier of fact to sufficiently assess its worth.

If the proponent of theevidence cannot meet the twin criteria of necessity and reliability, the general exclusionary rule prevails. (Khelawon, paragraph 2) A Principled Analysis -- Necessity and Reliability [98] Intercepted private communications are routinely admitted into evidence notwithstanding that they constitute hearsay. (R. v.Eiswerth, [1998] S.J. No. 798 (Sask. Q.B.), paragraphs 12-15; R. v. Violette, 2008 BCSC 422 , [2008] B.C.J. No. 2781 (S.C.),

paragraph 10; R. v. Wu, [2010] A.J. No. 1327 (C.A.); R. v. Shea, 2011 NSCA 107 , [2011] N.S.J. No. 653 (C.A.), paragraphs54-57, 66-67, 74, 80-83) In many cases, intercepted communications will be admissible as admissions, a recognized exception to thehearsay rule. Admissions "in the broad sense refer to any statement made by a declarant and tendered as evidence at trial by the opposingparty." (R. v. Violette, [2008] B.C.J.

No. 2781 (S.C.), paragraph 63) Statements made or adopted by an accused in an interceptedcommunication are admissible against that accused person as evidence of the truth of their contents. (Violette, paragraph 65) [99] The value of intercept evidence is incontrovertible. This was recognized by the British Columbia Court of Appeal in R. v. Oliynyk,2008 BCCA 132 , [2008] B.C.J.

No. 524 which saw fit to reproduce the trial judge’s comments: …The very high degree of reliability and the quality of spontaneous declarations that are contemporaneously recorded is recognized as amost significant part of the "necessity" rationale. There is no issue about whether the declarant's memory is accurate. The recording ofthe spontaneous and contemporaneous declarations is thus the best evidence.

It is much better than that of a likely unreliable anduncooperative witness whose memory almost five years later at the trial of this case would not approach the accuracy of the res gestaelike declarations. (paragraph 37) [100] As stated in Oliynyk, intercepted communications provide "cogent and reliable" evidence about the targets and their activities. Thecommunications are highly probative, most significantly because "they largely emanate from the mouths of the accused themselves."(Violette, paragraph 101) The evidentiary value of intercepts has “enormous weight”. (R. v. Niemi, [2008] O.J.

No. 4619 (S.C.J.),paragraph 29) [101]

Part VI intercepts capture contemporaneous declarations by speakers who are unaware they are being listened to. They carry ontheir activities in blissful ignorance of the fact that their conversations are being recorded. Intercepts are high quality evidence that willassist in the truth-seeking function of the trial once the trier of fact determines what the conversations are about and what inferences canbe drawn from the coded language being used.

PART V – Circumstantial Evidence and the Drawing of Inferences The Law on Inferences [102] For a conviction to made out on circumstantial evidence, the Crown must satisfy the trier of fact beyond a reasonable doubt thatthe only rational inference to be drawn from the circumstantial evidence is that the accused is guilty. (R. v. Griffin, 2009 SCC 28, [2009] S.C.J. No. 28, paragraph 33) [103] A reasonable doubt can be raised by the existence of any rational inference, drawn from an assessment of the whole of theevidence, that the accused is not guilty.

It is the cumulative effect of the evidence as a whole that must be assessed. A trier of fact is notto evaluate pieces of evidence in isolation. (R. v. Narwal, 2009 BCCA 410 , [2009] B.C.J. No. 1941 (C.A.), paragraph 88) [104] It is an error to apply the criminal standard of proof beyond a reasonable doubt to individual pieces of evidence. Facts “are not tobe examined separately and in isolation to the criminal standard.” The issue of whether the Crown has proven its case against the accusedbeyond a reasonable doubt must be determined on the evidence as a whole. (R. v. Morin, (SCC), [1988] S.C.J.

No. 80,paragraphs 33 and 41) As the Supreme Court of Canada held in Morin: …the law lays down only one basis requirement: during the process of deliberation the jury or other trier of fact must consider theevidence as a whole and determine whether guilt is established by the prosecution beyond a reasonable doubt. This of necessity requiresthat each element of the offence or issue be proved beyond a reasonable doubt. Beyond this injunction, it is for the trier of fact todetermine how to proceed…(Morin, paragraph 40) [105] Inferential reasoning is a necessary feature of a circumstantial case.

An inference is a deduction from the evidence. Inferences areto be drawn from facts which have been proven. Drawing an inference involves a process of reasoning: “…a fact or a proposition soughtto be establish[ed] is deduced as a logical consequence from other facts…already proved or admitted.” (R. v. Latif, [2004] O.J. No. 5891(Ont. S.C.J.), paragraph 4) [106] There is a considerable difference between inference and speculation. “A trier of fact may draw factual inferences from theevidence.

The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts establishedby the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned asconjecture and speculation.” (R. v. Morrissey, (ON CA), [1995] O.J. No. 639(C.A.), paragraph 52) [107] The conclusions I reach must be “rational conclusions based on inferences drawn from proven facts.” Conclusions not founded onthe evidence are not rational conclusions. (R. v. McIver, [1964] O.J.

No. 835, paragraph 9 (QL version) [108] I have been informed by these principles in my reasoning process in this case, and have applied them in my

interpretation of theintercept evidence. Evidence of Illegality [109] The intercepted communications establish beyond a reasonable doubt that Kyle Shields was engaged in something illegal duringthe summer and early fall of 2011.

The proof of it lies in Shields’ own mouth, what he said in various intercepts that I will now discuss,and in the overall character of the many intercepted conversations in which he participated, a number of which I will be reviewing later inthese reasons. [110] It is obvious from the intercepts that Kyle Shields was involved in transactions with a number of people, including, John Field,Ryan MacInnis, Suzanne Davidson, “Bridgewater” Pat, and others. Kyle Shields, and “Bridgewater” Pat when he came on the scene, andeveryone else used heavily guarded language throughout their discussions.

Substances that were the subject of guarded conversationswere never mentioned by name. Arrangements for meetings were made using generalized references that were readily understood by the

participants. This contrasted with calls where references to some locations were made using very specific, identifying terms. The guarded conversations also clearly employed the use of coded language which I will be discussing more fully. [ 111 ] Certain intercepted calls can be viewed in only one light - as calls about activities that were illegal. September 5 – Kyle Shields and Ryan MacInnis [ 112 ] Kyle Shields had a very telling telephone conversation with Ryan MacInnis on September 5, 2011. ( Session 2014 ) Ryan MacInnis’ residence in Prospect had been searched by police on August 30.

Police seized cannabis marijuana plants, some ziplock-bagged marijuana (17.32 grams unbagged, also two baggies containing 2.12 and 1.34 grams respectively), cocaine (37.66 grams bagged), hydromorphone pills, and steroids – all controlled substances.

MacInnis was arrested. [ 113 ] By the September 5 conversation, MacInnis was using a new phone number which he had supplied to Shields on September 1. (Session 8411) Shields knew MacInnis has been raided and the conversation eventually turned to this issue. [ 114 ] Shields observed that MacInnis had become “comfortable”, implying that he had not been as careful as he should have been.

He went on to say, “You got that at your neighbours or at your old man’s or somewhere, buddy, you sit there and laugh at them…” I infer from this, and the context in which it was said, that Shields was referring to using a stash location. He said about himself: “…I don’t ever really have that much here layin’ around usually…” They talked about how in Shields’s case it would take a close friend going to the police to bring them to his door.

He said to MacInnis: “…the only way I am going to get tagged up like that is if…you wanna flip on me…” [ 115 ] The conversation reveals how aware Shields was about the consequences of illegal activity which I infer to be drug dealing: he mentioned that people “are scared to go to jail…” as an explanation for why someone in jeopardy themselves might rat out their friends to the police.

He told MacInnis he won’t learn the identity of the informer from the disclosure: “If there was two people it’ll be someone A and someone B…It’ll be…you know, Informant A and Informant B…” He expressed confidence that MacInnis will get “two years and you’ll be out in six months.” He told MacInnis: “You’ll go in…and you go to reception. You stay there ‘til ya adjust to jail for a bit and literally for your crime__it’s not a violent crime…If you don’t fuck around you’ll be out in six months tops.” [ 116 ] Shields warned MacInnis not to have people coming to his house.

MacInnis agreed that he didn’t need to deal with “no new people. I make enough money…” Shields said, “Exactly” although he indicated he was content to deal with someone who had been vouched for by the right person, “like you or my buddys Johnny Cash”. [ 117 ] The reference to “Johnny Cash” was a clear reference to John Field. Several of the intercepted calls between Shields and John Field reveal that Shields made a play on Field’s name by calling him “Johnny Cash.” The Crown has alleged that John Field was Kyle Shields’ supplier. I will be addressing this in due course.

September 19 – Kyle Shields and Ryan MacInnis [ 118 ] Another revealing call between Shields and MacInnis occurred on September 19. (Session 10455) It was a similar discussion to the one they had on September 5, (Session 2014) . Shields reassured MacInnis that not only will it be a while before his case gets dealt with in court, he’ll only do six to eight months of a two year sentence and “…you’ll go to reception. You’ll go right in the farm…” There was also talk about who MacInnis suspected was the “rat” and the fact that “it” was in plain sight.

Shields had a dim view of anyone who would have ratted out MacInnis to the police, calling such people “cowards” who will “roll” on a friend “and have him go to jail for eight months and lose like fuckin’ four grand.” [ 119 ] There was an emphasis in this call on maintaining what can only have been a business enterprise. As I just mentioned there was Shields noting that being done in by a “rat” can lead not only to a jail sentence but also to losing “four grand.” There was also what Shields said to MacInnis about the advantages of delay in his case: “…You’ll go right in the farm.

And, by the time you even do that, it’ll be like a year from now. You probably won’t even go to jail until the end of next summer.” MacInnis intends to “push [his case] off till after the summer…” He’d rather spend the winter in jail and pay his lawyer the extra money for the case taking longer. Shields noted the obvious benefits of this plan, telling MacInnis: “The longer you stay out more money you can make…” “Yeah, exactly” was MacInnis’ response. [ 120 ] In the September 19 call MacInnis was using a different phone again.

He told Shields his lawyer told him his phone would be “wired for fuckin’ sound” and to be “very careful on your phone…” MacInnis explained that when he told the lawyer the police took his phone, the lawyer said it wouldn’t take them long “…to get that number…” Shields took all this in and was clear about how he deals with the risk of talking on the phone: “That’s why, that’s why I never ever. That’s why I never ever talk shit, bro. Never_____” And MacInnis replied: “Yeah.

No, don’t say nothin’ on that phone at all.” August 20 – Kyle Shields and Suzanne Davidson [ 121 ] Evidence of the illegal nature of Shields’ business enterprise is also found in a telephone conversation he had on Saturday, August 20 with Suzanne Davidson. Davidson was not using her phone. She explained to Shields that she couldn’t talk on her phone which is why she has called on another number. The clear purpose for her call was to tell him about what has happened.

She got into a “real bad car accident…a few days ago up in Truro.” Shields was unimpressed, asking her: “How the fuck did you pull that off?” She was arrested because she was drinking and tells Shields what we know from the evidence at this trial: “…they searched my car and…they found some shit.” (Session 7248) [ 122 ] It is apparent Shields was distinctly unimpressed by Davidson’s news. He said to her: “Gimme a call tomorrow, but I dunno.

From what you’re tellin’ me right now, like you’re, you’re being pretty careless, right?” Davidson emphasized that she was going to give Shields what she had left and then she was going to pay him. He acknowledged her intentions but chided her again: “…you gotta be a little smarter, hun. You know what I mean?” He told her: “You put yourself in bad situations, right?”

[ 123 ] Davidson was concerned that “they” may come to search her house. She was obviously referring to the police. Something, referred to as “it”, was not at her house. It was in a safe place because of Davidson’s fears of a police raid. Shields did not think she was at risk for having her house searched. He agreed he could drive her “wherever” she needed to go when they meet up. August 31 – Kyle Shields and ST [ 124 ] Suzanne Davidson’s car accident was not merely of passing interest to Shields.

In a text on August 31 at 17:43:30 hours (Session 8184) , he told ST: “Ya that sucks and she owes me a chunk.” At 17:51:24 ST replied: “I figured that and someone told me cops found her stash in the car great huh that’s prob why she wont answer anyone.” (Session 8190) [ 125 ] I find that the August 31 texts were about Davidson’s car accident and arrest and indicate that these events had financial implications for Shields and others. August 4 – Kyle Shields and JW [ 126 ] On August 4, Shields expressed some concerns about the product he was handling.

His concerns emerged in a telephone conversation with JW. (Session 5163) JW was getting something from Shields which Shields was not eager to hold on to for too long. He told JW: “I just don’t wanna have it layin’ around you know what I mean?” [ 127 ] The fact that Shields did not want the product lying around suggests he wanted to limit how long he had it in his possession, no doubt because whatever it was, it was illegal to possess it.

The Only Rational Inference is Illegality [ 128 ] The only rational inference that can be drawn from Kyle Shields’ conversations with Ryan MacInnis on September 5 and 19, Suzanne Davidson on August 20, and JW on August 4, is that they were talking about something that was illegal – illegal to possess and illegal to transact, a controlled substance.

The content of the calls and what Shields said in the conversations and the August 31 text he sent (Session 8184) make this obvious. [ 129 ] The evidence, most notably the intercepted communications, leaves me with no doubt that Kyle Shields was selling and, on occasion, as I will discuss in due course, transporting a controlled substance to other people. [ 130 ] It is plausible that Shields may have been selling and transporting more than one type of commodity: certain of the calls suggest this and Sgt.

Vail’s evidence indicates that a controlled substances trafficker will often diversify, to expand his market and increase his profits. [ 131 ] That being said, the Crown’s case against Shields fails if there is a reasonable doubt that he was trafficking in cocaine but, it succeeds if that proof is established even if Shields may also have had a trade going in other substances. [ 132 ] The Crown submits the key that unlocks the question of whether cocaine was a controlled substance being trafficked by Shields lies in the coded language of the intercepts. I will be discussing that in due course.

The Pieces of the Puzzle [ 133 ] Crown and Defence both have likened this case to a puzzle with pieces that must be fitted together to create a picture of what Shields and Scott were involved in over the summer and early fall of 2011. The Defence submits that some of the pieces offered in evidence, notably certain intercepted conversations, either don’t fit into the Crown theory of the case or are simply obscure and unfathomable. In the Defence submission, this is where reasonable doubt lies.

It is the Crown’s submission that even if I can’t fit certain pieces of evidence into the puzzle, this does not undermine proof beyond a reasonable doubt. As long as a coherent picture of guilt emerges, a few missing or incompatible pieces don’t matter.

Ultimately, for the Crown’s case to succeed, the coherent picture has to be a picture of trafficking in, and conspiracy to traffic in, cocaine and, considering the whole of the evidence, including the incongruous pieces, I must have no reasonable doubt about this. [ 134 ] The Crown says there is a sticky web of evidence that binds Shields and Scott to the offences charged. In the Crown’s submission, this web of evidence is comprised of indicia of trafficking in cocaine – the presence of a stash house, the nature and frequency of the re- supplying of purchasers, what Sgt.

Vail called “re-upping”, the reasonable inferences that should be drawn from the intercepts, including the coded language used, that the conversations involved the cocaine versions of “stepping on” the product, “shorting”, and “fronting”, and the commonalities between the seized items from the various searches. I will examine this evidence with reference to the intercepts and while I appreciate there is an abundance of calls, it is unavoidable that I will have to reference some more than once.

The Value of Trusted Associates [ 135 ] The fact that Shields enjoyed a warm and convivial relationship with a number of people whose communications with him were intercepted is, of course, proof of nothing in itself. It is consistent however with what Sgt. Vail testified is characteristic of drug trafficking and the role of trusted associates and clients in the drug distribution hierarchy.

There is evidence of Shields’ concern about dealing only with people he knows and this will be apparent from the intercepts I will be reviewing. [ 136 ] The intercepts make it apparent that Shields had a particularly friendly relationship with John Field and was on very familiar terms with others, including Ryan MacInnis. What is notable is that calls to arrange meetings have a business not a socializing focus: any meetings at restaurants or bars are arranged for convenience because Shields is out for a meal or a drink. The Stash House at 1980 St.

Margaret’s Bay Road [ 137 ] No one has disputed that Apartment 12A at 1980 St. Margaret’s Bay Road was a stash house. The Crown alleges that John Field

used the apartment to stash his supply of drugs, including cocaine, and that he supplied cocaine from this off-site inventory to Kyle Shields for trafficking. Shields submits the evidence does not establish beyond a reasonable doubt that he was ever inside the apartment where the drugs were found. [ 138 ] There is no evidence that Patrick Scott was in any way associated with 1980 St. Margaret’s Bay Road. The Search of Apartment 12A, 1980 St. Margaret’s Bay Road [ 139 ] Apartment 12A at 1980 St. Margaret’s Bay Road was searched by police following John Field’s arrest on October 11 at his home.

Field’s home in Timberlea was 1 to 1.5 kilometers from 1980 St. Margaret’s Bay Road. [ 140 ] One of the keys seized from Field when he was arrested opened the dead bolt to Apartment 12A.

The area of primary interest to police was a closet in the apartment that contained a significant number of items suggestive of drug trafficking, and a locked safe. [ 141 ] From Apartment 12A, police investigators seized drugs and drug-related items, including: a functional digital scale analyzed to have cocaine and caffeine residue, located in the closet ( Exhibit 4, Photographs 312 and 313 ); a total of 4995 grams of marijuana contained in two black garbage bags – one with 8 vacuum bags filled with marijuana in the amounts of 504 grams, 450 grams, 446 grams, 440 grams, 449 grams, 450 grams, 447 grams, and 443 grams, and another black garbage bag containing 4 vacuum bags of marijuana; used and unused vacuum bags; a notebook with columns and numbers; packaging that included ziplock and vacuum bags; a hydraulic press located in the closet; different pieces of paper including what police believed to be a score sheet; a small black functional digital scale with residue of cocaine and caffeine ( Exhibit 4, Photograph 314 ); a black functional digital scale, brand name “J scale” which tested positive for cocaine and caffeine residue ( Exhibit 4, Photograph 315 ); 23 unopened 200 mg bottles – 100 tablets each - of caffeine pills, “Forever Fit”; a grinder, similar to a coffee grinder, and other items labeled by exhibit officers as “drug paraphernalia”; two address books primarily containing phone numbers; a “High Times” box and lid belonging to a digital scale that tested positive for cocaine and caffeine; loose marijuana in a ziplock and a Rubbermaid tub; and a Cusinart Spice and Nut grinder with white residue that was not sent for analysis ( Exhibit 4, Photographs 1038, 1039, and 1040 ). [ 142 ] The grinder and a large amount of packaged cocaine were found inside the safe which had to be drilled open. ( Exhibit 4, Photographs 1035, 1037 ) Sgt.

Vail observed that the grinder, which he examined, had white residue in it but no strong chemical smell associated with cocaine, which led to his opinion that the grinder had been used to pulverize caffeine tablets into a powder for use as an adulterating agent with the cocaine hydrochloride. [ 143 ] The cocaine found in the safe consisted of: 42 grams of crack cocaine ( Exhibits 65 and 66 ) - purity 64 percent; 134 grams of cocaine hydrochloride ( Exhibits 68 and 69 ) – purity 66 percent; 105 grams of crack cocaine ( Exhibits 75 and 76 ) - purity 66 percent, calculated as the base; 199 grams of cocaine hydrochloride ( Exhibits 78 and 79 ) – purity 64 percent; 191 grams of cocaine hydrochloride ( Exhibits 81 and 82 ) – purity 67 percent; 199 grams of cocaine hydrochloride ( Exhibits 84 and 85 ) – purity 71 percent; 200 grams of cocaine hydrochloride ( Exhibits 87 and 88 ) – purity 71 percent; 199 grams of cocaine hydrochloride ( Exhibits 90 and 91 ) – purity 69 percent; and 200 grams of cocaine hydrochloride ( Exhibits 93 and 94 ) – purity 65 percent. [ 144 ] Twenty-six (26) grams of cocaine and caffeine were located in a baggie on the floor of the closet. ( Exhibits 97 and 98 ) The cocaine was one percent. [ 145 ] Some of the cocaine from the safe was lumpy and hard, some was powdery and as noted, crack cocaine was also found. [ 146 ] It was Sgt.

Vail’s opinion that the seizures from 1980 St. Margaret’s Bay Road were consistent with cocaine processing for commercial trafficking purposes: the seized exhibits were evidence of cocaine being received in larger amounts, “stepped on”, and repackaged using the hydraulic press. Kyle Shields and the Stash House [ 147 ] Police surveillance puts Kyle Shields and John Field in close proximity to 1980 St. Margaret’s Bay Road. I will reference instances of this below.

Other examples are mentioned in the context of my discussing various intercepted communications for other purposes. [ 148 ] On July 5, at 18:54 hours, Cst. Bob Gould, who was set up at 1982 St. Margaret’s Bay Road, saw John Field’s vehicle, a brown Nissan Maxima, license plate EVG 437, parked in back of this building. Cst. Gould went on foot and saw there was no one in the vehicle. The Nissan was still there at 19:43 hours. (Police witnesses variously described John Field’s Nissan Maxima as “brown” or “beige”.) [ 149 ] At 20:00 hours, Cst.

Gould observed Kyle Shields in his black convertible BMW, license plate EUK 333, driving on St. Margaret’s Bay Road toward Timberlea, that is, away from Halifax and in the direction of the stash house. [ 150 ] At 20:06 hours, Cst. Gould saw this same black BMW parked at 1982 St. Margaret’s Bay Road. When Cst. Gould approached the vehicle on foot he saw it was unoccupied. He did not see Kyle Shields get out of the car or where he may have gone. At 20:21 hours, Cst. Gould saw Kyle Shields driving his BMW, leaving the parking lot and heading toward Lakeside. He did not note anyone else in the vehicle with Shields.

At 20:22 hours, Cst. Gould saw John Field’s vehicle leave 1982 St. Margaret’s Bay Road and head in the opposite direction, toward Hubley. [ 151 ] Cst. Gould identified Kyle Shields in court. He was familiar with Shields from conducting surveillance on him during Operation H- Timber. [ 152 ] Cst. Skidmore also testified about being involved in surveillance on July 5 and recalled seeing Kyle Shields in a black BMW, License Number EUK 333, at the Beechville Irving at 19:57 hours. It was his recollection that Shields was there until 20:25 hours. He also identified Shields in court.

[ 153 ] Cst. Skidmore’s evidence cannot be entirely correct. I do not know the exact proximity of the Beechville Irving to 1982 St. Margaret’s Bay Road although they are fairly closely situated, but at 20:00 hours, a time when Cst. Skidmore testified Shields was parked at the Beechville Irving, Cst. Gould observed him driving on St. Margaret’s Bay Road toward Timberlea. [ 154 ] I find that Cst. Gould’s observations made while he was at 1982 St. Margaret’s Bay Road are to be preferred over what Cst.

Skidmore recalls and establish that on July 5, for a time in the evening, vehicles that John Field and Kyle Shields had been driving were parked there. Field and Shields were nowhere to be seen. The only reasonable inference is that they went into the building where there was an apartment to which Field had a key. [ 155 ] On July 21 at 18:49 hours, Cst. Gould observed Shields’ Jetta was on Highway 3, heading to Lakeside, returning to Halifax. It had just left 1982 St. Margaret’s Bay Road. Cst. Gould observed a male driver and a female passenger.

At 18:53 hours, the Jetta turned left into Bayers Lake and at 18:57 hours, Shields had pulled into Eastside Billiards and walked inside. Photographic evidence ( Exhibit 4, Photograph 1076 ) establishes that Kyle Shields was driving a silver Jetta on July 21. [ 156 ] Throughout the intercepts there are references by Shields and Field to meeting up somewhere that is not specifically described or identified.

For example, on July 26, at 16:37:50 hours, Shields was on the phone to John Field telling him he is “Just gonna come out there to see you” (Session 4022) “Out there” cannot be inferred to mean Field’s residence as Field tells Shields he is waiting for his wife to get back and then he can “head out.” He doesn’t expect that will be long, probably about half an hour. I infer that once his wife got home Field planned to head out and meet up with Shields. [ 157 ] By 18:57:57 hours on July 26, Shields and Field have still not met up. Field calls Shield’s mobile and someone answers who is not Kyle Shields.

The voice is different. He tells Field that “he” is in the bathroom. When “he” takes the phone it is unmistakably Kyle Shields. (Session 1128) [ 158 ] Shields had stopped off to get something to eat. He tells Field he has eaten and Field says he will meet Shields there “in fifteen.” “There” is not identified. [ 159 ] Almost immediately after the conversation with Field, at 19:00:52 hours, Shields texts JW to suggest they meet at the Irving on St.

Margaret’s Bay Road in 25 minutes. (Session 4067 and Session 4068 (19:01:16 hours)) The only reasonable inference is that wherever Shields was meeting Field, it was close to the Irving on St. Margaret’s Bay Road. [ 160 ] On a number of occasions when Shields wanted to meet up with Field, Field told him he was waiting for his wife to get home. I already mentioned one example of this. Another example occurred on July 25: at 13:59:35 hours. Shields call

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