Her Majesty the Queen - v. -, 2018 SKPC 21

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 021 Date: March 23, 2018 Information: 24451671 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Justin David Maier Appearing: Ms. Stacey Cameron For the Crown Mr. Brian Pfefferle For the Accused JUDGMENT B.G. MORGAN , J [ 1 ] Mr. Maier faces four charges along with one or more co-accused as a result of a police investigation into drug trafficking in Saskatoon, Saskatchewan. There are essentially two arguments against Mr. Maier.

The first is that he conspired with each of Todd Crumly and Steven Mukanik, or either of them, to commit the indictable offence of trafficking cocaine, thereby committing an offence contrary to s. 465(1)( c). The second charge is similar, except it alleges a conspiracy to traffic in cannabis marihuana, . [ 2 ] These charges allege that the conspiracy occurred between January 18, 2016, being the date the investigation started and July 27, 2016, being the date of Mr. Maier’s arrest.

[ 3 ] In addition, Mr. Maier is charged with two further charges with Mr. Crumly only, being that he unlawfully had in his possession cocaine for the purpose of trafficking, and unlawfully had in his possession cannabis marihuana for the purpose of trafficking. Both of those charges are alleged to have occurred April 15, 2016. These charges arise out of a search at the Crumly residence in the early morning hours of April 16, and are formally particularized in the Information, as are charges against each of Mr. Crumly, Mr. Mukanik, and Jasmine McCrae.

As none of the other individuals named on the Information were participants in Justin Maier’s trial, it follows that any factual determinations made here are made only in relation to Mr. Maier. [ 4 ] I will first review the applicable law, briefly set out the Crown and defence arguments, review the evidence, making factual determinations, and will finally apply the law to those facts to determine whether or not any or all of these charges have been established beyond a reasonable doubt. The Law Conspiracy [ 5 ] The applicable statutory provisions of conspiracy are set out in s. 465(1) (

c) of the Criminal Code , which provides: 465.

(1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy: . . . (

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

a) or (

b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable; [ 6 ] The actus reus is dealt with by the Supreme Court of Canada in R v J.F. , 2013 SCC 12 , [2013] 1 SCR 565 which adopted an earlier case’s reasoning at para 51: The actus reus of the crime of conspiracy lies in the formation of an agreement, tacit or express, between two or more individuals, to act together in pursuit of a mutual criminal objective.

Co-conspirators share a common goal borne out of a meeting of the minds whereby each agrees to act together with the other to achieve the common goal. [ 7 ] Thus, the actus reus of this offence differs from what might be considered a more conventional criminal offence, such as an assault. The actus reus of a conspiracy is complete once two or more individuals agree to act together to achieve an unlawful purpose, in this case, the purpose being agreement to traffic in cocaine and/or marihuana. [ 8 ] The mens rea is the intention to actually carry out the agreement.

Put another way, an idle discussion between friends as to how one might break into the Royal Canadian Mint is not a crime; however, once those friends agree to carry out that act, the offence is complete, irrespective of whether or not any further acts are done to actually carry out their serious intention. [ 9 ] R v Alcantara , 2012 ABQB 521 , contains an excellent and well-reasoned

summary of the law of conspiracy. Although a lengthy excerpt, it has direct application to this case, and I adopt the following portion of the decision in its entirety: 2. The elements of conspiracy

[38] In R v Alcantara, 2009 ABQB 524 , 24 Alta LR (5th) 248 at para 31 (Koker B Alcantara), Sulyma J stated that forpurposes of s 465(1)(

c) of the Code, a conspiracy is an agreement between two or more persons to commit an unlawful act.

In order toconvict under s 465(1)(c), the Crown must prove the following two elements beyond a reasonable doubt (Koker B Alcantara at para 32,citing R v Lam, 2005 ABQB 759 at para 25, 70 WCB (2d) 664 and R v O'Brien, (SCC), [1954] SCR 666): (1) an agreement by two or more persons to commit a criminal offence; and (2) an intention to put their common design into effect. [39] These essential elements of conspiracy are sometimes broken down further into three parts (see R v Steinhubl, 2010 ABQB 602 at para 56, 492 AR 1, referring to O'Brien): (1) an agreement by two or more persons to commit a criminal offence; (2) an intention by two or more persons to agree; and (3) an intention to put this common design into effect. [40] Sulyma J summarized the actus reus and mens rea of conspiracy as follows (Koker B Alcantara at paras 33 39): In R. v.

Papalia; R. v. Cotroni, (SCC), [1979] 2 S.C.R. 256 at 276, the court discussed the actus reus of conspiracy,stating: The word "conspire" derives from two Latin words, "con" and "spirare", meaning "to breath together." To conspire is to agree. Theessence of criminal conspiracy is proof of agreement. On a charge of conspiracy the agreement itself is the gist of the offence ... Theactus reus is the fact of agreement ... The agreement reached by the co-conspirators may contemplate a number of acts or offences. Anynumber of persons may be privy to it.

Additional persons may join the ongoing scheme while others may drop out. So long as there is acontinuing overall, dominant plan there may be changes in methods of operation, personnel, or victims, without bringing the conspiracyto an end. The important inquiry is not as to the acts done in pursuance of the agreement, but whether there was, in fact, a commonagreement to which the acts are referable and to which all of the alleged offenders were privy. There must be a meeting of the minds, a common purpose or mutuality of object between the conspirators. The agreement does not have to be explicit.

An implied or tacit agreement may provide the actus reus of conspiracy. The Crown need not establish that the parties to the conspiracy were in direct communication with one another or even that they wereaware of the identify of their fellow conspirators. Nor need it prove each conspirator was aware of the details of the common scheme, aslong as it shown each “was aware of the general nature of the common design and intended to adhere to it:” R. v. Longworth (1982), (ON CA), 67 C.C.C. (2d) 554 at para. 49 (Ont. C.A.).

The Court may find that some but not all of those alleged to have been conspirators were in fact members of the conspiracy, as long as itfinds there were at least two members of the conspiracy. In R. v. O'Brien, (SCC), [1954] S.C.R. 666, the court confirmed that the mens rea of conspiracy consists of an actual

intention on the part of the accused to agree to pursue a common unlawful object and an intention to put the common design into effect. The offence is complete on the formulation of an agreement to perform the illegal act, even if no subsequent acts in furtherance of theagreement are undertaken. Any such acts would simply serve to prove the essential ingredient of the offence; namely, the agreementitself: R. v.

Douglas, (SCC), [1991] 1 S.C.R. 301 at para. 28. [Emphasis added.] [41] Sulyma J explained the need to consider all of the evidence in context before coming to a conclusion on the offence of conspiracy(Koker B Alcantara at para 142): All of the evidence regarding the conspiracy must be considered in context. Indeed, as stated in R. v. Ahern, it would be unusual for theCrown to be able to garner direct evidence of persons conspiring.

In most instances, as in the case before me, the trier of fact will have toweigh each piece of evidence and consider it in the nature of a building block in reaching a conclusion as to whether the conspiracy hasbeen proven beyond a reasonable doubt. As stated in [R. v. Paradis, (SCC), [1934] S.C.R. 165 at 168] the actualagreement may have to be gathered from the cumulative effect of “several isolated doings,” each possibly having little or no value takenby itself.

Also, it is necessary to remember that the inquiry is not as to the acts done in furtherance of the agreement, but whether in factthere was a common agreement. Possession for the Purpose of Trafficking [10] Section 5(2) of the Controlled Drugs and Substances Act provides: No person shall, for the purpose of trafficking, possess a substance included in

Schedule I, II, III, IV. Cocaine is in

Schedule I, and cannabis marihuana is in

Schedule II. [11] The relevant definition of trafficking in this case is set out in s. 2 of the Controlled Drugs and Substances Act as follows:“traffic” means . . .

a) to sell, administer, give, transfer, transport, send or deliver the substance; . . . [12] “Possession” within the meaning of the Controlled Drugs and Substances Act means possession as set out in 4(3) of theCriminal Code, which reads: For the purposes of this Act, (

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

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

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [13] In R v Morelli, 2010 SCC 8 para 15, 252 CCC (3d) 273 the Court stated that this definition includes personal possession,constructive possession, and joint possession. That case goes on to give further

definitions of personal possession and constructivepossession at paras. 16 and 17 as follows:

[16] On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that heor she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with anact of control (outside of public duty): Beaver v.

The Queen, (SCC), [1957] S.C.R. 531 at pp. 541-42. [17] Constructive possession is established where the accused did not have physical custody of the object in question, but did have it “inthe actual possession or custody of another person” or “in any place, whether or not that place belongs to or is occupied by him, for theuse or benefit of himself or of another person” (Criminal Code, s. 4(3)(a)).

Constructive possession is thus complete where the accused:(1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that placebelongs to him, and (3) intends t have the object in the particular place for his “use or benefit” or that of another person. [14] The concept of joint possession is discussed in R v Fisher, 2005 BCCA 444 at para. 24, 200 CCC (3d) 338 where it is stated: [24] As is evident from my

summary of the law, neither constructive possession nor joint possession requires proof of manualhandling... To establish joint possession, the Crown was required to show that someone other than the appellant had possession of thecocaine with his knowledge and consent and that he had some measure of control over it. [15] Thus, in order to secure a conviction on the conspiracy charges, it will be necessary for the Crown to prove beyond areasonable doubt that there was in fact an agreement to traffic in both cocaine and marihuana, and that there was an actual intention onthe part of Mr.

Maier to agree to pursue this agreement, and an intention to put the plan into place. [16] In order to secure a conviction on either of the possession for the purposes of trafficking charges, it will be necessary for theCrown to prove beyond a reasonable doubt that Mr. Maier had either joint or constructive possession of the drugs found in the Crumlyresidence. This will require reliance on circumstantial evidence, as Mr Maier was not found in actual possession.

Therefore, the rulingin R v Griffin, 2009 SCC 28, 244 CCC (3d) 289 comes into play, which states that the trier of fact “...must be satisfied beyond areasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty”. (para33). [17] Finally, as stated in Stewart v the Queen, (SCC), [1977] 2 SCR 748, and has been said in a number of cases,I need to consider the whole of the evidence in considering whether or not proof beyond reasonable doubt has been established by theCrown.

That is, whereas evidence by its nature may be introduced on a piece by piece basis, each individual piece of evidence is not tobe looked at in that fashion. Rather, it is the totality of the evidence that is important. [18] It is useful to start by reviewing the evidence and making findings of fact. Prior to doing that, I will lay out, in a

summaryform, the theories of the Crown and defence. [19] On the conspiracy, the Crown argues that, in particular, certain text messages establish that there is a clear agreement for adrug operation. With respect to the trafficking, the Crown argues that the evidence establishes that purpose, as it establishes that Mr.Maier is in either joint or constructive possession of the drugs that were located in the Crumly residence. [20] The defence argues, in

summary, that whereas there may be “numerous instances of suspicious meets”, the fact that Mr.Maier is an admitted user puts that in perspective. It is argued as well that Mr. Maier’s connection to the drugs in the residence is tootenuous to allow a conviction. [21] Against this background, I will lay out the broad parameters of what occurred, dealing with essential findings where necessaryand in more detail later in this decision. [22] Those broad parameters are not in dispute, and I find that the following occurred.

[ 23 ] The Combined Forces Special Investigation Unit (CFSIU) targeted Justin Maier based on suspicions he was involved with the drug trade in Saskatoon. The investigation started January 18, 2016 and ended July 27, 2016 with his arrest. This investigation consisted partly of surveillance of Mr.

Maier’s residence and the vehicle he often drove, being a black 2012 Acadia that was registered to his common-law partner. [ 24 ] During this surveillance, the investigators became aware of Todd Crumly, and the investigation therefore expanded to include surveillance on the Crumly residence at 107B Olmstead Road in Saskatoon, as well as a white 1999 GMC Sierra truck registered to Mr. Crumly. [ 25 ] There were a number of occasions during which Mr. Maier was seen entering this residence, either with Mr. Crumly, or on his own; Mr.

Maier had a key to that residence. [ 26 ] A number of short meetings were observed, either by Mr. Crumly with other persons, or by Mr. Maier, and on occasion between Mr. Crumly and Mr. Maier. Most of these were with each party being in a different vehicle, and each vehicle would leave separately after a quick rendevous in a parking lot. [ 27 ] After one such meeting on April 15, the police stopped Mr. Mukanik, and searched his vehicle. Among other things, a Samsung phone was located in the console.

It quickly became apparent that a number of texts and messages had been exchanged with an individual known as “Blondie”, whose cell number was 306-290-1682. [ 28 ] Mr. Crumly’s vehicle was also stopped that day, and he was arrested. [ 29 ] Based on events noted to that date, the police obtained and executed a search warrant at the Crumly residence on Olmstead Road in Saskatoon during the early morning hours of April 16, 2016.

Among other things, a significant amount of marihuana and cocaine was seized. [ 30 ] An Agreed Statement of Admissions (Exhibit P-1) was tendered at the outset of the trial, which contained admissions respecting various observations made by the investigators (mostly with respect to Mr. Crumly’s behaviour), texts of certain cell phone messages, what was seized at the Crumly residence on April 16, as well as vehicle tracker data.

It is admitted that all the cocaine and marijuana that was located at the Crumly residence on the April 16, 2016 search was possessed for the purpose of trafficking. [ 31 ] The broad issue, then, is the involvement, if any, of Mr. Maier in any of these charges. The Crown asserts that he is Blondie, that he was well aware of the fact that there were drugs in the Crumly residence, and that he in fact was helping to orchestrate the sale of same drugs. [ 32 ] Much of the documentation that has been admitted is supplemented by evidence of the various police officers involved, particularly as it pertains to Mr.

Maier. [ 33 ] As Mr. Maier testified, I need to apply the reasoning set out in R. v W.(D), so I will now turn to his evidence, and the application of that test. [ 34 ] Mr. Maier seemed to have a very selective memory, especially when it came to explaining very specific meetings with Mr. Crumly; he could recall details that would exonerate him, on the one hand, or he simply could not recall whatsoever, on the other hand, when an explanation might be expected.

[ 35 ] Mr. Maier’s evidence was that he would occasionally go over to let out and feed Mr. Crumly’s dog, and would also go there to buy drugs or do drugs. He described the general state of that house as being “gross”, stating that it was “a mess”. [ 36 ] With respect to his relationship with Mr. Crumly generally, as it pertains to drug use, he said he never sold any drugs to Mr. Crumly, and was never involved in storing cocaine with him. [ 37 ] With respect to the cell phone number attributed to “Blondie”, he testified that he had never had that number. [ 38 ] Mr.

Maier testified that he used marihuana daily, perhaps two to five times a day, and would use cocaine daily as well, his use ranging from a gram to 3.5 grams. He did say he bought drugs from Mr. Crumly “quite a bit”, and that he had also purchased from Mr.

Mukanik, although he did not know the latter’s last name until learning of it during these proceedings. [ 39 ] With respect to the various meets that are part of the Crown’s case, he said he could not recall specifics of those occasions, but “most of the time I was probably buying drugs”. [ 40 ] He denied being the sender of the text messages with respect to “Blondie”, and denied having any plan or being part of any plan to sell drugs to anybody. [ 41 ] During his examination-in-chief, Mr. Maier seemed quite self-assured and cooperative. However, during cross-examination, it was a different story.

I found him to be very nervous and short on detail during cross-examination and those answers that were more detailed were not believable. [ 42 ] As one example, he had testified that he did not really know Mr. Mukanik, yet he agreed during cross-examination that he was aware that Mr. Mukanik bought his cocaine from Mr. Crumly. If he had such a distant relationship from Mr. Mukanik, I question why he would know where Mr. Mukanik bought his cocaine. Further, if in fact he knew it came from Mr. Crumly, there would be no need to deal with Mr. Mukanik at all. His evidence was that he would often go to Mr.

Crumly directly and meet him at the latter’s house, or meet him at the Sobey’s parking lot to purchase cocaine from him, and he received a good price from Mr. Crumly, if he was charged at all. Mr. Maier seemed distinctly uncomfortable when discussing Mr. Mukanik during cross-examination. [ 43 ] As another example, at one point during cross-examination, he was questioned about a meeting he was observed having with Mr. Crumly in the Midtown Plaza parking lot. This reference was to an incident on April 4,2016, when surveillance noted the Acadia vehicle pull up next to Mr.

Crumly’s vehicle in the underground parkade at the Midtown Plaza. Mr. Maier was observed standing by the open rear door of his Acadia and Mr. Crumly was observed putting a large black duffel bag onto the front passenger seat of his GMC Sierra. Mr. Maier had no recollection of this event at all. [ 44 ] However, he did recall meeting Mr. Crumly for one minute on April 15 near Dunlop Street in Saskatoon, (this was just prior to Mr. Mukanik being arrested), and stated at that time Mr. Crumly sold him 3.5 grams of cocaine. Further, on one specific occasion when he met Mr.

Crumly in the Sobey’s parking lot and received a paper bag from him, he said at that point he had purchased 1.5 ounces of cocaine. Again, I question how he recalled these specific occasions, right down to quantity, when he testified he met Mr. Crumly at the Sobey’s parking lot “quite a few times” as the Sobey’s parking lot was close to Mr. Maier’s residence. [ 45 ] However, the most egregious example of Mr. Maier’s efforts to explain his behaviour during cross-examination deals with his evidence when he was questioned about letting the dog out for a walk.

When asked if he let the dog out through the front door that is clearly visible in the surveillance photos, he stated he would let it out through a window in the kitchen that led to the yard. Ms. Cameron returned to this point near the end of her cross-examination, and referred to photo 11 in tab E of Exhibit P-1, which was a photo that Mr. Maier agreed was a photo of the window he said that he used to let the dog out.

Leaving aside the issue of who lets a dog out through a kitchen window, especially when the evidence of the dog feces all over the house would suggest that perhaps that dog was rarely if ever, let out, and leaving aside the issue that if there was a yard, there is presumably access to that yard directly from the residence, the particular window he referred to sits directly above a sink in the kitchen, and has a ledge on it, which appears to contain a toaster oven, a spice rack, and a couple of other items being stored there.

The picture of that general area shows that any open ledge, as well as the top of the fridge is filled with items that appear to be stored on those locations. Although there is no evidence of the size of the dog, and of

course I cannot speculate on that, the simple fact is that it would be difficult to use such a window, even if one were to remove all those items, to let anything out the window, especially as this window is over a sink, and less than ideally accessible in the first place. With the items on the ledge, it would be impossible to access that window at all. I simply cannot accept Mr. Maier’s evidence on this point. [ 46 ] As well, the tracking device on the Acadia that Mr. Maier often drove (owned by Ms. Nichol’s, his partner at that time), coupled with surveillance evidence, placed both Mr.

Maier and that vehicle at the Crumly residence, at the same time Mr. Crumly was there, on each of March 5, 6, 7, and 8, 2016. Obviously, there would be no need for Mr. Maier to be there to walk the dog, or let it out, on those dates. I accept that there were times when he was there on his own, letting himself in with his key, but I do not accept those other occasions had anything to do with dog care. [ 47 ] In my view, it defies belief to conclude that Mr. Maier, as he says, had no knowledge of any drugs being stored at the Olmstead residence.

The photos taken and exhibited at tab E of Exhibit P-1, being of the search, certainly confirm that the place was “gross”; to say it was extremely untidy would be more than charitable. Things were strewn everywhere. Where exactly one might sit to visit and/or do drugs is a mystery. More to the point, however, there were a number of items in that residence that would clearly be identifiable as being involved in the drug trade. Whereas I accept that Mr.

Maier did not actually live at that residence, nor did he have personal effects such as clothing there, this house was obviously connected to drug storage, processing, and the like. And Mr. Maier was a frequent visitor to that residence, at least until it was cleaned out during the search. [ 48 ] Further, as pointed out by Ms. Cameron in argument, Mr. Maier had a tendency to downplay his drug use when he was queried as to how he could possibly afford his usage, based on his salary and work at the time, and tended to increase his stated usage when higher usage would explain his frequent forays to meet with Mr.

Crumly. I further cannot accept that in particular he smoked marihuana two to five times a day without having to occasionally purchase it, as Mr. Maier suggests. [ 49 ] Further, Mr. Maier testified to purchasing drugs from a number of different individuals, yet by his own admission, he would get a good price from Mr. Crumly for cocaine and would occasionally get it for free. Why go elsewhere? [ 50 ] Overall, I found Mr. Maier’s evidence to be contrived and in many places contrary to the evidence. [ 51 ] Whereas I accept some of Mr.

Maier’s evidence on uncontentious issues, I reject it when it comes to anything material to this trial. Further, his evidence does not leave me in any state of doubt. Accordingly, I now have to turn to the evidence that I do accept, to see whether or not that evidence satisfies me of his guilt on some or all of the charges beyond a reasonable doubt. [ 52 ] I will start with the trafficking charges. Located during the search of the Crumly residence was 16,494 grams of marihuana, clearly packaged for further distribution. There were 1,046.8 grams of cocaine, packaged the same.

Also located was a large drum containing 51.4 pounds of a cutting agent, as well as a large hydraulic press and weights. Scattered around were other clear indicia of storage and packaging of drugs. [ 53 ] Whereas the drugs and press were not in plain view, one would not expect them to be, in the event of a casual visitor coming over, or of a break and enter. But these items were easily accessible. It would be inconceivable that Mr. Crumly would allow Mr. Maier to have a key to the property if Mr.

Maier did not know of these items being present; the minimum value of the drugs alone was over $120,000.00, and that would be if it was sold in bulk. The chance of discovery would simply be too high for such a valuable investment for Mr. Crumly to give a key to someone who did not have knowledge of those drugs. [ 54 ] Mr. Maier’s explanation of having a key so he could let the dog out, and/or feed it, is preposterous. Mr. Maier had knowledge of the drugs. He had control as evidenced by his unimpeded access to that residence. He had the requisite elements of knowledge and control; he had possession.

I am satisfied beyond a reasonable doubt he is guilty of each of the third and fourth counts, being possession of cocaine and marihuana respectively for the purpose of trafficking. [ 55 ] The conspiracy charge depends largely on whether or not I am satisfied that Mr. Maier and “Blondie” are one and the same person, as well as what to make of the evidence of the various encounters between Mr. Maier and, primarily, Mr. Crumly.

[ 56 ] Crown counsel has provided a useful

summary that nicely connects up various observations to specific dates. A sampling of some of these puts matters into context. [ 57 ] On January 26 (all dates are 2016), Mr. Maier met Mr. Crumly in the Sobey’s grocery store parking lot on 8 th Street. Both were in a vehicle which did a quick “loop” and then re-parked. Each left separately. Mr. Crumly then went to Value Village parking lot in the Stonebridge neighbourhood and met briefly with a number of individuals. [ 58 ] This was one example of a number of brief meetings.

Expert evidence confirmed such meetings were consistent with drug trafficking. [ 59 ] On February 22, Mr. Maier had a short meeting with an individual outside the Maier residence. Mr. Maier then drove to the Olmstead residence and let himself in and out with the use of a key he had. [ 60 ] On March 2, Mr. Maier drove to the Circle Park mall, got into a small car, and drove with that person to the Crumly residence. He used the key to go inside for 36 minutes, while the female waited outside, and he then returned to the car. [ 61 ] Later on this date, cell phone records disclose that Mr.

Mukanik wanted to meet with Blondie after 9:00 p.m. Mr. Crumly carried a backpack from his residence and met Mr. Mukanik for one minute. He then returned to his residence without that backpack. [ 62 ] On March 5, Blondie and Mr. Mukanik arranged a meeting via text messages. At 4:43 p.m., Blondie texted that he would be there in two minutes. Five minutes later, Mr. Maier showed up. [ 63 ] On March 14, Blondie and Mr. Mukanik arranged a drug deal, one in which Mr. Mukanik did not show up at the arranged time. Blondie texted to Mr.

Mukanik, inquiring where he was, stating that “he”, referring to a third party, was sitting at the meeting spot waiting. [ 64 ] On March 21, Blondie and Mr. Mukanik arranged to meet near a “pet store”. At 5:12 p.m., the Acadia is seen at the Petsmart parking lot. At 5:13 p.m., Blondie texted to Mr. Mukanik that he was “here”. [ 65 ] On March 23, Mr. Crumly exited his residence carrying a number of items, among them a brown paper bag. Mr. Maier met Mr. Crumly for one minute at the Sobey’s parking lot, with Mr. Maier returning to his vehicle carrying that brown paper bag. [ 66 ] On March 28, Blondie asked Mr.

Mukanik to bring him 3.5 grams of marihuana for personal use. They arranged to meet at Tim Horton’s. The tracker report shows that the Acadia was there. [ 67 ] On April 4, Mr. Crumly and Mr. Maier met briefly at the underground parkade at Midtown Plaza, and Mr. Crumly took a large hockey bag or duffel bag out of the Acadia. Each then left separately. Two bags of similar size were located at the Crumly residence during the search on April 16, each filled with large amounts of marihuana. [ 68 ] On April 16, Mr. Maier went to the Crumly residence and let himself in with a key. He left after one minute.

By this time, the search had been completed. [ 69 ] These examples are illustrative of some of the interactions between Mr. Maier, Mr. Crumly, and Mr. Mukanik. I have

rejected Mr. Maier’s evidence that he was “probably buying drugs”. On some of these occasions, he was clearly giving something to the person he met. [ 70 ] Dealing with the tracking device evidence generally, the evidence confirmed that on many occasions, both the tracking device on Ms. Nichol’s vehicle and surveillance placed Mr. Maier at the Crumly residence or at some place where a meeting had been pre- arranged. On other occasions, the tracking device evidence established that this vehicle was in a number of areas for short periods of time. The evidence is that Mr. Maier usually drove the Acadia, although Ms.

Nichols did as well. The evidence also placed Mr. Maier in other vehicles. I have considered that the tracking device showed lengthy periods of time when the vehicle was at the shared residence of Ms. Nichol and Mr. Maier, making it possible that either may have taken the vehicle on some occasions. However, the tracking history of the vehicle generally showed a pattern of short periods of time where it was stopped at various locations all over the city. This is consistent with the use of the vehicle by Mr.

Maier in delivering drugs. [ 71 ] The evidence of the text messages and phone calls showed a lot of activity between “Blondie” and each of Mr. Mukanik and Mr. Crumly. Interestingly, there was also one call from “Blondie” to Ms. Nichols, which could indicate that it was Mr. Maier who placed that call. As mentioned,, Mr. Maier and “Blondie” had a tendency to be in the same area at the same time, often when “Blondie” was meeting someone to fill a drug order. [ 72 ] Although there was no direct evidence connecting “Blondie” or the cell phone to Mr. Maier, the circumstances were such that I conclude Mr.

Maier is in fact “Blondie”. There is simply no other logical conclusion I can draw. [ 73 ] It does not necessarily follow that because I found Mr. Maier to be in possession of the drugs located at the Crumly residence that he is also a member of a conspiracy to sell those drugs, although such a connection can be made; in some instances, the evidence connects and supports both sets of charges. [ 74 ] I am satisfied beyond any doubt that a conspiracy as alleged existed, and although I cannot be sure of precisely who was in it, I am absolutely certain that each of Mr. Crumly and Mr. Maier, and I suspect Mr.

Mukanik, were parties to it. In particular, Mr. Maier either directly trafficked, or he quarter-backed such trafficking. I find there was an agreement to traffic in the named drugs and that there was an intention to further that agreement, and that concrete steps were taken to further it. The requisite elements of each conspiracy charge have been established beyond a reasonable doubt. I find Mr. Maier guilty of each of counts 1 and 2. [ 75 ] In conclusion, I find Mr. Maier guilty of all charges. ______________________________ B. Morgan, J