2014 QCCA 95, 2014 QCCA 95

Unofficial English Translation Savari Carbonnel c. R. 2014 QCCA 95 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005158-124 (500-73-003589-112) MINUTES OF HEARING DATE: January 17, 2014 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. MARIE-FRANCE BICH, J.A. MARTIN VAUCLAIR, J.A. APPELLANT COUNSEL WAGNER ALEXANDER SAVARI CARBONNEL Mtre Clemente Monterosso Clément Monterosso Avocats RESPONDENT COUNSEL HER majestY THE QUEEN Mtre Carly Norris Public Prosecution Service of Canada

On appeal from a judgment rendered on March 27, 2012, by the Court of Quebec, Criminal and Penal Division, District of Montreal (the Honourable Yves Paradis). NATURE OF APPEAL : Appeal of conviction Court clerk: Nadia Samy Courtroom: Louis-H-Lafontaine HEARING 9:30 a.m.: Hearing continued from January 14, 2014. Counsel were excused from having to attend the hearing. By the Court: Judgment – see page 3. Nadia Samy Court clerk PER CURIAM JUDGMENT

[1] The appellant was convicted of the following offences: (1) conspiracy to import cocaine, possession of cocaine for the purposeof trafficking, and trafficking cocaine, (s. 465 Cr. C., together with sections 5 and 6 of the Controlled Drugs and Substances Act;[1]) and(2) commission of such offence for the benefit of, at the direction of, or in association with, a criminal organization (section 467.12 Cr.C.).

He appeals claiming essentially that this double conviction is unreasonable, and criticizing the trial judge for various errors in law. * * [2] The appeal must be dismissed concerning the charge of conspiracy, as the appellant’s involvement therein has been provenbeyond a reasonable doubt. [3] It is true that the appellant was late in joining the group of conspirators and that his role in the conspiracy, as far as we know,was limited.

His participation was nonetheless established through the testimony of a plainclothes officer who pretended involvementand who, in this capacity, was present during the conspirators’ last meeting, on April 15, 2011. The appellant, who is an acquaintance ofone of the conspirators,[2] attended this meeting, and it was there that the plainclothes officer met him for the first time.

It must bementioned that the testimony of this officer was deemed credible in every regard and moreover was not contradicted. [4] Contrary to the arguments of counsel for the appellant, the judge did not err in applying the principles of R. v. Carter.[3] Thefirst two elements of the test set forth in that judgment are present.

We can move past the existence of the conspiracy, which is admittedand demonstrated by overwhelming evidence.[4] As for the evidence that is “directly admissible against him without reliance upon thehearsay exception raising the probability of his membership”,[5] the judge found that it existed and was sufficient. In this regard, henoted the appellant’s presence at the meeting on April 15, 2011, in particular.[6] He was right to do so.

In the circumstances of thepresent case, it is indeed unlikely that the conspirators would have accepted someone at the meeting (the ins and outs of which weredescribed in detail by the plainclothes officer), who was not an active member of the conspiracy, just as it is unlikely that someone whowas not a member of the conspiracy would have attended the meeting or stayed there.

Furthermore, at this stage, we cannot overlook thedynamics of the meeting, as witnessed by the plainclothes officer, or the series of interactions between those present, including theappellant, and the contemporaneity of the appellant’s actions and some of the comments made by the others which, unless we are to denythe obvious, are entirely consistent with his membership in the conspiracy.

Overall, this evidence makes it likely (on a balance ofprobabilities) that he participated in the conspiracy (in other words, it makes it probable that he was involved in the conspiracy).[7]Contrary to the appellant’s assertion (his main argument at the hearing), the judge did not err in law (or in fact, for that matter) at thisstage of the Carter test. [5] Furthermore, given this same proof of the actions of the appellant and the other conspirators, combined with all the factsadmitted by the defence, the trial judge’s finding that the appellant was a member of the conspiracy was justified, based as it was on“powerful circumstantial evidence from which membership in the conspiracy can be inferred”,[8] beyond any reasonable doubt. [6] It is not necessary to consider the argument made by the appellant in his factum (to which he referred at the hearing), claimingthat part of the evidence that the judge took into account fell into one of the rare cases of exclusion under R. v.

Mapara.[9] [7] All things being considered, the conviction is clearly not unreasonable and nothing in the reasoning of the judge, who did notcommit any error in law, authorizes this Court to intervene. * * [8] It is appropriate, however, to allow the appeal concerning the second count. [9] The trial judge rendered judgment on March 27, 2012, a few months before the Supreme Court ruling in R. v.

Venneri.[10]Undoubtedly, had he had the benefit of this judgment, he would have found, as the Court does here, that the respondent did not succeedin establishing beyond a reasonable doubt the constituent elements of the offence set out under

section 467.12 Cr. C., the first of whichwas, of course, the existence of a criminal organization within the meaning of subsection 467.1(1) Cr. C. [10] Fish J. wrote the following, for the Court, in Venneri: [25] To secure a conviction under s. 467.13, the Crown must prove, as a preliminary matter, the existence of a criminal organizationand Venneri’s membership in it. “Criminal organization” is defined in s. 467.1 as follows: 467.1 (1) … “criminal organization” means a group, however organized, that (

a) is composed of three or more persons in or outside Canada; and (

b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed,would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of thepersons who constitute the group.

It does not include a group of persons that forms randomly for the immediate commission of a single offence. [26] The parties disagree as to the degree of organization or structure required to support a finding that a group of three or morepersons constitutes a criminal organization under the Code. [27] Some trial courts have found that very little or no organization is required before a group of individuals are potentially capturedby the regime: see R. v. Atkins, 2010 ONCJ 262 ; R. v. Speak, (Ont. S.C.J.). Others, properly in my view,

have held that while the definition must be applied “flexibly”, structure and continuity are still important features that differentiate criminal organizations from other groups of offenders who sometimes act in concert: see R. v. Sharifi , [2011] O.J. No. 3985 (QL) (S.C.J.), at paras. 37 and 39 ; R. v. Battista , 2011 ONSC 4771 , at para. 16 . … [29] I agree with Mackenzie J.A. that a flexible approach favours the objectives of the legislative regime. In this context, flexibility signifies a purposive approach that eschews undue rigidity.

That said, by insisting that criminal groups be “organized”, Parliament has made plain that some form of structure and degree of continuity are required to engage the organized crime provisions that are part of the exceptional regime it has established under the Code . [30] Qualifying “organized” in s. 467.1 by “however” cannot, as a matter of language or logic, be taken to signify that no element of organization is required at all. “Organized” necessarily connotes some form of structure and co-ordination, as appears from the definition of “organized” in the Shorter Oxford English Dictionary on Historical Principles (6th ed. 2007), vol. 2: Formed into a whole with interdependent parts; coordinated so as to form an orderly structure ; systematically arranged. [Emphasis added; p. 2023.] In French, the

definitions in Le Grand Robert de la langue française (electronic version) are consistent with this: it defines the noun “ organisation ” as the [ translation ] “[a]ction of organizing (something); the result of such an action” and the verb “ organiser ” as “[t]o give a specific structure or composition, order, or method of functioning or administration to” (emphasis added). [31] However” and “organized” ― the two words read together, as they are written ― are complementary and not contradictory. Thus, the phrase “ however organized” is meant to capture differently structured criminal organizations.

But the group must nonetheless, at least to some degree, be organized. Disregarding the requirement of organization would cast a net broader than that intended by Parliament. … [35] T he structured nature of targeted criminal organizations also sets them apart from criminal conspiracies: see Sharifi , at para. 39. Stripped of the features of continuity and structure, “organized crime” simply becomes all serious crime committed by a group of three or more persons for a material benefit.

Parliament has already criminalized that activity through the offences of conspiracy, aiding and abetting, and the “common intention” provisions of the Code (see, e.g., ss. 21 and 465(1)). The increased penalties and stigma associated with the organized crime regime distinguish it from these offences. [36] Working collectively rather than alone carries with it advantages to criminals who form or join organized groups of like-minded felons.

Organized criminal entities thrive and expand their reach by developing specializations and dividing labour accordingly; fostering trust and loyalty within the organization; sharing customers, financial resources, and insider knowledge; and, in some circumstances, developing a reputation for violence.

A group that operates with even a minimal degree of organization over a period of time is bound to capitalize on these advantages and acquire a level of sophistication and expertise that poses an enhanced threat to the surrounding community. … [40] It is preferable by far to focus on the goal of the legislation, which is to identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members.

All evidence relevant to this determination must be considered in applying the definition of “criminal organization” adopted by Parliament. Groups of individuals that operate on an ad hoc basis with little or no organization cannot be said to pose the type of increased risk contemplated by the regime. [41] Courts must not limit the scope of the provision to the stereotypical model of organized crime ― that is, to the highly sophisticated, hierarchical and monopolistic model.

Some criminal entities that do not fit the conventional paradigm of organized crime may nonetheless, on account of their cohesiveness and endurance, pose the type of heightened threat contemplated by the legislative scheme. [Emphasis in original text.] [ 11 ] These statements indicate that evidence of a conspiracy among three or more persons does not ipso facto establish the existence of a criminal organization within the meaning of

section 467.1 Cr. C. The group must still have a certain degree of structure and coordination, as well as continuity. However, this is not the case with the handful of conspirators that included the appellant, a group that did not have the necessary cohesiveness, structure, or endurance (and that did not even have a certain stability over time). [ 12 ] Of course, there are all types of criminal organizations, some that exemplify the “conventional paradigm of organized crime”, as described by Fish J. in the aforesaid passage, and others that do not.

It is however impossible to see an organization with the structure, coordination and continuity required under Venneri in the group that made up the conspirators in this particular case. [ 13 ] According to the respondent, the fact that the conspirators divided up the tasks that would have been required for the commission of the offence and that they developed their plan over several months (roughly from December of 2010 to April of 2011), rather than a few hours, exchanging frequent telephone calls and meeting from time to time, shows a sufficient degree of organization and indicates the presence of a criminal organization.

Not to mention that the importation of cocaine planned by the group was only a test for importing a much larger quantity of drugs. [ 14 ] This argument, which is the same as the one rejected by the Supreme Court in paragraphs 27 and 35 of Venneri ( supra ), must fail. If conspirators talking to one another several times on the telephone over a period of a few months, meeting more than once or dividing up the tasks among themselves constitutes a criminal organization, we might as well say that the offences in sections 465 and

467.12 Cr. C. are henceforth indivisible as soon as three people do any of this for more than a few hours. Frankly speaking, that is confusing conspiracy with criminal organization.

This was not the intent of Parliament, which in the words of Fish J., ″has already criminalized that activity through the offences of conspiracy, aiding and abetting, and the ‘common intention’ provisions of the Code ” [11] and which seeks here to distinguish these offences from those committed by a group that has “acquire[d] a level of sophistication and expertise that poses an enhanced threat to the surrounding community″. [12] [ 15 ] The fact that the conspirators had planned to import 250 kilos of cocaine if their test worked cannot be considered a determinative element under the circumstances. [ 16 ] In the present case, the evidence shows instead that the conspirators, including the appellant, formed a group based on circumstance rather than organization.

Admittedly, the admissions filed in the record show that two of the conspirators (without counting the plainclothes officer) were involved in other conspiracies of the same type (with other persons), but, given their number, they cannot be considered a ″criminal organization” on whose behalf or in association with which the other conspirators allegedly acted. The fact that they teamed up with other members of the group, including the appellant, for the event , which is indeed what appears from the file, does not create a criminal organization within the meaning of

section 467.1 Cr. C. It may have been the case had their association been prolonged, but it was not. [ 17 ] If the appellant is a member of another criminal organization or, within the context of this conspiracy, acted for the benefit of or at the direction of another organization, the evidence does not show it. We can, at most, speculate that he might be, for instance, a member of a Colombian cartel of drug producers or traffickers.

At trial, the respondent implied that the conspirators, including the appellant, clearly worked for a criminal organization outside Canada or one that has branches outside Canada, but its statement is hypothetical and is not supported by the evidence. [ 18 ] In any event, both in its factum and at the hearing, the respondent limited itself to stating that the group of conspirators concerned formed a criminal organization, on whose behalf or at whose direction the appellant conspired. The evidence, however, does not support this claim whatsoever.

Nor would it allow one to see this group as an offshoot of a broader criminal organization. [ 19 ] Similarly, the evidence does not show that the appellant acted in association with a criminal organization (as was the case in Venneri ), even if one could conceive, without a doubt, that a criminal organization in Colombia may have been the conspirators’ supplier. This is not impossible, but in truth, we do not know and, from this standpoint, the situation is sufficiently different from that of Mr.

Venneri, from the judgment of the same name, whose collaboration with a clearly identified criminal organization was established. [ 20 ] In short, the appeal on this count must be allowed, and given the lack of evidence in the record, the appellant must be acquitted. * * FOR THESE REASONS, THE COURT: [ 21 ] ALLOWS the appeal in part; [ 22 ] SETS ASIDE the trial judgment concerning the following count: [ translation ] 2.

Between November 15, 2010 and April 27, 2011, in Montreal, District of Montreal, in Mirabel and Ste-Adèle, District of Terrebonne, and elsewhere in the Province of Quebec, and in the Dominican Republic, Wagner Alexander SAVARI CARBONNEL unlawfully committed an indictable offence, to wit: a conspiracy to import, possession for the purpose of trafficking, and trafficking cocaine, for the benefit of, at the direction of, or in association with, a criminal organization, thereby committing the indictable offence set out under

section 467.12 of the Criminal Code , together with

section 465 of the Criminal Code and sections 5 and 6 of the Controlled Drugs and Substances Act . [ 23 ] ACQUITS the appellant of this count. JACQUES CHAMBERLAND, J.A. MARIE-FRANCE BICH, J.A.

MARTIN VAUCLAIR, J.A.