Her Majesty The Queen Appellant v. Carmelo Venneri, 2012 SCC 33

SUPREME COURT OF CANADA Citation: R. v. Venneri, 2012 SCC 33, [2012] 2 S.C.R. 211 Date: 20120706 Docket: 34523 Between: Her Majesty The Queen Appellant and Carmelo Venneri Respondent Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Rothstein, Cromwell and Moldaver JJ. Reasons for Judgment: (paras. 1 to 60) Fish J. (McLachlin C.J. and LeBel, Deschamps, Rothstein, Cromwell and Moldaver JJ. concurring) R. v. Venneri, 2012 SCC 33, [2012] 2 S.C.R. 211 Her Majesty The Queen Appellant v. Carmelo Venneri Respondent Indexed as: R. v. Venneri 2012 SCC 33 File No.: 34523. 2012: April 16; 2012: July 6.

Present: McLachlin C.J. and LeBel, Deschamps, Fish, Rothstein, Cromwell and Moldaver JJ. on appeal from the court of appeal for quebec Narcotics — Possession for purpose of trafficking — Constructive or joint possession — Trial judge finding that accused conspired with others to engage in drug trafficking — Whether accused jointly possessed cocaine seized at co-conspirators’ homes —

Whether possession of cocaine was foreseeable consequence of conspiring to traffic in cocaine — Whether conviction of accusedamounted to unreasonable verdict within meaning of s. 686(1)(a)(

i) of Criminal Code, R.S.C. 1985, c. C-46 — Controlled Drugs andSubstances Act, S.C. 1996, c. 19, s. 5(2). Criminal law — Criminal organization — Instructing commission of offence for criminal organization — Accusedpurchasing drugs from and supplying drugs to large drug-trafficking organization — Degree of organization or structure required tosupport finding that group constitutes “criminal organization” — Whether trial judge erred in finding that accused was member ofcriminal organization — Criminal Code, R.S.C. 1985, c. C-46, s. 467.1 “criminal organization”, s. 467.13.

Criminal law — Criminal organization — Commission of offence for criminal organization — Accused purchasing drugsfrom and supplying drugs to large drug-trafficking organization — Whether trial judge erred in finding that accused operated inassociation with criminal organization when he acted as its client and its supplier — Meaning of phrase “in association with” ins. 467.12 of Criminal Code, R.S.C. 1985, c. C-46. A police investigation called “Operation Piranha” revealed that D was operating a large drug-trafficking network in theMontréal area.

The wiretap and physical surveillance eventually led to two large seizures of cocaine in October of 2005, from the homesof two accomplices of D. Following the seizures, D turned to V for assistance when his previous source refused to supply him withadditional cocaine. It was then that V, who previously had purchased drugs from D, began to supply D instead. This arrangement endedin March of 2006 when V was arrested following a search of his home, where the police seized, among other things, nine grams ofcocaine, a firearm, and a large sum of cash.

The trial judge convicted V of eight offences, including the commission of an offence for acriminal organization (count 3), instructing the commission of an offence for a criminal organization (count 5), and possession of cocainefor the purpose of trafficking (count 4). The majority of the Court of Appeal entered acquittals for both criminal organization offences. It found that V was not a member of a criminal organization and had not trafficked in cocaine “for the benefit of” or “in association with”a criminal organization. It also quashed V’s conviction for possession of cocaine for the purpose of trafficking.

Held: The appeal should be allowed for the sole purpose of setting aside V’s acquittal on count 3. The Crown failed to prove that the drugs seized bore any relation to the conspiracy of which V was a part. Absent thatevidence, V’s conviction on the count of possession of cocaine for the purpose of trafficking amounts to an unreasonable verdict. To secure a conviction under s. 467.13 of the Criminal Code, the Crown must prove, as a preliminary matter, the existenceof a “criminal organization”, as defined in s. 467.1, and membership in it.

By insisting that criminal groups be “organized”, Parliamenthas made plain that some form of structure and degree of continuity are required to engage the organized crime provisions that are part ofthe exceptional regime it has established under the Criminal Code. Courts must not limit the scope of the provision to the stereotypicalmodel of organized crime. In this case, V was an associate of D rather than a member of his criminal organization. V operated with ahigh degree of independence and showed little or no apparent loyalty to D and his associates. They did not share mutual clients.

Nor didV have any real stake or financial interest in D’s organization. The dealings between V and D were autonomous transactions betweenlike-minded criminals, each guided by their own self-interest. At all times, V was only a client or supplier of the organization ― anindependent opportunist. He played no role within the organization. The fact that V was not a member of D’s organization does not preclude a finding that V operated “in association with” theorganization when he acted as its client and its supplier contrary to s. 467.12 of the Criminal Code.

The phrase “in association with”captures offences that advance, at least to some degree, the interests of a criminal organization. It requires a connection between thepredicate offence and the organization, as opposed to simply an association between the accused and the organization. The Crown mustalso demonstrate that an accused knowingly dealt with a criminal organization. There is ample evidence that V knew that D wasoperating a large drug-trafficking organization ― or made himself wilfully blind to that obvious fact.

And the evidence leaves no roomfor doubt as to the required nexus between D’s organization and the offence of trafficking committed by V. The organization received adirect benefit from the commission of the offence. Cases Cited Distinguished: Zanini v. The Queen, (SCC), [1967] S.C.R. 715; referred to: R. v. Biniaris, 2000 SCC 15,[2000] 1 S.C.R. 381; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Atkins, 2010 ONCJ 262 ; R. v. Speak, ; R. v. Sharifi, [2011] O.J. No. 3985 (QL); R. v. Battista, 2011 ONSC 4771; R. v. Terezakis, 2007 BCCA 384, 223 C.C.C.(3d) 344; R. v. Lindsay, ; R. v.

Drecic, 2011 ONCA 118, 276 O.A.C. 198; R. v. Lindsay (2004), (ON SC), 70 O.R. (3d) 131, aff’d 2009 ONCA 532, 245 C.C.C. (3d) 301. Statutes and Regulations Cited Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(2). Criminal Code, R.S.C. 1985, c. C-46, ss. 21, 465(1), 467.1 “criminal organization”, 467.12, 467.13, 686(1)(a)(i). International Documents United Nations Convention against Transnational Organized Crime, 2225 U.N.T.S. 275, arts. 2(a) “Organized criminal group”, (c)“Structured group”, 5. Authors Cited Canada. House of Commons. Standing Committee on Justice and Human Rights.

Evidence of the Standing Committee on Justice andHuman Rights, 1st Sess., 37th Parl., May 8, 2001 (online: http://www.parl.gc.ca/HousePublications/Publication.aspx?DocId=652649&Language=E&Mode=1&Parl=37&Ses=1).

Grand Robert de la langue française (electronic version), “organisation”, “organiser”. Hastie, Miles. “The Separate Offence of Committing a Crime ‘In Association with’ a Criminal Organization: Gang Symbols and Signsof Constitutional Problems” (2010), 14 Can. Crim. L. Rev. 79. Orlova, Alexandra V., and James W. Moore. “‘Umbrellas’ or ‘Building Blocks’?: Defining International Terrorism and TransnationalOrganized Crime in International Law” (2005), 27 Hous. J. Int’l L. 267. Shorter Oxford English Dictionary on Historical Principles, 6th ed., vol. 2. Oxford: Oxford University Press, 2007, “organized”.

APPEAL from a judgment of the Quebec Court of Appeal (Beauregard, Rochon and Duval Hesler JJ.A.), 2011 QCCA 1957, [2011] J.Q. no 15190 (QL), 2011 CarswellQue 11387, setting aside in part the convictions entered by St-Cyr J.C.Q., 2009 QCCQ 1916, [2009] J.Q. no 1712 (QL), 2009 CarswellQue 1865. Appeal allowed in part. Marc Cigana and Gaston Paul Langevin, for the appellant. Marie-Hélène Giroux, Clément Monterosso and Vincent Desbiens, for the respondent.

The judgment of the Court was delivered by Fish J. — I [1] The respondent, Carmelo Venneri, was tried jointly with two other alleged members of a criminal organization on amulti-count indictment. The trial judge convicted Venneri of eight offences, including the commission of an offence for a criminalorganization, contrary to s. 467.12 of the Criminal Code, R.S.C. 1985, c.

C-46 (count 3); instructing the commission of an offence for acriminal organization, contrary to s. 467.13 of the Code (count 5); and possession of cocaine for the purpose of trafficking, contrary to s.5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (count 4) (2009 QCCQ 1916 ). [2] The Quebec Court of Appeal entered acquittals on counts 3 and 5, which both alleged criminal organizationoffences.

For the majority, Beauregard J.A. found that Venneri was not a member of a criminal organization and had neither traffickednor instructed anyone to traffic in cocaine “for the benefit of” or “in association with” a criminal organization, within the meaning of ss.467.12 and 467.13 of the Code (2011 QCCA 1957 ). [3] The Court of Appeal also quashed Venneri’s conviction for possession of cocaine for the purpose of trafficking(count 4).

The majority held, correctly in my view, that the evidence failed to demonstrate that Venneri jointly possessed the cocaineseized at the homes of two unindicted co-conspirators in October of 2005. [4] In dissent, Duval Hesler J.A. (as she then was) found that the verdicts rendered by the trial judge were supported bythe evidentiary record. [5] I agree with Beauregard J.A. that the Crown failed to prove that Venneri was a member of a criminal organization.

Unlike Beauregard J.A., however, I am satisfied that Venneri trafficked in cocaine “in association with” a criminal organization, asalleged in count 3 of the indictment. [6] I would therefore affirm the acquittals entered by the Court of Appeal on counts 4 and 5, but restore Venneri’sconviction on count 3. II [7] The charges against Venneri arose out of a police investigation called “Operation Piranha”, which lasted ninemonths and, in March of 2006, resulted in the arrests of 23 individuals.

During the course of the investigation, the police obtained twowiretap authorizations, pursuant to which they intercepted over 137,750 telephone conversations. [8] The investigation revealed that Louis-Alain Dauphin was operating a large drug-trafficking network in theMontréal area.

At the direction of Dauphin, an accomplice, Michael Russell, would transport the drugs from British Columbia toQuebec, where they were then stored at the homes of two other co-conspirators, Jean Bilodeau and Robert Marchand. [9] The surveillance revealed as well that in the summer and fall of 2005, Venneri regularly purchased cocaine fromDauphin for the purpose of trafficking. [10] The wiretap and physical surveillance eventually led to two large seizures of cocaine in October of 2005, from thehomes of Marchand and Bilodeau.

Following the seizures, Dauphin turned to Venneri for assistance when his previous source refused tosupply him with additional cocaine. It was then that Venneri, who previously had purchased drugs from Dauphin, began to supplyDauphin instead. [11] The trial judge found that Venneri then became [translation] “an important pillar” in securing Dauphin’s supply(para. 95).

This arrangement ended in March of 2006 when Venneri was arrested following a search of his home, where the policeseized, among other things, nine grams of cocaine, a firearm, and a large sum of cash. [12] The trial judge found as well that Venneri had conspired with several others to engage in drug trafficking betweenJuly of 2005 and March of 2006. He based this conclusion on numerous intercepted telephone conversations, during which Venneri andothers used coded language to negotiate prices and arrange deliveries of cocaine (paras. 55-57 and 104-11).

[13] Finally, with respect to the criminal organization offences, the trial judge concluded that Venneri was a member ofDauphin’s organization and had instructed one of his co-accused, Jean-Daniel Blais, to traffic in drugs on the organization’s behalf (para.370). [14] In the result, the trial judge convicted Venneri of conspiracy to traffic in narcotics; trafficking in narcotics;committing an offence for a criminal organization; possession of cocaine for the purpose of trafficking (two counts); instructing thecommission of an offence for a criminal organization; possession of a prohibited weapon; and, possession of a restricted firearm.

III [15] The Crown seeks to have Venneri’s conviction on count 4 restored. [16] The Court of Appeal quashed that conviction on the ground that it was unreasonable within the meaning of s. 686(1)(a)(

i) of the Code. I agree with that conclusion: No properly instructed jury acting judicially could reasonably have rendered that verdict:R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. [17] The only evidence linking Venneri to the drugs seized at the homes of Marchand and Bilodeau was the presence ofsymbols and expressions on the cocaine packaging that were consistent with expressions used by Venneri in telephone conversationsconcerning drug deals. But nothing indicates that those symbols were not used in other drug transactions completely unrelated toVenneri.

In oral argument, the Crown conceded that there were no intercepted communications which explicitly linked Venneri to thedrugs seized in 2005. [18] The Crown contends that Venneri’s conviction can be upheld pursuant to s. 21(2) of the Code because possession ofcocaine was a foreseeable consequence of conspiring to traffic in cocaine. [19] In this regard, the Crown relies on Zanini v. The Queen, (SCC), [1967] S.C.R. 715, where, on thebasis of s. 21(2), the accused was found guilty of possessing housebreaking instruments.

Zanini formed a common intention with twoothers to carry out a break and enter, and then waited in a car with the motor running while his accomplices broke into the home with ascrewdriver. The trial judge instructed the jury that they could find the accused guilty pursuant to s. 21(2) if they found that he knew orought to have known that his accomplices would possess the tools necessary to carry out their joint purpose ― the burglary they werefound committing. [20] On its facts, Zanini is plainly distinguishable from this case.

In Zanini, there was a clear nexus between thehousebreaking instruments found on the co-conspirators and the burglary they committed. As the Court explained, the housebreakinginstrument in question, a screwdriver, “was in fact used to break in by the back door” (Zanini, at p. 720). In the present matter, no suchnexus was established between the conspiracy involving Venneri and the drugs seized from the homes of Marchand and Bilodeau in2005.

Venneri was not Dauphin’s only customer and the Crown failed to prove that the drugs seized bore any relation to the conspiracyof which he was a part. [21] Absent that evidence, Venneri’s conviction on count 4 amounts to an unreasonable verdict, a conclusion supportedby the absence in the judgment at trial of any reasons to support a finding that Venneri had constructive or joint possession of the cocaineseized in 2005: see R. v.

Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 34 and 38. [22] The Crown also argues that the conviction can be upheld solely on the basis of the conspiracy between Venneri andothers to traffic in cocaine. In essence, the Crown maintains that the ongoing communications between Venneri and other members ofthe conspiracy demonstrate that he must have possessed cocaine, alone or in common with others, at some point between July of 2005and March of 2006. In my view, the Crown is not relieved of proving the elements of possession simply by establishing the existence ofa conspiracy to traffic in cocaine.

IV [23] I turn now to consider the criminal organization offences alleged against Venneri. [24] The Crown maintains that Venneri, as a member of Dauphin’s organization, instructed another individual to traffic incocaine for the “benefit of, at the direction of, or in association with” the organization, contrary to s. 467.13 of the Code.

Section 467.13provides: 467.13

(1) Every person who is one of the persons who constitute a criminal organization and who knowingly instructs,directly or indirectly, any person to commit an offence under this or any other Act of Parliament for the benefit of, at the direction of, orin association with, the criminal organization is guilty of an indictable offence and liable to imprisonment for life.

(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that (

a) an offence other than the offence under subsection (1) was actually committed; (

b) the accused instructed a particular person to commit an offence; or (

c) the accused knew the identity of all of the persons who constitute the criminal organization. [25] To secure a conviction under s. 467.13, the Crown must prove, as a preliminary matter, the existence of a criminalorganization and 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 offencesthat, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group orby any of the persons 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 ormore persons 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 arepotentially captured by 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 featuresthat 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. [28] In R. v.

Terezakis, 2007 BCCA 384, 223 C.C.C. (3d) 344, Mackenzie J.A. explained in these terms the need forflexibility in applying the statutory definition of “criminal organization”: The underlying reality is that criminal organizations have no incentive to conform to any formal structure recognized inlaw, in part because the law will not assist in enforcing illegal obligations or transactions.

That requires a flexible definition that iscapable of capturing criminal organizations in all their protean forms. [para. 34] [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 provisionsthat 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 noelement of organization is required at all. “Organized” necessarily connotes some form of structure and co-ordination, as appears fromthe 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. [Emphasisadded; 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]ogive 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 notcontradictory. Thus, the phrase “however organized” is meant to capture differently structured criminal organizations.

But the groupmust nonetheless, at least to some degree, be organized. Disregarding the requirement of organization would cast a net broader than thatintended by Parliament. [32] The United Nations Convention against Transnational Organized Crime, 2225 U.N.T.S. 275, also suggests thatsome degree of structure is required of a group before the statutory scheme is triggered. Canada has an obligation under the Conventionto establish criminal offences which target participation in the activities of an “organized criminal group” (see Art. 5).

The Conventiondefines “organized criminal group” this way: (a) “Organized criminal group” shall mean a structured group of three or more persons, existing for a period of time andacting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, inorder to obtain, directly or indirectly, a financial or other material benefit; . . . (c) “Structured group” shall mean a group that is not randomly formed for the immediate commission of an offence andthat does not need to have formally defined roles for its members, continuity of its membership or a developed structure; [Art. 2] [33] The similarities between the definition of “criminal organization” in the Code and the definition of “organizedcriminal group” in the Convention are self-evident.

And, notably, while the Convention does not require a “developed structure”, an“organized criminal group” must nonetheless be “structured”. [34] Comments made by the Minister of Justice and Attorney General of Canada during the enactment of Bill C-24confirm that its target was organized crime. As the then-Minister explained: One of the major initiatives of Bill C-24 addresses participation in the activities of criminal organizations in a new andpowerful way.

First, we have proposed a new definition of “criminal organization” with new offences and sentencing regimes, whichwill make it easier to target and punish organized criminal activity. [Emphasis added.] (Hon. Anne McLellan, Evidence of the Standing Committee on Justice and Human Rights, No. 11, 1st Sess., 37th Parl., May8, 2001, at 8:45) [35] The 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 agroup of three or more persons for a material benefit. Parliament has already criminalized that activity through the offences ofconspiracy, aiding and abetting, and the “common intention” provisions of the Code (see, e.g., ss. 21 and 465(1)).

The increasedpenalties 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 oflike-minded felons. Organized criminal entities thrive and expand their reach by developing specializations and dividing labouraccordingly; fostering trust and loyalty within the organization; sharing customers, financial resources, and insider knowledge; and, insome circumstances, developing a reputation for violence.

A group that operates with even a minimal degree of organization over aperiod of time is bound to capitalize on these advantages and acquire a level of sophistication and expertise that poses an enhanced threatto the surrounding community. [37] Counsel for Venneri suggests that the criteria outlined in R. v. Lindsay, (Ont. S.C.J.), andconsidered in Battista, should be accepted by this Court as a means by which to gauge whether a given group has the necessary attributesof a criminal organization (see paras. 854-62).

The “common” characteristics of criminal organizations identified in Lindsay may well be“common” to highly sophisticated criminal entities, such as notorious motorcycle gangs, Colombian drug cartels, and American “crimefamilies”. [38] Care must be taken, however, not to transform the shared attributes of one type of criminal organization into a“checklist” that needs to be satisfied in every case.

None of these attributes are explicitly required by the Code, and a group that lacksthem all may nonetheless satisfy the statutory definition of “criminal organization”. [39] The difficulty and disadvantage of setting out what may be perceived as a prescriptive “checklist” is aptly describedby Alexandra Orlova and James Moore in the following passage: It is notable that while the definition of an “organized criminal group” refers to some elements that characterize such groups,other equally valid elements, frequently discussed in legal and academic debates, are omitted.

For example, no references are made tothe potential for the utilization of violence and corruption, which are arguably some of the most commonly utilized methods byorganized criminal entities. In part, the omissions are understandable as it is rather difficult and arguably not that useful to create a“check-list” definition of organized crime that incorporates all possible elements of organized criminal groups.

The challenge of creatinga comprehensive “check-list” stems in part from the lack of consistency between organized criminal groups as well as their constantlychanging and evolving nature as a response to changes in legitimate societal structures. [Emphasis added; footnotes omitted.] (“‘Umbrellas’ or ‘Building Blocks’?: Defining International Terrorism and Transnational Organized Crime in International Law” (2005),27 Hous. J.

Int’l L. 267, at p. 284) [40] It is preferable by far to focus on the goal of the legislation, which is to identify and undermine groups of three ormore persons that pose an elevated threat to society due to the ongoing and organized association of their members. All evidencerelevant to this determination must be considered in applying the definition of “criminal organization” adopted by Parliament.

Groups ofindividuals that operate on an ad hoc basis with little or no organization cannot be said to pose the type of increased risk contemplated bythe regime. [41] Courts must not limit the scope of the provision to the stereotypical model of organized crime ― that is, to thehighly sophisticated, hierarchical and monopolistic model.

Some criminal entities that do not fit the conventional paradigm of organizedcrime may nonetheless, on account of their cohesiveness and endurance, pose the type of heightened threat contemplated by thelegislative scheme. [42] In the present matter, the trial judge found that Dauphin operated a large drug-trafficking organization in theMontréal area. This finding is not seriously contested. The more contentious issue is whether Venneri was a member of thatorganization, exposing him to conviction under s. 467.13 of the Code.

In this regard, I agree with Beauregard J.A. that Venneri was anassociate of Dauphin rather than a member of his organization. [43] Venneri was an autonomous, albeit regular, customer of Dauphin in the summer and fall of 2005. But Dauphin wasnot his sole supplier. Venneri operated with a high degree of independence and showed little or no apparent loyalty to Dauphin and hisassociates. They did not share mutual clients. Nor did Venneri have any real stake or financial interest in Dauphin’s organization.

These strike me as the most relevant factors in the circumstances of this case. [44] Moreover, Russell, Bilodeau and Marchand all took direction from Dauphin and performed clearly definedfunctions. Venneri, on the contrary, operated at arm’s length from the organization. Nothing in the record indicates that Dauphinexercised any measure of control over Venneri. While Dauphin did at times ask Venneri to provide drugs to other sub-distributors, hedid so only when Venneri was unable to sell the drugs quickly to satisfy his debt.

In those circumstances, Dauphin was simply divertingthe drugs Venneri could not sell to a more solvent customer. [45] Venneri’s later activity as a supplier to Dauphin was nothing more than an arm’s length, mutually beneficialarrangement. Venneri did not provide Dauphin with drugs out of loyalty or direct interest in the viability of Dauphin’s business. Vennerisimply exploited a business opportunity brought about by Dauphin’s misfortune. [46] In sum, the dealings between Venneri and Dauphin were autonomous transactions between like-minded criminals,each guided by their own self-interest.

At all times, Venneri was only a client or supplier of the organization ― an independentopportunist. He played no role within the organization. With respect, the trial judge erred in law in concluding, on the facts as he foundthem, that Venneri was a member of Dauphin’s criminal organization. [47] In the alternative, the Crown contends that even if Venneri was not a member of Dauphin’s larger criminalorganization, Venneri, Dauphin, Gauthier and Blais constituted a separate and overlapping criminal organization whose sole purpose was

to traffic in cocaine. [48] I agree with Beauregard J.A. that the Crown has failed to show that these four individuals were part of a criminalorganization within the meaning of the Code. On the evidence accepted by the trial judge, Gauthier and Dauphin may well haveoperated as “a gang of two”. Venneri, on the other hand, appears to have acted independently and has not been shown to haveconstituted, with Gauthier and Dauphin, a “gang of three”.

Finally, the trial judge was not persuaded that Blais had conspired withDauphin, Russell or Venneri. [49] The Crown’s alternative submission fails essentially for these reasons. V [50] The Crown contends that Venneri trafficked in drugs “for the benefit of, at the direction of, or in association with”Dauphin’s criminal organization, contrary to s. 467.12 of the Code. [51] The fact that Venneri was not a member of Dauphin’s organization does not preclude a conviction on this count.

And, in my view, the evidence fully supports the trial judge’s finding that Venneri operated “in association with” the organization whenhe acted as its client and its supplier. [52]

Section 467.12 of the Code provides: 467.12

(1) Every person who commits an indictable offence under this or any other Act of Parliament for the benefit of,at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a termnot exceeding fourteen years.

(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that the accusedknew the identity of any of the persons who constitute the criminal organization. [53] The phrase “in association with” should be interpreted in accordance with its plain meaning and statutory context. Itis accompanied here by the terms “at the direction of” and “for the benefit of”. These phrases are not mutually exclusive. On thecontrary, they have a shared purpose and will often overlap in their application. Their common objective is to suppress organized crime.

To this end, they especially target offences that are connected to the activities of criminal organizations and advance their interests. [54] Considered in this light, the phrase “in association with” captures offences that advance, at least to some degree, theinterests of a criminal organization ― even if they are neither directed by the organization nor committed primarily for its benefit. Asnoted by Miles Hastie: The phrase “in association with” should capture, like its siblings, an interest of the criminal organization in the predicate offence.

Theaccused need not carry out the predicate offence exclusively for the criminal organization: the accused may (and, as an organizationmember, will usually) entertain other selfish motives. But offences committed for wholly selfish purposes should not generate liability. On some level, the offence must only capture actions with and for the criminal organization. [Emphasis added; emphasis in originaldeleted; footnote omitted.] (“The Separate Offence of Committing a Crime ‘In Association with’ a Criminal Organization: Gang Symbols and Signs ofConstitutional Problems” (2010), 14 Can. Crim. L.

Rev. 79, at p. 91) [55] The phrase “in association with” requires a connection between the predicate offence and the organization, asopposed to simply an association between the accused and the organization: see R. v. Drecic, 2011 ONCA 118, 276 O.A.C. 198, at para.3. In R. v. Lindsay (2004), (ON SC), 70 O.R. (3d) 131 (S.C.J.), aff’d 2009 ONCA 532, 245 C.C.C. (3d) 301, thetrial judge, correctly in my view, interpreted the phrase “in association with” as follows: The phrase “in association with” is not impermissibly vague.

The phrase is intended to apply to those persons whocommit criminal offences in linkage with a criminal organization, even though they are not formal members of the group. The OxfordEnglish Dictionary (10th ed.) defines the phrase “associate oneself with” to mean, “allow oneself to be connected with or seen to besupportive of”. The phrase “in association with” requires that the accused commit a criminal offence in connection with the criminalorganization.

Whether the particular connection is sufficient to satisfy the “in association with” requirement will be for a court todetermine, based on the facts of the case. [Emphasis added; para. 59.] [56] As mentioned earlier, an offender may commit an offence “in association with” a criminal organization of which theoffender is not a member.

Membership in an organization, however, remains a relevant factor in determining whether the required nexusbetween the offence and the organization has been made out (see Drecic, at para. 3). [57] The Crown must also demonstrate that an accused knowingly dealt with a criminal organization.

The stigmaassociated with the offence requires that the accused have a subjective mens rea with respect to his or her association with theorganization (see Lindsay (2004 S.C.J.), at para. 64). [58] There is ample evidence that Venneri knew that Dauphin was operating a large drug-trafficking organization ― ormade himself wilfully blind to that obvious fact. And the evidence leaves no room for doubt as to the required nexus between Dauphin’sorganization and the offence of trafficking committed by Venneri.

The organization received a direct benefit from the commission of theoffence. [59] This was particularly evident after the 2005 seizures of cocaine when, as noted by the trial judge, Venneri became

[ translation ] “an important pillar” in terms of supply. The evidence establishes that Dauphin was unable to secure cocaine without the assistance of Venneri. Manifestly, Venneri trafficked “in association with” the organization when he secured for it a source of supply following the 2005 seizures. VI [ 60 ] For all of these reasons, as stated at the outset, I would allow the appeal for the sole purpose of setting aside Venneri’s acquittal on count 3, and otherwise affirm the judgment of the Court of Appeal. Appeal allowed in part. Solicitor for the appellant: Poursuites criminelles et pénales du Québec, Montréal. Solicitors for the respondent: Monterosso Giroux, Montréal.