2017 QCCQ 8048, 2017 QCCQ 8048

R. c. Bryant Conspiracy. Preliminary hearing. Circumstantial evidence. Committal to trial. Carter. 2017 QCCQ 8048 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal Division No: 500-73-003997-133 DATE: July 11, 2017 ______________________________________________________________________ BY THE HONOURABLE SALVATORE MASCIA, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Plaintiff v.

ROBERT BRYANT ALAIN CHARRON DEAN LLIA COPKOV MARCO MILAN LOUIS NAGY STEVEN WOODS THONG SAVATH YI Accused ______________________________________________________________________ JUDGMENT ON COMMITAL TO TRIAL [1] ______________________________________________________________________ Introduction The charge [ 1 ] The accused are before me on a preliminary hearing with respect to a charge of conspiracy to import and to possess for the purposes of trafficking cannabis and cocaine ( s. 465 of the Criminal Code ).

The time-frame covered by the charge spans from January 2011 to June 2012. [2] Four of the accused—Messieurs Louis Nagy, Robert Bryant, Dean Copkov and Alain Charron contested the committal to trial. The rest consented to be ordered to trial ( s. 549 of the Criminal Code). [ 2 ] The question for me at this point in time is whether or not the evidence is sufficient to commit the accused to trial on the count that appears in the information. The decision I must render is a problematic one as the case against the accused is based entirely on circumstantial evidence.

Theory of the Crown First some general comments on the evidence [ 3 ] In the present matter, the evidence against the accused is comprised of intercepted communications (text messages, phone conversations and e-mails), police surveillance, documents seized at the home of one accused and in the car of another and travel documents.

The Crown also called upon the testimony of an expert witness—Sergeant Joseph Tomeo of the RCMP—to explain how cocaine and hashish are imported into Canada and to decode the jargon used by the accused (and drug traffickers in general) in the course of their communications. [ 4 ] In the evidence presented by the Crown, there was no smoking gun that pointed to an illicit agreement. The intercepted communications, for instance, were shrouded in coded or guarded language. Generally, they contained few particulars, if any: meetings

were arranged without specifically naming the places where they were to be held; codes were assigned to designate the source city or country of the illicit drugs; and individuals involved in the conspiracy were designated by an alias instead of their actual names. Not surprisingly, there was nary a mention of the purpose of the meetings, let alone any reference to the importation of illicit drugs. [ 5 ] The surveillance evidence showed several of the targets meeting in a number of places.

Often, the participants travelled hundreds of kilometres—even in difficult conditions—for meetings that lasted but a few short minutes. Though one may safely assume that the targets did not meet to discuss the formation of a bocce league or to discuss the plight of the Southern Slavs, there was no evidence regarding the content of the said meetings. [3] [ 6 ] Though the plans of the alleged conspirators were not laid bare in explicit words, the Crown maintained that the evidence— viewed globally—established a prima facie case that they were all involved in a conspiracy to import hashish and cocaine into Canada.

The Crown’s position was set out in a 176 page brief that highlighted all the relevant communications between the parties as well as the meetings they attended. In commenting the evidence, the Crown diligently noted (

i) the conduct of the accused that was consistent with a conspiracy; (ii) and the communications—though couched in veiled, guarded and coded language—that were consistent with the importation of illicit drugs to Canada. [ 7 ] Regarding conduct or behaviour that was consistent with an illicit conspiracy, the Crown made the following observations : • The coded or guarded language in the intercepted communications Mr. Joseph Tomeo, the expert witness, explained that individuals involved in drug conspiracies are wary of the police unravelling their plans.

Thus, they use coded, ambiguous or guarded language in order to hide the true nature or purpose of their communications. In the present matter, the evidence disclosed the use of certain codes to designate the nature of the drugs the accused were plotting to import into the country as well as their point of origin (the cities of Karachi, Lima and Johannesburg). • The use of pay phones or secure cell phones In his testimony, Mr. Joseph Tomeo explained that communications in a drug conspiracy case are often conducted by pay phone or secure (untraceable) cell phones).

The rational, of course, is to avoid detection by the police. In the present matter, for instance, the Crown noted several instances in which Mr. Nagy used a pay phone even though he had a cell phone at hand. In the course of one police surveillance—while at a shopping centre in the West Island—he was seen using three different pay phones. [4] The evidence was also rife with messages or conversations that suggested (

i) the concern for using only safe cell phones for communications and (ii) that safe phones were procured for the purposes of communications. • The use of public internet terminals (public libraries, hotels and internet café

s) In keeping with their cautious nature, Mr. Joseph Tomeo explained that conspirators in the drug trade will use public internet terminals for communications. In the present matter, both Messieurs Louis Nagy and Robert Bryant used public access internet in order to send out e-mails. Often, the public internet terminals were used following a brief encounter between one or more of the accused. • Meetings that lasted but a few minutes In the course of the police surveillance, one notes that many meetings were called or arranged.

Sometimes, individuals travelled considerable distances—and in difficult conditions—to attend relatively short meetings. Given the inconvenience or trouble in attending such meetings—and the obvious advantage of using a phone, instead—one could safely surmise that the accused were worried about police detection. • Counter surveillance techniques On two occasions, the police noted that Mr. Nagy’s driving was consistent with evasive manoeuvres as if wary of being tailed by the police. [5] On another occasion—while Mr.

Nagy was in Toronto for a visit, the surveillance report noted that the target was walking in circles, looking attentively at passersby and at the reflections from the storefront windows. [6] Likewise, the police surveillance team noted several occasions in which the participants in a meeting were caught looking cautiously over their shoulders—as if to make sure that they weren’t being shadowed by the authorities. [7] • Meeting with individuals who had access to the Port of Montreal Mr.

Joseph Tomeo stated the obvious when he explained that the importation of drugs into Canada requires a «door» or a safe port of entry. The door could be someone working in the inside as a baggage handler at the airport of Montreal or a longshoreman working at the port of Montreal. In the case at bar, Mr.

Alain Charron—one of the co-accused—was seen meeting with individuals who either had contacts at the Port of Montreal or who worked at the Port of Montreal. • The use of intermediaries to fix meetings between the principle players Most of the meetings between Messieurs Louis Nagy and Alain Charron were organized by their respective underlings: Steven Woods and Gerald Myles McLennan. For the Crown, the use of intermediaries served as an insulating device for the key players.

The use of intermediaries as buffers for the principle players was especially evident in the numerous calls or messages received and transmitted by Mr. Gerald Myles McLennan for Mr. Alain Charron. The evidence, for that matter, has few examples of communications directly involving Mr. Alain Charron. [ 8 ] The Crown’s lengthy brief also attempted to connect the dots between one or more of the intercepted communications (be they by text, phone or e-mail) with one or more of the meetings witnessed by the police surveillance team. Taken in isolation, the meetings

attended by one or more of the accused were meaningless—at best, they can only give rise to suspicion that something illegal was being hatched. The Crown, however, took care to note that meetings were often called or held pursuant to specific difficulties or issues raised by the accused in the course of their communications.

When viewed in the context of a previous conversation, a meeting was interpreted by the Crown as an overt act in furtherance of the conspiracy to import drugs into Canada. —Crown’s take on the nature of the conspiracy and the roles of the individual players [ 9 ] The Crown’s theory of the case did not benefit from the testimony of an informant or from that of an undercover agent. In the absence of direct evidence, the Crown had to sift through reams of intercepted communications and a great deal of police surveillance reports in order to make sense of the conspiracy.

As we shall see in a later chapter, the Crown’s task in giving a structure to the evidence was facilitated by the expert testimony of Mr. Joseph Tomeo. [ 10 ] The Crown’s theory was based on a relationship of interdependence among all the accused. Said differently, the actions of each accused were designed to facilitate the endeavours of other co-conspirators in pursuit of the common venture. In a nutshell, the theory reads as follows: Louis Nagy conspired with Robert Bryant and Alain Charron to import drugs (hashish and cocaine) into Canada. Mr.

Robert Bryant was the intermediary between the suppliers of the drugs and Mr. Louis Nagy. He was also the intermediary between the conspirators based in Toronto, to wit, Messieurs Dean Copkov and Marco Milan, whose task it was to organize the handling, storing and removal of the drugs once they entered the country. Mr. Thong Savath Yi was the intermediary between Marco Milan and an organization that was capable of facilitating the entry of illicit drugs into Canada. [ 11 ] As for Mr.

Alain Charron, he served as the intermediary between Messieurs Louis Nagy and Brian Forget—an individual who had the necessary connections to facilitate the entry of illegal drugs into the Country. More particularly, Mr. Brian Forget was in close contact with employees of the Port of Montreal (Messieurs Lorne Beerworth, Kenneth Gearey and Christopher Mattics). [ 12 ] As for Steven Woods, he was described as the henchman of Mr. Louis Nagy. More particularly he set up Mr. Nagy’s phone calls, messages and meetings. He was also seen driving Mr.

Nagy around and attending various meetings. [ 13 ] In establishing its theory, the Crown pointed out that it did not have to show that all the alleged members of the conspiracy were in direct contact with each other or, indeed, were even aware of the identity of all the alleged conspirators. [8] In the present matter, for instance, the evidence did not disclose any direct dealings between Mr. Alain Charron and the alleged conspirators based in the Toronto area (Messieurs Robert Bryant, Dean Copkov, Marco Milan and Thong Savath Yi). For that matter, there was no evidence that Mr.

Alain Charron even knew any of the said individuals. That being said, the Crown maintained that Mr. Alain Charron’s link to the conspiracy was established via his dealings with Mr. Louis Nagy. The latter, in a sense, bridges any evidentiary gap between the Toronto group and Mr. Alain Charron. Position of the defense [ 14 ] As the Crown’s case was predicated upon circumstantial evidence, all the defendants argued (as expected) that there was a complete absence of proof on the essential ingredients of the charge.

At best, the enigmatic communications and documentary evidence could only give rise to suspicion and speculation. Quoting from the usual authorities, they reminded the Court that supposition or conjecture is no substitute for evidence and cannot be relied upon as the basis for a reasonably drawn inference. [9] [ 15 ] Bearing in mind the first two steps of the three part test for conspiracy set out in the so called Carter test, the defendants argued that the circumstantial evidence could not establish the existence of a conspiracy let alone the probable participation of any of the accused in the conspiracy.

In support of their position, they pointed to the following weaknesses in the Crown’s case : • Ambiguous nature of the intercepted communications The intercepted communications were ambiguous and could not be relied upon to conclude that a conspiracy to import drugs was being planned by the defendants. The Crown’s theory, in short, was predicated upon a hypothetical narrative that was not logically supported by the established facts. • Scant evidence regarding the object of the conspiracy The charge against the accused alleged a conspiracy to import hashish and cocaine into Canada.

However, in the 1,201 communications intercepted by the authorities, there was never a specific reference to the said drugs. As the offence particularized in the charge was not proven, the accused had to be discharged. [10] • Unreliable testimony of the expert The hypothetical narrative of the Crown hinges on the testimony of the expert, Mr. Joseph Tomeo. In fact, it’s only through his testimony that the Crown can claim that the conspiracy involved various projects to import hashish and cocaine into the country.

His testimony, however, was problematic: To begin, it rested entirely on the assumption that the words or inscriptions contained in two documents seized by the police were consistent with various projects to import the said narcotics into Canada. [11] More particularly, Mr. Joseph Tomeo’s method consisted in associating certain cities named on the document with a particular drug. For instance the inscription «Chapter #1 Merlot Karachi» on exhibit EP-22 was consistent with a conspiracy to import hashish as the city of Karachi was known for being both a supply and transit center for cannabis resin.

Likewise, the inscription «Chapter #2 Chardonnay Lima» on the exhibit was consistent with an endeavour to import cocaine as that city was known for the production and transit of cocaine. Finally, a third inscription that read «Chapter #3 Mining Johannesburg» was consistent with a plan to import hashish as that city was known as a transit point for the shipment of the said narcotic to North America.

For the defendants, Mr. Joseph Tomeo’s

interpretation of exhibit EP-22 constituted nothing more than speculation and could not serve asa rational basis for the argument that the conspiracy involved a plan to import hashish and cocaine into Canada. The defendants also took issue with the manner in which the expert attempted to make links between the inscriptions found at exhibitEP-22 and the words or phrases found in some of the intercepted communications.

While the expert found corroboration for hisinterpretation of EP-22 every time the contents of an intercepted message referred to a number (1, 3), the defendants pointed out certainincongruities in his analysis. For instance, one finds in the intercepted communications a «coded» reference to the number «5». At EP-22, however, there was no coded reference to the number «5». Always on the want of consistency between Exhibit EP-22 and the circa 1,201 intercepted communications, the latter contained but tworeferences to «mining country».

But while the words Mining Johannesburg» at EP-22 were proceeded by the inscription «Chapter 3»,the references to «Mining Country» in the intercepted communications referred to a «Nr. Five».[12] In other words, the reference to«mining country and «Nr Five» in the intercepted communications no longer matched up with the number associated with Johannesburgat EP-22 (chapter #3). Questioned about the meaning of «number 5», Mr. Joseph Tomeo frankly replied that he had no clue.[13] The defence also questioned the reliability of Mr. Tomeo’s

interpretation of certain phrases found in the intercepted communications. Forinstance, an e-mail dated January 17, 2012, sent by someone using the name of «David Solomon» to the attention of Robert Bryant,stated that «One of the parties…is willing to dispatch 2 units straight to your place with this season’s material. » For the expert the phrase«this season’s material» was consistent with the hashish harvest that occurs in the end of October in Pakistan. For the defence, however,this

interpretation was illogical as the e-mail was sent in January. Another problem with the expert’s

interpretation of the said text lay in the fact that it was preceded by a passage which includedreferences to «nr three» and «nr three slow» (sic). If one is to accept the expert’s testimony, however, the number three at EP-22 wasassociated with Johannesburg and not with Pakistan (Karachi).

Pointing to this obvious inconsistency, the defendants pleaded that it wasludicrous to interpret the phrase «this season’s material» with the harvest of hashish in Pakistan. • Mere presence Despite the fact that the targets of the present conspiracy participated in many meetings, no one knows what was actually discussed inany of them. Though one may suspect that the meetings—some lasting but a few minutes—were conducted in furtherance of an illicitpurpose, the defendants insisted that mere presence, by itself, does not make someone a co-conspirator. With regards to Mr.

Alain Charron, in particular, the circumstantial evidence was essentially limited to his meetings with Mr. LouisNagy and with other individuals who had «contacts» at the Port of Montreal. The evidence, however, has scant examples of Mr. Charroncommunicating (be it by phone or by text) with any of the individuals connected to the present matter. As mentioned earlier, themeetings he attended were usually set up by his henchman, Mr. Gerald Myles McLellan—who, in turn, was particularly careful not tospecify the place or the purpose of the meeting. In the absence of direct evidence, counsel for Mr.

Alain Charron argued that the circumstantial evidence—even when viewed in the mostfavourable light for the prosecution—could not sustain a reasonable inference that her client knew of the existence of the scheme allegedin the charge and that he knowingly participated in it.

While mere association or mere presence can give rise to suspicion (even greatsuspicion) it cannot justify a prosecution for a charge of conspiracy. [16] In short, the defendants argued that they should not be committed to trial on the basis of inherently unreliable evidence.[14] Norcould a committal be justified if the evidence, at best, established nothing more than mere presence. The Law What is a conspiracy? [17]

Section 465 of the Criminal Code creates the offence of conspiracy. The section, however, provides no definition or descriptionof what constitutes a conspiracy. [18] In the absence of a legislative definition, one has to turn to the jurisprudence for an explanation. In the seminal decision of R. v.O’Brien, (SCC), [1954] S.C.R. 666, at p. 669, the Supreme Court of Canada adopted the definition of conspiracy fromthe English case of Mulcahy v.

The Queen : A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do alawful act by unlawful means. So long as the design rests in intention only, it is not indictable. When two agree to carry it into effect,the very plot is

an act in itself, and the act of each of the parties . . . punishable if for a criminal object . . . [19] Taschereau J., writing for the majority in O’Brien added at p. 668 : ...Although it is not necessary that there should be an overt act in furtherance of the conspiracy, to complete the crime, I have no doubtthat there must exist an intention to put the common design into effect. A common design necessarily involves an intention. Both aresynonymous. The intention cannot be anything else but the will to attain the object of the agreement. ... [Emphasis in original][15] [20] In United States of America v.

Dynar, (SCC), [1997] 2 SCR 462, 1997, para. 86, Cory and Iacobucci JJ.,summarized the necessary elements of conspiracy as “intention to agree, the completion of an agreement, and a common design.” Afterquoting from the Court’s prior decision in Papalia v. The Queen, (SCC), [1979] 2 S.C.R. 256, the judges added that : Conspiracy is in fact a more “preliminary” crime than attempt, since the offence is considered to be complete before any acts are taken

that go beyond mere preparation to put the common design into effect. The Crown is simply required to prove a meeting of the mindswith regard to a common design to do something unlawful, specifically the commission of an indictable offence. (para. 87) [21] In R. v. Montoute, (AB CA), Justice Harradence of the Alberta Court of Appeal adopted the following "nofrills" definition of conspiracy set out by Mr.

Justice David Doherty in a paper delivered to the National Criminal Law Program at theUniversity of Alberta in July 1990, at p.8 : In the absence of any statutory hint as to meaning to be given to the word 'conspiracy', one goes to the case law and the text books insearch of that meaning. The explanations offer​ed in those resources run at two levels. Near the surface, runs the well-worn, and in mostcases, ade​quate explanation of a conspiracy as an agreement to achieve a common purpose entered into by two or more people at leasttwo of whom intend to carry out the plot and achieve the common purpose.

This definition cap​tures the essential requirements of aconspiracy : (

i) an agreement to achieve a particular object; (ii) an intention to achieve that object; (iii) the agreement and the inten​tion must be proved as against at least two persons. [22] In R. v. Douglas, (SCC), [1991] 1 SCR 301, Justice Cory—in a few words—described the essential nature of aconspiracy in the following manner : The essence of the offence of conspiracy is the agreement to perform an illegal act or to achieve a result by illegal means. [23] The mens rea of conspiracy is the knowledge of the objective of the agreement and the intention to carry out the agreement.

Aconspiracy, however, does not require that all persons charged in the conspiracy be involved in all aspects of the illicit agreement. By thesame token, it is not necessary that all conspirators be aware of the presence or existence of other conspirators in the overall generalscheme. Finally, a conspiracy is not a formal agreement and may be implicit. General remarks on the type of evidence usually available in conspiracy cases [24] Conspirators do not proclaim their purpose in the public market. Nor do they reduce to a formal writing the nature and terms oftheir agreement.

At the risk of being facetious, it’s only in a prosecutor’s dream that you will find a telephone or text message from oneconspirator to another stating, “I agree to commit a conspiracy with you.” [25] Their methods, instead, are hidden, secret and devious. In the course of their communications they will resort to coded orguarded language so as to avoid police detection. For an added measure of privacy or security, communications between the conspiratorsare usually limited to safe cell phones, pay phones and public internet terminals. [26] In R. v.

Gassyt, (ON CA), Charon, J.A., writing for the majority, explained that proof of a conspiracy bydirect evidence is rarely available. Instead proof thereof has to be logically inferred from the overt act and statements of theconspirators : I would think it would have been the rare case where direct evidence would be available that the conspirators met, discussed and actuallyagreed to carry out a common unlawful purpose.

A conspiracy is more likely to be proven by evidence of overt acts and statements bythe conspirators from which the prior agreement can be logically inferred. (para. 17) [27] One of the most widely quoted statements regarding the difficulty in proving a conspiracy other than relying on inferences fromproven facts is found in the judgement of Rinfret J. in Paradis v. The Queen (SCC), [1934], S.C.R. 165 at 1168 : Conspiracy like all other crimes, may be established by inference from the conduct of the parties.

No doubt the agreement between themis the gist of the offence, but only in very rare cases will it be possible to prove it by direct evidence. Ordinarily the evidence mustproceed by steps.

The actual agreement must be gathered from “several isolated doings” (Kenny, Outlines of Criminal Law, 13ed., p.294) having possibly little or no value taken by themselves, but the bearing of which one upon the other must be interpreted; and theircumulative effect, properly estimated in the light of all surrounding circumstances, may raise a presumption of concerted purposeentitling the jury to find the existence of the unlawful agreement. [28] In any case relying on circumstantial evidence one needs to be careful not approach such evidence on a piece-meal basis.

Takenin isolation, intercepted communications and meetings between the parties may appear innocuous or meaningless to the trier of fact.Given the guarded or secretive nature of the communications and meetings that are typical in conspiracies, a piecemeal approach willoften raise plenty of suspicions but yield little, if any, real evidence of an illicit agreement. [29] The very essence of circumstantial evidence requires that the trier of fact consider the totality of the evidence. In R. v.

Langille,2007 QCCA 74 , at para. 17, the Quebec Court of Appeal explained the importance of context—including the hearsaystatements of co-accused—in order to assess the probable participation of an individual conspirator in a conspiracy : [T]he Court does not endorse Mr. Langille’s submission that the jury is precluded from considering wiretap evidence that is hearsayinsofar as a particular accused is concerned for the purpose of the contextual framework against which the jury must assess theadmissible direct evidence against the accused.

It is certainly the case that such hearsay evidence would not constitute direct evidenceagainst Mr. Langille. In this instance, however, that wiretap evidence helps to explain other wiretap evidence in which Mr. Langille is aparticipant. (Footnote omitted) [30] The British Columbia Court of Appeal in R. v. Wang, 2013 BCCA 311 , also concluded that a contextual approach tothe evidence was required when assessing the second prong of the Carter test. In the judgement, the Court referred to the authority of its

previous decision in R. v. Fimognairi, [1983] B.C.J. No. 576 (C.A.)—a case where the trial judge refused a “no evidence” motion : In Fimognairi, this Court came to the same conclusion: triers of fact are entitled to consider the acts and declarations of the individualaccused in their context, that is, against the picture provided by the acts and declarations of the alleged co-conspirators (at para. 83). Inthat case, the Court arrived at this conclusion in the context of an appeal of trial judge’s decision to refuse a “no evidence” motion.

ThisCourt held that the judge did not err in dismissing the motion, stating that judge may consider the context when deciding whether, at theend of the Crown’s case, there was evidence that required the case to be put to the jury. In my view, the conclusion equally applies todetermining whether an accused is a probable member of a conspiracy.

The out-of-court declarations of the co-conspirators areadmissible at this stage for purposes other than the truth of the contents. (para. 63) —Evidentiary difficulties («slippery facts», speculation and conjecture) [31] The task of determining whether the evidence is sufficient to warrant a committal to trial on the count of conspiracy, requiresthat I examine all the established facts and circumstances, including presence of the defendants at various meetings.

In a conspiracy casebased on circumstantial evidence, however, there is a real danger that «slippery facts»—conducive to speculation rather than reason—serve as the basis for analysis. In weighing the evidence, therefore, one must guard against fanciful, unreliable or «elastic»

interpretationof the evidence. Inferences that cannot be reasonably drawn from the evidence must be excluded. [32] The danger of speculation or conjecture is especially true when inferences are drawn on the basis of association or merepresence. Relationship, association and companionship, by themselves, do not prove a conspiracy.

At best, such evidence –with nothingmore—only leads to conjectures and speculations speciously sustained by «slippery facts» and the gut feeling that «they must be up to nogood». [33] Likewise, evidence that merely indicates knowledge or approval of the conspiracy with nothing more is insufficient to prove aconspiracy. There must be positive evidence from which one may reasonably infer that the accused knew of the existence of theagreement and knowingly joined and participated in it. —The Carter test [34] In the leading case of R. v.

Carter, [1982] 1 S.C.R., the Supreme court set out a three-part test to determine if an accused wasguilty of conspiracy : 1. The trier of fact must first be satisfied beyond reasonable doubt that the alleged conspiracy in fact existed. 2. If so satisfied, the trier of fact should move on to a second stage and review the evidence directly admissible against the accused anddetermine whether it establishes that he or she is probably a member of the conspiracy. 3.

If that threshold is met, the trier of fact is entitled to consider the evidence of the acts and declarations of the co-conspirators infurtherance of the conspiracy as evidence on the issue of the accused’s guilt. —Proof of a conspiracy beyond a reasonable doubt (step 1 in Carter) [35] In the first step of the Carter test, the prosecution has to establish beyond a reasonable doubt the conspiracy as described in thecharge existed.[16] At this stage, I am entitled to examine all the relevant evidence establishing a conspiracy—including the acts anddeclarations of the co-conspirators. [36] As explained earlier, conspiracy is by nature a clandestine offense.

In the absence of direct evidence, proof of associationbetween conspirators, especially meetings and telephone calls is important in establishing the pursuit of a common unlawful object fromwhich a conspiratorial agreement may be inferred. Of course, the evidence, viewed globally, has to establish proof of the conspiracy (asspecified in the charge) beyond a reasonable doubt and not merely lend itself to suspicion or conjecture that such a conspiracy did indeedexist. [37] In the first prong of the Carter test, it is not necessary to identify all the co-conspirators. As explained by Justice McIntyre in R.v.

Barrow, (SCC), [1987] 2 SCR 694, at para. 74 : It may often be true, that in determining beyond a reasonable doubt the existence of a conspiracy one may also determine the identity ofsome of the members. On some occasions and in respect of some conspirators it may not be necessary to have resort to the hearsayexception, but this is not always so.

It is entirely possible, and not uncommon, to be satisfied beyond a reasonable doubt on all theevidence that a conspiracy for the purposes alleged in the indictment existed while still being uncertain as to the identity of all theconspirators. —The accused’s probable involvement in the conspiracy (step 2 in Carter) [38] Turning to step 2 in the Carter test, I must determine whether each accused was a probable member of the conspiracy. In sodoing, I may only refer to the evidence which is directly admissible against the particular accused.

This does not mean, however, that actsor statements of a particular accused must be divorced from the context in which they occurred or that they cannot be interpreted againstthe picture provided by the acts of the alleged co-conspirators.[17] —Considering all of the evidence, is the accused guilty beyond a reasonable doubt of being a member of the conspiracy? (Step 3 in theCarter test, or one step too many) [39] In this last step in the Carter test, the Crown has to establish beyond a reasonable doubt the participation of the accused in the

conspiracy. In deciding the issue of membership—for the ultimate purpose of determining guilt or innocence on the charge contained inthe indictment—the hearsay exception may be brought into effect. [40] In the present matter, counsel for the accused took issue with the application of the third step of the Carter test in so far as itapplies to a preliminary hearing. After all, the issue of guilt or innocence is a matter for the trier of fact and not for the preliminaryhearing judge.

Consequently, in deciding whether or not a prima facie case exists, the preliminary hearing justice may only consider (i)whether some evidence exists upon which a jury could conclude beyond a reasonable doubt that there was a conspiracy; and (ii) whetherthere was some evidence upon which a jury could conclude that the accused was a probable member of the conspiracy. [41] In support of limited two-step application of the Carter test in the context of a preliminary hearing, counsel for the accusedreferred to the decision of Justice Mckinnon in United States of America v. Mahoney, (ON SC).

After quotingextensively from the Court’s previous decisions in R. v. Rojas (September 19, 1997, Doc. U1187/96) (Ont. Ct. (Gen. Div.) and UnitedStates of America v. Drysdale (2000), he concluded that : I am nonetheless persuaded by the logic of Watt J. and Dambrot J. in Rojas and Drysdale. The appropriate manner to assess therequesting state’s evidence is to look at the evidence as a whole, including the acts and declarations of the individual accused, todetermine whether there is some evidence upon which a properly instructed jury could conclude that a conspiracy existed.

Then, onemust look at the specific evidence relating to the fugitive, namely his own acts and declarations, to determine whether a jury properlyinstructed could conclude that he is probably a member of the conspiracy. In determining the prima facie case, one does not consider thedeclarations of co-conspirators implicating the fugitive because those declarations are only relevant in the final determination of guilt.One cannot begin to consider coconspirators’ declarations until a prima facie case has been established.

That consideration is reserved tothe ultimate trier of fact, not the preliminary inquiry or extradition hearing judge. (para. 50) [Emphasis added] [42] In United States of America v. Lorenz, 2007 BCCA 342 , para. 26, the British Columbia Court of Appeal adoptedJustice Watt’s analysis on the law regarding committal for trial (and therefore committal for extradition) on a conspiracy charge : The question for the preliminary inquiry judge in such cases was, Watt J. had stated, “whether there [was] any evidence upon the basis ofwhich a reasonable jury, properly instructed, could find (

i) that the conspiracy alleged existed; and, (ii) that the accused was a member of[it].” Where the charge is conspiracy, Watt J. continued : … the reviewing court is confined to consider whether there was any evidence before the presiding judge on the basis of which he or shecould conclude that there was some evidence upon which a reasonable jury, properly instructed, could find (

i) that the conspiracy alleged existed; and (ii) that the accused was a member of it. [43] In the present matter, my analysis on the issue of whether or not a prima facie case was made out against the accused will belimited to the first two steps of the Carter test. The role of the judge presiding the preliminary hearing [44] The conduct of a preliminary inquiry is governed, by s. 548 of the Criminal Code, which in part reads : 548(1)- When all the evidence has been taken by the justice, he shall : (

a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence inrespect of the same transaction, order the accused to stand trial; [45] Thus, one purpose of the preliminary inquiry is to ensure that there is sufficient evidence to commit the accused to trial.[18]Guilt or innocence, however, is only determined at the trial stage of criminal proceedings.[19] [46] In R. v. Sheppard, (SCC), [1977] 2 S.C.R. 1067, the Supreme Court equated the test for a directed verdict to thatof the test for committal after a preliminary inquiry.

Writing for the majority of the Court, Justice Ritchie explained the matter as followsat page 1080 of his judgement : … the duty imposed upon a 'justice' under s. 475(1) is the same as that which governs a trial judge sitting with a jury in deciding whetherthe evidence is 'sufficient' to justify him in withdrawing the case from the jury and this is to be determined according to whether or notthere is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.

The 'justice', in accordance withthis principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence whichcould, if it were believed, result in a conviction. [47] In an application for non-suit, the judge cannot base his decision on mere speculation or suspicion. As justice Ritchie stated inthe case of R. v.

Paul, (SCC), [1977] 1 S.C.R. 181. at pp. 191-92 : « ... the true test to be applied before granting a non-suit is whether the Crown evidence gives rise merely to a suspicion or whether it issuch as to justify the drawing of an inference. » [48] In R. v.

Arcuri, 2001 SCC 54 , [2001] 2 S.C.R. 828 at para.1, McLachlin C.J. explained the role of the preliminaryinquiry judge under section 548 (1) of the Criminal Code : …a preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably,to convict, and the corollary that the judge must weigh the evidence in the limited sense of assessing whether it is capable of supporting

the inferences the Crown asks the jury to draw. As this Court has consistently held, this task does not require the preliminary judge todraw inferences from the facts or to assess credibility. Rather, the preliminary inquiry judge must, while giving full recognition to theright of the jury to draw justifiable inferences of fact and assess credibility, consider whether the evidence taken as a whole couldreasonably support a verdict of guilty. [49] Thus, when sitting on a preliminary hearing (or on a non-suit application), a judge can neither draw inferences from the factsnor assess credibility.

As the Supreme Court has stressed time and again, fact-finding and the inferences to be drawn from proven factsare functions that belong to the jury.[20] [50] The afore-mentioned limitations of a preliminary hearing judge's functions appear simple enough.

However, the difficultyarises in matters where the prosecution attempts to establish its case for committal through circumstantial evidence rather than directevidence. [51] McLachlin C.J. at paragraphs. 29-30 of Arcuri, provided the following instructions to the preliminary hearing judge when theCrown is relying on circumstantial evidence to justify the committal to trial : Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence ofdefence evidence, as by definition the only conclusion that needs to be reached is whether the evidence is true.

However, where theCrown's evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of theevidence (i.e. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty. In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assesscredibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properlyinstructed jury to infer guilt.

Thus, this task of "limited weighing" never requires consideration of the inherent reliability of the evidenceitself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantialevidence. [52] Justice Mclachlin's decision in Arcuri was a restatement of the minority decision she penned in R. v. Charemski, (SCC), [1998] 1 SCR 679.

In that case she supported the principle that in a directed verdict application (which, in effect, isanalogous to the question of committal at a preliminary hearing) the judge may be required to engage in a limited weighing or evaluationof the inferences to be drawn from the circumstantial evidence as an essential step in determining whether the evidence is rationallycapable of supporting a conviction. Or, said differently, whether «hypothetically, a guilty verdict is possible.»[21] [53] In R. v.

Munoz, (2006), CanLII 3269 (ON SC), at paragraph 22, Ducharme, J explained that the preliminary inquiry judge mustoften exercise his or her discretion by drawing inferences from circumstantial evidence : [D]espite the very circumscribed scope of the preliminary inquiry judge’s function with respect to the drawing of inferences, theweighing of the evidence involved, while limited, is of great importance. Any inferences relied upon by the judge to commit the accusedmust be both: (1) reasonably based on the evidence heard at the preliminary inquiry; and (2) reasonable.

Such inferences cannot be basedon speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot bereasonably drawn from the evidence — the accused must be discharged as there would be an absence of evidence on an essentialelement. [54] At paragraph 30 in Munoz, Justice Ducharme added that «the line between a reasonable inference that may permissibly bedrawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncrasies.

The line is drawnby the laws of logic. » [55] In sum, when the case for committal to trial is entirely circumstantial, the preliminary hearing judge must engage in a limitedweighing of the whole of the evidence, including any defence evidence, to determine whether a reasonable jury properly instructed couldreturn a verdict of guilty.[22] The task of «limited weighing» involves an assessment of the reasonableness of the inferences to be drawnfrom the circumstantial evidence.[23] [56] Also, in this limited weighing of the evidence, the preliminary hearing judge must determine whether the inferences drawnfrom the circumstantial evidence are rationally derived or merely the product of speculation or suspicion.

An inference is irrational orspeculative if it is not founded on the evidence. [57] In the present matter, if I determine that the inferences the Crown wants me to draw from the evidence are irrational or merelyspeculative, then, I cannot commit the accused to stand trial. [58] What if the circumstantial evidence can lend itself equally to inferences of guilt on the one hand and to inferences of innocenceon the other hand?

In such a situation, the preliminary hearing judge (or the judge presiding a non-suit application), must be mindful ofthe rule that it is not his/her function to test the reliability or quality of the evidence once a determination of its admissibility has beenmade. These functions—as well as the ultimate determination of whether or not the guilt of the accused is the only inference to be drawnfrom the evidence—belong to the judge of the facts at the trial stage. [59] In R. v.

Monteleone, (SCC), [1987] 2 S.C.R. 154 at p. 161, McIntyre J., writing for a unanimous court,explained the matter as follows : Where there is before the court any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged juryacting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of thetrial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made.

It is not for thetrial judge to draw inferences of fact from the evidence before him. These functions are for the trier of fact, the jury. [60] Similarly, the Ontario Court of Appeal in R. v. Pan (ON C.A.), (1999), 26 C.R. (5th) 8, at paragraph 245

concluded that : [In] circumstantial evidence cases, the question whether there is a rational explanation for circumstantial evidence other than theaccused’s guilt is a matter for the jury.[24] [61] In the case of R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, justice Major, at para. 18, clearly stated that competinginferences drawn from the circumstantial evidence at a preliminary hearing are resolved in favour of the Crown : The preliminary inquiry judge in this appeal, Moore J., correctly stated the test for committal and the corresponding onus that falls onthe Crown.

He also recognized that a preliminary inquiry judge is not permitted to assess credibility or reliability and that where morethan one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered. A preliminaryinquiry judge who fails to respect these constraints acts in excess of his or her jurisdiction: see Dubois v.

The Queen, (S.C.C.), [1986] 1 S.C.R. 366, at p. 380. [25] [62] Thus, if a reasonable inference in favour of the Crown is available to be drawn, then, regardless of its strength, a judgeconducting a preliminary inquiry is required to draw it.[26] [63] Justice Wolder in the case of R. v.

McDonough, 2005 ONCJ 214 , at para. 13, made the following observations withregards to a judge's obligation at a preliminary hearing to favour only the inferences compatible with committal to trial : At the preliminary hearing, the usual rule of the criminal law is reversed: any doubt as to the sufficiency of the evidence is to be resolvedin favour of committal rather than discharge. [64] In sum, competing inferences reasonably drawn from the circumstantial evidence are left to the ultimate trier of facts to resolve.

The evidence General remarks [65] The Crown’s case consisted primarily of intercepted private communications and police surveillance of the activities of theaccused. There was also evidence relating to documents seized in the home of one accused and in the vehicle of another. This evidencewas supplemented by the expert evidence of Sergeant Joseph Tomeo concerning: (

i) the business of importing drugs into Canada (ii) themethods used by drug importers (or drug traffickers) to avoid detection by the authorities; and (iii) the meaning of the jargon or thecoded language used by the defendants in the course of their communications. [66] In the case of a conspiracy, the first step of the Carter test requires that I determine whether, on all of the evidence, the Crownhas established, beyond a reasonable doubt that the charge is made out.

More precisely, as the present matter concerns a committal totrial following a preliminary hearing, my review of the evidence requires that I determine whether or not a reasonable jury (or judgesitting alone) could ultimately infer that a conspiracy (as particularized in the charge) existed. [67] However, a presentation of the evidence predicated upon the first step of the Carter test would be unduly long, tedious andprone to redundancies.

For the following reasons, an exhaustive review of the intercepted communications and the numerous policeobservations will not be necessary : • Sheer number The sheer number of intercepted communications—some 1,201—would take up too much of my time and the reader’s time. TheCrown’s lengthy brief reviewed in detail all the relevant intercepted communications and police observations. The brief, moreover, doesan excellent job of connecting the dots between various communications and police observations.

Any effort on my part to describe andcomment the relevant evidence on the first step of the Carter test would not match the work done by the Crown. • Unnecessary repetition Many of the intercepted communications relevant to the first step of the Carter test would be repeated with the same comments whendiscussing the second step of the Carter test. • The existence of a conspiracy is obvious The defendants all argued that there was no evidence to support the existence of a conspiracy, let alone the particularized charge ofconspiring to import hashish and cocaine into Canada.

With respect, the existence of such a conspiracy could not be seriously contested.A raw look at all the evidence paints the picture of various individuals scheming or plotting to commit an illegal act. The covert or codedlanguage used by the co-conspirators prevents the casual reader from putting his finger on the exact nature of the conspiracy. However,through the testimony of the expert witness, the actions of the accused (both their words and deeds) were given a structure or meaningthat was consistent with a conspiracy to import cocaine and hashish.

In stipulating that the conspiracy set out in the charge was obvious, I have considered and carefully reviewed all the evidence. Viewed inisolation, much of the evidence could be dismissed as nothing more than the raw material of conjecture or speculation. However, whenviewed in its totality, the evidence does support the conclusion that the alleged conspiracy existed. My conclusion to the effect that a conspiracy to import hashish and cocaine into the country existed does not require that I know everydetail of the conspiracy. Indeed, a play-by-play narrative of the illicit scheme is impossible.

To begin, there’s no evidence of what wassaid in the various meetings attended by one or more of the accused. Likewise, there’s no way of knowing what was said in the course ofcalls that could not be accessed by the authorities—i.e., those conducted by secure internet, safe cell phones and pay phones. Despite theabsence of a complete narrative, the evidence drawn from all the overt actions and words of the accused were consistent with a scheme

to import the said drugs into Canada. [ 68 ] Having concluded that the first step of the conspiracy did exist, I must now turn to consider whether the evidence shows that each individual accused was a probable member of the conspiracy. More precisely, as a preliminary hearing judge, I would have to decide whether the evidence, if believed, could ultimately lead to a finding of fact that each individual accused was a probable member of the conspiracy. As mentioned above, the second step of the Carter test requires that I examine only the evidence which is directly admissible against a particular accused.

In doing so, I must be careful not to view the evidence in isolation. Instead, the acts and declarations of the accused must be viewed in reference to the context in which they were said or done. Testimony of Mr. Joseph Tomeo —Decoding the jargon [ 69 ] While a casual reading of the intercepted communications (along with the police observations) was consistent with an illicit conspiracy, its exact nature is left to guess work or conjecture. Without the testimony of Mr.

Joseph Tomeo, the uninformed reader would not be able to associate certain words or phrases in the intercepted communications with a plan to import hashish and cocaine into the country. [ 70 ] My analysis of each defendant’s probable implication in the conspiracy, therefore, will start with a recap of Mr. Joseph Tomeo’s testimony. —Exhibit EP-22: (The Rosetta Stone) [ 71 ] As is often the case in the drug trade, communications between conspirators are shrouded in coded or ambiguous language designed so as to shield from the authorities the true nature of their scheme.

The present matter was no exception to the covert nature of drug operations: conversations between the parties were vague or ambiguous, contained few details (i.e., no mention of the specific places where the meetings were to be held and individual participants were referred to by their aliases rather than by their real names). The communications were also punctuated by enigmatic references to the numbers 1, 3 and 5. [ 72 ] The key in decoding the covert language of the intercepted communications (and in providing a structure or narrative to the Crown’s case) lay in a document seized in the vehicle of Mr.

Marco Milan, filed in the Court record as Exhibit EP-22. Through the testimony of Mr. Joseph Tomeo, the enigmatic inscriptions on the said document were given a meaning consistent with a conspiracy to import narcotics into the country. In the following section, I will re-transcribe some of the writings that appear on the document and summarize the expert’s opinion as to their meaning : « BRICKHOUSE» [ 73 ] At the very top of the document, one finds the word «Brickhouse». According to Mr. Joseph Tomeo the word «BRICKHOUSE» served as code for transmitting numerical information.

More precisely, each character in the ten-letter word represented a number from 1 to 10 (0) or from 10 to 1 (0). When communicating amongst each other via internet, fax or text, a pre- established letter code could serve to designate a date, a time or a price. For example, «9h30» may be transcribed as «SIE» (the letters corresponding to the 9 th , 3d and 10 th positions that appear respectively in the word «BRICKHOUSE»).

One will note that no two letters in the word BRICKHOUSE are repeated. [27] «Chapters 1, 2 and 3, vintages and cities” [ 74 ] By far, the most important inscriptions—from the perspective of the Crown’s theory—were contained in three lines that read as follows :

Chapter # 1 Merlot—Karachi

Chapter #2 Chardonnay—Lima

Chapter #3 Mining—Johannesburg [ 75 ] From Mr. Joseph Tomeo’s testimony, one could say that the said lines were the equivalent of discovering the «Da Vinci Code». The key lay in associating each city named in the document with a particular drug. Karachi, for instance, was known for its production and transit of cannabis resin; Lima was known for its production and transit of cocaine; and Johannesburg was known as a transit point in the shipment of hashish to North America.

Having associated each city with a particular drug, he arrived at the following conclusions: «Chapter #1 Merlot—Karachi» referred to a project to bring hashish into Canda; «Chapter #2 Chardonnay—Lima» referred to a project to import cocaine; and «Chapter #3 Mining—Johannesburg» denoted a venture to import hashish. [ 76 ] In support of his conclusions, Mr. Joseph Tomeo pointed to the similarity in the said three lines of exhibit EP-22 with some of the words or terms used by the conspirators (not all of whom were identified) in the course of their communications.

For example, an exchange of e-mails between Robert Bryant and an individual identifying himself as «David Solomon», dated December 9, 2011, made several of the numerical references found in EP-22 : (From Robert Bryant ) On Fri, 09 Dec 2011 08:02:02 +0530 Greetings Hope mail is functioning on your end as mentioned friends are concerned they want dates for breaking ground they expected firm projections this week, how was your check up at the clinic. They are adament about escrow being returned next week or firm date for completion of ch 5 unions are pushing for firm contract best regards (sic)

( From David Solomon ) Sent : Fri, 09 Dec 2011, 13:47:25 Your mail received in good order. As said we’re expecting news soon for on and three and are aware of the nr 5 requirements. We’re pushing as much as possible.

Stay calm ,cool dans positive, also best regards to you (sic) (emphasis added) [ 77 ] Likewise, in a series of text messages exchanged between Messieurs Louis Nagy and Robert Bryant on January 24, 2012, one notes several «coded» references to the number «3»: Bryant to Nagy : Mail in two hours will be there elen thirty (sic.) Bryant to Nagy : Barry texted sever mail down needs info quickly slow number 3 . (sic) Bryant to Nagy : Sever down text from barry needs slow three info asap. (sic) Nagy to Bryant : Hi I guess when u see me we can idscuss it’’’’’’(sic) Bryant to Nagy : Good they are ready Nagy to Bryant : Good Bryant to Nagy : And all at once. [28] (Emphasis added) [ 78 ] In the above-mentioned extract, the references to the number 3 (be it as a «slow number 3» or a «slow 3», were seen as corroboration for the expert’s testimony that the conspirators used numeric codes to designate a particular scheme to import narcotics into Canada.

As the number «3» at exhibit EP-22 was associated with Johannesburg, logic dictated that the parties were referring to a project to import hashish transiting from the said city. [ 79 ] The expert also explained that the qualifier «slow» before «number 3» indicated that the drugs would be transported by ship. Given the relatively low price of hashish, great quantities of the drug have to be imported in order to make it worth everyone’s while. [29] This can only be done by ship. [ 80 ] On the 25 th of January 2012, Mr.

Louis Nagy sent two text messages to Robert Bryant which also recalls the coded language found in EP-22. Along with the use of numbers (1 and 3), one also notes the use of the abbreviation «ch.» for the word «chapter» : - I sent message to blondie barry needs address for ch3 asap They caught what ribkoff saw want to have lunch in two weeks Waiting for jd at noon Ch 1 for su. (sic) [30] - re in two weeks Made change to 3 as you said need address ready. (sic) [31] (Emphasis added) [ 81 ] The intercepted communications have other examples of references to numbers and to the abbreviation «ch.».

The Crown’s brief contains an exhaustive list of all such communications. For the purposes of this judgement—and of this

chapter in particular—I need not survey them all. Besides, many of those communications will be examined when I review the evidence directly admissible against each of the accused. [ 82 ] Mr. Joseph Tomeo’s conclusion—holding that the inscriptions at EP-22 were compatible with separate projects to import narcotics from certain « source cities » or locations—was further corroborated by two references to «mining country» in the intercepted communications. [32] One will recall that one line at EP-22 read: «

Chapter #3 Mining —Johannesburg. » EP-19. A checklist (or instruction list) for the serious and careful conspirator [ 83 ] Mr. Joseph Tomeo was also called upon to give expert testimony on a two-page document found at the residence of Mr. Robert Bryant (Exhibit EP-19). The first page of the document appears to contain a series of instructions or reminders numbered from one to eight. A partial list of the said instructions reads as follows : 1. Program is on before the 20 th 2. 48 hrs notice before hand. At that point we will pay good faith money 3. A.W.B. Description and flight booking will begin tran. (sic) 4. [ …] 5. BRICKHOUSE 1234567890 For numbers use above code

6. Clean new text phones only for com. 7. [ …] 8. […] (sic) [ 84 ] For the expert, the first three items in the list pertained to the transportation or the logistics in the importation of narcotics. With regards to the reference to «good faith money» mentioned at item 2, for instance, the expert offered the following explanation: Expenses are inevitably tied to the illicit importation of drugs into the country. «Good faith money» is usually paid by the importer to cover the costs incurred for transporting the drugs to their destination. [33] [ 85 ] At item 5, one finds another reference to the word «BRICKHOUSE».

This time, however, the numbers 1 to 10 (0) were inscribed below each letter of the word. For the expert, there could be no doubt that letters in the word «BRICKHOUSE» were to be used as an alphabetical code for information usually designated by numbers (time quantity and price). [ 86 ] As for the annotation at item 6 «Clean new text phones only for com.», it referred to the usual practice in the illicit drug trade to use «safe phones» so as to avoid police detection.

Paradoxically, this concern for using «safe» or «clean» phones was a recurring theme that was captured in several of the intercepted communications. In one message, for instance, Mr. Robert Bryant asked Mr. Louis Nagy to call him on his other phone: « Please use other its loaded. » (sic) [34] Likewise, in a text message from Mr. Dean Copkov to Mr.

Robert Bryant the latter expressed concern about using a compromised cell phone : Everything is good I don’t like phones the number I was going to give you has been spoiled so I’m getting another number to give U tomorrow. (sic) [35] (emphasis added) [ 87 ] In the intercepted communications, one also finds a concern for obtaining or picking up new phones. For instance, a message sent from Mr. Louis Nagy to Mr.

Robert Bryant, dated February 14, 2012, reads as follows : Good morning harry i hope god is with us i always wanted to be a jesus freak!!i order ure phones Pick them up today. (sic) [36] [ 88 ] From the Crown’s perspective the afore-mentioned text message implies that Louis Nagy obtained new and secure cell phones. [ 89 ] Likewise, in a series of text messages involving the same two accused, dated February 18, 2012, Mr.

Louis Nagy wrote : Hello im waiting by the way ure bb is no good go buy cheap phone for 50 dollars u have same number bad business man get ure act together. (sic) [37] just paid for bb man talk to me What are u doing??u sure hes not A???? after hes buddy johnny had problems u never know talk to me and be nice I have done nothing wrong. (sic) [38] [ 90 ] The recommended use of secure cell phone was essentially a call to caution. In his testimony, Mr. Joseph Tomeo explained the methods that conspirators use to avoid detection : 1. Phone conversations or messages are shrouded in guarded or coded language. 2.

Communications are conducted by safe or secure cell phones. 3. As an added measure of protection—in case the safe or secure cell phones may be compromised—pay phones are used for communication. 4. The use of public internet terminals to send or receive e-mails (internet cafés, public libraries and hotels). 5. To reduce the risk of detection further still, the conspirators meet and discuss in person.

For that matter, the messages relayed from one conspirator to another in order to set up a meeting contain few, if any, details of the meeting place, let alone the subject matter to be discussed. [ 91 ] The imperative of keeping communications to a minimum so as to avoid detection is especially evident in the writing that appears on the second page of EP-19 : We are as keen as you no need ask over and over keep com. to a minimum. (sic) [ 92 ] In the present matter, the conduct of the accused bore all the hallmarks of a covert drug-related conspiracy. Along with the concern for safe phones, one finds : 1.

The use of coded language If one accepts the testimony of Mr. Jospeph Tomeo, the intercepted communications (along with the seized documents) contain many examples of coded language meant to conceal an illicit scheme to import drugs. Specific examples will be given in a subsequent chapter. 2. The use of payphones Mr. Louis Nagy, in particular, had a proclivity for using pay phones, be it at a shopping centre, a hotel or even in a hospital. In one instance, he was observed leaving his house at 11h18 and getting on board his car which was parked in front of his residence in Beaconsfield.

At approximately 11h23, he was seen entering the Lakeshore Hospital in Pointe Claire and, at around 11h35 he was seen

using a pay phone at the said institution. Once the phone call was finished (11h45), he left the hospital and headed to the Fairview Shopping Centre. Thereat, he made three separate phone calls from three separate pay phones between 11h50 and 12h35. For the Crown, the accused’s multiple use of payphones—in the course of a relatively short span of time—was consistent with the exercise of cautious measures so as to conceal the illicit nature of the scheme he was involved in. It was also pointed out that the use of payphones made little sense when considering that (

i) Mr. Louis Nagy already owned a cell phone —he was even seen using it prior to or after using a payphone; (ii) the inconvenience of travelling to a particular location to make a call when one has the benefit of a cell phone at hand. Nothing in the evidence indicated that the accused had any business in the hospital. Likewise, nothing in the evidence indicated that he had any shopping to do at the Fairview Shopping Center. 3. Use of public internet access Both Messieurs Louis Nagy and Robert Bryant made liberal use of internet access in public locations. With regards to Mr.

Louis Nagy, in particular, the use of public internet terminals seemed incongruous with a rational use of one’s time or resources. Even though his home computer was connected to the internet, he was observed driving to the public libraries in Kirkland and Westmount in order to access their internet. Likewise, he travelled to various hotels—not to book a room for the night, but in order to access the internet service. Be it at the library or at a hotel, he never lingered for a long time. 4.

Meetings (in person) in lieu of phone conversations The evidence has many examples of meetings involving one or more of the accused. The meetings were often held after a coded or ambiguous communication. This relay (or link)) between a specific communication and a particular meeting suggested: (

i) that the meeting was connected to the communication and (ii) that the defendants—wary of police detection—did not want to discuss matters over the phone. Many of the meetings were curiously short. Were it not for an illicit purpose, the effort or expense deployed by the alleged co- conspirators to attend the abbreviated meetings would make no sense. In one example, Mr. Louis Nagy was observed at Concordia University using a payphone. Approximately one minute later, Mr. Alain Charron arrived at the scene and was observed discussing with Mr. Louis Nagy.

The meeting between the two men lasted but four short minutes. Given the brief nature of the encounter and the fact that Mr. Nagy had a functioning cell phone, one could surmise that a person-to person meeting was called in order to shield an illicit scheme from the prying ears of the police (just in case there’s a Court-ordered wiretap of their phones) . The next example attests to the lengths certain accused will go through in order to reduce the risk of police detection.

On January 13, 2012, Messieurs Steven Woods and Louis Nagy drove in a Ford 150 from the West Island in Montreal to Kingston in a snow storm in order to meet with Mr. Robert Bryant at the Courtyard Marriott Hotel in the city of Kingston, Ontario. At approximately 13h10, Mr. Louis Nagy and Mr. Robert Bryant met in the parking lot of the hotel. At around 13h28, all three men (including Steven Woods) were observed entering the hotel. Finally, at 13h41 Mr. Louis Nagy and Mr. Robert Bryant were each seen in front of two separate computers set out side by side.

At 13h51, the three men left the hotel all the while discussing amongst each other. At 14h02, they parted ways. The travelling distance combined with the difficult weather conditions could hardly justify a meeting that lasted less than one hour. The Crown also surmised that the purpose of the meeting was to access their e-mail accounts in a location that would not draw the attention of the authorities. Rounding up other parts of Mr. Joseph Tomeo’s testimony —Half of a five dollar bill: (still more intrigue) [ 93 ] At the residence of Mr. Robert Bryant, the authorities found half of a five dollar bill.

In his testimony, Mr. Joseph Tomeo explained that in the drug milieu half-portions of paper currency are often used for the purposes of identification or in order to confirm association. [39] His report provided the following practical example : If an importer would send a representative to meet with a supplier. Each does not know each other. Both would be in possession of half of the same currency.

The 2 haves are matched (by serial number) then each other’s identities have been confirmed. [40] [ 94 ] There was no evidence, however, that the half of the five dollar bill was ever used in the manner suggested by Mr. Joseph Tomeo. Similarly, the other half of the five dollar bill was never recovered. —Lunchtime [ 95 ] In the jargon of drug traffickers, explained Mr. Joseph Tomeo, references to dining out or eating together—i.e., «we will have lunch», «we will have pasta»—are code words intended to convey the message that the project will be completed.

The intercepted communications contain several «dining references»: For instance, an e-mail message between Mr.

Robert Bryant and an individual identifying himself/herself as «David Solomon», dated January 14, 2012, reads as follows : Hi; New developement for ch3 if your contact is able we can fast track the contract to my friends place twice a week very solid if your foreman can handle it properly if this is feasable i can send details ups we really must do lunch soon please inform sounds great on the road [41] [sic, including the spaces between the words or phrases] (emphasis added) [ 96 ] In another e-mail sent by «David Solomon» to Mr. Robert Bryant, on January 5, 2012, the word «pasta» was used as code word

to signify the completion of the project : greetings : Head office is most concerned with about ch 5 I hope this contract is firm an d we can have a pasta in the next few days,I remain calm but i can not say that for the bank cheers [Sic, including the spacing between the words or phrases] [Emphasis added] Mr.

Robert Bryant replied to the «pasta invitation» on the following day : am hopeful that this story will have a happy ending im running out of excuses I am eager to have lunch and must have a firm time asap over ready [sic, including the spacing between the words or phrases] (emphasis added) [ 97 ] Judging from Mr. Robert Bryant’s response, one can safely say that his e-mail was not intended to convey his love of pasta nor the excitement at the prospect of dining out with the individual purporting to be «David Solomon».

Placed in context, the only logical explanation was that he was anxious to complete the project as soon as possible. —This season’s material» and quality control An e-mail sent by «David Solomon» to Mr. Robert Bryant, on January 17, 2012, reads as follows : We're checking the fasttrack opportunity for nr three . Re : nr three slow , we now have the following possibility for you to check out. One of the parties I mentioned before is willing to dispatch 2 units straight to your place with this season's material . NO INVESTMENT from your side required. Quality is made suitable for your market.

Testing can possibly be done over here , but onlyan indication of what it's going to be. Custom made format as discussed before. Need guaranteed a basic return of 5 CAD. Same party wants to continue with much volume and room for investment fot all. Nr one still pending, I have been assured again that everything is ready. We're expecting news this week. Stay tuned on this one ! [Sic] (Emphasis added) [ 98 ] In his testimony, Mr.

Joseph Tomeo pointed to the key words or phrases in the afore-mentioned passages that were compatible with a conspiracy to import hashish into the country : • Firstly, a reference was made to the number «three». As explained earlier, the number three at EP-22 was associated with a conspiracy to import hashish from Johannesburg.

The qualifier «slow» placed after the number «three» meant that the drugs would be transported by ship. • Secondly, the phrase «this season’s material» was a reference to hashish which, in Pakistan, was harvested in October. • Finally, the phrases «willing to dispatch 2 units straight to your place with this season’s material», «Quality is made suitable for your market» and «Testing can possibly be done over here» indicated that the supplier was willing to send two kilos of hashish as samples for quality control.

The expert explained that the quality of hashish—unlike some other drugs—cannot be tested by a chemical process. Instead, quality has to be tested through human consummation. In this case, the supplier was willing to ship two kilos for such testing. The proof is in the pudding sort of speak. [ 99 ] While discussing the meaning of the afore-mentioned passage, Mr. Joseph Tomeo happened to stumble upon another link or connection with the material evidence found at Mr. Robert Bryant’s house.

More specifically the mention of the «5 CAD» in the phrase «Need guaranteed a basic return of 5 CAD» was a reference to the half five-dollar bill that was found at the residence of Mr. Robert Bryant. It should be noted, however, that Mr. Joseph Tomeo did not elaborate on the said link in his testimony nor did he mention it in his brief four page report. —Issues regarding the reliability of Mr. Joseph Tomeo’s testimony at the preliminary hearing [ 100 ] One of the principal arguments against the committal to trial was predicated on the reliability (or lack thereof) of Mr. Joseph Tomeo’s testimony.

One will recall that the defendants challenged the factual underpinnings of his testimony and that they dismissed his conclusions as being frivolous or illogical. If one subtracts his testimony from the equation, the Crown’s theory becomes totally unhinged. An accused, they argued, should not be committed to trial on inherently unreliable evidence. [ 101 ] Mr. Joseph Tomeo, however, was duly qualified as an expert by the Court on all matters dealing with the importation of drugs into the country.

Though his credibility was tested in cross-examination, I have to keep in mind that weighing the credibility of a witness is not the function of a judge presiding at a preliminary hearing. Thus, in a case based on circumstantial evidence, the limited weighing of the evidence never requires a consideration of the inherent reliability of the evidence itself. This is a task for the trier of fact. Nor is it a function of the preliminary hearing judge to assess whether the evidence is too weak or unreliable for a trier of fact to return a conviction.

Instead, his task is to consider only whether there is some evidence on each element of the offence capable of supporting an inference of guilt, and not whether the evidence is strong enough to abolish reasonable doubt. Once again, that is the function of the trier of fact. Finally, when faced with competing inferences, one must view the evidence in the light most favourable to the Crown’s case.

[ 102 ] My modest role as a preliminary hearing judge precludes me from making direct comments about the credibility of Mr. Joseph Tomeo’s testimony. However, as the issue seemed central to the defendants’ arguments, I will limit myself to the following general comments : • His impressive C.V. shows that he has vast experience with regards to the methods used by drug traffickers to import illicit drugs into the country.

His expertise on such matters was recognized time and again by different courts across the country. • Though his comments regarding the meaning of words or phrases found in two exhibits may be subject to debate, his testimony was based on his understanding of the methods used in the illegal importation of drugs (i.e. source cities for the production or shipment of certain drugs). Far from me—especially at the preliminary hearing—to dismiss his analysis as frivolous or illogical. No doubt, there were instances where his analysis of certain passages in the intercepted communications showed a want of consistency.

However, want of consistency does not mean absence of evidence upon which to commit an accused to trial. Ultimately, the reliability or reasonableness of his testimony will be assessed by the trier of fact. • His analysis of certain terms used in the drug trade was not seriously challenged by the defendants. In the intercepted communications, for instance, one finds several references to «having lunch» or getting together to have «pasta». In the drug jargon, explained the expert, references to dining or food are code words or expressions for the completion of a project.

What is the evidence against each of the accused? —Organizing the evidence [ 103 ] The Crown submitted a lengthy and impressive brief to justify the committal to trial of all of the accused. In one hefty section, the Crown set out, in chronological order, all the relevant evidence (essentially intercepted communications and police observations) establishing proof of a conspiracy as well as the probable participation of each accused in the conspiracy.

At the end of each intercepted communication and police observation, the Crown added two brief annotations: «First step», indicating that the evidence was tendered to establish the existence of the conspiracy; and «second step» indicating that the evidence was directly admissible against an accused in order to establish his probable implication in the conspiracy. The Crown also added several comments regarding the meaning of certain intercepted communications and police observations. In particular, attention was paid in pointing out the communications that corroborated the expert testimony of Mr. Joseph Tomeo.

Also, the Crown’s comments were aimed at establishing a link between the intercepted communications and the many police observations involving one or more of the accused. [ 104 ] In the concluding

chapter of the brief, the Crown recapped the evidence directly admissible against each accused that established their probable participation in the conspiracy (second step in Carter ). Unavoidably, this last

chapter had to repeat much of the evidence presented in establishing the existence of the conspiracy (first step in Carter ). [ 105 ] For the purposes of this judgement, however, I am of the view that an individualized presentation of the admissible evidence against each accused is neither necessary nor called for. One reason is practicality—it would simply take too much time to set out the bulk of the evidence applicable to each and every accused.

Besides, I could do no better than re-transcribe the relevant portions of the Crown’s brief. [ 106 ] Useless redundancies constitute another reason: Often intercepted communications and police observations can serve as evidence against more than one of the accused. [ 107 ] The main reason, however, for avoiding the tedious task of setting out for each accused a complete step 2 Carter analysis lies in the fact that the evidence establishing their probable implication in the conspiracy was obvious and beyond serious contestation for the great majority of them.

The evidence pointing to the probable implication of Robert Bryant and Louis Nagy, in particular, was overwhelming. Though less plentiful, there was no shortage of evidence associating Messieurs Dean Copkov, Marco Milan, Thong Savath Yi and Steven Woods in the conspiracy. [42] [ 108 ] In making the afore-mentioned comments, I have taken into

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