R. v. Meyer, 2012 ONCJ 791

Citation: R. v. Meyer, 2012 ONCJ 791 ONTARIO COURT OF JUSTICE (East Region) Her Majesty the Queen v. Robert Meyer Before Justice David M. Paciocco – Ottawa, ON Reasons for Decision Released 17 December 2012 Ms. Delinda Hayton ………………………………………………………………..for the Crown Ms. Vicki Hentz …...…………………………………………………………….for the Accused Paciocco J. I. Introduction [1] Robert Meyer is charged between 15 November 2010 and 7 March 2011 with conspiring with Tristan Jones to traffic inmarijuana. The allegation is that Mr. Jones was in the business of trafficking and that Mr.

Meyer, who was aware of this, was on anongoing basis one of Mr. Jones’ marijuana suppliers. The case against Mr. Meyer is built primarily on wiretap intercepts of successivephones used by Mr. Jones, combined with surveillance of Mr. Jones’ townhouse residence at 967 Eiffel Drive in the City of Ottawa. Thecentral factual issue in the case is whether Mr. Meyer is the person overheard on the 22 intercepted conversations relied upon by theCrown to anchor the alleged conspiracy.

The crucial legal issue that arises even if I do accept the factual allegations made by the Crownbeyond a reasonable doubt is whether, in light of all other evidence those conversations establish a conspiracy to traffic in marijuana withMr. Jones, contrary to subsection 465(1)(c). The place to begin is with a

summary of the elements of the offence which the Crown isobliged to prove to secure a conspiracy conviction. Reference to the particular facts of the case is best made while analyzing whetherthese elements have in fact been proved beyond a reasonable doubt. II. The Law [2] In simple terms, the charge of conspiracy makes it illegal to enter into a serious or genuine agreement with another to commit anunlawful act. The offence of conspiracy can therefore be committed whether or not the offence agreed to ever occurs, or whether thatoffence has even been attempted: R. v. Dery 2006 SCC 53 , [2006] S.C.J.

No. 53. [3] On its face, the crime of conspiracy is deceptively simple. The relevant criminal act or actus reus in a conspiracy offence isnothing more than the “formation of an agreement, tacit or express, between two or more persons to act together in pursuit of a mutualcriminal objective”: R. v. Alexander (2005), (ON CA), 206 C.C.C. (3d) 233 at para. 46 (Ont.C.A.). Put another way,before the offence of conspiracy occurs there must be the completion of an agreement between two or more persons to undertake acommon, unlawful design. In R. v. Root 2008 ONCA 869 , [2008] O.J.

No. 5214, aff’d by endorsement 264 O.A.C. 398 n.(S.C.C.), the Ontario Court of Appeal, at para. 66, therefore broke the actus reus of the offence of conspiracy into two components –“the completion of the agreement” and “a common (unlawful) design.” In this case the specifically alleged “completed agreement” isthat, between 15 November 2010 and 7 March 2011, Robert Meyer and Mr. Tristan Jones agreed to pursue the mutual criminal objectiveof trafficking in marijuana. [4] In addition to the relevant criminal act or actus reus all true criminal offences have a mens rea requirement, or a necessary mentalcomponent.

In the case of the crime of conspiracy that mental element necessarily overlaps with the criminal act since the act or actusreus of agreeing inherently requires a conscience decision or choice to agree. In other words, that act inherently necessitates an intentionto agree. Meanwhile in R. v. Root 2008 ONCA 869 , [2008] O.J.

No. 5214 at para. 66 the Ontario Court of Appeal described themens rea element of the offence as “an intention to agree.” Given the actus reus requirement that the parties must act together in pursuitof a mutual criminal objective, the mens rea requirement requires inherently that the accused person must intend to pursue a mutualcriminal objective. Not surprisingly, the Supreme Court of Canada recognized in R. v.

Dery at para. 47, that the offence of conspiracy isessentially a crime of intention, with both its actus reus and mens rea elements involving a search for intention. [5] In spite of the overlap between the actus reus and mens rea elements, however, the mens rea element is not redundant. This

element requires a close look at the seriousness of the intention of the accused persons at the time of the agreement to bring about theircommon unlawful design. As the Quebec Court of Appeal said in R. v. Lamontagne (1999), (QC CA), 142 C.C.C.(3d) 561 at 575 (Que.C.A.) there must be “a true intent to agree to put the criminal scheme into play”: (and see R. v. O’Brien (1954) (SCC), 110 C.C.C. 1 (S.C.C.); R. v. Munoz (ON SC), [2006] O.J. No. 446 at para. 36 (S.C.J)).

Still, theoverlap between the actus reus and mens rea of the offence make it difficult to follow the customary practice of analysing the actus reusand mens rea separately. In assessing whether the offence of conspiracy alleged in this case has been made out I therefore have to ask anintegrated question. Given the Crown theory in this case – that the conspiracy is linked to Mr.

Meyer’s role selling or supplyingmarijuana to another alleged drug trafficker, Tristan Jones – it is necessary before framing that integrated question to say more aboutwhen an agreement to undertake a common unlawful design can arise in a drug seller/buyer relationship. [6] The law has been anything but settled on this matter. Indeed, in his

article “The Contract as Conspiracy: A Critique of Regina v.Sokoloski,” (SCC), [1977] 2 S.C.R. 523” (1978), 10 Ottawa L. Rev. 488, Professor Peter McKinnnon identified threepossible approaches.

Essentially, the relevant options are whether the law (1) finds a conspiracy in the simple agreement between a sellerand buyer to engage in a narcotics transaction, or (2) requires only that the seller knows that the buyer intends to resell the narcotics, or(3) goes further, requiring that the seller or buyer actually agree to become part of the supply chain of the other or otherwise undertake anarcotic enterprise in common.

Even though twenty-five years have passed since the article, uncertainty remains. [7] The only thing that appears to be beyond real controversy is that the first possibility - that the simple act of a seller and purchaseragreeing to have the seller supply drugs to the purchaser - is not a conspiracy even though the two will have agreed in common tocomplete a narcotics transaction: R. v. Longworth et al [1982] O.J. No. 3248 at para. 55 (Ont.C.A.). In the leading Supreme Court ofCanada case of R. v. Sokoloski (1977), (SCC), 33 C.C.C. (2d) 496 the Court looked for more than this before affirmingMr.

Sokoloski’s conviction, and distanced itself from the suggestion that every purchaser is necessarily conspiring to traffic in narcotics.While some of the Sokoloski reasoning is arguably no longer instructive,[1] the inappropriateness in equating simple agreements to buyand sell with conspiracies remains obvious.

It would provide prosecutors with the opportunity to use conspiracy charges to seek penaltiesfor purchasers that are greater than the maximum penalties available had the purchaser actually taken actual possession of the drug.Chief Justice Laskin also made the poignant point, albeit while dissenting on a different issue, that Parliament made it a per se offence tooffer to sell narcotics but did not make it a per se offence to offer to buy drugs. Applying conspiracy to criminalize offers to purchasewould indirectly capture what Parliament evidently did not intend to capture.

There is nothing in the majority decision of JusticeMartland indicating disagreement with this. [8] These broader concerns focus, of course, on the plight of the purchaser. Perhaps for this reason Chief Justice Laskin offered inpassing that a trafficker might possibly be guilty of conspiracy as the result of a drug sale/purchase agreement: R. v. Sokoloski at 502. Notsurprisingly, this suggestion has not been taken up. Courts, such as R. v. Martin (NB KB), [1993] N.B.J. No. 385(N.B.Q.B.), have held that not even a trafficker can be convicted of conspiracy for simply agreeing to sell to a purchaser.

This seemsright. The gist of conspiracy is an “agreement” to commit a common unlawful act to which the actors are privy (R. v. Cotroni (1979), (SCC), 45 C.C.C. (3d) 1 at 17-18 (S.C.C.)) or a mutual criminal objective (R. v. Alexander (2005), (ON CA), 206 C.C.C. (3d) 233 at 247 (Ont.C.A.)). While a prospective buyer and seller might agree to complete the same generalnarcotics transaction, they are not typically agreeing to commit a common unlawful act or a mutual criminal objective. One party isagreeing to commit the act of possessing a drug and the other is agreeing to commit the offence of trafficking.

As Laskin C.J.C. himselfput it elsewhere in his decision in R. v. Sokoloski at page 500, “The agreement between them is simply a reflection of different promisesin a bilateral contract; they are not parties to the same promise.” [9] The gap between these different promises cannot be bridged by arguing that a buyer necessarily agrees to aid and abet the sellerby making the transaction possible and thereby agrees to commit the same mutual criminal objective as the seller.

It is settled law that apurchaser cannot be convicted on the “enabling” theory of aiding and abetting in trafficking since such a holding would turn everypurchaser into a convicted trafficker: R. v Dyer (BC CA), [1972] 2 W.W.R. 1 (B.C.C.A); R. v. Madigan (ON CA), [1970] 1 O.R. 80 (Ont.C.A.). As the Ontario Court of Appeal put it in R. v. Dyer at pages 5-6, “the interests of the partiesis distinct and to some extent opposite so that neither should be thought of as an aider or abetter of the other.” The same objection wouldapply to using an enabling theory to build conspiracies.

Proof that one party aided another in that other’s criminal enterprise is notenough to ground a conspiracy: R. v. Alexander (2005), (ON CA), 206 C.C.C. (3d) 233 at paras. 46-48 (Ont.C.A.),and see R. v. Bui [1994] A.J. No. 1087 (A.B.Q.B.). [10] If Mr. Meyer is to be convicted of the offence charged, it cannot therefore be on the simple basis, if proved, that he agreed withMr. Jones to sell Mr. Jones marijuana.

The controversy, then, is whether McKinnon’s proposition (2) - that “a buyer and seller … can beconvicted of conspiracy to traffic ... where the buyer intends to resell and the seller knows that the buyer intends to do so” – or hisproposition (3) – that “A conspiracy to traffic will lie against buyer and seller only where [one] is a party to the [other’s] distributionscheme....” or some variation of proposition 3 - applies. [11] Unfortunately the Supreme Court of Canada case law does not settle the question. The facts of R. v.

Sokoloski do not resolve thematter since in that case there was more than a simple agreement by the seller to sell to a buyer known to intend a resale; the sellerappears to have sought out, acquired and delivered the drugs to Sokoloski on his behalf, thereby evidencing an agreement to act as part ofSokoloski’s trafficking business. Nor does the language found in the majority decision settle things. The majority decision does notdescribe what is required for conviction; it simply comments on what is not required.

Justice Martland said in the key passage that it was“an error of law [for the trial judge] to hold that in order to establish a conspiracy, as charged, it was necessary to prove an agreementbetween the parties jointly to manufacture, sell, transport or deliver a controlled drug without the requisite authority.” This passage canbe read as saying no more than that a conspirator does not have to be a full partner in the actual unlawful transaction, nor need aconspirator have to intend to commit personally the offence the conspirators have agreed to commit (see R. v. Root 2008 ONCA 869, [2008] O.J.

No. 5214 (Ont.C.A.), citing R. v. Genser (1986), (ON CA), 67 C.C.C. (2d) 554 at 565-56 (Man.C.A.), affirmed (1987), (SCC), 39 C.C.C. (3d) 576 (S.C.C.)). These caveats are not inconsistent with the proposition thatknowledge by the seller of the purchaser’s intent to resell is not enough on its own to constitute a conspiracy. The key definitionalpassage in the majority decision therefore leaves the law open. [12] Courts have taken differing approaches in reading the Sokoloski decision. In R. v. Longworth (ON CA),

[1982] O.J. No. 3428 at para 40 (Ont.C.A.), Justice Martin appears to have interpreted Sokoloski as standing for the proposition that aconspiracy will arise where there is an awareness by the seller that the buyer intended to resell. Although Justice Martin does not explainwhy he reads Sokoloski this way, such an

interpretation appears to find support in Justice Martland’s criticism in R. v. Sokoloski of thetrial judge’s explanation for his decision to acquit Mr. Sokoloski - namely that he could not find that the seller, Davis, who probablyknew of Mr. Sokoloski’s intention to resell, had “agreed to such resale of the drugs.” There is a problem, however, with reading JusticeMartland’s comment literally and in isolation, given that the essence of a conspiracy is precisely an agreement to pursue the relevantcommon unlawful objective.

In the Sokoloski case the relevant common unlawful objective was the resale of the drugs. [13] This reading of Sokoloski is not inevitable. Justice Martland’s statement that the trial judge erred in acquitting Sokoloski on thefooting that he had not “agreed to such resale of the drugs” can be interpreted, in context, as an incomplete reference to the principle thatit is not necessary to prove that the co-conspirator was jointly involved in the actual trafficking transactions that constitute the illegal actsagreed to. Other courts, including the Saskatchewan Court of Appeal (in R. v. Kelly (SK CA), [1984] S.J.

No. 446(Sask. C.A.) at para. 19) and, more recently, the Alberta Provincial Court (in R. v. Alcantara [2008] A.J. No. 1577 (Alta. Prov. Ct)) haveinterpreted Sokoloski as actually rejecting rather than embracing Professor McKinnon’s proposition (2). These decisions operate on thefooting that the legal analysis in the case was undertaken in Chief Justice Laskin’s decision, and that while Chief Justice Laskindissented on the application of the law, the majority decision does not express disagreement with the legal principles identified.

ChiefJustice Laskin’s decision leaves no room for convicting individuals of conspiracy based solely on the seller’s knowledge that the buyerintends to resell. [14] The subsequent Supreme Court of Canada’s decision in R. v. Sheppe (SCC), [1980] 2 S.C.R. 22 does not clarifymatters. The facts of Sheppe do not expose the relevant legal rule because the parties to the alleged conspiracy went far beyond a simpleagreement by a seller to sell drugs to a buyer known to intend a resale. Nor does the language in the case help out. Although, in R. v.Kelly (SK CA), [1984] S.J.

No. 446 at para. 17, Justice Cameron did express the view that a passage in Sheppe makesthe rejection of Professor McKinnon’s proposition (2) “clear,” it is arguable that this passage simply begs that question. Its proclamationthat a conviction must rest on a prior agreement rather than on the contract of sale and purchase itself does not clarify whether a prioragreement to enter into a contract with a purchaser who one knows intends to resell could on its own qualify. [15] Not surprisingly there are cases dealing with seller/buyer drug conspiracy charges that go both ways.

Authorities endorsing themore aggressive approach in which “a buyer and seller ... can be convicted of conspiracy to traffic where the buyer intends to resell andthe seller knows that the buyer intends to do so” include R. v. Longworth et al, (ON CA), [1982] O.J. No. 3428(Ont.C.A.); R. v. Sohrabian [1993] O.J. No. 4108 (Ont.C.A.); R. v. Chaulk [1991] N.J. No. 144 (Nfld. S.C.(C.A.)); R. v. Gdanski [1997]O.J.No. 382 at para. 301 (Ont. Gen. Div.) and R. v. Martin (NB KB), [1993] N.B.J.

No. 385 (N.B.Q.B). [16] Authorities holding that knowledge by the seller that the buyer will resell is not enough to ground a conspiracy convictioninclude R. v. Forbes (1985), 1985 ABCA 159 , 61 A.R. 316 (Alta. C.A.); R. v. Alcantara [2008] A.J. No. 1577 (Alta Prov. Ct.)and R. v. Kelly (SK CA), [1984] S.J. No. 446 (Sask C.A.). In R. v.

Genser (MB CA), [1986] M.J.No. 134 (Man.C.A.), aff’d (SCC), [1987] 2 S.C.R. 685 the Manitoba Court of Appeal also rejected Professor McKinnon’ssecond proposition without saying so directly, commenting that knowledge by the seller that the purchaser intends to traffic is but afactor, although an important one, to consider. [17] Other cases, such as R. v. Topely [1991] B.C.J. No. 2547 (B.C.C.A.), are too complex to categorize.

There the British ColumbiaCourt of Appeal overturned a case that had acquitted the accused after the trial judge endorsed Professor McKinnon’s proposition (3).The Court did not say that it disagreed with Professor McKinnon’s proposition (3) however. The appeal was allowed since the evidencewent beyond simply showing an agreement by a seller to supply someone known to intend to resell the drug. [18] Given the clash in the authorities, which approach is most consistent with the law of conspiracy?

It is my view that the morecautious approach framed in Professor McKinnon’s proposition (3) is the only approach that is consistent with the general principles ofthe law of conspiracy, and it is the one I therefore understand to represent the law. [19] First and foremost, “the actus reus of the crime of conspiracy lies in the formation of an agreement, tacit or express, between twoor more individuals, to act together in pursuit of a mutual criminal objective”: R. v. Alexander (2005), (ON CA), 206C.C.C. (3d) 233 at 246 (Ont.C.A.).

Agreeing to sell to someone who intends to resell the drugs on their own can occur without anyagreement to act in common. Simply put, there is a difference between the unilateral decision to agree to sell drugs to someone who isknown to intend to resell – which cannot fairly be called a conspiracy to traffic - and agreeing with another to pursue the mutual andcommon objective of reselling. The fact that both individuals happen to be aspiring traffickers cannot obscure that reality. The questionis whether they agreed to pursue the same mutual act of trafficking.

A passage in the Supreme Court of Canada decision of R. v. Cotroni(1979) (SCC), 45 C.C.C. (3d) 1 at 18 drives the point home: “It is not enough that two or more persons pursued thesame unlawful object at the same time and place; it is necessary to show a meeting of the minds, a consensus to affect an unlawfulpurpose.” [20] Second, if conviction follows necessarily where the seller knows the buyer intends to resell, then the seller’s knowledge of thebuyer’s intention to commit that crime becomes the lynchpin.

To ground a conviction of conspiracy on this basis alone would be contraryto the well-rehearsed principle of conspiracy that “the mutuality of objective requirement of the actus reus [of] a conspiracy is notestablished merely by proof of knowledge of the existence of a scheme to commit a crime,” even where followed by acts that may havethe effect of advancing that scheme: R. v. Alexander (2005), (ON CA), 206 C.C.C. (3d) 233 (Ont.C.A.), citing R. v.Lamontagne (1999), (QC CA), 142 C.C.C. (3d) 561 (Que.C.A.) and see R. v. Cebulak [1988] O.J.

No. 1876(Ont.S.C). [21] Third, policy reasons counsel against taking the more aggressive approach. The purpose of the crime of conspiracy is “to preventan unlawful object from being attained and therefore to prevent serious harm from occurring”: R. v. Dery at para. 44. The law ofconspiracy achieves this policy by allowing a pre-emptive strike where there is a true agreement to achieve a mutual criminal objective.That mutual agreement is key since it is the joint commitment to pursue the relevant criminal activity that is seen to increase the risk ofan unlawful object occurring: R. v.

Alexander (2005), (ON CA), 206 C.C.C. (3d) 233 at 247 (Ont.C.A.). That is why

it is a crime per se for two or more people to form the intention in common to commit a crime, but not a crime per se for one person tosimply decide to commit an offence. The commitment arising from the mutual agreement increases the risk that the crime will occur,producing the apprehended future harm. Where one agrees simply to supply another who has his own intention to traffic in narcotics, therisks inherent in a mutual commitment are absent.

The mischief sought to be addressed by conspiracy is therefore not advanced bytreating the decision to sell to someone who intends to traffic as constituting an agreement to have that trafficking occur. [22] The extent to which endorsing Professor McKinnon’s proposition (2) stretches beyond the policy rationale for criminalizingconspiracies can be demonstrated by analogy to R. v. Dery 2006 SCC 53 , [2006] S.C.J.

No. 53 (S.C.C.) There the Courtrejected the invitation to recognize a crime of attempting to conspire, noting at para. 44 that instead of punishing the enhanced risk that acriminal agreement constitutes, this would constitute punishing “a risk that a risk” of criminal harm has arisen – specifically, the risk thatthe attempt will bring about an agreement, and that this agreement will in turn bring about the risk the crime sought to be agreed to couldoccur.

The same can be said about the notion that a trafficker conspires in future acts of trafficking simply by agreeing to sell to someonethey know intends to traffic. What is being punished if this is done is the risk inherent in the conspiracy - that the parties may conclude adeal that creates the risk that the purchaser will be supplied with product - which in turn would create the risk that the purchaser now insupply might choose to carry through with his intention to sell that product.

This “risk of a risk” is more attenuated than the risk the lawof conspiracy was created to address. [23] From a policy perspective there are other cost-benefit issues to consider, which can and should influence the

interpretation of thelaw in the current context. The law already takes a proactive approach where agreements to transact narcotics occur. It is a self-standingcrime of trafficking contrary to subsection 2(1) of the Controlled Drugs and Substances Act merely to offer to sell a scheduled substance:R. v. Murdock (ON CA), [2003] O.J. No. 2470 (C.A.).

While this proactive offence does not capture those aspiringdrug traffickers who agree to purchase narcotics to acquire supply, the moment delivery occurs the offence of possession for the purposeof trafficking is committed by the purchaser even before any potential customers are approached.

While it is not uncommon to give thepolice a range of tools to fight crime, the point is that there is no gaping lacuna in the law that require redress. [24] Meanwhile, there are important countervailing policy reasons for taking a restrained approach in applying the law of conspiracy.The criminal law generally is to be used with restraint, and this applies with emphasis in the case of conspiracy. In R. v.

Cotroni DicksonJ., (as he then was) described the “looseness” and “vagueness” of the offence of conspiracy, cautioning against the risk of using it toground the “improper transference of guilt from one accused to another”: R. v. Cotroni (1979) (SCC), 45 C.C.C. (3d) 1at 17 (S.C.C.). Meanwhile, in R. v. Dery 2006 SCC 53 , [2006] S.C.J. No. 53 at para 44 the Court cautioned that conspiracy isan even more preliminary crime than attempt because it applies before any attempt to perpetrate the crime is undertaken.

Although thereis admittedly no social utility in expressing oneself by agreeing to such things as drug transactions, the Court also cautioned that theoffence of conspiracy builds criminal liability on intention alone, compromising the general policy of restraint against criminalizingpeople’s thoughts: at para. 46.

In sum, adopting Professor McKinnon’s proposition (2) goes beyond the function of the law ofconspiracy, and creates an uncomfortably attenuated form of criminal liability. [25] In my view, the law of conspiracy therefore requires more when applied to seller/buyer drug transactions than proof that theseller knows the buyer intends to resell.

It requires proof beyond a reasonable doubt of an agreement between the alleged conspirators tocarry out mutual unlawful acts of trafficking albeit, given the ratio in Sokoloski, without necessarily requiring proof of an agreement byeach co-conspirator to jointly engage in or participate directly in the actual acts of trafficking that form the subject of the commonagreement. [26] I take this view mindful that the Ontario Court of Appeal has twice suggested the contrary, in R. v. Longworth and in R. v.Sohrabian.

In both of those cases, as is true in most of the cases endorsing Professor McKinnon’s proposition (2), the relevant commentswere obiter dicta. In Longworth the relevant comment at para. 40 related to a buy/sell transaction that was not the subject of theconspiracy charge.

Meanwhile in Sohrabian while the Court did initially explain the dismissal of the conviction appeal on the footingthat the seller must have known the heroin was for resale given the frequency of the transactions and the amounts involved, the Courtwent on to allude to additional evidence of a partnership between the buyer and seller.[2] [27] I appreciate that obiter dicta from one’s own provincial Court of Appeal should not be lightly disregarded by inferior courts, butnot all obiter dicta are “intended to have same weight.” As Justice Binnie explained in R. v.

Henry (2005), 2005 SCC 76 , 202C.C.C. (3d) 449, at para 57 (S.C.C.): “the weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended andwhich should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that are intended to be helpfuland may be found persuasive, but are certainly not ‘binding’ in the sense the Sellars principle in its most exaggerated form would have it.The objective of the exercise is to promote certainty in the law, not stifle its growth and creativity.” [28] The comment in R. v.

Longworth was made as an aside and provides no close analysis of Sokoloski and the underlying law ofconspiracy. It is more in the nature of commentary or exposition, not an integral legal conclusion. Admittedly the decision in R. v.Sohrabian is more imposing. The Ontario Court of Appeal said directly that it would refuse the appeal because the accused knew thathis buyer intended to resell.

Yet this comment is not ultimately relied upon to dismiss the appeal that occurred in an “endorsement”decision, a form of decision that is more difficult to derive grounding principles of law from given its brevity and lack of exposition: R. v.Timminco Limited (2001), (ON CA), 54 O.R. (3d) 21 at para. 36 (C.A.). [29] Most importantly, the dictum in these two cases runs headlong into foundational principles relating to the law of conspiracyendorsed by the Ontario Court of Appeal in its more recent and fully considered conspiracy decision, R. v. Alexander (2005), 206 C.C.C.(3d) at 233 (Ont.C.A.).

Given that the Appellate Courts are split in this country on the point with at least three courts rejecting ProfessorMcKinnon’s proposition (2), and given that recent decisions of the Ontario Court of Appeal describe legal principles that are at oddswith the obiter dicta in its earlier decisions, I feel it appropriate to consider the matter as one of first principle. [30] The ultimate issue in this case is therefore whether the Crown has proved beyond a reasonable doubt that

(1) Robert Meyer, (2)(

a) intentionally entered into a completed agreement (

b) with Tristan Jones, to (

c) achieve the common unlawful design of (

d) trafficking

in the marijuana that Mr. Jones had agreed to acquire from Mr. Meyer, (3) which agreement Robert Meyer intended be carried forward. III. Analysis [ 31 ] The Crown case against Mr. Meyer is built on a largely uncontested factual record. Tristan Jones was the subject of a separate investigation in which judicial authorization to intercept Mr. Jones’ cell-phone communications was obtained. Twenty-two conversations intercepted from two phone numbers were admitted into evidence before me. The Crown position is that Mr. Jones is a party to each of those conversations.

The Crown position is that the other party in each case is the accused, Robert Meyer. The alleged conspiracy is proved primarily from the conversations found on these taped and transcribed exchanges. Was Mr. Jones a party to the twenty-two conversations? [ 32 ] I have no doubt that Mr. Jones was indeed a party to each of the conversations. This conclusion was not hotly contested by Ms. Hentz on Mr. Meyer’s behalf. It is clear that the person identified in the transcripts of intercepted calls as “T.J.” is the same person throughout the twenty-two calls. Cst. Jamie Lalonde monitored the intercepts.

He became familiar with the voice of “T.J.,” which he described as easily recognizable, with a thick accent. I was unimpressed by Constable Lalonde’s soft and unsure testimony that the person using that voice identified himself as Tristan Jones either by name or nickname, but I do accept that he was able to identify the voice described as “T.J.” in the transcripts as being the same voice heard on each of the calls. I listened to the calls. The voice designated as T.J. is distinct and easily recognizable.

The speaker identified as T.J. has a strong Caribbean accent on each of the tapes, and stutters when he speaks. [ 33 ] Det. Chris Benson, the investigating officer, goes farther and links the voice to Tristan Jones. Det. Benson, gave credible and reliable testimony that he became familiar with Mr. Jones’ voice when observing an interview with Mr. Jones after Mr. Jones’ 9 March 2011 arrest. He noted Mr. Jones Caribbean accent, his hesitant speech patterns and his voice. I have no doubt that Mr. Jones is “T.J.” identified in the conversations. [ 34 ] I am also satisfied beyond a reasonable doubt that Mr.

Jones lived at 967 Eiffel Ave. a point that will take on significance as these reasons progress. He was observed by a number of surveillance officers who know his identity going in and out of that residence, including with children who resided there, and surveillance surrounding some of the intercepted phone calls confirm that he was at 967 Eiffel Ave. when those calls were made. Was Mr. Meyer a party to the twenty-two conversations? [ 35 ] There is no credible direct evidence that Mr. Meyer was the other party to the twenty-two conversations. Both Det. Benson and Cst.

Lalonde said that he was, but I was offered no evidence that either was familiar with Mr. Meyer’s voice. Indeed, Det. Benson agreed he could not identify Mr. Meyer’s voice based on his personal knowledge. Cst. Lalonde conceded the same. [ 36 ] The Crown case that Mr. Meyer is the other party to the twenty-two conversations is therefore predicated on circumstantial evidence. The first proposition offered is that the voice identified as “R.M.” on the transcripts of the intercepts is, on each occasion, the same person speaking.

The link between Robert Meyer and the intercepted conversations is said to be based primarily on the coincidence between visits by Mr. Meyer to 967 Eiffel Avenue, Ottawa, the alleged home of ‘Tristan Jones’, and intercepted communications in which it was indicated that “R.M.” would be coming to see Mr. Jones. The Crown also relies upon other sources of information. First, there is the link between Mr. Meyers and 2233 Route 309 Notre Dame de la Salette, where a grow operation was discovered. The Crown theory is that Mr. Meyer’s link to that residence, which housed a sizeable grow operation, is evidence that Mr.

Meyer would have the ability to deliver the marijuana he is alleged to have offered to supply during some of the twenty-two intercepted conversations. The Crown also alleges that the observation on several occasions of a dog in the car linked to the visitor reputed to be Mr. Meyer helps identify him, as Mr. Meyer was seen to be playing with a dog at 2233 Route 308 Notre Dame de la Salette by Det. Benson, after he was followed there during surveillance. [ 37 ] I will begin with the dog evidence. It is of no utility. No discriminating description was given to the dogs during the various sightings.

This testimony cannot be used to help identify Mr. Meyer. [ 38 ] I also find the 2233 Route 308 Notre Dame de la Salette evidence to carry little probative value in identifying Mr. Meyer as the party to the intercepted conversations. I accept that he had a link to the residence, and that it would even be a fair inference from his admission to Cst. Labelle on 25 February 2012 that this was his residence.

That admission finds support in the discovery during the search of credit card bills in his name bearing that address, even leaving aside the unsubstantiated and weak testimony of Agent Mathieu Frechette that male clothing was found in the bedroom along with other documentation linked to Mr. Meyer. Still, at most Mr. Meyer’s association with a grow operation does no more than support an inference that he had some undefined capacity to conspire to deliver and then deliver marijuana.

This is hardly an identifying factor, particularly given that there is no way of linking the marijuana being discussed with that residence. I also note that the person identified as “R.M.” in the intercepted phone calls appears to speak at times of the need to secure from others the commodity being discussed. The grow operation evidence therefore offers an uncalibrated opportunity to engage in marijuana trafficking generally, with no proven link to the transactions alleged to be the subject of the conspiracy. It is not significant. [ 39 ] There is, however, a much more fruitful link between Mr.

Meyer and the R.M. identified in the twenty-two intercepted conversations. [ 40 ] First, while I do not accept the direct testimony of either Det. Benson or Cst. Lalonde that the speaker “R.M.” was Robert Meyer, I do accept the proposition implicit in their testimony that the person identified as R.M. in each transcript is the same person. Cst. Lalonde, in particular, had ample opportunity to listen to the conversations and familiarize himself with the voice attributed to R.M. I, myself, was able in the short time I listened to the intercepts to become familiar with the voice.

It was the same voice in each conversation. I also noted that the caller identified as “R.M.” habitually used the Italian salutation “ciao” when signing off, and that “T.J.” was consistently referred to as “bro.” These terms, particularly the former, are calling-card expressions helping to tie the calls together. I have no doubt that “R.M.” is the same person in each of the calls. The link between “R.M.” and Robert Meyer can therefore

be established by demonstrating circumstantially, beyond a reasonable doubt, that Robert Meyer is the person “R.M.” on one or more of those calls. [ 41 ] There is in fact a crush of evidence circumstantially linking Mr. Meyer to some of these phone calls, and hence to all of them. First, Mr. Meyer can be closely linked to a 2005 Blue Mazda 6 motor vehicle bearing Quebec Licence 247 VRJ, even though the Crown chose not to lead admissible evidence confirming its claim that he is the registered owner of the car. That vehicle was stopped by Cst.

Robert Labelle on 25 February 2011 as part of a ruse traffic stop connected to this investigation. Cst. Labelle secured a Quebec Driver’s licence from the driver in the name of Robert Meyer, with a residence at 2233 Route 309 Notre Dame de Salette, Quebec. He identified Mr. Meyer in Court. That vehicle was observed by surveillance officers parked either in the 967 Eiffel Ave. driveway – Mr.

Jones’ residence – or at Bellamy St., approximately 100 yards from 967 Eiffel Ave., on at least 8 occasions, 6 December 6 2010, 15 December 2010, 30 December 2010, 3 February 2011, 5 February 2011, 18 February 2011, 25 February 2011 and 9 March 2011. On the last occasion Mr. Meyer was arrested with the vehicle on Bellamy. [ 42 ] The Blue Mazda vehicle can also be linked to a 21 November 2010 visit to 967 Eiffel Ave. by a white male who was, at the time, driving a Blue Cobalt vehicle.

That Cobalt was followed ultimately to a “four-plex” apartment building on Chemin De Pins, in Val de Bois Quebec by Officer Whitly, who found the 2005 Blue Mazda 6 motor vehicle bearing Licence 247 VRJ parked at that location. Mr. Meyers was identified by Det. Benson as being with the Cobalt at the relevant time. Specifically, Det. Benson testified that although unknown to him at the time, the driver of the Cobalt on that occasion was the same person Det. Benson later observed on 6 December 2012, who Det. Benson identified in Court as Mr. Meyer. Det. Benson is familiar with Mr.

Meyer from watching his arrest interview and given that he was conducting surveillance at the relevant time I have no doubt he would have been paying close attention to the Cobalt driver. I believe his evidence. [ 43 ] Mr. Meyer was also identified by a number of other surveillance officers who testified in this case, as being either at the residence at 967 Eiffel Ave, or with the Blue Mazda 6 vehicle. I appreciate that the opportunities to observe were often compromised, that typically the officers included no distinguishing characteristics in their descriptions or their testimony before identifying Mr.

Meyer in court, and that they were exposed to subjective influences such as (1) the habit within the investigating team to refer to the white male visitor as “Robert Meyer” within their internal communications and (2) some of the officers were supplied with photographs of Mr. Meyer after he became a target. Still, the number of identifications provided; the link between Mr. Meyer and the vehicle; the fact that the vehicle was trailed to 2233 Route 309 Notre Dame de Salette, Quebec, an address linked to Mr.

Meyer; the photographic exhibit 3 depicting the 3 February 2011 visitor (which while somewhat unclear bears a close resemblance to Mr. Meyer as he sat in court); coupled with the video exhibits from 21 November 2010 (ex. 4(

a) and from 15 December 2010, ex. 4(b), (which also bear a close resemblance to Mr. Meyer), leave me in no doubt that he attended Mr. Jones’ place of residence on numerous occasions. [ 44 ] The link between Mr. Meyer and the “R.M.” party to the 22 intercepted telephone conversations is then proved beyond a reasonable doubt by noting that on a number of occasions his visits to 967 Eiffel Ave. correlate to anticipated visits identified in intercepted phone calls in circumstances that defy any other reasonable inference.

(1) On 6 December 2012 “R.M.” undertakes to “T.J.” to come by at 6:30 p.m. At 6:45 p.m. that day Det. Belanger identified the Mazda arrive and park in the 967 Eiffel Ave driveway, the home of “T.J.” or Tristan Jones. The car is then trailed by Det. Benson who identifies Mr. Meyer as the driver.

(2) On 15 December 2012 “R.M.” agrees in an intercepted call to meet “T.J.” at 12:00 p.m. that day. At 12:14 p.m. the Mazda arrives at Mr. Jones 967 Eiffel Ave. address, and is observed by Cst. Cameron parking in the driveway. The occupant approaches the door but the door is not answered. The man waits 5 minutes or so and then gets back into the vehicle. The vehicle leaves. It is trailed by Det. Sgt. McDonnell to the Petro Canada on Prince of Wales Drive, a few hundred yards away. At 12:25 p.m. “R.M.” calls Mr. Jones. He says he is two minutes away and wants to know why the door was not answered. Mr.

Jones is heard directing “R.M.” not to park in his driveway. At 12:25 p.m. Det. Sgt. McDonnell sees the driver of the Mazda exit the Petro Canada. At 12:27 p.m. Cst. Cameron sees the same white male who had been waiting at the door walk to Eiffel westbound to the front door. East is the direction of Bellamy St., some 100 yards or so away. Videos taken of the person during this visit are entirely consistent with Mr. Meyer.

(3) On 29 December 2010 “R.M.” undertakes to visit Mr. Jones at 2:00 p.m. the next day. At approximately 2:30 p.m. the Mazda arrives on Bellamy St. and a male is seen entering 967 Eiffel Ave. by Det. Belanger. After the male re-enters the vehicle the car is trailed by Det. St. Amand until it crosses into the province of Quebec, where 2233 Route 309 Notre Dame de la Salette, the residence Mr. Meyer would later give as his home address on his driver’s licence, is located.

(4) On 7 February 2011 “R.M.” says he will visit Mr. Jones at 10:00 a.m. At 10:33 a.m. the Mazda is observed by Det. St. Amand parking on Bellamy St. A male is observed entering 967 Eiffel Ave, for a 7 minute period. Det. Belanger followed the vehicle, ultimately identifying Mr. Meyer as the driver of the vehicle. The vehicle is followed by Det. Belanger to 2233 Notre Dame de la Salette, the residence linked to Mr. Meyer.

(5) On 18 February “R.M.” undertakes during an intercepted call with Tristan Jones to come by at 11:00 a.m. that day. At 11:16 a.m. a white male arrives at the front door of 967 Eiffel Ave, Mr. Jones Address. At 11:20 a.m. the Mazda is observed on Bellamy St. [ 45 ] Sometimes punctuality has its price. The number of visits by Mr. Meyer and the Mazda he consistently drove that were expressly anticipated by “R.M.” in intercepted telephone calls defy simple coincidence. I am satisfied beyond a reasonable doubt that Mr. Meyer is the “R.M.” in each of the 22 intercepted calls.

Has the Conspiracy Charged Proved beyond a Reasonable doubt? [ 46 ] The heart of the case arises from the substance of conversations included in the 22 intercepted telephone calls between Mr. Meyer and Mr. Jones. It is beyond serious controversy that those conversations prove beyond a reasonable doubt that Mr. Meyer and Mr. Jones were discussing on an ongoing basis the provision by Mr. Meyer to Mr. Jones of some commodity, and I do not understand Ms. Hentz to be suggesting otherwise. Suffice it to say that those intercepted conversations include requests being made by Mr. Jones to Mr.

Meyer for a commodity, promises by Mr. Meyer to come by with a commodity, and complaints by Mr. Jones about the quality and

weight of commodities already delivered by Mr. Meyer. The only real issues remaining relate to (1) whether that commodity wasmarijuana and (2) if so, whether Mr. Meyer’s agreement to supply it to Mr. Jones was part of the conspiracy alleged in all of thecircumstances. [47] In order to prove its case, the Crown is relying not only on the intercepts, but also upon surveillance evidence relating to Mr.Meyer’s movements, some of which the Crown urges are consistent with the conspiracy. It is urged that some observations showsurveillance conscious behaviour on his

part consistent with involvement in narcotics trafficking. Other evidence, it is argued, disclosesvisits by Mr. Meyer to 967 Eiffel Ave. that can be inferred to involve the delivery of marijuana. I note in passing that the law ofconspiracy does permit courts to consider what was done in apparent furtherance of a conspiracy as evidence of the agreement: R. v. Root[2008] O.J. No. 4214 at para. 67 (Ont.C.A.), and I propose to consider this evidence. [48] Finally, Det. Foley also testified for the Crown as an expert witness.

His evidence was offered by the Crown to assist me inunderstanding the intercepted conversations and appreciating the significance of terminology and behaviour. Det. Foley was qualified byme after a voir dire to offer opinion evidence on, among other things, the language and terminology of street drugs and the sale of drugs,techniques people use to mask involvement and detection when selling drugs, and the modus operandi of drug trafficking. He offeredtestimony directly and by adopting his expert report filed as Exhibit 6 in this matter. [49] The accuracy of Det.

Foleys expert testimony on the guarded, surveillance conscious activities of drug traffickers; the practice offronting drugs before payment; the meaning of the reputed “marijuana” terminology, and the testimony about quantities, was not subjectto challenge during cross-examination. I found his evidence to be reliable and informative, in its own right. What Ms. Hentz didchallenge was Det. Foley’s testimony that would support the conclusion that the commodity being discussed in intercepted calls wasmarijuana, the drug specifically alleged to have been the subject of the charged conspiracy.

I will begin with that issue. Has it been proved beyond a reasonable doubt that the substance was marijuana? [50] I am satisfied beyond a reasonable doubt that the commodity referred to in the intercepted phone calls was marijuana. Det. Foleyoffered testimony that there are common terms used as code for particular drugs. He testified with respect to the conversation of 27November 2010 that “chronic,” a commodity description used by Mr. Jones, is a term for the highest quality marijuana.

He alsoexplained that “Kush” is a specific strain of marijuana, and that the reference to the “Kush” guy in that same conversation by Mr. Jonesis code for that strain. Although Det. Foley was previously unfamiliar with a strain called “red” he was of the opinion, from the contextof the two calls where that term was used, that “red” and “red strain” referred to marijuana. With reference to a call in which Mr. Jonescomplained that Mr. Meyer should not keep the relevant commodity in the fridge because it was gummy, Det.

Foley explained thatmarijuana kept in a refrigerator “can get gummy because of resin weeping from the marijuana, from the bud.” All of this contributed tohis opinion that the parties in the twenty-two conversations were speaking about marijuana. [51] Det. Foley also explained that when marijuana is being transacted, quantities of the drug are frequently described using code,with “lb” for a pound, “half” for a half pound and “qp” for a quarter pound.

He supported his opinion that otherwise ambiguousreferences made in the intercepted calls put into evidence in this case were to pounds and not ounces, by observing that in interceptedconversations Mr. Meyer agreed to drive for an hour to make a delivery, an enterprise that would not make business sense if the quantityreferences were to ounces. He also confirmed his opinion that the quantities referred to in the conversations, if marijuana, would fitinside a typical back pack, something Mr. Meyer was observed during surveillance to have carried to 967 Eiffel Ave. on more than oneoccasion. [52] Ms.

Hentz did not challenge the reliability of Det. Foley’s specific testimony on these points but did secure his agreement thatgiven that there were 133 calls intercepted between “R.M.” and “T.J.”, and not just the 22 put into evidence, it is possible that there werereferences indicative of narcotics other than marijuana in the other calls. I understood Ms. Hentz’s objective to be to cast doubt on thereliability of Det. Foley’s conclusions that the conversations referred to the specifically alleged drug, marijuana.

No evidence was placedbefore me that drug terminology appropriate to other compounds occurred during other calls. I cannot speculate that there would havebeen. I have to decide the case on the evidence before me. [53] Finally, Ms. Hentz took issue with the utility if not the legal propriety of Det. Foley offering direct conclusions about the ultimateissue of whether these conversations were about trafficking in marijuana. The “ultimate issue” rule, once understood to prevent expertsfrom testifying on the ultimate issue in a case, no longer does so: R. v.

Graat (1982), (SCC), 31 C.R. (3d) 289 (S.C.C.).Whether the judge permits “ultimate issue” evidence is determined by assessing the costs and benefits of allowing it, with the caveat thatwhere expert evidence is novel, courts are to be particularly guarded since unreliable opinions on ultimate issues pose a greater danger to the integrity of findings: R. v. Mohan (1994), 29 C.R. (4th) 253 (S.C.C.). Related rules prohibiting experts to express ultimate opinionsabout the credibility of witnesses, or about legal conclusions, survive but are not material here. In this case the testimony of Det.

Foleyon the ultimate issues in the case is not prejudicial. It is a simple matter to understand the path he is taking to those ultimate conclusionsand they are not inflammatory or otherwise likely to distort the outcome of the case. Moreover, while it is not strictly necessary for Det.Foley to express the conclusions he did, it is obvious that he holds those opinions as his specific evidence veritably drives one to thatsame conclusion. I therefore permitted Det.

Foley to offer his opinion that the conversations were about marijuana, explaining at the timethat the ultimate decision is mine to make and that if the opinion is not supported by the evidence it will not be drawn. Ultimately, whileI do rely upon Det. Foley’s specific information about the meaning of terms to assist me, I do not need to rely on his ultimate opinionthat the conversations were about marijuana. As I say, that conclusion follows obviously from the particular information he shared andfrom those facts of the case I am competent to interpret on my own.

I have no hesitation in concluding on my own that the commoditybeing discussed between Mr. Jones and Mr. Meyer was marijuana, beyond any reasonable doubt. Has the Conspiracy Alleged been proved beyond a reasonable doubt? [54] There is no question that Mr. Meyer was agreeing to traffic in marijuana in his exchanges with Mr. Jones. First, the surveillanceconscious conduct of the two men is germane in supporting the conclusion that they were involved in narcotics transactions. Det.

Foley’sevidence included the observation that the persons involved in the trafficking of drugs often use guarded language and employ codewhen speaking of the transactions. The transcripts are laden with obscure or guarded references to items, with both men tending to avoid

direct references to the commodity they are referring to. Det. Foley also testified that those involved in drug trafficking tend not to nothold onto their cell-phones for long, in order to avoid police detection. The calls include a conversation in which Mr. Meyer suggeststhat he had expected Mr. Jones to have changed his phone, as well as a call in which Mr. Meyer supplies a number for his new phone. Inaddition, the number of the phone being used by Mr. Jones that was tapped during this investigation was changed part way through theinvestigation. Det.

Foley also explained that calls are often made by those involved in drug transactions from phones other than theirhome phones, and that a variety of phones may be employed. While the Crown failed to prove the registered ownership of the phonesbeing used by Mr. Meyer he placed calls from multiple numbers. Finally Det. Foley expressed the view that a direction by Mr. Jones toMr. Meyer not to park in his driveway, given on two occasions, is consistent with surveillance conscious behaviour engaged in by thoseinvolved in drug transactions, as is Mr.

Meyer’s habit of parking on Bellamy St. after that direction was given. [55] The conversations themselves are easily understood to be about the supply of marijuana, with Mr. Meyer agreeing to serve therole of supplier. On 7 November 2010 Mr. Jones is asking Mr. Meyer to bring him “the chronic” and “the other one,” which I havefound to be code for marijuana. Mr. Meyer agrees. On 21 November 2010 Mr. Meyer offers to bring “different stuff.” Mr. Jones says“O.K.” On 4 December 2010 Mr. Jones complained to Mr. Meyer about the gummy substance he had supplied, a substance I have foundabove to be marijuana.

On 6 December 2010 Mr. Jones asks for what I find to be half a pound of marijuana and Mr. Meyer offers tocome by. On 14 December 2010 Mr. Meyer calls and says “I have some stuff for you” and arrangements are made for a meeting the nextday. On 20 December 2010 Mr. Meyer agrees to bring the red one, a substance I have found to be marijuana. On 12 January 2011 whenMr. Meyer asks if he should bring “anything else” Mr. Jones complains that the last batch had people complaining. Mr. Meyer offered tosee what he could do. On 29 January 2012 Mr.

Meyer offers to bring a half of red, or a half pound of the red brand of marijuana referredto by Det. Foley. Mr. Jones complains that the last batch was out “by fourteen.” With the assistance of the expert testimony of Det. FoleyI find that this was a reference to the last batch of marijuana being underweight. Mr. Meyer offered to check. More could be said, but thepoint has been amply made. Mr. Meyer was agreeing in a number of the intercepted phone calls to traffic in marijuana to Mr. Jones. Thisis punctuated by the fact that on a number of Mr.

Meyer’s visits to 967 Eiffel Ave. it was in response to requests to deliver marijuana andMr. Meyer typically showed up carrying clearly visible items, such as back packs or a guitar case, capable of transporting marijuanadiscretely. [56] It is also clear beyond any reasonable doubt that Mr. Meyer knew that Mr. Jones was trafficking. Mr. Jones complained on 7November 2010, that he had “boys” waiting for Mr. Meyer’s to come. He let Mr. Meyer know the state of his supply. On 30 November2010 Mr. Jones told him that he did not want to see him because he “ain’t finished yet.” He let Mr.

Meyer know when business was slowon 6 December 2010 and on 17 February 2010. On 15 December 2010 he let Mr. Meyer know that he need not come because one guydid not come and he could not get through to the other, and on one of the two 17 February 2011 calls Mr. Jones declined an offer by Mr.Meyer to come by because “the guy said he ain’t ready yet.” On 20 December 2010 Mr. Jones complained that Mr. Meyer wasinaccessible, because his “boy” called needing one and a half, which I conclude is one and half pounds of marijuana. And on 7 February2011 Mr.

Jones again communicated that he needed a delivery because he had a man waiting. On 12 January 2011 Mr. Jones told Mr.Meyer that people were complaining about the last batch, and on 29 January 2011 the complaint about a prior package prepared by Mr.Meyer being light was discussed. Mr. Jones described how the “boy” it was given to was complaining to Mr. Jones, and Mr. Jonesshared his obvious business concern about not liking this. [57] I have already indicated that mere proof that Mr. Meyer agreed to sell marijuana to Mr. Jones, knowing Mr.

Jones intended toresell that marijuana, is not enough in law to prove the conspiracy alleged. That being said, the law does not require that the two mustagree to participate as full partners in particular trafficking transactions. While I agree with Ms. Hentz that the evidence in this case fallsshort of proving that Mr. Meyer and Mr. Jones were business partners, even taking into account the 15 December 2010 undertaking byMr. Jones to Mr. Meyer to do his best to get rid of the stuff “for you,” this does not end the matter. Neither does the fact that Mr. Meyerwas intent on selling his own product to Mr.

Jones who would in turn sell to his own customers. Given the ratio in R. v. Sokoloski aconspiracy can arise out of a mutual agreement between persons to each play their own role related to the same (or joint) traffickingtransactions. Put in simple business terms, co-conspirators are not necessarily partners who agree to carry on a joint business in common.A conspiracy can arise from a joint venture in which parties agree to each play their own role related to the ultimate traffickingtransactions. In the context of this case, if it is proved beyond a reasonable doubt that Mr. Meyer and Mr.

Jones agreed to have Mr.Meyer hitch his supply wagon to Mr. Jones’ trafficking enterprise such that Mr. Meyer agreed to be part of Mr. Jones distributionscheme, that is conspiracy enough. [58] This is a determination that is to be made in all of the circumstances. I am to bear in mind in conducting this evaluation that evenwithout direct evidence of an agreement a tacit agreement borne of understanding but nonetheless established beyond a reasonable doubton the evidence is sufficient. A number of factors can inform this decision. Material factors in this case include the following: (

a) In R. v. Sheppe (SCC), [1980] 2 S.C.R. 22, “meetings, private conversations, [and] telephone discussions” wereincluded among the indicia of conspiracy. These things occurred repeatedly in this case, but I do bear in mind that the substance of thoserepeated conversations is far more important than that they occurred. Still, repeated communication is some circumstantial evidence of aconspiracy. (

b) Repeated sales between the parties to an alleged conspiracy are also important. While repeated transactions do not necessarily prove aconspiracy between a seller and a buyer who resells, repeated sales are a factor that can assist in showing that the line has been crossed:R. v. Cebulak [1988] O.J. No. 1876 (Ont S.C.); R. v. Alcantara [2008] A.J. No. 1577 at para. 107(Alta. Prov. Ct). In this case Mr. Meyerwas a persistent supplier to Mr. Jones. (

c) There must be knowledge by a conspirator of the relevant criminal scheme: R. v. Alexander [2006] O.J. No. 3173 (Ont.S.C). This isnot a sufficient condition but it is a necessary condition. This makes knowledge of resale an important albeit non-determinative factor: R.v. Topely [1991] B.C.J. No. 2547 (B.C.C.A.). Knowledge on the part of Mr. Meyer in the trafficking enterprise he is said to haveconspired in was present in spades in the current case. As indicated, Mr. Meyer was fully aware of Mr. Jones’ enterprise, including itsups and downs. (

d) While personal benefit of a conspirator is not required for a conviction, the presence of personal benefit will be a factor to consider:R. v. Genser (MB CA), [1986] M.J. No. 134 (Man C.A.), aff’d (SCC), [1987] 2 S.C.R. 685. It is

obvious Mr. Meyer was being paid for his work. On one occasion the inference is clear that he asked for money, and I accept Det.Foley’s evidence that it would be illogical for a dealer to travel for an hour to deliver a small amount of narcotic, let alone for free. (

e) In R. v. Genser (MB CA), [1986] M.J. No. 134 (Man C.A.), aff’d (SCC), [1987] 2 S.C.R. 685 itwas an important consideration in linking the supplier to the purchaser’s trafficking that resale by the trafficker was shown to provide amarket for the supplier. Similarly, it has been held in R. v. Araujo [2003] B.C.J. No. 868 (B.C. Prov. Ct.) that sharing market conditionsand meeting ongoing demand as it arises is a relevant consideration. The evidence here shows that Mr. Meyer was agreeing to deliver asignificant amount of marijuana, a commodity with great value. Indeed, Mr.

Meyer was kept closely informed of the condition of themarket, and was often aware when he agreed to supply marijuana that Mr. Jones needed to fill particular demands. If Jones soldmarijuana, he wanted more. Mr. Meyer’s profitability was tied closely to the fortunes of Mr. Jones’ business. (

f) It has also been recognized that indicia of a conspiracy related to the sale and resale of marijuana exists where the buyer is paying theseller with the proceeds of resale: R. v. Topley (1991), B.C.J. No. 2547 (B.C.C.A). This is evidence of common goal or interest,indicative of an agreement, and where the seller advances the buyer the drug expecting repayment this is strong evidence he is linkinghis business to the buyers: R. v. Ruiz [2000] O.J. No. 2713 at para. 21 (Ont.C.J.). As Det.

Foley explained, mid to high level drugtraffickers sometimes front the drugs and expect the money for repayment to come from the subsequent sales of the drugs, particularlywhen dealing with individuals whom they have built a close relationship with over time. Det. Foley also offered his

interpretation ofconversations, including one on 17 February 2011 which showed that Mr. Meyer was fronting Mr. Jones drugs for later payment,inferentially after resale. Indeed, in that specific conversation Mr. Meyer is heard discussing his own business needs, saying he wants themoney to finish off with his friend. (

g) In R. v. Sohrabian [1992] O.J. No. 3064 (Ont. Gen. Div), aff’d [1993] O.J. No. 4108 (C.A.) the participation of the accused inweighing the drugs was a factor indicative of a conspiracy. In this case Mr. Meyer was aware that drugs he packaged would beforwarded without repackaging and he, in effect, agreed to exercise care to ensure packages would not be light. He even took directionson how to store the marijuana, and responded to quality control complaints. (

h) In R. v. Sokoloski (1977), (SCC), 33 C.C.C. (2d) 496 the most crucial factor in supporting a conspiracy convictionwas that Mr. Davis, the trafficker, had gone out and obtained the drug for delivery to Mr. Sokoloski. It was evidently inferred by theCourt that this was part of the agreed arrangement between the parties. In this case the telephone intercepts include specific orders beingplaced by Mr. Jones for particular kinds of marijuana, and Det. Foley testified that at times those intercepted calls show that R.M., or Mr.Meyer, was waiting to acquire marijuana to enable delivery to T.J., or Mr.

Jones. [59] When I consider these factors in their totality it is evident that Mr. Meyer was not simply a seller who knew that Mr. Jones wasreselling, and his agreement was more than a simple undertaking to aid or abet Mr. Jones in Mr. Jones’ business. The only reasonableconclusion that arises from the evidence is that Mr. Jones and Mr. Meyer agreed to pursue a mutual criminal objective in which Mr.Meyer would work as a standing supplier for Mr. Jones ongoing trafficking enterprise. The fact that each acted in their own interest isnot fatal to the prosecution.

This was a collaborative enterprise in which the two men agreed to work together so that Mr. Jones could sellnarcotics, an enterprise that inured to their mutual benefit. I am therefore satisfied beyond any reasonable doubt that even though Mr.Tristan Jones was carrying on his own trafficking business

(1) Robert Meyer, (2)(

a) entered into a completed agreement (

b) with Mr.Jones, to (

c) achieve the common unlawful design that involved (

d) Mr. Meyer supplying marijuana on an ongoing basis for Mr. Jones’trafficking enterprise. Mr. Meyer was part of the distribution scheme and thereby committed the actus reus of the offence charged. [60] Mr. Meyer not only agreed to this, he clearly intended to achieve or bring about this agreement. His frequent visits whichcorrelate temporally with expected deliveries of marijuana, coupled with intercepted discussions about past transactions, support theinference that he not only agreed to be supply marijuana on an ongoing basis but was actually doing so. This and Mr. Meyer’s conduct inbeing at Mr.

Jones’ beck and call as a supplier as the need arose according to Mr. Jones’ market conditions demonstrates beyond anydoubt that

(3) Robert Meyer intended that the agreed arrangement would be carried forward. IV. Holding [61] I therefore find Mr. Meyer guilty of the offence charged. Released: December 17, 2012 ___________________________________ The Honourable Justice David M. Paciocco Appendix A –

Summary of Key Intercepted Conversations (a) 7 November 2010 (Ex 1 Tab 1) – R.M. offers to come around tomorrow (8 November 2011) at 3:00. T.J. agrees and describeshow “my boy keep askin me to ih is your boy comin’...” R.M. offers to come at 3:00.

T.J. replies “Yeah c-could uhm lemme see (pause)wh-wh-wh-what is jus, just the chronic.” R.M. agrees and says “actually quite a bit.” T.J. comments “You know ya d-ya didn’t hearfrom the Kush guy.” R.M. explains that the “guy’s still not ready.” T.J. then asks R.M. “bring bring me uh uh uh a P of the chronic andan – an 0- a Q-P of th-th-th –s – the the other one the (unintelligible). (b) 21 November 2010 (Ex 2 Tab 1) – R.M. indicates he can come around two. T.J.tells him to make it at 3:00.

T.J. then sys “No nono no mosquito (ph) here.” R.M. replies “Okay well uh I’ I’ll bring you what I got I got different stuff.” T.J. says “Okay.

(c) 30 November 2010 (Ex 1 Tab 2) – T.J. says in response to an invitation from R.M. to come by today “No no no no I don’t want to see you right now you know (laughs) ...

I I I ain’t finished yet.” (d) 04 December 2010 (Ex 1 Tab 3) – T.J. says at one point “But the other thing I pay for it how you had it in all like how you keep it in the freezer.” R.M. responds “yeah.” T.J. goes on “Yeah ‘cause the other one was pretty gummy and shit man I don’t know how (unintelligible) to do describe it was too fresh ya know and gummy.” R.M. offers to “check it again.” (e) 06 December 2010 (Ex 1 Tab 4) – T.J. responds to an invitation from R.M. to pass by, saying “(Sighs) well things went a little slow this week so I don’t know if you passin’ well you could bring me a half for now and that’s all I could ting’ right now.” R.M. offers to come by around six-thirty and T.J. responds “Okay but if you thinkin’ bring me the you know what.” (f) 14 December 2010 (Ex 2 Tab 3) – R.M. tells T.J. that he (R.M.) saw my friend and uh I have some stuff for uh some stuff for you.” T.J. says “Okay.” A visit from R.M. is arranged for the next day around nine. (g) 15 December 2010 (Ex 2 Tab 6) – T.J. rejects R.M.’s invitation to come around today saying “Uh well I – I didn’t get through to the guy yet and another guy didn’t call me back yet so I don’t want you to come for nothing you know.” R.M. then offers to call tomorrow.

T.J. replies, saying “Yeah give me a call tomorrow let me lemme work on it for you I gonna try my best to at least get get rid of the the get rid of the stuff for you,” R.M. replies, “Thanks a lot bro...” (h) 20 December 2010 (Ex 1 Tab 5) – R.M. explains not having called T.J. by saying “I thought you got rid of your phone.”... “I thought you were gonna do what you said you were gonna do with the phone so “ T.J, interrupts R.M, and says “Yeah, cause I – I talked to one of my boys and he was keep buggin’ me all the time did did your boy call did your boy call ‘cause he he he n- he needed one and a half.” R.M. said “Okay” and promised to visit.

T.J. replied “Only only only only the red one one in the th- th- th- the red one you know what I mean.” R.M. responds “I got it yeah so uh what time is good for you.” T.J asks “Ha h- how much you have” and R.M. replies “Three.” T.J. then says “Well the br-bring bring down bring down two in case I gonna check I gonna check out from my other boy but I know one and half for sure but bring down two I gonna see if I get rid of the other stuff.” A meeting is arranged that evening and T.J. says “Ah don’t forget don’t don’t park anywhere around the house.” (i) 29 December 2010 (Ex 2 Tab 7) – T.J. accepts R.M.’s offer to come tomorrow by saying “Yes everything good man everything is there for you,” R.M. offers to come at two o’clock in the afternoon. (j) 12 January 2011 (Ex 1 Tab 6) – R.M. agrees to come by at six that evening and asks whether he should bring anything else.

T.J. responds, “Uh I ain’t too sure ‘cause this this last batch people complainin’ about it that it’s not as good as before I don’t know.” R.M. offers to see what he can do. (k) 29 January 2011 (Ex 1 Tab 7) – R.M. calls to make sure what it is T.J. wanted. T.J. responds, “Oh well the only bring only bring me ha- ha- the the half of the red that you say you got and half of the other thing.” R.M. replies perfect.

T.J. subsequently says “But la – I was to tell you somethin’ the last time but I didn’t get a chance ‘cause I lost my mind ya know the the half of the thing that you gave me the last time I – I give it to my boy my boy say it was out fourteen.” R.M. responds “Did he.” T.J. confirms it and says “He he keep he keep buggin’ me for it ya know so I don’t know.” R.M. offers to “double check from now on.” T.J. agrees explain “cause uh I don’t I don’t like that either ya know givin somebody something ‘cause I give him it just like th – how you give me ub it wasn’t open or nothing, so I don’t know.” R.M. again says he is going to double check but then says “so I’m gonna just say uh anyway okay I’ll fix that today.” (l) 05 February 2011 (Ex 1 Tab 8) - R.M. calls T.J. and says “This is my new number do you see it on your phone.” When T.J. confirms he can R.M. says “... well that’s it you can reach me when you need me.” (m) 07 February 2011 (Ex 2 Tab 8) – T.J. complains during the course of a conversation with R.M. that R.M. did not call or answer his phone, “No I had a guy here waiting on me every since today I was waiting for your call man you know.” Later he continues “(Unintelligible) uh well the guy didn’t call me back ye – (unintelligible) number he was callin’ me textin me today and I thought you woulda come you know.” After R.M. tries to explain that he has a job T.J. says “Yeah yeah no no problem uh people (ph) gotta wait you know I – no it’s all good what’s good for you.” The two arrange for R.M. to come by the next day at 10:00. (n) 17 February 2011 (Ex 2 Tab 9 – 11:14:01) – R.M. calls T.J. and says “just wanted to know did you get any news or do I bring it back to my friend.” T.J. says “I aint get any news an – the guy that uh checked the last one he said he ain’t ready for none yet.” T.J. asks him “Any word about the other thing.” R.M. responds “Wh – I haven’t asked him yet because I feel bad uh holding it I’m gonna call him anyways today.” (o) 17 February 2011 (Ex 2 Tab 10 – 18:47:11) – T.J. calls R.M. asking if R.M called and R.M. says “N-yeah I did bro umm I know you said uh you’re only ready to see me on the weekend but uh can you give me whatever you have tomorrow cause I’m gonna go see my friend.” T.J. replies “Well I can see what I could do ‘cause you know a week a little slow.” R.M. responds “ Little slow.” T.J. says “Yeah but I can see what I can do wha – wha- wha- have for it.” R.M. says “Okey that’d just uh anything because I just wanna finish off with him and uh.” T.J. replies “Okay” and they arrange to meet the following morning around 10:00.