R. v. Junius et al., 2012 ONCJ 710

Citation: R. v. Junius et al. , 2012 ONCJ 710 ONTARIO COURT OF JUSTICE TORONTO REGION BETWEEN: HER MAJESTY THE QUEEN - and – Baldwin Junius, Troy Chemin, Collin Grant, Jamal Shehai, Duvals Smith, Kyle Thompson, Tresor Mukenge Before Justice P. J.

French Heard: July 19, 20, 22, 25-29, August 2, 5, 9-12, 15-18, 23-26, September 19, 28, 30, December 5-7, 12-14, 16, 19, 22, 2011 and February 13-17, March 26-30, April 24 and May 1, 2012 Released: August 22, 2012 Decision on Committal to Trial Scott Clarke............................................................................................................................for the Crown W. Rolls...................................................................................................................................for the Crown Amit Thakore............…………………………………………………………………….…..for B.

Junius Susan J. Von Achten .............…………………….………………………………………...for T. Chemin Charles Granek ...........……………………………………….……………………………....for C. Grant George Wootten ...............……………………………………………………………..……..for J. Shehai Laura Liscio ……….........……………………………………………………..………….....for D. Smith Christopher Assie ….........……………………………………………………………...for K. Thompson Victoria Tucci ……..........………………………………………….……………..……....for T.

Mukenge Notwithstanding the Order herein restricting publication pursuant to s. 539(1) of the Criminal Code and the restrictions on publication in any document or broadcast or transmission in any way of the evidence taken at the preliminary inquiry, these Reasons for Decision may be reproduced for judicial

proceedings and/or published by any legal/judicial reporting service for educational purposes. This is a decision concerning committal for trial following a lengthy preliminary inquiry. For the assistance of counsel and the accused persons, these Reasons for Decision are organized into the following parts:

Part 1 - Introduction

Part 2 - Overview

Part 3 - Applicable Legal Principles

Part 4 - Voice Identification

Part 5 - Analysis of the Charges other than the Criminal Organization Charges

Part 6 - Analysis of the Criminal Organization Charges

Part 7 -

Summary of Orders Made Appendix "A" - Table of Charges Appendix "B" - Extracts from the Criminal Code and Controlled Drugs and Substances Act

PART 1 - INTRODUCTION This preliminary inquiry began in July 2011. There were nine accused. One subsequently entered a plea before another judge. Another, Oran Goslyn, was, on consent, the subject of separate submissions and was ordered to stand trial. See, R. v. Goslyn , February 24, 2012, unreported, French, J. (O.C.J.). The remaining seven accused are in custody. I am not asked to order the remaining accused to trial on the charges set out in the voluminous Information upon which this preliminary inquiry proceeded. Rather, the Crown submits that they should be ordered to stand trial on 71 charges that arise from the evidence heard at the preliminary inquiry.

Part 2 of these Reasons provides an overview of the investigation and charges against the accused. Much of the evidence at the preliminary inquiry was admitted pursuant to s. 540(7) of the Criminal Code . The Court also heard from three police officers qualified as experts to give opinion evidence concerning street and coded language in relation to gang culture, drugs, and firearms, respectively. Their evidence was particularly relevant to the meaning of coded language heard on the intercepted voice and text communications admitted into evidence. The legal principles relevant to this decision are summarized in

Part 3. They include the principles concerning the role of a judge at a preliminary inquiry. They also include some comments concerning direct and circumstantial evidence and the drawing of inferences. The legal concepts of possession and of trafficking are essential elements in most of the charges alleged. A brief overview of their meaning is provided in

Part 3. I mentioned above the intercepted voice and text communications admitted into evidence pursuant to s. 540(7) of the Criminal Code . The intercepted communications and accompanying transcripts were admitted subject to the Crown calling further evidence to satisfy the court that the persons named on the call summaries and in the transcripts are the persons speaking in the intercepted communications. The issue of voice identification affects each accused person and was the subject of considerable argument by all counsel. It is therefore given its own

part in these Reasons,

Part 4.

Part 5 is the analysis of the various charges against each accused person, other than the criminal organization charges. There are 16 criminal organization charges alleged against the accused persons. They are analysed in

Part 6.

Part 7 is a

summary of the Orders made with respect to standing trial or discharge of each accused person on the charges listed in Appendix “A”. I organized the charges for which the Crown sought orders to stand trial in the Table presented as Appendix “A” at the end of these Reasons. Appendix “A” groups the charges per accused person and describes the individual charge, date, and respective

section of the Criminal Code or Controlled Drug and Substances Act ( CDSA ) that may be in issue. I distributed Appendix “A” to all counsel in advance of this decision to ensure that everyone agreed on the charges in issue. For purposes of this decision, I have incorporated into Appendix “A” a new column described as “Disposition”. For those interested only in the bottom line, I have there noted my decision whether the accused person be “ordered to stand trial” [in the Superior Court] or “discharged” in respect of an individual charge.

The relevant sections of the Criminal Code and CDSA have been reproduced in Appendix “B” to these Reasons. Appendix “B” is broken down into numbered parts for ease of reference and, in these Reasons, I often refer simply to the numbered part.

PART 2 – OVERVIEW In early August, 2009, the accused persons became subjects in a broad investigation undertaken by the Integrated Guns and Gangs Task Force of the Toronto Police Service. Two separate wiretap authorizations were obtained in January and March, 2010. They were collectively valid from January 27 through May 21, 2010. The investigation focused on three alleged criminal organizations within communities of the northwest area of Toronto. One of the three organizations was identified by the police as the Falstaff Crips.

The name of the Falstaff Crips was derived from the primary geographical area in which they are alleged to have operated. That is, the high-rise apartment buildings at Numbers 20, 30, 40, and a community centre at 50 Falstaff Avenue, in the west end of the City of Toronto, Ontario. The Crown alleges that the Falstaff Crips is a criminal organization as defined in the Criminal Code . The Crown alleges that Messrs. Grant, Junius, Chemin, Shehai and Smith are members of the criminal organization. It is alleged that Messrs. Thompson and Mukenge are associates of the organization.

The Crown alleges that throughout the investigation, Messrs. Grant and Junius worked together with others, to traffic cocaine and marijuana. It is alleged that they were expanding their territory into the east end of Toronto. In late February, 2010, Messrs. Chemin and Smith travelled to Ottawa where they worked with Tresor Mukenge. The Crown alleges that the purpose was to establish in Ottawa and Gatineau, Quebec, a business of trafficking in crack cocaine.

The investigation into Project Corral as a whole culminated on “take-down day”, May 4, 2010, with the execution of multiple search warrants in Toronto and Ottawa. Search warrants were executed at the homes of the accused before this Court. The general nature of the evidence admitted pursuant to s. 540(7) of the Criminal Code was summarized at length in the court’s Reasons for Ruling dated August 5, 2011. See, R. v. Junius , August 12, 2011, unreported, French, J. (O.C.J.). There were 553 intercepted communications, including voice and text messages, in the s. 540(7) evidence.

The records and documents for each intercepted communication included a call

summary, a wave file being the audio recording of the intercept, and a transcript of the intercepted communication. A principal issue advanced throughout the preliminary inquiry on behalf of the accused persons was the inadequacy of the evidence of voice identification. As noted in the Introduction, that issue is dealt with separately in

Part 4. A finding of common application is made and deemed applied to each charge analyzed in Parts 5 and 6.

Two of the accused persons, Duvals Smith and Tresor Mukenge, have consented to an order that they be committed to trial on thecharges appearing at Nos. 46 through 71 of Appendix “A”.

PART 3 – APPLICABLE LEGAL PRINCIPLES

(1) Direct Evidence, Circumstantial Evidence and Inferences There is little direct and positive evidence proving the elements of the offence on the part of the accused persons. This is notuncommon in criminal cases. In Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Carswell Ltd, 2005) direct and circumstantial evidence are defined inthese terms, “Sometimes witnesses tell us what they personally saw or heard. For example, a witness might say that he/she saw it raining outside. This is called direct evidence. Often, however, witnesses say things from which you are asked to draw certain conclusions.

For example, a witness might say that he orshe had seen someone enter the courthouse lobby wearing a raincoat and carrying an umbrella, both dripping wet. If you believed thatwitness, you might conclude that it was raining outside, even though the evidence was indirect. Indirect evidence is sometimes calledcircumstantial evidence.” The author goes on to point out that the law treats both types of evidence equally; neither is necessarily better or worse than the other.

Ineach case, the job of the trier of fact is to decide what conclusions should be reached based on the evidence as a whole, both direct andcircumstantial. Common sense and experience are to be used in making the decision. Where evidence is circumstantial, it is critical to distinguish between inference and speculation. In Watt’s Manual of Criminal Evidence(Thomson Reuters Canada) the author writes at page 43 that, “Inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwiseestablished in the proceedings.

There can be no inference without objective facts from which to infer the facts that a party seeks toestablish. If there are no positive proven facts from which an inference may be drawn, there can be no inference, only impermissiblespeculation and conjecture.” An interesting and informative analysis of inference and impermissible speculation was offered by Justice Ducharme in R. v. Munoz(2006), (ON SC), 205 CCC (3d) 70. He wrote, It is difficult, if not impossible, to define with any precision a bright line distinction between the drawing of reasonable inferences andmere speculation.

However, in this regard I would adopt the language of Aldisert J. in Tose v. First Pennsylvania Bank, N.A. 648 F. 2d879, 895 (3rd Cir.), cert. denied, 454 U.S. 893 (1981) at 895: The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and animpermissible speculation is not drawn by judicial idiosyncrasies. The line is drawn by the laws of logic.

If there is an experience oflogical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw aconclusion because there is a reasonable probability that the conclusion flows from the proven facts. As the Supreme Court has stated,"the essential requirement is that mere speculation be not allowed to do duty for probative facts after making due allowance for allreasonably possible inferences favoring the party whose case is attacked." Galloway v. United States, 319 U.S. 372, 395, 63 S. Ct. 1077, 1089, 87 L.

Ed. 1458 (1943).11 The inferences relied on by the Crown must therefore be ones that can be reasonably and logically drawn. They cannot depend onspeculation or conjecture, rather than evidence, to bridge any inferential gaps.

(2) The Test for Committal under the Criminal Code Section 548(1) of the Criminal Code gives directions to a judge presiding at a preliminary inquiry. It reads, “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; or (

b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for theoffence charged or any other indictable offence in respect of the same transaction.”

(3) Application of the Test for Committal in Common Law A judge acting at a preliminary inquiry must commit the accused to stand trial if there is evidence before the court upon which areasonable jury, properly instructed, could return a verdict of guilty. See, United States of America v. Sheppard, (SCC),[1977] 2 S.C.R. 1067, 30 C.C.C. (2d) 424 at 427. In Arcuri v.

The Queen, 2001 SCC 54 , [2001] 2 S.C.R. 828, 157 C.C.C. (3d)21 at 24, the court affirmed the common law rule expressed in Sheppard, supra, that a judge presiding at a preliminary inquiry isrequired to commit an accused person for trial "in any case in which there is admissible evidence which could, if it were believed, resultin a conviction". Whether the evidence at the preliminary inquiry is direct or circumstantial, the test for committal remains the same. However, thenature of the judge's responsibility varies according to the type of evidence that the Crown tenders.

In Arcuri, above, at paragraph 23,McLachlin C.J. described the nature of the judge's task where the Crown's evidence is circumstantial: [23] The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of theoffence. The question then becomes whether the remaining elements of the offence - that is, those elements as to which the Crown hasnot advanced direct evidence - may reasonably be inferred from the circumstantial evidence.

Answering this question inevitably requiresthe judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gapbetween the evidence and the matter to be established - that is, an inferential gap beyond the question of whether the evidence should bebelieved: see Watt's Manual of Criminal Evidence, supra, at s. 9.01 (circumstantial evidence is "any item of evidence, testimonial or real,other than the testimony of an eyewitness to a material fact.

It is any fact from the existence of which the trier of fact may infer theexistence of a fact in issue"); McCormick on Evidence, supra, at pp. 641-42 ("circumstantial evidence ... may be testimonial, but even ifthe circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion"). The judge musttherefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asksthe jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused isguilty.

Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, couldreasonably support an inference of guilt.

(4) Elements of an Offence Each offence in the Criminal Code has its own essential elements, which may be proven by either direct or circumstantial evidence. Itfollows from Arcuri, above, that the Crown must adduce evidence sufficient to permit a properly instructed jury acting reasonably to findeach essential element established. See, R. v. Charemski, (SCC), [1998] 1 S.C.R. 679, 123 C.C.C. (3d) 225, 229, perBastarache J.

Where the evidence on an essential element is circumstantial, a judge presiding at a preliminary inquiry must determinewhether the evidence is reasonably capable of supporting the inference necessary to establish the essential element. I defer comment on the essential elements of most of the offences charged until they are analyzed in Parts 5 and 6, following. However,given that they figure so prominently in most of the charges against the accused, it may be helpful to comment here on the elements of"possession" and "trafficking".

For purposes of this preliminary inquiry, counsel for the accused persons accepted the evidence in the s. 540(7) materials that the drugsor firearms in issue were drugs or a firearm, respectively, within the meaning of the CDSA or the Criminal Code, as the case may be. The issue remains, however, whether the accused person was in “possession” of, or “trafficked” in, the substance, or a firearm, as may bealleged in a particular charge. The basic definition of “possession” appears in s. 4(3) of the Criminal Code.

It is rendered applicable to drug offences pursuant to s. 2 ofthe Controlled Drug and Substances Act (CDSA). These sections are reproduced at parts 1 and 18, respectively, of Appendix “B”. Section 4(3) of the Code reads, For the purposes of this Act, (

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

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

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. This definition anticipates three different types of possession: personal, constructive, and joint possession. Personal possession is simply the situation where a person has actual care, through some form of physical contact, of the item inquestion. However, the criminal law requires more than simply having physical possession of the item.

The criminal law requires threedistinct elements: physical custody, knowledge and control. What is required in order for there to be possession is not only physical custody, but also knowledge, both of the actual presence of theitem and its general character. Thus, possession in the criminal law is not established until the accused has knowledge of what the itembeing handled is. The criminal law incorporates a third element to possession. It adds the element of control, to the elements of physical custody andknowledge.

Where it appears there is no intent to exercise control over the item, guilt should not be inferred. See, R. v. Christie, (1978) (NB CA), 41 C.C.C. (2d) 282 (N.B.C.A.) There may be cases for which there is no actual evidence of trafficking, but where the facts indicate a strong intention on the part of theaccused to engage in such activity.

Rather than simply treating that person as a mere possessor of drugs, s. 5(2) of the CDSA providesthat “[n]o person shall, for the purpose of trafficking, possess a [controlled] substance.” In addition to the proof of possession, such acharge under s. 5(2) of the CDSA requires evidence of the accused’s “purpose” in possessing the drug. Often, the “purpose oftrafficking” can be inferred from: statements of the accused or co-accused; a large quantity of drugs; paraphernalia used in trafficking;the manner of storage; and, of course, intercepted communications.

The basic definition of “trafficking” as it applies to drugs appears in the CDSA. In s. 2(1) of the CDSA (see, Appendix “B”,

part 18), theterm “traffic” means: (

a) To sell, administer, give, transfer, transport, send or deliver a substance, (

b) To sell an authorization to obtain the substance, or

(

c) To offer to do anything mentioned in paragraph (

a) or (b), … Sub-paragraph (

a) defines a very wide range of activity as trafficking. And, sub-paragraph (

c) broadens it further to include an “offer” to do any of the activities in sub-paragraphs (

a) and (b). Thus, the offence of trafficking may be completed by simply making the offer. Insofar as firearms or weapons are concerned, the core element involved is the act of “transfer”. That term is also defined to include a wide range of activity. Its definition in s. 84(1) of the Criminal Code is to, “… sell, provide, barter, give, lend, rent, send, transport, ship, distribute or deliver.” See, Appendix “B”,

part 3. The prohibition against offering to do any of those activities is found in the weapons trafficking offence in s. 99 of the Criminal Code . See, Appendix “B”,

part 6. See, generally, Manning, Mewett & Sankoff, Criminal Law , 4 th Ed., LexisNexis Canada Inc., 2009, at 727-728, and at 1137-1153.

PART 4 – VOICE IDENTIFICATION For the assistance of counsel and the accused persons, this

part is organized, for convenience, under the following headings: (

a) Introduction (

b) The s. 540(7) Ruling Concerning Voice Identification (

c) The Evidence Concerning Voice Identification (

d) The Position of the Parties (

e) Analysis and Findings (

a) Introduction The Crown’s case against each accused person consists in large part of intercepted voice and text communications. The intercepted voice and text communications were admitted into the evidence of this preliminary inquiry by means of the procedure in s. 540(7) of the Criminal Code . See, R. v. Junius , August 12, 2011, unreported, French, J. (O.C.J.). While the audio wave files and transcripts of the intercepted communications were admitted in evidence, the issue of identifying the voices and users in the communications required further evidence. To that end, the Crown called Mr.

Kurt Eccleston, a civilian employee of the Toronto Police Service, to explain the processes of monitoring, identifying, and transcribing. The defence submits that the Crown has not met its burden in the preliminary inquiry on the issue of voice identification. The defence shared common ground in opposing the admission of the voice identification evidence. Mr. Granek, on behalf of Collin Grant, led on the issue; counsel on behalf of the other accused persons adopted his submissions. Mr. Granek’s submissions were made in an initial application and then incorporated by reference and augmented in closing submissions.

On consent, Mr. Granek’s submissions are collectively considered in these Reasons for Decision. The issue affects the interest of each accused person on most of the charges in Appendix “A”. In my view, and for the reasons that follow, a common finding can be made on this issue arising from the evidence admitted pursuant to s. 540(7) . That is, whether the

persons identified on the call summaries and the transcripts are the persons speaking in the intercepted communications. In my view, it is helpful to deal with the issue here, by way of a common finding, rather than in the analysis of the individual charges in Parts 5 and 6, below. (

b) The s. 540(7) Ruling Concerning Voice Identification There are 553 intercepted communications, including text messages, included in the evidence admitted pursuant to s. 540(7) of the Criminal Code . The records and documents in the materials for each intercepted communication include a call

summary, a wave file, being the audio recording of the intercept, and a transcript of the intercepted communication. Each intercepted communication in the s. 540(7) evidence has its own four-digit number, preceded by the designation, “LCN....”. The technical process used to record and capture the data of the intercepted communications was described as the “JSI System”, being an acronym for Jatom Systems Incorporated. That system has been used by the Toronto Police Service many times in the last several years.

Once the data of the intercepted communications was captured, other steps were taken to organize the intercepted communications and correctly attribute them to the accused person involved. The process was described in this court’s ruling in the s. 540(7) application (see, R. v. Junius, supra , at page 13) as follows, "There were 25 monitors hired for this project to work in the wire room. D.C. Clarke’s understanding was that 24 of them were familiar with Jamaican Patois. There were three lead monitors. One of the three has apparently previously been accepted by a court as an expert in Jamaican Patois.

The transcripts are not prepared live. Rather, certain of the intercepted communications were identified after take- down day by the investigators. Transcripts were then prepared of the intercepted communications so identified. Civilian personnel prepare the transcripts of the intercepted communications. Only the three lead monitors were used as “proofers” of the transcripts. One of the three lead monitors proof-reads each transcript of an intercepted communication." For purposes of that part of the s. 540(7) ruling concerning intercepted communications, three types of files were identified. They were: (

i) Call summaries, excluding investigator comments; (ii) Wave files; and (iii) Transcripts. They were found to be “credible or trustworthy in the circumstances of the case”. They were admitted in evidence subject to an exception concerning voice identification. The exception was expressed in the following terms, “...the evidence falls short in establishing voice identification to the extent that, based on the transcripts and wave files alone, I can be satisfied that the persons identified on the call summaries and the transcripts are the persons speaking on the intercepted communications.

The Crown will need to satisfy me further by calling police witnesses, surveillance officers or persons monitoring the calls that the persons named on the call summaries and in the transcripts are the voices heard on the tapes. I do not anticipate hearing witnesses on all 553 intercepted communications. Rather, the Crown is required to lead some evidence to establish how the initial voice identification was made. Subsequent caller identification can be hearsay so long as the proper foundation is laid and the evidence is trustworthy or credible.” ( R. v. Junius, supra , at pages 34-35) (

c) The Evidence Concerning Voice Identification In due course, the Crown called Mr. Kurt Eccleston, a lead monitor with the Toronto Police Service. Mr. Eccleston described for the court the process by which voice identification was made for the communications intercepted in the investigation and admitted in evidence as part of the s. 540(7) materials. Mr. Eccleston testified that, within the first few calls, parties typically begin to identify themselves in one way of another. In some

instances, this will involve self-identification, either by name or nickname, or, in other instances, by describing events, situations, or relationships, which can then be used to identify the speaker. Once a monitor has determined that a particular call contains identification information, that call is placed in a voice library. This allows monitors listening to subsequent calls to compare the voice being heard to the ones contained within the voice library.

This reference process was available to and used by monitors throughout all stages of the gathering of interceptions from live monitoring through to transcribing and proofreading. Where a person has been identified by voice, the monitor preparing the transcript was responsible for putting the party’s name in the transcript. Thereafter, the monitor proofreading the transcript was required to verify the accuracy of the identifying information as well as the accuracy of the words spoken. Mr.

Eccleston testified that he conducted the process of voice identification and referencing from the voice library with respect to the accused before the Court. Prior to testifying, he also proofread and confirmed the accuracy of the names appearing on the transcripts prepared in relation to Messrs. Chemin, Shehai, Grant and Junius. In addition to Mr. Eccleston’s evidence concerning the processes of monitoring, identifying, and transcribing, there is other circumstantial evidence relied on by the Crown in support of voice identification.

The evidence may conveniently be summarized in the paragraphs following for each accused. (

i) Collin Grant On 4 May 2010, Mr. Grant was arrested at 2743 Victoria Park Avenue, apartment #608, Toronto. He was found sleeping on a sofa in the living room. On a table at the head of the sofa, police officers located and seized a black LG cellular telephone. D.C. Hewson proved the number of the telephone to be 647-567-4823. (LCN 1864). The evidence is that Mr. Grant used this telephone line throughout the Project. In addition to its proximity to him, there is other evidence which, if accepted, could allow the trier of fact to find that Mr.

Grant was the owner and user of the cell phone with number 647-567-4823. For example, the telephone contained several photographs of Mr. Grant and his gang tattoos (matching Toronto Police Service RICI photographs and Mr. Grant’s description of his tattoos in earlier calls). It also contained a video clip of his co-accused, Baldwin Junius identifying himself as ‘Droopy’. ( s.540(7) materials) In LCN 0137, the caller self-identifies as Collin Grant. He leaves a message for a person and gives his number as 647-567-4823. This is an example of a self-identifying call placed in the voice library.

There is also the evidence of D.C. Davies. While acting in an undercover capacity, he purchased drugs from Mr. Grant. He set up the purchase by phone and spoke with Mr. Grant directly. D.C. Davies listened again to the telephone calls between himself and Mr. Grant setting up this purchase. D.C. Davies identified both his voice and Mr. Grant’s voice. D.C. Davies viewed a photographic line up and identified Mr. Grant as the person he had spoken with and who had sold him the crack cocaine. D.C. Davies also identified Mr. Grant in court.

There is therefore a considerable body of evidence which, if believed, could allow a jury to find that Mr. Grant’s voice is heard in LCN 0137 and that he was the user of a phone with the number 647-567-4823. (ii) Baldwin Junius The Crown alleges that Mr. Junius used the telephone line 647-206-8428 throughout the Project. I am unaware of there being a self- identifying call attributed to Mr. Junius. However, there is circumstantial evidence which, if believed by the jury, could support an inference that Mr. Junius was the user of a phone attached to the number 647-206-8428.

An example of that circumstantial evidence includes a video clip found in Mr. Grant’s phone where Mr. Junius identifies himself as

“Droopy”. There are several intercepted communications where the user of 647-206-8428 identifies himself as “Droopy” or “Droops”. See, for example, LCN 0171. There are other intercepted communications where the user of 647-206-8428 responds to the name “Droopy”. See, for example, LCN 0988. According to Mr. Eccleston, these are the type of call placed in the voice library to serve as a resource for the monitors. If believed, this evidence would allow a reasonable and properly instructed jury to find that Mr.

Junius was the user of a phone with the number 647-206-8428 and that his voice is heard in the intercepted communications noted above. (iii) Troy Chemin In the intercepted communication identified in the wave files as LCN 2067, the caller self-identifies as “Paco”, with an address of 8 Peggy Court, Brampton. The person called in the intercepted communication identified in the wave files as LCN 0538 responds to the name of “Paco Chemin”. The evidence of Mr. Eccleston was that these were the type of call placed in the voice library. They could be used to compare and identify the voice in other calls.

Numerous documents were seized in the search of 4673 Jane Street, Apartment No. 519, Toronto, when Mr. Chemin was arrested. They appear as “scanned documents” in the s. 540(7) evidence concerning Mr. Chemin. It will be open to the trier of fact to infer from them that “Paco” and “Paco Chemin” and “Troy Chemin” are the same person. It will be open to the trier of fact to infer from the scanned documents that Mr. Chemin was, with Mr. Shehai, an owner of the property at 8 Peggy Court, Brampton.

It will be open to the trier of fact to infer from the evidence that the person speaking and self-identifying as "Paco Chemin" is the person speaking in the calls attributed to Troy Chemin. (iv) Jamal Shehai There are no definitive self-identification intercepted communications involving Mr. Shehai. Nevertheless, in LCN 1484, a male voice responds to the name “Jamal” in an intercepted communication attached to Bell (landline) number 416-221-1381. According to Mr. Eccleston, another example of the steps taken to identify a voice is the assessment of events in close proximity to one another.

In the intercepted communication identified in the evidence as LCN 0459, at 19:01:52 (say, 7:02 p.m.) on February 12, 2010, a male speaks to Mr. Junius. He asks, “Where are you guys?” Mr. Junius tells him that the guys are at “Jack Astor’s”. The male responds, “I will be in there shortly.” Messrs. Chemin, Grant and Junius were under surveillance at the time of the above intercepted communication; they were at Jack Astor’s Restaurant. Within six minutes of the male saying, “I will be in there shortly”, Mr.

Shehai is observed exiting his motor vehicle, walking to the front door, and looking around before he enters Jack Astor’s Restaurant. These calls were placed in the voice library for Mr. Shehai. They were available to the monitors to guide them in identifying his voice in other intercepted communications. (

v) Tresor Mukenge and Duvals Smith The same approach was followed with respect to Mr. Mukenge and Mr. Smith. Given their consent to an order to stand trial, it is not necessary to detail that approach at this time. It was agreed by the Crown and counsel to Mr. Shehai, for the purposes of the preliminary inquiry, and for the purposes of the case against Mr. Shehai only, that the voices in the intercepted communications attributed to Messrs. Mukenge and Smith are correctly attributed to them when they are speaking to Mr. Shehai. (

d) Position of the Parties (

i) Position of the Defence

Counsel for the accused persons vigorously oppose a finding that attributes to their clients any of the intercepted communicationsadmitted into evidence in the s. 540(7) materials. The principal submissions were made by Mr. Granek on behalf of his client, Mr.Grant. Mr. Granek’s submissions were adopted by other counsel and form part of their submissions on behalf of their clients. Hissubmissions are essentially three-fold. First, it was submitted by Mr. Granek that the Crown has failed to provide evidence on the issue of voice identification as was requiredby the court’s ruling in the s. 540(7) application.

See, R. v. Junius, August 12, 2011, unreported, French, J. (O.C.J.). Mr. Graneksubmits that Mr. Eccleston did not check with the monitors and proofers, individually, to confirm that they followed the describedprocess in each intercepted communication relied on by the Crown. Mr. Eccleston should have spoken to the monitors in each intercepted communication relied on by the Crown, confirmed that theyfollowed the process, and that they confidently attributed the intercepted communication to the particular accused involved. That wasnot done and the evidence should be excluded.

Second, the Crown has not offered expert opinion evidence as it must do. Here, Mr. Eccleston is asked to compare a sample interceptedcommunication, wherein the accused person identified himself, with voices heard on other intercepted communications. That requiresexpert opinion evidence. This is not a situation where a witness has personally heard the accused speak and then compares thatrecollection to a recording of the intercepted communication. The evidence called by the Crown does not satisfy the standards set by theOntario Court of Appeal in R. v. Williams, (ON CA), [1995] O.J. No. 1012.

Third, the defence submits that the evidence tendered by the Crown through Mr. Eccleston should be excluded. He has not spoken withany of the accused persons. He is not and has not been qualified as an expert. There was no proper foundation for his evidence. Hispurported identification of the voices of the accused persons is nothing more than unsafe in-dock identification. It is highly prejudicialand should be excluded. (ii) Position of the Crown The Crown submits that, in its s. 540(7) ruling, the court required some evidence of a process. This is a preliminary inquiry, not a trial.

The burden on the Crown is simply to establish some evidence of voice identity that would be sufficient for the eventual trier of fact toconsider. The Crown has met that burden. Mr. Eccleston has provided evidence of that process. There is therefore some evidence tosatisfy the test that was set out in the s. 540(7) ruling. For purposes of the preliminary inquiry, transcripts can be relied on to the extentthat they purport to identify speakers. The Crown relies on R. v. Gyles, [2005] O.J. No. 5513, and R. v. Wu, [2010] A.J. No. 1327. The Crown submits that the Ontario Court of Appeal, in R. v.

Williams, (ON CA), [1995] O.J. No. 1012, did not laydown an absolute rule that the Crown was required to produce people who were experts when calling evidence with respect tointercepted communications. Counsel for the accused persons are attempting to erect artificial barriers to the reception of the evidencewhen in fact, we rely upon triers of fact to attach such weight to the evidence as they think appropriate in order to arrive at theappropriate decision.

It is for the trier of fact, at trial, to decide the ultimate considerations as to the quality of the process used andwhether it was sufficient to attribute the intercepted communications to the accused persons. Based on Mr. Eccleston’s evidence, the Crown submits that there is evidence before the Court, based on which a reasonable jury,properly instructed, could find that the names of the parties appearing in the call transcripts accurately identify the speakers. (

e) Analysis and Findings Notwithstanding the very able submissions of Mr. Granek, I am unable to accede to the position of the defence. There are severalreasons for my being unable to do so. Principal among them are that this proceeding is a preliminary inquiry, not a trial and, in my view,the Crown has met the burden imposed in the court’s ruling in the s. 540(7) application. In my view, this court’s ruling in the s. 540(7)application explained the context and prescribed the rules that are first and foremost responsive to this issue. It will be helpful to recallhere certain parts of the court’s ruling in the s. 540(7) application,

“This proceeding is a preliminary inquiry. It is not concerned with the guilt or innocence of the accused persons. … The purposes of subsections 540(7), (8) and (9) of the Criminal Code were to modernize criminal procedure, reduce the time it takes to bring criminal cases to trial and narrow the scope of preliminary inquiries. See, R. v. P.M. , supra. The introduction of s.540(7) was not intended by Parliament to eliminate the discovery function of preliminary inquiries or to convert them into a paper hearing. See, R. v. Sonier , [2005] O.J. No. 1234; R. v. Francis , supra (SCO, Ratushny J.). ...

Subsection (7) allows the Crown to apply to tender information to satisfy the test for committal in a preliminary inquiry that would not be admissible according to trial evidentiary rules but that the preliminary inquiry justice considers “credible or trustworthy in the circumstances of the case”. See, R. v. Francis, supra (SCO, Ratushny J.) . The legislation requires the preliminary inquiry justice to screen the evidence. In so doing, the preliminary inquiry justice has broad discretion as to how to proceed.

However, it is not intended that the preliminary inquiry justice usurp the role of the trial court be determining, for example, the ultimate issue of credibility. See, R. v. Francis, supra (SCO, Ratushny J.). The screening function in the s.540(7) analysis requires a determination whether the tendered information is “credible or trustworthy in the circumstances of the case.” This has been judicially interpreted to mean that the information

sought to be introduced under subsection (7) must have at least a prima facie air of reliability to allow it to be admitted on the preliminary inquiry. It need not be sufficient to base a conviction upon but it must warrant consideration as to whether there is some evidence for a jury to properly consider at trial. See, R. v. Trac, [2004] O.J. No. 5469; R. v. McCormick, 2005 ONCJ 28 , [2005] O.J. No. 390; R. v. Francis, supra (SCO, Ratushny J.). ... A preliminary inquiry justice has jurisdiction to prescribe terms and conditions for the admissibility of some or all of the 540(7) records and documents. See, R. v.

Francis, supra, per Justice Ratushny, and R. v. Francis, supra, per Justice Wong.” (See, R. v. Junius, supra, at pages 27-32) Against that background, the court ruled that the s. 540(7) intercepted communication materials were admitted in evidence subject to theCrown calling evidence to satisfy the court “that the persons identified on the call summaries and the transcripts are the personsspeaking on the intercepted communications”. Specifically, the court ruled that, “...the Crown is required to lead some evidence to establish how the initial voice identification was made.

Subsequent calleridentification can be hearsay so long as the proper foundation is laid and the evidence is trustworthy or credible.” (See, R. v. Junius, supra at page 34) The evidence of Mr. Eccleston and the earlier evidence of D.C. Clarke describe the process that was followed “to establish how theinitial voice identification was made”.

Reduced to the very simplest, that involved either self-identification, inferences arising from thepossession of a phone, inferences from events in close proximity to one another, inferences arising from surveillance and, likecircumstances supporting an inference that the accused was a speaker in a particular intercepted communication. Mr. Eccleston alsodescribed the processes that were followed to ensure proper caller identification in the subsequent intercepted communications and toensure that the callers were properly identified in the transcripts.

I am satisfied that the Crown has met its burden in proving that thepersons identified on the call summaries and the transcripts are the persons speaking or communicating in the interceptedcommunications. There are other reasons for my being unable to accept the submissions of the defence on this issue. For example, I listened to the self-identifying calls and compared those voices to the voices heard in other calls alleged to involve the same accused. The voices aresufficiently recognizable that there is some evidence for the eventual trier of fact to consider. Would the law permit that?

In my view,based on a consideration of the authorities offered, it does. In R. v. Williams, (ON CA), [1995] O.J. No. 1012, the Ontario Court of Appeal was concerned with evidence of voiceidentification. The evidence in issue was that of an undercover police officer identifying the voice of the accused as a speaker onnumerous intercepted communications. The undercover officer had spoken with the accused, in person and over the phone, on numerous

previous occasions. The court noted its decision in R. v Parsons (1977), (ON CA), 17 O.R. (2d) 465 in the context ofintercepted communication. In Parsons, Dubin J.A., speaking for the court, held that once it is shown that the interception was carriedout pursuant to a lawful authorization and in the manner authorized, the fact that the evidence falls short of identifying the voice does notrender the interception inadmissible. It becomes a question for the trier of fact to determine the identity of the voice.

In Williams, supra,Finlayson J., speaking for the court, rejected rigid or definitive tests for the acceptance of evidence of voice identification. In Williams,the court rejected the submission that the undercover officer was giving opinion evidence. In R. v. Gyles, [2005] O.J. No. 5513, a trial judge compared the accused’s voice in court with the voice heard on interceptedcommunications. The trial judge concluded that it was the accused’s voice on the tapes.

The Ontario Court of Appeal held that the trialjudge did not err in comparing what she heard in court to what she heard on the tape to determine whether the accused’s voice was on thetapes. The Court of Appeal affirmed that triers of fact can appropriately make voice comparisons in appropriate circumstances. Similarly, in R. v. Wu, [2010] A.J. No. 1327, the Alberta Court of Appeal considered circumstances of voice comparison. The policeobtained samples of the voices of the accused during interviews with them. The samples were used at the trial to identify the accused inthe intercepted communications.

In Wu, a police officer who assembled the voice identification evidence and prepared the transcriptswas permitted to give voice comparison evidence. The police officer had no expertise in audiology and voice recognition and had nospecific training in that field. However, he listened several times to the police interviews of the accused persons. He then comparedthose voices to the voices heard in the intercepted communications. The trial judge also listened to the tapes.

With respect to theevidence of the police officer, the Alberta Court of Appeal found that there was an ‘opinion evidence’ character to his evidence of voiceidentity and thus his evidence was subject to the gate-keeper assessment. That evidence was ultimately a matter of human experience. The Alberta Court of Appeal held that the trial judge did not err in law in holding that, as the trier of fact, it was his role to decide theweight of the evidence before him as to who was talking in the recordings.

Nor did he err in law in holding that he was entitled to use hisown senses to evaluate the evidence of voice identification. Accepting that I may do so based on R. v. Williams, supra., R. v. Gyles, supra., and R. v. Wu, supra., I listened to the self-identifying callsattributed to Mr. Grant and to Mr. Chemin. I listened to the calls in the voice library attributed to Mr. Junius and Mr. Shehai, asdescribed above. I listened to calls attributed to the accused in several of the alleged substantive offences. In my view, one can compareand identify the voices in this manner.

I am satisfied that this is some evidence upon which a reasonable jury, properly instructed, couldfind that the persons identified on the call summaries and the transcripts are correctly identified as the persons speaking orcommunicating in the intercepted communications. I note in these Reasons that Mr. Eccleston gave evidence identifying the voices of the accused persons in various interceptedcommunications. He did so on the understanding that defence counsel could reserve to closing submissions their objections to thisevidence.

In the result, I have not found it necessary for the purposes of the preliminary inquiry to rely on this aspect of Mr. Eccleston’sevidence. I therefore decline to rule on the objection to this aspect of his evidence. It may be that it should be admitted and considered,based on R. v. Wu, supra. I leave that issue for determination at the trial. I turn now to the analysis of the charges against the accused. In so doing, I proceed in each charge on the basis that a reasonable andproperly instructed jury could find that the voices are correctly attributed in the intercepted communications.

PART 5 – ANALYSIS OF THE CHARGES OTHER THAN THE CRIMINAL ORGANIZATION CHARGES The Crown asks that the accused persons be ordered to stand trial on charges based on the evidence heard in the preliminary inquiryrather than the charges set out in the Informations. Appendix “A” to these Reasons is a table that summarizes the accused, the chargesfor which the Crown asks that they be ordered to stand trial, the date of the alleged offence, the relevant sections of the Criminal Codeand the Controlled Drugs and Substances Act, and the disposition.

Appendix “B” to these Reasons contains the text of the relevant sections of the Criminal Code and the Controlled Drugs and SubstancesAct. It will be recalled from

Part 3, above, that each offence in the Criminal Code and the CDSA, has its own essential elements. For most ofthe charges, the element in issue for purposes of the preliminary inquiry was identification. That is, was it the accused speaking in theintercepted communications said to make out the charge? For purposes of the preliminary inquiry, and for the reasons given in

Part 4above, I have found that the persons identified on the call summaries and the transcripts admitted in evidence are the persons speaking orcommunicating in the intercepted communications. For purposes of the preliminary inquiry, the element of identification is no longer inissue.

In several of the charges, the issue was the meaning of coded language. In those instances, the Crown relies on the opinion evidence of D.C. Rozario on the meaning of coded language in relation to drugs and Officer Press on the meaning of coded language in relation to firearms and ammunition. In those instances, the issue often reduced itself to whether the meaning given in evidence by the experts was some evidence of the essential elements of a forbidden act (the actus reus ) or a guilty mind (the mens rea ) in the charge under consideration.

As noted in the Introduction, this proceeding is complicated by the presence of 16 criminal organization charges alleged against the accused. The analysis of those charges is left to

Part 6, following. I turn then to the accused in the order in which they appear in Appendix “A”. ( 1 ) Collin Grant The Crown submits that Mr. Grant be ordered to stand trial on Charge Nos. 1 through 15 in Appendix “A”. Four of those charges (Nos. 1, 5, 8, and 10) involve an alleged criminal organization offence. Those charges are considered in

Part 6, following. The remaining charges against Mr. Grant may be conveniently considered if grouped chronologically. They would be as follows: (

a) Charge Nos. 2 – 3: The trafficking charges in the period January 28 – May 3, 2010. (

b) Charge No. 4: Counselling the trafficking of a firearm on February 5, 2010. (

c) Charge No. 6: The trafficking ammunition charge of March 4 and 5, 2010. (

d) Charge No. 7: Trafficking ammunition on March 26, 2010. (

e) Charge No. 9: The trafficking firearm charges of April 16, 2010. (

f) Charge No. 11: Conspiracy to traffic in cocaine on March 6, 2010. (

g) Charge No. 12: Conspiracy to attempt to obstruct justice on March 21, 2010. (

h) Charge No. 13: Trafficking in ammunition on March 27 – 30, 2010. (

i) Charge No. 14: Trafficking in a firearm during the period April 2 – 21, 2010.

(

j) Charge No. 15: Trafficking in cocaine April 26, 2010. A brief discussion and analysis of each group of charges follows: (

a) Charge Nos. 2 – 3: The trafficking charges in the period January 28 – May 3, 2010. Mr. Grant does not challenge his committal to trial on Charge Nos. 2 and 3, Appendix “A”. (

b) Charge No. 4: Counselling the trafficking of a firearm on February 5, 2010. This charge arises from an intercepted telephone communication on February 5, 2010. The intercepted communication is identified inthe evidence as LCN 2015. Mr. Grant received a call from an unknown male. Mr. Grant asked him, “You have the girl?” the unknownmale replies, “Yeah.” Mr. Grant instructs him to bring “her” here; he says, “nobody is here bro, bring me my thing dawg.” Officer Michael Press provided the opinion that Mr. Grant was referring to a firearm. The position of the Crown is that the counselling offence committed is the substantive counselling offence under s. 464 of the CriminalCode. That

section is reproduced in Appendix “B” at

part 11. The prohibition against trafficking in a firearm appears in s. 99 of theCriminal Code. That

section is reproduced in

part 6 of Appendix “B”. The essential elements of the offence of counselling under s. 464(

a) are that the accused counselled a specific person to commit aspecific offence and that the person counselled did not commit the offence. There are several ways in which one person may counselanother to commit a crime. “Counsel” means to advise or recommend a particular course of conduct. “Counsel” also includes procuring,soliciting, and inciting. Counselling may involve a lengthy course of persuasion, or it may be brief. There may be many discussions ora few contacts.

Counselling is complete when the accused person solicits or incites the third party to commit the offence counselled, but only if theaccused does so in one of the ways described. The final element is that the person counselled did not commit the offence counselled. There must be a recipient to the act of counselling since, otherwise, no one could have been counselled. However, it is not necessary thatthe recipient be influenced nor, indeed, that the recipient had any intent to commit the offence.

A conviction can be imposed where the accused “knowingly counselled the commission of the offence while aware of the unjustifiedrisk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct”. See, R. v. Hamilton, 2005 SCC 47 , [2005] 2 S.C.R. 432 (S.C.C.). See also Manning, Mewett & Sankoff, Criminal Law, 4th Ed., Lexis Nexis; also, Canada Inc.2009, at 323-325. Considering the elements of the offence summarized above, the opinion of Officer Press and the directions of Mr.

Grant to the personcounselled to transport the firearm to him, there is some evidence upon which a reasonable jury, properly instructed, could convict. Heis ordered to stand trial on this charge. (

c) Charge No. 6: The trafficking ammunition charge of March 4 and 5, 2010.

The prohibition against trafficking ammunition is included in s. 99 (1) (b)of the Criminal Code . That

section is reproduced in Appendix “B” at

part 6. The element of “trafficking” in criminal law was discussed in

Part 3, above. The necessary elements of the offence in s. 99(1)(

b) applied to the case before the Court appear to be that the accused, • trafficked (transferred or offered to transfer or sell); • ammunition; • knowing that the person is not authorized to do so; and • intended to traffic. In LCN 1110, on March 4, 2010, an unknown male asks Mr. Grant about the ‘thing’ that he has and the ‘thing’ that it uses. The unknown male asks, “...yow, you can get a box of those?” Mr. Grant responds, “I have some. I could chip you some.” The unknown male asks, “...how much you chip those for?” and Mr.

Grant eventually replies, “...five, just bring me fifty.” The two arrange to speak the next day. In LCN 1126, on March 5, 2010, Mr. Grant received a call from the unknown male who asks, “...you remember those cockles (ph) I was asking you about?” Mr. Grant says, “Yeah”, and the unknown male goes on to say, “...we’re gonna do * something * .” (Asterisks at the beginning and end of a word or sentence in the transcripts mean that the word or sentence has been translated into English.) Officer Press opined that the two were discussing the supply of ammunition. The evidence is far from clear.

However, if believed, there is some evidence upon which a reasonable jury, properly instructed, could find that Mr. Grant agreed to transfer or sell, and thus, traffic ammunition to the unknown male. He is ordered to stand trial on this charge. (

d) Charge No. 7: Counselling the trafficking of ammunition on March 26, 2010. The relevant sections of the Criminal Code and the essential elements are the same as for Charge No. 4, above. The evidence concerning this charge arises from three intercepted communications of March 26, 2010 and the opinion of Officer Press. In LCN 2315, LCN 2316, and LCN 2329, Mr. Grant is speaking with an unknown male. Officer Press expressed the opinion that Mr. Grant’s use of the word “shoes” was a reference to firearms. Officer Press was also of the opinion that Mr.

Grant’s use of the word “eggs” was a coded term for ammunition; specifically cartridges. His use of the word “grains” in LCN 2329 is a reference to ammunition. Were I the trial judge, these intercepted communications might serve better to illustrate the background to, and breadth of, Mr. Grant’s activities than to prove an offence. However, as a justice presiding at a preliminary inquiry, my jurisdiction is to assess whether there is some evidence upon which a reasonable jury, properly instructed, could find that Mr. Grant was involved in the transfer of ammunition.

It may be clear to the jury, based on the intercepted communications and the opinion of Officer Press, that Mr. Grant is speaking of ammunition, most probably his own ammunition. It is much less clear that he is “trafficking”. However, that will be for the jury to decide. He is ordered to stand trial on this charge. (

e) Charge No. 9: The trafficking firearm charge of April 16, 2010. The relevant

section of the Criminal Code and the essential elements are the same as set out for Charge No. 6, above.

The particular evidence with respect to this charge arises from an intercepted telephone communication on April 16, 2010. Theintercepted communication appears in the evidence as LCN 2526. An unknown male telephoned Mr. Grant and inquired whether he still had “that thing?” The unknown male asked, “you want … stillwanna sell that thing?... you still want to sell that thing?” Mr. Grant replies, “Probably…is it in the circle? If it’s not gonna be in thecircle, I’m not doing it. … I rather just kept it in the circle; people I trust, you know”.

One must always keep in mind that it is the totality of the evidence that is to be considered. Considered in isolation, a single interceptedcommunication might seem very vague. However, when considered in the context of the background and breadth of Mr. Grant'sactivities, evident from the intercepted communications as a whole, a jury could find the same communication quite clear. With respectto this communication, Officer Michael Press expressed the opinion that Mr. Grant and the unknown male were using the words, "thatthing" to refer to a firearm.

There is in my view some evidence upon which a reasonable jury, properly instructed could find that Mr. Grant and the unknown malewere discussing a firearm. It is much less clear that Mr. Grant agreed to traffic (transfer) the firearm. However, there is some evidenceupon which the jury can decide the issue. Mr. Grant is therefore ordered to stand trial on this charge. (

f) Charge No. 11: Conspiracy to trafficking in cocaine on March 26, 2010. The offence of conspiracy is set out in s. 465 of the Criminal Code. The

section is reproduced in Appendix “B” at

part 12. The Crown must prove three essential elements in order to establish the offence of conspiracy. They are: i. that there was a conspiracy between two or more persons; ii. that the conspiracy was to commit the indictable offence alleged; and iii. that the accused was a member of that conspiracy. The first element requires proof that there was a conspiracy between two or more persons. A conspiracy is an agreement between atleast two people to commit a crime. The essence of a conspiracy is the agreement.

An agreement is the coming together or meeting ofthe minds of two or more people who have a common object or purpose. Each person intends and expresses, by words, action, or both,the same purpose or object. The agreement does not have to be something formal, like a written document, or cover every detail abouthow the agreement is to be carried out and by whom. The agreement does not have to say how long it is to continue, nor does it have tobe successfully carried out.

The Crown does not have to prove that everyone who participated in the agreement knew everyone else, orfor that matter that everybody came together at one time and place to put the agreement together. It does not matter that everyone whoparticipated in the agreement has not been charged, or has not been named or described in some other way in the Information. The second element requires proof that the conspiracy was to commit an indictable offence. This element is concerned with thepurpose or object of the agreement. What crime did the members of the conspiracy agree to commit?

Was it the indictable offencealleged? The crime of conspiracy is complete when the members agree to commit the crime. It is not necessary for the Crown to provethat the crime itself, the indictable offence alleged, was actually committed. To answer this question, one must consider all thecircumstances, including but not only what each person alleged to be a member of that conspiracy did or did not say and did or did not doas well as how he did or did not do it. The third element requires proof that the accused was a member of the conspiracy. There are two steps to decide this question.

First, onemust consider what the accused said and did. The second, which one only considers if satisfied from the particular accused’s own wordsand conduct that he was probably a member of the conspiracy, requires one to consider what the other members of the conspiracy saidand did in furtherance of their agreement. See, R. V. Root, 2008 ONCA 869 , [2008] O.J. No. 5214 at paragraphs 65 – 72. Seealso, Manning, Mewett & Sakoff at pages 309 – 312. The foundation for this charge of conspiracy to traffic in cocaine lies in an intercepted telephone communication of March 6, 2010 andthe expert opinion of D.C. Rozario.

The intercepted communication appears in the evidence as LCN 1143. The call involves an unknown female identified by Mr. Grant as“Jada”. The thrust of the call is that “Jada” wants to get into the business of trafficking in cocaine. She wants Mr. Grant to teach her thebusiness. It is open to a jury to find that Mr. Grant and “Jada” agreed to work together. D.C. Rozario opined that Mr. Grant and “Jada” were discussing the selling of cocaine.

Given the nature of the call and the opinion of D.C. Rozario, a reasonable jury, properly instructed, could find that Mr. Grant and “Jada” conspired, agreed, to traffic cocaine. Mr. Grant is ordered to stand trial on this charge. (

g) Charge No. 12: Conspiracy to attempt to obstruct justice on March 21, 2010. The applicable

section of the Criminal Code and the essential elements of conspiracy are as set out for Charge No. 11 immediately above. The Criminal Code provisions concerning obstructing justice are set out in

part 8 of Appendix “B”. It appears from s. 139 (2) that every one who attempts in any manner other than a manner described subsection (1) to “…obstruct, pervert or defeat the course of justice” is guilty of an offence. This charge arises from an intercepted telephone call initiated by an unknown male to Mr. Grant’s phone. The unknown male initially speaks to Baldwin Junius and the phone is then passed to Mr. Grant. This intercepted communication appears in the evidence as LCN 1317. After the phone is passed to Mr. Grant, the unknown male says that he is “stressed out”; he wants Mr. Grant’s help. He tells Mr.

Grant that he had “talked to that little short informer bitch”. The unknown male tells Mr. Grant that his “wifey” would meet Mr. Grant and “drive [him] to meet that chick”. The unknown male says to Mr. Grant, “I just want you to go talk to her and * tell * her exactly what to say”. Mr. Grant agrees, “…All right, that’s no problem… I’ll deal with that.” The Crown submits that, given the references to “that little informer bitch”, there is evidence based on which a reasonable jury, properly instructed, could find that, in agreeing to “…talk to her and * tell * her exactly what to say…”, Mr.

Grant conspired with the unknown male to attempt to obstruct the course of justice. The evidence available to the Crown in support of this charge is far from compelling. However, there is some evidence upon which a reasonable jury, properly instructed, could, not must, infer that the call was in reference to a court proceeding and that Mr. Grant agreed to tell a witness what to say. He is therefore ordered to stand trial on this charge. (

h) Charge No. 13: Trafficking in ammunition on March 27 – 30, 2010. Counsel to Mr. Grant does not contest that his client be ordered to stand trial on this charge. While considering some of the specific charges in Appendix “A”, it is necessary to have an appreciation of the totality of the evidence. Therefore, even though it is conceded that there be an order to stand trial, the evidence in support of the charge is summarized below. This charge arises from intercepted telephone communications between Mr. Grant and an unknown male. The intercepted telephone communications were on March 27 and 30, 2010.

The call of March 27, 2010 appears in the evidence as LCN1406 and the call of March 30, 2010 appears in the evidence of LCN1424. In the first call, the unknown male inquires about the price of a “rivy”, a “rizzy” and a “snuzzub”. Mr. Grant agrees to make inquiries into the price. In his report, Officer Michael Press provided the opinion that Mr. Grant and the unknown male were referring to a revolver and a snubnose firearm. In the first call, the unknown male also solicited from Mr. Grant “two-fifths grains”. Mr. Grant agreed to provide them. In his opinion,

Officer Press stated that Mr. Grant and the unknown male were referring to 25 calibre ammunition. In the second call, being March 30, 2010, the unknown male again called Mr. Grant inquiring into the price. Mr. Grant advised the unknown caller that he would obtain the prices later in the day. The unknown caller told Mr. Grant he was interested in a “rivy”. Mr. Grant made inquiries about the size. Officer Press opined that Mr. Grant and the unknown male were discussing a revolver handgun.

Given the intercepted communications, and the opinion evidence of Officer Press, there is some evidence upon which a reasonable jury could reasonably infer that Mr. Grant had agreed to supply the unknown male with ammunition. Mr. Grant is therefore ordered to stand trial on this charge. (

i) Charge No. 14: Trafficking in a firearm during the period April 2 – 21, 2010. Counsel to Mr. Grant does not contest that his client be ordered to stand trial on this charge. This charge arises from four intercepted telephone communications on April 2, 3, 14, and 21, 2010. They appear in the evidence as LCN 1468, LCN 2409, LCN 1618, and LCN 1648, respectively. The picture of this offence arises from the first call. An unknown female, “Amanda”, tells Mr. Grant that she has a “problem” and needs “to get [her] hand on a hand-thing.” She tells Mr. Grant that “cash is no problem”. Mr.

Grant agreed to meet “Amanda” in person. In the third call, Amanda tells Mr. Grant that her situation is becoming “serious” and that she needs to see him as soon as possible. Officer Michael Press provided the opinion that Mr. Grant and “Amanda” were discussing a handgun. As with all of these calls, when considered in the context of the totality of the evidence heard at the preliminary inquiry, they provide a more fulsome basis for the opinion of Officer Press. There is evidence upon which a reasonable jury, properly instructed, could find that Mr. Grant trafficked in a firearm.

He is ordered to stand trial on this charge. (

j) Charge No. 15: Trafficking in cocaine on April 26, 2010. Counsel to Mr. Grant does not contest that his client be ordered to stand trial on this charge. The evidence of D.C. Davies (August 15, 2011) was that, while acting in an undercover capacity, he spoke by phone with, and subsequently met, Mr. Grant near the corner of Exford Road and Birchmount Road in Scarborough. Mr. Grant provided him with 1.4 grams of crack cocaine in exchange for $120.00 in cash. D.C. Davies listened to the telephone calls between himself and Mr. Grant setting up this purchase. D.C. Davies identified both his voice and Mr.

Grant’s voice. D.C. Davies viewed a photographic line up and identified Mr. Grant as the person who had sold him the crack cocaine. D.C. Davies also identified Mr. Grant in court. There is evidence upon which a reasonable jury, properly instructed, could find that Mr. Grant trafficked cocaine to the undercover officer. He is ordered to stand trial on this charge. ( 2 ) Baldwin Junius

The Crown submits that Mr. Junius be ordered to stand trial on Charge Nos. 16 through 25 in Appendix “A”. Three of those charges (Nos. 16, 21, and 23) involve an alleged criminal organization. Those charges are considered in

Part 6, following. The remaining charges against Mr. Junius may be conveniently considered if organized chronologically in groups. They would be as follows: (

a) Charge Nos. 17 – 18: Trafficking cocaine and trafficking marijuana in the period January 28 to May 3, 2010; (

b) Charge No. 19: Trafficking in ammunition in the period February 22 to May 2, 2010; (

c) Charge No. 20: Counselling the commission of the offence of assault on February 25, 2010; (

d) Charge No. 22: Counselling the commission of the offence of trafficking in marijuana on March 15, 2010; (

e) Charge Nos. 24 – 25: Two charges of possession of cocaine for the purpose of trafficking on May 4, 2010. A brief discussion and analysis of each group of charges follows: (

a) Charge Nos. 17 – 18: Trafficking cocaine and trafficking marijuana in the period January 28 to May 3, 2010; The definition of “trafficking” is found in s. 2(1) of the CDSA. The offence of trafficking in a substance appears in s. 5(1) of the CDSA. Those sections are reproduced in parts 18 and 19, respectively, of Appendix “B”. The essential elements of the offence of trafficking were summarized in Part 3(4) above. The Crown relied on a multitude of intercepted communications in the period January 28 to May 3, 2010, in order to prove these two charges against both Mr. Grant and Mr. Junius. Mr.

Grant subsequently did not oppose an order to stand trial on the comparable charges. The intercepted communications involve numerous speakers, including Mr. Junius. Rather than regurgitating each call, the following Table will serve to highlight the relevant evidence in these intercepted communications. However, for the purpose of deciding whether Mr. Junius should be ordered to stand trial on these charges, I have considered here only the intercepted communications involving Mr. Junius. The intercepted communications involve street and coded language in relation to drugs.

The Crown relies on the opinion evidence of D.C. Rozario to explain the meaning. The Table follows, DATE

(2010) LCN # PARTIES TERMS USED ROZARIO OPINION

February 15 0508 Junius & Grant Kush BC Dime marijuana marijuana from British Columbia $15 February 18 2092 Junius & Grant The ink The beautiful crack cocaine that was being dyed March 5 1111 Grant & Karam Chip me half a chizzle (ph) Kush Believed to be 1.75 grams of cocaine marijuana March 6 2148 Grant & Karam Dinner Drugs March 7 1150 Grant & Karam Chip a half a chizzle (ph) Whose food... Whose dinner...

Half a ball of crack cocaine Drugs March 12 1213 Junius & Karam Reference to bags in the freezer Reference is to a "stash house" March 12 1214 Junius & Karam Reference to, “I left my things in the freezer” Reference is to a "stash house" March 14 1233 Junius & Karam Kush The pink shit Cubes marijuana crack cocaine April 3 1476 Grant & Junius Weed Kush The best thing marijuana marijuana Best crack cocaine April 4 2413 Grant & Junius Four nip Believed to be an amount of crack April 6 2423 Grant & Unknown Male (Billy) Hall Ball/100 1.75 grams of crack cocaine - $100 April 6 1519 Grant & Junius Weed Bounce marijuana Ounce April 9 2460 Grant & Junius Kush marijuana April 20 2562 Grant & Karam Kush marijuana April 24 1684 Junius & Unknown Female ...[G]et a three... … a thirty piece $30 of crack cocaine April 29 1743 Junius & Grant Dinner Has customers April 29 1744 Junius & Grant Bring a legit of crack cocaine crack cocaine The essential submission of the Crown in relation to these charges is that an individual intercepted communication, considered in isolation, may seem of little value in proving the charges alleged.

However, when the intercepted communications are considered in their totality, a more clear picture emerges of Mr. Junius' activity. D.C. Rozario reviewed and analysed the above-noted calls and provided opinion evidence, both in his report and in his oral testimony. His opinion of the meaning of the coded terms used appears in the Table above, right column.

If believed, the evidence in the intercepted communications in which Mr. Junius is a party and the opinion of D.C. Rozario would enable a reasonable jury, properly instructed, to find that Mr. Junius offered to sell and transport both cocaine and marijuana in the period January 28 to May 3, 2010. He is therefore ordered to stand trial on these charges. (

b) Charge No. 19: Trafficking in Ammunition in the period February 22 to May 2, 2010; This offence appears in s. 99(1) of the Criminal Code , reproduced in Appendix "B" at

part 6. The essential elements of this offence were summarized above in the analysis of Charge No. 6 concerning Mr. Grant. In support of this charge, the Crown relies on intercepted telephone communications between Mr. Junius and one Ashley Pickens. It appears from LCN 0833, February 22, 2010, that Mr. Junius called Ms. Pickens at 416-490-9963. He asked, ‘Yow, can I put my ahm shoes in the garage right now?’ Ms. Pickens replied, ‘Ahm no, cars in the garage. … You have to park on the side.’ Mr. Junius stated, ‘I said my shoes.’ Ms. Pickens responded, ‘Oh. … Ahm, yeah you can bring them.’ Mr.

Junius advised, ‘I’m not coming in, I’m just gonna put my shoes in the garage.’ (LCN 0833, lines 64 – 80) In his report of July 25, 2011, Officer Press provided the opinion that Mr. Junius, in the above call, was referring to a firearm. See, Press report, page 22. On February 26, 2010, Mr. Junius received a call from Ms. Pickens. Throughout the conversation, Ms. Pickens referred to Mr. Junius as ‘Droopy’. During the call, Mr. Junius stated ‘Why can’t you fucking respect the fact that I don’t wanna talk you you? … You’re burning up my battery and I don’t have a charger. Why can’t you respect that?

And I’m walking around with thousands of dollars on me and nine times out of ten…my strap. What are you gonna tell me bro, when I go to fucking jail and I do seven years? *Oh, I’m so sorry that I stressed you out that day?*’ (LCN 0985, lines 218 – 232) In his report of July 25, 2011, Officer Press provided the opinion that Mr. Junius was advising that he carries a firearm. See, Press report, page 24. Subsequently, on May 2, 2010, Mr. Junius received a call from a male identified as "CK". CK stated, '… yow, you see the same thing we were talking about there?' Mr.

Junius replied, 'Yeah.' CK advised, 'Ahm my nigger said…just called me and said the man has…he has cheddar for it right now.' Mr. Junius asked, 'Okay what…how much does he…does he want?" CK answered, 'I think he say he has two five and…he’s asking if there’s…is it any…you know, there is things come with it? …I think he has twenty-five and he’s asking if you know…if grains come with it.' Mr. Junius responded, ‘Okay, okay, okay I’ll talk to you later.’ (LCN 1830, lines 50 – 84) Officer Press provided the opinion that Mr. Junius and CK were discussing the supply of ammunition. See, Press report, pages 37 – 38.

In addition to the intercepted communications, there is evidence linking Mr. Junius with Ashley Pickens and with the residence at 7 Vega Starway, Toronto. A bullet was seized at 7 Vega Starway, Toronto in the search on take-down day on May 4, 2010. Considering the above, and if believed, there is evidence capable of supporting an inference that Mr. Junius offered to supply ammunition to an unknown male. A reasonable jury, properly instructed, could find that Mr. Junius made an 'offer' to 'transfer', in other words, that he trafficked in ammunition. He is therefore ordered to stand trial on this charge. (

c) Charge No. 20: Counselling the commission of the offence of assault on February 25, 2010; The essence of this charge as alleged by the Crown is that on February 25, 2010, Mr. Junius spoke by telephone with an unknown person in jail and counselled (instructed) the unknown person to assault a number of rival gang members or persons who had shown disrespect to Falstaff. The counselling offence alleged is pursuant to s. 464 of the Criminal Code , reproduced in Appendix "B" at

part 11. The essential elements were summarized above in the analysis of Charge No. 4 in relation to Mr. Grant.

The relevant intercepted communication appears in the evidence as LCN 0944. Mr. Junius received the call from the unknown male, by means of a three-way call with the unknown male’s mother. The unknown male tells Mr. Junius, ‘I’m in the Hurst [Maplehurst Correctional Complex] right now’ in relation to ‘some bogus Fail to Comply shit’. They speak of other individuals known to them and who were present in different ranges within the facility. In the course of their conversation, Mr.

Junius asks the unknown male, 'okay fuck, you could do a little favour for me?' The unknown male responded, ‘you need somebody to get dust?’ (lines 213 – 221). D.C. Oliver provided the opinion that the expression ‘get dust’ means ‘assaulted’. (Oliver report, p. 70) Mr.

Junius then asks the unknown male, ‘If you see Fangs, *bust* his face please.’ (line 278) and later in the conversation, ‘If you see Time Bomb, jump on his face too.’ (lines 300 – 301) and later, 'If you see this little faggot named Chestnut … kick him in his fucking face if you see him.’ (lines 321 – 349) Throughout the above-noted portions of the conversation, Mr. Junius and the unknown male made reference to an apparent rivalry between ‘staff’ and ‘town’. The opinion of D.C. Oliver was that Mr.

Junius was advising the unknown male to assault either rival gang members or individuals who had shown disrespect to Falstaff. (Oliver report, p. 72) If believed, there is some evidence that Mr. Junius, by directing the unknown male to assault another person, counselled the unknown male to commit the indictable offence of assault. There is some evidence upon which a reasonable jury, properly instructed, could find Mr. Junius guilty of Charge No. 20. He is therefore ordered to stand trial on this charge. (

d) Charge No. 22: Counselling trafficking in marijuana on March 15, 2010. The theory of the Crown in relation to this charge is that on March 15, 2010, Mr. Junius instructed an unknown female to take possession of, and hide, a quantity of marijuana to av

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