2011 QCCA 1957, 2011 QCCA 1957

Unofficial English Translation Venneri c. R. 2011 QCCA 1957 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004385-090 500-10-004428-098 500-10-004437-099 (500-01-003123-061) (500-01-003125-066) (500-01-014941-063) (SEQ.ACC. 023/023) (SEQ.ACC. 001/0001) (SEQ.ACC. 001/001) DATE: October 6, 2011 CORAM: THE HONOURABLE MARC BEAUREGARD, J.A. ANDRÉ ROCHON, J.A. NICOLE DUVAL HESLER, J.A. CARMELO VENNERI APPELLANT - Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] THE COURT: On two appeals from a judgment of conviction by the Court of Quebec, Criminal and Penal Division, District of Montreal (the Honourable Judge Carol St-Cyr), rendered on March 6, 2009, and on the appeal from a sentence imposed subsequently on June 12, 2009, by the Court of Quebec, Criminal and Penal Division, District of Montreal (the Honourable Judge Carol St-Cyr). [ 2 ] For the reasons of Beauregard, J.A. with which Rochon, J.A. agrees; [ 3 ] DISMISSES the appeal from the convictions on counts 1, 2, 8 and 9; [ 4 ] ALLOWS the appeal in part; [ 5 ] FINDS the appellant not guilty of the offences referred to in counts 3, 4 and 5; [ 6 ] ORDERS a conditional stay of proceedings on count 7; [ 7 ] QUASHES the sentences imposed for the offences referred to in counts 3, 4, 5, and 7; [ 8 ] REFERS the file back to the trial judge so that, after a hearing, he may impose a new sentence on the appellant for the offences referred to in counts 1, 2, 8 and 9; [ 9 ] DECLARES the accused's motion for leave to appeal from these sentences to be moot; [ 10 ] Duval Hesler, J.A., for her part, would have dismissed the appeal for other reasons.

MARC BEAUREGARD, J.A. ANDRÉ ROCHON, J.A. NICOLE DUVAL HESLER, J.A.

Mtre Marie-Hélène Giroux MONTEROSSO, GIROUX For the appellant in the appeals from the conviction and the sentence and Mtre Julie Déziel MONTEROSSO, GIROUX For the appellant in the appeal from the sentence Mtre Marc Cigana and Mtre Gaston Paul Langevin Criminal and penal prosecutors For the respondent Date of hearing: May 4, 2011 REASONS OF BEAUREGARD , J.A. [ 11 ] I have read the reasons of my colleague Duval Hesler, J.A. [ 12 ] The appellant was charged on ten counts relating primarily to drug trafficking. The counts were numbered 1 to 11, omitting number 6.

He was found not guilty on counts 10 and 11 (possession of methamphetamine for the purpose of trafficking and possession of cannabis resin). - 0 - [ 13 ] He was convicted of the following eight offences for acts committed between July 13, 2005, and March 14, 2006: Count 1 Did conspire with Jean-Daniel Blais, Louis Pasquin, Carl Savard, Michael Russell, Louis-Alain Dauphin, and seventeen other persons, to traffic in controlled substances in violation of paragraph 5(1)(3)(

a) of the Controlled Drugs and Substances Act , thereby committing the indictable offence set out in section 465(1) (

c) of the Criminal Code . Count 2 Did traffic in controlled substances or in substances represented or held out to be such substances, thereby committing the indictable offence set out in section 5(1)(3)(

a) of the same Act . Count 3 Did take

part in such trafficking at the direction of or in association with a criminal organization, thereby committing the indictable offence set out in

section 467.12(1) of the Criminal Code . Count 4 Did have, for the purposes of trafficking, possession of a substance included in

Schedule 1, thereby committing the indictable offence set out in section 5(2)(3)(

a) of the Controlled Drugs and Substances Act. Count 5 As part of a criminal organization, did knowingly instruct, directly or indirectly, a person to commit an offence under an Act of Parliament for the benefit of, at the direction of, or in association with, the criminal organization, thereby committing the indictable offence set out in

section 467.13(1) of the Criminal Code . Count 7 On or about March 14, 2006, at Laval, District of Laval, did have in his possession a restricted firearm, thereby committing the indictable offence set out in section 92(2) (3) of the Criminal Code . Count 8 On or about March 14, 2006, at Laval, District of Laval, did have in his possession an unloaded firearm, with readily accessible ammunition, thereby committing the indictable offence set out in section 95(2) (

a) of the Criminal Code . Count 9 On or about March 14, 2006, at Laval, District of Laval, did have cocaine in his possession for the purpose of trafficking, thereby committing the indictable offence set out in section 5(2)(3)(

a) of the Controlled Drugs and Substances Act. - 0 - [ 14 ] The appellant was tried together with two persons referred to in count 1, Jean-Daniel Blais and Louis Pasquin. [ 15 ] After Pasquin testified in his defence, the appellant asked the judge to allow him to be tried separately. He argued that Pasquin, in his testimony, had stated that some of the persons referred to in count 1 had admitted to him that they had taken

part in drug trafficking together, and that this evidence, which could not be set up against him, was prejudicial to him. The judge rejected the motion on the grounds that Pasquin's testimony was admissible to establish the existence of a conspiracy. [ 16 ] The appellant, in agreement on this point, stated the following in his factum: [ translation ]

Although, in principle, the judge may take this information into account only to establish the existence of a conspiracy, we fear that it would be very arduous to ignore this information when interpreting the evidence of conversations in which the appellant was involved. [ 17 ] This submission is without merit because a judge who properly directed himself in law would have been able to distinguish between evidence that was admissible against the appellant and that which was not. [ 18 ] The appellant adds: [ translation ] In addition, in his arguments, counsel for the appellant at trial stated that the contents of the co-accused Pasquin's defence had prevented the appellant from raising certain defences, namely, that the offence was actually trafficking in another type of drug or in stolen credit cards. [ 19 ] This argument is rather curious, since the appellant suggests that Pasquin's testimony had prevented him from making an argument which, on the evidence as a whole (with the exception of the admission reported by Pasquin), is clearly false. [ 20 ] Finally, the appellant adds: [ translation ] Although we are familiar with the Carter test, we maintain that it should not be possible for evidence arising from the invasion of solicitor-client privilege regarding communications with alleged co-conspirators to be set up against a co-accused.

The interests of justice – namely, fairness, the search for justice, collective interests, and safeguarding the reputation of justice – require that this unique situation be corrected and not be allowed to be repeated. [ 21 ] The submission is without merit: holding a joint trial in no way infringed on any of the interests referred to by the appellant. - 0 - [ 22 ] Since, for the reasons I just mentioned, it is not appropriate to order a new trial, the conviction for the offence referred to in count 2 shall be upheld because the appellant raises no argument against this conviction in his notice of appeal or in his factum. - 0 - [ 23 ] The appellant's submission that the convictions for the offences referred to in counts 7, 8 and 9 are unreasonable and based solely on conjecture is unfounded.

On the basis of the circumstantial evidence he noted, the judge could reasonably conclude, beyond a reasonable doubt, that the weapon, the ammunition, and the cocaine found in the appellant's residence were in his possession and that he had possession of the cocaine for the purposes of trafficking.

It should be noted that the appellant did not testify to raise a reasonable doubt as to any of the offences referred to in counts 7, 8 and 9. because count 7 duplicates count 8, a conditional stay of proceedings should be ordered on count 7. - 0 - [ 24 ] The appellant's main argument is that the wording of the judgment on counts 1, 4 and 5 is unsatisfactory. The appellant adds that, in any event, the convictions on these three counts were unreasonable. The appellant does not formally make these complaints with respect to count 3, but the criticism is implicit.

Count 1 – Conspiracy [ 25 ] There is no doubt that the appellant is a drug dealer. There is no doubt that he bought drugs from a certain Louis-Alain Dauphin, whose supplier seems to have been Michael Russell, for whom Mario Gauthier acted as henchman.

There is also no doubt that, after a certain period of time, the appellant, with the assistance of Jean-Daniel Blais, became Dauphin's supplier. [ 26 ] That being the case, I understand why the judge did not find that the appellant conspired with Russell and Dauphin to import cocaine from Vancouver and to traffic this drug with them, which would have been a classic case of conspiracy. [ 27 ] In fact, the judge does not refer to any evidence demonstrating that the appellant was anything other than one of Dauphin's regular buyers and, later, one of his suppliers. [ 28 ] Rather, the judge concluded that, by buying cocaine from Dauphin that was not for his own personal use and by later becoming Dauphin's cocaine supplier, the appellant, along with Dauphin, the supplier, and the supplier’s acolytes, and with the assistance of Jean- Daniel Blais, was part of a vast conspiracy which existed for the general purpose of trafficking cocaine.

The trial judge stated the following: [ translation ] Allegedly, throughout this entire period, Venneri was first a purchaser and then a supplier in this organization. When we consider the amount of drugs at issue, Venneri's purchases greatly exceeded amounts for personal consumption, and the drugs obtained were, without a shadow of a doubt, intended for resale. The accused was thus taking

part in the conspiracy to traffic, just as he did once he became the supplier.

[ 29 ] This was in fact the prosecution's submission during its oral argument at trial. [ 30 ] The submission is based on the majority judgment in Sokoloski v.

The Queen , [1] which has generated a great deal of commentary and which is still the leading case despite the criticism that has been levelled against it. [ 31 ] With respect, however, while Sokoloski justifies the judge's conclusion that the appellant conspired with Dauphin, Gauthier and Blais, I am of the view that it stretches the Sokoloski doctrine too far to claim that the appellant also conspired with Russell who, as we have seen, was Dauphin's supplier. [ 32 ] In any event, since the appellant conspired with Dauphin, Gauthier, and Blais, the appeal from the conviction on the offence referred to in count 1 must be dismissed.

Count 4 - Possession of narcotics for the purposes of trafficking [ 33 ] The appellant is correct to state that the judgment is not satisfying in this regard. In his view, when the judge found the appellant guilty of possessing narcotics for the purpose of trafficking, he had in mind the seizure of cocaine at the appellant's residence in March 2006, which duplicates the offence alleged in count 9. For its part, the prosecution argues that the judge was thinking of the seizures on October 13 and 14, 2005, at locations other than the appellant's residence.

In paragraph 35 of its factum, the prosecution concedes that the judge [ translation ] "could have provided more reasons for his finding on this count". The prosecution's attempt to fill in the gaps in the judgment in this respect is not successful. There is no evidence establishing beyond a reasonable doubt that the cocaine found at Robert Marchand and Jean Bilodeau's residence on October 13 and 14, 2005, was the joint possession of these gentlemen and the appellant. Bilodeau was Dauphin’s henchman, not the appellant’s, and it does not appear that Marchand was an associate or employee of the appellant.

The appellant was not Dauphin's only client, and it cannot be found beyond any reasonable doubt that the drugs seized on October 13 and 14, 2005, were intended for him. The fact that Dauphin conspired with the appellant, according to Sokiloski , so that the appellant would engage in trafficking does not ground the conclusion that the appellant had joint possession of all of the drugs that were in the physical possession of Dauphin or his associates or underlings. [ 34 ] Therefore, the appellant should be acquitted of the offence referred to in count 4.

Count 3 – Trafficking for the profit of a criminal organization [ 35 ] In paragraph [370] of his judgment, the judge stated the following: [ translation ] In the case of Carmelo Venneri, the evidence reveals his direct involvement as of July 20, 2005. His numerous conversations with Dauphin, the fact that he knows Russell, his role as buyer and supplier for the group, and the trafficking in which he unquestionably took part, demonstrate that he is a full member of the organization led by Dauphin.

Not only did he traffic in drugs for the profit of this organization, he ordered Jean-Daniel Blais to get involved as well. [ 36 ] In my humble opinion, neither the fact that he bought drugs from Dauphin, who spoke of his supplier Russell, nor the fact that he in turn sold drugs to Dauphin means that the appellant became [ translation ] "a full member of the organization led by Dauphin". Once again, Dauphin was buying his supplies from Russell and selling the drugs to different buyers, including the appellant.

The appellant did not operate his illegal business under the direction of a criminal organization allegedly led by Dauphin, or for the profit of or in association with such an organization. Although Sokoloski makes it possible to say that the appellant conspired with Dauphin, it would stretch the doctrine in that case too far to apply it for the purposes of

section 467.12(1) of the Criminal Code . It seems to me that a criminal organization within the meaning of

section 467.1(1) of the Criminal Code is a more structured group than the foursome in this case, and one that has as an objective the commission of serious indictable offences. According to this provision, a criminal organization is not an unintentional group existing because of the mere fact that three or more people are involved in a conspiracy.

Count 5 – As part of a criminal organization, the appellant ordered Blais to commit an offence for the profit of, under the direction of, or in association with the organization [ 37 ] Having found that the appellant was not part of Dauphin's organization, I must also find that the appellant is not guilty of the offence referred to in count 5.

It is true that the appellant gave Blais orders for his own purposes, not for the purposes of a criminal organization which, under the Code , is an organization comprising at least three members. [ 38 ] In short, I would dismiss the appeal from the convictions on counts 1, 2, 8, and 9, order a conditional stay of proceedings on count 7, allow the appeal in part, and acquit the appellant of the offences referred to in counts 3, 4, and 5. [ 39 ] In sentencing the appellant, the judge credited him fifteen months' imprisonment for pre-sentencing custody. [ 40 ] The judge then imposed the following sentences: Count 1: Thirty-six months' detention; Count 2: Thirty-six months' detention; Count 3: Eighteen months' detention, consecutive to all other sentences; Count 4: Thirty-six months' detention; Count 5: Eighteen months' detention, consecutive to all other sentences;

Count 7: Twelve months' detention; Count 8: Twelve months' detention; Count 9: Eighteen months' detention. [41] The judge then added, [translation], "for a total of seventy-two months' incarceration as of today". [42] Since I would allow in part the appeal from the convictions, with the result that the sentences for counts 3, 4, 5, and 7 should bestruck, but since the trial judge certainly applied paragraph (

c) of

section 718.2 Cr. C. in sentencing so that the global length of thesentences would not be excessive, it is appropriate that the case be referred back to him so that, after a new hearing, he may pass a newsentence for the offences referred to in counts 1, 2, 8, and 9, given that the sentences referred to above are set aside. [43] Therefore, I would allow in part the appeal from the convictions, overturn in part the judgment under appeal, acquit the accusedof the offences alleged in counts 3, 4, and 5, and order a conditional stay of proceedings on count 7.

I would also strike the sentencesimposed for the offences alleged in counts 3, 4, 5, and 7, refer the file back to the trial judge so that, after a hearing, he may pass a newsentence for the offences alleged in counts 1, 2, 8, and 9. Finally, I would declare the accused's appeal from the sentences moot. MARC BEAUREGARD, J.A. REASONS OF DUVAL HESLER, J.A. [44] The appellant and two co-accused were convicted on a number of joint and individual counts related to drug trafficking(cocaine) for the benefit of a criminal organization led by Louis-Alain Dauphin.

To better understand this file, here is a list of thesecounts, boiled down to the simplest elements relating to the appellant. Count 1. Conspiracy for trafficking in narcotics with eighteen persons named in the indictment Count 2. Trafficking in narcotics Count 3. Trafficking in narcotics for the profit of a criminal organization Count 4. Possession for the purpose of trafficking Count 5. Being part of a criminal organization, instructing a person to commit an indictable offence Count 7. Possession of a restricted firearm without a license Count 8.

Possession of a firearm with readily accessible ammunition Count 9. Possession of cocaine for the purpose of trafficking [45] Having been convicted of these offences (and acquitted of possession of methamphetamine for the purpose of trafficking andpossession of cannabis resin), the appellant was sentenced to a total of seven years and three months in prison, taking into account histime in pre-sentencing custody, which was equivalent to fifteen months. The defence asked for a sentence between five and six years,while the Crown sought nine years.

This sentence is also appealed. [46] The trial judge's narrative of the facts is complete. Rather, the appellant's criticism targets the results of his analysis. Hesubmits the following grounds of appeal: on counts 1, 4, and 5, that the reasons for judgment were insufficient; on counts 1, 5, 7, and 9,that the verdict was unreasonable.

Finally, he submits that the trial judge erred in dismissing the motion to be tried separately. [47] The greater part of the evidence in the file consists of wiretap recordings of several suspects, including the appellant, and wassupplemented by surveillance records and searches carried out in the context of the Sûreté du Québec’s "Piranha" operation, which led tocharges against twenty-three individuals. [48] I will now address the grounds of appeal. 1. Insufficiency of reasons on counts 1, 4, and 5 [49] In R. v.

V.G., a judgment rendered by this Court, Côté J.A., referring to key judgments of the Supreme Court, described theapproach to be adopted by the Court of Appeal when dealing with the issue of insufficiency of reasons: [translation] 12 In R. v. Dinardo, 2008 SCC 24 , [2008] 1 S.C.R. 788, the Supreme Court notes the criteria applying to the insufficiency ofreasons, reiterating that the reasons exist in order to justify and explain the result at which the trial judge arrives.

While an appellatecourt must show great deference with respect to credibility findings, it must also be able to verify whether the reasons respond insubstance to the issues in dispute. 13 More recently, in R. v. R.E.M., 2008 SCC 51 , [2008] 3 S.C.R. 3, McLachlin C.J., writing for the Court, reiterates the

existence of the obligation to provide reasons for judgment, but also notes that this obligation should be approached functionally and contextually. The recommended approach does not require judges to carry out a detailed review of all the evidence and applicable rules of law. On the other hand, the judge's conclusions and reasoning must explain the basis of his or her verdict.

She writes: [25] The functional approach advocated in Sheppard suggests that what is required are reasons sufficient to perform the functions reasons serve — to inform the parties of the basis of the verdict, to provide public accountability and to permit meaningful appeal. The functional approach does not require more than will accomplish these objectives.

Rather, reasons will be inadequate only where their objectives are not attained; otherwise, an appeal does not lie on the ground of insufficiency of reasons. ... ... [41] The contextual approach to assessing the sufficiency of reasons recognizes that the trial process, including the trial judge’s reasons, is a dynamic process, in which the evidence, counsel and the judge play different but imbricated roles. Whether the trial judge’s reasons for judgment are sufficient must be judged in the full context of how the trial has unfolded.

The question is whether the reasons, viewed in light of the record and counsel’s submissions on the live issues presented by the case, explain why the decision was reached, by establishing a logical connection between the evidence and the law on the one hand, and the verdict on the other. ... [55] The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context.

It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. ... [2] [ 50 ] The impugned judgment provides ample explanation for the verdicts. Moreover, the judgment contains numerous references to the evidence, making it easy to verify whether the evidence supports the trial judge's findings of fact, which it does.

To be frank, I have trouble understanding why, in this case, this ground is distinct from that of the unreasonable verdict, which is also raised. [ 51 ] The evidence connecting the appellant to the network led by Dauphin consists primarily of several conversations and meetings between Dauphin and Venneri, the subject of which could only have been delivery and payment of drugs. For example, a series of conversations intercepted between January 15 and 23, 2006, demonstrates that Dauphin asked the appellant Venneri to supply a client by the name of Savard. On January 21, the delivery was made.

How, then, can it be stated that Venneri was not part of Dauphin's organization? 2. The reasonableness of the verdicts [ 52 ] At the hearing, the appellant essentially admitted that, after February of 2006, his role as a purchaser had become that of a dealer. According to him, the fact that he had been nothing more than a purchaser until then makes it impossible to find that he took

part in an agreement to sell drugs during the period referred to in the indictment. [ 53 ] The appellant does not deny that his role may have changed after the search and seizures that disrupted the supply for those from whom he had procured cocaine beforehand. He does not deny having agreed to become a supplier as of that moment . Essentially, he argues that the evidence does not show that he took

part in a conspiracy with the criminal organization from which he had, until then, bought his supplies. Rather, he submits, the evidence demonstrates that, as leader of his own organization, he was merely purchasing supplies from a larger organization for resale to his own customers, and that he had not reached a point where he needed more than that.

In other words, although he did try to become a supplier for the organization that was supplying him, which was greatly affected by the searches, this plan never came to be, and it cannot be found that the accused was a part of this organization or part of a conspiracy to supply that organization, since at all times he was nothing more than the directing mind of his own sub-network and never sought to be anything other than a purchaser. [ 54 ] With respect for the contrary opinion, I am unable to agree with such a convoluted application of the relevant statutory provisions to the facts of this case. [ 55 ] The trial judge summarized the evidence that could be directly set up against Venneri regarding his participation in the trafficking conspiracy. [ translation ] [352] Based on the premise that Dauphin, Russell, and Pasquin were involved in a conspiracy to traffic drugs, what can be said about the evidence that can be directly set up against Carmelo Venneri regarding his probable participation in this conspiracy? [353] From the beginning of the first wiretap operation, the conversations between him and Dauphin reveal the use of a coded language that likely refers to drugs. [354] Another conversation between him and Dauphin on September 1, in which he asked Dauphin if he had forgotten him and Dauphin answered that he was with [ translation ] "him", referring to Russell, and that he wanted [ translation ] "the paper" indicates that, at that moment, Venneri knew of the existence of Russell and that Dauphin wanted payment. [355] Recalling that one of the kilos of cocaine seized on October 14 was labelled "polar bear", Venneri's use of this term on Feburary 8 and on other occasions demonstrates his awareness of this particular type. [356] The physical surveillance of Venneri clearly established trafficking between him and a certain Lemaire on September 27.

The surveillances of February 26 and 28, during which he was observed with Dauphin, Blais, and Gauthier, ground the same inference.

[357] In the eyes of the Court, these few examples, combined with the other evidence directly implicating him, demonstrate much more than a mere probability of participation. Allegedly, throughout this entire period, Venneri was first a purchaser and then a supplier in this organization . When we consider the amount of drugs at issue, Venneri's purchases greatly exceeded amounts for personal consumption, and the drugs obtained were, without a shadow of a doubt, intended for resale. The accused was thus taking

part in the conspiracy to traffic, just as he did when he became the supplier. [358] Moreover, a consideration of the co-conspirators' behaviour and their discussions merely reinforces evidence that is already conclusive in itself, which the Court finds to be beyond a reasonable doubt. [359] With regard to the crime he is specifically accused of, nothing in the circumstantial evidence adduced justifies any conclusion other than that whereby Carmelo Venneri was in possession of incriminating objects found at his residence on March 14, 2006.

This is not conjecture or speculation, but a logical finding based on uncontradicted circumstantial evidence that gives rise to no other rational outcome. (Emphasis added) [ 56 ] It is worth pointing out that this passage from the judgment under appeal contains several references to the evidence adduced at trial.

In addition, among the objects seized in the search of the appellant's home were no less than thirteen cellular telephones and a fourteenth telephone, a firearm, rounds, ammunition, $48,520 in Canadian cash, and $3,000 in US cash, as well as nine grams of cocaine in four baby-bottle liner bags. [ 57 ] In my humble opinion, each of the verdicts rendered by the trial judge finds ample support in the evidence. This evidence leaves no room for a reasonable doubt as to whether the appellant took

part in the conspiracy, that is, in the drug trafficking network led by Dauphin. [ 58 ] As for the trial judge's analysis of the law, it appears consistent with the applicable principles. [ 59 ] In short, I can see nothing in the judgment under appeal justifying an intervention by this Court. 3. The application for separate trials [ 60 ] On the grounds relating to the order for separate trials that the appellant contends should have been made on the basis of solicitor-client privilege, it seems indubitable that this case falls within the so-called crime exception.

In the circumstances of this case, there has been no violation of solicitor-client privilege (as the trial judge clearly pointed out at pages 5756 to 5761 of the appellant's factum). 4. The sentence [ 61 ] As for the sentence, in light of the applicable factors, it does not appear to be dissimilar from sentences imposed in similar matters, and the appellant has not demonstrated that the judge committed any error in principle that would justify the intervention of the Court. [ 62 ] FOR THESE REASONS , I would dismiss the appeal from both the verdicts and the sentences. NICOLE DUVAL HESLER, J.A.