2013 QCCQ 868, 2013 QCCQ 868

R. c. Trute 2013 QCCQ 868 COURT OF QUEBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF LAVAL CITY OF LAVAL Criminal Division N°: 540-01-029722-066 DATE: January 25, 2013 ______________________________________________________________________ BEFORE THE HONOURABLE DOMINIQUE LAROCHELLE, J.C.Q. ______________________________________________________________________ THE QUEEN The Prosecution v. TORSTEN TRUTE The Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ 1.

THE CONTEXT [ 1 ] On 1 August 2006, as part of Project Cleopatra, the Royal Canadian Mounted Police carried out a series of searches and seizures. [ 2 ] The residence of the accused and a building of which he was signer of the lease and which he used as his business premises both were the object of these search and seizures. These searches were fruitful. In addition to drugs and material used to produce them, documents, firearms and munitions were seized. [ 3 ] The prosecution linked the accused to this criminality and filed extensive evidence at the trial.

This evidence was made up of items gathered during the seizures, wiretapped telephone conversations, and surveillance reports. The opinions of expert witnesses on firearms, drugs and organized crime complemented the evidence. These opinions, among other things, helped to interpret the coded language used to camouflage the narcotics transactions and to determine whether a given individual belonged or not to a criminal organization. [ 4 ] The accused testified. He denied his criminal involvement with respect to the drugs, weapons and munitions seized. He denied all participation in a criminal organization.

He admitted, however, having participated in the conspiracy to import pseudoephedrine, while denying his intention to use it afterwards for the production of methamphetamine. He brought no other witnesses to the stand. [ 5 ] The question comes down to determining whether the prosecution has met its burden of proving beyond a reasonable doubt the guilt of the accused on each of the counts. THE CHARGES [ 6 ] Torsten TRUTE is charged under the indictment bearing file numbers 540-01-029722-066 and 540-01-030049-061. [ 7 ] He is accused on the following counts [1] . 1 .

In Laval, district of Laval, in Montréal, district of Montréal, and elsewhere in Canada, between 1 January 2006 and 21 June 2006, Antal Babos, François Lessard, Paresh Patel, Sergio Piccirilli and Torsten TRUTE conspired together in order to commit criminal acts not covered by paragraphs

a) or

b) of section 465(1) of the Criminal Code , said conspiracy having 4 goals, to wit: (1) the importing of a substance listed in Appendix VI of the Controlled Drugs and Substances Act , (2) the production of a substance listed in Appendix III of the Controlled Drugs and Substances Act , to wit methamphetamine, (3) possession for the purposes of trafficking of a substance listed in Appendix III of the Controlled Drugs and Substances Act , to wit methamphetamine, and (4) the trafficking of a substance listed in Appendix III of the Controlled Drugs and Substances Act , to wit methamphetamine, thus committing a criminal act covered under Section 465(1)

c) of the Criminal Code . 2 . In Laval, d istrict of Laval, in Montréal, district of Montreal, and elsewhere in Canada, between 1 January 2006 and 21 June 2006,

committed criminal act(

s) covered by the Criminal Code and the Controlled Drugs and Substances Act , to wit: (1) conspiracy, (2) the production of methamphetamine, (3) possession for the purposes of trafficking of methamphetamine, and (4) trafficking in methamphetamine for the profit of or under the control of a criminal organization, or in association with it, thus committing a criminal act covered under

Section 467.12(1) of the Criminal Code . 3 . On or about 21 June 2006, in Laval, district of Laval, had in his possession, for the purposes of trafficking, a substance found in Appendix IIIof the Controlled Drugs and Substances Act , to wit methamphetamine, thus committing a criminal act covered under Sections 5(2) and 5(3)b)

i) of said Act . 4 . On or about 21 June 2006, in Laval, district of Laval, had in his possession a loaded prohibited firearm, to wit a 9mm Smith and Wesson pistol, without being the holder either of an authorization or licence authorizing it, or of a certificate of registry of the weapon, thus committing a criminal act covered under Sections 95(1) and 95(2)

a) of the Criminal Code . 5 . On or about 21 June 2006, in Laval, district of Laval, had in his possession a loaded prohibited firearm, to wit a .38 calibre Bryco pistol, without being the holder either of an authorization or licence authorizing it, or of a certificate of registry of the weapon, thus committing a criminal act covered under Sections 95(1) and 95(2)

a) of the Criminal Code . 6 . On or about 1 August 2006, in the District of Laval, had in his possession, for the purposes of trafficking, a substance found in Appendix III of the Controlled Drugs and Substances Act , to wit methamphetamine, thus committing a criminal act covered under Sections 5(2) and 5(3)b)

i) of said Act . 7 . On or about 1 August 2006, in Laval, the District of Laval, had in his possession an unloaded prohibited firearm with easily accessible munitions that could be used with it, to wit a Cobray M 11 pistol, without being the holder either of an authorization or licence authorizing him to have it in this location, or of a certificate of registry of the weapon, thus committing a criminal act covered under Section 95(2)

a) of the Criminal Code . 8 . On or about 1 August 2006, in Laval, district of Laval, had in his possession an unloaded prohibited firearm with easily accessible munitions that could be used with it, to wit a Cobray M 11 pistol, without being the holder either of an authorization or licence authorizing him to have it in this location, or of a certificate of registry of the weapon, thus committing a criminal act covered under Section 95(2)

a) of the Criminal Code . 9 . On or about 1 August 2006, in Laval, district of Laval, had in his possession a prohibited device other than a replica, to wit a silencer, without being the holder of a licence authorizing him to have it, thus committing a criminal act covered under Section 91(2)

(3) a) of the Criminal Code . 10 . On or about 1 August 2006, in Laval, district of Laval, had in his possession a prohibited device other than a replica, to wit a silencer, without being the holder of a licence authorizing him to have it, thus committing a criminal act covered under Section 91(2)

(3) a) of the Criminal Code . 11 . On or about 1 August 2006, in Laval, district of Laval, stored a firearm, to wit a .22 calibre Rossi pistol, in breach of a regulation applied under paragraph 117h) of the Firearms Act , thus committing a criminal act covered in Section 86(2)(3)

a) of the Criminal Code . 12 . On or about 1 August 2006, in Laval, district of Laval, stored a firearm, to wit a 303 calibre Enfil rifle, in breach of a regulation applied under paragraph 117h) of the Firearms Act , thus committing a criminal act covered under Section 86(2)(3)

a) of the Criminal Code . 13 . On or about 1 August 2006, in Laval, district of Laval, stored a firearm, to wit a 303 calibre Enfil rifle, in breach of a regulation applied under paragraph 117h) of the Firearms Act , thus committing a criminal act covered under Section 86(2)(3)

a) of the Criminal Code .

14 . On or about 1 August 2006, in Laval, district of Laval, stored a firearm, to wit a model 710 30-06 calibre Remington rifle, in breach of a regulation applied under paragraph 117h) of the Firearms Act , thus committing a criminal act covered under Section 86(2)

(3) a) of the Criminal Code . 15 . Between 9 August 2005 and 1 August 2006, in Laval, district of Laval, and elsewhere in Quebec, Sergio Piccirilli, Antal Babbos (sic) and Torsten TRUTE conspired together in order to commit criminal acts not covered by paragraphs

a) and

b) of Section 465(1) of the Criminal Code , said conspiracy having 2 goals, to wit: (1) the production of a substance listed in Appendix III of the Controlled Drugs and Substances Act , to wit methamphetamine, and (2) possession for the purposes of trafficking of a substance listed in Appendix IIIof the Controlled Drugs and Substances Act , to wit methamphetamine, thus committing a criminal act covered under Section 465(1)

c) of the Criminal Code . 16 . Between 9 August 2005 and 1 August 2006, in Laval, the District of Laval, and elsewhere in Quebec, Antal Babos, Sergio Piccirilli, and Torsten TRUTE produced a substance listed in Appendix IIIof the Controlled Drugs and Substances Act , to wit methamphetamine, thus committing a criminal act covered under Section 7(1)

(2) a) of said Act . POSITIONS OF THE PARTIES The Crown's theory [ 8 ] The Crown’s theory is that Sergio PICCIRILLI, Antal BABOS and the accused, TORSTEN TRUTE , made up the core group of a criminal organization involved in various illegal activities.

These alleged activities are: the importation of pseudoephedrine, the production of methamphetamine, trafficking in various drugs, such as cocaine, hashish and methamphetamine, the possession of prohibited firearms and devices, and the use of violence. [ 9 ] According to the Crown, the core group of this organization remained always present in all criminal activities while other people would join depending on the activity in question.

According to the Crown's theory, Paresh PATEL, a resident of Saskatchewan, and François LESSARD, from Montreal, joined them in the conspiracy involving the importation of pseudoephedrine, the production of methamphetamine, the possession for the purposes of trafficking of methamphetamine, and the trafficking of methamphetamine. [ 10 ] The accused, in association with Antal BABOS, was the front man of Sergio PICCIRILLI. The three men had their office in a building located at 4025 Leman in Laval. The accused admitted that he was managing the building for which he signed a lease.

Consequently, the accused would have had possession, constructive or joint possession of all materials, weapons, ammunitions, drugs and drug-related materials seized at this address. The accused’s residence and a rented storage unit (Carex) were also searched. Items found and seized would contribute to demonstrating Torsten TRUTE's guilt. [ 11 ] Because the accused himself has admitted to the existence of a three person group in which he took part to sell contraband cigarettes, the Crown included this fact as corroboration that the accused was part of a criminal organization.

The cigarettes were stored at 4025 Leman, in Laval, where the accounting was also done. [ 12 ] Initially, the accused was supposed to be tried in 2008 with the alleged accomplices and co-conspirators, but he had left the country. He was deported from Italy in 2009 to face the present accusations. He has since been in pre-sentence custody. The position of the accused [ 13 ] As already mentioned, the accused admits his participation in the conspiracy with Antal BABOS and Paresh PATEL involving the importation of pseudoephedrine. He also admits being a friend of Sergio PICCIRILLI but he denies being his front man.

He denies that Sergio PICCIRILLI and François LESSARD took

part in the conspiracy to import pseudoephedrine. He denies the possession, or even the knowledge of the drugs, paraphernalia, weapons and ammunitions in the searched premises. [ 14 ] He admits that he signed a lease for 4025 Leman where the evidence was found in part. He admits lending is credit card to Antal BABOS for the renting of the Carex storage unit however, he denies being responsible for that place and the illegal material that was found in it. He denies knowledge of and control over the criminal activities that took place there. [ 15 ] He denies being a member of a criminal organization.

He denies being involved in the possession, production and sale of methamphetamine and the intention on his part to take

part in these activities. He admits being involved in the contraband of cigarettes but he is not accused for that activity. [ 16 ] In brief, except for the conspiracy to import pseudoephedrine, he would essentially be guilty of a bad choice of friends. THE FACTS [ 17 ] From all of the evidence, the Court considers what follows to be the determining facts. [ 18 ] Torsten TRUTE is a German citizen, who immigrated to Manitoba, Canada, as a permanent resident with his whole family in 1984. He was 43 years old at the period of time mentioned in the indictment and had no criminal record.

He has a Masters in mechanics but has never worked in this field in Canada. [ 19 ] In 2005, he sold his property and his belongings in Manitoba to move to the Montreal area with his common law spouse. His friend Frank NUCCI joined them with his wife. The stated reason for the move was to open a “tea/gelati/coffee/little snack place” in Montreal. This project never came to fruition. Instead, in Quebec he started up business with Sergio PICCIRILLI and Antal BABOS.

They have their office at 4025 Leman in Laval. [ 20 ] Upon arrival in Quebec, he rented the house located at [...], in Laval. He lived there with his spouse for about a year and a half, until 21 June 2006, date on which the search and seizure took place. Antal BABOS was also living at [...]. He occupied a room in the bottom floor of the house (basement) but he had access to the whole house. [ 21 ] On 21 June 2006, around 6 a.m., police officers came into the house with a warrant for Torsten TRUTE's arrest for conspiracy and money laundering.

His common law spouse was present. [ 22 ] He was arrested, questioned and then set free without charge.

A warrant for his arrest would be issued later with the present accusations. [ 23 ] The facts are revealed by the Crown’s evidence that consists of wiretap, surveillance, search and seizures, ballistics reports and expert reports on drug trafficking and the functioning of criminal organizations, such as their membership and coded language used. [ 24 ] From the side of the accused, evidence came solely from his testimony. [ 25 ] On 22 December 2006, a judge from the Court of Quebec issued a judicial warrant for interceptions of private communications from 22 December 2005 to 21 June 2006.

All private communications were intercepted, recorded and conserved. The technical reliability and the legality of the interceptions were admitted by the accused. [2] There is no challenge about the admissibility of the evidences. [ 26 ] On 21 June 2006, the Royal Canadian Mounted Police arrested Torsten TRUTE, Antal BABOS, Sergio PICCIRILLI, Paresh PATEL and François LESSARD.

The Royal Canadian Mounted Police also carried out search and seizures at the following premises: - [...] in Laval, [3] which was the residence of Torsten TRUTE and Antal BABOS; - [...], Terrebonne, which was the residence of Sergio PICCIRILLI; - 4025 Leman, where Torsten TRUTE, Sergio PICCIRILLI and Antal BABOS had their office; - [...], in Montréal, which was at that time the residence of François LESSARD; - Motel Shane, Indianhead, Saskatchewan, which is Paresh PATEL's business and place of residence. [ 27 ] The police also carried out a search and seizure at Carex storage in Laval, in a storage unit for which Antal BABOS signed a lease, using Torsten TRUTE's credit card. [ 28 ] As a result of the searches and seizures, the police found drugs, drug paraphernalia, guns, ammunitions, money, keys and documents.

Notably, the police found: - at [...] in Laval and in the accused’s car, parked at this address: a document showing the diagram of a pill press which could be used to product methamphetamine, a gun holster, eleven (11) pills of methamphetamine, keys for the Carex storage and 4025 Leman, cell phones, banking and business papers; - at [...], [4] three

(3) Harley Davidson motorcycles, documents related to Sharon SIMON, one .12 caliber Browning in a case, forty-two (42) .380 automatic pistol cartridge, fifty-one (51) .380 union metallic cartridge, one .380 automatic Winchester, one millennium .40 caliber Taurus Int handgun, one magazine with ten .40 caliber cartridges, one magazine with .40 caliber Smith and Wesson cartridges, one Hunter brand brown leather gun holster, one .300 caliber Tikka T3 model rifle, one magazine containing three .300 caliber Winchester cartridges, one .12 caliber Remington model 870 express magnum pump-action shotgun, five Remington 12-gauge green shell cartridges, five Remington 12-gauge red shell cartridges, two electronic scales, one set of company documents bearing the number 9027-3947 Québec inc., one service contract for 4025 Leman, cell phones, accessories and related documents, business and financial documents and others; - at 4025 Leman in Laval [5] : sixty (60) pink/red methamphetamine pills with “€” marked on them and five hundred and twenty-four (524) blue methamphetamine pills without a logo.

Also paraphernalia for drug production (recipes, gloves, a mixer, scales, big plastic bags and Ziploc bags, bowls, measuring instruments), documents related to the accused, to Bar l'Escale, to 4025 Leman, to Antal BABOS and to Sharon SIMON. - the following items were also found: two bullet proof vests, one box containing three boxes of bullets, one box containing thirty-four (34) .45 caliber bullets, one box containing forty-two (42) .45 caliber bullets, one box containing fifteen (15) .45 caliber bullets, one leather holster for a pistol and one holster made of fabric, one box containing fifty .40 caliber Winchester bullets, one box containing forty-four (44) .40 caliber Winchester bullets, one box containing twenty-four (24) .380 caliber American Eagle bullets, one 7.62 mm caliber bullet, one magazine containing nine bullets and another containing ten bullets, one Stevens model 940 shotgun dismantled into three parts, as well as cigarettes in bulk.

The following items were also seized: one plastic bag containing one leather pouch for a magazine, one 9 mm magazine containing nine 7.62 mm caliber "Hollowpoint" cartridges, one 9 mm magazine containing ten "Hollowpoint" cartridges, one 7.62 mm bullet with one green case. In one vacuum cleaner were found one black 9 mm model 5904 Smith and Wesson unarmed pistol and one related black 9 mm magazine containing fourteen (14) 9 mm “Hollowpoint” bullets.

Also, one automatic .380 Bryco Arms model chromed pistol bearing serial number 108117, ready to be used with one bullet in the chamber and with its magazine containing six other bullets.

Was also found one Dodge Ram truck and what was left inside. - at Motel Shane, in Indian Head, Saskatchewan, [6] in relation to Paresh PATEL: travel documents for London and Bombay in April- May 2006, documentation on ephedrine, its chemical characteristic and structure, its isolation and properties and salts, instructions for a Blackberry, one paper with phone numbers related to Torsten TRUTE, and one business card from Bar l'Escale in l'Avenir;

- at [...], Montréal, [7] François LESSARD's residence: the diagram of a pill press, identical to the one found at Torsten TRUTE's and Paresh PATEL’s residences, one paper with phone numbers for Harley-Grizzly-Tony, a Ziploc bag containing white powder, papers with the names of precursors, one paper with the handwritten inscription www.pillreports.com , one recipe for methamphetamine, other documents related to pseudoephedrine and ephedrine, 23.57 grams of ephedrine in a Ziploc bag, two hundred (200) seeds of cannabis in a plastic pot, and five and a half pills of ecstasy in a Ziploc bag contained in a plastic pot. - at Carex storage, site #7138, located at 4545 Highway 440 in Laval, [8] were found paraphernalia for drug production, caffeine, thirty- three thousand two hundred and thirty-three (33 233) pink/red-coloured methamphetamine pills, with the logo “€,” four thousand two hundred and forty-two (4 242) pink/red-coloured methamphetamine pills, with the logo “Dodge Ram,” forty-eight (48) black/blue- coloured methamphetamine pills with the logo “£,” and twenty-five thousand two hundred and fifty-nine (25 259) white-coloured methamphetamine pills with the logo “XXX” (powder and broken pills).

The accused also admits the quantity and the nature of the drugs seized. [ 29 ] Also found at Carex storage, were two unloaded Cobray M 11 submachine guns, which are prohibited firearms, with ammunition that could be fired from them, without the mandatory authorization, permit or registration certificate. Also, two silencers, one .22 caliber Rossi revolver and two .303 caliber Enfield rifles.

As mentioned in the exhibit report, among other things, the following items were found: ▪ One .30-06 caliber model 710 Remington rifle with Remington scope and charger; ▪ One box containing 14 bullets; ▪ One scope case; ▪ One box of Imperial munitions containing 19 .30-30 caliber bullets; ▪ One box of Federal munitions containing 20 .303 caliber bullets; ▪ One .303 caliber shotgun branded “J” with black scope; ▪ One charger; ▪ One 22 inch, .3032 caliber shotgun; ▪ One charger; ▪ One box of Center Fire munitions containing 17 boxes; ▪ One .22 caliber revolver; ▪ One box of Remington .22 caliber Game Load munitions containing 39 bullets; ▪ One black case for a weapon; ▪ One 31.5 cm long silencer; ▪ One Cobray semi-automatic machine-gun; ▪ One box of 22 inch long rifle bullets, containing 500 bullets, unopened; ▪ One box of 9 mm Federal bullets containing 46 bullets; ▪ One box of .357 caliber CLI BLAZER Magnum 158 GR munitions containing 50 bullets; ▪ One box of 400 Rimfire munitions containing 8 boxes of 40 bullets; ▪ Two .25 caliber bullets; ▪ One silencer wrapped in cellophane; ▪ One semi automatic weapon taped with black tape; ▪ One brown envelope bearing the inscription “Sergio” containing a document with letters and numbers. [ 30 ] The accused admits the nature and proper functioning of these weapons. [9] He admits to being the author of the document found in the envelope with the inscription SERGIO, which is an accounting sheet. [ 31 ] The admissions and the evidence show the following links between the co-conspirators. [ 32 ] Torsten TRUTE and Antal BABOS, also known as TONY or TWO SHOES were friend and they were residing at the same address at [...].

Torsten TRUTE was renting a company car for the use of Antal BABOS. Antal BABOS was working with or for Torsten TRUTE and Sergio PICCIRILLI at the strip bar, Bar l'Escale, in l'Avenir. Antal BABOS was paying no rent to Torsten TRUTE for housing and he was eating there for free. Antal BABOS had access to every room in Torsten TRUTE's house. [ 33 ] Antal BABOS was renting a storage room at Carex storage using Torsten TRUTE's credit card.

[ 34 ] Antal BABOS and Torsten TRUTE were in constant communication by telephone or in person. They also had their office at 4025 Leman. [ 35 ] Sergio PICCIRILLI, also known as BIG GUY, was also sharing an office with Torsten TRUTE and Antal BABOS at 4025 Leman. This building was rented to them by Sergio PICCIRILLI's uncle, Luigi SALVATORE. Sergio PICCIRILLI and Torsten TRUTE were constantly in communication, by phone or in person. The accused describes himself as Sergio PICCIRILLI's friend.

After Sergio PICCIRILLI's arrest, Torsten TRUTE brought him money for his canteen at the remand center and was concerned about his legal situation. Torsten TRUTE was also planning to move into his residence located at [...] while Sergio PICCIRILLI was in jail. [ 36 ] Sergio PICCIRILLI was observed at 4025 Leman. His truck was found and seized in the garage of the premises and it was searched. [ 37 ] Wiretap evidence reveals numerous conversations between Sergio PICCIRILLI and Torsten TRUTE.

These conversations, plainly or interpreted by the Crown's expert on drug trafficking in the context of the evidence, reveal exchanges about cocaine and hashish prices and quantities in coded language, that lead the Crown to conclude they were both trafficking in these substances. We will discuss the mater in more detail later. [ 38 ] Sergio PICCIRILLI, Antal BABOS and Torsten TRUTE were also linked with Sharon SIMON.

As we will discuss later, on one occasion, in February 2006, while Sharon SIMON and Antal BABOS were arrested for being in possession of a gun in Sharon SIMON's car, she phoned Torsten TRUTE to get the assistance of Sergio PICCIRILLI's lawyer. This lawyer is also the one who prepared the legal papers for the purchase of Bar l'Escale by Torsten TRUTE and Sergio PICCIRILLI. [ 39 ] In 2006, while Torsten TRUTE was in Laval and Paresh PATEL was in Saskatchewan, they were in constant contact by telephone.

The intercepted communications and police surveillance reveal they were in contact, planning the import of pseudoephedrine in Saskatchewan and in person in Montreal. The evidence produced to establish the importation of pseudoephedrine [ 40 ] Numerous intercepted communications reveals that Torsten TRUTE and Paresh PATEL together prepared Paresh PATEL's trip to India because he had contacts over there to set pseudoephedrine.

During one of the conversations, they talk about the need to be extremely careful with the shipping of the merchandise and how to do it, the travel documents to be obtained, the travel dates, Paresh PATEL's visit to Quebec, the itinerary to India through London and the costs of the airfare. Torsten TRUTE would pay the plane tickets. They also said they would need a computer with encryption to chat. [ 41 ] They say on the phone the success of the plan will solve their problems. Paresh PATEL told Torsten TRUTE, it "would be, that big one we waiting for (sic).

With it, [they'd] make millions and will be able to retire". [ 42 ] In one intercepted conversation that occurred on March 6 th 2006, Paresh PATEL and Torsten TRUTE exchanged about the use of the pseudoephedrine.

While Paresh PATEL candidly suggested the use for it basically “for cold and diet drink," Torsten TRUTE answered back: "disregard all that stuff, I got different plans with that." [ 43 ] Police surveillance of 13 and 14 March 2006 and 22 May 2006 shows that Paresh PATEL came to Montreal and went with Torsten TRUTE and Antal BABOS to François LESSARD's house. [ 44 ] Talking with Paresh PATEL on the phone, Torsten TRUTE used coded conversation concerning their project.

Torsten TRUTE did not mention names or the nature of the substance. [ 45 ] Because they knew the importation was illegal in some countries, they mention that the substance was to be packaged in rice bags written GLUTAMATE. They mention that fax is better than emailing to avoid any record. They agree that Torsten TRUTE would provide encrypted software to Paresh PATEL. At one point, Torsten TRUTE tells Paresh PATEL that they should speak in person.

It was also mentioned t hat the substance (pseudoephedrine) was bought at $1 500 for twenty-five (25) kilograms and that they could resell it for $70 000. [ 46 ] Paresh PATEL applied for a passport on 16 March 2006. At least two calls were made to India to a chemical company. He went to India twice, in April and in June 2006. He stayed in India from 18 April to 5 May 2006 and received a money transfer, on 6 April 2006, of $2 500 US.

Banking information for the bank accounts of Paresh PATEL was seized at Torsten TRUTE’s residence, as well as some of his travel documents. [ 47 ] On 7 July 2006, Paresh PATEL arrived in Calgary from London and he was arrested.

The phone numbers of Torsten TRUTE and Antal BABOS were written in a notebook he had with him. [ 48 ] Police surveillance demonstrates that Paresh PATEL, from Indian Head, Saskatchewan, arrived in Montreal during the night between 12 and 13 March 2006 and he left on the 14 th . [ 49 ] On the morning of 13 March 2006, Torsten TRUTE and Paresh PATEL went to a Cora Restaurant and met with Giovanni MANDATO and Antal BABOS. [ 50 ] At the restaurant, Torsten TRUTE received a call from Sergio PICCIRILLI who told him he will meet them “ down there .” The evidence shows that Torsten TRUTE, Paresh PATEL, François LESSARD and Giovanni MANDATO went to Bar l’Escale in l'Avenir that same day, to meet Sergio PICCIRILLI. [ 51 ] After going to Bar l’Escale in l'Avenir, Torsten TRUTE, Paresh PATEL, François LESSARD and Giovanni MANDATO will come back to Montreal, but at 2:01 p.m., Torsten TRUTE receives a call from Sergio PICCIRILLI, who is not happy because the men did not wait for him in Drummondville.

Sergio PICCIRILLI wants to meet them absolutely, so they stop on Highway 55. At 2:15 p.m.,

Torsten TRUTE, Antal BABOS, Giovanni MANDATO, Paresh PATEL and Sergio PICCIRILLI are observed talking together for 10-15 minutes, on the highway. [ 52 ] On their way back from Bar l'Escale, at 3:39 p.m., Torsten TRUTE also receives a call from François LESSARD who asks him what’s happening. Torsten TRUTE explains there was a lot of traffic and that they will be there in 15 minutes. In Montreal, Antal BABOS and Giovanni MANDATO leave on their own and at 4:10 p.m., Torsten TRUTE and Paresh PATEL go to an Asian store named KIM PHAT where they meet with François LESSARD, also named BOB.

They are observed sitting at a table and talking until 4:55 p.m. [ 53 ] During this meeting, Torsten TRUTE receives a call from Sergio PICCIRILLI. The accused confirms that he is in a meeting with his friend. [ 54 ] On 14 March 2006, Torsten TRUTE and Paresh PATEL meet first with Antal BABOS at the Maisonneuve-Rosemont Hospital. Then, Torsten TRUTE and Paresh PATEL go to François LESSARD's residence. At 11:23 a.m., while Torsten TRUTE and Paresh PATEL are in the accused’s car, he receives a call from François LESSARD who says he is ready and waiting for them to come.

Torsten TRUTE and Paresh PATEL are then observed going into François LESSARD’s residence. François LESSARD gives documents concerning pseudoephedrine to them. The meeting lasts about an hour. [ 55 ] After this meeting, Torsten TRUTE and Paresh PATEL go to Connexion Mobile, where they get a Blackberry for Paresh PATEL. [ 56 ] At 1:01 p.m., Torsten TRUTE also gets a call from Sergio PICCIRILLI who asks him if everything went well to which Torsten TRUTE answers it did. [ 57 ] On 14 March 2006 in the afternoon, Torsten TRUTE and Antal BABOS go to Pierre-Elliot-Trudeau airport.

Paresh PATEL will be searched when boarding the plane. The video and the pictures taken during that search show documents that look similar to those seized in June 2006 at the residences of Torsten TRUTE, François LESSARD and Paresh PATEL. Those documents contain information on pseudoephedrine, the extraction and separation and the pseudoephedrine certificate. [ 58 ] After the security check, Paresh PATEL is let go with all his belongings, without being annoyed.

The evidence produced to establish the presence of a criminal organization and others [ 59 ] The evidence produced to establish the presence of a criminal organization is composed of the following blocks, as suggested by the Crown.

A) Delivery of the Norinco firearm

B) Implication in cocaine

C) Implication in hashish

D) The office at 4025 Leman in Laval

E) Bar l'Escale, in l’Avenir

F) Conspiracy to import pseudoephedrine

G) Torsten TRUTE is a front man for 4025 Leman, Bar l'Escale, Canram Impex, Trute Contracting, Nubreath

H) Cell phone, cars

I) Lifestyle

A) Delivery of the Norinco firearm [ 60 ] On 17 February 2006, Sharon SIMON and Antal BABOS were arrested on Highway 640 in Laval. Sharon SIMON is Sergio PICCIRILLI's ex-girlfriend. In the trunk of the car, police found a semi-automatic Norinco 84S machine gun. While on the scene, Sharon SIMON calls Torsten TRUTE, asking him to reach Sergio PICCIRILLI because they are in trouble. It appears that the firearm discovered is to be delivered to Sergio PICCIRILLI, at his request, because his life is threatened.

No one had the permit to possess this firearm and it was not registered. [ 61 ] The firearm is not mentioned in the indictment but the situation is relevant in the context of the allegation of a criminal organization. [ 62 ] In one conversation intercepted on 16 Februrary 2006, at 4:14 p.m., between Antal BABOS and Sharon SIMON, Sergio PICCIRILLI is heard in the background and Antal BABOS says "the Big guy needs it, like he needs it now . " It is understood between Antal BABOS and Sharon SIMON that they will go and get it the next day.

BIG GUY is proven to be Sergio PICCIRILLI. [ 63 ] Calling the accused, Sharon SIMON asked him for some help because she and Antal BABOS had just been arrested because of the gun. She then asked him for the telephone number of their lawyer. Torsten TRUTE said he was going to call Sergio PICCIRILLI to have him call the lawyer. Following this conversation, various conversations took place between Torsten TRUTE, Sergio PICCIRILLI and Sharon SIMON related to the situation. [ 64 ] In the next conversation intercepted, at 1:31 p.m., Torsten TRUTE tells Sergio PICCIRILLI, referring the this situation; “We got

a problem, o.k.?,” revealing that Torsten TRUTE and Sergio PICCIRILLI considered themselves involved in this problem. No explanation was necessary for them to understand what the problem was about. [ 65 ] Conversations intercepted at 1:38 p.m., between Sharon SIMON, Torsten TRUTE and Sergio PICCIRILLI show that Torsten TRUTE was aware of the existence of the guns, as he asks, “ So, they got that long thing and that other thing too?” to which Sharon SIMON answers, “ Huh, I don’t know.

I’d, I’d, it’s just the long one ….” Sharon SIMON will then speak with Sergio PICCIRILLI and will say, “ We picked it up like you ask ….” [ 66 ] When Sharon SIMON says the “long thing ,” she is referring to the prohibited Norinco 84S which is a machine gun that is almost one meter in length. Torsten TRUTE admitted in cross-examination that to him this

interpretation was very well possible. [ 67 ] The evidence tends to prove that when Torsten TRUTE asked Sharon SIMON for “the long thing and the other thing too ,” he was referring to the .380 handgun that was seized in Sharon SIMON's Volkswagen Touareg, in a briefcase. Antal BABOS had a bullet for that gun in his pants pocket. [ 68 ] In a conversation intercepted at 2:08 p.m. between Sergio PICCIRILLI and Torsten TRUTE, the accused mentions he does not trust his phone. Sergio PICCIRILLI replies he does not trust any of the phones and suggests to Torsten TRUTE to go do some cleaning.

The Crown suggests that Torsten TRUTE wants to find out if the handgun was also seized by the police because Sharon SIMON does not know. It appears that this gun was in fact seized after the police got a warrant. The Crown suggests that Torsten TRUTE was aware that Antal BABOS carried such a gun and he wanted to know the situation. [ 69 ] During the search and seizure at 4025 Leman in Laval a twelve (12) gauge Stevens shotgun was found, as well as two loaded handguns and methamphetamines pills that were seized in a vacuum "Shop-Vac".

This would explain why Torsten TRUTE did have some cleaning up to do, as requested by Sergio PICCIRILLI. [ 70 ] Later, at 5:51 p.m., the following conversation occurred between Sergio PICCIRILLI and Torsten TRUTE: … TT : O.k., I just went to us, check on us, our car there SP: Yeah TT: Vilisa and uh, POP’S briefcase is not in there. Therefore, our uh, our check and that toy is not there either. Can you hear? … SP: Repeat that again? TT: The toy and the briefcase, the toy and their check… SP: yeah?

TT : He was supposed to change, it’s not in…… … [ 71 ] In fact, Torsten TRUTE checked the Volkswagen Jetta that was used by Antal BABOS. POPS is the nickname for Gilles GAGNÉ, who is implicated in cocaine trafficking according to the expert, Jos Tomeo. According to the testimonies of Bruno Soucy and Aldo Giannone, on February 17 th , a handgun was seized in a briefcase. The Crown suggests that when referring to the «toy», Torsten TRUTE tells Sergio PICCIRILLI that the handgun is also missing. Torsten TRUTE, in cross-examination, admits this

interpretation to him that it was very well possible. This gun is a prohibited firearm. [ 72 ] On that same day, at 7:12 p.m., a conversation between Sergio PICCIRILLI and Torsten TRUTE reveals that they are mad and Torsten TRUTE worries because Antal BABOS could be associated to him because his official address, [...].

Sergio PICCIRILLI then says concerning “ Tony” : … SP: He has to do always his way TT: Yeah and that’s gonna cost us fuckin clearly now SP: I know TT: I gotta talk to you and see what we’re gonna do here SP: Yeah no kidding … SP : Well, they'll probably investigate even more now 'cause of this fucking idiot. [ 73 ] The Court is asked to infer, from this conversation, what the hierarchy of this core group is. The fact that what happened to Antal BABOS is going to affect them all and that they have to figure out what they are going to do would imply that Antal BABOS is at the bottom of the hierarchy.

B) Implication in cocaine [ 74 ] The evidence concerns the accused, Sergio PICCIRILLI and Antal BABOS as the core group of a criminal organization also involved in cocaine.

Salvatore CAZZETTA, Gilles GAGNÉ (POPS) and someone called DAVID are linked, as shown by the intercepted conversations to the organization. [ 75 ] Several intercepted conversations that occurred from January to March 2006, as interpreted by the Royal Canadian Mounted Police expert in drug trafficking, Jos Tomeo, reveal that Sergio PICCIRILLI, essentially through Torsten TRUTE, was trying to find buyers for cocaine. [ 76 ] Two conversations show that Torsten TRUTE and Gilles GAGNÉ were doing business together with Sergio PICCIRILLI.

The first one, which occurred on 2 March 2006, is about “70 thousands of things” Sergio PICCIRILLI has to sell to Gilles GAGNÉ who wants to know the price. Another conversation took place between them on 10 March 2006, still talking about the same 70 thousand. Gilles GAGNÉ says he could get the same thing cheaper elsewhere.

Both interlocutors are prudent not to reveal completely what they are talking about or their whereabouts. [10] [ 77 ] According to the expert Tomeo, between January and March 2006, the price of a kilogram of cocaine in Montreal varied between $26 000 and $28 000. [ 78 ] In a conversation intercepted on 21 January 2006, at 2:22 p.m., between Sergio PICCIRILLI and someone called DAVID, he informs Sergio PICCIRILLI that it’s “DAVID from the garage, that they charged the battery of his car and that they charged it for four hours.” DAVID tells Sergio PICCIRILLI that if he wants to come and get his car, he will be there until 8:00 that night.

Sixteen minutes later, Sergio PICCIRILLI calls Antal BABOS and they have the following conversation: … SP: OK listen. Remember where you ... last time? When I asked you to go to the garage? AB: Uh, at the gas station, you mean? SP: Yeah. AB: Yes. SP: Could you pass by? AB: Yes, when? SP: Uh, you have till eight o’clock tonight. Even before that, be nice. AB: No problem, I, I will do that uh, the same thing what I did that before? SP: Yeah. AB: How many? SP: Four. AB: No problem. SP: OK? AB: I’m uh, I’ll take it to work though? SP: Yeah. AB: The white kind hey? SP: Yeah. AB: OK. SP: Bye.

AB: Done, bye. … [ 79 ] A few minutes later, Sergio PICCIRILLI calls Torsten TRUTE. Sergio PICCIRILLI is mad at Antal BABOS (TONY, TWO- SHOES). … SP: I just called our friend TONY. He asks a lot of questions on the phone man.

TT: Who? SP: I’ll have to talk to him. TT: Who? SP: TWO-SHOES. TT: Well, tell him to stop that. SP: I will, when I’ll see him fuck. I said the fuck, he’s there, if I go over there, uh, why? Same thing? Uh, do I get the white ones? What the fuck is your problem? TT: Jesus. SP: Fuck man! Jesus Christ, just go and shut up! Fuck! Anyway. TT: See you later. SP: Right. TT: OK. Ciao. … [ 80 ] According to the expert Tomeo, they are talking about getting “the white ones.” The word “ white ” would be used in drug conversations to refer to cocaine.

In the majority of the conversations, the speakers use a coded language. [ 81 ] As it appears from another intercepted conversation that occurred on 24 January 2006, at 11:05 a.m., Sergio PICCIRILLI and Gilles GAGNÉ are talking about getting “pieces at 28” and “the girls, the things at 28.” Sergio PICCIRILLI asks Gilles GAGNÉ to check for this. [ 82 ] According to the expert Tomeo, the words “pieces” and “the girls,” are used in drugs transactions to designate a kilogram. The expression “the pieces at 28” indicates a transaction of a kilogram of cocaine at $28 000.

He takes into consideration the terms that are used but also the fact that the price of a kilogram of cocaine at that time in Montreal was between $26 000 and $28 000. He also considers the covertness of the conversation. [ 83 ] In another conversion intercepted 27 February 2006, at 6:30 p.m., Sergio PICCIRILLI is told by an unknown man that he checked it and that it tested at 70 and that's not good. Sergio PICCIRILLI then tells him to check that out.

Sergio PICCIRILLI does not seem to really understand what happened and says he will check this out with Torsten TRUTE. [ 84 ] According to the expert Tomeo, cocaine was very much in demand in 2006 and therefore the purity was high. He added that it was rare, in 2006, to find cocaine of a purity of only 70%, which explains why 70 was not good. [ 85 ] In one conversation, Torsten TRUTE and Sergio PICCIRILLI are talking about girls, dancers at Toronto, 20 coming from British Columbia, and that the "girls" are good dancers. According to the expert Tomeo, those conversations refer to cocaine.

The expert explained that when they talk about twenty dancers, they are actually referring to 20 kilograms of cocaine.

Toronto and British Columbia were, at the time, two ports of entry in Canada that were popular for cocaine. [ 86 ] In a conversation intercepted on 11 March 2006, at 5:50 p.m., Torsten TRUTE tells Sergio PICCIRILLI that he tried to get rid of the "girls" but that the numbers were too high, saying: “I tried to pawn off the girls from Tatoo but the numbers are too high,” “the older girl, twenty-seven (27), twenty-seven five (27-5).” [ 87 ] According to the expert Tomeo, “the girls,” as already mentioned, is an expression often used to refer to cocaine.

When they say “27, 27-5,” it refers to the price of a kilogram of cocaine. Again, at the time, one kilogram of cocaine sold for between $26 000 and $28 000. When they say “the numbers are too high,” it would mean that the purity is not good at 70. [ 88 ] Despite this evidence, police found no cocaine.

C) Implication in hashish [ 89 ] In order to prove the existence of the criminal organization, the Crown submits that Sergio PICCIRILLI and Torsten TRUTE, along with other individuals, were trafficking and had in their possession hashish for the purposes of trafficking. According to the expert Tomeo, from January to March 2006, the price of a kilogram of hashish in Montreal was between $5 000 and $6 000. [ 90 ] The Crown sustains that a conversation intercepted on 24 January 2006 between Gilles GAGNÉ and Sergio PICCIRILLI supports this conclusion.

In this conversation, Gilles GAGNÉ makes a call to Torsten TRUTE's cell phone. Sergio PICIRILLI answered and is asked how much he wants. Sergio PICCIRILLI said that he needed a picture first: “Écoute, j'ai besoin d'une photo t'suite, pis après ça, ça va être dans 10-15. ” (Conversation in French.) [ 91 ] The expert Tomeo explains that the expressions a “picture” or “photo” is used in drugs conversations to refer to a sample, as it is very common to obtain one when buying hashish. To him, it demonstrates that Sergio PICCIRILLI wants a sample and if it’s good, he will take 10 to 15.

Again, this is a coded conversation.

[ 92 ] A conversation intercepted 20 February 2006, at 1:51 p.m., between Torsten TRUTE and Sergio PICCIRILLI, goes like this: … TT: Uh, the, the phone number, you know the price? Yeah, yeah. You know, the, the, the thing that other guy came by, for that, for that, for that car that brown one? SP: Yeah. OK. … SP: OK, well show him the picture. TT: Yeah. SP: See what he li-, if he likes it or no. TT: Yeah. SP: And then, uh, we’ll go from there.

TT: OK. … [ 93 ] The expert Tomeo testifies that Torsten TRUTE has a buyer for the “ brown car ” which is an expression used in drug conversations referring to hashish. [ 94 ] Later that same day, in a conversation between Sergio PICCIRILLI, Torsten TRUTE and someone called Junior, they talk about “car", "brown, pictures", "the car is costing 5.5” which would concern trafficking of a kilogram of hashish. [ 95 ] Despite this evidence, police found no hashish.

D) The office at 4025 Leman in Laval [ 96 ] As already mentioned, Torsten TRUTE, Sergio PICCIRILLI and Antal BABOS were sharing an office at 4025 Leman. The place was secured by an alarm system with cameras, televisions, and tinted windows. The three men were the three contact persons for the alarm company. [ 97 ] Luigi SALVATORE, Sergio PICCIRILLI's uncle, rented the building to Torsten TRUTE through Gestion Immobilière Confort.

Torsten TRUTE was also responsible for the municipal taxes bill. [ 98 ] According to the testimony of the expert Nathalie Grondin and the material evidence, the garage at 4025 Leman was used as a laboratory to produce methamphetamine. As previously mentioned, prohibited firearms were stored there. Sergio PICCIRILLI's vehicle was seized in the garage. [ 99 ] When the search occurred, Torsten TRUTE had Nubreath boxes in the garage of 4025 Leman. They were kept right next to the bulletproof vests and a SOHO red bag containing ammunitions was found in a TELUS box with a holster.

Nubreath boxes were also found on the desk next to the bag, and right next to the desk were two white buckets containing the equipment to produce methamphetamine. Red food colouring which is used to give color to the pills was also found, along with masks, gloves and the security glasses used by those making pills as a security measure.

E) Bar l'Escale in L’Avenir [ 100 ] At 4025 Leman in Laval, documents were found in the office of Torsten TRUTE concerning the sale of Bar l’Escale to the company bearing the number 4303156 Canada, Inc., located at [...], Laval. Torsten TRUTE is the president and secretary of this company. That address is Torsten TRUTE’s residence. Financial documents of Bar l’Escale were also seized in Torsten TRUTE’s office. [ 101 ] At Sergio PICCIRILLI’s residence, [...], Terrebonne, company documents bearing the number 9027-3947 Québec, Inc., were seized.

This company operates under the name of Bar l’Escale. [ 102 ] Torsten TRUTE mentions in his testimony that Sergio PICCIRILLI and him bought the Bar. On paper, Torsten TRUTE is the sole owner. [ 103 ] In an intercepted conversation which occurred on 3 February 2006, Sergio PICCIRILLI says to Salvatore CAZZETTA he bought the Club the Monday before. Both men discuss about meeting the same day at a St-Hubert restaurant in Montréal. The said meeting did occur on that day.

Police surveillance shows that Sergio PICCIRILLI met with Salvatore CAZETTA and Claude PÉPIN. [ 104 ] According to the Crown's expert Alain Belleau, Salvatore CAZZETTA and Claude PÉPIN are Hell’s Angels, members of the Montréal chapter. [ 105 ] Belleau gave his opinion on the situation based on the police surveillance and the conversations. He gave the following explanation of the situation. Despite what Torsten TRUTE says, he is a front man for Sergio PICCIRILLI. Concerning Bar l’Escale,

Torsten TRUTE said that they are in this business together, sharing everything 50/50. [ 106 ] To the Crown, Sergio PICCIRILLI is approved by the Hell's Angels and he has meetings with Salvatore CAZZETTA, including one with Torsten TRUTE on 19 January 2006. Sergio PICCIRILLI and Torsten TRUTE did not want the Hell’s Angels to sell their drugs in Bar l'Escale, so a meeting took place between Sergio PICCIRILLI, Salvatore CAZZETTA and Claude PÉPIN and just with that, it was settled.

Apparently, the Hell’s Angels left Sergio PICCIRILLI and Torsten TRUTE alone. [ 107 ] Some conversations reveal that, on 22 March 2006, a problem occurred at Bar l’Escale which could implicate a member of the Hell’s Angels of another

chapter who made trouble and issued threats. Consequently, Sergio PICCIRILLI called Salvatore CAZZETTA to report the situation. Sergio PICCIRILLI called Torsten TRUTE who called Antal BABOS, so they could all go to the bar to solve the problem themselves, even though they might be Hell’s Angels. Sergio PICCIRILLI called Salvatore CAZZETTA again, who told him that he could do what he wants in the situation. [ 108 ] According to the Crown, Sergio PICCIRILLI has a special connection with the Hell’s Angels because of his relationship with Salvatore CAZZETTA.

F) Conspiracy to import pseudoephedrine [ 109 ] The Court refers here to paragraphs 13, 40 to 58 of the judgment.

G) Torsten TRUTE as a frontman [ 110 ] For 4025 Leman, the lease was under Torsten TRUTE's name. [ 111 ] Torsten TRUTE and Sergio PICCIRILLI were in business together, and according to the accused’s testimony, profits were supposed to be shared 50/50. However, Torsten TRUTE is the only one who paid the rent. According to the accused, they had a project to import motorcycles and therefore, they created Canram Impex. Torsten TRUTE was the owner of the company. Torsten TRUTE owned a Volkswagen Jetta but it was registered under Canram Impex, 4303156 Canada, Inc.

Antal BABOS usually drove it. [ 112 ] Torsten TRUTE owned Trute Contracting, which was his old company from Manitoba that has no activity in Quebec, yet he kept a cell phone registered under the name of that company. [ 113 ] Bar l'Escale was founded by Sergio PICCIRILLI.

He wanted to buy it but Torsten TRUTE put it under his own name. [ 114 ] Torsten TRUTE explains he signed official papers himself as Sergio PICCIRILLI couldn't because of his problems with taxes. [ 115 ] The Volkswagen Touareg that Torsten TRUTE drove was under someone else's name - Sharon SIMON. [ 116 ] Torsten TRUTE's Audi was under his name but Philippe PORTELANCE drove it. [ 117 ] Torsten TRUTE admitted being the one responsible for getting cell phones and Blackberries for himself and for Sergio PICCIRILLI, Antal BABOS, Giovanni MANDATO, Antonietta BIONDI, Paresh PATEL and Gilles GAGNÉ.

All those phones were registered either under Connexion Mobile or Chris THOMPSON, the sales person at that store. None of them were under the name of the person using them.

H) Lifestyle [ 118 ] Torsten TRUTE had the following expenses: the rent for the house at [...] in Laval which is close to one thousand dollars monthly, three cars, the purchase of Bar l'Escale, the rent for 4025 Leman for more than $21 000 a year. He lent money to Frank NUCCI and sometimes to other friends. He was also supposed to rent Sergio PICCIRILLI's house for $1 450 a month. He was supporting Antonietta BIONDI's debt of over $65 000. [ 119 ] In his testimony, he admitted to not really having made money since January 2005, living off his savings from Manitoba coming essentially from the sale of his house and belongings for a sum of around $69 000.

I) Post-offence conduct [ 120 ] Torsten TRUTE was arrested in Italy in September of 2008. [ 121 ] On 21 June 2006, during the search and seizure at his residence, Torsten TRUTE was arrested and then released the same day. After his release, he went every day to their lawyer's office and he tried to get money to get Sergio PICCIRILLI and Antal BABOS out of jail. To him, the situation became somewhat grim. Two of his friends were in jail and he was not in a position to help anymore. Sergio PICCIRILLI, a long time member of the Italian community in St-Leonard, was receiving death threats.

Torsten TRUTE decided then to leave the country, which he did sometime between July 30 and August 2 nd . At the trial he said that he left the country because he feared for his life. He took the Volkswagen Jetta and went to Ottawa, where he abandoned the car, his businesses, his office and his family. [ 122 ] He took a bus to the United States for a few days, where he visited friends. Then he went to Mexico. From Mexico, he went to Panama, where he has family.

From there, he went to Costa Rica where he lived and worked for a while before he moved to Germany in 2007. [ 123 ] In Germany, he worked for a German company on ships outside the country. That is why he ended up in Italy, where he was arrested for his extradition to Canada to face the present charges in 2008. [ 124 ] He knew he was wanted and accused in Canada while he was away. At that time, he got in touch few times with family through the Internet, without telling them where he was. He contacted a few lawyers but they all asked for money to take his case, so he did not

hire them.

The version of the accused [ 125 ] In addition to the above-mentioned admissions which the accused made about the drugs and the weapons, he admits that Paresh PATEL was the holder of the two (2) bank accounts, the computer and telephone bills the Crown has submitted. [ 126 ] Furthermore, the accused admits the chain of possession of every piece of evidence produced by the Crown, as well as the identification of the individuals and their addresses to which the evidence refers. [ 127 ] On 21 June 2006, around six in the morning, the police came to his house with a warrant for his arrest in relation to conspiracy and money laundering.

The police officers searched the house and his vehicle. The seized the material is produced in evidence by the Crown. He was brought to Sûreté du Québec headquarters where he says he was questioned about Sharon SIMON, Sergio PICCIRILLI and Antal BABOS and the importation of ephedrine. He would also be told that if he helps the police, he could get a form of immunity, or witness protection, and not be charged. Otherwise, he could lose his permanent residency.

Later on that same day, he was let go without being charged. [ 128 ] In his house, money was seized ($4 000 in the safe and over $3 000 in his briefcase), which came from Bar l'Escale, his business in L'Avenir. Police officers also seized Euros and Canadian dollars belonging to his wife. [ 129 ] The accused admits that Antal BABOS was a close friend to him since 1989 and that Antal BABOS was living together with him and his common law spouse since May 2005. While Torsten TRUTE operated Bar l'Escale, Antal BABOS was working for him, doing the shopping for the bar and transportation for the strippers.

Antal BABOS used the company car, a black Jetta. Besides his job at the Bar, Antal BABOS was working for Sharon SIMON. [ 130 ] Sergio PICCIRILLI and Torsten TRUTE were also friends. Torsten TRUTE ended up meeting with Sergio PICCIRILLI through his own friends Frank NUCCI and Steve SOKOLSK in 2004 or 2005. [ 131 ] Torsten TRUTE and Sergio PICCIRILLI rented the 4025 Leman under TRUTE's name because they wanted to use it to sell a product called Nubreath. They both wanted to set up a corporation for that purpose and also intended, through the same corporation, to sell Harley Davidson motorcycles to Europe.

Instead of going further with Nubreath and motorcycles, they ended up buying Bar l'Escale. Sergio PICCIRILLI had discovered the bar while he was in L'Avenir's neighbourhood, an area he was visiting for deer hunting. They opened Bar l'Escale at the end of 2005 or beginning of 2006. [ 132 ] Sergio PICCIRILLI also wanted to use 4025 Leman as a storage room for the tools he kept from his past mechanic shop and for his hunting gear. He also parked his truck in there, a blue Dodge Ram. Torsten TRUTE used the warehouse himself as a storage room for his tools and some stuff from his house, which was too full.

When they moved in, there was a lot of stuff that had been left there by the owner. They had to partially clean it up to make room for their own stuff. His wife and wife's friend also kept things there. [ 133 ] Antal BABOS, Sergio PICCIRILLI and Torsten TRUTE each had their own office at 4025 Leman. They were side by side. All of them, as well as Antonietta BIONDI and Giovanni MANDATO, had keys for the building and access to the other rooms, including the warehouse.

Torsten TRUTE says that a lot of people Sergio PICCIRILLI knew used to come and visit and would even park their vehicle inside the warehouse or the garage. [ 134 ] Torsten TRUTE testifies he did not know anything about the shop vacuum in which the police found two guns, bullets, a scale and pills. He affirms he does not know about the paraphernalia for drug production found in the garage. It did not belong to him. [ 135 ] At the time of the search and seizure, Torsten TRUTE was going to move to Sergio PICCIRILLI's house.

He wanted to sell the house and, in the meantime, Torsten TRUTE would rent it. [ 136 ] Sergio PICCIRILLI introduced Torsten TRUTE to François LESSARD. They met at the office and François LESSARD approached him regarding ephedrine because he suggested this product could be sold with great profits. They would have met less than five times. François LESSARD would have explained to him that the substance is illegal in the United States but not in Canada where it would be a controlled substance. He was looking for someone to find the product.

Torsten TRUTE spoke then with Paresh PATEL whom he knew since 1986 and organized his trip to India. [ 137 ] Torsten TRUTE says at first his only implication was to locate manufacturers of ephedrine. François LESSARD would have the contacts to resell it and organize the shipping and everything else. Torsten TRUTE affirms he had no idea of the possible uses of the substance. He only found out later it could be use in medicine and energy drinks. He also found out that it was in very great demand as a product for cutting cocaine.

He admits they were looking to import either fifty or five hundred kilograms, not from his own recollections but rather according to the court file. [ 138 ] He indicates he could get twenty-five (25) kilograms in India for the price of $1 500. He thought he could resell it here for about $70 000 for the same twenty-five (25) kilograms in 2006. [ 139 ] Torsten TRUTE denies having produced any pills. He says did not care how the substance would be used after they would have imported it. He says he is not interested in drugs. What interested him was business other than drugs.

This plot for the importation of pseudoephedrine was his first experience in drugs and he never got the product. He got involved in this even if he learned, in 2004, that SOKALSKI was charge of selling ephedrine in Manitoba in 2003 and received dead threats because of his lucrative business in this field. He says SOKALSKI moved to Montreal because of his fears in Manitoba. Sometimes SOKALSKI would come to visit him in his house in Laval.

In fact, he came to Quebec because he received a ”protection plan” from Sergio PICCIRILLI with the assistance of Frank NUCCI. [ 140 ] Despite being the owner of a strip bar, Torsten TRUTE did not want illegal activities to take place in it, nor was he aware they

did. He was informed by the past owner that the bar was located in an area under control of the Hell's Angels for drug dealing but he wanted a clean club. [ 141 ] In March 2006 people presumably associated with the Hell's Angels showed up at Bar l'Escale and made trouble because of a turf war for drug dealing. Instead of reporting to the police, Sergio PICCIRILLI spoke to Salvatore CAZZETTA and Claude PÉPIN. They had one meeting or more.

After these meetings, they were left alone by the Hell's Angels, [ 142 ] The accused dealt this way with the situation, as he was afraid to report the situation to the police because of the risks of retaliation, such as the place being burned down. [ 143 ] Still, he did not want to have Hell's Angels in the club nor be associated with organized crime, to preserve the $125 000 private loan and the money he put down himself. [ 144 ] Concerning his acquaintance with Sharon SIMON, the accused says he knew her through Sergio PICCIRILLI.

When he came to Montreal from Manitoba, she helped him to buy a Volks Touareg because his credit limit did not allow him to do so. They became friends. [ 145 ] Concerning the Carex storage unit, Torsten TRUTE explains that he was found in possession of the key to it because he had it for safe keeping for Antal BABOS. That key was found in his vehicle, in the console. No other keys were found for the storage room anywhere else to open the lock at the Carex unit, notwithstanding extensive searches. [ 146 ] He knew Antal BABOS had a storage locker.

Antal BABOS asked for his credit card number because he had a bad credit record. Torsten TRUTE explains that Antal BABOS gave his phone number and address at work as his employee. He expected the storage room would call him to make the payments if needed. That is the reason why he would have reminded Antal BABOS to pay the rent for the storage unit. Torsten TRUTE says he has never been to the Carex unit. He also let Antal BABOS use that credit card to fill up the Jetta company car. [ 147 ] In the Carex storage unit, one of his fingerprints was found on a garbage bag containing a silencer.

The accused explains the situation by the fact that the bag bearing his fingerprint could have come from his house, his office or Bar l'Escale. He says he had no knowledge of the drugs and weapons found in the Carex storage unit. [ 148 ] About the envelope bearing the inscription SERGIO found at the Carex storage and the letter inside it [11] , he says he doesn't recognize the envelope but he knows about the letter, which he wrote himself. He explains this letter was addressed to Frank NUCCI. He had problems with a lot of criminal organizations to which he owed money.

Frank NUCCI wanted to drag Torsten TRUTE and Sergio PICCIRILLI into the family of Tony MUCCI. He would have gotten the accused into trouble because these people were looking for Frank NUCCI to pay them back through him. For this reason, the accused would keep track of all his debts to report to his creditors.

Frank NUCCI was found dead in a burned car on 31 October 2005, after Torsten TRUTE complained about him to a mafia representative, in a meeting held in the summer of 2005 in Montreal. [ 149 ] Because Torsten TRUTE and Sergio PICCIRILLI had no interest in being associated with MUCCI's organization, he wrote this letter to clear things up. In the summer or fall of 2005, he had an in-person meeting in Montreal with MUCCI's people to explain that he was not responsible for Frank NUCCI's debts and promises. [ 150 ] The project to open the snack bar in Montreal with Frank NUCCI did not bear fruition.

Frank NUCCI had a warrant out for his arrest and court cases pending. Frank NUCCI was supposed to go to jail for about a year but instead of facing the situation, he ran away, so Torsten TRUTE and him parted company. [ 151 ] Concerning cigarette contraband, Torsten TRUTE says that Sharon SIMON and Sergio PICCIRILLI introduced him to Antonietta BIONDI, who at the time was known to him as Adriana MEDRANO. She had her office at 4025 Leman. She was also running the bistro-bar located in the building. She was renting it under Torsten TRUTE's name.

Torsten TRUTE explains that while he did not make money with Canram Impex and Bar l'Escale, he did make money with the contraband of Indian cigarettes. Sergio PICCIRILLI and Antal BABOS were also involved in this illicit business. Antonietta BIONDI was the main buyer. Sergio PICCIRILLI and he were running the business, sharing everything 50/50. Antal BABOS was working for them, doing delivery. Although he says he made money from this business while he was trying to justify his lifestyle, he says it was not lucrative because Antonietta BIONDI ended up not paying him.

He cannot tell, though, even on average, how much money they made. [ 152 ] Concerning the evidence found in his house, Torsten TRUTE says he did not know where the eleven (11) pills of methamphetamine came from. About the gun holster, he says it did not belong to him or to his wife and he ”did not really pay attention to it.” [ 153 ] At the residence of the accused, police found a document which represents the diagram of a pill press, a machine that could be used to fabricate methamphetamine pills. The reason he provides for being in possession of this document is the following.

In 2005, his friend Frank NUCCI wanted to show it to him because he had the intention of using it but, knowing nothing about mechanics, he sought his help to fix it.

He denies having purchased such a pill press and he denies being a drug dealer at that time. [ 154 ] Concerning the need to have three cells phones, he explains that he had a Motorola Razr for his plan for unlimited calls, a Blackberry for e-mails and a Mike Telus to receive calls from people who knew this number in Winnipeg because he had no long distance charges. [ 155 ] Concerning the coded language, he acknowledges that he used it but only for cigarette contraband and not for other drugs, such as cocaine or hashish. ISSUES

[ 156 ] The issues are whether the Crown has proven beyond a reasonable doubt that Torsten TRUTE is guilty of: Count #1 conspiracy to (1) import pseudoephedrine, (2) produce methamphetamine, (3) possess methamphetamine for the purposes of trafficking, and (4) traffic in methamphetamine; Count #2 commission of the offences mentioned in count #1 for the benefit of, at the direction of, or in association with a criminal organization Count #3 On June 21, possession of methamphetamine for the purposes of trafficking; Count #4 possession of a loaded prohibited firearm, a 9mm Smith & Wesson pistol, without being the holder of an authorization or a license under which a person may possess the firearm in that place or the registration certificate for the firearm; Count #5 possession of a loaded prohibited firearm, caliber .38 Bryco pistol, without being the holder of an authorization or a license under which a person may possess the firearm in that place or the registration certificate for the firearm; Count #6 On August 1, possession of methamphetamine for the purposes of trafficking; Count #7 and #8 possession of an unloaded prohibited firearm, a Cobray M 11, with readily accessible ammunition that is capable of being discharged in the firearm, without being the holder of an authorization or a license under which a person may possess the firearm in that place or the registration certificate for the firearm; Count #9 and #10 possession of a prohibited device, a silencer, without being the holder of a license under which a person may possess it; Count #11 storage of a firearm, a .22 caliber Rossi revolver, in contravention of storage regulations; Count #12 and #13 storage of a firearm, a .303 caliber Enfield rifle, in contravention of storage regulations; Count #14 storage of a firearm, caliber 303 Enfil rifle, in contravention of storage regulations; a model 710 30-06 caliber Remington rifle; Count #15 conspiracy to produce methamphetamine, (3) possess methamphetamine for the purposes of trafficking; Count #16 production of methamphetamine.

The Crown's evidence of the conspiracy and the crimes for the profit of or directed by a criminal organization or in association with it. [ 157 ] The accusations put at stake the existence of conspiracies and the existence of a criminal organization. [ 158 ] Counts 1 and 2 are relevant to the conspiracy and doing those crimes for the profit of or directed by a criminal organization or in association with it. Counts 3 to 5 are relevant to the office located at 4025 Leman in Laval.

Counts 6 to 16 are relevant to the Carex storage unit. [ 159 ] The questions are: - What is the involvement of the accused in the alleged conspiracy and other crimes? - Has the existence of a criminal organization, as defined by

section 467.1 of the Criminal Code , been demonstrated? What are the

criminal activities of that organization? Was the accused part of it? [160] Because of the testimony of the accused, the remaining question is essentially to determine the involvement of the accused inthe alleged crimes and, more specifically, whether or nor he had knowledge and control over the criminal activities. ANALYSIS The burden of proof and the testimony of the accused [161] The Crown bears the requirement to prove the guilt of the accused beyond a reasonable doubt. The presumption of innocenceapplies. To avoid mistakes on the burden of proof, in R. v.

W.(D.), (SCC), [1991] 1 S.C.R. 742, the Supreme courtinstructs the trial judge on how to assess the evidence. The judge must first ask himself if he believes the evidence of the accused, and, ifthe answer is positive, he must acquit him. Secondly, if the judge does not believe the testimony of the accused but is left in reasonabledoubt by it, he must acquit him.

Thirdly, even if the judge is not left in doubt by the evidence of the accused, he must ask himselfwhether, on the basis of the evidence which he does accept, he is convinced beyond a reasonable doubt by that evidence of the guilt ofthe accused. [162] The trier of fact, in his assessment of the evidence, may not accept the witness's evidence or may accept all or only part of it.[12]The disbelief of the accused's evidence does not satisfy the burden of persuasion borne by the Crown.[13] [163] Does the Court believe the evidence of the accused or does it raise a reasonable doubt? In White v.

The King,[14] the SupremeCourt of Canada sets out certain guidelines that could assist the judge in determining the issue of credibility. With respect to theassessment of credibility, the court says: It is a matter in which so many human characteristics, both the strong and the weak, must be taken into consideration. The generalintegrity and intelligence of the witness, his powers to observe, his capacity to remember and his accuracy in statement are important.

Itis also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank or whether he isbiased, reticent and evasive. All these questions and others may be answered from the observation of the witness’ general conduct anddemeanour in determining the question of credibility. [164] As said by Maître Calaritis, the accused has been detained for four years, waiting for the opportunity to give his version.

Becausehis defense is based on his testimony, swearing that he was not part of a criminal organization, was not involved in drug trafficking andignored the existence of the drug production, the weapons and ammunitions, assessment of his credibility is crucial. [165] Beside his general submission which amounts to saying he was entrapped by friendship, as his attorney says, in his testimony, theaccused admits having been involved in criminal activities: having been part of a plot for the importation of pseudoephedrine and beingpart of a group of at least four members involved in the contraband of Indian cigarettes. [166] To commit these crimes, he was using coded conversations. [167] The accused recognizes these facts, which are compatible with the Crown's theory: - He was using 4025 Leman and the Jetta for cigarette contraband. - He was acting with Antal BABOS, Sergio PICCIRILLI and Antonietta BIONDI in cigarette contraband. - He was aware of the existence of weapons, as shown by the episode of the delivery of a NORINCO.

They could not belong to SergioPICCIRILLI's “hunting gear.” - He was acquainted with people involved in crime. - He was aware of the risks of being criminalized and targeted by death threats because of doing business with pseudoephedrine. - He was at the heart of these two criminal activities. [168] These parts of the accused’s testimony are credible.

They are made against the accused's interests and the evidence of the Crownsupports them. [169] It does not follow, however, that all parts of the accused’s testimony are credible and must be accepted. [170] For the following reasons, the Court finds untrue and rejects parts of the testimony by which the accused denies being member ora criminal organization, denies being in possession of the drugs for the purposes of trafficking, and denies possession of the weapons andthe ammunitions mentioned in the indictment. [171] Actually, the facts that the accused was himself involved in the contraband of cigarettes and in the importation ofpseudoephedrine negatively affect his credibility.

In cross-examination, he also admitted he did not declare his income from the activitiesof Bar l'Escale. In this way, he demonstrates his contempt for the law, notwithstanding he is not having a criminal record. [172] Before the accused came to the province of Québec, his friends Frank NUCCI and SOKOLSKI were criminalized and victims ofdeath threats. While in Laval, he became friends with PICCIRELLI who is close to the mafia and close to Salvatore CAZETTA who is amember of the Hell's Angels. He also became friends with Sharon SIMON. He became acquainted with François LESSARD, Faizal, Carl

THOMAS, Dominico AGOSTINO, Philippe PORTELANCE, Mario and Ricardo, Giovanni MANDATTO, and Salvatore CAZETTA as mentioned in the evidence. [ 173 ] He got involved in the bar scene. He helped Antonietta BIONDI to rent a space to run a bar. He became the owner of a strip club. He intended to sell NuBreath product in bars. He knew the Hell's Angels wanted to sell drugs in his strip club. Through Sergio PICCIRILLI, he knew how to deal with Hell's Angels to avoid problems for his bar. He knew that Sergio PICCIRILLI and himself were the targets of death threats.

He knew Sergio PICCIRILLI had guns in the building they were renting. He knew bulletproof vests were in the building. He admitted he had a conversation with Sharon SIMON about a gun related to the delivery of a Norinco. [ 174 ] Also, he was using coded language and he suspected his conversations were intercepted. He was legally and financially responsible for the strip bar, 4025 Leman, the Carex storage unit, cars and cell phones relevant to the alleged criminal activities. He did admit transporting from Manitoba to Quebec $150 000 for David SOKOLSKI, when he knew that it was the profits of a drug deal.

He knew that Antal BABOS was laundering money with Sharon SIMON, but he let him use his credit card and the Volkswagen Jetta. At the accused's residence, in his desk, police found a document with the inscription "Lee" [15] which looks like drug transactions accounting, while he explains it would be a document he had written at the end of the 90's or beginning of the 2000’s concerning the purchase of a house of a value of less than $200 0000, in which ten to fifteen people would have been involved.

He was trying to deal with Frank NUCCI's debts related to crime. [ 175 ] Common sense would suggest the existence of a criminal organization as suggested by the Crown, as well as the participation of the accused in the organization and in other crimes. [ 176 ] It does not make sense that he would be blind to the presence of the guns and ammunitions while he was targetted by death threats with his very close friend and business partner Sergio PICCIRILLI.

It does make sense, though, to possess weapons and ammunitions for protection while being at the risk of death, and being in possession of a great quantity of methampetamine pills and paraphernalia, while evolving in the drug underground. [ 177 ] It does not make sense that the accused would not have known the possible uses for pseudoephedrine while he knew about SOKOLSKI's experience, and while he put his money and his freedom at risk investing in this business, for the lure of gain. Paresh PATEL and he discussed possible uses for it on the phone while preparing the trip to India. They also discussed the price.

Drugs and paraphernalia were found on the premises. Frank NUCCI would eventually need him to repair a press pill. He has acces to the drug underground. It then would only make common sense that the accused was personally involved in drug trafficking. It makes sense, in the drug business, to transform pseudoephedrine into methamphetamine and to sell it to increase profit. It makes sense to think that money would come from the sale of drugs.

It is not credible that Bar l'Escale would be a clean bar while we've learned it was Hell's Angels territory in dispute with Sergio PICCIRLLI and Torsten TRUTE. [ 178 ] The accused appears to be an organized, meticulous and resourceful person. He set up the businesses. He took responsibility for the rents, the contracts and the banking. He was concerned with Sergio PICCIRILLI's financial and security situation. He protected 4025 Leman with a security system. He was advising Paresh PATEL for his travels and communications. He was prudent in telephone communications.

He was caring for Sergio PICCIRILLI and Antal BABOS, before and after their arrest. He had managed to leave the country (without money when he left Canada, according to him) and travel from one country to another, remaining at large for many years before being arrested. [ 179 ] With all his capacities, it does not make sense to be as blind and innocent as he says he was about the criminality of his immediate surroundings. I do not believe the testimony of the accused in his attempt to exonerate himself. The Court is not left in doubt by his testimony.

ANALYSIS [ 180 ] It is admitted and established that pseudoephedrine is a named substance in

schedule VI and its importation in the present context is illegal.

The accused admits he participated in a plot for the importation of pseudoephedrine, at least with François LESSARD and Paresh PATEL. [ 181 ] The nature and the quantity of the drugs seized which the indictment refers to are proven beyond a reasonable doubt, through police and expert's testimonies. [16] [ 182 ] The fact that material for the production of methamphetamine was stored at a Carex storage unit and at 4025 Leman is proven beyond a reasonable doubt, as well as the fact that the garage of 4025 Leman was used for the production of methamphetamine.

The photographs speak for themselves. [ 183 ] Police testimonies, exhibit reports, ballistic reports and pictures establish beyond a reasonable doubt the existence of the weapons, ammunitions and silencers stored in these same locations, as well as their capacities and the lack of legal authorization to possess them. [17] [ 184 ] None of these conclusions is challenged. The existence of a conspiracy and the elements of the conspiracy [ 185 ] The conspiracy is defined by section 465(1) (

c) of the Criminal Code . Conspiracy

(1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy: (

c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (

a) or (

b) is guilty of anindictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, beliable; The elements of cons

[…]