)) HIS MAJESTY THE KING – v. –, 2024 ONSC 441

CITATION : R. v. Reid et al, 2024 ONSC 441 COURT FILE NO.: CR-23-70000552 DATE: 20240125 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HIS MAJESTY THE KING – and – JAVONTE REID, GEENA AWAD, and JAMAR BROWN Defendants )) )) )) )) ) ) ) ) Glen Crisp and Adam Schultz , for the Crown Stephen White , for the Defendant Reid John Fennel , for the Defendant Awad Kabir Sharma , for the Defendant Brown HEARD: September 25 to December 5, 2023. TABLE OF CONTENTS A. INTRODUCTION .. 3 B. MR. REID: THE NON-CRIMINAL ORGANIZATION COUNTS . 5 1.

Counts 6 and 7: Trafficking in Cocaine and Heroin/Fentanyl 5 Voice Identification . 5 Analysis of the Intercepts . 7 The “Flip” Calls . 8 The Kingston Venture . 11 The April 21, 2020, Arrest of K.G., Mr. Bailey-Ricketts, and Ms. Dittmer 14 2. Count 5: Conspiracy to Commit the Indictable Offence of Trafficking in a Controlled Substance 16 A Criminal Conspiracy . 17 Analysis of the Evidence . 17 3. Counts 14 and 15: Attempt to Obstruct Justice and a Conspiracy to do so . 20 4. Count 16: Counselling to Commit the Offence of Possession of a Firearm .. 24 C. MR. BROWN: THE NON-CRIMINAL ORGANIZATION COUNTS . 27 5.

Counts 6 and 7: Trafficking in Cocaine and Heroin/Fentanyl 27 6. Counts 8-11 and 23-25: Offences Arising out of the Seizures at 707 Vaughn Road, Unit 2, on October 15, 2020 28 D. MS. AWAD: THE NON-CRIMINAL ORGANIZATION COUNTS . 31 7. Count 20: Attempt to Obstruct Justice . 31 8. Counts 21 and 22: August 4, 2020, Flight from Police and Dangerous Driving . 32 E. MR. REID: THE CRIMINAL ORGANIZATION OFFENCES . 35 1. The EWC is a Criminal Organization . 36

Analysis of the Evidence . 38 The Evidence of D.C. Rocha and D.C. Garganis . 40 The Intercepts . 44 (i). There are intercepts where people refer to “gangs” or acknowledge and call each other “gangsters,” “Crips” or “EWC” or “A2A” or “YEG” . 46 (ii). Intercepts reveal a connection between the EWC and the subsets like A2A and YEG .. 47 (iii). Intercepts reveal that Mr. Bailey-Ricketts leads the group with Mr. Charley at his side . 48 (iv). The cohesiveness of the group and its identity are marked by hostility towards certain groups, i.e., the Bloods or the VRB, those who wear red . 50 (v).

Assessment of the intercepts must consider the other facts established by the police investigation that relate to some of the parties said to belong to or associated with the EWC .. 50 Conclusion on Criminal Organization . 52 2. Count 1: Criminal Organization Offence: Instruct to Traffic in Drugs . 54 Mr. Reid’s Membership in the Criminal Organization . 54 Hearsay Utterances and the Common Unlawful Design E xception to the H earsay R ule . 54 Analysis of the Evidence . 56 Proof of the Other Elements of the Instructing Count 59 3. Count 2: Criminal Organization Offence: Traffic in Drugs . 62 4.

Count 3: Criminal Organization: Conspiracy to Traffic in Drugs . 62 5. Count 17: Criminal Organization Offence: Instruct to Commit Forcible Confinement 63 F. MR. BROWN: THE CRIMINAL ORGANIZATION OFFENCES . 64 1. Count 2: Criminal Organization Offence: Trafficking in Drugs . 64 Is Mr. Brown a Member of the Criminal Organization? . 64 Analysis of the Evidence . 66 6. Count 3: Criminal Organization Offence: Conspiracy to Traffick . 68 a. MS. AWAD: THE CRIMINAL ORGANIZATION OFFENCE . 69 E. FINAL DISPOSITION .. 73 S. NAKATSURU J. A.

INTRODUCTION [ 1 ] Javonte Reid, Jamar Brown and Geena Awad are accused of being a part of or associated with the Eglinton West Crips (“EWC”) street gang. The EWC’s sphere of influence is said to run roughly along Eglinton Avenue West going westward from the Allen Road in Toronto, Ontario. The EWC is allegedly involved in numerous criminal activities, including drug trafficking, robberies and firearm possession. Their operations in Ontario purportedly extend as far as Thunder Bay and Sault St. Marie in the north and to Kingston in the east. [ 2 ] On no theory are the defendants the top leaders of the said gang.

During the period spanned by the indictment, Mr. Reid was in jail. Ms. Awad mainly patched collect calls from Mr. Reid to other alleged gang members. Other than doing low-level drug trafficking, Mr. Brown is seldom on the numerous wires that form the bulk of the Crown’s case. [ 3 ] The most serious charges leveled against all three of the accused are various criminal organization offences. But they are also charged with other crimes such as drug trafficking, conspiracy, obstruction of justice, possession of drugs and dangerous driving.

These charges arose out of a sprawling police investigation named “Project Sunder” (the “Project”), which ran for many months. The police investigated a large cast of characters. [1] And Mr. Reid, Mr. Brown and Ms. Awad were caught in the Project net as it trawled for gang members engaged in criminal activity. Along with the

Part VI interceptions of private communications, covert cameras, social

media searches, surveillance, production of subscriber information, location-based data of phones (“LBS” data and mapping) and searches were involved. This large-scale operation resulted in the mountain of evidence called by the prosecution to prove the charges, including expert witnesses, a large body of documentary and visual evidence and agreed statements of facts. [ 4 ] The defence called no evidence. They submit that the Crown has failed to prove beyond a reasonable doubt the various essential elements of the offences. [ 5 ] Proving many of the charges depends significantly upon circumstantial evidence.

Thus, to meet the high burden of proof on the Crown, I must be satisfied that the accused’s guilt regarding the material count is the only reasonable inference that can be drawn from the evidence. In this assessment, I must consider not only the evidence but also the absence of evidence. This means to convict Mr. Brown, Mr. Reid or Ms. Awad, I must be satisfied that the circumstantial evidence, assessed logically and in totality, in light of human experience, excludes any other reasonable alternative other than guilt.

If there is a reasonable inference or conclusion other than guilt, the Crown will not have met its burden of proving the case beyond a reasonable doubt: see R. v. Villaroman , 2016 SCC 33 , [2016] 1 S.C.R. 1000. [ 6 ] In this decision, I cannot possibly review all the evidence, especially the numerous intercepts of private communications. Moreover, to explain the reasoning process in an overly granular way is impractical. As such, only the necessary signposts showing the way to the verdicts will be highlighted. I will make the required factual findings.

The law will be applied. [ 7 ] To start, I will repeat what I said in court. At the end of the trial, it was made clear to me that the defence was not objecting to the admissibility of any of the Crown evidence. [2] With that being said, even admitted, the evidence must be used only for its proper purpose. For example, “bad character” evidence will not be used in propensity reasoning. If admitted as circumstantial evidence for the purpose of proving the criminal organization, its use will be limited to this purpose.

Another example, if hearsay is admitted, it will only be admitted and used in accordance with the law of evidence, including the law regarding the unlawful common design hearsay exception. [ 8 ] Mr. Reid, Mr. Brown and Ms. Awad have been charged with substantive indictable offences that also form a part of the Crown’s proof of the criminal organization offences. I agree with the Crown that a useful way to analyze the evidence is to begin with those offences before tackling the criminal organization offences. I will deal with each defendant separately. B. MR. REID: THE NON-CRIMINAL ORGANIZATION COUNTS 1.

Counts 6 and 7: Trafficking in Cocaine and Heroin/Fentanyl [ 9 ] While Mr. Reid was in jail, the Crown alleges that between March 6, 2020, to October 15, 2020, Mr. Reid trafficked in both cocaine and in heroin and/or fentanyl. [3] Obviously, given his incarceration, Mr. Reid was unable to personally sell, administer, give, transfer, transport, send or deliver the drugs in the outside world. Rather, the theory of the Crown is that Mr. Reid was a party to the offence of trafficking. [4] In one instance, the Crown submits that Mr.

Reid made an “offer” to transport or give drugs. [ 10 ] The key evidence are the intercepts. But the entire body of evidence must be considered not only because they are independent evidence proving the charges, but also because they provide the background by which one can interpret and assess the weight of the evidence. [5] Before delving deeper into the body of evidence, I must decide a preliminary fact in issue.

Voice Identification [ 11 ] Naturally, in wiretap-centric prosecutions, the Crown must undertake the task of proving the person communicating on the phone is the person identified to be that person in the transcripts. The Crown relied on certain specific intercepts for voice identification of the various parties. As well, the Crown urges me to consider the entire body of evidence to make this factual determination of who the person speaking on the calls is. [6] [ 12 ] Only Mr.

Reid contests his voice identification. [7] [ 13 ] I am satisfied that the Crown has proven beyond a reasonable doubt that the defendant, Mr. Reid, is the Mr. Reid in the calls for the following reasons. [ 14 ] First, the man is calling from jail. Mr. Reid is in jail. While there is no evidence from a custodial institution confirming that it is Mr.

Reid, who is calling on the intercepts, and while, at any given time, many males are in custody in this province, this fact provides an important context in identifying who this caller is. [ 15 ] Second, this person makes references in his calls that are consistent with Mr. Reid’s circumstances. This person was looking for a surety to get bail. Mr. Reid had been denied bail on the charges he was in custody for on March 2, 2020. This person in custody said his lawyer was “Jennifer Bellere.” Mr. Reid’s lawyer at his bail hearing and at his plea was Jessica Belisle. Mr.

Reid wanted K.G. to send monies to his sister, “Latoya Reid.” While no evidence was led that Mr. Reid had a sister by that name, it remains quite probative that the person referred to as a sibling shares Mr. Reid’s last name.

[ 16 ] Third, this person self-identifies or is called by others as “P-loc” or “P” in the calls. [8] While there is no direct admission from Mr. Reid that he uses this nickname, its consistent use over several calls by this person shows it is one and the same person on the calls. [ 17 ] Fourth, the surety declaration and the March 2, 2020, bail hearing transcript, shows Ms. Awad was the proposed surety for him. This shows a connection between Mr. Reid and Ms. Awad which provides an explanation why Ms. Awad is patching his calls from jail. This supports the factual finding that it is Mr.

Reid and not some other inmate calling into Ms. Awad. Moreover, in a March 10, 2020, call between Ms. Awad and K.G., they talk about this very bail hearing. [9] This is evident by the fact they refer to what to them was a humorous incident at the bail hearing where “P” testified. Specifically, Mr. Reid did not recall Ms. Awad’s last name. This occurred despite Ms. Awad being put forward as his girlfriend at the bail hearing. The bail hearing transcript confirms that Mr. Reid did not know her last name under cross-examination.

This is unique circumstantial evidence that supports the identification of “P” or “P-loc” as Mr. Reid. To be clear, I am not using this call for a hearsay purpose but as an item of circumstantial evidence. In other words, Ms. Awad expresses knowledge to K.G. about a bail hearing in which she participated and witnessed Mr. Reid testify in this memorable manner. Probative to that is the fact that such a bail hearing took place in exactly the same way for Mr.

Reid. [ 18 ] Finally, although the defence submitted that it is nearly impossible to distinguish the voices between any of the male speakers in the calls, I have no doubt that the person identified to be Mr. Reid in the calls is one and the same person from call to call. Over the course of numerous intercepts, I have come to recognize his voice. The tone and timbre of his voice is the same. Moreover, this person’s manner of speech is somewhat distinctive. For instance, after the automated voice from the phone company permits the caller to introduce himself, Mr.

Reid often uses what to my ears sounds like inanities such as “yerp, yerp, yerp” rather than his name or identity. Plus, the context is the same. That is, he is calling from prison using one or more different persons to accept his calls who then usually transfers Mr. Reid to another person he seeks to get in contact with. The very fact that this person uses Ms. Awad or another person, identified to be a Rodell Nancoo, supports the finding that it is one and the same person between the calls. Finally, the substance of the calls assists in establishing that it is the same person speaking.

For example, the person from jail is regularly looking for a surety or money for his lawyer or canteen, and he approaches the same identifiable persons such as K.G. for help. Analysis of the Intercepts [ 19 ] The Crown theory is that Mr. Reid aided and abetted or was a principal in trafficking cocaine and heroin and/or fentanyl. [ 20 ] The essential elements of the offence of trafficking are well known. The issue is whether the Crown has met the standard of proof beyond a reasonable doubt.

Essentially, I must decide whether the intercepts when they are looked at, along with the whole of the evidence, prove beyond a reasonable doubt that Mr. Reid is involved in drug trafficking from jail. As pointed out by the defence, there is nothing express in the intercepts regarding explicit references to any illegal drugs such as “cocaine,” “heroin” or “fentanyl.” On the other hand, I would not expect there to be any of those references in these circumstances. [ 21 ] The Crown submits that when the intercepts are looked at, they reveal a number of trafficking incidents.

The Crown further submits that these incidents also meet the definition of a conspiracy. [10] These are: • Trafficking mainly to K.G., Kwesi Armoo, Brian McPherson, Kenyon Horne-Cabral, as evidenced by Mr.

Reid using vague or coded language such as “flip” or “turn” money during the time period in the indictment; • Trafficking to Carlton Jones and Bryan Herrington in April of 2020 during the latter persons’ trafficking venture to Kingston, Ontario; and • Trafficking revolving around the April 21, 2020, arrest of Vito Bailey-Ricketts, K.G., and Victoria Dittmer on Highway 400 heading north from Toronto. [ 22 ] I appreciate why the Crown has separated out these incidents to provide some manageable parameters to the evidence.

However, in my opinion, the proper analytical approach to the evidence is to assess it in a holistic fashion taking into account the relevant context. If one looks at a singular intercept, for instance, where Mr. Reid has discussions about “flipping” something, while it might be suspicious, it is hard to take from that Mr. Reid is referring to drugs or is encouraging someone to do a drug transaction on his behalf. Yet when the intercepts, in which Mr. Reid is involved in, are viewed cumulatively and collectively, placed in the right context, I can arrive at their correct

interpretation. [ 23 ] The context includes the following: Mr. Reid is in custody, and he expressly states on more than one occasion that he needs money, whether it be for canteen, his lawyer or a surety. Also, during the relevant time period, K.G., Mr. Bailey-Ricketts, Mr. Jones, Mr. McPherson, Mr. Herrington and Mr. Armoo are trafficking in

Schedule I substances. [11] From the intercepts, it is obvious that Mr. Reid knows these people and has mainly cordial relationships with them. The defence submitted that these people all grew up in the same neighborhood as a possible explanation for their association.

Although I have little direct evidence of this, from inferences that can be drawn from the total body of the evidence, including photographic evidence of associations and social media, I can conclude that they all know each other, seem to be quite attached to the area of Eglinton Avenue West and spend a great deal of time there. [ 24 ] There is the general nature of the calls. Mr. Reid is talkative, confident, humorous, quite open at times, and secretive or cryptic at other times.

He talks about others and things going on both inside and outside prison, in what the defence has accurately described as being gossip, though the gossip often revolves around what seems to be criminal behaviour or gang activities. His choice of language and phrases has a quality – and I say this without resorting to stereotype or meaning any offence – of “street talk” or slang. It is not always familiar to my ears. Others who converse with Mr. Reid have the same manner of speech. In this context, one must be careful about ascribing meaning to the words used. [ 25 ] Let me turn to the relevant intercepts.

The “Flip” Calls [ 26 ] In a number of calls mainly during the months of March and April, 2020, [12] Mr. Reid asks the person he is speaking with to “flip” some money for him. He refers to the act of “flipping” the money as turning a certain amount into a larger amount, often in a specified period of time. For example, on March 9, 2020, Mr. Reid tells Mr. Horne-Cabral that he has some dollars and asks if he gives it to Mr. Horne-Cabral, like seven bills, [13] could he “flip” it for Mr. Reid and return like nine bills or whatever he can make from the seven, in a month. Mr. Horne-Cabral was agreeable.

In the same call, he tells K.G. that if he has change, he wants to just keep “flipping” while he is in there (jail) [14] . K.G. said he would see. [ 27 ] There are other calls. On March 15, 2020, Mr. Reid asks K.G. if he could “flip” five bills and make it into seven by the end of the month. K.G. is uncertain as he owes someone money but says he will try. Mr. Reid states he is kind of short for his lawyer. On March 17, 2020, when they are talking about Mr. Reid needing money for his canteen, K.G. tells him he was going to check in with the boy Mr.

Reid gave two bands [15] to in order make sure the boy is “flipping” the two bands. Mr. Reid assures his friend that he was, and the boy owes him seven more and he is good. It seems from the conversation Mr. Reid used that money for his bail hearing. On March 19, 2020, Mr. Reid asks Mr. Armoo if he is “flipping” his dollars out there and asks who has his dollars. Mr. Armoo replies “K-slime” has it. On March 22, 2020, Mr. Reid asks Mr. Armoo to make sure that he is “flipping that too”. Mr. Armoo is confused and thought Mr. Reid wanted it back or to take out the nine. Mr.

Reid says no to that and asks why he would want to take out the nine. Mr. Armoo said his boy had told him that and said Mr. Reid had wanted to send it to his sister. Mr. Reid said he thought Mr. Armoo had it as his boy said he gave it to him, so if anything, “just flip it fam.” Mr. Armoo replies he has the nine and did Mr. Reid want it “flipped.” Mr. Reid affirms that and says “flip” the nine and make like twelve or fourteen. On April 4, 2020, Mr. Reid is asking Mr. McPherson to send the “change” to his sister by the same email transfer he gave him. Mr.

McPherson replies he will send some for the canteen but then would have still five for Mr. Reid. Mr. Reid says when Mr. McPherson is done “flipping” it, “boom,” just send it to him. Mr. McPherson is a bit confused and asks Mr. Reid if he wants him to keep trying to “flip” it, like to make more?” Mr. Reid replies send him the “change” when he needs it. On April 19, 2020, Mr. Reid discusses with Mr. McPherson a potential surety. Mr. Reid says to Mr.

McPherson to tell the “ugly guy” to find a driver for his surety and to try to “turn” the nine into like fifteen for his surety and his lawyer. [ 28 ] The Crown submits that these conversations refer to drug dealing. To establish that the Crown relies on a hypothetical put to Detective Duffus about the use of the word “flip” in a drug context. [ 29 ] Generally, I accept the testimony of Detective Duffus, the drug expert, about the various terms he has provided in his lexicon: R. v. Bakal , at paras. 75 to 89. He is a very experienced officer. He was not substantially impeached in cross.

Finally, and most importantly, the usage of many words that are found in the lexicon, as spoken by the speakers in the intercepted communications, support Detective Duffus’

interpretation. [ 30 ] Regarding the hypothetical posed to him, the officer testified that “flipping” could mean make more of a drug by adding a cutting agent to increase the quantity of a product. This cutting process can be done for cocaine or heroin/fentanyl . One could thus “flip” five into seven, by doing so. The numbers could refer to weight like ounces or to money. [ 31 ] The Crown also pointed to other intercepts where other persons like Mr. Jones used “flip” in a drug context. However, Mr. Reid is not a speaker in the conversation.

While this is supportive of Detective Duffus’ expert opinion on how “flip” can be used depending on the context, it is not as probative of how Mr. Reid used it in his conversations. [ 32 ] I find that Detective Duffus’ opinion about “flip” when it is used in relation to money, is not as probative as when “flip” is used in relation to drugs. The latter makes sense in terms of cutting a drug to make more.

But to say when someone is using the term “flip” in relation to money, even when speaking to someone who is a known drug-trafficker, means cutting cocaine or heroin/fentanyl to increase the amount to sell, is less persuasive and an over-extension of his expert opinion. It could mean that. But it does not necessarily have to. I also observe that Detective Duffus did not include “flip” in the written drug lexicon that was filed as an exhibit. I find that without more substantive content in these conversations involving Mr.

Reid that point in the direction of drug trafficking, such a conclusion is not warranted. [ 33 ] Also, I note in a call between Mr. Reid and Patrick Williams, [16] relied on by the Crown to prove a conspiracy, Mr Reid uses the word “flip” in a different way. He asks Mr. Williams if he was gonna “flip the whip.” “Whip” has been referred in other intercepts as meaning a “car” but when Mr. William replied he was going to “flip” it for an “extra four bills,” this seems unlikely.

Given Detective Duffus’ lexicon, “whip” can be a shorthand form for “whip it,” meaning to cut a drug. “Whip” as used in the intercept could refer to a cutting agent. This makes sense to me. Thus, as used by Mr. Reid and Mr. Williams, “flip” means nothing more than to sell, or to sell for profit. In the same call, Mr. Reid says he might send Mr. Williams out to “flip some work.” While this could be referring to drugs, in context, “flip” means simply “to do.” This shows that “flip” is not always used by Mr.

Reid in the fashion as opined to by Detective Duffus. [ 34 ] Looking at this evidence, I find that the conversations relied on by the Crown are highly suspicious and could well refer to Mr. Reid asking people to traffic in drugs. This is especially so since the evidence establishes that the people he is talking to, are people who traffick in drugs. But when Mr. Reid uses the term “flip” or “turn” certain numbers, based on the context, he is referring to money and not drugs. He wants these people to make a certain sum of money into a larger sum. Because he needs it due to being in jail.

Other intercepts show that money indeed finds its way to Mr. Reid. [17] What is not certain is how that money is to be increased. Even when the whole of the evidence is considered, the use of the word “flip,” and the somewhat secretive way this is talked about, while demonstrating a very good likelihood Mr. Reid is speaking of drug trafficking, it does not reach the degree of requisite proof in a criminal trial. It is reasonably possible that some other form of illegal activity other than trafficking in cocaine or heroin/fentanyl is involved.

I have no doubt though, given the surrounding circumstances, that what Mr. Reid is urging others to do is something illegal . [ 35 ] I remain of this view even taking into consideration the other evidence explained below. In other words, evidence that Mr. Reid is trafficking in drugs or conspiring to do so with others on other occasions, do not push the

interpretation of these calls to the point where I am sure he is telling people to traffic in cocaine or heroin/fentanyl.

[ 36 ] The Crown relies on other incidents of alleged drug trafficking to prove the counts. [18] The Kingston Venture [ 37 ] The Crown submits that Mr. Reid agreed to traffick with Mr. Jones in Kingston in April of 2020. [ 38 ] The key intercepts take place from April 15 to April 20, 2020, largely between Mr. Reid and Mr. Jones. [19] Prior to those calls, on March 10 and 17, 2020, Mr. Reid had spoken to K.G. and Mr. Jones about his Kingston phone [20] and about getting money from the Kingston “thing.” [21] While I cannot take too much from this, this does show a connection that Mr.

Reid has to Kingston. [ 39 ] On April 15, 2020, as Mr. Reid and Mr. Jones speak, they talk about Cole [22] who said he “has some shit” for Mr. Jones, for the “things.” Cole said he had been “holding it down.” Mr. Reid tells Mr. Jones that Mr. Jones had to pick that up and this was getting Mr. Reid excited. Mr. Jones was trying to arrange a drive out there. Mr. Jones also said he had to get some “stuff” to go out there, but he was unable to “re-up.” Mr. Reid asks what that “F-shit?”. The Crown submits that this means fentanyl. But I am not so sure.

While “F” could mean fentanyl, in the transcripts K.G. is often referred to as “F.” Even in that conversation they are having, they speak about if Mr. Jones had sorted things out with “F” (meaning K.G.). In light of this, “F” is too ambiguous to be determined as meaning “fentanyl.” However, there is no doubt what Mr. Reid and Mr. Jones mean next: JONES: Yeah, I need like a bounce [of] some sizzy and what not. REID: Like a zone-az (ph) eh? JONES: Yeah. REID: Yeah, eh. Why, you have half of… you have half of that? I’ll put up half if you want, like I don’t know. Like go halves on it if anything.

JONES: Yeah, I have half. [ 40 ] Based on numerous other intercepts where “sizzy” is used in the context of clearly drug dealing and Detective Duffus’ opinion that it means “cocaine,” I find this is what they are talking about. For the same reasons, I find “bounce” and “zone” mean an ounce. To cement this conclusion, Mr. Reid and Mr. Jones discuss the price as being fifteen a “zone.” According to Detective Duffus, an ounce of powder cocaine was selling for $1,400 to $1,700 at the time. [ 41 ] Mr. Reid says to Mr. Jones to tell Mr.

Reid when he is going over there (I infer this as meaning Kingston), and he will e- transfer the funds right away or even now. Mr. Jones said he will go when it is right. Mr. Reid says he will phone tomorrow. [ 42 ] On April 19, 2020, Mr. Reid tells Mr. McPherson to send “CJ” the “change:” “four bill-as” and some to his sister. When Mr. McPherson queried if Mr. Reid had that much, Mr. Reid says to Mr. McPherson to send him five and nothing to his sister. Mr. McPherson says he will have nothing left. Mr. Reid tells him in a couple of weeks “he” was going to check Mr.

McPherson and drop off some dollars for him. [ 43 ] On April 20, 2020, Mr. Reid asks Mr. Jones if he is “not going out there with any soft, eh?”. Based on all the intercepts and Detective Duffus’ opinion, “soft” here means powder cocaine. This is further supported by the fact when Mr. Jones replied he had to get some, Mr. Reid asks if he is trying to get a “zone” or more than that. Mr. Jones replies, “just a zone for now.” I am sure that the two men are talking about powder cocaine. [ 44 ] Then Mr. Reid chuckles and admits that he has been sitting on “a zone” for a little bit now. Mr.

Jones asks, “of what, of sizzy?”. Mr. Reid says “yeah.” This exchange too confirms that they are talking about cocaine. [ 45 ] Mr. Jones complains why Mr. Reid had not given that to him. Mr. Reid says he tried, but Mr. Jones had said he was not going back out there. And it was complicated as “it’s like all over the place.” When asked, Mr. Jones says that it was likely he was going out there at the end of the week. Mr. Reid then states, “I’m gonna make a man drop it off to you like ASAP.” Mr. Jones says okay and to tell him which man and he would meet him. Mr.

Reid repeats, “if anything, I’m gonna tell him yo give it to you, “okay”?”. Mr. Jones again says that he will meet him. When Mr. Jones asks what Mr. Reid wants back, Mr. Reid says “just go halves” with him unless Mr. Jones wanted the whole thing. When Mr. Jones asked halves on what, Mr. Reid replies “the sizz.” When there seems to be some confusion as Mr. Jones asks if Mr. Reid still had to buy it, Mr. Reid says no he already had it. Mr. Jones agreed to go halves. Mr. Reid says he would call back in twenty minutes. [ 46 ] Seconds after getting off this call, Mr. Reid calls Mr. McPherson. He tells Mr.

McPherson to scratch what the latter was told yesterday as there was a “new plan.” Mr. Reid tells Mr. McPherson to give it to “C.” [23] [ 47 ] Mr. Reid then calls Mr. Jones and says that he just talked to his youth, and Mr. Jones can pick it up whenever Mr. Jones is ready to. When asked by Mr. Jones if it was “rewrapped,” Mr. Reid replies, if it is “rewrapped” it would be his youth who did that, but he was sure that would not happen as he would beat him up. Mr. Reid says whatever Mr. Jones makes off of that, “run” him back his half. Mr.

Jones agrees. [24] [ 48 ] While the Crown points to other intercepts between Mr. Herrington and Mr. Jones that show them going to Kingston to traffic drugs in May of 2020 and which ultimately led to Mr. Herrington’s arrest in May in Kingston, as additional evidence supporting the proof of the charge, it is not necessary to find that the cocaine Mr. Reid offered to give to Mr. Jones was sold by Mr. Jones. [ 49 ] I am sure that Mr. Reid did commit the offence of trafficking in cocaine with Mr. Jones by making an offer to Mr. Jones to have his cocaine given to, sent to or transported to Mr.

Jones by using a third person, Mr. McPherson. I find that Mr. Reid and Mr. Jones

in these series of conversations were talking about a joint enterprise to sell cocaine in Kingston. Mr. Reid wanted to benefit from thattrafficking venture. Anchoring his guilt on trafficking in cocaine, he offers to give Mr. Jones some cocaine he had to further thatobjective. [50] An offer to traffick is proven when the accused offers to traffic in a controlled substance and intends to make an offer that willbe taken as a genuine offer by the recipient regardless of whether the accused intended to carry out the offer: see R. v. Sherman (1977),36 C.C.C. (3d) 207 (B.C.C.A.), (BC CA); R. v.

Murdock (2003), 176 CCC (3d) 232 (Ont. C.A.), (ON CA). [51] I find that Mr. Reid made a genuine offer to give Mr. Jones cocaine. At the time, he intended to carry out this offer. Both theactus reus and mens rea have been proven beyond a reasonable doubt. Thus, he is guilty as a principal to trafficking in cocaine. [52] Moreover, Mr. Reid and Mr. Jones were jointly involved in this proposed scheme to traffic drugs in Kingston. Given that I amnot confident that this scheme, involving the drugs supplied by Mr. Reid took place,[25] Mr.

Reid’s culpability for this overall scheme isbest analyzed under count 5, the conspiracy. The April 21, 2020, Arrest of K.G., Mr. Bailey-Ricketts, and Ms.Dittmer [53] On April 21, 2020, Mr. Bailey-Ricketts, K.G. and Ms. Victoria Dittmer were travelling north from Toronto when their blackBMW X5 SUV broke down. The taxi that picked them up was stopped by the police. K.G. had 59.1 grams of crack cocaine, 65.4 gramsof purple fentanyl and 199 grams of cutting agent in his bag found in the taxi. Ms.

Dittmer had a fraudulent driver’s licence and 8.1grams of purple fentanyl in her sweater pocket that belonged jointly to her and Mr. Bailey-Ricketts. The three had $2,625 in cashamongst them. Mr. Bailey-Ricketts had $1,325 of that amount. After being taken into custody, they were released on undertakings fromthe local police station. [54] From the intercepts, I find this was a joint venture. I will elaborate on this venture later in this decision. The issue for now iswhat involvement if any Mr. Reid had in it. [55] The Crown alleges he was a party to this trafficking.

The trafficking on the facts of this incident relates to the transportationof the drugs. No evidence establishes that any of the drugs were sold before the police seized them. [56] Aside from the calls mentioned above between Mr. Reid and Mr. Jones about the Kingston venture, there are none pre-datingthe April 21, 2020 arrest that expressly refer to Mr. Reid’s potential involvement in the transportation of the drugs by K.G., Mr. Bailey-Ricketts and Ms. Dittmer. However, there are two important calls after their arrest that refer to it. [57] The first happens on April 24, 2020, when Mr. Reid speaks to Mr.

Armoo and asks whether “CJ” came to check him.[26] Atthat point, Mr. Armoo tells Mr. Reid as he had previously said, they put it into “work money” but he had a worse story to tell him. Mr.Armoo says they turned it into the “other thing” and that is why he told Mr. Reid there was not any “change” (money). Mr. Armoo says,let’s call “F” (K.G.) because he gave him the “works and everything.” When Mr. Reid hesitates and sort of despairingly asks if he,meaning K.G., “fucked it up,” Mr. Armoo says that is what it sounds like. Mr. Reid responds emotionally with an expletive. He is upsetbecause he needed the “change.” Mr.

Armoo tries to explain that he just found out about it that morning. Mr. Armoo further explainshow they had been trying to get up there, including himself, and there were problems. Mr. Armoo says to let him try and confirm thingsand not to stress because he did not know if “he (K.G.) lost everything.” Mr. Armoo tells Mr. Reid that Mr. Armoo will go see K.G.because he said he got “knocked” (arrested) and that he is on “H” (house arrest). Mr. Armoo tries to console an upset Mr. Reid by furtherexplaining that he was “gonna just take it and deal with it here” and then give Mr.

Reid the change and pick up the next one, but evenhere, the prices were “stupid.” So, Mr. Armoo decided there was no sense doing it here, he would “just send it over there. You knowwhat I mean?”. Mr. Reid understood. There was no sense touching it here. Rather, he was just going to wait for his boy to go over there.Further, Mr. Armoo was pushing it, to try and speed it up rather than make a “smaller thing” here. They continued to talk about Mr.Reid’s need for money with Mr. Reid saying he was not going to go for bail anymore and was just going to plead. [58] The second call on May 5, 2020, is between Mr.

Jones and Mr. Reid.[27] They discuss K.G.’s arrest and how some peoplesay he got “knocked” and others say he did not. Mr. Jones says K.G. is acting as if he did not. Mr. Reid says essentially whatever, but hehad “put some change down on the … like, I put like a grand, I put like a rickety (ph) on it.” Mr. Jones says it was obvious if K.G. wasnot coming with your “shit,” he got “knocked.” [59] In my view, these conversations prove that Mr. Reid had an investment in the drugs possessed by K.G. I find based on hisreferences to “change” (money) in his conversation with Mr.

Armoo and how they turned it into that “other thing” (something Mr.Armoo says he did not want to talk too much about), that this investment took the form of money converted into drugs. Mr. Armooexplains that is why he had told Mr. Reid there was no “change.” He explained he had sent his boy to make the “change” and then hewould have “change” for Mr. Reid. The conversation with Mr. Jones confirms that it was money, $1,000. This investment was lost whenK.G. lost the drugs. Moreover, based upon the exchange with Mr. Armoo, Mr. Reid understood that his money was going to be used tobuy and sell drugs. As Mr.

Armoo explained the price of drugs “over there,” up north, was much higher[28] than in Toronto. Thus, theywould make more money. This was the reason why Mr. Armoo decided to be involved in the April 21, 2020 venture of K.G. Moreover,it sounded like he may have had plans to go up north himself but eventually K.G. did. Even though drugs are not explicitly mentioned inthe conversation, the fact that K.G., Mr. Bailey-Ricketts and Ms. Dittmer were found with drugs as well as the substance of thediscussions between Mr. Reid, Mr. Armoo and Mr. Jones prove this. Ultimately, I find that Mr. Reid had agreed with Mr.

Armoo abouthow his monies were going to be used; that is, to make money through drug trafficking. [60] All that determined, nevertheless, from the content and tone of those conversations, I am not sure if Mr. Reid knew about thetrafficking done by K.G. He seemed surprised and unaware that Mr. Armoo had specifically given Mr. Reid’s money or the drugs

purchased with that money[29] to K.G. In that call, it was as if Mr. Armoo was breaking the bad news for the first time about what Mr.Armoo had done in getting involved in the April 21, 2020 venture, the arrest of K.G. and the loss of Mr. Reid’s monies. This makessense given the fact Mr. Reid was in custody and did not have the same freedom to be involved in such decision-making as if he was onthe outside. [61] This has an impact on the Crown’s proof that Mr. Reid aided and abetted K.G.’s transportation of the drugs.

The actus reus ofaiding and abetting a principal under s. 21(1) is to do or omit doing something that assists or encourages the perpetrator in committingthe offence. To satisfy the actus reus, a connection between the offence and the acts of aiding and abetting must exist but the connectionneed not be causative: see R. v. Dooley, 2009 ONCA 910, 249 CCC (3d) 449, at para. 123. The mens rea requires proof that the accusedintended to assist or encourage the principal in the commission of the offence.

In order to have the intention to assist in the commissionof the crime, the aider must know the perpetrator intends to commit the crime although they do not need to know precisely how it will becommitted: see R. v. Kirkness, [1990] 3 S.C.R. 74, (SCC); R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras.14-17 and 21-22. [62] Here, K.G. is the principal. While it is a close call, I am not satisfied on these facts that Mr. Reid had the mens rea for theoffence. If anyone, Mr. Armoo aided and abetted K.G. Although his monies were used in a fashion agreed to by Mr. Reid, I have areasonable doubt whether Mr.

Reid intended to assist or encourage K.G. in the commission of his act of trafficking. It is not simply thathe did not know the particulars of how the crime was to be committed. He does not seem to have known at all that this trafficking washappening. Thus, he could not have provided the money for the purpose of aiding or abetting the principal offender. [63] However, I will have more to say about this April 21, 2020 incident when it comes to the conspiracy count. [64] In conclusion, I find that the Crown has proven beyond a reasonable doubt count 6, the trafficking in cocaine given the offerto Mr. Jones.

It is the only rational inference from the whole of the evidence. No other reasonable

interpretation of the intercepts ispossible. I further find that the Crown has failed to prove beyond a reasonable doubt count 7, the trafficking in fentanyl and/or heroin.There is insufficient evidence to show Mr. Reid, either as a principal or a party, trafficked in those specific drugs. 2. Count 5: Conspiracy to Commit the Indictable Offence ofTrafficking in a Controlled Substance [65] The Crown alleges that Mr. Reid and others agreed to traffick in a controlled substance when Mr. Reid was in jail. This is theconspiracy alleged against Mr. Reid in count 5. [66] Initially, Mr.

Brown was also charged with count 5. During final submissions, the Crown stayed the charge against Mr.Brown. [67] Mr. Reid argues that no conspiracy between Mr. Reid and Mr. Brown has been proven. Regardless of the charge being stayedagainst Mr. Brown, the defence submits that the wording of the count mandates the Crown to prove a conspiracy between Mr. Reid andMr. Brown. The Crown acknowledges that no such conspiracy between the two has been proven. Thus, the defence says Mr. Reidshould be acquitted of count 5. [68] This argument is not persuasive. The alleged conspiracy by the Crown does not require that Mr.

Brown be proven to be a co-conspirator. The fact that Mr. Brown is no longer alleged to have been a member of this conspiracy, does not change the nature of thealleged conspiracy against Mr. Reid. Where an indictment alleges that named persons conspired together and with other persons, proof ofparticipation of all named conspirators is not essential. Where the evidence establishes the conspiracy alleged between a named personand a person or persons unknown, the fact that the evidence fails to establish another named person’s complicity does not entitle the firstnamed to an acquittal: see R. v.

Paterson (1985), (ON CA), 44 C.R. (3d) 150 (Ont. C.A.), at pp. 156-7; R. v. Root, 2008ONCA 869, 62 C.R. (6th) 247, at para. 73. [69] Before assessing the evidence, I will outline the fundamental requirements for the proof of a conspiracy. A Criminal Conspiracy [70] A criminal conspiracy is an agreement to commit an indictable offence. The actus reus of the offence is the completion of anagreement that is an unlawful common design. The mens rea is the intention to agree and an intention to put the unlawful design intoeffect: see R. v. Cotroni (1979), (SCC), 45 C.C.C. (2d) 1 (S.C.C.); R. v.

O’Brien, (SCC), [1954] S.C.R.666. Thus, the essential elements are:

i) an intention to agree; ii) the completion of an agreement; and iii) a common unlawful design: seeR. v. Dynar, (SCC), [1997] 2 S.C.R. 462, at para. 86. [71] In considering the elements of the offence, the focus is on the agreement itself, not on what was done because of theagreement. However, acts done in furtherance of the agreement can help to establish the existence of the agreement and the parties’intentions: see Root, at para. 68. [72] Co-conspirators may have different roles in the conspiracy.

They need not know each other, nor communicate directly witheach other, and they need not know all the details of the scheme. Rather, they must each be aware of the general nature of the agreementand intend to adhere to it: see Root, at para. 68; R. v. Longworth, (1982), (ON CA), 67 C.C.C. (2d) 554 (Ont. C.A.), atpp. 565-6.

Analysis of the Evidence [73] A conspiracy is not always easy to prove. Long ago, in R. v. Paradis, (SCC), [1933] S.C.J. No. 72, at p. 168,the Supreme Court said the following : Conspiracy, like all other crimes, may be established by inference from the conduct of the parties. No doubt the agreement between themis the gist of the offence, but only in very rare cases will it be possible to prove it by direct evidence. Ordinarily the evidence mustproceed by steps.

The actual agreement must be gathered from “several isolated doings” … having possibly little or no value taken bythemselves, but the bearing of which one upon the other must be interpreted; and their cumulative effect, properly estimated in the lightof all surrounding circumstances, may raise a presumption of concerted purpose entitling the jury to find the existence of the unlawfulagreement. [74] Based on the whole of the evidence, I am satisfied beyond a reasonable doubt of all the essential elements of the offence. Thecommon unlawful design was to traffick in

Schedule I substances for Mr. Reid while he was in jail. This agreement between Mr. Reidand several co-conspirators existed. Finally, Mr. Reid intended to agree and put into effect the common unlawful design. [75] While I was not satisfied the “flip” references in the private intercepts are related to cocaine or heroin/fentanyl trafficking, thecalls are not irrelevant to the proof of a conspiracy. They show Mr. Reid seeking the help of others on the outside to try and get himmoney that he needs. They show these other persons are willing to help Mr. Reid. [76] The joint venture between Mr. Jones and Mr.

Reid is a conspiracy that falls within count 5. I am satisfied beyond a reasonabledoubt that this agreement was complete. It was a common unlawful design to traffick in cocaine, and Mr. Reid intended to agree and toput into effect this common unlawful design. It was not just the delivery or transfer of the cocaine that was agreed to, but the agreementwas to sell the cocaine in Kingston for Mr. Reid’s benefit. [77] Moreover, the Crown has proven beyond a reasonable doubt the April 21, 2020 incident was a conspiracy between Mr.Armoo and Mr. Reid to traffick in a

Schedule I substance. While I had a doubt whether Mr. Reid aided and abetted K.G., when theintercepts are assessed in the context of what was happening at the time, I am sure that there was a pre-existing agreement between Mr.Armoo and Mr Reid to traffick in drugs so that Mr. Reid could make money even though he is off the street in custody. The agreementwas complete, and Mr. Reid intended to agree and to put into effect the common unlawful design. [78] A third call proves a similar conspiracy between Mr. Reid and Patrick Williams. On June 8, 2020, Mr. Reid speaks with Mr.Williams.[30] Mr. Reid tells Mr.

Williams that in his Snapchat account, he will find the user “sleigh-choppa.” This is the account usedby Shawna McFadden in Kingston who is involved in purchasing drugs from associates of Mr. Reid like Mr. Jones and Mr. Herrington.They have a conversation about how everything out there (Kingston) is “running.” Mr. Reid says, “Bizz” (Mr. Herrington) and theseguys like make eight “bands” ($8,000) in a night. Mr. Reid says that he might send Mr. Williams and “S.G.” out there to do some workfor him, just a little bit. Mr. William agrees if Mr. Reid “supplies the pack.” Mr. Reid asks Mr.

Williams how much an ounce of “sizzy”(cocaine) is going for. He asks sixteen? Mr. Williams says he could get for sixteen from one source, but another source, they are sayingtwo bands, nineteen. Mr. Reid says no way. He was talking about sizzy. They laugh and say two “bands” ($2,000).[31] Mr. Reid tellsMr. Williams to “cop more sizzy” but don’t worry as he got him. Mr. Reid was going to make a call and sort it out for him. Mr. Williamsasks if he will give the guys like a half or a next one on consignment. Mr. Reid says he will tell the guys to go to Mr. Williams and cop ahalf or something. Mr. Williams agrees. Mr.

Reid asks who gave them the “sporadic” price of sixteen. Mr. Williams says “Turk” (Mr.Lopez-Valencia), the one that rolls with “V-Dizzle” (Mr. Bailey-Ricketts). [79] I find that this too meets all the essential elements of a conspiracy between Mr. Reid and Mr. Williams to traffick in cocaine.Like the other conspiracies noted above, an intention and an agreement by the parties that the drug will be further distributed or sold toothers has been proven beyond a reasonable doubt.[32] [80] While each conspiracy falls within the wording and timeframe of count 5 and can anchor Mr.

Reid’s guilt, they are alsoevidence of the broader conspiracy that the Crown seeks to prove in the count. Said differently, these agreements are acts in furtheranceof the broader conspiracy which is between Mr. Reid, Mr. Jones, Mr. Armoo, Mr. Williams and other persons to help Mr. Reid traffickin

Schedule I substances while he was in custody. This is the common agreement that the co-conspirators were each aware of andintended to adhere to and to put it into effect. [81] I am certain that this agreement existed though I do not know who all the co-conspirators were. Looking at the whole of theevidence, it just makes sense. It is the only reasonable conclusion based upon the totality of the evidence. The Crown has painted a clearpicture of a group of drug-traffickers, connected with each other, who were helping each other out in their illegal endeavours, includinghelping Mr. Reid who was in custody.

This is not simply people who are trafficking on their own and then giving Mr. Reid some of theproceeds from that. Mr. Reid is supplying money and/or drugs to them to use in trafficking so that he will receive money that he needsdue to his incarcerated situation, mainly to try and get bail.[33] Moreover, these are not independent individual conspiracies to sell drugsfor Mr. Reid. When the evidence directly admissible against Mr.

Reid is looked at, even without resort to any hearsay evidence under theco-conspirator’s hearsay exception, the Crown has proven beyond a reasonable doubt this conspiracy.[34] It is clear from theconversations that an overall common unlawful design and agreement exists. For example, Mr. Reid does not have to encourage or enticepeople to do the trafficking for him. They readily agree. It is just simply understood. Further, I am satisfied that the Crown has provenbeyond a reasonable doubt the mens rea. This conclusion is the only rational inference from the whole of the evidence. [82] Mr.

Reid will be found guilty of count 5. 3. Counts 14 and 15: Attempt to Obstruct Justice and a

Conspiracy to do so [83] The Crown alleges that Mr. Reid attempted to obstruct justice and conspired with others to attempt to obstruct justice bypaying, pressuring and telling a person to lie in order to obtain a surety for his bail hearing.

This is said to have taken place in April of2020 with the key calls on April 3. [84] After carefully reviewing the whole of the evidence, focusing as urged upon me by the Crown, on the calls involving Mr.Reid on April 3, I find that the Crown has not proven beyond a reasonable doubt the mens rea for the offence of attempt to obstructjustice. [85] The Supreme Court of Canada in R. v.

Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at para. 52, has set out what needs to beproven for the offence of attempt to obstruct justice: ….To sum up, the actus reus of the offence will be established only if the act tended to defeat or obstruct the course of justice (R. v.May (1984), (ON CA), 13 C.C.C. (3d) 257 (Ont. C.A.), per Martin J.A.; see also R. v. Hearn (1989), (NL CA), 48 C.C.C. (3d) 376 (Nfld. C.A.), per Goodridge C.J.N., aff'd (SCC), [1989] 2 S.C.R. 1180). Withrespect to mens rea, it is not in dispute that this is a specific intent offence (R. v. Charbonneau (1992), (QC CA), 13C.R. (4th) 191 (Que.

C.A.)). The prosecution must prove beyond a reasonable doubt that the accused did in fact intend to act in a waytending to obstruct, pervert or defeat the course of justice. A simple error of judgment will not be enough.[35] [86] I have no difficulty with the proposition that bribing, threatening or advising a surety to lie to get bail, would constitute theactus reus of the offence.[36] Upon my review of the evidence, it is an open question whether that was what Mr.

Reid was in fact doing. [87] Regardless of whether the act has been proven, I find that the Crown has failed to prove beyond a reasonable doubt that Mr.Reid intended to obstruct, pervert or defeat the course of justice in saying what he did and doing what he did for the following reasons. [88] First, throughout the investigation, Mr. Reid was keen on getting bail. He needed a surety to do that. He had been denied bail.I can safely infer he was making these efforts to get a surety for a bail review. He solicited many of his contacts in his search for a surety.Of course, there is nothing wrong with that per se.

Many defendants in pre-trial custody are understandably eager to obtain their liberty.Searching for and soliciting potential sureties is a common place and indispensable feature of obtaining pre-trial release. [89] Second, from the intercepts, Mr. Reid asks his contacts to have any potential sureties get in touch with his lawyer. In otherwords, fundamentally, he is trying to go about getting his release in a legitimate fashion. A person in Mr. Reid’s shoes would know thatthat one’s lawyer would question and vet any potential sureties offered. Mr.

Reid would also know that a surety could be closely cross-examined at the hearing.[37] [90] Third, Mr. Reid did not have much success in getting potential sureties. In the intercepts, he is at times frustrated at his lack ofsuccess. Other times, he is elated when someone raises a potential surety. Given general pre-trial conditions in jail coupled with the factthis all happened when the effects of the pandemic were first being felt in our province, Mr.

Reid’s emotional state is a relevant factor inassessing his intent and the relevant comments he makes in the intercepts. [91] Fourth, this brings me to scrutiny of the intercepts. On April 3, Mr. Reid and Mr. Jones speak with each other and they justchat about things, including how the police were fining people who were out during the pandemic. Mr. Reid then asks if the men hadfound a surety. Mr. Jones said no, but then he said Geena (not Ms. Awad) had mentioned she could do it. Mr. Reid is excited at theprospect though he says he does not know her. Mr.

Jones says she knew him as she had braided hair for the guys. Mr. Reid replies hethinks his sister might know her. Mr. Reid says tell Geena to call his lawyer immediately. Almost in the same breath he says tell her thathe was “gonna give her some dollars too for doing it.” Mr. Reid asks when did Mr. Jones talk to her. Mr. Jones says a while back whenGeena had been asking how Mr. Reid was. Mr. Reid says talk to her again and give her a telephone number (his lawyer’s). He is a bitupset at Mr. Jones for not telling him earlier. Mr. Jones responds that Mr. Reid only told him he needed “bread” not someone to bailhim.

Mr. Reid convinces Mr. Jones to call her then and there. [92] Mr. Jones then pauses his call to Mr. Reid and has a short call with Geena. He asks whether she would be a surety for P-locand that he would pay her for it. Geena is very reluctant, sighs, and asks when his bail hearing is and says she will think about it. [93] Mr. Jones gets back on the line with a very enthusiastic Mr. Reid and breaks the news. Mr. Jones enquires about when thebail hearing will be. Mr. Reid says it can be whenever he gets a surety. Mr. Jones makes excuses for Geena saying that her mom is sickand needs to sort it out. Mr.

Reid says he will call back in twenty minutes. [94] A few minutes later, they speak again. Mr. Reid says he has just spoken to his lawyer and that she is waiting for Geena’s callat the telephone number. Mr. Reid asks if she was going to do it or not. Mr. Jones replies she had a lot on her plate. He does not seemsure. Mr. Reid asks if she drives, and Mr. Jones doesn’t think so. They talk about getting a rental car for her (to get to the bail hearing)and Mr. Reid states he will send Mr. Jones dollars to get a rental. He says to Mr. Jones to tell her his “govie” and shit. Mr.

Reid states:“And boo if… if the… the scuddies… the scud… if, if, if my lawyer ask her, tell her to say she’s my sister.” Mr. Jones says okay. Mr.Reid is excited. They then go on to talk about plans for the summer, “big missions,” if he gets out. Mr. Jones talks about the strictness ofthe quarantine and how there were a lot of “boys” (police) out there but not much else. It is “sporadic” out there says Mr. Reid. They talkof things like the Eaton Centre being boarded up. [95] These are the main calls. There are no further calls with Geena. However, Mr. Reid does make other relevant calls. On April4, Mr.

Reid asks Mr. McPherson if Geena is trustworthy and to tell the boys to pressure her.[38] On April 6, Mr. Reid asks Mr. Armooto pressure her.[39] It is a brief conversation amidst a long call from Mr. Reid from jail to his associates where many things are talkedabout. Mr. Armoo says he already did but she had doctors’ appointments though she also had said she was willing. Mr. Reid says to tellher to call his lawyer. Mr. Armoo agrees and says just to give everything to his girl. Mr. Reid complains that she does not even answer

her phone. Mr. Reid says he will give it to Sizz (Mr. McPherson). Mr. Armoo says he will get her to call the lawyer. Mr. Reid says his lawyer says bail is a sure thing. Mr. Armoo says he will pressure her, but Mr. Reid had to think about other potential sureties. They discuss others. Mr. Reid said he tried pressuring “L” but to no avail. Mr. Armoo broached how about “shorty.” Mr. Reid says they were just back on good terms; he does not seem that optimistic and mentioned she and him just had one of those awkward calls (as if they had a past relationship). He laughs. On April 11, Mr. Reid talks to Mr.

Jones. [40] Mr. Reid asks if his girl has called his lawyer yet. Mr. Jones says not yet, and she is basically “moving iffy” as she is concerned about the “housey” (house arrest). Mr. Reid says to tell her he has his own “spot” (place) where he can do it, and that she does not have to hold it and she can pull it as soon as we “get to the Dot.” Mr. Jones replies he tried to explain all that to her and she was gonna get back to him. Mr. Reid thinks she is giving the “run-around.” Mr. Jones says kinda, though she seemed pretty solid. Mr. Reid says in frustration if she still is doing that, “just tell her to fuck it.

Don’t waste your time bro.” On April 19, Mr. Reid is asked by Mr. McPherson if he has a surety. Mr. Reid says yeah. She just needs a drive. Mr. McPherson asks if she is like a guarantee and asks if Mr. Reid is going to “touch road” (get out). Mr. Reid says it should and that “he’s telling her…. I’m telling the person she’s… like, the person’s like my sister and what not.” Mr. Reid wanted money for his surety and his lawyer. [ 96 ] From these calls and others, Mr. Reid’s primary motive is to get out on bail. Motive is not the same as intent.

Even if his motive is to just get out of jail, this does not mean he is not guilty of the intent to obstruct justice. [41] If he intends to obstruct, pervert or defeat the course of justice, regardless of the salutary nature of his motive, he is still guilty. Yet, I am not sure that the Crown has proven that intent. [ 97 ] Mr. Reid on more than one occasion says he will pay Geena money. Mr. Jones actually tells Geena that. However, the amount or the circumstances of that is never set out.

If a person offers to pay a surety money to get them to act as a surety that they would not otherwise have done, that is good evidence proving they intended to obstruct justice. It is not that much different from bribing a witness to not attend court or to attend court and say a falsehood. Despite that, I am not sure that was Mr. Reid’s intent. These references are very brief. There is no planning or lengthy discussion about this. They appear to spring from Mr. Reid’s apparent joy and relief that there might be someone willing to come forward.

The offer to pay seems to come up as an afterthought and is not expressly tied to her coming forward as a surety. Indeed, it was Mr. Jones who initially said she might be willing regardless. The offer to pay seems spontaneous on Mr. Reid’s part. [ 98 ] Additionally, Mr. Reid’s charges were from Sault Saint Marie. His bail hearing was held in Sault Saint Marie on March 2, 2020. I can infer that this is where his bail review would be. Geena clearly would have to travel a long distance to get there. She requires a driver or a rental car.

It may well be that the monies being offered was an offer to pay her expenses, whether her direct expenses such as transportation or accommodation or her loss of opportunity to make money as it seems she braids hair for a living. To offer a surety money for this reason is not strong proof of an intent to obstruct justice. One can make an analogy to offering a witness, lay or expert, reasonable compensation for their expenses to come to court to testify. If there was more to the evidence, aside from these brief allusions, it might have made a difference.

Whatever the offer to pay was, it was clearly not in the amount or of a nature that it provided any incentive to Geena to act as a surety. There is no evidence she ever did. While this is not necessary for proof of the actus reus, it remains relevant in assessing intent . [ 99 ] Moreover, I am not sure that Mr. Reid is telling to get Geena to lie and to say she is his sister. First, Mr. Reid’s use of language is not always clear. He uses a lot of slang. He is cryptic. He is far from an organized or articulate speaker, and some words seem unique to him.

Second, on April 3, when he says to tell her to say she is his sister, this is just one brief remark. When Mr. Jones calls Geena, he does not mention this at all. He revisits this “sister” issue on one other occasion on April 19, when in speaking to Mr. McPherson, Mr. Reid says that he tells “the person’s like my sister and what not.” This is another very brief reference. But this time, it is not quite the same. It is a reasonable possibility that Mr. Reid in using the word “sister” that he is simply referring to a closeness rather than a family relationship.

In other words, he is trying to convince her to act as a surety by such a reference. Again, there is no evidence that Geena ever was told that she should say she was a sister of Mr. Reid. Moreover, it does not make sense that if Mr. Reid was inclined to make up a falsehood to bolster his surety’s background, that he would choose to advise his surety to fake such a close familial relationship that would be so vulnerable to discovery. [ 100 ] The use of the term “pressure” Geena to act as a surety is weak evidence of intent. In the context of its use, “pressure” seems to mean no more than “persuade.” Indeed, Mr.

Reid said he had tried “pressuring” another man to act as surety without luck. With Geena as well, his “pressure” seemed ineffective. Indeed, at one point, he seemed quite resigned to give up if she was unwilling. Moreover, there is no evidence of any pressure whether from Geena or another witness. Without more, the use of the term “pressure” does not establish an intent to obstruct justice. [ 101 ] When all the circumstances are considered, even when added cumulatively, I am not persuaded that Mr. Reid had the necessary specific intent to obstruct justice. Even considering the other evidence of Mr.

Reid attempting to get a surety in order to go for bail, (including the evidence regarding the attempt to obstruct justice with Ms. Awad), I am not satisfied that the Crown has proven the mens rea to the high threshold of proof beyond a reasonable doubt. At the end of the day, these comments may well be simply unguarded, inflated, or injudicious remarks made while in an emotional state in jail to elicit help from a compatriot to whom Mr. Reid is talking to. They can reasonably be interpreted in an innocent manner. [ 102 ] Mr.

Reid is found not guilty of count 15. [ 103 ] With respect to the conspiracy count, my factual findings also resolve this offence. While an acquittal on the substantive offence does not necessarily mean legally Mr. Reid could not be convicted of conspiracy, given that I find he did not have the intent to obstruct justice, an agreement to do so has not been proven. [ 104 ] He is found not guilty of count 14. 4. Count 16: Counselling to Commit the Offence of

Possession of a Firearm [105] Mr. Reid is charged with an offence under s. 464 of the Criminal Code. The Crown relies on the intercepts to prove Mr. Reidcounselled others to possess a firearm knowing its possession was unauthorized. Specifically, the Crown alleges that Mr. Reid counselledK.G. to possess a firearm. [106] In Mugesera v. Canada (Minister of Citizenship & Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at paras. 63-64, theSupreme Court of Canada defined the elements of the offence under s. 464(

a) in the following way: “Counsel[ling]” is defined in s. 22(3) of the Criminal Code, which says that its meaning includes “procur[ing]”, “solicit[ing]”, or“incit[ing]”. To incite means to urge, stir up or stimulate: R. v. Ford (2000), (ON CA), 145 C.C.C. (3d) 336 (Ont.C.A.), at para. 28. The offence of counselling requires that the statements, viewed objectively, actively promote, advocate, or encourage the commission ofthe offence described in them: R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 56.

The criminal act will be made out where thestatements (1) are likely to incite, and (2) are made with a view to inciting, the commission of the offence: R. v. Dionne (1987), (NB CA), 38 C.C.C. (3d) 171 (N.B.C.A.), at p. 180. An intention to bring about the criminal result, that the counsellorintend the commission of the offence counselled, will obviously satisfy the requisite mental element for the offence of counselling. [107] In R. v.

Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432, at paras. 22 and 29, the Supreme Court provided further guidance on theactus reus and the mens rea: In their relevant senses, the Canadian Oxford Dictionary (2nd ed. 2004) defines “counsel” as “advise” or “recommend (a course ofaction)”; “procure” as “bring about”; “solicit” as “ask repeatedly or earnestly for or seek or invite”, or “make a request or petition to (aperson)”; and “incite” as “urge”. “Procure” has been held judicially to include “instigate” and “persuade”. ….

In short, the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence.And the mens rea consists in nothing less than an accompanying intent or conscious disregard of the substantial and unjustified riskinherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, orknowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely tobe committed as a result of the accused’s conduct.[42] [Emphasis in original.] [108] Having set out the law, I will turn to the material intercepts.

The main calls the Crown relies on are the March 10, 2020conversations between Mr. Reid and K.G.[43] To set the context of the calls, the evidence establishes that K.G. is a drug trafficker andlikely wants to possess a firearm.[44] The other general context is that Mr. Reid and K.G. are close, closer in age compared to others andseem to relate to each other as peers. They joke with each other, say they miss each other and perhaps half in jest say they love eachother. [109] There is then the calls themselves. They are both lengthy calls and essentially social in nature.

Though some of what they talkabout are things that law-abiding persons likely do not. On March 10, at 4:30 p.m., Mr. Reid calls in from the jail, with Ms. Awadtransferring the call, and he speaks to K.G. Throughout this lengthy call, the men joke, say foolish things and laugh. K.G. is so euphoricit seems he is high on something. They complain about people. They talk about going to Mexico when Mr. Reid gets out. They talkabout Mr. Reid’s situation and Mr. Reid’s intention to plead guilty to the charges he is facing. They canvass numerous things as if theyare catching up with each other.

In the midst of this, when Mr. Reid asks K.G. how he is making dollars out there, there is theconversation that the Crown relies upon in proof of this count. They have a conversation using terms and slangs that the two are familiarwith. K.G. says he is not with “nobody right now” and it’s just him “holding down the ground with Hommie (ph).” He says to Mr. Reid,“you know what I’m saying.” At this point, Mr. Reid advises K.G. “just be safe out there fam. It’s getting warm outside, that’s when theshooters (ph) come outside.

You know the ones?” K.G. responds he was trying buy a brand new one, invest in a “new bitch” as the“bitch” is two years old. Mr. Reid says K.G. should “holler” and that Mr. Reid has been hearing about “what the prices…I’m hearingfucking Kevin, Kevin Durant.”[45] They then discuss someone and about the numbers of “bills” they had. Mr. Reid laughs. K.G. says hedoes not have “thirty-five” right now. Mr. Reid states, “I don’t want you walking around lacking out there to be honest.” K.G. replies heis “naked, right now” and that “the bitch just has no fucking laces”[46] as he used them all. Mr.

Reid states he could give K.G. “two,five’s in like a week” but K.G. would have to find a “bandeau”[47] though. K.G. says he has a “bandeau” and that Mr. Reid realisticallydid not have to grab a “two, five.” Mr. Reid asks how much he should give K.G. as he did not want K.G. “walking around naked.” K.G.says fifteen or a band, whatever Mr. Reid wants to do. Mr. Reid then says give him a week. They then go onto talk about other things. [110] The same day, March 10, at 7:12 p.m., Mr. Reid speaks to K.G. again. K.G. starts off by complaining about Mr.

Charleydirecting him to look out for opposition members who are walking about their neigbourhood. They then talk about their group. At thispoint, Mr. Reid says to K.G. that the “shit my boy has…like it have the teeth,[48] it have everything but it doesn’t have lace, like itdoesn’t have a tongue for it.” K.G. asks where you can get a “tongue” for it. Mr. Reid says he doesn’t know and then asks K.G. if heknows Mr. Reid’s youth’s older bro and asks K.G. if he knows what he means. K.G. does and Mr. Reid says he will “link” themtomorrow or next week or something. Mr. Reid says he has a “band” and K.G. could get it.

K.G. asks what Mr. Reid wants to do with itlike “put it towards the… thing?”. Mr. Reid asks K.G. said he only needed fifteen. K.G. replies if he was talking about the “thing” thatis what he was asking. Mr. Reid says “yeah, take that and boom do whatever.... If you need a five more bills just tell me in jail.” K.G.agrees.

[ 111 ] Looking at these conversations, I am satisfied beyond a reasonable doubt that Mr. Reid and K.G. are speaking about an unauthorized firearm. Detective Kerr, who was qualified as an expert, testified that “laces” and “teeth” can refer to ammunition. I accept his testimony. He was a credible and reliable witness on this point. This assists in

interpretation but, of course, is not determinative. However, when I assess the entirety of the conversation in context, I am certain this is what the two men are referring to. The men are close friends and given what is discussed in other calls by Mr. Reid, i.e., drug trafficking activities of others, such a topic being discussed by them is most plausible. Moreover, Mr. Reid wanting K.G. to be safe out there because there were shooters outside as it was getting warm and connecting that to the references of “teeth” and “laces” makes the connection stronger.

K.G. in his responses refers to a “bitch” he has but, in his opinion, it has no “teeth” as he had used them. This makes sense if “teeth” refers to ammunition. Finally, there is a discussion about price when they talk about getting a “new bitch” or “thing,” which makes sense if K.G. wished to replace his existing firearm. In my opinion, there is no reasonable alternative to this

interpretation of these calls. [ 112 ] In addition, the later call occurring in the evening on March 10 supports this

interpretation. In this call, Mr. Reid appears to have made some inquiries in the interim and tells K.G. that that he has a source for the gun and that it has “teeth.” He then goes on and says it has no “laces.” However, this is just a mistaken word. He immediately corrects himself and says it has no “tongue.” The Crown submits that this means a firearm magazine. Detective Kerr did not opine on this. I cannot say the Crown is right or wrong. Regardless, it does not impact upon my assessment that they are talking about a firearm. It defies coincidence that Mr.

Reid refers to “teeth” and “laces,” both slang for bullets, in nearly the same breath, if he was not talking about a firearm. Given the references to “teeth” and “laces,” the suggestion made by the defence that they are talking about something else like a taser or a knife is not reasonable. In the call, the two men go on and talk about money, or financing for the firearm, just as they had in the earlier call at 4:30 p.m., again making references to similar amounts. [ 113 ] Moving on, I am also satisfied beyond a reasonable doubt that Mr. Reid is counselling K.G. to obtain this unauthorized firearm.

Viewed objectively, this is the only rational

interpretation of these calls. Moreover, viewed objectively, not only were Mr. Reid’s words advocating it, but also it was likely to incite K.G. to obtain an unauthorized firearm [49] because he wanted K.G. to be “safe” out there. He was actively trying to help K.G. by offering to give him money and to connect him, i.e., “link” him, to persons who might be able to assist. [ 114 ] Finally, I am satisfied beyond a reasonable doubt that the Crown has proven the intent of Mr. Reid that K.G. commit this counselled offence. His statements offering to assist K.G. financially to purchase the firearm and to connect him to possible sources, makes other

interpretations unreasonable. I find that this is not mere talk or gossip. Rather, Mr. Reid, to ensure the safety of someone who appears to be a close friend, wants K.G. to arm himself with an unauthorized firearm. To upgrade from the firearm that he has access to at the moment. [50] Mr. Reid counsels K.G. intending to incite the commission of the offence. [ 115 ] I am satisfied that the essential elements of this offence have been proven beyond a reasonable doubt. Mr. Reid will be found guilty of count 16. C. MR. BROWN: THE NON-CRIMINAL ORGANIZATION COUNTS 5.

Counts 6 and 7: Trafficking in Cocaine and Heroin/Fentanyl [ 116 ] Based upon the intercepts of private communications [51] and the whole of the evidence, including the seizures at Mr. Brown’s home and the testimony of the drug expert, Detective Duffus, I am satisfied beyond a reasonable doubt that during the period set out in the indictment, Mr. Brown trafficked in cocaine and heroin/fentanyl. The defence effectively concedes this. [ 117 ] This suffices for a finding of guilt to be entered on counts 6 and 7. I will add that the evidence establishes Mr. Brown to be only a street-level trafficker. 6.

Counts 8-11 and 23-25: Offences Arising out of the Seizures at 707 Vaughn Road, Unit 2, on October 15, 2020 [ 118 ] In the early morning hours of October 15, 2020, the police executed a search warrant at 707 Vaughn Road, Unit 2, which is a two-bedroom apartment. Mr. Brown was found in one bedroom, dressed only in boxer shorts. Mr. Brown was arrested by P.C. Glucbilmez. A woman, who identified herself as Mr. Brown’s mother, was also in the unit in a different room. [ 119 ] Arising from that search, Mr.

Brown is charged with possession of fentanyl for the purpose of trafficking, possession of cocaine for the purpose of trafficking, careless storage of ammunition, possession of proceeds of crime, fail to comply with a recognizance and breach of prohibition orders (x2). [ 120 ] The Crown relies upon constructive possession. Where the accused does not have physical custody of the object in question, but has in any place, for the use or benefit of themselves, this amounts to constructive possession.

To prove this, the accused must have knowledge of the character of the object, knowingly puts or keeps the object in a particular place, whether or not that place belongs to them, and intends to have the object in that place for their use or benefit: see R. v. Morelli , 2010 SCC 8 , [2010] 1 S.C.R. 253, at para. 17 . [ 121 ] Again, as in other counts, the Crown’s proof is based on circumstantial evidence. Therefore, Mr. Brown’s guilt must be the

only reasonable inference based upon the whole of the evidence. [122] The following is the

summary of the evidence. Most of it was not significantly contested. When the police found Mr. Browndressed as he was, Mr. Brown asked for some pants to put on. D.C. Salcedo-Tigse picked up a pair of track pants in the bedroom Mr.Brown was in. In the right front pocket of the pair of pants, the police found a battery and two pieces of fentanyl. One piece weighed1.37 grams. The other weighed 0.51 grams.

The police also located $510 folded in differing amounts in the front left pocket of his pants. [123] In the closet of the bedroom, the officer located a portable air conditioning box with large white tubing inside. Tucked away inthe tubing was a blue bandana wrapped around an antique “Bull Dog” revolver loaded with three bullets. A large box of red plasticbaggies with Jamar Brown’s name written on it was also found in the closet. To my eye, from the photo exhibits, there are male clothesin the closet. [124] P.C. Gucbilmez found three digital scales (only one operational) in the room.

A black container was located in a shelving unitwith 0.65 grams of cocaine, 1.92 grams of cocaine, 0.21 g of fentanyl, and 5.06 grams of fentanyl, individually wrapped in tied offplastic. In the same shelving unit, the officer found a plastic bag with cannabis as well. Cannabis smoking paraphernalia was also foundon a table. From the headboard of the bed, six cellphones with two turned on were found. The officer found driver’s licences, a healthcard and bank cards in the name of Jamar Brown in the same room. [125] In the other bedroom with female clothing and some cosmetics in it, D.C.

Salcedo-Tigse found a blue bandana and a digitalscale. On the dresser in this room, 1.96 grams of fentanyl was found. In the dresser, the detective located a cube of 22.77 grams of whitesubstance, which did not test as a drug. [126] In the living room, contained within an ottoman, numerous documents belonging to and addressed to Mr. Brown were found. [127] Based on the evidence viewed in its totality, I am satisfied beyond a reasonable doubt that the Crown has proven constructivepossession. First, the intercepts show that Mr. Brown is trafficking in drugs. Second, the drugs were found in Mr. Brown’s bedroom.

Thefact that it is his bedroom is easily inferable based upon the items found there, including the identification and bank cards. These werenot casual items of identification or things with his name on it. They were valuable personal identification and bank cards. Moreover, inthe early morning arrest, Mr. Brown was found in the very room, scantily dressed as if he had just been sleeping. It is not disputed that707 Vaughn is his residence. Mr. Brown was on a release order that required him to reside there.

Third, the circumstances of where thedrugs were located, while not in plain view, lends itself easily to the finding that Mr. Brown would have known about them. Some werein a pair of pants that I find belonged to Mr. Brown. The defence concedes that the Crown has proven his possession of the drugs andmoney found in the pants. The other drugs were in a shelving unit in a container where the inference is irresistible that he would haveknown its contents. It is a fairly valuable amount of drugs. It was in close proximity to his bed and his desk.

Fourth, the control over thedrugs is proven beyond a reasonable doubt given the locatio

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