R. v. Clarke, 2021 NLSC 182

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Clarke , 2021 NLSC 182 Date : September 21, 2021 Docket : 202101G3254 Her Majesty The Queen v. Shane Clarke Before: Justice Frances J. Knickle Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: June 1, 2, 3, 8, 10 and 11, 2021

Summary: The Accused, charged with conspiring to traffic in cocaine and trafficking in cocaine, was tried by judge alone. There was both direct and circumstantial evidence tendered by the Crown. The Accused did not testify, but at the end of the Crown’s evidence, his counsel pointed to evidence consistent with innocence. He argued that the evidence was consistent with the Accused being a “mere purchaser” of drugs and not a member of a conspiracy. He also submitted that there was no evidence that the Accused actually “trafficked” cocaine as that term was understood in the jurisprudence.

The accused was found guilty of both offences. Appearances: Elaine M. Reid Appearing on behalf of the Crown Jonathan E. Noonan Appearing on behalf of the Accused

Authorities Cited: CASES CONSIDERED: Housen v. Nikolaisen, 2002 SCC 33; R. v. Vokurka, 2013 NLCA 51, aff’d 2014 SCC 2; R. v. Root, 2008ONCA 869; R. v. Cotroni, (SCC), [1979] 2 S.C.R. 256; United States v. Dynar, (SCC), [1997] 2S.C.R. 462; R. v. Connolly, 2001 NFCA 31; R. v. Noseworthy, 2018 NLCA 69; R. v. Niemi (2006), (ON CA), 208C.C.C. (3d) 119, 2006 CarswellOnt 2626 (C.A.); R. v. Sokoloski, (SCC), [1977] 2 S.C.R. 523; R. v. Smith, 2007 NSCA19, aff’d 2009 SCC 5; R. v. Genser (1986), (MB CA), 16 W.C.B. 204, 39 Man. R. (2d) 203 (C.A.) , aff’d (1987) (SCC), 2 S.C.R. 685; R. v.

Kelly (1984), (SK CA), 12 W.C.B. 261, 33 Sask. R. 280 (C.A.); R. v. Nguyen,2018 ABQB 366; R. v. Carter, (SCC), [1982] 1 S.C.R. 938; R. v. Barrow, (SCC), [1987] 2 S.C.R. 694;R. v. Longworth, 1982 CarswellOnt 2249, 7 W.C.B. 429 (C.A.); R. v. Sansalone, 2010 ONCA 281; R. v. Bridgman, 2017 ONCA 940; R.v. Baldree, 2013 SCC 35; R. v. Henareh, 2014 ONSC 2588 STATUTES CONSIDERED: Controlled Drugs and Substances Act, S.C. 1996, c. 19; Criminal Code, R.S.C. 1985, c.

C-46 TEXTS CONSIDERED: David Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law Inc., 2015) REASONS FOR JUDGMENT Knickle, J.: INTRODUCTION [1] Shane Clarke has been charged with two offences: conspiring with several others to traffic in cocaine, contrary to

section 465of the Criminal Code, R.S.C. 1985, c. C-46, in respect of Section 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the“CDSA”), and trafficking in cocaine contrary to section 5(1) of the CDSA. Mr. Clarke pleaded not guilty to both counts and his trialproceeded by judge alone over the course of two weeks. This is the decision on verdict. [2] I commend both counsel for their pragmatism and candour regarding the presentation of evidence. Their approach did serviceto the proper administration of justice and to ensuring a fair trial for Mr. Clarke.

OVERVIEW OF EVIDENCE [3] The circumstances were not generally in dispute. There was no challenge to the credibility or reliability of the police officersinvolved in the investigation who testified; including the opinion evidence from Corporal Dave Lane from the Royal Canadian MountedPolice (RCMP). He was qualified and testified as an expert in several areas related to trafficking in contraband substances such as is atissue here. Corporal Lane’s report detailing his opinion as to the practice and features of the drug trafficking business was filed byconsent.

Likewise, the expert analysis identifying various substances seized by the police in the investigation was conceded. Numerousphotographs were tendered by consent. [4] As most of the evidence related to events occurring within the time period of the Indictment in 2018, when I refer to a date, itis for the year 2018 unless otherwise stated. [5] With respect to the alleged conspiracy to traffic in cocaine, Dustin Etheridge was the person alleged to be directing andcontrolling the business of trafficking in cocaine.

It was also alleged that he relied on Bradley Squires and others to handle the details ofparticular transactions such as deliveries or collecting money. Bradley Squires in turn relied on other individuals, such as his sisterJennifer Squires and Corey Stevens, to complete tasks that he was obliged to fulfill. The evidence suggested that this was an ongoingenterprise that occurred both prior to and within the time period covered in the Indictment.

The intercepted communications and visual observations [6] Between the dates in the Indictment there were 79 separate intercepted communications tendered as evidence in support of theoffences. The recordings were played in Court, and book of transcripts of each communication was filed with the Court. Manycommunications were short. Several intercepts were of related conversations or ongoing conversations.

While the intercepts consisted ofprimarily phone communications, there were instances of text communications, and two instances of oral communications that wererecorded as the result of a probe placed at an apartment on Blackmarsh Road, St. John’s, NL. [7] Staff Sergeant Chris Hussey (Sergeant Hussey), with the Royal Newfoundland Constabulary (RNC) testified on behalf of theCrown for the purposes of identifying the voices. He was able to identify many of the voices heard in the intercepted communications.

Although Shane Clarke did not admit the identity of the voices, there was no dispute with Sergeant Hussey’s identification. Given this, Iaccept Sergeant Hussey’s testimony and will refer to the individual as identified by him. [8] There was also evidence of several days of surveillance conducted by the investigators during the time period of theIndictment, presented by way of the notes of various officers’ observations. There was one instance of surveillance of Shane Clarke on

April 22, for which there was viva voce testimony by Sergeant Kenneth Walsh with the RNC. There was also viva voce testimony from Corporal Dave Emberley regarding an arrest of Corey Stevens that occurred on May 4. There were also intercepted communications that corresponded with the events of May 4. None of this evidence was in dispute. [ 9 ] Also not in dispute was the identification of the locations of intercepts or surveillance; including 385 Blackmarsh Road as the residence of Bradley Squires, one of the alleged co-conspirators. The one location not conceded by Shane Clarke was that 21 Griffin’s Lane, St.

John’s was his place of residence. Except for this location, of which I will address later in this Judgment, given the undisputed evidence of the identification of locations, where I refer to locations in my review of evidence, I have found as a fact that this was the location as identified by the officers. All locations were within either the City of St. John’s or surrounding areas. [ 10 ] I will review particular intercepts and evidence as they relate to the elements of the offences.

However, because a significant portion of the evidence related to events on April 25 and between May 3 and 5, it is helpful to review this evidence. The Events of April 25, 2018 – Package Delivered to UPS [ 11 ] There were a series of intercepts (Transcripts, Tabs 30-42) of short phone conversations covering a time period between 12:41 p.m. and 2:30 p.m. on April 25. There was also surveillance conducted by the police covering the time period between 1:35 p.m. and 3:10 pm.

The intercepted conversations are primarily between Dustin Etheridge and Bradley Squires but also include Jennifer Squires, Bradley Squires’ sister, and Bradley Squires’ mother. At one point, an unknown female was overheard. There was little dispute that this evidence established that on this date, Dustin Etheridge directed Bradley Squires to look after shipping a package that included an electronic “speaker” (Transcripts, Tab 32), of which particular contents were to be inside.

The first call recorded Dustin Etheridge telling Bradley Squires that he had to “get that box ready to go” and in the next recording, Dustin told Bradley Squires that it “needs to be done before three.” The conversations illustrate that Bradley Squires arranged for Jennifer Squires to deliver the package.

There is a conversation just after 1:30 p.m. (Transcripts, Tab 36), in which Bradley Squires gave Jennifer Squires instructions to ensure that the package is “taped right around.” Bradley stated twice to Jennifer Squires his concern that if the package was not adequately taped, Dustin Etheridge will “kill” him or he will “be killed.” While Bradley Squires did not use Dustin Etheridge’s name, I am satisfied, having listened to and reviewed these conversations, that Dustin Etheridge is the person to whom Bradley Squires referred when he expressed this concern.

The context, given the conversations between Dustin Etheridge and Bradley Squires before and after this particular conversation, supports no other reasonable inference. The Events of May 3 - 5 [ 12 ] During this time period, there was evidence that Dustin Etheridge, with the assistance of Bradley Squires and others, arranged for a quantity of cocaine to be shipped to Newfoundland and Labrador. As became evident in the intercepted communications, and the fact that he was the person present at the premises and eventually arrested, Corey Stevens was the designated person to receive the package.

He was referred to by Bradley Squires and others as “C.J.” in the intercepted communications. [ 13 ] The transport of the package did not go as planned. The package was expected to arrive on May 3. Unbeknownst to these individuals, on May 3 the shipment was intercepted by the police. Corporal Emberley testified that on this date he received a call just before 8:30 a.m. from an employee at a courier service, UPS, advising that he believed the company had received a “suspicious” package. The package had just arrived and was to be delivered to a location in Mount Pearl.

Corporal Emberley explained that the employee had authority to open packages before calling the police. This is what the individual did, and upon observing the contents, believed they were drugs. [ 14 ] Upon arriving at the courier office just before 9:30 a.m., Corporal Emberley observed the package. He described it as “well taped”; the tape covering most of the package. Corporal Emberley explained that the fact the package was so well taped was consistent with packaging he had seen previously that was used to ship drugs. [ 15 ] Inside the package was a karaoke machine valued at about $20.

When the machine was “opened,” Corporal Emberley observed what was believed to be four kilograms of cocaine in four individual bricks. He testified there were four white bricks inside a speaker. It “looked” and “smelled” like cocaine. Corporal Emberley provided a booklet of photos confirming what he had seen. The photos show the destined address of the label on the package to be 21 Schreyer Crescent, Mount Pearl, and the person to whom the package was addressed as “Brian OKeenly.” [ 16 ] Analysis of the four separate kilogram bricks showed them to be cocaine of between 86 to 88 percent purity.

The street value, according to the testimony of Corporal Lane, was estimated to be a street value of between $120,000 and $150,000. [ 17 ] Relying on their observations, the police obtained a general warrant to conduct what was described as a “controlled delivery” to the designated destination of the package as ordered through the courier service. The police would allow the package to be delivered to its destination, with the contents. The warrant was valid for between the dates May 3 and May 10 and the “controlled” delivery was planned to occur on May 4.

This meant that its delivery, as would have otherwise occurred on May 3, was delayed. This delay was a topic of conversation in the intercepted conversations. In the meantime, the package was secured. [ 18 ] On May 4 the investigative team conducted surveillance near the address of the package’s destination, 21 Schreyer Crescent in Mount Pearl. The courier attempted to deliver the package as arranged by the police, but it was unsuccessful because no one was present to claim the package.

This unsuccessful delivery attempt by the courier caused further conversations between Dustin Etheridge, Bradley Squires and others. As became evident in later intercepted conversations, Corey Stevens was not at the door of the premises but nearby in a parked car. [ 19 ] A second attempt to deliver the package was made later in the afternoon. Corey Stevens was present in the backyard of the premises. When the package arrived, the police arrested Mr. Stevens. [ 20 ] After the arrest of Corey Stevens, there were further intercepts and observations for several days of these same individuals including Shane Clarke.

According to the police witnesses, the investigation might have continued for a longer period, however, because

of safety concerns of the officers regarding some of the conversations intercepted subsequent to May 5, the police ended the investigation on May 16 and effected a number of arrests including that of Shane Clarke. [ 21 ] Shortly after, there were searches of several premises including that of Dustin Etheridge; a garage at Riverview Avenue, Mount Pearl, one of the locations under surveillance, and where the parties, including Shane Clarke, were seen frequently; and 21 Griffins Lane, which, as stated, was believed by the police to be the residence of Shane Clarke.

Joseph Connolly, one of the alleged conspirators, although a resident of Ontario, was arrested in Newfoundland and Labrador. His cell phone was seized and searched. Several images were taken from the cell phone and copies of those images were entered by consent. The Search of Dustin Etheridge’s Residence [ 22 ] Constable Andrew Burt of the Royal Newfoundland Constabulary testified as to the search of Dustin Etheridge’s residence after his arrest.

Several photographs (Exhibit AB#2) showed items located during the search. [ 23 ] A cheque, dated December 3, 2017, payable to Shane Clarke and in the amount of $350 was on top of clothing on a suitcase in what was described as a “spare” room. [ 24 ] There were multiple bundles of cash located in various parts of the house, including over $175,000 on a shelf in a closet. Those bills were organized in bundles of twenty, fifty, and one hundred denominations, with each bundle held together by an elastic band. A money counter was located in the kitchen.

Located on the floor in the master bedroom was a sheet of paper containing a list of names with various numbers either as a single amount, or listed in multiples beside the name. The name “Shane” was one of the names on the list with the number 14,000 beside the name. A second such sheet was found on the nightstand with fewer names and amounts, and a third similar sheet was found in one of the other rooms. The Search of 21 Griffin’s Lane [ 25 ] Constable Burt also testified as to the items located in the search of the residence located at 21 Griffin’s Lane and accompanying photographs (Exhibit AB#4).

The residence was owned by the father of Shane Clarke. The search centered on an area in the downstairs of the residence. Constable Burt testified there was a downstairs suite where the investigators believed Shane Clarke resided. The parents appeared to reside upstairs, and although searched, nothing of consequence was located in the upstairs of the residence. The downstairs suite consisted of a living area, closet, and two bedrooms.

The rest of the basement was described as an undeveloped or storage area. [ 26 ] In what was described as the “master bedroom” in this downstairs suite, a driver’s license was found on the bedside table belonging to Shane Clarke. The driver’s license contained his photo, and identified his residence as 21 Griffin’s Lane. Next to the driver’s license was a small weigh scale.

On cross-examination Constable Burt did not know whether the driver’s license was expired. [ 27 ] Several bags of white powder were located in various parts of the downstairs suite, including 770 grams of a white substance inside two shopping bags under the bed in the master bedroom where the driver’s license was located. Three separate bags of varying amounts, (all under 100 grams), were located in a drawer in the nightstand in the master bedroom.

Another two bags were located in a red book bag, one containing 30 grams of white powder, and another containing 830 grams of a similar substance. [ 28 ] None of the above-described items were positively identified as cocaine. Some of the substances were identified as “appearing” to be a substance known as Phenacetin; including the 770 grams located under the bed. The 880 grams and 30 grams located in the book bag were unidentified. However, one item was positively identified as cocaine. In between the box spring and mattress in the master bedroom .06 grams of cocaine were located.

Also found between the box spring and mattress was $160 in cash. [ 29 ] There was further currency found in a white jacket in the living area; $700 in cash, and a $100 bill was in the nightstand in the master bedroom. [ 30 ] Constable Burt testified that nothing of note was located in the second bedroom, and that the master bedroom appeared to be used or “lived in.” On cross-examination, Constable Burt agreed that the entrance to the basement suite was part of a communal entrance to the house.

It was possible that more than one person could access the basement. [ 31 ] Constable Burt also testified that 15 firearms were seized from the residence; two of which were located in the storage area inside a garbage bag. One was wrapped in bubble wrap. The other had the serial number removed. Constable Burt testified that all of the firearms were returned to Shane Clarke’s father who was legally in possession of those firearms; except for the two located in the garbage bag in the storage area.

According to Constable Burt, those two firearms were not returned to Shane Clarke’s father, as he did not claim to own them. The Search of Joseph Connolly’s Cell Phone [ 32 ] Constable Burt testified as to a search conducted of a cell phone of Joseph Connolly. The cell phone had been seized upon his arrest. A warrant was obtained to search the phone. Thirty images viewed from the phone were entered into evidence (Exhibit AB#1). Some of the images were photographs of what appeared to be a kitchen with several large clear plastic sealable bags containing a substance resembling a white powder.

A mechanical tool, described as a hydraulic press, and a set of scales were also visible on the counter. There were also photographs of what appeared to be a money counter on the top of a stove, and currency organized in various denominations and bundles, bound with elastics similar to what was found at Dustin Etheridge’s residence.

There were further photographs of what resembled a clear plastic bag filled with bills, again bundled in elastic bands. [ 33 ] One of the images taken from the phone was a screenshot of a text conversation with someone identified as brad5454, in which the following was stated: Brad5454 10:38pm Give me a couple min

10:54pm 21 Schreyer Crescent, Mount Pearl, NL Johnnybareback 10:54pm Name? Brad5454 10:54 Shane Andrews [ 34 ] There was also an image, a photograph, of a label of the kind that would typically attach to a courier package. This label in the photograph was identical to the label on the package seized by the police at 21 Schreyer Crescent. The label was addressed to “Brian OKeenly,” and to the same address mentioned in the above text. The date on the label was May 2.

The tracking number on the package was 1Z2980FF0440639286. [ 35 ] There were several images of what appeared to be other tracking numbers related to packages being shipped by courier.

Two of the tracking numbers were associated with packages coming from or going to destinations other than Newfoundland and Labrador, but there were at least three tracking numbers showing packages either being shipped to Scarborough, Ontario, from Newfoundland and Labrador, or vice versa; including the tracking number for the package destined for Schreyer Crescent. [ 36 ] There was also an image taken from the phone that appeared to be a photograph of the General Warrant used by the police to conduct the controlled delivery of the package to Schreyer Crescent on May 4.

The Qualification of Corporal Dave Lane as an Expert [ 37 ] The Crown sought to have Corporal Lane qualified to provide expert opinion in the following areas: … the unlawful possession of cocaine and cannabis marijuana for the purposes of trafficking, trafficking methods and trends, drug distribution chains, drug hierarchies, trusted couriers, drug runners, pricing, jargon, coded guarded conversations, stash houses, methods used to avoid police detection, and cash currency obtained by crime. [ 38 ] While Shane Clarke did not dispute Corporal Lane’s qualifications or opinions, including those opinions as they related to the evidence in these circumstances, part of my role as trial judge is to ensure that this kind of evidence is properly admissible (what is often referred to as a “gatekeeper” function).

Ms. Reid, on behalf of the Crown, reviewed Corporal Lane’s qualifications and experience in drug trafficking investigations. His resume was attached with his report. The Crown also addressed with Corporal Lane why this kind of opinion evidence was both necessary and relevant to the issues I had to decide. [ 39 ] Corporal Lane has almost 20 years practical experience in policing with most of that experience in not only drug trafficking, but also human trafficking, weapons, and many related criminal activities.

He has been qualified as an expert in such areas, or related areas, at many levels of court no less than 64 times. He has also taught extensively in his areas of expertise. Upon review of his qualifications by way of training and practical experience as extensively detailed in his resume and as explained by him while testifying, I was satisfied that Corporal Lane was not only qualified to provide opinion evidence in the areas proposed, but that his evidence was necessary to assist the Court.

His expertise in how the drug trafficking trade works assisted in ascertaining the significance of conduct or conversations or other aspects of the evidence presented in these circumstances. This kind of evidence is necessary because the relevance or significance of the evidence presented might otherwise seem unclear. I was also satisfied that he was an impartial witness, noting that he has both testified and prepared reports for defence counsel; not just the prosecution. [ 40 ] I am not bound to accept his opinions.

I must weigh and decide what evidence to accept, as well as determine the significance of such evidence or inferences that may be drawn from evidence, if any. Having said that, I found that Corporal Lane was a credible and candid witness. For example, while he testified that certain language or conduct was consistent with an aspect of the business of drug trafficking, he did not hesitate to agree where alternative inferences might reasonably be drawn from the same conduct or language used.

He was careful to explain that physical evidence, particular conduct or language was, at most, “consistent” with “drug trafficking” and related aspects of that trade, but not necessarily definitive. [ 41 ] As he impressed me as a credible and candid witness, where there was no dispute as to Corporal Lane’s opinion respecting particular pieces of evidence, I am inclined to give his views significant weight as to what inferences are possible from particular language, as well as the significance of particular pieces of evidence. In so doing, I keep in mind the guidance from the Supreme Court of Canada in Housen v.

Nikolaisen , 2002 SCC 33 at para. 22 , where Iacobucci and Major, JJ. , stated for the majority: “… In making a factual inference, the trial judge must sift through the relevant facts, decide on their weight, and draw a factual conclusion.” See also R . v. Vokurka , 2013 NLCA 51 , aff’d 2014 SCC 22 , at para. 24 , citing R . v. Clark , 2005 SCC 2 , at para. 9 .

Corporal Lane’s Opinion Evidence Regarding Drug Trafficking of Cocaine Generally in Canada [ 42 ] Corporal Lane explained that the first thing to understand about the business of trafficking cocaine in Canada is that cocaine, (unlike cannabis for example), is not a drug that can be locally produced. All cocaine sold in Canada must be imported. There are established source locations outside the country, controlled by cartels who engage with specific individuals or groups hoping to import to Canada.

With the reality that cocaine must be imported comes a clear and established hierarchy of those who handle and distribute the drug once it has arrived in Canada. Corporal Lane explained that as drugs move down through the chain of distribution from sellers higher in the hierarchy to sellers and buyers lower in the hierarchy, money moves back up through the chain from the lowest-level sellers to those at the highest level. [ 43 ] According to Corporal Lane, there are two main concerns of persons at all levels in this trade: being detected by the police, or being robbed by other dealers.

Much time is spent by those involved in the drug trade avoiding detection by police; for example by evading surveillance, or frequently changing communication devices. Corporal Lane stated that the language used by persons trafficking is guarded and often appears to have little meaning if the context is not understood. Corporal Lane stated at page 11 of his report:

Due to knowledge of current police techniques it is common for drug traffickers to attempt to guard and code their language while speaking on the phone or while texting each other. Although the possible combination of code words to guard one’s conversations are endless and is only limited to the trafficker’s imagination, I will say there is usually a consistency found in most guarded drug conversations. Firstly, these conversations are often unnatural in nature and would not flow as a standard exchange between ‘normal’ citizens not involved in criminal activity.

The need for secrecy is often obvious and the omission of actual names and other identifiers can be recognized easily. … [ 44 ] Corporal Lane stated there are several terms that can be considered “universal” to the trade and are provided in a list at page 12 of his report.

Corporal Lane also stated that the longer the relationship between a buyer and a seller, the more coded will be the language because each will know what the other is talking about based on their past dealings. [ 45 ] Corporal Lane also testified that it is essential to establish oneself as someone from whom another dealer would not steal; either by reputation or by demonstrations of authority.

For this reason, the use or threat of the use of violence is frequently present, either within a hierarchy to ensure compliance by those under one’s authority, or to display strength to those who might consider stealing one’s product. The presence of weapons feature prominently. Four Levels of Hierarchy [ 46 ] Corporal Lane described four general levels to the hierarchy of drug trafficking in Canada. [ 47 ] At the top, are persons who import the drug into the country directly from the cartels. Cocaine purchased at this level is of the highest quality and the importation involves large quantities.

Under cross-examination regarding just how many individuals or groups were known to import cocaine into Canada, Corporal Lane responded that it would not be as many as one might think. Importers tend to be well-established criminal organizations, as a cartel is not going to do business with anyone. Corporal Lane described that one cannot just “call up” someone in a cartel. [ 48 ] Persons or organizations who import cocaine will then sell to the next level in the hierarchy, the “high-level” dealers who then re-sell to other dealers.

Persons or groups at the higher levels of buying and selling and distribution tend to be well-insulated and exercise significant control over who has any knowledge about how they conduct themselves. [ 49 ] Corporal Lane explained that the next level in the hierarchy (of which there can be several levels), are mid-level dealers. At this level, dealers typically sell in quantities of half kilograms, 100 gram amounts, 50 gram lots and ounces. There can be many levels of sales at this level, with the cocaine likely being “cut” each time. [ 50 ] At the bottom is the street level dealer.

Sellers at the street level are not typically handling “bricks” of cocaine, but sell in small amounts. Indicators of Hierarchy, Organization [ 51 ] Corporal Lane explained that the higher up in the hierarchy someone is, the more they are able to control who has knowledge about their dealings. Likewise, they are more able to insulate themselves from detection by the authorities. This means that those on the lower echelons might not know exactly what is going on with those in the higher echelons. Likewise, the lower down the chain one sits, the more risk they take.

Corporal Lane testified that if something goes wrong with someone’s business or dealings, the responsibility for the problem does not fall on the person above that person, but on the person to whom the issue has arisen, or the person below in the chain. [ 52 ] Corporal Lane explained that for this reason it is common for dealers who are higher up to use someone else to move drugs from one place to another as a way of insulating themselves from any risk of detection.

Such persons are known as “runners” or “couriers.” They do not necessarily possess as much knowledge as the person for whom they may be moving drugs or money, but are trusted to move the item from one location to another. [ 53 ] In his opinion there were examples in the intercepts of persons who were being trusted as couriers for Dustin Etheridge. [ 54 ] Corporal Lane explained that trust is key to who is privy to information and to how relationships are developed; both in terms of who may work for someone in the trade, as well as to whom a person is satisfied to sell or buy drugs.

One dealer might introduce another dealer to a potential buyer or client. This is typically how relationships are established, as opposed to persons simply contacting someone without someone else first “vouching” for their reliability. The Physical Forms of Cocaine Seen in Trafficking [ 55 ] Corporal Lane testified that persons acquiring large amounts (multiple kilograms) of cocaine typically acquire the cocaine in the form of one kilogram bricks. While the cocaine is naturally in a powder form, the powder is typically pressed into bricks using a hydraulic press.

Corporal Lane testified that in Atlantic Canada, a kilogram brick of cocaine typically sells for between $45,000 and $60,000. The variation in price can depend on the quantity being purchased, as well as the relationship between the parties. An importer will bring in many kilogram bricks of cocaine, which will in turn be sold to high-level dealers. The price, at all levels, will often depend on the level of trust between the buyer and the seller.

Corporal Lane explained in his report that typically the appearance of the cocaine matters to traffickers buying and selling large quantities, because cocaine that is in the form of a brick (or in “chunks” that appear to have come from a brick), are viewed as likely of better quality. However, Corporal Lane stated that it is not uncommon for a seller to break a brick of cocaine, cut it with a cutting agent, and then re-form the substance back into a brick, using a hydraulic press. [ 56 ] At the street level, cocaine sold for personal use is typically between one and two grams, at about $100 per gram.

Another quantity that is typically sold at the street level is what is known as an “8 ball.” An “8 ball” is one eighth of an ounce of cocaine or 3.5 grams; an amount close to the amount someone typically purchases for personal use. Another name for an 8 ball is “game.”

[ 57 ] In Corporal Lane’s opinion, if someone is purchasing or in possession of more than 3.5 ounces of cocaine, it is likely not for personal use only, but for re-selling. [ 58 ] Corporal Lane stated that based on his experience it is common for street-level sellers to used Ziploc type plastic bags (baggies) to sell cocaine for personal use. A common name for individual baggies of cocaine are “decks” at $50 for half a deck (half a gram) and $100 for a full deck, or a full gram. A “zip,” a reference to a baggie, would be a common term for an ounce of drugs.

The use of these types of bags means that the size of the bag is another indicator of level of the seller in the trade. “Cutting Cocaine” and “Cutting” Agents [ 59 ] Corporal Lane further explained that from the point that cocaine is imported and sold to high-level dealers onward, the quality of the cocaine tends to decrease. Each level of dealer is inclined to dilute the strength of the cocaine to maximize their own profit in making a sale. This is known as the cocaine being “stepped on” or “cut.” A cutting agent will be added that is similar to the look and texture of cocaine.

Corporal Lane testified that dealers at the higher levels handle large quantities and want to make the most of their sales, so cutting the cocaine is an easy way to get the most out of the amount that is intended to be sold. By the time the cocaine reaches the level of seller, it is generally of lower quality and has been cut several times with one or more agents. Corporal Lane testified that typically cocaine sold at street level is only 26 to 30 percent pure; meaning that only 26 to 30 percent of the amount actually sold constitutes cocaine.

Corporal Lane testified that the lowest level of purity he has seen at street level was 4 percent actual cocaine. [ 60 ] The level of the purity of the cocaine in possession of a seller or buyer is a reliable indicator of where the person is situated in the hierarchy of the trade. The purer the cocaine in one’s possession, the more likely the higher up in the hierarchy of buying and selling cocaine they are established. [ 61 ] This is relevant in these circumstances. The cocaine seized when Corey Stevens was arrested was determined to be between 85 and 88 percent pure.

Corporal Lane described that this level of purity was very high and that the person in possession of cocaine of this quality was likely a “high-level dealer.” [ 62 ] Corporal Lane explained that persons selling cocaine at the street level sell product of lowest quality because of all the “stepping” that has occurred at the other levels. [ 63 ] Corporal Lane testified that Phenacetin, which the forensic analyst identified as “appeared to be contained” in the substance found in multiple bags under the bed at 21 Griffin’s Lane, was a known agent used to cut cocaine.

Corporal Lane testified that any white powder might be used to cut cocaine, and often is so used. Corporal Lane testified that he has seen “so many” types of cutting agents. In his view, if it is white and has the same appearance as cocaine, it can be used. [ 64 ] In Corporal Lane’s view, whether or not the substance found at 21 Griffin’s Lane was definitively identified as Phenacetin, the fact that it resembled a white powder was consistent with it being some kind of agent to cut cocaine.

Corporal Lane further testified that the amount of the substance found at 21 Griffin’s Lane was consistent with the person using the substance to traffic in “kilo” amounts of cocaine. In his opinion, it was not uncommon to see multiple substances that resembled cocaine, as was found at 21 Griffin’s Lane, and all of the white substances found at 21 Griffin’s Lane were consistent with being cutting agents for cocaine.

Money as Indicator of Trafficking and at What Level [ 65 ] Corporal Lane also explained that the amount of money in possession by an individual also in possession of cocaine is another indicator of where the person sits on the hierarchy of buying and selling. Corporal Lane stated in his report at page 10 (Exhibit DL #1): The drug trade is a cash business and drug dealers will exchange narcotics for money. It is consistent for drug dealers to possess high numbers of small denomination bills. A twenty-dollar bill is one of the most used denominations to purchase drugs.

It is not uncommon for traffickers in the entire drug distribution chain to possess a high amount of small denominations as the money that is collected on the street from users makes its way up the drug chain until the money can be laundered. When there is higher amount of $100.00 and $50.00 bills it is usually consistent with a mid to higher level drug trafficker. [ 66 ] Persons who are buying and selling large amounts of cocaine are often in possession of substantial quantities of cash in small denominations.

Corporal Lane stated this creates logistical problems of not only handling and storing the money, but counting it as well. For this reason, money-counting machines are a typical feature of mid to high-level dealers who need to count and handle substantial quantities of cash. In terms of physically managing large amounts, Corporal Lane testified that it was typical to see money, perhaps $20 bills, bundled into $1000 amounts held together by elastics.

Organizing cash in this way also creates a shorthand method for counting; as a person might count money by counting the bundles, known as a “quick count.” This method of packaging is consistent with trafficking, as the individual bills are typically not like the “crisp” bills seen coming newly minted from a bank.

According to Corporal Lane, typically banks do not bundle bills with elastics, but use paper. [ 67 ] Corporal Lane testified that the photographs of what looked like bundles of cash taken from Joe Connolly’s cell phone (Exhibit AB#1) and Dustin Etheridge’s residence (Exhibit AB#2) were consistent with the way he had seen money organized in other drug investigations. [ 68 ] With respect to Dustin Etheridge, Corporal Lane stated that the amount of cash represented a “high level” of trafficking.

Similarly, the photograph of the money counter seen in Dustin Etheridge’s residence also showed a bag of rubber bands also consistent with a high level of trafficking. While there is no dispute that rubber bands can be used for many tasks, if someone is managing substantial quantities of cash in the form of small bills, a corresponding large quantity of rubber bands, as shown in Exhibit AB#2, Item No. 29, is not a surprising find, as a means to organize the bills.

Scoresheets [69] Corporal Lane stated that a trafficker needs to keep track of sales. This can vary from simple notes on a sheet of paper toelectronic lists on a phone or computer. Corporal Lane stated at page 9 of his report: A score sheet is a common tool used by drug dealers. It is a tool used by a drug trafficker to keep track of their drug sales. A score sheetis a way for a dealer to keep track of the amount of drugs they sell as well as the amount of money that people owe them for drugs. Thenumbers on score sheets are often divisible by 5, have crossed out names on them and/or drug weights on them.

Often, street names andnicknames for the customer and/or the product are used to conceal the true meaning of the sheet. Score sheets can vary from simplenotes on a cigarette package to an organized notebook to electronic debt lists on a phone or computer.

Scoresheets are mainly used bydealers who ‘Front’ or ‘Spot’ drugs to clients. [70] The sheets of paper located at Dustin Etheridge’s residence were described by Corporal Lane as being consistent with being ascore sheet showing money owed to Dustin Etheridge, and by whom. [71] “Fronting” or “spotting” is when a dealer provides a customer with drugs but expects to be paid at a later date for the drugs.

According to Corporal Lane, this is more frequent with a higher level of dealer or person who is not addicted, and where the likelihoodof getting paid is higher. [72] Corporal Lane also testified that a common method of selling drugs is to not sell from a fixed location, but to makearrangements for a location to conduct the transaction by telephone. This is known as the “dial-a-dope” method and according toCorporal Lane occurs at all levels of trafficking.

The advantage to this method is that a location can be selected that will not drawattention such as parking lots of community areas (malls, arenas) or coffee shops or restaurants. It is not unusual for traffickers to changephones often as a means of avoiding detection, as well as using encrypted applications. [73] Corporal Lane also explained that it is common for a dealer, especially those in higher levels, to use what is known as a “stash”house, which is a place to store cocaine until it can be sold or moved for whatever reason.

Storing the drugs at a location other thanwhere the owner of the drugs resides is a way to minimize several risks. It minimizes knowledge by other persons as to where drugs arekept, and also reduces the risk of being caught with substantial quantities if detected by the police. The site is, if not controlled by theowner, controlled by someone who is trusted. It is typically in proximity to where a dealer might reside for easy access. [74] Corporal Lane’s further testimony regarding specific evidence presented at trial is discussed in my review of that evidence.

Likewise, the above and further evidence will be reviewed as it relates to the offences. THE POSITION OF THE PARTIES [75] The Crown submits there is compelling evidence of the existence of an overall conspiracy to traffic in cocaine, as well as directevidence that Shane Clarke not only conspired to traffic in cocaine with the individuals named in the Indictment, but did actually trafficin cocaine during the time period in question.

The Crown submits that there were several intercepted conversations of Shane Clarke withothers from which the inferences could be drawn that he was making cocaine available for sale and that he was working for DustinEtheridge in the business of trafficking cocaine. [76] On the other hand, while neither admitting nor refuting that there was a conspiracy, Shane Clarke submitted the issue iswhether or not Shane Clarke was a member of a conspiracy.

Counsel for Shane Clarke submits that while on its face there wereconversations that may suggest that Shane Clarke was involved in Dustin Etheridge’s alleged cocaine trafficking business, closeexamination of the evidence equally supports that Shane Clarke was a “mere purchaser” of cocaine from Dustin Etheridge and had nounlawful agreement with Dustin Etheridge to traffic cocaine. THE LAW The Standard of Proof [77] The threshold to be met in a criminal matter is proof beyond a reasonable doubt on all essential elements of the offence. This isa high threshold.

Proof beyond a reasonable doubt is closer to absolute certainty than it is to the balance of probabilities. That is to say,it is insufficient to be satisfied that Mr. Clarke “probably” committed these offences. This level of certainty respecting the elements ofthe offences does not meet the level of certainty of proof beyond a reasonable doubt. [78] It is also important to remember that while each element of an offence must be proven beyond a reasonable doubt, individualfacts that do not constitute an element of the offence are established on the balance of probabilities.

The Elements of the Offence of Conspiracy [79] The elements of the offence of conspiracy are described in R. v. Root, 2008 ONCA 869. At paragraph 66, Watt, J.A. stated theelements of the offence of conspiracy are: i. an intention to agree; ii. completion of the agreement; and iii. a common (unlawful) design [80] The actus reus of the offence is the “fact of the agreement” (paragraph 65 of Root, citing R. v. Cotroni, (SCC),[1979] 2 S.C.R. 256 at 276), and is proven upon “proof of the agreement to commit the predicate offence” (paragraph 71 of Root).

Themens rea is the intention to agree and to “put the common unlawful design into effect” (paragraph 66 of Root, citing United States v.

Dynar, (SCC), [1997] 2 S.C.R. 462, at para. 86, p. 511). In Root, Watt, J.A. further stated at para. 67: In conspiracy cases, the important inquiry is not about the acts done in pursuit of the agreement, but whether there was, in fact, acommon agreement in the first place to which the acts are referable and to which the alleged conspirators were privy. Papalia, at pp.276-277; O’Brien at p. 668; Dynar at para. 87; R. v. Douglas, (SCC), [1991] 1 S.C.R. 301 at p. 316.

Said somewhatdifferently, the focus of the inquiry is on whether and, if so, on what was agreed, not on what was done, although what was done infurtherance may help to establish the core element of conspiracy – the agreement. Douglas at p. 40; David Omerod, ed., Smith and Hogan Criminal Law, 11th ed. (New York: Oxford University Press, 2005) at p. 374. [81] Further, at paragraph 71, Watt, J.A. stated: 71 Conspiracy, like attempt, is a crime of intention.

Its factual element or actus reus is established upon proof of the agreement tocommit the predicate offence, for example to possess or launder the proceeds of crime. The factual element in the conspiracy need notcorrespond with the factual elements of the substantive offence that is the object of the conspiracy. The goal of the agreement, thecommission of the substantive offence, is part of the mental element or mens rea of the offence of conspiracy.

Dynar at para. 103.Where the goal of a conspiracy involves the commission of a substantive offence of which knowledge of certain circumstances is anessential element, the mental element is belief. The subjective state of mind of anyone who conspires with others to launder money is thebelief that the money has illegitimate origins. Dynar at para. 108. 72 Among the preliminary or inchoate crimes, conspiracy, although requiring two or more genuine participants, is more“preliminary” than an attempt: Dynar at para. 87.

Conspiracy is also a continuing offence. [82] The above statements of the principles show that it is unnecessary to prove the commission of the agreed upon unlawful designto prove the conspiracy. At the same time, acts done in pursuit of the agreement, or the furtherance of the offences, may be evidence ofan agreement and the intentions respecting the agreement. In other words, it is not necessary to prove members of the conspiracyactually trafficked in cocaine, but evidence that they did traffic may be evidence that there was an agreement to so do.

As stated in R. v.Connolly, 2001 NFCA 31, at para. 33, by Cameron, J.A., for a unanimous court: “Indeed, though trafficking itself is not a necessaryelement of the offence, evidence of the substantive offence can be tendered to support a charge of conspiracy.” [83] Further, while members of the conspiracy may have different levels of knowledge regarding the details of a conspiracy, theremust be knowledge of the “general nature of the common design and be adherent to it.” As stated by Hoegg, J.A. for a unanimous courtin R. v. Noseworthy, 2018 NLCA 69 at para. 14: In

summary, the law of conspiracy does not require that each conspirator join the conspiracy at the same time (Papalia at 276) or that allmembers of the conspiracy play equal roles (F. (J.) at paragraph 54). A person may become a member of a conspiracy that is already inprogress or leave while it continues, and a person may be a member of a conspiracy even if he or she does not have knowledge of all ofthe details of the common scheme (Niemi at paragraph 68). [84] See also R. v.

Niemi (2006), (ON CA), 208 C.C.C. (3d) 119, 2006 CarswellOnt 2626 (C.A.), at para. 68: “Regardless, there is no requirement that a particular member of the conspiracy be involved in any particular step in the plan or in anyplanning at all.” [85] And per Watts, J.A., in Root at paragraph 68: It is trite that the roles of individual conspirators may differ widely. The participants need not know each other, nor need theycommunicate directly with one another. Each need not know the details of the common scheme, though each must be aware of thegeneral nature of the common design and be an adherent to it. R. v.

Wolfe (1982), (ON CA), 67 C.C.C. (2d) 554 (Ont.C.A.), at pp. 565 -6. Each conspirator does not have to commit or intend to commit personally the offence the conspirators have agreedto commit. R. v. Genser (1986), (MB CA), 27 C.C.C. (3d) 264 (Man. C.A.) at p. 268 affirmed (1987), (SCC), 39 C.C.C. (3d) 576 (S.C.C.). [86] It is also unnecessary to be satisfied that the accused conspired with each or all of the conspirators named in an Indictment.

Itwill be enough to establish that Shane Clarke conspired with at least one other person, whether named or unnamed in the Indictment(Root, at paragraphs 69 and 76 to 77, and Myles, at paragraph 33). [87] Further, evidence of “negotiations” alone will not be sufficient to establish an agreement, but there may be an agreement tocommit a crime conditional on some other event (Root, per Watts at paragraph 70). [88] Also important in this case, as it was submitted by Shane Clarke as relevant to the circumstances here, that someone purchasesdrugs from another person who may be involved in a conspiracy to traffic drugs, does not make the “mere” purchaser, without more, amember of the conspiracy.

As stated in R. v. Sokoloski, (SCC), [1977] 2 S.C.R. 523, at page 535, the scope of aconspiracy will not extend automatically to “any purchaser of a controlled drug, perhaps a school boy” (see also Noseworthy atparagraphs 24 to 25).

Where there is proof of an agreement between a seller and purchaser for example, for the seller to obtain andsupply drugs to the buyer for the purpose of re-sale, then there may be a conspiracy between the seller and the purchaser. [89] Further, the fact that a seller has “knowledge” that a buyer is going to re-sell drugs standing alone may not be enough toestablish a conspiracy, or the “common unlawful design.” However, such knowledge may afford evidence “from which an agreementthat the buyer would re-sell the drug” might be inferred (R. v. Genser (1986), (MB CA), 16 W.C.B. 204, 39 Man.

R.(2d) 203 (C.A.), aff’d (1987) (SCC), 2 S.C.R. 685, in considering the decision of the Saskatchewan Court of Appeal in R.v. Kelly (1984), (SK CA), 12 W.C.B. 261, 33 Sask. R. 280 (C.A.)). In Genser, the court stated, at page 208: “Theseller can be a party to the buyer’s distribution scheme if he agrees to supply the drug for that purpose. That is a question of fact whichmist be determined in light of all the circumstances.”

[90] Finally, often the proof of an agreement will not be established by direct evidence. It is not surprising, given the agreement isto pursue an unlawful common design, that there is likely no written contract. Instead, the evidence is often circumstantial, or byinferring the meaning of communications and conduct of the parties. [91] In

summary, the Crown must prove beyond a reasonable doubt that there was an unlawful agreement, that this agreement wasbetween Shane Clarke and at least one other individual, that Shane Clarke intended to agree, and that the agreement consisted of acommon unlawful design, in this case to traffic cocaine. The use that may be made of the intercepted communications and statements of other persons than Shane Clarke [92] The conversations in the intercepted communications are guarded, to say the least.

There is the occasional reference to actualdrugs, but as per the testimony of Corporal Lane, rarely are the conversations explicit as to their subject matter. Given this, it is necessaryto draw inferences about what is being discussed in order to ascertain what evidence I accept as establishing particular facts. [93] As the admissibility of the evidence was not in dispute, the parties were not always explicit as to what purpose particularintercepted communications could, or could not, be used.

Because I am being asked to draw inferences about these conversations, andsome of the intercepted communications have the potential to, or do, engage hearsay concerns, it is worth reviewing the applicableprinciples and how they apply to the various forms of evidence tendered. The Out-of-Court Statements as Original Evidence [94] The out of court statements of persons other than Shane Clarke are admissible to establish the existence of an unlawfulagreement, or acts in furtherance of the unlawful agreement.

These are not statements that are being used for the truth of their contentsbut to prove the existence of the unlawful agreement. It is original evidence that proves the fact of an agreement (R. v. Smith, 2007NSCA 19, aff’d 2009 SCC 5, R. v. Nguyen, 2018 ABQB 36). [95] At paragraph 26 of Nguyen, the trial judge quoted from David Paciocco & Lee Stuesser, The Law of Evidence, 7th ed.(Toronto: Irwin Law Inc., 2015) in which the authors concisely explained the admissibility of this kind of evidence: … Those statements that are made in the formation of the conspiracy are not hearsay at all.

They are circumstantial evidence of theexistence of the conspiracy because their relevance lies in the fact that they were said. They are direct evidence of the formation of anagreement to commit an offence, and their admission does not depend on the truth of their contents. This will also be true of moststatements made in furtherance of a conspiracy. On the issue of whether a conspiracy exists, their relevance will lie in the fact they weremade, not in their truth.

Even those statements made by a co-conspirator in furtherance of a conspiracy that are being relied on for thetruth of their contents will tend to have sufficient indicia of reliability to justify admitting on the issue of the existence of the conspiracy.They will tend to be statements accompanying or explaining acts done in furtherance of the conspiracy and, like statements caught by theres gestae exceptions, their context will assist in evaluating their reliability. [96] Having listened to the statements of persons other than Shane Clarke, considered the context in which multiple statements weremade, and in light of the above principles, I am satisfied that the statements made by persons other than Shane Clarke as heard in theintercepted communications are admissible as original evidence to determine whether or not there was a conspiracy.

That is to say, thefact of these conversations and communications is original evidence that may be considered as evidence of the existence of a conspiracy,in this case to traffic in cocaine. The Co-conspirator’s Exception to the Rule Against Hearsay [97] To the extent the statements are used for the truth of their contents to implicate Shane Clarke as a member of the allegedconspiracy, such statements are hearsay. Even as hearsay, such statements may be admissible, as an exception to the rule against hearsay(R. v. Carter, (SCC), [1982] 1 S.C.R. 938, R. v.

Barrow, (SCC), [1987] 2 S.C.R. 694). [98] As per the principle in Carter, to use the statements of other persons for the truth of their contents, as against Shane Clarke, Imust first be satisfied beyond a reasonable doubt that the alleged conspiracy existed. I then must review the evidence that is directlyadmissible against Shane Clarke and decide on the balance of probabilities whether or not he is a member of the conspiracy.

If Iconclude on a balance of probabilities that Shane Clarke is a member of the conspiracy, I must still decide whether the Crown hasestablished beyond a reasonable doubt that he is a member of the conspiracy. It is only at that stage that I may consider the hearsaystatements and acts of the co-conspirators done in furtherance of the conspiracy against Shane Clarke to determine whether or not it hasbeen proven beyond a reasonable doubt that he was a member of the conspiracy.

ANALYSIS Application of the Law to the Facts on the Alleged Offence of Conspiracy There was conspiracy to traffic in cocaine [99] The Crown must prove beyond a reasonable doubt that there was a conspiracy to traffic in cocaine: that is the existence of theagreement to engage in an unlawful common design.

Upon review of all the evidence, I am satisfied beyond a reasonable doubt thatthere was an ongoing agreement between, in the very least, Dustin Etheridge and Bradley Squires to engage in the common and unlawfuldesign of trafficking in cocaine. [100] There was ample evidence that Dustin Etheridge was trafficking significant amounts of cocaine during the period in theIndictment.

In particular, I accept Corporal Lane’s undisputed opinion that the significant amount of money found at his residence, inthe form of bills in small denominations bundled with elastics, is consistent with Dustin Etheridge being engaged in drug trafficking, andat a “high level.”

[ 101 ] As well, the numerous intercepted communications of Dustin Etheridge support no other reasonable inference than as evidence of his acts in furtherance of trafficking in cocaine. [ 102 ] For example, on April 23 at about between 10 p.m. and 10:30 p.m., a lengthy conversation was intercepted between Dustin Etheridge and an unknown male (Transcripts, Tab 29). Corporal Lane testified that many of the statements made in this conversation were consistent with cocaine trafficking.

I accept Corporal Lane’s testimony, and I find as a fact that in this conversation Dustin Etheridge made statements that are consistent with the business of trafficking in cocaine.

I also find as a fact that the unknown male made statements that are consistent with him showing deference to Dustin Etheridge’s authority, as the individual deferred to Dustin Etheridge on where to sell cocaine. [ 103 ] In relation to the events of April 25 described earlier, the observations of the police were consistent with the statements overheard on the intercepts, and I am satisfied that the evidence establishes that on that date, Dustin Etheridge arranged to mail a package containing a speaker to be shipped, as part of the trafficking in cocaine.

The events of May 3 to May 5 support the existence of a conspiracy [ 104 ] Not only the events as described earlier, but the series of intercepts and surveillance reports related to the events of May 3 - 5 (Transcripts, Tabs 49 – 72) support that Dustin Etheridge participated in the shipment of the package of cocaine that was intercepted by the police. [ 105 ] Firstly, there were numerous intercepted communications between Dustin Etheridge, Bradley Squires and others discussing the fact that the package was not delivered by the courier service as expected on May 3 (Transcripts, Tab 50).

Dustin discussed with Bradley how they were going to handle the package upon its arrival, and decided that the best thing to do is open it while in a moving vehicle. Dustin Etheridge then called Bradley Squires a couple of hours later and stated to Bradley to find him “a place downtown for rent” as soon as possible. In that conversation, Dustin Etheridge referred to the potential rental as a “trap” house. [ 106 ] Corporal Lane testified that the word “trap” house was consistent with a stash house, or other name used to identify a place where someone trafficking in drugs intended to use as a place to store drugs.

I am satisfied that, in light of the surrounding events, and Corporal Lane’s evidence that it is common for traffickers to use separate premises to store drugs, Dustin Etheridge’s direction to Bradley Squires was a reference to finding a place to store drugs. [ 107 ] Bradley Squires was then recorded making further phone calls that were consistent with him making arrangements to meet up with C.J. and obtaining the package. [ 108 ] When the package was delayed, Dustin Etheridge was recorded several times in relation to the follow up of the package’s delivery.

The next morning (May 4), Dustin Etheridge called the courier at 7:10 a.m., before it opened at 7:30 a.m. (Transcripts, Tab 51). [ 109 ] At noon, Dustin Etheridge called Corey Stevens and asked “[w]hat was weird C.J.?” (Transcripts, Tab 53). Corey Stevens explained that the courier delivery truck arrived, but did not leave the package. Corey Stevens stated he was not at the address but in a car, parked nearby on the street.

Dustin Etheridge became upset with Corey Stevens asking him why he was not at the house, and did not go and get the package from the delivery truck. [ 110 ] Shortly after this conversation, Dustin Etheridge called the courier service, and spoke with a customer service agent to determine when the arrival of the package could be expected.

The customer service agent asked if the person speaking was “Brian.” As stated, the first name of the recipient of the package, on the package seized by the police, was “Brian.” This is consistent with the customer service agent reasonably assuming that the caller was the recipient. Dustin told the employee that it was “Shane Andrews” (Transcripts, Tab 54, page 5). [ 111 ] The observations of the police help to make sense of the conversations. For example, Corporal Emberley testified that after the first failed attempted delivery a male appeared and stayed at the premises.

The employee from the courier office then telephoned Corporal Emberley and advised that an individual, who identified himself as Shane Andrews, had telephoned asking if the package could be left on the doorstep. This is consistent with what was overheard by Dustin Etheridge in his conversation with the customer agent at the courier service. [ 112 ] Dustin Etheridge and Bradley Squires were then recorded in conversation during a call Dustin Etheridge made to another number (Transcripts, Tab 55).

In this exchange, after leaving a message to the intended recipient, Dustin Etheridge spoke to Bradley Squires and blamed Bradley Squires for Corey Steven’s failure to obtain the package from the delivery truck. He threatened violence to both Bradley Squires and Corey Stevens: Dustin Etheridge: I thought you wanted to make money. How you gonna’ make money if you don’t answer your phone girl. Holy Fuck. Jesus, fuckin’ Christ. I’m gonna break his fuckin’, fuckin’ legs tonight. Fuckin’ stupid little prick. Fuck. Why the fuck would he be out watchin’ the truck anyway?

Why couldn’t you just fuckin’ go there yourself and do what you’re fuckin told t do. What the fuck is wrong with everyone. Brad Squires:

(unintelligible) Like I didn’t do nuttin’ Dustin Etheridge Exactly, ya didn’t do fuckin’ nothin’ Brad Squires It’s all the best kind. (Unintelligible) Dustin Etheridge If this don’t fuckin’ come today it ain’t going to be best fuckin’ kind. I’ll promise you that because you both fuckin’ get broke up. (pause) (inaudible) I paid this person to do this fuckin’ job. (inaudible). Brad Squires I know… (unintelligible) Dustin Etheridge Shut the fuck up man, you always (inaudible) excuses.

Brad Squires (unintelligible) Dustin Etheridge You’re lucky I don’t fuckin’ break your fuckin’ legs, take you up in the back road and beat you to fuckin’ death. Your fuckin’ odds. Stupid Fucker. How did your lip feel? [ 113 ] Nothing is said explicitly, but the pause in dialogue, and the statements about how Bradley Squires’ lip feels, suggests that Dustin Etheridge assaulted Bradley Squires during this conversation.

I am satisfied this likely is what occurred, as an hour or so later, Bradley Squires confirmed he was “punched” and received “a couple bangs” by Dustin Squires in later conversations he had with others (See Transcripts, Tab 56), including the Accused, Shane Clarke (Transcripts, Tab 59). [ 114 ] When the package was delivered on the second attempt, and the police effected their arrest of Corey Stevens, according to the intercepted communications, Corey Stevens was on the phone with Bradley Squires at the time (at 3:26 p.m.).

The phone call ended abruptly after Corey Stevens is heard to say “Oh shit” (Transcripts, Tab 52). Corporal Emberley identified Corey Stevens by his driver’s license. There was a cell phone on the ground next to him at the time of his arrest. [ 115 ] This is confirmed when immediately after Corey Stevens’ phone call with Bradley Squires was cut short, Bradley Squires telephoned Dustin Etheridge to tell him that he has “bad, bad, bad, news” (Transcripts, Tab 63).

Bradley Squires told Dustin Etheridge that “C.J.” was “swarmed” and that he has to “throw the fuckin’ phone away man…” The word “arrest” or “police” is never used, but I am satisfied Dustin Etheridge understood that Corey Stevens was arrested. Dustin Etheridge asked Bradley Squires if he said “… anything over text.” Bradley Squires stated “No.” Dustin Etheridge then stated “Alright. He knows not to say nothing.

He can’t get charged for it, eh?” Dustin Etheridge then told Bradley Squires to “call” him on “Wickr.” [ 116 ] Corporal Lane explained that “Wickr” was an application that at that time could be downloaded to mobile phones and allow encrypted conversation. I accept that this application to permit an encrypted call was what Dustin Etheridge referred to in this call. [ 117 ] After the arrest of Corey Stevens on May 4, there were further intercepts that a support that Dustin Etheridge and Bradley Squires were engaged in the unlawful design of the shipment of the cocaine.

For example, between approximately 4:30 p.m. and 5 p.m., Dustin Etheridge was recorded making several attempts to get in touch with Bradley Squires. Dustin Etheridge called and spoke to Jennifer Squires three times trying to locate Bradley Squires (Transcripts, Tabs 65-67). In the third call (Tab 67), Jennifer Squires appeared to pass the phone to Bradley Squires who then spoke to Dustin Etheridge. Dustin Etheridge stated to Bradley Squires that he was arrested as well, but “was let go.” Dustin Etheridge stated he drove to the address where Corey Stevens was arrested.

Bradley Squires stated to Dustin Etheridge “[t]ell ‘em you don’t know nuttin.” Dustin Etheridge then stated it was “… some ongoing investigation. They thinks it got something to do with me though.” Dustin Etheridge went onto state “How they found this out I don’t fuckin’ know.” Bradley Squires then stated “[i]t’s not me.” There was further discussion about Corey Steven’s arrest:

Brad Squires: Yes I stashed the car obviously man because I thought they were gonna’ fuckin…” Dustin Etheridge: This has nuttin’ to do with you so what are you worried about, what are you sketchin’ (unintelligible).” Brad Squires: Because he call me as they were grabbing hold to him and obviously they were gonna say who were you on the phone with you know what I mean?” Dustin Etheridge: Well, where was he too? Was he outside walking around or something?

Brad Squires: He was just about, he was there on the patio having a cigarette waiting for me and he said “Oh, shit” and all he heard was ahhhh and this weird noise, and I just burned out and threw the phone away. Obviously I was gonna burn out with someone calling my phone like that.” [ 118 ] After further conversation regarding the arrest, Dustin Etheridge told Bradley Squires to “meet me at your place and I’ll talk to you there.” There was clearly concern as Dustin Etheridge stated “Anyways, I needs to figure something out why this happened.

Why the fuck did this happen?” That there was a meeting was also confirmed by a later probe discussed below. [ 119 ] When the events of May 4th are considered in their entireity, the four kilograms of cocaine seized by the police, together with the fact that Dustin Etheridge was intercepted on several phone calls directing the courier agent as to how best to effect the delivery on May 4, I am satisfied Dustin Etheridge had organized the shipment of cocaine to Newfoundland Labrador.

The intercepted communications at Bradley Squires’ apartment after the arrest of Corey Stevens [ 120 ] After the arrest of Corey Stevens on May 4, Bradley Squires, Dustin Etheridge, Jennifer Squires and an unknown male were recorded in conversation at Bradley Squires’ apartment (Transcripts, Tab 68). There were multiple conversations ongoing. Dustin Etheridge appeared to speak to the unknown male. It was not clear whether the unknown male was in the room with Dustin Etheridge, or on a phone.

The ending of the conversation is consistent with it being a phone conversation in that Dustin Etheridge stated “[w]ell, let me know. Figure out what you figure out tonight call me.” The unknown male responded “[a]lright. Sounds good.

Bye,” to which Dustin Etheridge stated “Bye.” Whether in the room or on a phone, Dustin Etheridge referred to the unknown male as the “supplier.” Dustin Etheridge arranged to buy further cocaine from the unknown male. [ 121 ] Corporal Lane testified that the conversation with the unknown male was highly indicative of Dustin Etheridge buying bulk quantities, namely kilograms of cocaine. After discussing how they were going to “continue,” the following exchange occurred: Dustin Etheridge: So, you got someone who’s able to get it here or what? Unknown Male: Yeah, I think so Dustin Etheridge: How much?

Unknown male: Like, five hundred and forty seven (547)(unintelligible), it won’t change same thing. Dustin Etheridge: If you can get 10 here, I’ll buy 10. Four hundred and seventy (470)k.

Unknown male: For forty-seven (47)? Dustin Etheridge: Yes. Yes. I got these other guys right here in town now can go see it for forty-six(46) but I’ll get them off you. Unknown male: I’ll see what I have. I appreciate you fucking, I appreciate now you like fucking sticking with us. … [ 122 ] Corporal Lane testified that the reference to 10 kilograms of cocaine for $470,000, and the reference to the unknown male as being the supplier, were consistent with this unknown person being Dustin Etheridge’s source for bulk quantities of cocaine.

He also stated that Dustin Etheridge’s assertion that he could get the same amount for 46 k, but would “get it off” the unknown male, was an example of bargaining for a good price for the cocaine. [ 123 ] I accept Corporal Lane’s view of this conversation, and find that this is consistent with Dustin Etheridge having made further arrangements to have cocaine transported to Newfoundland and Labrador to be sold. [ 124 ] I am also satisfied that the above is evidence of knowledge of trafficking in cocaine, and as with his many other recorded conversations, is consistent with Dustin Etheridge trafficking cocaine with others, and at a “high level,” during the time period in the Indictment.

As Corporal Lane explained, the amount of cocaine purchased by an individual is indicative of their level in the overall hierarchy of the business of trafficking.

Dustin’s Etheridge’ statements that he was prepared to purchase ten (10) kilograms of cocaine, at a cost of almost half a million dollars, were made only days after he had just lost to the police 4 kilograms of cocaine at a cost of about $120,000. [ 125 ] All of the above evidence supports that Dustin Etheridge trafficked in cocaine “at a high level.” Bradley Squires was a Member of the Conspiracy to Traffic in Drugs [ 126 ] I similarly find that Bradley Squires participated in the trafficking, and while there was no formal employment contract, was working for Dustin Etheridge.

As someone who worked for Dustin Etheridge, I am satisfied that this establishes him as in agreement to engage in the unlawful object of trafficking in cocaine. [ 127 ] Apart from the conversations already discussed, an example of conversations that support that Bradley Squires was engaged in trafficking is the intercepted conversation of April 16 (Transcripts, Tab 2). Bradley Squires spoke with an unknown male by phone, looking to obtain money that was owed Dustin Etheridge.

Bradley Squires complained to the male that he had not been able to get a hold of him, and inquired about money owed to “the other fella.” Bradley Squires referred to “a hundred grand.” Later in the conversation he told the male that he can get him “more weed.” [ 128 ] As per Corporal Lane’s evidence regarding the cost to purchase cocaine, I take the amount referenced by Bradley Squires of “100 grand” to mean, one hundred thousand dollars and is consistent with trafficking in substantial amounts of cocaine. [ 129 ] Similarly, on April 17, Bradley Squires was intercepted regarding a phone call he had with an unknown male (Transcripts, Tab 6).

Corporal Lane described the conversation as “guarded.” Without stating explicitly what it is that he needs to get from the unknown male, the conversation is consistent with there being something that Bradley Squires needed and he was unhappy about the delay.

What is needed is referred to as “it” and Bradley Squires is insistent that he is “going to need it before then.” I accept this language is consistent with someone who is trafficking in drugs. [ 130 ] Later, Bradley Squires received a phone call from Dustin Etheridge warning him about possible surveillance on Bradley Squires by the police (Transcripts, Tab 4). While the word “police” is never used, I am satisfied that this is what is being discussed. Dustin Etheridge referred to “undercovers” and stated: “[t]here was two there in the Remax parking (unintelligible). They just fuckin left as soon as I pulled up.

Two of em, exact same fuckin jeep. They’re just gone up on Blackmarsh Road, I’m gonna’ follow em. Holy fuck, that’s burnt, you got heat on ya like something sick.” There was further discussion about the extent to which Bradley Squires is being followed by the police. [ 131 ] Likewise, Bradley Squires’ participation in arranging to have the package shipped on April 25th, supports that he was working for Dustin Etheridge. [ 132 ] Similarly, on April 29, there was a call between Bradley Squires and an unknown male of which I am satisfied was a discussion about sending a package of either drugs or money.

The unknown male queries “is it vacuum sealed?” Bradley Squires replies “No, but it’s all contained. Not one speck of dust.” The unknown male then states: “Alright he ain’t no fuckin idiot like that buddy up in…” Bradley Squires stated: “No, I would send (unintelligible) I’m not that burnt out, Dustin knows him good.” The unknown male then references also sending cash for “the 6 ounces,” and will “pack and seal that.” [ 133 ] As Corporal Lane explained, drugs and money are typically vacuum sealed when shipped to avoid detection.

I am satisfied that the reference to “vacuum sealed,” “6 ounces” and “alright I’ll pack and seal that tonight” are all references consistent with shipping money and possibly drugs to someone. I am also satisfied that Bradley Squires was arranging for this shipment to be done, and that this

was part of the overall conspiracy to traffic cocaine between Bradley Squires and Dustin Etheridge and others. [ 134 ] The events of May 3 to 5 described above are also compelling evidence that Bradley Squires was involved in the shipment of the cocaine. He was in direct contact with Corey Stevens and appeared to give him directions as to what to do, right up until the moment Corey Stevens was arrested. There were also calls between Bradley Squires and Dustin Etheridge, in which Bradley Squires was keeping Dustin Etheridge updated as to what was happening.

Evidence of Organization, Control and Hierarchy [ 135 ] The other aspect of the sequence of many of the intercepts, including the ones already discussed, is the extent to which they illustrate the level of control exercised by Dustin Etheridge over Bradley Squires and others. [ 136 ] For example, On August 19 there was a series of four intercepted communications between Dustin Etheridge and Bradley Squires starting just after 9:45 a.m. until just before 2:30 p.m. (Transcripts, Tabs 20-24 inclusive) showing not only that Dustin Etheridge and Bradley Squires were actively engaged in trafficking, but that Dustin Etheridge exercised authority over Bradley Squires.

In the first communication, Dustin Etheridge asked Bradley Squires if he is awake and complained that Bradley Squires was still in bed.

Dustin Etheridge stated “… I gotta’ come up, make sure this shit gets done today.” Bradley Squires assured Dustin Etheridge that “it is getting done” but he did not “have the money here.” They made arrangements for Dustin to pick Bradley Squires up and Dustin Etheridge asked him if he wants anything from “Tim Horton’s.” After 1:30 p.m., Dustin Etheridge was intercepted again, during which he asked Bradley Squires “[y]ou got everything taken care of?” Bradley replied “yeah” and the following exchange occurs: DUSTIN: Is it gone in yet? BRADLEY: Yeah, well I’m just on the way from my sister’s work now.

DUSTIN: Okay, when, you got the… just wait for me to check that out first. BRADLEY: What? That’s all sealed up. DUSTIN: Not that, I’m talking about stuff that just got here, wants to make sure it’s good before I pays for it. [ 137 ] In the next call, which appears to be at the same time, Dustin asked Bradley Squires if Bradley Squires obtained a motor vehicle for him.

Bradley replies that no, because “I’m here doing all this first.” Dustin Etheridge then tells Bradley Squires that if he “sends it in to the wrong place, you’re done, you’re dead.” The two then returned briefly to the issue of Bradley Squires obtaining a motor vehicle for Dustin Etheridge. [ 138 ] About 10 to 15 minutes later Bradley Squires called Dustin Etheridge to ask if he should “put a phone number on that.” Dustin Etheridge tells Bradley Squires to give them his “old phone number.” Dustin confirms with Bradley that “you brought it in separate, right” to which Bradley Squires replies that he did.

Bradley Squires asked Dustin if he is going to be needed, because Bradley Squires wanted to “go out on the highway for twenty minutes.” [ 139 ] About a half hour later, Dustin Etheridge called Bradley Squires wondering where he was, and said “[d]o you got the money taken care of?” Bradley replied “Yea, that’s all done.” Dustin asked “You went in - two (2) separate people?” Bradley Squires replied:, “Yea.

Couple hours ago Bill and then Jennifer,” to which Dustin Etheridge tells Bradley Squires he does not need to know “who went in.” [ 140 ] Police also conducted surveillance on the same date of Bradly Squires and Jennifer Squires for about 20 minutes in which they observed Bradley Squires arrive in the Chevrolet Silverado at the garage where Jennifer Squires worked. He exited the vehicle with a banker’s box and entered the garage. He exited a moment later without the box.

Jennifer Squires then shortly after exited the building with a banker’s box and got into another vehicle which “drove” away. [ 141 ] I am satisfied that the evidence relating to the communications and surveillance on April 19 established that Bradley Squires, at the direction of Dustin Etheridge, was preparing to send money to a destination and that Bradley Squires made arrangements with his sister Jennifer Squires to deliver the package to a delivery company to be sent. [ 142 ] Later on April 19, Jennifer Squires, Bradley Squires’ sister, was intercepted (Transcripts, Tab 19), speaking to an unknown male by telephone.

Jennifer Squires complained about

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