R. v. Leonard, 2023 NLSC 70

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Leonard , 2023 NLSC 70 Date : May 4, 202 3 Docket : 201801G2086 his Majesty The Queen v. Vincent Aloysius Leonard Wayne Johnson James Curran AND Docket : 201801G1200 Her Majesty The Queen v. James Curran Before: Justice Daniel M. Boone Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: April 20, 26, 28; May 2 – 6, 9 – 12, 16, 18; October 3, 6, 7, 11 – 14; December 12, 14, 2022; January 25, February 16, 17; April 3, and 4, 2023

Summary: The Court found each of three members of the Vikings Motorcycle Club guilty of several drug trafficking and related offences. TheCourt decided that the Vikings Motorcycle Club was a criminal organization. Two of the accused were found guilty, and one not guilty,of participating in the activities of a criminal organization for the purposes of enhancing the ability of that organization to facilitate orcommit an indictable offence. One of the accused was found guilty, and two not guilty, of committing an indictable offence inassociation with a criminal organization. Appearances: Elaine M. Reid and Trevor N.

Bridger Appearing on behalf of the Crown Jason A. Edwards Appearing on behalf of Mr. Leonard Mark J. Gruchy Appearing on behalf of Mr. Johnson Candace G. Summers Appearing on behalf of the Mr. Curran Authorities Cited: CASES CONSIDERED: R. v. Starr, 2000 SCC 40; R. v. Murdock (2003), (ON CA), 107 C.R.R. (2d) 152, 11 C.R.(6th) 43 (Ont. C.A.); R. v. Carter, (SCC), [1982] 1 S.C.R. 938; R. v. Clarke, 2020 NLSC 86; R. v. Venneri, 2012 SCC33; R. v. Beauchamp, 2015 ONCA 260; R. v. Blok-Andersen, 2014 NLTD(G) 141; R. v. Lindsay, 2009 ONCA 532 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c.

C-46; Controlled Drugs and Substances Act, S.C. 1996, c. 19 REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] The police initiated an investigation of a homicide they suspected was committed by a member of the Vikings MotorcycleClub (Vikings MC). The police later broadened the investigation to determine whether individuals associated with the Vikings wereengaged in the drug trade, and whether the Vikings was a criminal organization.

At the conclusion of that broadened investigation, theCrown charged the three accused, jointly and individually, with drug trafficking and with leading or participating in the illegal activitiesof a criminal organization. [2] The police investigation utilized surveillance, wiretapping, undercover police operatives and a civilian acting as a paid policeagent. CHARGES [3] In the following description of charges, “Code” refers to the Criminal Code, R.S.C. 1985, c. C-46, and “CDSA” to theControlled Drugs and Substances Act, S.C. 1996, c. 19.

Vincent Leonard Criminal Organization Charges [4] These charges relate to conduct that allegedly occurred during the period August 22, 2014 to September 28, 2016. Mr. Leonardis charged:

• under s. 467.11(1) of the Code , along with Mr. Curran and Mr. Johnson, with participating in or contributing to the activities of a criminal organization for the purposes of enhancing the ability of that organization to facilitate or commit an indictable offence or offences under the CDSA . • under s. 467.12(1) of the Code , along with Mr. Curran and Mr. Johnson, with committing an indictable offence or offences under the CDSA for the benefit of, at the direction of, or in association with a criminal organization. • under s. 467.13(1) of the Code , along with Mr.

Johnson, each being a member of a criminal organization, knowingly, indirectly or directly, instructing a person to commit an indictable offence or offences under the CDSA . The Crown conceded at the conclusion of trial that the elements of this charge had not been made out on the evidence and acquittals were entered. Trafficking and Possession for the Purpose of Trafficking [ 5 ] Mr. Leonard is charged with: • conspiracy to traffic in Oxycodone during the periods May 13 to August 19, 2015. • trafficking in Oxycodone during two periods: June 10 to 12, 2015 and January 20 to 29, 2016.

He is also charged with possession of Oxycodone for the purpose of trafficking during the latter of the two periods. • trafficking in, and possession for the purpose of trafficking of, Temazepam, during the period January 20 to 21, 2015. The Crown conceded that insufficient evidence was adduced to support this charge and acquittals were entered accordingly. • trafficking in cocaine, and possession of cocaine for the purpose of trafficking, during the period April 8 to 24, 2015. • along with Mr. Johnson, with trafficking in cocaine during the period October 21, 2015 to January 29, 2016.

The Crown conceded that there was no evidence adduced that implicated Mr. Leonard in this offence and an acquittal was entered accordingly. • trafficking in cannabis resin, and possession of cannabis resin for the purpose of trafficking, during the period of September 20 to 22, 2016. Proceeds of Crime [ 6 ] Mr. Leonard is charged with possession, during the period August 22, 2014 to September 28, 2016, of money obtained through the commission of crime. Wayne Johnson [ 7 ] As described above, Mr. Johnson is charged along with Mr. Leonard and Mr.

Curran with the offences related to criminal organization, and jointly with Mr. Leonard in trafficking of cocaine. The Crown conceded at the conclusion of trial that the elements of the charge under s. 467.13 of the Code had not been made out on the evidence and an acquittal was entered. [ 8 ] Mr. Johnson is also charged separately with trafficking in cocaine, and with possession of cocaine for the purpose of trafficking, on September 19, 2016. [ 9 ] Mr. Johnson is charged with possession, during the period August 22, 2014 to September 28, 2016, of money obtained through the commission of crime.

James Curran [ 10 ] Mr. Curran is charged along with Mr. Leonard and Mr. Johnson with two offences related to criminal organization, and is charged under the joint indictment with possession, during the period August 22, 2014 to September 28, 2016, of money obtained through the commission of crime. [ 11 ] Mr.

Curran is also charged under a separate indictment with: • trafficking in cocaine, and with possession of cocaine for the purpose of trafficking, during the period September 20 to October 17, 2015. • trafficking in heroin during the period March 16 to 21, 2016. • trafficking in Fentanyl, and with possession of Fentanyl for the purpose of trafficking during the period March 16 to 21, 2016. LEGAL PRINCIPLES [ 12 ] The following is a description of basic principles and

definitions that I will apply throughout this decision. Presumption of Innocence and Burden of Proof [ 13 ] The accused are each presumed innocent and can only be convicted of a charge if the Crown establishes the elements of that charge beyond a reasonable doubt. [ 14 ] In R. v. Starr , 2000 SCC 40 , at para. 242 , a majority of the Supreme Court of Canada described the standard of beyond a reasonable doubt as “much closer to absolute certainty than to proof on a balance of probabilities.”

Circumstantial Evidence [15] “Direct evidence” is evidence based on the testimony of a witness who experienced something as it happened; or a documentthat recorded a person doing something. Sometimes, however, a fact can be proved by inference from circumstances that lead the Courtto conclude the fact must be true. In law, this kind of reasoning can be used to base a criminal conviction, but only if the necessaryinference is the only plausible explanation in the circumstances.

Conspiracy [16] A conspiracy, for the purposes of criminal law, is an agreement to do an unlawful act or to effect a legal object by unlawfulmeans. The criminal act of conspiracy is the agreement to carry out a crime. An accused can only be convicted of conspiracy if theCrown proves that there was an agreement to carry out the unlawful act and that the accused was part of the agreement; although it is notnecessary for the Crown to prove that steps were actually taken toward committing the unlawful act. [17] Conspiracy is a crime of intention.

Its factual element is established upon proof of agreement to commit the predicate offence.The factual element in the conspiracy need not correspond with the factual elements of the substantive offence that is the object of theconspiracy. The goal of the agreement, the commission of the substantive offence, is part of the mental element of the offence ofconspiracy.

Any degree of assistance to achieving the goal of the conspiracy can lead to a finding of participation as long as agreement toachieve a common plan can be inferred and the requisite mental state has been established. [18] The existence of a criminal conspiracy and the participation of the accused in that conspiracy can be demonstrated by theaccused’s own words or actions, but are very often proven through circumstantial evidence. Membership in a conspiracy may beinferred from evidence of conduct that advances the unlawful goal.

Trafficking [19] The CDSA, s. 5(1) provides that no person shall traffic in any substance listed in Schedules I to IV of the Act, or “in anysubstance represented or held out by that person to be such a substance.” All of the drugs that the accused are charged with trafficking,possessing or conspiring to traffic are listed in the Schedules. [20] Under s. 2(1) of the CDSA, “traffic” means, in respect of any substance listed in Schedules I to IV, to: sell, administer, give,transfer, transport, send or deliver the substance; sell an authorization to obtain the substance; or offer to do any of these activities. [21] The word “sell” itself is further defined in s. 2 to include “offer for sale, expose for sale, have in possession for sale anddistribute, whether or not the distribution is made for consideration.” [22] The offence of trafficking may be committed by offer.

In such a case, the prohibited act is the offer to sell, administer, give,transfer, transport, send or deliver a scheduled substance. The mental element of the offence is established by proof that the accusedintended to make an offer that would be taken as genuine; the evidence need not demonstrate that the accused intended to carry out theoffer, or even had the means to provide the substance in question: R. v. Murdock (2003), (ON CA), 107 C.R.R. (2d)152, 11 C.R. (6th) 43 (Ont. C.A.).

Possession for the Purpose of Trafficking [23] The CDSA, s. 5(2) provides that no person shall, for the purpose of trafficking, possess a substance included in the Schedules. [24] The criminal act of this offence is possession of the substance. There are three separate and distinct types of possession inCanadian criminal law, each set out in s. 4(3)(

a) of the Code: personal possession (sometimes referred to as “physical” or “actual”possession); constructive possession (sometimes referred to as “attributed” or “presumptive” possession); and joint possession:(sometimes referred to as “dual” possession). [25] The mental element that the Crown must prove encompasses two components: the Crown must prove that the accused knewthey had possession of an illegal substance and that the accused intended to traffic the substance. [26] In a case where the substance that the accused possessed turns out to be different than what the accused thought it was, theelement of knowledge the Crown must prove is that the accused knew that they possessed a prohibited substance of the same characteras the substance they actually possessed and intended to traffic.

Possession of the Proceeds of Crime [27] A person can only be convicted of this offence if the Crown proves beyond a reasonable doubt that the accused intentionallypossessed something that was obtained or derived from the commission of a crime, and that the accused knew it was so obtained. [28] The charge as worded in Count 10 also requires a finding in this case that the property involved has a value greater than $5000. Voice Identification [29] The Crown relies heavily on wiretap evidence. Wiretap recordings do not prove anything without proof of the identity ofpersons whose voices are recorded.

Proof of the identity of speakers recorded on tape can be accomplished through several means. First, a person familiar with the voice of another can testify that it is that other whose voice is recorded speaking. This, strictly speaking,is an opinion, but it is not the kind of opinion that may only be given by an expert.

The question of identity of a speaker is a matter offact that I must decide based on the weight that I give to the evidence, taking into account factors such as the degree of familiarity thewitness has with the voice of the alleged speaker; whether the familiarity that the witness developed resulted from hearing the allegedspeaker’s voice in similar circumstances; whether there was any compromise in the identification testimony, such as by a demonstrated

expectation bias in anticipating the presence of the alleged speaker; whether the speaker named himself or others in the recordedconversation named him; whether there was physical surveillance supporting the conclusion that an alleged speaker was in the placewhere the conversation was recorded; and whether there was any evidence that contradicted the witness who identified the allegedspeaker. [30] In this case, the voices of each of the accused and of the Agent were identified through evidence in three ways.

First, in theinstances when undercover police officers were directly involved in recorded conversations with the accused and the Agent, theseundercover officers identified their own voices and those of the accused on those recorded intercepts. Second, Staff Sergeant TraceyEdwards testified that she listened to all of the intercepts and that she also had in-person communications with each of the accused, andshe identified the voices of the accused on the recordings. Third, the accused Mr. Leonard and Mr. Johnson each identified themselveson some of the intercepts.

As well, the evidence of police officers involved in surveillance proved that the accused were each presentduring times and at locations that their alleged voices were recorded. [31] The accused did not adduce any evidence contesting that the voices identified as theirs were in fact their voices. [32] Consequently, I find that the voices on the recorded intercepts of each of the accused, of the Agent, and of undercover officerswere identified beyond a reasonable doubt.

Out-of-Court Statements Made in Furtherance of an Unlawful Common Design [33] Not all of the participants in recorded communications played in evidence were before the Court as witnesses or accused. Theuse of intercepted communications in those circumstances raises a concern about the admission of hearsay evidence, although noobjections on the basis of the rule against hearsay were taken by the accused during the trial.

In all instances in which I have consideredintercepted statements made by those not before the Court, I have concluded that these statements were admissible pursuant to the socalled co-conspirators’ exception as set out by the Supreme Court of Canada in R. v. Carter, (SCC), [1982] 1 S.C.R. 938,at para. 11. The principles of this exception were set out in point form by Stack, J. in R. v. Clarke, 2020 NLSC 86: 18 ...

(1) The Crown, relying on all of the evidence, including the hearsay, must prove beyond a reasonable doubt that there was a conspiracyto commit an offence;

(2) The Crown must prove on a balance of probabilities, on the basis of the evidence directly receivable against an accused, that he was"probably a participant" or member in the conspiracy;

(3) The Crown must prove that the hearsay utterance was in furtherance of the conspiracy; and

(4) If the Crown has proven each of these three elements, then the exception applies and the trier of fact may consider evidence of theacts and declarations performed and made by the co-conspirators in furtherance of the objects of the conspiracy as evidence against theaccused on the issue of his guilt. [emphasis original] [34] Although the exception is often called the co-conspirators’ exception, its application is broader than the question ofadmissibility of evidence related to conspiracy; it applies in all cases where the Court must consider whether people were acting infurtherance of a common unlawful objective. [35] In this case, the intercepted out-of-court statements that I have considered all involved individuals who were allegedly engagedin conspiracy to traffic, or the illegal purchase and sale of drugs or the objectives of a criminal organization.

As no objections on thebasis of hearsay were made in respect of any of the relevant communications, I will not take the time to separately consider theadmissibility of each such conversation. I also note that in respect of many of the relevant conversations, other exceptions to the hearsayrule may also have applied. Expert Evidence [36] Inspector Palmer was called by the Crown as an expert witness. He is a Royal Canadian Mounted Police (RCMP) officer butwas not involved directly in this investigation. He has extensive training and experience in the investigation and policing of the illicitdrug trade.

He was qualified by me to give evidence as an expert in the use, availability, distribution, packaging, price, sale and value ofcocaine, cannabis resin and Oxycodone, as well as communications and communication methods employed by drug traffickers. Beforequalifying Insp. Palmer to give opinion evidence, I was satisfied that the evidence that he was called to give was relevant to issues in thetrial, was necessary in the sense that it addressed issues outside the expertise of the ordinary person, and that Insp.

Palmer understood hisrole as an expert to offer unbiased opinions that would be of assistance to the Court and not unduly lengthen the trial. His qualificationswere not challenged on cross-examination. No issue relating to his independence, or the necessity or relevance of his opinions, aroseduring my consideration of his evidence. [37] Sergeant Alain Belleau of the Sûreté du Québec (SQ) was also called by the Crown as an expert. He has worked with policingorganized crime involving motorcycle gangs since 2006, and he has extensive training and teaching experience that supplement his workexperience.

He is currently the Outlaw Motorcycle Gang (OMG”) intelligence coordinator for the SQ, the National OMG Coordinatorfor the criminal intelligence service of Canada, and a member and director of the International OMG Investigators’ Association. TheCrown offered Mr.

Belleau as an expert to provide opinion on the nature and characteristics of the Hells Angels Motorcycle Clubspecifically, and outlaw motorcycle gangs (OMGs) generally; their main purposes and activities; and to provide evidence regarding theirstructured membership and organization, territory, chapters, prospect clubs, support clubs, rules, club houses, church meetings, lack ofcooperation with the police, use of violence and intimidation, and significance of patches, colours, and other symbols.

[ 38 ] Sgt. Belleau’s work experience and continuing education gave him the expertise to speak to the issues as proposed. He expressed a clear understanding of his role as an expert to provide independent and unbiased evidence for the benefit of the Court. Although he works as a police officer he had no involvement with the investigation of the Vikings and testified that he ensures that when he is called as an expert that he does not have any direct involvement with the case before the court, and he confines his opinions to questions of the hallmark structures and organizations of OMGs.

Although he has testified on behalf of the prosecution in almost all of the instances where he has been called as a witness, he did recount one occasion where he was called and qualified on behalf of an accused. The defence cross-examined Sgt. Belleau on his qualifications and in so doing obliquely raised possible bias. However, the defence did not raise any objection to him being qualified as an expert. [ 39 ] The issues in respect of which he was offered as an expert are relevant to the issues I have to decide in this case, and specifically the issue of whether the Vikings was a criminal organization.

The matters within the scope of his expertise are, due to the long history and secretive culture of OMGs, outside the knowledge of ordinary people and the court, and are in that sense necessary to provide context for the direct evidence called by the Crown. I therefore qualified Sgt. Belleau to provide opinions with respect to the described issues. [ 40 ] I continued to assess the independence, necessity, relevance and relative utility to the trial process of Sgt. Belleau’s evidence, and will address my conclusions in that regard when discussing the criminal organization charges against the accused.

The Agent [ 41 ] The police investigation that led to the charges included the use of a paid civilian agent (the “Agent”). His identity is protected by an order made in a pretrial application.

The evidence presented by the Crown during the trial included testimony from police officers regarding their interaction with the Agent, and the police officers have identified the voice of the Agent in numerous wiretap recordings played in evidence. [ 42 ] It is undisputed that the Agent introduced undercover officers to the accused, arranged most of the drug transactions underpinning the charges, and actively participated in some of the transactions.

Counsel for the accused, during cross-examination of police officers, elicited evidence bearing on issues of credibility, reliability and criminal activity of the Agent. [ 43 ] The Crown intended to call the Agent to testify in the trial. However, in the fourth week of trial, after most of the investigating officers had already testified and numerous wiretap recordings had been played in evidence, the Crown advised the Court that the Agent would not be testifying. The accused then called the Agent and questioned him regarding his role and memory of certain of the drug transactions.

The scope of his testimony was fairly narrow. Undercover Officers [ 44 ] Three RCMP officers who participated undercover in the investigations testified in the trial. I ordered that their identities be protected. Their names were provided to the Court in sealed envelopes and they were allowed to testify under pseudonyms as UC#s 1, 6 and 7. ANALYSIS Methodology [ 45 ] I will first consider the drug charges and the charge of possession of proceeds of crime against each of the accused.

In respect of each charge, I will set out the evidence in light of the principles previously described in order to resolve whether the Crown has proved that charge against that accused beyond a reasonable doubt. Where more than one accused are charged with the same offence, I will not repeat the exercise to determine facts already found as proven but will consider whether those facts support a finding of guilt against each individual. [ 46 ] I will then consider the criminal organization charges in the same manner. [ 47 ] The three accused were charged under a common indictment with 15 counts and Mr.

Curran was charged under a separate indictment. The count numbers set out in the headings below refer to the counts in the common indictment except where the Curran indictment is specifically referenced. Drug Charges against Vincent Leonard Count 5 Trafficking in Oxycodone June 10 to June 12, 2015 -and- Count 4 Conspiracy to Traffic in Oxycodone May 13 to August 19, 2015 [ 48 ] Before dealing with these counts, I will note the following positions of the parties. [ 49 ] Mr. Leonard submits that the circumstantial evidence does not support conviction on Count 5 of conspiracy to traffic in

Oxycodone in the period May 13 to August 19, 2015, but he concedes that the evidence proves the elements of Count 4 of trafficking in Oxycodone in the included timeframe of June 10 to June 12, 2015. The Crown says that if I find that it has proved Count 4 conspiracy to traffic in Oxycodone, then it would withdraw Count 5 trafficking in Oxycodone in the overlapping time period. [ 50 ] The positions of the parties do not mesh in a manner that would allow me to dispense consideration of either of these charges. It is incumbent on me therefore to consider and resolve the evidence in respect of both charges.

I will consider further submissions from the parties before entering acquittals or convictions in respect of these two charges. Count 5 Trafficking in Oxycodone June 10 to June 12, 2015 [ 51 ] The Crown evidence took the form of police testimony regarding observations made by officers during surveillance (some of which were supported by photos taken by the officers and entered in evidence); of a recounting of one conversation overheard directly by a police officer; and of audio played in Court from intercepted phone calls and from listening devices placed in Mr.

Leonard’s truck and shed. [ 52 ] The police did not seize any substances or money in connection with these charges. The Crown did not present clear direct evidence of the observation of any transaction, and relied on circumstantial evidence of events and the prior planning for those events to prove the charges. [ 53 ] On June 10, 11 and 12, 2015, the police intercepted several phone calls between Mr. Leonard and persons identified as Kim and Mary Mercer, during which Mr. Leonard said that he had a “load” of “stuff coming” and that he would come to see them when he had it. [ 54 ] On June 11, 2015, Mr.

Leonard is heard on phone calls organizing a visit to Dr. Hollohan’s office by each of himself, Tom Snow and Kenny Kerrivan, and on the next day he is heard on phone calls asking Dr. Hollohan’s secretary directly or through Mr. Snow to have the medical charts of each of his wife and his son Shane ready for the same time. Sgt. Purchase and Corporal Pilgrim also testified that they conducted (under warrant) a surreptitious search of Mr.

Leonard’s luggage on August 8, 2015, in which they observed and photographed (the photos were entered as exhibits) two pill bottles marked with an Oxycodone prescription written by Dr. Hollohan for Vince Leonard, Sr. [ 55 ] On June 11, 2015, Mr. Leonard is heard on the phone with Tom Snow telling Mr. Snow to take his files to Shoppers, but warning him not to mention Al Potter’s name and indicating that he was going to drop off and pick up a narcotic prescription for Al Potter (who was in the penitentiary at that time). [ 56 ] On June 12, 2015, Mr.

Leonard is heard in his vehicle in conversation with his son Shane saying that he sells “them for $200 for every 30.” Other evidence adduced at the trial, including that of the expert Inspector Palmer, demonstrated that this was the going street price for Oxycodone pills sold under the trade name Percocet. [ 57 ] On June 12, 2015, police conducting surveillance observed Mr. Leonard, accompanied by Mr. Snow, Mr. Kerrivan, Shane Leonard and Phonse Hayward go into Dr. Hollohan’s office, and Mr. Kerrivan into an adjoining pharmacy. Later that same day, Mr.

Leonard went into a Shoppers pharmacy, and was seen and heard by a police officer to drop off a prescription and enquire about a time for picking up prescribed medications. [ 58 ] Still later that day, the police observed Mr. Leonard, with something in his hand, going into a residence at 82 Lime Street and coming out a few minutes later with a white bag in his hand. The police later observed an unidentified female coming out of that residence. [ 59 ] The Crown theory is that the female in the residence at 82 Lime Street was either Kim or Mary Mercer, and that Mr.

Leonard organized several people to obtain Oxycodone pills through prescription and then sold some of those pills to the Mercers at 82 Lime Street. [ 60 ] The direct evidence from recorded intercepts and surveillance establishes that Mr. Leonard did organize a group of people to attend at a physician’s office to obtain prescriptions, then to pick up the prescribed drugs, and that these drugs included narcotics. The recorded intercepts also showed that Mr.

Leonard discussed a transaction with Kim and Mary Mercer for the sale of “a load of stuff,” and that later conversations among them included discussions about a “message.” Police evidence and the expert evidence of Inspector Palmer established “stuff” was slang code for drugs and “message” was slang code for money for drugs. [ 61 ] The circumstantial evidence, considered with the direct evidence of an intended sale and the evidence of the organized group effort to obtain narcotics by prescription, establishes that Mr.

Leonard did complete the sale of Percocet to Kim and Mary Mercer that he had discussed with them on the phone prior to the organized effort to obtain prescription narcotics. Mr. Leonard conceded in submissions that the elements of the offence of trafficking in Oxycodone had been established. [ 62 ] I am therefore satisfied that the charge against Mr. Leonard of trafficking in Oxycodone has been proven beyond a reasonable doubt. Count 4 Conspiracy to Traffic in Oxycodone May 13 to August 19, 2015

[ 63 ] The evidence I just recounted in respect of the trafficking charge also bears on the conspiracy charge. [ 64 ] As well, there were further intercepted conversations on July 13, 2015 that relate to this charge. These intercepts included a conversation between Mr. Leonard and Allister Hayley in which they discussed a transaction involving 200 to 300 items. In a later conversation, Mr. Leonard told Mary Mercer that he had “180 + 120 = 300.” The evidence from the Crown established that Percocet was usually prescribed in increments of 30 pills. Ms. Mercer told Mr.

Leonard that she had cash for him, and that he should go see her daughter, who is later heard telling Mr. Leonard that she was available. In a later conversation, Mr. Leonard is heard telling Ms. Mercer that he sent Kenny Kerrivan down to Kim with “them” but that she didn’t give him enough money. Ms. Mercer told Mr. Leonard to send Mr. Kerrivan back and Kim would give him the rest. [ 65 ] I am satisfied from these and the June intercepts, informed by the police evidence regarding the street value and usual amount of Percocet pills in a prescription, that Mr.

Leonard organized a group to obtain prescription Percocet, that on June 11 and 12 he planned and completed a sale of Percocet to Mary or Kim Mercer, that on July 13 he discussed the sale of Percocet both with Mr. Hayley and with Mary Mercer, and that on the same day he directed Mr. Kerrivan to complete a further sale of Percocet with Kim Mercer. [ 66 ] Therefore, the Crown has proven that Mr. Leonard had the intent to conspire with a large group, including all of those named in the preceding paragraphs, to traffic in Oxycodone and that he actively participated in the conspiracy.

The charge in Count 5 has been proven. Counts 6 and 7 Trafficking in Oxycodone & Possession of Oxycodone for the Purpose of Trafficking January 20 to 29, 2016 [ 67 ] Two transactions between UC#1 and Mr. Leonard are at the core of these charges. UC#1 met Mr. Leonard (who he identified in Court) at the Vikings’ Christmas party in December 2015 and exchanged text messages with him after that. They arranged to meet. Their meetings were observed by other officers, who also testified. Their conversations were intercepted by a listening device in a body pack worn by UC#1.

Recordings of the intercepted conversations were played in Court. [ 68 ] On January 20, 2016, UC#1 and Mr. Leonard met and discussed UC#1 purchasing Percocet, Ritalin and Demerol from Mr. Leonard. [ 69 ] On January 21, 2016, UC#1 and Mr. Leonard met again. This time, Mr. Leonard provided UC#1 with 120 pills in return for $900. UC#1 handed over these pills to his cover officer. No further evidence was presented regarding these pills. [ 70 ] UC#1 met Mr. Leonard again on January 26 and January 29, 2016. On January 29, Mr. Leonard provided UC#1 with 240 pills in return for $1600.

UC#1 handed over these pills to his cover officer, who took them to the evidence handler, who photographed the pills and sent them for analysis. UC#1 identified photos of the pills entered into evidence as exhibits. The evidence handler testified that he received a Certificate of Analysis from the Health Canada Lab that reported the pills contained Oxycodone. The Certificate of Analysis was entered as an exhibit. [ 71 ] Mr. Leonard conceded that the evidence established the elements of these charges. [ 72 ] The evidence established beyond a reasonable doubt that Mr.

Leonard possessed Oxycodone for the purpose of trafficking and that he trafficked Oxycodone on January 29, 2016. Counts 11 and 12 Trafficking in Cocaine & Possession of Cocaine for the Purpose of Trafficking April 8 to April 24, 2015 [ 73 ] These charges relate to an alleged transaction between Mr. Leonard and the Agent for the sale of 18 ounces of cocaine. The transaction included the sale of a one ounce sample on April 15 and the sale of 17 ounces on April 24.

The evidence included conversations recorded by a body pack device worn by the Agent, surveillance, evidence from the Agent’s police handlers and from exhibit custodians and drug analysts. [ 74 ] The Agent did not testify regarding the circumstances of this transaction. [ 75 ] The police intercepted communications between the Agent and Mr. Leonard and the Agent and Mr. Leonard’s son.

Recordings of the intercepted conversations were played in Court. [ 76 ] Both Corporal Strong, the Agent’s primary handler during this operation, and Staff Sergeant Edwards, who functioned as Team Leader for the investigation, testified that in April 2015 the Agent was tasked to purchase cocaine from Mr. Leonard. [ 77 ] The Agent is heard in a conversation recorded on April 11, 2015, telling Mr. Leonard that he wanted to purchase 18 ounces of cocaine on behalf of an unnamed person. Over the course of the next few days, the Agent and Mr.

Leonard are heard having further discussions of this transaction, discussing price and the amount that each of the Agent and Mr. Leonard would earn from their participation in the deal.

[ 78 ] The Agent told Mr. Leonard that he first wanted to purchase a sample of cocaine. On April 15, in a conversation intercepted, recorded and played in Court, the Agent is heard purchasing one ounce of cocaine from Vincent Leonard, Jr., who clearly communicated that he was acting on behalf of his father. The Agent gave him $1500 for this. Cpl.

Strong testified that he gave the Agent money to buy one ounce of cocaine, that he searched the Agent before he went out on his task and that following the transaction between Vincent Leonard, Jr. and the Agent, the Agent handed him a baggie with white powder, which he in turn handed over to the exhibit handler, Constable Walsh. He identified the baggie in photos entered into evidence. Cst.

Walsh testified that he took those photos, weighed the substance at 27 grams, sent a sample from the baggie to the Health Canada Lab and that he received a Certificate of Analysis showing the sample to consist 29% cocaine. [ 79 ] The Agent then arranged, in intercepted and recorded conversations, to complete the transaction with Mr. Leonard to purchase the remaining 17 ounces of cocaine. They agreed that the transaction would take place at a hotel room. RCMP officers testified that they searched the Agent prior to his interactions with Mr. Leonard and observed the activities of the Agent and Mr. Leonard that day.

Those movements matched with intercepted and recorded conversations in the hotel room that included clear references by Mr. Leonard and the Agent to the exchange of cocaine for $26,000. RCMP officers went to the hotel room immediately following Mr. Leonard’s departure, took possession of the substance and delivered it to the exhibit handler Cst. Walsh, who identified the substance as that shown in photos in evidence. Cst.

Walsh testified that he photographed the substance, weighed it at 532 grams, sent a sample to the Health Canada lab for analysis and received a Certificate of Analysis showing the substance contained 28% cocaine. [ 80 ] Mr. Leonard conceded that the evidence related to the transaction with the Agent in the hotel room established the elements of these charges. [ 81 ] I am satisfied beyond a reasonable doubt that Mr. Leonard possessed cocaine for the purpose of selling it, and that he sold cocaine, through his son on April 15, and personally on April 24, 2015. These transactions were arranged between Mr.

Leonard and the Agent during conversations that took place between April 11 and April 24, 2015. [ 82 ] Mr. Leonard is therefore guilty of the charges that he trafficked in cocaine between April 11 and April 24, 2015, and that he possessed cocaine for the purpose of trafficking on April 15 and April 24, 2015. Counts 13 and 14 Trafficking in Cannabis Resin & Possession of Cannabis Resin for the Purpose of Trafficking September 20 to September 22, 2016 [ 83 ] These charges relate to an alleged September 22, 2016, sale of hashish from Mr. Leonard to UC#s 6 and 7.

The police say that the transaction was arranged by the Agent. The evidence included conversations recorded by body pack devices worn by the undercover operatives and a listening device planted in the Sports Bar on Boncloddy Street in St. John’s, as well as evidence from the Agent’s police handlers and from exhibit custodians and drug analysts. The Agent did not testify to this transaction. [ 84 ] UC#6 and UC#7 were assigned the task to meet with either Mr. Leonard or his son, Vincent, Jr. to purchase hashish. Their cover officer was Corporal Wheaton, who supplied them with the money for the task.

UC#s 6 and 7 met with the Agent and the investigative team on September 22, 2016, and then drove with the Agent to find Mr. Leonard. The Agent tried to call him but, getting no answer, they drove to Mr. Leonard’s home where the Agent spoke alone with Mr. Leonard. The Agent then returned to the car and told the undercover officers that Mr. Leonard would meet them at the Sports Bar. [ 85 ] Mr. Leonard was already at the Sports Bar when the undercover officers and the Agent arrived. Mr. Leonard is heard on intercepts introducing himself by name. He was identified in Court by each of the undercover officers.

In the ensuing recorded conversation, he asked the undercover officers what they wanted, and was told by UC#6 that they wanted a kilo of hash. Mr. Leonard said he would see what was available and left. Later, he is heard in a phone conversation during which he and UC#6 negotiated price, using the Agent as intermediary. Mr. Leonard came back to the bar, put a bag on the counter and was given $3500 by UC#6. The undercover officers then left the bar and met with Cpl. Wheaton who took possession of the bag and later turned it over to the exhibit handler, Cst. Walsh. Cst.

Walsh photographed the substance and UC# 6 identified in Court the substance in the photograph as having been contained in the bag given to her by Mr. Leonard. Cst. Walsh weighed the substance at 501 grams. He sent a sample to Health Canada and received a Certificate of Analysis showing the substance as being cannabis resin. [ 86 ] Mr. Leonard conceded that the evidence established the elements of these charges. [ 87 ] I am satisfied that the evidence demonstrates beyond a reasonable doubt that Mr.

Leonard trafficked in cannabis resin by selling it to UC#s 6 and 7, and that he possessed cannabis resin for the purpose of trafficking on September 22, 2016. Count 15 Trafficking in Cocaine October 21, 2015 to January 29, 2016 [ 88 ] The Crown relies on evidence related to the alleged sale of cocaine by Mr. Johnson to UC#1 arranged in conversations starting in October 2015 and culminating in a sale in January 2016. The Crown did not introduce any evidence whatsoever connecting Mr. Leonard to that transaction, and in submissions agreed that an acquittal should be entered against Mr. Leonard and I so ordered.

Count 10

Possession of the Proceeds of Crime August 22, 2014 to September 28, 2016 [ 89 ] Mr. Leonard is charged with possession of money greater than $5000 knowingly obtained from the commission of an indictable offence. [ 90 ] The Crown relies on the evidence advanced to prove Count 11 to also prove this charge. After considering that evidence, I found Mr. Leonard guilty of the indictable offence of trafficking cocaine, which on April 24, 2015, he sold to the Agent for $26,000.

He therefore was proven to have been in possession of money of value greater than $5000 knowingly derived from the commission of an indictable offence. [ 91 ] In respect of the other drug trafficking offences of which I have found Mr. Leonard guilty, there is no proof of how much money changed hands, or the evidence showed that the money was less than $5000. [ 92 ] I therefore find Mr. Leonard guilty of one count of an offence under s. 355(

a) of the Code . Drug Charges against Wayne Johnson Count 15 Trafficking in Cocaine & Possession of Cocaine for the Purpose of Trafficking October 21, 2015 to January 29, 2016 [ 93 ] UC#1 testified that he was introduced to Wayne Johnson by the Agent on October 21, 2015. He identified Mr. Johnson in Court. During that first meeting, UC#1 and Mr. Johnson discussed the sale by Mr. Johnson to UC#1 of large quantities of cocaine at purity of 80%. This conversation was intercepted, recorded and played in Court. [ 94 ] Following this conversation, UC#1 was tasked to purchase cocaine from Mr.

Johnson and the two spoke several more times regarding the purchase of cocaine. On January 19, 2016, UC#1 and Mr. Johnson met at the Sports Bar and their conversation was intercepted. UC#1 told Mr. Johnson that he wanted to purchase an ounce of cocaine, and Mr. Johnson said he had it with him. Mr. Johnson handed UC#1 a substance in a baggie inside a Tim Hortons cup, and UC#1 gave Mr. Johnson the agreed price of $2800. Following the meeting with Mr. Johnson, he passed the cup with contents to his cover officer, Constable Soper. Cst.

Walsh, the exhibit handler, testified that on January 19, 2016, he received a Tim Horton’s cup with baggie containing powder inside. He photographed the cup and contents. UC#1 identified in Court a photo of the cup, baggie and powder taken by Cst. Walsh as showing what he had been passed by Mr. Johnson. Cst. Walsh weighed the substance at 28 grams. He sent a sample of it to the Health Canada lab and received a Certificate of Analysis showing it consisted 68% cocaine. [ 95 ] In the conversation intercepted and recorded at the Sports Bar on January 19, UC#1 and Mr.

Johnson discussed the purchase by UC#1 of a half kilogram of cocaine for $50,000. That conversation was followed by another intercepted and recorded discussion on January 27 in which they negotiated the price at $2700 per ounce, or $43,000 for half a kilogram. UC#1 left a Tim Horton’s box with Mr. Johnson that day and they agreed to meet the next day to complete the transaction. However, on January 28 the two spoke and postponed the completion of the deal until January 29. On that day, UC#1 arrived at the Sports Bar to find not Mr. Johnson but the Agent.

The Agent said that because UC#1 was previously unknown to Mr. Johnson, Mr. Johnson wanted the Agent to complete the deal. UC#1 left the Sports Bar and informed his cover officer of that, and he was instructed to complete the purchase nonetheless. He also called Mr. Johnson and told him that he would complete the deal, but wanted to meet with him afterward. UC#1 returned to the Sports Bar, passed $43,000 to the Agent and received in return a Tim Horton’s box with two baggies containing white powder. [ 96 ] UC#1 then phoned Mr. Johnson and told him that he wanted to meet with him.

He did meet with him and discussed the way that the deal was executed. He asked Mr. Johnson what was in the box and Mr. Johnson replied “coke.” [ 97 ] UC#1 passed the Tim Horton’s box to his cover officer, who passed it along to the exhibit handler, Cst. Walsh. Cst. Walsh photographed the box and contents, and UC#1 identified the objects in the photo as showing what he had been passed by the Agent. Cst. Walsh weighed the contents of the bags at a total of 449 grams.

He sent a sample from each bag to Health Canada lab and received Certificates of Analysis showing one consisted of 71% cocaine and the other 72% cocaine. [ 98 ] I am satisfied beyond a reasonable doubt that Mr. Johnson possessed one ounce of a substance containing cocaine and sold that to UC#1 on January 19, 2016. He is therefore guilty of the offences of possession for the purpose of trafficking and of trafficking. [ 99 ] Consideration of the transaction on January 29, 2016, is more complicated because the deal was executed by the Agent, and Mr. Johnson was not present.

The Agent testified that he had little independent recall of this transaction, although he did remember UC#1 and Mr. Johnson speaking after it was completed. [ 100 ] Mr. Johnson argues that the consummation of the deal by the Agent raises reasonable doubt as to whether Mr. Johnson possessed or trafficked in cocaine on January 29. This is especially so, says Mr. Johnson, because there is evidence that tends to show that the Agent engaged in trafficking for his own benefit during the course of the investigation. [ 101 ] However, I am still satisfied that Mr.

Johnson is guilty of possession for the purpose of trafficking and of trafficking in respect of this transaction. The offer made on January 27 by Mr. Johnson to sell the cocaine for $43,000 itself constituted the offence of trafficking. Further, Mr. Johnson’s confirmation to UC#1 that he asked the Agent to complete the deal demonstrates that he was in joint possession of the cocaine with the Agent and that the Agent was acting on his behalf in completing the deal that Mr. Johnson and UC#1

had arranged in their meeting on January 27. [ 102 ] Mr. Johnson argued that because the indictment charged him and Mr. Leonard jointly with this offence, and the Crown agreed that Mr. Leonard ought to be acquitted because there was no evidence implicating him, that the charge could not be maintained against Mr. Johnson. I do not accept this argument, for which no authority was provided. The accused were each charged with committing the offence, and not with jointly committing the offence. The lack of evidence that Mr. Leonard participated in this transaction does not detract from the evidence that Mr.

Johnson did. The verdicts are not inconsistent in any way. Counts 16 and 17 Trafficking in Cocaine & Possession of Cocaine for the Purpose of Trafficking September 19, 2016 [ 103 ] The transaction that forms the basis for these counts allegedly took place on September 19, 2016. The Crown relies on the evidence of UC#s 6 and 7, on intercepted conversations and on the evidence of other RCMP officers who provided cover to UC#s 6 and 7 and handled the related physical exhibits. [ 104 ] UC#s 6 and 7 were tasked jointly with purchasing cocaine from Mr. Johnson.

On September 19, 2016, they went in the company of the Agent to the Sports Bar to meet with Mr. Johnson. The discussions at this meeting were intercepted, recorded and played in Court. [ 105 ] At the outset of this meeting, Mr. Johnson introduced himself by name. The Agent then is heard discussing an arrangement he had discussed with Mr. Johnson on the phone: a discussion of “47,” that the Agent would not be involved; and that UC#s 6 and 7 would deal with Mr. Johnson directly. UC#7 asked Mr. Johnson if they were going to do business, and Mr. Johnson confirmed that they were.

They then discussed the purchase of an “8 ball,” which the evidence indicated referred to 1/8 of an ounce of cocaine, as a tester. UC#7 asked the price, and the Agent suggested that the price be included in the eventual purchase of 500 grams. Mr. Johnson agreed and said that he could get the 8 ball within a short time. He asked UC#s 6 and 7 to remain in the Sports Bar, and he left. Mr. Johnson returned a couple of hours later and passed UC#7 a bag that he said contained 3 grams.

He suggested to UC#s 6 and 7 that they could test it there in the bar, but they said that they preferred to test it elsewhere and would return with the money for the balance of the cocaine. They left, met with their cover officer and gave him the tester. He gave them the $47,000 to complete the purchase. [ 106 ] UC#s 6 and 7 returned to the Sports Bar a short time later. Again, the ensuing conversations were intercepted, recorded and played in Court. However, the intercept does not clearly demonstrate a transaction, although there is reference made to “47” and to a bag. According to UC#s 6 and 7, when Mr.

Johnson returned to the Sports Bar, he went behind the bar and then placed a black linen grocery bag on the counter with a white substance in several chunks, and UC#7 passed Mr. Johnson a bag with $47,000 in cash, which Mr. Johnson counted. They discussed doing further business together, and Mr. Johnson wrote down his phone number and gave it to UC#7. UC#s 6 and 7 left and turned over the bag to Cst. Soper. [ 107 ] Cst. Soper did not testify, but, with the consent of the accused, gave evidence by Affidavit. He attested to having attended with Cpl.

Pilgrim and put the items given to him by UC#s 6 and 7 in an exhibit locker. Cst. Walsh, the exhibit handler, testified that on September 19 he received from Cpl. Pilgrim a small plastic baggie containing a white powder and a black linen bag containing several chunks of a white substance. He photographed the bags and contents. He weighed the substance in the small bag at 1 gram, and that in the black linen bag at 502 grams. He sent three samples to the Health Canada lab and received Certificates of Analysis showing the samples as consisting of 89%, 91% and 91% cocaine.

He presented in evidence photos of the baggie and black linen bag and the substances they each contained. UC#s 6 and 7 identified the objects shown in the photos as those, or similar to those, handed to her by Mr. Johnson in the Sports Bar. [ 108 ] The Crown says that this evidence is sufficient to support a conviction against Mr. Johnson. However, Mr. Johnson raises several issues which must first be considered. [ 109 ] The first issue concerns the identity of Mr. Johnson as the person heard on the intercepts and described in the evidence of UC#s 6 and 7. UC#6 pointed to Mr.

Johnson in Court and said that he was the person who met with her and UC#7 on September 19, 2016. UC#7 initially did the same. However, UC#7 later in her testimony said that she needed to correct herself because she had noticed Mr. Curran, who was appearing at the trial by video, and said that he looked more like the person that she and UC#6 had met. Then, still later, she corrected herself again, and then correctly identified Mr. Johnson in Court.

She explained that she had grown accustomed during recent years to seeing accused persons appear by video in Court proceedings and this prompted her to reconsider her previous testimony. [ 110 ] I was troubled by the difficulty that UC#7 had in correctly identifying Mr. Johnson as the person that she had dealt with in September, 2016. Indeed, her testimony highlights the difficulties inherent in asking a witness to identify a person involved in an alleged crime when accused persons are sitting in designated positions in Court. [ 111 ] However, UC#6 pointed out Mr.

Johnson as the person with whom she and UC#7 had met in the Sports Bar. [ 112 ] More importantly, this is not a case that turns on eyewitness identification. Mr. Johnson is heard on the intercept introducing himself to the undercover officers. He also gave UC#7 a number written on a scrap of paper (a photo of which was entered in evidence), which was identified by other testimony as the number for the cell phone used by Mr. Johnson. I am satisfied beyond a reasonable doubt that Mr. Johnson is heard on the intercepted communications discussing the sale of cocaine to UC#s 6 and 7. [ 113 ] Second, Mr.

Johnson suggests that the evidence does not demonstrate beyond a reasonable doubt that it was Mr. Johnson who trafficked in cocaine at the Sports Bar on September 19, 2016. He points to the fact that it was the Agent who originally brokered the deal for the purchase of cocaine. He also raised a suggestion on cross-examination of UC# 6 and of the Agent that it was the Agent who

put the black linen bag on the counter to complete the purchase, suggesting that the Agent’s notes said that he did that. UC#6 refused to concede that, saying that she was careful in her observations and careful to avoid any instance of “middling” where the Agent is interposed between the participants in the purchase. UC#7, the officer mainly involved in this transaction, said that it was Mr. Johnson who put the bag on the counter. The Agent did not have an independent recollection of having done so, but testified that his notes said that he did so he must have done so.

The more reliable evidence was that of UC#6 who recalled the event, and who had a particular reason to be attentive to the matter. I find that the evidence demonstrates that it was Mr. Johnson who put the bag with the drugs on the counter for UC#7, the purchaser. [ 114 ] Mr. Johnson spoke to the undercover officers about the transaction for the purchase of cocaine. It was he who left the bar and returned on two occasions with the substance represented as cocaine. It was he who took and counted the money in return for the black linen bag.

The suggestion on cross-examination that it was the Agent who actually was selling the cocaine to the undercover officers through Mr. Johnson as an intermediary does not create a reasonable doubt that it was Mr. Johnson who offered and sold cocaine to the undercover officers, and that he had possession of the cocaine before he sold it. [ 115 ] I am therefore satisfied beyond a reasonable doubt that on September 19, 2016, Mr. Johnson possessed cocaine for the purpose of trafficking and that he trafficked in cocaine on that day.

Count 10 Possession of the Proceeds of Crime August 22, 2014 to September 28, 2016 [ 116 ] Mr. Johnson is charged with the possession of money greater than $5000 knowingly obtained from the commission of an indictable offence. [ 117 ] The Crown relies on the evidence advanced to prove Counts 15 and 16 to prove this charge. [ 118 ] After considering the evidence related to Count 15, I found that Mr. Johnson trafficked an ounce of cocaine to UC#1 on September 19, 2016.

However, only the amount of $2800 changed hands in this transaction and therefore that evidence does not make out the charge. [ 119 ] I also found that Mr. Johnson is guilty of trafficking by offering to sell UC#1 cocaine on September 27 and then completing that transaction through the Agent on September 29, 2016. The consideration for this sale was $43,000. However, although I found that Mr. Johnson was guilty of trafficking by offering to sell the cocaine to UC#1, and that the sale was completed on behalf of Mr. Johnson, there is no evidence that Mr. Johnson was ever in possession of the $43,000.

Therefore, the evidence in respect of Count 15 does not establish the charge in Count 10. [ 120 ] I also found that Mr. Johnson was guilty of trafficking cocaine to UC#s 6 and 7 on September 19, 2016. The evidence in respect of that count demonstrated beyond a reasonable doubt that Mr. Johnson received the $47,000 consideration for this transaction. [ 121 ] I therefore find Mr. Johnson guilty of an offence under s. 355(

a) of the Code . Drug Charges against James Curran Counts 1 and 2 of Curran Indictment Trafficking in Cocaine & Possession of Cocaine for the Purpose of Trafficking September 20 to October 17, 2015 [ 122 ] The Crown relies on evidence of three separate, but related, transactions between UC#1 and Mr. Curran. [ 123 ] The evidence of the first of these transactions came from UC#1. No intercepted communications related to this transaction were entered into evidence. UC#1 testified that he was introduced to Mr. Curran by the Agent on September 23, 2015, at a meeting pre- arranged through the Agent.

It had been agreed in advance that Mr. Curran would sell a one-ounce tester of cocaine to UC#1 for $2800. According to UC#1, that sale was completed at Cupids and he then turned over to Cst. Trouposkiadis a baggie with white powder that Mr. Curran sold to him. Cst. Trouposkiadis testified that he took possession of that and travelled with Cpl. Strong to RCMP headquarters where it was placed in a temporary evidence locker. He identified the baggie in a photo entered into evidence. Cst.

Walsh testified that he took that photo and weighed the substance at 1 gram, but that no sample from that baggie was sent for testing. [ 124 ] The Crown has proved beyond a reasonable doubt that on September 23, 2015, Mr. Curran sold to UC#1 a substance represented as cocaine. Therefore, he is guilty of having trafficked in cocaine on that date. Because this substance has not been proven to have been cocaine, the Crown has not demonstrated that Mr. Curran is guilty of possession of cocaine for the purposes of trafficking on that date. [ 125 ] The next transaction between Mr.

Curran and UC#1 took place on September 25, 2015. Cpl. Strong is the only witness who testified how this deal came about. He said that following the first transaction on September 23 after the investigative team had returned to the safe house, Mr. Curran called the Agent and said he would provide another sample because the first had been less than a full gram. [ 126 ] UC# 1 testified that on September 25, he met Mr. Curran outside the Vikings Club House in Cupids for a meeting arranged by the Agent for the purchase of 2 grams of cocaine. A coded conversation between Mr.

Curran and the Agent during which they discussed price was intercepted. When the Agent and UC#1 arrived in Cupids, Mr. Curran told the Agent that he didn’t want to meet in the Club House because it had “wires.” UC#1 testified that Mr. Curran provided 2 bags of white powder to him in return for $5600. UC#1 later

turned these bags over to Cpl. Strong. Cpl. Strong testified that he and Constable Trouposkiadis took those bags to RCMP headquarters where they were initially placed in an exhibit locker, and later transferred to Cst. Walsh. Both UC#1 and Cpl. Strong identified the bags with white powder in photos entered into evidence. Cst. Walsh testified that he took those photos and also weighed the bags at 31 and 30 ounces, and then sent samples of each for analysis.

Certificates of Analysis were entered into evidence showing that the substance in the bags contained cocaine at 84 and 83% purity. [ 127 ] The Crown has proved beyond a reasonable doubt that Mr. Curran is guilty of having trafficked in cocaine and of possession of cocaine for the purposes of trafficking on September 25, 2015. [ 128 ] UC#1 testified that at the September 25 meeting, he and Mr. Curran discussed pricing for a further deal for a half kilo of cocaine, and settled on $43,000. These discussions culminated in a transaction on October 17, 2015. Several interactions between Mr.

Curran and UC#1 related to planning this transaction were recorded on a body pack recording device worn by the Agent, or were the subject of intercepted phone calls or text messages. As well, at an October 15 meeting in Cupids, UC#1 ripped off a piece of paper towel and asked Mr. Curran to write price on it. Mr. Curran wrote “43.” UC#1 identified that paper on a photo taken by Cst. Walsh and entered into evidence. [ 129 ] The transaction had originally been planned for October 16. However, in an intercepted October 15 phone call, the Agent told Mr.

Curran that the cocaine would not be available until October 17, and that Mr. Curran had stated the wrong price for the initial three ounces, which should have been $3100, not $2800. [ 130 ] The sale was planned to take place at the Hometel in St. John’s. In a series of intercepted phone calls with UC#1, Mr. Curran explained that, although he was late, he was still coming to complete the sale. During these conversations, UC#1 gave Mr. Curran the chance to back out of the deal, but Mr.

Curran insisted he would go through with it. [ 131 ] Surveillance devices had been planted in the hotel room and police surveillance observed Mr. Curran arriving at the hotel in a cab in the company of another unidentified male passenger. In the hotel, Mr. Curran exchanged with UC#1 a plastic shopping bag with a “brick” of white substance with “F” stamped on it for $43,000. [ 132 ] UC#1 handed the plastic shopping bag with white “brick” to Cst. Soper. Cst. Soper and Constable Seward testified that they put those in an exhibit locker. Cst. Seward gave the exhibit locker key to Cst. Walsh. Cst.

Walsh photographed the exhibit and these photos were put in evidence, and UC#1 and Cst. Seward identified the substance that they had handled in those photos. Cst. Walsh also weighed the substance at 504 grams and sent two samples to Health Canada for analysis. Certificates of Analysis entered into evidence showed the samples contained 81% and 83% cocaine. [ 133 ] I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Curran possessed cocaine for the purpose of trafficking and trafficked in cocaine on October 17, 2015.

Counts 3, 4 and 5 of Curran Indictment Trafficking in Heroin March 16 to 21, 2016 - and- Trafficking in Fentanyl & Possession of Fentanyl for the Purpose of Trafficking March 16 to 21, 2016 [ 134 ] These counts arise out of the same events, and the evidence adduced by the Crown in respect of them is the same. [ 135 ] On March 16, 2016, the Agent wore a body pack recording device during a conversation with Mr. Curran. In that intercepted conversation Mr. Curran asked the Agent the value of an ounce of heroin. The conversation continued, with Mr.

Curran saying that he had an ounce of heroin, that he was in present possession of a sample of it in his pocket and that he would sell it to the Agent if the price was right. Mr. Curran said that he would give the Agent a sample. As a result of that conversation, the police later specifically tasked the Agent to purchase one ounce of heroin from Mr. Curran. [ 136 ] The Crown led evidence from several police officers who were involved in tasking and monitoring the Agent’s subsequent dealings with Mr. Curran. [ 137 ] On March 17, 2016, the RCMP intercepted four phone calls between the Agent and Mr.

Curran in which they discussed, in code, the price of heroin, finally settling on a price of $3500 for an ounce, with the deal to be completed at Cupids, where Mr. Curran lived. [ 138 ] Several police officers testified that on March 21, 2016, the Agent was brought to a safe house where he was provided with $3500 to complete the purchase. Cst. Trouposkiadis testified that he searched the Agent to ensure that he did not have drugs on his person before the operation started; Corporal Miller testified that he observed Cst. Trouposkiadis conducting that search. The Agent then called Mr.

Curran and told him that he was coming out to meet him. [ 139 ] The team travelled to Cupids so that the Agent could meet with Mr. Curran while they monitored him. The police provided the

Agent with an empty Tim Horton’s coffee cup that they instructed him to use to carry the heroin if he was successful in obtaining it. The Agent was dropped off on the road a short distance from Mr. Curran’s residence. The team observed the Agent meeting with Mr. Curran outside and then the Agent and Mr. Curran got into a Dodge Journey driven by another man, Joe McIntyre. The Agent’s body pack device recorded the conversation inside the car. The RCMP team engaged in surveillance of the Dodge Journey and its occupants. [ 140 ] Mr. Curran told the Agent that they were going to Salmonier Line.

The Agent said that he had the cash. During the conversation on the drive to Salmonier Line, both the Agent and Mr. Curran clearly articulated that the deal involved heroin, with Mr. Curran at one point saying “If it’s not heroin, don’t fucking pay me.” Cst. Trouposkiadis, posing as the person on whose behalf the Agent was purchasing the heroin, called the Agent, and the Agent said that he was going to have to pick him up on the Salmonier Line after the deal was completed. [ 141 ] The RCMP followed the Dodge Journey, although it was not kept under continuous surveillance.

The Dodge Journey stopped at a house on Salmonier Line and officers observed the Agent, Curran, McIntyre and other unknown people in the driveway of the house. [ 142 ] At one point, Mr. Curran left the Agent and Mr. McIntyre in the vehicle. The surveillance and wiretap evidence was consistent with this occurring shortly after the Dodge Journey stopped at the house on the Salmonier Line. After Mr. Curran left the vehicle, the Agent is heard asking Mr.

McIntyre whether “that is buddy with the heroin?” [ 143 ] The wiretap intercept captured conversations in the driveway of the house on Salmonier Line between the Agent and Mr. McIntyre, and between the Agent and each of an unknown male and unknown female. The Agent, Mr. Curran and Mr. McIntyre got back into the Dodge Journey and drove away from the house on Salmonier Line. Shortly after they did so, the wiretap intercept captured discussions between the Agent and Mr. Curran during which they spoke of heroin, its price and weight measured by scales the Agent had with him.

At one point, the Agent is heard to ask “but this is fucking heroin, isn’t it?” and Mr. Curran answered “Yeah.” Mr. Curran said that he was going to take a gram and try it. The Agent said that he did not want to touch the drug, that he was afraid he would get sick if it got on his fingers. The Agent and Mr. Curran discussed the price after deduction for the gram taken by Mr. Curran and settled again on $3500, which the Agent then gave to Mr. Curran. They then discussed that the Agent would be dropped off on the Salmonier Line to be picked up by the person on whose behalf he was supposedly buying the heroin.

The intercept recorded him leaving the vehicle, saying before he did so: “An ounce of fucking heroin in a coffee cup on the Trans-Canada Highway!” [ 144 ] The Agent was then out of sight of the RCMP team until an officer spotted him walking along the highway. He was picked up by Cst. Trouposkiadis and Cpl. Miller about five minutes after the wiretap recorded him exiting the Dodge. Those officers testified that the Agent immediately turned over to Cpl. Miller a coffee cup inside of which was a tied plastic bag containing a beige coloured powder.

The two officers dropped the Agent off to the safe house and then went to RCMP headquarters, and Cst. Trouposkiadis put the coffee cup in an exhibit locker. Both officers in their testimony at trial identified photos of the coffee cup with plastic bag containing beige powder. [ 145 ] Cst. Walsh, testified that he took the coffee cup with the baggie containing the powder (which he also identified from the photos) from the exhibit locker, weighed it at 29 grams and sent a sample to Health Canada for analysis.

A Certificate of Analysis entered into evidence reported that the sample contained Fentanyl at 3.6% and caffeine. [ 146 ] The substance in this case did not include any heroin. However, trafficking includes offering to sell a substance held out as a scheduled substance. The words spoken by Mr. Curran in the intercepted conversation with the Agent on March 16, 2016, and the four subsequent intercepted phone calls, demonstrated beyond a reasonable doubt that Mr.

Curran offered to sell heroin to the Agent, that he continued to represent that he was selling heroin to the Agent, and that he was genuine and serious in that offer. On that basis alone, Mr. Curran is guilty of trafficking in heroin. [ 147 ] Further, the wiretap intercept captured conversations between the Agent and Mr. Curran during which Mr. Curran is heard providing the Agent with a substance represented as heroin in return for $3500.

This is direct evidence of trafficking of heroin and would also support the charge. [ 148 ] The evidence did not support a finding that the substance sold on March 21, 2016, was heroin. However, that does not matter: the offence under the CDSA , s. 5(1) is committed by offering to sell or selling a substance represented or held out to be heroin, whether it actually was or not. [ 149 ] Therefore, Mr.

Curran is guilty of trafficking in heroin. [ 150 ] The question whether the charges of trafficking in Fentanyl and possession of Fentanyl for the purpose of trafficking are made out depends on consideration of the direct evidence set out in respect of the heroin trafficking charge, and also on circumstantial evidence. [ 151 ] The wiretap intercept of the conversation during the trip to the Salmonier Line captured Mr. Curran exchanging a substance for money. [ 152 ] The Crown presented evidence that Mr. Curran possessed and offered for sale a substance that he represented as heroin.

The further evidence that the Crown presented in respect of that offence showed that the substance did not contain heroin but it did contain Fentanyl. Both are scheduled substances. Therefore, evidence that Mr. Curran possessed the substance and offered it for sale is evidence of the essential elements of the prohibited act and guilty intent of each offence of trafficking in Fentanyl and possession of Fentanyl for the purpose of trafficking. [ 153 ] Mr. Curran argues that the Crown’s case on the Fentanyl charges relies on two inferential leaps: that Mr.

Curran gave any substance to the Agent in the car on the Salmonier Line; and that any package that he did give the Agent was the same one as the Agent turned over to police and later was tested as containing Fentanyl. [ 154 ] In respect of the first inference, Mr. Curran admits that the direct evidence from the intercepted conversations in and around the car proves that someone gave the Agent a package containing a substance that the Agent weighed and from which he gave Mr. Curran a

1 gram sample. However, Mr. Curran says that it could have been Mr. McIntyre, or alternatively one of the people heard speaking with the Agent at the house on the Salmonier Line, who gave the package to the Agent. I find that Mr. Curran’s alternate explanations are not plausible, for the following reasons. First, this explanation is not consistent with the recorded communications. Neither Mr. McIntyre nor the unidentified people at the house on Salmonier Line said anything consistent with passing a package to the Agent.

As they would not have known their conversations were being recorded, they would not have had any reason to silently, surreptitiously pass a package to the Agent. Second, it was Mr. Curran who arranged the deal and he never suggested that anyone else would pass the package to the Agent. Neither of these suggested inferences are plausible. Further, it was Mr. Curran who arranged the deal with the Agent, and the Agent is heard giving the money to Mr. Curran, so even if it was a plausible inference that someone else passed the package to the Agent, then this inference would not have been inconsistent with Mr.

Curran’s guilt as he still would have been involved in the transaction in a culpable way. [ 155 ] Mr. Curran also argues that the direct evidence is insufficient to establish that the substance that the wiretap captured him exchanging for money was the same substance that the Agent handed over to police and the police processed and analyzed. There were two relevant gaps in the direct evidence corresponding to gaps in the visual surveillance of the Agent by police. The first occurred when the Agent was dropped off by police and then walked to meet Mr.

Curran; the second occurred after the Agent was dropped on the side of the highway by Mr. Curran and Mr. McIntyre and was then out of sight of the police (except for a brief moment) until he got into the car with Cst. Trouposkiadis and Cpl. Miller and immediately handed over the Tim Horton’s cup. [ 156 ] Each of those gaps in the direct evidence lasted about five minutes, and Mr.

Curran says that during either of those periods, the Crown evidence leaves open the possibility that the Agent could have picked up the substance eventually tested as containing Fentanyl from a place where he had planted it, or met someone else who passed it to him on the side of the road. In other words, Mr. Curran says that the Crown evidence does not prove that the substance turned over to the police by the Agent was the substance that Mr. Curran was heard on wiretap exchanging for money. [ 157 ] Mr.

Curran’s suggested alternate inference requires that I find that the Agent either had the substance on his person prior to getting in the car with Mr. Curran and Mr. McIntyre, or picked it up before he met with Mr. Curran or after he was dropped off on the Salmonier Line from a place where he had planted it ahead of time, or where someone else met him and passed it to him. [ 158 ] Neither of these explanations for the Agent having the Fentanyl when he was picked up by the police are plausible. Cpl. Miller and Cst.

Trouposkiadis both testified that the latter searched the Agent and ensured that he did not have any drugs on him before he was taken by the police to Cupids. The Agent’s body pack device recorded him walking on the gravel road shoulder from the point where he was dropped off by police to the point where he met Mr. Curran, and this recording is inconsistent with him either stopping to pick up a pre-planted package or with meeting someone who passed him a package. The Agent was not aware when he met Mr.

Curran in Cupids that they would be travelling to the Salmonier Line, and therefore could not have arranged to have planted a package or met someone else there after being dropped off by Mr. McIntyre. Finally, the wiretap evidence shows that the Agent was given a substance by Mr. Curran while in the vehicle, and he is heard at the time that he got out of the Dodge Journey saying to Mr. Curran and Mr. McIntyre that he then had an ounce of heroin in a coffee cup. Neither of them questioned that statement. [ 159 ] Therefore, I find that Mr.

Curran is guilty of trafficking in Fentanyl and of possession of Fentanyl for the purpose of trafficking. Count 10 Possession of Property the Proceeds of Crime August 22, 2014 to September 28, 2016 [ 160 ] Mr. Curran is charged with the possession of money greater than $5000 knowingly obtained from the commission of an indictable offence. [ 161 ] The Crown relies on the evidence advanced to prove Count 1 of the Curran indictment to prove this charge. [ 162 ] After considering the evidence adduced in support of this charge, I found that Mr.

Curran had trafficked cocaine to UC#1 on three occasions: September 23 for $2800, September 25 for $5600, and October 17, 2015 for $43,000. On each of these occasions, UC#1 paid Mr. Curran directly. Mr. Curran’s knowing possession of money in excess of $5000 from each of the sales on September 25 and October 17, 2015, constitutes the elements of the offence. [ 163 ] I therefore find Mr. Curran guilty of two counts of the offence under s. 355(

a) of the Code . Criminal Organization Charges [ 164 ] All three accused are charged with criminal organization offences. [ 165 ] The first question that must be addressed is whether the Crown has proved the existence of a criminal organization. The focus of the police investigation was whether the Vikings MC was a criminal organization; the Crown theory throughout all preliminary proceedings and the trial is that the Vikings MC was a criminal organization. [ 166 ] The Criminal Code , s. 467.1 defines a criminal organization as a group, however organized, that: (

a) is composed of three or more persons in or outside Canada; and (

b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the

persons who constitute the group. It does not include a group of persons that forms randomly for the immediate commission of a single offence. [ 167 ] The Supreme Court of Canada in R. v. Venneri , 2012 SCC 33 , noted that

interpretation of this definition must focus on the object of Parliament in singling out the danger of criminal activity perpetrated by a group that is organized and has continuity. Structure or organization alone is insufficient to separate a criminal organization from a random group of criminals.

Rather, there must be some deliberate framework arranged around criminal goals, and some continuity of that structure beyond the completion of defined crimes, that characterize criminal organizations. [ 168 ] In order to apply the definition of criminal organization, the Court must answer these questions: • Was the Vikings MC a group of three or more persons with structure and continuity? • If so, was it a group that had as one of its main purposes or main activities the commission or facilitation of one or more serious offences that, if committed, would likely benefit the group, or any of its members?

Was the Vikings MC a group of three or more persons with structure and continuity? [ 169 ] The Vikings MC was a group of three or more persons. The evidence from police witnesses, from photographs of members wearing Vikings’ colours and from intercepted Vikings’ meetings demonstrates that the club had many more than three members at the relevant time.

During the material time the three accused were members of the Vikings and the following persons held some degree of membership in the club: Al Potter, Phonse Hayward, Tom Snow, Shane Leonard, Vince Leonard, Jr., Dave Burry, Daniel Leonard, Jerome Quigley, Alister Haley, Tom Snow, Eugene Driscoll and Mason Maher. [ 170 ] The evidence, mainly from wiretaps of meetings and related telecommunications, demonstrated that the Vikings MC was a highly structured organization.

The club had a process, although not clearly defined, for determining and maintaining membership and affiliated status (referred to as support clubs, strikers and hangarounds); officers; membership dues; regular meetings (referred to as “Church”); rules of order for those meetings; identifying colours or patches; and four clubhouses, one of which was maintained at least partially through members’ dues. [ 171 ] The evidence, especially intercepted discussion at Vikings’ meetings, and the opinion of Sgt. Belleau, showed that the Vikings modelled their organization on that of the Hells Angels.

Was the organization criminal? [ 172 ] This question is a shorthand restatement of the question whether the Vikings MC had as one of its main purposes or main activities the commission or facilitation of one or more serious offences that, if committed, would likely benefit the group, or any of its members? [ 173 ] The meaning of the words “main purposes or main activities” has been considered in the case law. In R. v. Beauchamp , 2015 ONCA 260 (case that our Court of Appeal in R. v. B

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