Ontario Court of Justice

Between

Her Majesty the Queen

And

[REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED] & [REDACTED]

S. Caramanna for [REDACTED] [REDACTED]

Ken Chasse for [REDACTED]

Bradley Funston for [REDACTED]

Aaron Harnett and Steven Stauffer for [REDACTED]

Paul Burstein for [REDACTED]

Michael Clarke for [REDACTED]

Douglas Usher for [REDACTED]

John Erickson for [REDACTED]

[REDACTED] Boulet, Jason Gorda, Sophina James and Betty Vagougis for the Crown

Released: January 9, 2006

R U L I N G

INTRODUCTION:

[1] This is a ruling on the issue of committal after a very lengthy preliminary inquiry, known as "Project Impact". The Crown alleges that all accused before this court participated or contributed to the activity of a criminal organization known as the "Malvern Crew" or "Juice Mob". All eight accused are charged jointly with the offence of Participate in a Criminal Organization pursuant to section 467.11 of the Criminal Code, and separately with numerous other offences relating to their alleged involvement in trafficking in narcotics and firearms.

[2] All defence counsel, except for Paul Burstein who represents [REDACTED], seek discharges on some or all of the counts. Mr. Burstein concedes committal on all of Kwok Li's charges.

[3] In total, there are 153 counts on the information before the court. Where defence counsel concede committal or do not challenge the Crown's submissions on the issue of committal, I have simply reviewed the evidence and made certain findings. Where defence counsel address specific evidence or issues, I have attempted to analysis their arguments and to provide reasons. Not every accused person is charged with the same set of offences. Where accused persons are charged jointly with the same offence(s), I have reviewed the evidence collectively.

[4] I have reviewed the Criminal Organization sections of the Criminal Code and the evidence separately at the end of the judgment. Most counsel have been realistic about conceding committal as it relates to the evidence pertaining to substantive offences such as trafficking and possession related charges as against their client. However, most defence counsel seek discharges on the offences wherein their clients are alleged to have participated, committed or instructed that offences be committed for the benefit of a criminal organization.

I. TEST FOR COMMITTAL:

[6] In assessing the evidence, I have applied the well-settled rule that a preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict (U.S.A. v. Sheppard (1976) 30 C.C.C. (2d) 424). Where the case for the Crown is by way of direct evidence, the judge's task is straightforward. If there is conflict in the evidence, the case must still proceed to trial. However, where the Crown's case is circumstantial, the court must engage in a limited weighing of the whole of the evidence, including the defence evidence, to determine whether a reasonable jury properly instructed could return a verdict of guilty. The preliminary inquiry judge does not engage in drawing factual inferences or in assessing credibility. The judge only asks whether the evidence, if believed, could reasonably support an inference of guilt (R. v. Arcuri (2001) 157 C.C.C. (3d) 21).

II. CASE SUMMARY:

[7] [REDACTED] [REDACTED] and the 7 other accused before this court were among a total of 65 persons charged in what was dubbed "Project Impact". Beginning in 2002, Toronto police assigned to the Gang Task Force saw an escalation of violence in the north end of Scarborough. This included homicides, attempt murders, shootings, home invasions and robberies. Police intelligence showed a "gang war" escalating. In May 2003, the "Impact Task Force" formed concentrating their efforts in Scarborough. Police identified two main groups: the "Malvern Crew" or "Juice Mob", and the "Galloway Boyz". Numerous drug and gun related arrests were made, but the violence continued. Many of the firearms seized were new with the serial numbers still intact. Police believed the firearms were brought from the United States to the Malvern area. Working with the Provincial Weapons Enforcement Unit (P.W.E.U.), Gang Task Force officers in this case obtained the first of two Superior Court Authorizations to Intercept Communications. The first wiretap authorization allowed intercepts from December 15, 2003 through to February 15, 2004; the second authorization allowed intercepts from March 18, 2004 to May 18, 2004. At the end of the investigation, officers deemed over 130,000 calls "relevant". The Crown filed transcripts of 600 intercepted calls at this preliminary inquiry.

[8] On May 12, 2004, at 3:00 a.m., dozens of police officers from the Impact Task Force, Emergency Task Force, Ontario Provincial Police, Durham and Peel Regional Police, and other special task force units met secretly for a special briefing. Their assignment was to execute numerous search warrants simultaneously at various addresses throughout Toronto.

[9] At 5:00 a.m., police officers executed hundreds of search warrants across the Greater Toronto Area. Within minutes of their unannounced entries, police officers secured their respective search sites and the occupants inside were detained or arrested. Firearms, ammunition, large quantities of cash, a wide assortment of narcotics, drug paraphernalia, cell phones and other items were seized. All of the accused before this court were arrested on May 12, 2004, and each had the addresses where they were staying searched.

[10] In total, 65 people were arrested and 275 charges were laid. The group was subdivided into three smaller groups that were prosecuted separately. This is one of two Project Impact preliminary inquiries, which began in the spring of 2005. Justice Dobney of this Court gave her final ruling on the issue of committal in Project Impact - Group One, on October 17, 2005. The parties charged in the third and smallest group, all resolved their matters without a preliminary inquiry. In this case, many individuals named on the information resolved their matters prior to the commencement of this hearing. For example, Shaun Falls, an individual whose name appears frequently on the information, pleaded guilty to many charges prior to the start of this preliminary. [REDACTED] and the 7 others before me elected to be tried by judge and jury with a preliminary inquiry.

III. CROWN'S EVIDENCE:

[11] The Crown submitted over 200 pages of single spaced written submissions. The Crown categorized the evidence into five broad headings: The Intercepted Communications; the Search Warrant Evidence; the Surveillance Evidence; Guilty Plea Transcripts; and Expert Evidence on the Drug Trade.

(a) The Intercepted Communications:

[12] The Crown submitted approximately 600 transcripts of intercepted telephone calls of the accused talking to each other or to third parties. In my ruling of May 10, 2005, I allowed into evidence the transcripts of the calls pursuant to section 540(7) of the Criminal Code, provided that the Crown lead some evidence to establish how initial voice identification was made.

[13] Detective Brian Angle, who was in charge of the "wire room", testified how the wire room operated; how calls were intercepted and designated "relevant" or "non relevant"; how "call monitor logs" were produced; how "call transcripts" are produced; and how a "voice standard" was used to identify a caller.

[14] Detective Angle outlined how initial voice identification was made for the accused before the court. For the purpose of the preliminary inquiry, [REDACTED], Kwok Li, [REDACTED], [REDACTED] and [REDACTED] have conceded voice identification. Counsel for [REDACTED], [REDACTED] and [REDACTED] did not.

[15] Detective Angle and Detective Howie Page, both testified about their familiarity with street slang used by the parties in the intercepted calls. The Crown filed a chart marked "Appendix B" in their materials listing the street slang and the officers' interpretation of the words and phrases. For example, police interpreted the use of the word "trees" in the context of the calls as coded language for the word "marijuana".

[16] As another means of identifying callers, the Crown submitted a number of police occurrence reports. In an intercepted call, two people might discuss an incident or occurrence particular to them, for example, being stopped by police. The occurrence report of the police stop helped officers corroborate the identity of the speaker by cross-referencing it to the call. The Crown also introduced the occurrence reports related to incidents in the Malvern community to add context to some of the intercepted calls and to corroborate the relationship between the caller and the Malvern community. In some cases, the speaker would identify a particular of victim of violence or the perpetrator as "one of us". Police used this intelligence to establish a relationship between the speaker and the violence in the Malvern community.

(b) The Search Warrant Evidence:

[17] As a result of the search warrants executed on May 14th, 2004, various items were

seized from the accuseds' residences. On pages 5 to 7 in their submissions, the Crown lists

the evidence.

[18] Police also searched non-accused's residences and later some of the third parties' jail cells, and that evidence was submitted on consent at this preliminary inquiry. On pages 7 through 16, the Crown lists the property seized from addresses of parties who are not currently before the court, but who were part of the original Impact Task Force Investigation. These persons were [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED], [REDACTED] and Aslyn [REDACTED]. In all police seized a breathtaking amount of firearms, ammunition, other weapons, wide assortment and large quantities of illegal drugs and drug paraphernalia, large amounts of Canadian and U.S.A. currency, counterfeit money, newspaper articles about "gang violence", dozens and dozens of cell phones, and personal writings.

(c) The Surveillance Evidence:

[19] Police conducted surveillance on numerous parties prior to the arrests on May 14, 2004. Three teams conducted the surveillance investigations: Mobile Support Services (M.S.S.), Provincial Weapons Enforcement Unit (P.W.E.U.), and the Impact Task Force. On various days, a surveillance crew would be assigned to follow a "subject" person. Police would record and sometimes videotape the goings-on of the person. At the end of a shift, the central note taker compiled all the information into a report. On pages 17 to 39, the Crown summarizes the surveillance reports submitted at this preliminary inquiry.

[20] As one means of determining whether a person participated or contributed to a criminal organization, the court can consider whether the accused frequently associated with any persons who constitutes a criminal organization (s. 467.11(3)(b)). The Crown submits the surveillance evidence establishes that the accused had close associations with each other, as well as close relationships with 3rd parties who have pleaded guilty and who have admitted they were members of the "Malvern Crew" or "Juice Mob".

(d) Guilty Plea Transcripts:

[21] In a written ruling on September 20, 2005, I allowed into evidence transcripts of guilty pleas made by third parties. The Crown introduced 20 transcripts related to 16 individuals who either pleaded guilty to participating and committing offences for the benefit of a criminal organization known as the "Malvern Crew" or "Juice Mob", or guilty to committing serious criminal offences and who are strongly linked to others in the criminal organization. I allowed these hearsay statements as proof of their contents to prove the various offenders had admitted they participated in the criminal organization by committing offences for the group's benefit, as well as proof that others closely associated with them had committed serious offences. Also, admitted at this preliminary inquiry was the evidence in the transcripts where members of the criminal organization were named, and the facts accepted, as some evidence of membership in this organization.

(e) Expert Evidence - The Drug Trade:

[22] Detective Howie Page was qualified to give expert opinion evidence on the trafficking of drugs and the drug trade in Toronto. He also prepared a report, which was filed as an exhibit.

[23] Detective Page outlined the characteristics of various drugs sold in the Toronto area

such as marijuana, hashish, cocaine and ecstasy. The officer referred to the price of these

drugs, the various methods of production and their chemical constituency. Officer Page gave

opinion evidence on whether the quantity of drugs found in the possession of the accused

was indicative of possession for personal use or possession for the purpose of trafficking. He

also gave his opinion as to whether certain individuals had a relationship with one another

based on an analysis of various wiretap intercepts. At pages 43 to 49 in the Crown's written

submissions, Detective Page's opinions are detailed.

[24] Detective Page also gave opinions on the use of coded language. Throughout the wiretap conversations, individuals spoke to each other in what seemed to be an incoherent language. It is the Crown's position and Detective Page's opinion that many of the conversations contain coded language to discuss the product, price and location of the narcotics. According to Detective Page, drug traffickers are very conscious of speaking on the telephone and as a result they use coded language. Detective Page testified that the codes used in this case were generally very good; in other words, the persons on the calls understood what each other was saying. However, in some cases parties to a particular call became frustrated because the other party did not understand the code. As a result, the person had to go outside of the code to explain what he meant, which confirmed for the officer that the conversation was drug related.

[25] I will now review the evidence as it pertains to each accused as it relates to the drug and weapons offences and various breach charges. I will analyze the criminal organization charges at the end of this ruling.

IX. [REDACTED]

[115] [REDACTED] [REDACTED] is charged with the following offences:

Chart I: Current Charges for [REDACTED]:

Count No. Charge: Time Period: Charged Alone or with Co-

Accused?

1. Participate in a Criminal Organization - Traffic in a Controlled Substance - s. 467.11

Between June 1, 1996 and May 12, 2004

Co-accused in this preliminary inquiry and others

50. Conspiracy to Traffic in Marijuana with persons unknown - s. 465(1)(c)

Between December 15, 2003 and May 12, 2004

Persons unknown

51. Commit the indictable offence of Conspiracy to Traffic in Marijuana for the benefit of a Criminal Organization - s. 467.12

Between December 15, 2003 and May 12, 2004

Persons unknown

52. Participate in a Criminal Organization - s. 467.11

Between December 15, 2003 and May 12, 2004

Persons unknown

76. Breach of Recognizance - to keep the peace and be of good behaviour - s. 811

Between December 15, 2003 and May 12, 2004

Alone

97. Possession for the purpose of Trafficking Marijuana - s. 5(2)(4) CDSA

Between December 15, 2003 and May 12, 2004

Persons unknown

Chart II: Crown Seeks Committal on Additional Charges for [REDACTED]:

Charge: Time Period: Accused:

Possession of Marijuana over 30 grams - s. 4(1)(4) (a) CDSA

May 12, 2004

Alone

[116] I am grateful to counsel Sal Caramanna for his thorough written submissions, his willingness to concede committal where appropriate, and for his allowing me to plagiarize

the format of his very helpful graphs.

[117] Counsel concedes committal on count 50 (Conspiracy to Traffic in Marijuana), count 76 (Breach of a Recognizance), count 97(Possession for the Purpose of Trafficking Marijuana) and does not contest committal on the additional count of Possession of Marijuana over 30 grams. Counsel contests committal on the remaining counts as they relate to the Criminal Organization offences. As throughout this entire judgment, I reserve my discussion on the Criminal Organization offences for all parties until the end of the judgment. As such, I will quickly review the evidence against [REDACTED], for which committal is not in issue.

(a) Drug Charges against [REDACTED]:

[118] [REDACTED] [REDACTED] is only charged with narcotic related offences and no weapons offences. The Crown relies on a series of drug related telephone calls between [REDACTED] [REDACTED] and [REDACTED] as its evidence. The Crown alleges Mr. Tan was Mr. [REDACTED]'s supplier of drugs. Also, the Crown alleges [REDACTED] also associated with [REDACTED], directly or through [REDACTED].

[119] On pages 67 through 69, the Crown lists numerous telephone intercepts wherein [REDACTED] [REDACTED] discussed the purchases of drugs. Further the Crown relies on the evidence seized from Mr. [REDACTED]'s residence the night of his arrest. Police seized 5 cell phones and 107 grams of marijuana, along with some ziplock bags. In the opinion of Detective Howie Page, possession of this amount of marijuana, in all the circumstances, was inconsistent with personal use.

[120] Mr. [REDACTED] was also bound by a section 810 Recognizance at the time of his arrest with a condition to keep the peace and be of good behaviour. There is some evidence that Mr. [REDACTED] failed without lawful excuse to abide by this condition, by continuing to commit further criminal acts.

[121] I am satisfied that the Crown has called sufficient evidence to commit [REDACTED] to stand trial on the drug related offences.

XII. The Criminal Organization Charges:

[146] Perhaps the most contentious of all the charges in this preliminary inquiry are the ones related to a criminal organization.

[147] The present provisions were introduced in Bill C-24 in 2001 and came into force on January 7, 2002. The relevant sections of the Criminal Code are as follows: 467.1 (1) The following definitions apply in this Act. "criminal organization" means 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.

"serious offence" means an indictable offence under this or any other Act of

Parliament for which the maximum punishment is imprisonment for five years or

more, or another offence that is prescribed by regulation.

For the purposes of this section and section 467.11, facilitation of an offence does

not require knowledge of a particular offence the commission of which is

facilitated, or that an offence actually be committed.

(3) In this section and in sections 467.11 to 467.13, committing an offence means

being a party to it or counselling any person to be a party to it.

(4) The Governor in Council may make regulations prescribing offences that are

included in the definition "serious offence" in subsection (1).

467.11 (1) Every person who, for the purpose of enhancing the ability of a

criminal organization to facilitate or commit an indictable offence under this or

any other Act of Parliament, knowingly, by act or omission, participates in or

contributes to any activity of the criminal organization is guilty of an indictable

offence and liable to imprisonment for a term not exceeding five years.

(2) In a prosecution for an offence under subsection (1), it is not necessary for the

prosecutor to prove that

(a) the criminal organization actually facilitated or committed an indictable

offence;

(b) the participation or contribution of the accused actually enhanced the ability of

the criminal organization to facilitate or commit an indictable offence;

(c) the accused knew the specific nature of any indictable offence that may have

been facilitated or committed by the criminal organization; or

(d) the accused knew the identity of any of the persons who constitute the criminal

organization.

(3) In determining whether an accused participates in or contributes to any activity

of a criminal organization, the Court may consider, among other factors, whether

the accused

(a) uses a name, word, symbol or other representation that identifies, or is

associated with, the criminal organization;

(b) frequently associates with any of the persons who constitute the criminal

organization;

(c) receives any benefit from the criminal organization; or

(d) repeatedly engages in activities at the instruction of any of the persons who

constitute the criminal organization.

467.12 (1) Every person who commits an indictable offence under this or any

other Act of Parliament for the benefit of, at the direction of, or in association

with, a criminal organization is guilty of an indictable offence and liable to

imprisonment for a term not exceeding fourteen years.

(2) In a prosecution for an offence under subsection (1), it is not necessary for the

prosecutor to prove that the accused knew the identity of any of the persons who

constitute the criminal organization.

467.13 (1) Every person who is one of the persons who constitute a criminal

organization and who knowingly instructs, directly or indirectly, any person to

commit an offence under this or any other Act of Parliament for the benefit of, at

the direction of, or in association with, the criminal organization is guilty of an

indictable offence and liable to imprisonment for life.

(2) In a prosecution for an offence under subsection (1), it is not necessary for the

prosecutor to prove that

(a) an offence other than the offence under subsection (1) was actually committed;

(b) the accused instructed a particular person to commit an offence; or

(c) the accused knew the identity of all of the persons who constitute the criminal

organization

[148] In short Parliament introduced three offences: participating in a criminal organization to enhance the ability of the criminal organization to facilitate and commit an indictable offence, committing an indictable offence or instructing a person to commit an offence for the benefit of, at the direction of or in association of a criminal organization.

[149] The Crown submits the evidence establishes the accused and others were closely associated with one another, in a group known as the "Malvern Crew" or "Juice Mob". The Crown alleges that during the investigation, [REDACTED], Shaun Falls and Kwok Li headed the organization. The Crown alleges Kwok Li was the supplier of much of the drugs to Shaun Falls. Within the organization were smaller "crews" headed by "big men". They include Andre Lawrence who along with Andrew Smith ("Drew", "DooDoo", or "Drewfus", Raoul Burton ("Baba" or "Barber"), Kimani Joseph ("Monsta"), Jason Walters ("Wiz") and others were in charge of "Emps", which referred to a neighbourhood in the Malvern community known as "Empringham". [REDACTED] ("Tuffy" or "Tuffs") along with Aslyn [REDACTED] ("Slugs" or "Fro"), was in charge of "Bleeks", which referred to a street in downtown Toronto called "Bleeker Street". [REDACTED] ("Bucky Marshall") worked the same crew as Peter Honigan ("Beck"). Shaun Falls ("Pooky") was associated with Kevin Chung ("Chungy") and [REDACTED] ("K-Dawg"); and [REDACTED] ("D.P" or "Deeps") was associated with [REDACTED] ("Laskey"), [REDACTED] ("Gorilla"), and also [REDACTED].

[150] The Crown does not allege nor does it have to prove that all of the members of the criminal organization knew one another or were implicated in every criminal transaction or discussion.

[151] Beginning at page 91 of their submissions, the Crown submits the accused and others constituted the "Malvern Crew" based on the following: intercepted communications, surveillance reports, the search warrant evidence, the guilty plea transcripts and the Blessed

Video.

[152] I have already outlined the evidence related to the first three categories of evidence. Additionally from pages 92 to 102 in their material, the Crown outlines other telephone communications between the accused before the court and 3rd parties. The 3rd parties either pleaded guilty to being members of the criminal organization known as the "Malvern Crew, or others who have pleaded guilty to committing serious offences often involving firearms (In my judgement of September 20th, 2005, I reviewed the names of the accused and the

content of their guilty pleas).

[153] The Crown submits that the conversations, especially those involving firearms and drugs, reveal a familiarity and a shared knowledge between the parties. The Crown submits the callers refer to one another by their street names with the same ease and familiarity (pages 94 to 102). The Crown asks the Court to conclude that there is evidence of close association between the accused before the court and others who constitute the Malvern Crew.

[154] The Crown also relies on intercepted phone calls where some of the accused and

3rd parties identified the group by name and by their territory. Many of the 3rd parties who

pleaded guilty to participating in the activities of a criminal organization known as the

"Malvern Crew" or "Juice Mob", accepted in their pleas that the Malvern Crew had

subgroups named after different streets in the Malvern area including "Emps" (Empringham

Drive), "C-Trail" (Crow Trail) and B-way (Brenyon Way) (see pages 105 to 107 in Crown's

submissions). In the calls, the individuals often to referred to their group members as "us"

and non-members as "them" (see pages 108 to 110) and discussed their loyalty to members

versus non-members of the group (see pages 110 to 113). The callers also discussed the

division of the Malvern Crew into smaller "crews" or groups (see pages 114 to 117). Other

calls revealed the leaders or "the big men" directing the followers or "youths" (pages 117 to

121), and in other calls members of the organization asked their leaders for advice and

direction (pages 121 to 124).

[155] The Crown also relies on the numerous cell phones that were seized and subsequently analyzed. Detective Tim Pokulok testified he checked the internal phone books as well as the electronic recording memory of incoming and outgoing phone numbers of all of the seized phones. At Appendix D of the Crown's written submissions, Detective Pokulok's evidence is summarized. The Crown submits the phone records reveal that Duane Campbell associated with Andrew Smith and [REDACTED]. [REDACTED] associated with [REDACTED] and [REDACTED]. Shaun Falls associated with Kwok Li, [REDACTED], and [REDACTED]. Kwok Li associated with Shaun Falls and [REDACTED]. [REDACTED] associated with Shaun Falls and [REDACTED] [REDACTED]. [REDACTED] had a close association with Andrew Smith. [REDACTED] had a close association with almost everybody: Raoul Burton, Dwane Campbell, [REDACTED], Shaun Falls, Kwok Li, [REDACTED], Andrew Smith, and [REDACTED].

[156] The Crown relies on personal documents seized from Kimani Joseph, Andre Lawrence, Alton [REDACTED], Andrew Smith and Shaun Falls, which contained nicknames and phone numbers of accused persons before the court: [REDACTED], [REDACTED], Kevin Chung and [REDACTED].

[157] The Crown relies on guilty plea transcripts of 5 members of the Malvern crew who pleaded guilty to a Criminal Organization offence: Raoul Burton, Shaun Falls, Jamol Johnson, Andrew Smith and Duane Williams.

[158] Finally, police located a copy of what has been referred to as the "Blessed Video", a gangster rap music video where many of the subjects of the "Project Impact Investigation" were featured. Detective Sgt. Monaghan identified Andrew Smith, Duane Williams, Raoul Burton, Kimani Joseph, [REDACTED] and others from the video. [REDACTED]'s Mercedes Benz was also featured in the video. At pages 104 and 105, the Crown outlines intercepted telephone communications where individuals discussed the "Blessed Video".

[159] In addition to being an "organization", the Crown must call some evidence to establish that the Malvern Crew or Juice Mob is a criminal organization. It has to establish that the Malvern Crew, however organized, has as one of its main purpose or activities, the facilitation of one or more serious offences for the material benefit of those who constitute the group; or has as one of its main purpose or activities, the commission of one or more serious offences, for the material benefit of those who constitute the group. The Crown's primary position is that the Malvern Crew, as a group, had as one of its main purposes or activities, the facilitation of serious offences. To a lesser degree, the Crown submits the Malvern Crew had, as one of its main purposes or activities, the commission of serious offences.

[160] According to Justice Fuerst of the Superior Court of Ontario in her decision of R. v. Lindsay and Bonner [2005] O.J. No. 2870, "facilitation" of one or more serious offences

should be considered as follows:

The concept of "facilitation" in s. 467.1(1) is broader than the actual commission

of an offence. Like the concept of conspiracy, it does not require that a substantive

offence actually be committed. The word "facilitate" has a clear meaning. It is

defined in The Concise Oxford English Dictionary (10th ed.) to mean, "make easy

or easier". Black's Law Dictionary (7th ed.) indicates that the word "facilitation"

has a recognized meaning in the context of criminal law, as follows: "The act or an

instance of aiding or helping; esp. in criminal law, the act of making it easier for

another person to commit a crime". [...] The definition of "criminal organization"

does not require, however, that facilitation of a serious offence be the group's only

"main" purpose or activity. It must simply be "one of" its main purposes or

activities.

[161] The Crown submits that as a group, the accused before the court and others constitute the "Malvern Crew" because they exhibit the following characteristics that support the conclusion that the "Malvern Crew" is a criminal organization.

(a) the members are surveillance conscious and use coded language (pages 126 to

130);

(b) they are concerned about the police and informants (pages 130 to 134);

(c) they attempt to protect each other from the justice system (pages 135 to 140);

(d) they support members of the group who are in custody (pages 140 to 145);

(e) they have a distinct territory (pages 145 to 159); and

(f) they are willing to resort to violence to protect their territory and they foster a

reputation for violence (pages 159 to 164)

[162] It is the Crown's position that the Malvern Crew had a monopoly over drug dealing in the Malvern community. The organization accomplished this by providing a network where its members could trade and acquire firearms and ammunition, while providing backup and support with the use of violence. The group members protected their territory and when one of them was in trouble, the group protected one another against the criminal justice system (false documents and intimidating witnesses and informers).

[163] Through the monopoly, the organization was able to benefit financially. According to Detective Page when he originally reviewed the intercepted communications, based on his experience with regard to the pricing of drugs in Toronto, it was his opinion that the parties were discussing the sale of cocaine. After, however, listening to more calls and the codes being used, Detective Page came to the view that the parties were dealing in marijuana, but in such significant quantities that the price per pound was extremely low. Referring to a call made by [REDACTED] on March 31, 2004 (call number 860) to sell drugs, Detective Page stated, "Although it is my opinion that in 2004 a single pound of marijuana had an approximate value of $3000, it certainly appears the parties involved are able to purchase the marihuana somewhere in the range between $1500 and $2000 per pound. This again indicates that multiple pounds are being purchased at the source in order to sell the marihuana at this low price and still be able to make some form of a profit and the profit margin can be obtained by volume level."

[164] With respect to the Crown's secondary position that the "Malvern Crew" was a group that has, as one its main purposes or activities the commission of one or more serious offence, for the material benefit of those who constitute the group, the Crown relies on the guilty plea transcripts marked as "VD 12" in this preliminary inquiry. At pages 169 to 172 of the Crown's written material, it outlines the guilty plea transcripts that have been filed at this preliminary inquiry. Additionally, the Crown relies on the guilty plea transcripts of Raoul Burton, Shaun Falls, Jamol Johnson, Andrew Smith and Duane Williams, who each pleaded guilty to criminal organization offences as further evidence that the "Malvern Crew" is a criminal organization within the Criminal Code definition.

[165] The main thrust of the defence submissions were best articulated in the written submissions of counsel for [REDACTED]. In his material, Sal Caramanna argues that in spite some evidence that each of the accused before the court committed various offences on their own or with others, and some evidence of the existence of the "Malvern Crew" or "Juice Mob" and that this entity is a "criminal organization" as defined by the Criminal Code, the Crown has fallen short of establishing that the various accused knew the crimes each were committing were for the criminal organization. Frequent association with a person who happens to be a proven member of a criminal organization does not assist the Crown unless the Crown has established the accused knew that fact himself.

[166] Mr. Caramanna is critical of the guilty plea transcripts of the 3rd parties that do not pertain to criminal organization offences being used to assist the Crown in proving the Malvern Crew is a criminal organization. Counsel also objects to the Crown relying on the evidence of Detective Sgt. Monaghan's relating to membership of 3rd parties who pleaded guilty as "expert opinion" evidence when he was not qualified as an expert on the Malvern Crew.

[167] More specifically as the evidence relates to [REDACTED], counsel at page 14 of his submissions, argues there is no identification evidence establishing his client was driving with Shaun Falls on February 8, 2004. The Crown relies on this evidence to establish an association between Mr. [REDACTED] and Shaun Falls. Counsel also submits only one of the five guilty plea transcripts of persons pleading guilty to criminal organization offences even mentioned [REDACTED]. Shaun Falls who pleaded guilty to several offences relating to his own membership to the "Malvern Crew" did not acknowledge other persons' roles or membership in the organization. Further counsel argues that while there is some evidence establishing a relationship between [REDACTED] and [REDACTED], [REDACTED] and [REDACTED], there is no self-acknowledgement from Mr. [REDACTED] that he was a member of the "Malvern Crew" or that he knew the "Malvern Crew" existed. At pages 24 to 26, counsel cites a number of intercepted calls of [REDACTED] wherein he discussed drug trafficking, but submits there is no evidence that his client was doing anything more than selling marijuana on his own rather than for the benefit of others.

[168] It is clear from section 467.11(2) the Crown does not have to prove the following in order to establish the offence of participation in a criminal organization. These include (a) the criminal organization actually facilitated or committed an indictable offence; (b) the participation or contribution of the accused actually enhanced the ability of the criminal organization to facilitate or commit an indictable offence; (c) the accused knew the specific nature of any indictable offence that may have been facilitated or committed by the criminal organization; or (d) the accused knew the identity of any of the persons who constitute the criminal organization.

[169] I agree with counsel for [REDACTED] that the Crown has provided some evidence at this preliminary inquiry of a criminal organization known as the "Malvern Crew" or "Juice Mob". They have established the organization's existence through the direct evidence of the guilty pleas of five of its members: Shaun Falls, Jamol Johnson, Raoul Burton, Andrew Smith and Duane Williams. There is also circumstantial evidence that a criminal organization existed. There is strong evidence of close association of known members and the accused before this court through the numerous wiretap calls and surveillance evidence. There is a strong inference that the parties were dealing in drugs and firearms. It is not necessary for each of the accused to be directly implicated in each and every phone call or transaction to be considered to be a member of the organization committing these offences. There is also the expert evidence provided by the police.

[170] There is also some evidence upon which a jury could find that the offences committed were for the benefit of the organization. At page 46 of her judgment, Justice Dobney of this Court in her ruling on committal in Project Impact - Group I, outlined the evidence in her case that established that offences were committed or facilitated for the benefit of the organization. Benefit included gaining a reputation for violence to control an area; intimidation of others to facilitate the commission of criminal offences; support for members in jail and their families; creating a monopoly in an area to increase profits; revenge for wrongs done to members; protection of gang members which enhanced the ability of the organization itself to survive to carry on business; a reputation for violence and a "one for all" mentality preventing others from committing predatory acts in the gang's territory or towards gang members; and the presentation of a certain reputation to the community. Similar evidence was called in this case as in Justice Dobney's.

[171] As for [REDACTED], specifically, the Crown submits that the accused belonged to a smaller "crew" within the organization, along with [REDACTED], [REDACTED] and [REDACTED]. There is also evidence to establish an association with Shaun Falls, even though police did not directly identify Mr. [REDACTED] as the driver of the car on February 8, 2004. I agree with the Crown that there is a reasonable inference a jury could draw that Mr. [REDACTED] was the driver on February 8th, based on the model and license plate on the car together with the evidence that [REDACTED] frequently associated with [REDACTED], [REDACTED] and [REDACTED], all of whom associated with Shaun Falls during the investigation. As well, upon reviewing the three calls highlighted by the Crown at page 10 of their reply submissions, I am satisfied there is evidence that [REDACTED] discussed the price of selling marijuana with [REDACTED]; cooking cocaine with [REDACTED] for the purpose of supplying it to [REDACTED] to traffic; and owing [REDACTED] money.

[172] At this stage in the proceedings, I am unable to agree with counsel for [REDACTED] that there is no evidence upon which a properly instructed jury might convict his client. There are reasonable inferences that a jury might accept that [REDACTED], though not the most significant player, was a participant in the Malvern Crew and trafficked drugs for its benefit. Perhaps counsel's arguments will be better addressed with a constitutional challenge at trial.

[173] With respect to [REDACTED], his lawyer argues that Mr. Whylie is not charged with any drug related offences and count 1 of the information alleges a criminal organization involved in the trafficking in a controlled substance. However, I agree with the Crown that as part of the benefit the organization derives from selling drugs requires its members to be armed in order to protect the monopoly and its territory. There is substantial evidence that [REDACTED] had close association with many of the "Malvern Crew" members and supplied firearms to them.

[174] With respect to [REDACTED], based on the guilty plea transcript of Duane Williams to Participate in a Criminal Organization, the Crown seeks to commit [REDACTED] on an additional charge of Instruct a Person to commit the offence of Robbery with a Firearm for the benefit of a Criminal Organization. Mr. Williams admitted that on October 13, 2003, he was instructed by [REDACTED] to commit a home invasion robbery. Mr. [REDACTED] told Williams that there was a quantity of narcotics in the house. [REDACTED] told Williams to steal the drugs and bring them to him. [REDACTED] gave him a 9 mm. Desert Eagle handgun. After the robbery, Duane Williams and two others were arrested and the handgun was recovered.

[175] Having found that the "Malvern Crew" was a criminal organization within the definition of the Code and that [REDACTED] was a member, and based on the Williams transcript, I am satisfied [REDACTED] should be committed on the additional count of Instruct for the Benefit of a Criminal Organization.

[176] As for [REDACTED], having discharged him on count 32, Conspiracy to Traffic in a Prohibited Device, defence counsel submits Mr. Tan ought to be discharged on count 31,

Participate in a Criminal Organization - Commit an Indictable Offence, with an alleged

offence date of between December 15, 2003 and May 12, 2004. Indeed the Crown's

submission is the same on page 178 of the Crown's written submission. As such, [REDACTED]

will be discharged on count 31.

[177] As for the other accused, I earlier found that the Crown had called sufficient

evidence to warrant committals for each accused for the various offences such as trafficking,

conspiracy to traffic, possession of drugs, firearms and related paraphernalia. Having now

concluded that the Crown has also satisfied me that there is sufficient evidence to find that a

criminal organization known as the "Malvern Crew" or "Juice Mob" existed and that the

accused were members, I will commit on the additional charges relating to the criminal

organization.