



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McGean, 2019 ONCA 604

DATE: 20190715

DOCKET: C63230 & C65107

Watt, Tulloch and Lauwers JJ.A.

BETWEEN

C63230

Her Majesty the Queen

Respondent

and

Randy McGean

Appellant

AND BETWEEN

C65107

Her Majesty the Queen

Respondent

and

Isaac Lucas

Appellant

Erec Rolfe, for the appellant Randy McGean in C63230

Brian Snell, for the appellant Isaac Lucas in C65107

James Clark, for the respondent in C63230 and C65107

Heard: June 25, 2019

On appeal from the
    convictions entered on September 6, 2016, with reasons reported at 2016 ONSC
    5572, and the sentences imposed on October 12, 2016 in C63230, and January 13,
    2017 in C65107, by Justice Joseph R. Henderson of the Superior Court of Justice,
    sitting without a jury.

REASONS FOR DECISION

A.

overview

[1]

The appellants, Randy McGean and Isaac Lucas, were charged and convicted
    of conspiracy to traffic heroin and conspiracy to traffic cocaine, among other
    related drugs and weapons charges. Mr. McGean received a sentence of 11 years
    on the conviction for conspiracy to traffic heroin, eight years concurrent on
    the conviction of conspiracy to traffic cocaine, and three months consecutive
    for each of the two breach of weapons prohibition order counts, followed by
    other concurrent sentences for the remaining convictions, for a global sentence
    of 11 years and six months. Mr. Lucas was sentenced to nine years on the
    conspiracy to traffic heroin, and seven years concurrent on the conspiracy to
    traffic cocaine, together with a victim surcharge for both.

[2]

Both appellants appeal their conspiracy convictions. Mr. McGean appeals
    his conviction for conspiracy to traffic cocaine, but does not dispute the
    conviction for conspiracy to traffic heroin. Mr. Lucas challenges his
    conviction for the conspiracy to traffic heroin, but he does not dispute the
    fact that he was involved in the trafficking of both heroin and cocaine, nor
    does he dispute his conviction for conspiracy to traffic cocaine. Both
    appellants argue that the trial judge misapprehended the evidence, thus
    rendering the verdicts unreasonable.

[3]

In addition to the conviction appeals, both appellants seek leave to
    appeal their respective sentences on the basis that the sentences were
    unreasonable.

B.

analysis

[4]

We see no merit in either the conviction or sentence appeals.

(1)

Mr. McGeans Conviction Appeal

[5]

Mr. McGean submits that the trial judge misapprehended the evidence and,
    as a result, concluded that he was a member of the conspiracy to traffic
    cocaine.

[6]

In
R. v. Carter
, [1982] 1 S.C.R. 938, at p. 947, the Supreme
    Court established a three-stage test for the co-conspirators exception to the
    hearsay rule. First, the trier of fact must find beyond a reasonable doubt on
    all the evidence that the conspiracy exists. Second, the trier of fact must
    find that the evidence that is directly admissible against the accused, which
    excludes hearsay statements by co-conspirators, proves, on a balance of
    probabilities, that the accused was a member of that conspiracy. Only if these
    first two stages are met can the trier of fact, at the third stage, consider
    the acts and declarations of a co-conspirator in furtherance of the conspiracy
    as evidence against the accused on the issue of the accuseds guilt. Mr. McGean
    does not challenge the trial judges finding that a conspiracy existed at stage
    one.

[7]

Mr. McGean argues that the trial judge erred at stages two and three of
    his analysis of the co-conspirators exception to the hearsay rule. At stage two
    the trial judge misapprehended the evidence of a phone call between the
    appellant and Mr. Lucas, which was the only conversation involving Mr. McGean
    in the Barrie deal, one of the two cocaine conspiracies. At stage three, Mr.
    McGean argues that the trial judge misapprehended the evidence with respect to
    the two cocaine conspiracies, and that the evidence did not support the trial
    judges finding that he played a pivotal role in both transactions.

[8]

We reject Mr. McGeans argument on stage two of the
Carter
test.

[9]

In a call following the Barrie deal in which Mr. McGean and Mr. Lucas
    were discussing a recent purchase of cocaine, Mr. Lucas stated that he was
    loyal to Mr. McGean. Mr. McGean stated yeah yeah in response. The trial judge
    found, at para. 134 of his reasons, that Mr. McGean had acknowledged Mr. Lucas
    pledge of loyalty and thus accepted that Mr. McGean was a member of the
    conspiracy.

[10]

Contrary
    to Mr. McGeans argument, it was open to the trial judge to find that Mr.
    McGean had acknowledged Mr. Lucas comments by stating yeah yeah as the
    pledge of loyalty was made in the context of a discussion about the quality of
    cocaine from the Barrie deal.

[11]

Furthermore,
    this call was not the sole basis of the trial judges conclusion that Mr.
    McGean was a member of the conspiracy in relation to the Barrie deal. At para.
    136 of his reasons, the trial judge also found that the agreement between Mr.
    McGean and Mr. Lucas pursuant to which Mr. Lucas would act as Mr. McGeans
    enforcer formed part of the conspiracy in relation to the Barrie deal. This was
    not an unreasonable finding.

[12]

Mr.
    McGeans argument that the second stage of the
Carter
test was not met
    fails.

[13]

We
    also reject Mr. McGeans argument on stage three of the
Carter
test.

[14]

The
    focus of stage three of the
Carter
test is a determination of the
    ultimate issue of guilt:
Carter
, at pp. 944, 947. At this stage, the
    statements of the co-conspirators are admissible against the accused provided
    that those statements were made in furtherance of the conspiracy:
Carter
,
    at p. 947;
R. v. Bogiatzis
, 2010 ONCA 902, 285 C.C.C. (3d) 437, at
    para. 35, quoting
R. v. Chang
(2003), 173 C.C.C. (3d) 397 (Ont. C.A.),
    at para. 120. Statements by co-conspirators that are not made in furtherance of
    the conspiracy are inadmissible against the accused:
Chang
, at paras.
    120-121. If the in furtherance requirement is met, the statements of the
    co-conspirators are admissible against the accused. The trier of fact must then
    determine in step three whether these statements, taken together with all the
    other admissible evidence, are sufficient to prove beyond a reasonable doubt
    that the accused was a member of the conspiracy:
Carter
, at p. 947.

[15]

The
    trial judge found, at para. 157 of his reasons, that the statements of Mr.
    McGeans co-conspirators were admissible against Mr. McGean and conducted his
    stage three
Carter
analysis on this basis. Mr. McGean does not
    challenge this admissibility finding in his stage three submissions. Nor does Mr.
    McGean submit that the in furtherance requirement under stage three that
    concerns admissibility was not met. Instead, the focus of Mr. McGeans stage
    three submissions is that the trial judge misapprehended the evidence in
    determining the ultimate issue of guilt.

[16]

The
    Crown alleged three broad conspiracies involving the appellants and several
    others. Two conspiracies involved the purchase of a kilogram of cocaine. The
    third involved the purchase of a kilogram of heroin. The evidence consisted of
    police surveillance and intercepted private communications. The defence called
    no evidence.

[17]

A
    significant amount of evidence adduced at trial demonstrated that Mr. McGean
    was a member of the conspiracy to traffic cocaine. The trial judge found that
    Mr. McGean was an instrumental part of the conspiracy to traffic cocaine. The
    trial judge found that Mr. McGean made the final decisions regarding what to
    purchase, the price to pay, and how and when to receive and distribute the
    product. In our view, this finding was supported by the evidence. He relied on
    this evidence to conclude that the Crown had proved Mr. McGeans guilt beyond a
    reasonable doubt. When considered in totality, the evidence painted a clear
    picture of Mr. McGean at the top of an ongoing conspiracy to purchase and
    distribute cocaine. Thus we see no reason to interfere with the trial judges
    findings on the ultimate issue of guilt.

(2)

Mr. Lucas Conviction Appeal

[18]

Mr.
    Lucas submits that the trial judge rendered an unreasonable verdict on the
    conspiracy to traffic in heroin because the evidence was only consistent with
    him being a low-level dealer. There was no evidence to show that he entered
    into any agreement to purchase a large amount of heroin or that the small
    amounts of heroin he sold came from the September 24, 2013 purchase that formed
    the basis of the conspiracy that the trial judge found to exist. Furthermore,
    Mr. Lucas contends that the trial judge framed the scope of the conspiracy in
    an overly broad manner by including the distribution of heroin as part of the
    conspiracy.

[19]

We
    disagree.

[20]

It
    is settled law that there is no requirement that all members of a conspiracy
    play an equal role:
R. v. J.F.
, 2013 SCC 12, [2013] 1 S.C.R. 565, at
    para. 54;
R. v. Root
, 2008 ONCA 869, 241 C.C.C. (3d) 125, leave to
    appeal refused, [2009] S.C.C.A. No. 282, at para. 68. Furthermore, it was open
    to the trial judge to infer Mr. Lucas membership in the heroin conspiracy from
    his own actions. As the Supreme Court held in
J.F.
, at para. 52, where
    a person, with knowledge of a conspiracy, doessomething for the purpose of
    furthering the unlawful object, with the knowledge and consent of one or more
    of the existing conspirators, this provides powerful circumstantial evidence
    from which membership in the conspiracy can be inferred.

[21]

In
    this case, the trial judge reasonably inferred Mr. Lucas membership in the
    heroin conspiracy from his role as an enforcer for Mr. McGean. The trial judge
    found that the agreement between Mr. Lucas and Mr. McGean, pursuant to which
    Mr. Lucas would act as Mr. McGeans enforcer, extended to the heroin
    conspiracy: at paras. 143, 161. The trial judge was thus entitled to infer that
    Mr. Lucas was a member of the heroin conspiracy because he knew of the heroin
    conspiracy and acted as an enforcer for the purpose of furthering its unlawful
    object with the consent of one of the principal conspirators, namely Mr.
    McGean.

[22]

Moreover,
    there was additional evidence supporting the trial judges conclusion that Mr.
    Lucas role was more than that of a low-level dealer. As the trial judge found
    at para. 124 of his reasons, on September 29, 2013, Mr. Lucas asked Mr. McGean
    for permission about what to do with the heroin in his possession and who he
    should give it to. Mr. McGean told him to give it to another conspirator, Mr.
    Hook. Mr. Lucas then called Mr. Hook and asked him how he should prepare the
    product. Mr. Hook told him to break it down using vitamin C. We agree with the
    Crown that these comments suggested a joint venture and that Mr. Lucas was a
    member of a broader agreement to distribute.

[23]

Furthermore,
    the evidence that the trial judge considered did link the heroin in Mr. Lucas
    possession to the September 24, 2013 purchase. As the trial judge found at
    para. 121 of his reasons, on the day before the purchase, Mr. Lucas and Mr.
    Hook had discussed the need to break down the heroin they planned to purchase
    with vitamin C and vinegar. Only six days later, Mr. McGean directed Mr. Lucas
    to speak to Mr. Hook about the heroin in Mr. Lucas possession. Mr. Hook then
    instructed Mr. Lucas on the same method of breaking down the heroin that Mr.
    Hook and Mr. McGean had previously discussed. This was compelling evidence
    linking Mr. Lucas to the agreement to purchase heroin on September 24, 2013.

[24]

Finally,
    we reject the argument that the trial judge framed the conspiracy overly
    broadly by including distribution as part of the conspiracy. As the Crown
    submits, trafficking includes distribution and distribution was central to the
    trafficking charge. The definition of traffic contained in s. 2(1) of the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19 makes this clear.

(3)

Sentence Appeals

[25]

We
    also dismiss both sentence appeals.

(a)

Mr. McGeans Sentence Appeal

[26]

There
    is no basis to interfere with the sentence that Mr. McGean received.

[27]

Mr.
    McGeans first argument is that the trial judge erred in finding that the
    amount of heroin trafficked was one kilogram. He submits that there were other
    reasonable inferences from the circumstantial evidence and that the trial
    judges finding that the quantum was one kilogram thus violated the principles
    governing inferences from circumstantial evidence set out in
R. v.
    Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000.

[28]

We
    reject this argument.

[29]

As
Villaroman
states, at para. 56, it remains for the trier of fact to
    determine whether a proposed alternative inference is reasonable enough to
    raise a doubt. The trier of fact is entitled to reject a proposed alternative
    inference that is based on speculation, not logic and experience:
Villaroman
,
    at para. 37.

[30]

In
    this case, the trial judge reasonably rested his finding on quantum on the
    evidence that the $80,000 to $90,000 pricing that Mr. McGean and Mr. Hook
    discussed in their conversation a day before the purchase fit with the price
    for one kilogram of heroin: at para. 122. While the appellant submits that the
    pricing figure could relate to the value of the sales that the quantity being
    discussed was worth, the trial judge was entitled to reject this proposed alternative
    inference as speculative. The appellant also relies on Mr. Hooks statement to
    him that they could return 17 of them if the quality is poor and asserts that
    this was inconsistent with the quantum of heroin being one kilogram. As the
    defence called no evidence, neither Mr. Hook nor Mr. McGean provided any explanation
    for what this reference to 17 of them could mean. The reference to 17 of
    them could reasonably be understood as a reference to returning a portion of
    the heroin if the quality was poor, which is not inconsistent with a one
    kilogram quantum. Accordingly, the trial judge was entitled to conclude that
    this proposed alternative inference did not raise a reasonable doubt.

[31]

Mr.
    McGeans second argument is that his sentence should be reduced if this court
    set aside his cocaine conspiracy conviction. Our dismissal of the conviction
    appeal renders this argument moot. In the result, the sentence appeal is
    dismissed except that the victim surcharge imposed by the trial judge is set
    aside

(b)

Mr. Lucas Sentence Appeal

[32]

Similarly,
    we would not interfere with the sentence that Mr. Lucas received. Mr. Lucas
    first argument is dependent on this court overturning the heroin conspiracy
    conviction. We have declined to interfere with the heroin conspiracy
    conviction. This ground of appeal thus fails.

[33]

Mr.
    Lucas second argument is that the sentence was excessive because his
    involvement in the heroin conspiracy was at a low level. We reject this argument.
    The trial judge expressly recognized that Mr. Lucas role in the conspiracies
    was not as significant as Mr. McGeans. He specifically stated that Mr. Lucas
    involvement in the heroin conspiracy was that of a lower level distributor.
    As a result, the trial judge imposed a sentence on Mr. Lucas that was two years
    and six months lower than the sentence Mr. McGean received. The trial judge
    detailed several aggravating factors that justified a sentence above the low
    end of the sentencing range. He emphasized that Mr. Lucas had a lengthy
    criminal record, trafficked multiple hard drugs in large quantities, and his drug
    offences were commercial operations that required planning and deliberation.
    There is no basis for this court to reweigh those factors or to interfere with
    the trial judges exercise of discretion.

C.

Disposition

[34]

Accordingly,
    the conviction appeals are dismissed. Leave to appeal sentence is granted to
    both Mr. McGean and Mr. Lucas, but the sentence appeals are also dismissed. The
    victim surcharges ordered by the trial judge are set aside for both.

David Watt J.A.

M. Tulloch J.A.

P. Lauwers J.A.


