



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Farinacci, 2015 ONCA 392

DATE: 20150603

DOCKET: M44719, C56313 and C56422

MacFarland, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Len Farinacci Jr. and Lucas Farinacci

Appellants

Frank Addario and Rebecca McConchie, for the appellant
    Lucas Farinacci

R. Craig Bottomley and Chris Sewrattan, for the
    appellant Len Farinacci Jr.

Morris Pistyner and Lucas Price, for the respondent

Iain A.C. MacKinnon, for the moving parties Sun Media
    Corporation and Toronto Star Newspapers Ltd.

Heard: February 25, 2015

On appeal from the convictions entered on July 5, 2012 by
    Justice Linda M. Walters of the Superior Court of Justice, sitting with a jury.

Pardu J.A.:

[1]

Leonard and Lucas Farinacci appeal from their convictions for conspiracy
    to traffic in cocaine and for possession of proceeds of crime. They argue that
    their convictions must be overturned because jurors were exposed to extrinsic information
    about the case during the trial, and because the judge made a legal error in
    her instructions to the jury about conspiracy.

A.

Background

[2]

The appellants were arrested at the culmination of an investigation
    which included extensive surveillance and interception of thousands of private
    communications. Leonard Farinacci testified at trial and explained that he
    trafficked in steroids, not cocaine, and that his various meetings for product
    delivery and payment, and guarded telephone conversations had nothing to do
    with cocaine but were all for the purpose of dealing in steroids. Dwayne Forde
    was his biggest customer. While Dwayne Forde and his associates may well have
    been dealing cocaine and other drugs, Leonard Farinacci testified that he knew
    nothing about those activities.

[3]

Lucas Farinacci did not testify. He took the position at trial that
    there was no evidence to connect him with trafficking in cocaine. There were no
    incriminatory statements by him amongst the thousands of intercepted
    communications and he was never found in possession of cocaine or any of the
    equipment associated with a trafficking operation.

[4]

Both appellants were arrested on September 4, 2008. On that date,
    Leonard Farinacci travelled to Toronto and picked up an orange and black gym
    bag. It contained $200,840 in cash. He dropped the bag off at 2:03 p.m. at his
    brother Lucass home, then went to Gary Balls home. He accompanied Ball as
    Ball took a suitcase with $437,005 in it and placed it in Balls Infiniti. Ball
    then drove to Lucass home, and transferred the suitcase into Lucass wifes
    vehicle, a black Yukon. He removed the orange and black gym bag from Lucass
    garage (placed there minutes earlier by Leonard) and put it in the Yukon.

[5]

Earlier that day, Lucas had left his home and returned with a blue and
    black gym bag. He was not there when Leonard dropped off the orange and black
    gym bag but returned at 2:27 before Ball left. At 2:31 Ball came out of Lucass
    house and left in the Yukon with the suitcase and gym bag loaded with money.
    Lucas then removed Balls Infiniti from his driveway and was back home in 40
    seconds or so.

[6]

Ball was arrested and the suitcase and gym bag were seized at about 2:37
    p.m.

[7]

By 4:47 Leonard heard that Gary Ball was not answering his phone, and
    says he became concerned about his welfare. At 4:47 Leonard called Ball and
    there was no answer. At 4:48, Leonard called Lucas to relay his concerns and to
    see if Lucas knew where he was.

[8]

At 5:03, Joe Nikitczuk, close friend to Lucas, arrived at Lucass home. He
    was there for two minutes and came out with the blue and black gym bag. He was
    arrested four minutes later. Inside the gym bag was a notebook, highly
    suggestive of a debt list for substantial amounts of money, some amounts over a
    million dollars. Lucass fingerprints were identified in multiple locations in
    the notebook.

[9]

Both Lucas and Leonard were arrested later that day.

[10]

At
    trial Leonard called a witness who identified himself as a business consultant
    to suggest that the cash was intended for a legitimate business investment in
    Venezuela by Leonard Farinacci Sr., his father. The appellant Leonard Farinacci
    and his sister Leah both testified to the same effect at trial.

B.

Procedural History

[11]

The
    appellants were originally charged in a 15 count indictment in which they were
    charged with having conspired with Kent Akiyama and Gary Ball to traffic in
    cocaine, and to have done so in association with a criminal organization. They
    were also charged jointly with Gary Ball of possession of proceeds of crime. Leonard
    Farinacci was charged jointly with his mother and father (with whom he lived)
    with production of marihuana and possession for the purpose of trafficking in
    marihuana. Both Lucas and Leonard were charged with various firearms offences
    jointly with others and Leonard was also charged with possession of brass
    knuckles.

[12]

As
    a result of an agreement with the Crown, Leonard and Lucas each pleaded guilty
    to weapons offences before the jury trial. Leonard pleaded guilty to one count
    of transporting a firearm without authority and to possession of a prohibited
    weapon, the brass knuckles. Lucas pleaded guilty to possession of a prohibited
    weapon, a stun gun, without having a licence.

[13]

Counsel
    agreed that the trial judge would decide the criminal organization count after
    the jury verdict came in, and the accused were acquitted on that count.

[14]

In
    the result, the jury trial for the appellants proceeded on a two count
    indictment only, the conspiracy to traffic in cocaine, and the possession of
    the proceeds of crime. The jury did not know the appellants had pleaded guilty
    to weapons offences. They were convicted on both counts in the abbreviated
    indictment on July 5, 2012 following a four week jury trial.

[15]

After
    conviction but before sentencing, one of the jurors happened to be in a coffee
    shop commiserating with his uncle whose son had been charged with a criminal
    offence. He related some of his experiences as a juror and recommended to his
    uncle that his son opt for a trial before a judge without a jury. Someone
    happened to overhear the conversation, and juror #3 was soon visited by private
    investigators who asked him about whether he had been exposed to extrinsic
    information.

[16]

As
    a result of that information, the trial judge held an inquiry on October 23 and
    25, 2012, and questioned each juror as to whether he or she had seen or heard
    extrinsic information during the trial and deliberations. The purpose of the
    inquiry was to establish a record of what had happened.

[17]

The
    appellants were ultimately sentenced to lengthy terms of imprisonment.

C.

What extrinsic evidence entered in the jury room?

[18]

There
    was no real consensus amongst the jurors as to what if any extrinsic
    information made its way into the jury room. Without findings of fact by a
    judge at first instance, we are faced with the difficulty of making those
    findings on the basis of a transcript only.

(1)

Was there information from a retired police officer?

[19]

For
    example, juror #3 said that juror #6 said he had a friend who was a retired
    police officer in Hamilton. Juror #3 said that when he asked why there were no
    evidence of guns juror #6 said that this friend told him the rest of the family
    was charged, that someones wife or sister was going to be charged. Juror #6
    denied that he knew any retired police officers or that he had said any such
    thing.

(2)

Was there information from another friend?

[20]

Juror
    #3 said that juror #11 said someone told him Leonard Farinacci Sr. had spent
    some time in jail and that a lot more money over and above what was seized was
    involved. Juror #11, seated between jurors #3 and #6, did not recall hearing
    any information attributed to a retired police officer or a friend, and said he
    did not hear or provide any extrinsic information.

[21]

Nine
    of the jurors testified that they did not hear any information said to have
    come from a friend or any individual outside of the jury. In the end, I cannot
    find as a fact that information said to have been originally supplied by any
    friend or other individual was provided to the jury.

(3)

Information from Internet searches

[22]

Juror
    #6 admitted to having read at least two four year old articles in the St.
    Catharines Standard right after the trial started. He said other jurors wanted
    to know how old the appellants were, and that he looked that up and told the
    other jurors the appellants ages. He said he read something about a marihuana grow
    op and guns. He read that the appellants family members, father and sister had
    also been charged. He testified that he didnt give this information to other
    jurors, but juror #1 said that on the first day of trial another juror
    mentioned having looked something up on the St. Catharines Standard website
    that a dozen or so had been charged with cocaine related offences, including
    Dwayne Forde and that some others had been convicted. Juror #2 said someone
    searched the internet and said charges had been laid against other family
    members but that nothing was said about criminal activity by the appellants. There
    was some mention of Dwayne Forde, Leonard Farinacci Sr. and a marihuana grow
    op, and a charge against someone related to guns. This was mentioned sometime
    in the first half of the trial. Juror #3 said a few people made reference to
    googling something. Juror #12 heard someone mention that the father was
    charged. Many jurors said they did not hear this, but I am satisfied there was
    some discussion amongst some jurors of information contained in a local
    newspaper article published at the time of arrest four years before the trial,
    that there were other family members charged, and mention of a grow op and gun
    charges against unspecified other persons. .

[23]

Juror
    #5 said one of the other jurors said he read in a newspaper before trial that
    Kent Akiyami was involved. Jurors #9 and #10 remembered mention in the middle
    of the trial that Akiyami and Forde had had drug charges or trials related to
    cocaine. Juror #4 said that several times someone said others like Dwayne Forde
    who were alleged to be connected to the cocaine conspiracy were in jail or
    charged. She said this came as no surprise to the jurors, as they had guessed
    he was probably in jail.

[24]

Juror
    #12 said he googled the name Farinacci after the trial started and saw an
    article reporting on the prosecutors opening statement.

[25]

Juror
    #12 said that he and another juror looked up the price of cocaine on the
    internet at the beginning of the trial but that this information was confirmed
    later by the evidence of a Toronto detective who testified. His evidence was
    unchallenged. Juror #4 confirmed that one of the jurors looked up the price of
    cocaine.

D.

Analysis: Is there a reasonable possibility that extrinsic information affected
    the jurys verdict?

[26]

It
    is common ground that
R. v. Pan; R. v. Sawyer
, 2001 SCC 42, [2001] 2
    S.C.R. 344, at para. 59, expresses the governing test, [E]vidence indicating
    that the jury has been exposed to some information or influence from outside
    the jury should be admissible for the purpose of considering whether or not
    there is a reasonable possibility that this information or influence had an
    effect upon the jurys verdict.

[27]

On
    the other hand, jurors are not blank slates. They are expected to use their
    general knowledge, life experience and knowledge in coming to a decision. As
    observed in
R. v. Pan
, at para. 61:

Jurors are expected to bring to their task their entire lifes
    experiences. It is on the basis of what they know about human behaviour,
    knowledge that they have obviously acquired outside the courtroom, that they
    are requested to assess credibility and to draw inferences from proven facts.
    Even though not the object of evidence tendered in the trial, an opinion, a
    piece of general information, or even some specialized knowledge that a juror
    may reveal in the course of the deliberations, is not an extrinsic
    matter.  Typically, such information would not be the object of evidence
    tendered at trial.  It would be viewed as either irrelevant, too remote,
    or as attempting to usurp the functions of the jury.  On the other hand,
    if a juror, or a third party, conveys to the jury information that bears
    directly on the case at hand that was not admitted at trial, by reason of an
    oversight or a strategic decision by counsel or, worse yet, by operation of an
    exclusionary rule of admissibility, then it is truly a matter extrinsic to
    the deliberation process and the fact that it was introduced into that process
    may be revealed.

[28]

Mention
    that Dwayne Forde had been charged or convicted of cocaine offences could not
    have affected the verdict in this case, given the manner in which the evidence
    unfolded at trial. The substantial evidence that persons such as Dwayne Forde
    were trafficking in cocaine was uncontradicted. As juror #4 observed, the
    information that Dwayne Forde had been tried or convicted came as no surprise. There
    was very little mention of Akiyami in this trial. The whole tenor of Leonard
    Farinaccis evidence was that he did not know about the others activities,
    admittedly powerfully suggestive of trafficking in cocaine and other drugs. Lucas
    Farinaccis defence was that he had nothing to do with those activities.

[29]

In
    my view the evidence that other family members had been charged was of no
    consequence, given the appellants sisters evidence that all the family was
    co-accused.

[30]

It
    is not surprising that the arrests four years before trial were reported in the
    local newspaper. Lucas Farinacci was a local businessman charged with serious
    offences. No juror would have been disqualified for simply having read the news
    report. There was no challenge for cause on the ground of pretrial publicity in
    this case. I would infer that it was not considered a significant concern. It
    is reasonable to presume that jurors will honour their oath to decide the case
    only on the evidence heard in the courtroom. The information reported to the
    jurors by juror #6 was non-specific. Four jurors repeatedly reminded the others
    that they were to decide the case only on the evidence heard in the courtroom.

[31]

I
    am not satisfied that the other information, research about the price of
    cocaine and reading a report about the prosecutors opening statement had any
    impact on the jurys decision.

[32]

This
    is not a case where a jury was exposed to specific prejudicial information
    excluded from the trial. In other jurisdictions, courts have ordered new trials
    where the extrinsic information may have had a real impact on the verdict. In
Karakaya
a new trial was ordered for an accused charged with rape and indecent
    assault because the jury had downloaded articles critical of the justice
    systems treatment of rape cases. In
Dallas
an accused charged with
    grievous bodily harm was given a new trial because a juror had gone on the
    internet and found the accused had been previously charged, though acquitted of
    rape. Similarly in
R. v. Thompson and other appeals
, [2010] EWCA Crim
    2352, and
R. v. Thakrar
, [2008] EWCA Crim 2359 convictions were set
    aside when jurors discovered the accuseds previous convictions. In
Benbrika
    v. The Queen
, [2010] VSCA 281 a verdict in a terrorism case was not
    compromised by jury research on definitions.

[33]

Here
    the trial judge instructed the jury to ignore extrinsic information on her
    opening and closing addresses:

You must disregard completely any radio, television, newspaper
    accounts or Internet information you may have heard, seen or read about this
    case, or about any of the persons or places involved or mentioned in this
    trial. Those reports, and any other information about the case from outside the
    courtroom are not evidence.

It would not be fair to decide the case on the basis of
    information not introduced or tested by the parties in court and made part of
    the evidence at trial. You, not the media or anyone else, are the only judges
    of the facts.

[34]

She
    reiterated to decide what the facts are in this case, you must consider only
    the evidence that you saw and heard in the courtroom and defined evidence as
    the answers of witnesses to questions, exhibits and agreed facts. She told them
    not to be influenced by public opinion.

[35]

In
    many communities, members of the jury may well have been exposed to pretrial
    publicity about an accused. As observed in
R. v. Hubbert
(1975), 29
    C.C.C. the mere fact that a juror has prior information about a case or even
    that he or she holds a tentative opinion does not disqualify the juror.

[36]

Here,
    given the nature of the issues at trial, the diffuse nature of the information
    disclosed to other jurors from a four year old newspaper report, the fact that
    that extrinsic information disclosed was largely replicated by uncontested
    evidence at trial, and the instructions by the judge to consider only evidence
    adduced in the courtroom, I am not satisfied that there is a reasonable
    possibility that the extrinsic information that was disclosed in the jury room
    affected the jurys verdict.

[37]

The
    articles themselves, dated September 24 and 25, 2008 listed the charges against
    16 named persons of over 20 persons charged as a result of the investigation.
    As far as the jury knew, the accused were not tried on other charges mentioned
    in the article. After the trial judge opening statement, the questioning of
    witnesses over four weeks, counsels closing statements, and the trial judges
    instructions, I am not satisfied that there is a reasonable possibility that juror
    #6s reading of these articles, previously published in the community, on the
    first days of a four week trial affected the verdict.

E.

Was there an appearance of unfairness?

[38]

The
    appellants argue that even if there was no reasonable possibility that the
    extrinsic information affected the jurys verdict, the appearance of unfairness
    resulting from exposure of the jury to outside information requires a new
    trial.

[39]

I
    disagree. Jurors do not live in a bubble but are drawn from the community where
    the trial takes place. In any significant prosecution there will be some
    exposure to news reports of the arrest. During the trial jurors may seek news
    reports of the trial. The reporters opinion of the testimony may not always be
    subtly expressed. Sometimes retrials take place after the original evidence has
    been broadly publicized. There is however a distinction to be drawn between the
    mere publication of the facts of a case and situations where the media
    misrepresents the evidence, dredges up and widely publicizes discreditable
    incidents from an accuseds past or engages in speculation as to the accuseds
    guilt or innocence.(
R. v. Sherratt
, [1991] 1 S.C.R. 509 at p. 536)

[40]

In
    some cases where there is extensive publicity, at least some, if not all the
    jurors will be inevitably exposed to some aspects of it. This does not mean
    that a juror will not abide by his or her oath. Judges, after all, sometimes
    decide case in a sea of publicity.

[41]

Jurors,
    like judges, are presumed to govern themselves by the oath they swore to try
    the accused on the evidence adduced in the courtroom. As observed in
R. v.
    Spence
, [2005] 3 SCR 458 at para. 22:

Our collective experience is that when men and
    women are given a role in determining the outcome of a criminal prosecution,
    they take the responsibility seriously; they are impressed by the jurors oath
    and the solemnity of the proceedings; they feel a responsibility to each other
    and to the court to do the best job they can; and they listen to the judges
    instructions because they want to decide the case properly on the facts and the
    law. Over the years, people accused of serious crimes have generally chosen
    trial by jury in the expectation of a fair result. This confidence in the jury
    system on the part of those with the most at risk speaks to its strength. The
    confidence is reflected in the
Charter
guarantee of a trial by
    jury for crimes (other than military offences) that carry a penalty of five
    years or more (s. 11 (
f
)).

[42]

Here
    then, what to make of the fact that some jurors googled information about
    this case, contrary to the instructions of the trial judge? In this information
    rich age, devices able to access the internet are ubiquitous. Some people use
    their cell phones as reflexively as others might glance at a wristwatch. They
    might use them as a dictionary, to look at maps, the search the names of the
    accused, counsel, the judge, or to seek technological information. Legal
    research is available at the click of a button. Communication with others is
    nearly instantaneous. During the jury inquiry in this case, it was apparent
    that some jurors did not understand that they were violating the instructions
    of the trial judge. Some jurors may simply be curious, others may be trying to
    be helpful or get a better understanding of the case. The other reality is that
    in most cases, unless a juror talks about his or her online activity, it is
    likely to go undetected. While the information gathered here was relatively
    benign, and did not undermine the verdict or the fairness of the trial, that might
    not always be the case.

[43]

In
Online and Wired for Justice; Why Jurors Turn to the Internet
[1]
the authors refer to a San Diego court which had jurors sign declarations
    saying they will not use personal electronic and media devices (including
    computers, cell phones and laptops) to research or communicate about any aspect
    of the case.

[44]

The
    authors also refer to a sample jury instruction dealing with these issues:

You may not receive information about this case from any source
    other than what you are presented in this Courtroom concerning the case. That
    means do not google any party or lawyer or court personnel in this case; do
    not conduct any research whatsoever on the Internet about this case or the
    parties or facts involved in it; you may not blog about the case or events
    surrounding the case or your jury service; you may not tweet about anything
    to do with the parties, events or facts in this case or your jury service on
    this case. Do not send any email to anyone conveying your jury experience or
    information about this case. In the jury room, you are not to use your cell
    phone at recesses or lunch to call anyone to ask questions about issues in this
    case or to report facts about this case. You may not use Facebook, YouTube or
    any other social network on the Internet to discuss your jury service or
    issues in this case or people involved in the case, including the lawyers. Do
    not attempt to recreate by experiment at home any evidence which you hear as
    testimony in this Courtroom. Failure to abide by these instructions could
    result in your being found in contempt of court, or cause the trial to end.

[45]

They
    suggest this jury instruction could be given to jurors daily or more often; it
    could be given to the jurors in writing at the beginning of a case, and they
    could be asked to sign a copy to acknowledge that they have received the
    instruction and understand it.

[46]

Jurors
    could be told that if by happenstance they receive any extrinsic information
    they are not to share that with the other jurors. Model jury instructions tell
    the jurors to advise the trial judge immediately if someone tries to talk to them
    about the case. This could be expanded to direct the jurors to advise the judge
    if any member of the jury speaks about independent internet research.

[47]

Some
    trials, particularly a re-trial or one surrounded by extensive publicity may
    require an instruction about electronic research to the jury panel as a whole,
    to the jury at the start of the trial, part way though the trial, and in the
    final instructions. Useful examples of those instructions can be found in D.
    Watt,
Watts Manual of Criminal Jury Instructions
, 2nd ed. (Toronto:
    Carswell, 2015). For example, preliminary instruction 20A provides:

[5] Finally, in this case you are judges of the facts,
not
lawyers
    or investigators. You must
not
seek out any information, or do any
    research about the case, the persons involved in it, or the law that applies.
    Do
not
consult other people or other sources of information printed or
    electronic. Do
not
investigate any part of the case on your own or
    together with anybody else. Do
not
visit or have a look at any place
    or thing mentioned during the trial.

[6] Some, perhaps many of you, may (often) use communication
    devices like cellular telephones, PDA or other Blackberry devices or laptop
    computers. Some, perhaps many of you, may have an email account or a social
    networking account, such as Facebook, MySpace, LinkedIn or Twitter.

[7] We live in an age of instant electronic communication and
    research. In addition to not talking face-to-face with anyone about anything
    related to this case, or about any person or place involved in it, you must
not
communicate with anyone about this case or anyone or anything related to it by any
    other means. By communicate I mean you must not give, send, receive or
    research anything about or related to this case or any person involved in it.
    By any other means, I include (by) telephone, text messages, email, internet
    chat(s), blogs or social websites like Facebook, MySpace or Twitter.

[8] Do not provide any information about the case or anything,
    anyone, or any place involved in it to anyone by any (electronic) means
    whatsoever. Do not post any information about the case or anything, anyone, or
    any place involved in it, or what you are doing in this trial, on any device or
    internet site, including blogs, chat rooms, social websites or any other means.

[9] Do
not
Google or otherwise
search
for any
    information about this case, about the law that applies to this case, or about
    anyone, anything or any place involved in the case, including the person(s)
    charged, the witnesses, the lawyers or me.

[10] Let me explain to you why these rules are so important.

[11] First, we do not permit communications of the kind I have
    mentioned, either to you or from you, because, as jurors, you are the only
    persons our law authorizes to render a verdict. No one else can do so in this
    case. You are the only persons who have promised to be fair. No one else has
    made that promise. No one else has those qualifications.

[12] Second, we do not permit these communications because premature
    discussion or other information can lead to a premature or erroneous final
    decision about the case as a whole or essential parts of it.

[13] Third, we do not permit you to visit any place mentioned
    in the evidence. After all, you cannot always be sure that the place is the
    same now as it was when the events with which we are concerned took place. But
    even if the place were in the same condition now as then, once you go there to
    evaluate the evidence you have heard, or will hear, in light of what you see,
    you become a witness, not a juror. As a witness, your view of the scene may not
    be correct. But more importantly, neither party can do anything to correct your
    error. That is not fair to either party. How would you feel as a party if the
    judge or jury decided your case against you on this basis?

[14] Fourth, as you have all promised to do, you must base your
    decision solely on the evidence presented to you in this courtroom, by these
    parties, during this trial. It would not be fair to either (any) party for you
    to base your decision on information you have obtained outside the courtroom,
    information that may be incomplete, unreliable, or simply wrong.

[48]

Other
    brief trials with little or no publicity may require a much shorter
    instruction.

[49]

Human
    nature being what it is, it would be unrealistic to expect perfect compliance
    by jurors in all cases. In the event a breach comes to light, the inquiry must
    be made as the extent of the extrinsic information received, and whether other
    jurors were exposed to it.

[50]

In
    some cases, severe sanctions have been imposed on jurors who disobeyed
    instructions to refrain from internet research. In
Attorney General v.
    Dallas
[2012] EWHC 156 a juror was sentenced to six months jail for
    contempt of court for conducting research on the Internet, definitions of the
    word grievous and a newspaper report of an earlier rape allegation against
    the accused, and for sharing that information with other jurors.

[51]

This
    problem has affected trials in many jurisdictions. As observed in
R. v.
    Thompson
[2010] EWCA Crim 1623, by the Court of Appeal, Criminal Division:

The use of the internet has expanded rapidly in recent years
    and it is to be expected that many, perhaps most, jurors, will be experienced
    in its use and will make habitual reference to it in daily life. It has already
    impacted on the court in cases such as
R v Karakaya
[2005] EWCA Crim
    346, [2005] 2 Cr App R 77,
R v Marshall
[2007] EWCA Crim 35 and
R
    v Thakrar
[2008] EWCA Crim 2359, [2009] Crim LR 357; see also the
    experience in New Zealand,
R v B
[2008] NZCA 130, [2009] 1 NZLR 293.
    Just as it would in any other instance where it was satisfied that extraneous
    material had been introduced, the approach of this court is to make inquiries
    into the material. If, on examination, this material strikes at the fairness of
    the trial, because the jury has considered material adverse to the defendant
    with which he has had no or no proper opportunity to deal, the conviction is
    likely to be unsafe (
R v Karakaya
). If the material does not affect
    the safety of the conviction, the appeal will fail.

[52]

Here
    I am not persuaded that there is a reasonable possibility that the verdict was
    affected by the extrinsic information, that the trial was rendered unfair by
    the juror conduct or that the conviction is unsafe.

F.

Was there a legal error in the instructions on conspiracy?

[53]

The
    trial judge instructed the jury in accordance with
R. v. Carter
and
R.
    v. Mapara
, allowing a jury to consider a hearsay statement of a
    co-conspirator in furtherance of the conspiracy only after it has found (1)
    that the conspiracy existed beyond a reasonable doubt and (2) that the accused
    was probably a member of the conspiracy, by virtue only of direct evidence
    against him. (
Mapara
at paras. 8 and 22)

[54]

The
    appellants submit that the trial judge should have added an additional
    requirement, that the Crown prove that it is probable that the other alleged
    conspirator whose acts and declarations are in question is a party to the
    agreement based on his own acts and declarations.

[55]

I
    am not satisfied that this proposed additional instruction is necessary. It
    adds an additional layer of complexity to an already difficult charge. The
    requirement that the statement be made in furtherance of the conspiracy is a
    sufficient link to render the statement of the declarant admissible, given that
    by this stage the jury must have been convinced beyond a reasonable doubt that
    the conspiracy existed and on the balance of probabilities by evidence
    admissible directly against an accused that he was a member of the conspiracy.

[56]

In
    this case the trial judge instructed the jury as follows:

To determine whether you are satisfied beyond a reasonable
    doubt that Len Farinacci was a member of the conspiracy to traffic in cocaine,
    you are entitled to consider all of the evidence. You are not limited to Len
    Farinaccis own words and conduct. Besides that evidence, you may take into
    account anything that any other member of the conspiracy said or did while the
    conspiracy was ongoing for the purpose of achieving its object or purpose, of
    trafficking in cocaine.

It is not everything said or done by any member of the
    conspiracy, charged or uncharged, on trial or not on trial, on which you may
    rely to decide whether Crown counsel has proven beyond a reasonable doubt that
    Len Farinacci was a member of that conspiracy. There are two requirements. The
    words must be spoken and the acts must [be] done:

1)

while the conspiracy
    remains in existence; and

2)

in furtherance of the
    object or purpose of the conspiracy.

To be in furtherance of the object or purpose of the
    conspiracy, the words or acts must be for the purpose of advancing the objects
    of the conspiracy, carrying forward the common design, or taking steps in order
    to achieve its purpose. Recruiting others to join, obtaining any necessary
    funds or equipment, arranging for delivery of items required, and checking out
    escape routes are examples of words or acts in furtherance of the object or
    purpose of a conspiracy. The acts done do not have to be unlawful, but what is
    said must not be solely a recounting of prior events or references to other
    crimes unrelated to the conspiracy.

It is not necessary that Len be the person who actually did the
    act in furtherance of the conspiracy, or even that he understood it or knew
    about it. Similarly, it is not necessary that Len be the person who actually
    spoke the words in furtherance of the conspiracy, or even that he was there
    when they were spoken. A conspiracy is like a partnership in crime. Each member
    is an agent or partner of every other member and is bound by or responsible for
    the words and conduct of every other member spoken or done to further their
    unlawful scheme.

So, at this stage you will consider all of the evidence, that
    is Lens own words and actions along with the words and actions or conduct of
    any other member of the conspiracy, that is Mr. Forde, Mr. Ball, Mr. Aykiama,
    Len Farinacci, Lucas Farinacci and any other unknown member of the conspiracy,
    as long as what was said or done was while the conspiracy remained in existence
    and was in furtherance of the purpose of the conspiracy.

[57]

Nothing
    in the evidence in this case required the additional instruction now suggested
    by the appellants. They argue for example that the trial judges instruction required
    the jury to apply the evidence relating to Akiyama to the appellants. It is
    doubtful that a jury would have considered the acts of Akiyama to be in
    furtherance of a conspiracy. There were no declarations by Akiyama in evidence.
    His car was seen in proximity to Lucass Acura on one occasion. He was at the
    same restaurant as Leonard Farinacci and Leonard Farinacci Sr. on one occasion
    and there was an exchange of bags between Len Jr. and Len Sr. with Akiyama
    present, with no evidence as to the contents except from Leonard Farinacci who
    testified as to the anodyne nature of the switch of gym bags from one car to
    another. A search of Akiyamas home uncovered trace amounts of cocaine and
    scales. The evidence relating to Akiyama was a miniscule part of this trial.

[58]

The
    appellants argue that the evidence of unknown males who purchased cocaine from
    Dwayne Forde could have been unfairly attributed to them. The many unknown
    males who purchased cocaine from Dwayne Forde did not make statements in
    furtherance of the conspiracy, as defined by the trial judge. The recordings of
    their conversations with Forde were cogent evidence that Forde was trafficking
    in cocaine, a matter not seriously in dispute. It was not necessary here for
    the trial judge to tell the jury that the statements by the unknown males could
    not be used unless there was direct evidence admissible against each showing
    that they were members of the conspiracy.

G.

REQUEST FOR PUBLICATION BAN

[59]

With
    the release of these reasons, the publication ban imposed below expires.

[60]

In
    the event that this matter was sent back for a new trial, the Crown and the
    defence requested a publication ban of information which would identify the
    jurors or the extrinsic information. The media opposed the proposed ban, but
    agreed that the identities of the jurors should not be published. Since there
    will not be a new trial, no further publication ban is necessary, except, on
    the consent of the parties and the media, there will be an order prohibiting
    publication of any information which would identify any of the jurors.

H.

disposition

[61]

For
    these reasons, the appeals from conviction by the appellants are dismissed.

Released: June 3, 2015

(GP)

G. Pardu J.A.

I agree J.
    MacFarland J.A.

I agree M. Tulloch
    J.A.





[1]
Douglas L. Keene and Rita R, Handrich,
Online and Wired for Justice: Why
    Jurors Turn to the Internet
, The Jury Expert, The American Society of Trial
    Consultants, Nov. 2009, pp. 14-15, http://thejuryexpert.com/2009/11/online-and-wired-for-justice-why-jurors-turn-to-the-internet-the-google-mistrial.


