



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Buttazzoni, 2019 ONCA 645

DATE: 20190808

DOCKET: C62015

Feldman, Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

James Buttazzoni

Appellant

Jill R. Presser, for the appellant

Howard Piafsky and Holly Akin, for the respondent

Heard: January 31, 2019

On appeal from the conviction entered by Regional Senior
    Justice Peter A. Daley of the Superior Court of Justice on November 27, 2015, and
    from the sentence imposed on April 1, 2016, with reasons reported at 2015 ONSC
    6411 and 2016 ONSC 1287.

Feldman J.A.:

Overview

[1]

The appellant was acquitted of importing cocaine, but convicted of
    conspiracy to import cocaine and possession of cocaine for the purpose of
    trafficking. He was sentenced to 17 years, concurrent on each count. The
    charges related to a shipment of 112 kilograms of cocaine from Guyana.

[2]

The main issue on the appeal turns on whether the appellants conviction
    for conspiracy to import was properly based in law and fact. The appellant also
    appeals his conviction for possession for the purpose of trafficking on the
    basis that certain utterances that were overheard by police should not have
    been admitted into evidence. Additionally, the appellant seeks leave to appeal
    his sentence.

[3]

For the reasons that follow, I would dismiss the conviction appeal,
    grant leave to appeal sentence, and reduce the sentence to 15 years concurrent.

Facts

[4]

On May 28, 2012, a container arrived at the port of Saint John, New
    Brunswick from Guyana. Canada Border Services Agency (CBSA) personnel inspected
    the container and learned that it contained a quantity of canned and prepared
    food products as well as 20 empty skid pallets acting as space fillers.
    Secreted in the wood framework of 19 of the pallets were 112 kg of cocaine with
    an approximate value between $3,920,000.00 and $8,960,000.00, depending on how
    it was sold. The consignee was Moes Island Grocery in Mississauga and the
    name Laurence.

[5]

Following the discovery of the cocaine within the pallets, the CBSA agents
    contacted the Royal Canadian Mounted Police (RCMP). The RCMP took control of
    the container and arranged for a controlled delivery. The cocaine was removed
    from the pallets in New Brunswick, and then, on June 6, the container was transported
    to Ontario. Once in Ontario, the RCMP returned one gram of cocaine to the
    pallets and installed electronic audio and physical surveillance devices. The
    police learned from the shipment broker that Lawrence Dalloo, a co-accused, was
    responsible for the container.

[6]

On June 7, 2012, while the container was still detained by the RCMP,
    Dalloo entered into a rental contract with respect to a storage unit at a
    Public Storage location in Brampton, Ontario. On the contract, Dalloo named
    himself as tenant and James Buttz as the only other person authorized to access
    the unit.  At trial, Dalloo confirmed that James Buttz was the appellant.

[7]

On June 11, 2012, the police began to intercept Dalloos private
    conversations pursuant to a wiretap authorization. On June 12, the appellant
    called Dalloo and, using cryptic language, asked about the container. The same
    day, Dalloo was in contact a number of times with people in Guyana about its
    status.

[8]

On June 13, the police delivered the container to a rail yard in
    Brampton. Dalloo learned it was available for pick-up there. He then arranged
    for a truck to pick up the container and drive it to the storage facility, rather
    than to Moes Island Grocery. The police had the storage facility under
    surveillance.

[9]

That afternoon, the appellant drove Dalloo to the storage facility to
    meet the container. The appellant punched in the entry code at the gate. That
    evening, they returned to meet the truck transporting the container and
    directed it to the storage unit. Dalloo signed a paper from the truck driver
    while the appellant stood nearby. After the driver left, the appellant appeared
    jubilant. The two men hugged each other, and the appellant performed a
    celebratory dance. The appellant made a call from his cell phone, reporting
    that it just got here. As they drove away past the container, the appellant
    stopped and patted it. The appellants car returned later that evening and
    drove around the container.

[10]

That
    night Dalloo received a call from Guyana and they discussed what was to happen
    from that point. It became clear that another co-accused, Rampersaud Ramlall
    (referred to as Teddy by Dalloo and the appellant), was to pick up the pallets
    containing the cocaine and return with Dalloos share later.

[11]

On
    June 14, 2012, the appellant called Dalloo. The appellant said he wanted to get
    it done that day. They also discussed paying someone named Andrew at the
    trucking company $200 for redirecting the container to the storage facility.
    Later that morning, the appellant picked up Dalloo and dropped him off at a gas
    station where Dalloo met Ramlall. Dalloo and Ramlall drove to the storage
    facility. Dalloo called another co-accused, his nephew Sean Hussain, asking him
    to tell Jay to bring bolt cutters as well as the dolly. At 12:15 p.m., all
    four men attempted to open the container. After it was opened, Ramlall and the
    appellant were observed entering the container. The appellant and Hussain then left
    the area.

[12]

After
    that, a white van arrived and the pallets were loaded into the van and driven
    to Ramlalls house in Whitby where they were unloaded into Ramlalls garage.
    Dalloo texted a number in Guyana and said, Ur boy have it.

[13]

Once
    the white van left the storage unit, the appellant and Hussain returned and,
    with the assistance of Dalloo, unloaded the rest of the containers contents.
    During that time, one of the surveillance officers who was hiding under a truck
    within earshot overheard conversation amongst the men, including utterances by
    the appellant, some of which the officer committed to memory and recorded
    later. These utterances were confirmed by Dalloo at trial. The appellant talked
    about being nervous. He asked if the wood had some in it. Dalloo answered,
    Yeah they left a skid. The appellant said, [B]e neat to break it open and
    see how it looks.

[14]

Police
    also intercepted phone conversations that evening between the appellant and
    Dalloo where Dalloo told the appellant that the skids would likely be opened
    the next day. The appellant expressed concern about whether theyre gonna dance
    all over it, meaning dilute the portion of the cocaine that they were to
    receive. Dalloo also appeared to threaten violence if they were cheated.

[15]

The
    next morning, when noise from the listening device inside the pallets alerted
    the police that they were being opened, police quickly arrested Ramlall and another
    co-accused, Gary Ramoutar, outside Ramlalls residence on the driveway.

[16]

Later
    that morning, police intercepted phone conversations between the appellant and
    Dalloo, in which the appellant questioned whether these guys fucked us. The
    appellant told Dalloo that he would have to tell fuckin Teddy [
i.e.

Ramlall] hes takin a fuckin bullet now, you know what I mean.  The
    appellant was subsequently arrested at his residence.

The Trial Judges Findings

[17]

At
    trial, Dalloo, who had previously pled guilty to importing cocaine and
    possession of cocaine for the purpose of trafficking, gave evidence that
    exonerated the appellant, but his evidence was rejected by the trial judge.

[18]

On
    the count of importing cocaine, the trial judge found that the Crown had failed
    to prove the first required element 
i.e.
that the appellant had
    imported a substance into Canada. He found, at paras. 183-184 of his reasons
    for judgment, that the appellants involvement with the cocaine commenced
    after it reached Ontario, and there was no evidence that the appellant was
    involved in directing or causing another person to bring the cocaine into
    Canada. The appellant was aware of the cocaine being imported and its arrival
    in Ontario, but there was no evidence that the appellant played a direct or
    indirect role in the act of its importation: at para. 183.

[19]

On
    the count of conspiracy to import, the trial judge found that there was a conspiracy
    to import and distribute a large quantity of cocaine and that the appellant
    was a member of that conspiracy. On the issue of timing, the trial judge stated
    that the exact point when the appellant entered into the conspiracy was
    unknown, but it was while the conspiracy was ongoing. When discussing why the
    appellant was not guilty of importing but guilty of conspiracy to import, the
    trial judge explained, at para. 183 of his reasons, that he found the
    appellants role in relation to the importation was that of a co-conspirator
    in a scheme or plan which involved the importation and subsequent distribution
    of the cocaine and that role as a co-conspirator was part of the continuing
    offence of conspiracy.

[20]

The
    trial judge also found the appellant guilty of possession for the purpose of
    trafficking. He found the appellant was in constructive possession of the
    cocaine: he knew the nature and character of the substance, and he knowingly
    kept it or had it placed in the container and subsequently into the care of
    Ramlall for the appellants own use or benefit. The trial judge relied on the
    appellants conversations with Dalloo, both intercepted and overheard, as well
    as his conduct as demonstrating that he had a financial interest in the cocaine
    and that he retained a measure of control over it after it was taken by
    Ramlall.

[21]

Having
    found the appellant guilty of possession of 112 kg of cocaine for the purpose
    of trafficking and of conspiracy to import the 112 kg of cocaine, the trial
    judge sentenced the appellant to 17 years, concurrent on each count. The trial
    judge rejected the defence position that the appellant was a lower level
    participant in the scheme. He found no mitigating factors, and took account of
    the appellants recent record in Florida for conspiracy to possess with intent
    to distribute more than 100 kg of marijuana, for which he received a sentence
    of 40 months imprisonment as well as a 4-year term of post-sentence
    supervision. He was prohibited from possessing a controlled substance, and was
    subject to the supervision order when he committed these offences.

[22]

Dalloo
    received a sentence of 15 years concurrent on a guilty plea to importing
    cocaine and possession of cocaine for the purpose of trafficking.

[23]

The
    trial judge found Ramlall guilty of conspiracy to import cocaine and possession
    of cocaine for the purpose of trafficking and imposed a sentence of 15 years,
    concurrent on both counts.
[1]
Ramlall had no criminal record.

Issues on the Appeal

[24]

The
    appellant raises the following arguments in relation to his conviction for
    conspiracy to import cocaine:

1.

The
    conviction for conspiracy to import was unreasonable because a trier of fact
    could not have convicted on a proper application of the law;

2.

The trial
    judge erred in law regarding when an importation ends and when a conspiracy
    ends; and

3.

The
    conviction for conspiracy to import was unreasonable because the trial judge
    failed to consider a reasonable alternative conclusion.

[25]

The
    appellant raises one argument in relation to his conviction for possession of
    cocaine for the purpose of trafficking:  the trial judge erred by admitting the
    utterances overheard by the police officer at the storage unit and using them
    to convict for possession for the purpose of trafficking.

[26]

He
    also seeks leave to appeal his sentence and advances two arguments:

1.

Should this court uphold both of the appellants convictions, the trial
    judge erred in principle in imposing a sentence of 17 years based on the finding
    that the appellants role was equal to that of Dalloo; and

2.

Should this court quash the appellants conviction for conspiracy to
    import but uphold his conviction for possession for the purpose of trafficking,
    the trial judge erred in principle in imposing a sentence of 17 years for possession
    for the purpose of trafficking.

Analysis

(1)

Appeal of the Conviction for Conspiracy to Import Cocaine

[27]

The
    appellant raises three grounds of appeal challenging the legal basis for his conviction
    for conspiracy to import. I propose to deal with the third ground first. With
    respect to this ground, the appellant submits that his conviction for
    conspiracy to import is unreasonable because the trial judge failed to consider
    a reasonable alternative conclusion.

[28]

While
    the trial judge found the appellant guilty of conspiracy to import, his reasons
    disclose that the conspiracy that was proved was conspiracy to import and
    distribute. The appellant argues that all of the evidence of the appellants
    involvement that the trial judge relied on to convict him of conspiring to
import
was evidence that proved his involvement in a conspiracy to
traffic
in
    cocaine after it arrived in Ontario. However, the appellant was not charged
    with conspiracy to traffic  only with conspiracy to import. Therefore, the
    trial judge should have considered and explained why the circumstantial
    evidence was only consistent with conspiracy to import and not conspiracy to
    traffic.

[29]

I
    agree with the appellant that if the trial judge convicted the appellant of
    conspiracy to import based only on acts that related to a conspiracy to traffic
    the drug once it was imported into Canada, that would constitute an
    unreasonable verdict. The Crown submits that the trial judge was entitled to find
    that the criminal agreement that actually existed was for a broader purpose and
    encompassed both importation and distribution, and that the evidence relied on
    by the trial judge made the appellant part of the entire scheme.

[30]

The
    Crown points to the following particulars of the evidence as reasonably
    supporting a joint criminal enterprise with Dalloo and the appellant as
    partners, and which encompassed an agreement to import cocaine from Guyana that
    continued in Canada:

·

Dalloos inclusion of the appellant as the only other person
    allowed access to the storage unit intended for the cocaine in his lease with
    the storage facility, dated June 7, 2012, which was a week before he took
    possession of the container;

·

The anxiety and concern shared by Dalloo and the appellant over
    the delays in delivering the container;

·

The appellant punching the security code to get access to the
    gated area of the storage facility when he arrived there with Dalloo on the
    afternoon of June 13, 2012;

·

The appellant engaging in counter surveillance, advising Dalloo
    in one call when they were expecting delivery that the OPOP was just
    leaving;

·

The appellants presence with Dalloo during the delivery of the
    container, which they believed contained a multimillion dollar shipment of
    cocaine, a factor the judge found to be consistent with the appellant having a
    direct interest in the delivery of the cocaine and the overall conspiracy to
    import it;

·

The appellants celebratory behavior as soon as the container was
    delivered;

·

The appellants inspection of the seals on the container with
    Dalloo, his participation in attempting to open it and his entry into the
    container once it was open;

·

Their shared understanding of the procedure to be followed,
    including not opening the container upon delivery, who was to be present when
    it was, and how it was to be handled;

·

Their discussion referring to Andrew, the person responsible for
    arranging for the transportation of the pallets;

·

Ramlalls direction to Dalloo to bring two with yourself makes
    three to the container;

·

The appellants utterances at the storage facility that were
    overheard by a hidden police officer, including hope those guys dont rip us
    bro, Im nervous, it doesnt take that long to rip into them I might drive to
    Whitby tonight.

·

Interceptions where the appellant discusses his fear that he and
    Dalloo have been cheated and that Ramlall will cut them out of their share of
    the imported cocaine;

·

The appellants threat to kill or do violence to Teddy [
i.e.
Ramlall]
    because the deal seemed to be falling apart; and

·

The appellant and Dalloos consistent use of the terms we, us
    and our when engaged in discussions about the cocaine.

[31]

The
    Crown submits that the appellants involvement with the container and its
    contents before it got to Ontario, and the fact that the drugs had to be
    imported for any of the rest of the scheme to operate, constituted ample
    evidence for the trial judge to find that Dalloo and the appellant were engaged
    in a joint venture that commenced with the agreement to import the cocaine.

[32]

I
    agree with the Crown that the trial judge was entitled to view the appellants
    level of involvement with the shipment before it arrived at the Brampton rail
    yard as evidence that his agreement with Dalloo included an agreement to import
    the drugs into Canada. The trial judge concluded, at para. 153, that the only
    rational inference that can be drawn from the circumstantial evidence, within
    the context of all the evidence, is the guilt of Mr. Buttazzoni with respect to
    the charge of conspiracy in Count 1. Count 1 was the charge of conspiracy to
    import. The trial judges finding answers the argument that the evidence was
    equally consistent with an agreement to traffic only.

[33]

Thus,
    I would reject this ground of appeal.

[34]

I
    now turn to the first two grounds of appeal relating to the appellants
    conviction for conspiracy to import cocaine, and I propose to address them
    together, given that they are closely related. In these two grounds of appeal,
    in essence, the appellant submits that, due to a misunderstanding and
    misapplication of the law as it relates to when the offences of importing and
    conspiracy end, the trial judge erred in finding the appellant guilty of
    conspiracy to import.

[35]

The
    appellant argues that while the larger conspiracy to import and distribute may
    have been a continuing conspiracy, the conspiracy to import 
i.e.
the
    conspiracy alleged in the indictment  ended when the importation ended, and
    this preceded the appellants involvement. In
R. v. Vrany
(1979), 46
    C.C.C. (2d) 14 (Ont. C.A.), at p. 26, leave to appeal refused, [1980] 1 S.C.R.
    xiii, the court stated: Once the importation of goods is completed one cannot
    thereafter become a member of a conspiracy to import the subject goods.

[36]

The
    appellant submits that the importation ended when the drugs entered Canada and
    cleared customs in New Brunswick on May 28, 2012, relying on the majority
    decision in
Bell v. The Queen
, [1983] 2 S.C.R. 471, at p. 489, where
    the majority stated that importing a narcotic is not a continuing offence, and
    that it is complete when the goods enter the country.

[37]

The
    Crowns responding argument is that the trial judge fully understood that the
    result in
Bell

was that importing a narcotic is not a
    continuing offence and is complete when the goods enter the country. Although the
    trial judge mistakenly referred to the concurring reasons of Dickson J. (as he
    then was) in
Bell
, in which Dickson J. concluded, by contrast, that
    the offence of importing a narcotic is not over and done with until the goods have
    reached their intended final destination within Canada (at p. 481), the trial
    judges understanding of the law as expressed by the majority in
Bell

with respect to the temporal limits of the offence of importing was clear
    from his acquittal of the appellant for the offence of importing.

[38]

The
    Crown submits that unlike the offence of importing, the offence of conspiracy
    is a continuing offence; and, therefore, the appellant need not have joined the
    conspiracy before the importation was complete. The Crown relies for that
    proposition on
R. v. Sauvé
(2004), 182 C.C.C. (3d) 321 (Ont. C.A.), at
    para. 118, leave to appeal refused, [2004] S.C.C.A. No. 246;
Vrany
, at
    p. 26; and
R. v. Bogiatzis
, 2010 ONCA 902, 285 C.C.C. (3d) 437, at
    para. 33.

[39]

I
    do not agree that those cases stand for the proposition asserted by the Crown.
    In those cases, the issue was the application of the co-conspirators exception
    to the hearsay rule  specifically, the admission into evidence of declarations
    made by a co-conspirator in furtherance of a broader criminal agreement than
    the one charged in the indictment to prove the conspiracy that was charged. The
    concept was explained by Rosenberg J.A. in
Sauvé
, at paras. 115-118:

[115] The appellants submit, as a matter of law, that for the
    purpose of the hearsay exception the common design must either be the offence
    charged or a conspiracy to commit it.  Thus, they submit that even if
    there was a common design it was completed with the murder and any of the
    declarations after the killings were not capable of meeting the in
    furtherance requirement for the application of the exception.  The
    appellants submit that as a matter of policy the hearsay exception must be so
    limited to prevent a dangerous and unwarranted expansion of the exception.

[
116
]

We do not accept the appellants submission on this
    issue.  In our view, the matter is settled by this courts decision
    in
R. v. Baron and Wertman
(1976), 31 C.C.C. (2d)
    525.  In that case, the court had to consider whether the trial judge
    erred in instructing the jury that the conspiracy to murder included a
    conspiracy to cover up the murder.  Martin J.A. dealt with the issue as
    follows at p. 550:

To engraft a conspiracy to avoid detection and
    prosecution, as a matter of law, on every conspiracy to commit a crime would
    have far reaching implications. The effect of such a doctrine would be to
    extend the duration of the conspiracy and to make the attempted bribery of a
    police officer or the subornation of a witness by one conspirator admissible
    against the other as an act done in furtherance of the presumed subsidiary
    conspiracy to escape detection and punishment.
Such a conspiracy
    could, of course, like any other conspiracy, be established by evidence

[emphasis
    added].

[
117
]

To a similar effect is the decision of this court
    in
R. v. Vrany
(1979), 46 C.C.C. (2d) 14 at 26:

However, those who conspire to commit crime do not do
    so with any nice or careful delineation of the offences intended and
a
    single conspiracy may encompass a number of closely linked crimes which may be
    essential to the success of the conspiracy and form part of the common design
.
    This fact may then lead to the admission into evidence of acts and declarations
    of one conspirator against another which occurred after the principal object of
    the conspiracy had taken place if those acts and declarations were in
    furtherance of the common design. [emphasis added].

[
118
]

In other words, the scope of the conspiracy, or in
    this case the common enterprise, does not depend on the definition of the
    particular crime charged but the nature of the agreement.  A court must be
    careful not to artificially graft on to a conspiracy to murder a conspiracy to
    avoid detection, or as in this case, a common design to use the murder as a
    means of intimidating others. However, if the evidence establishes such a
    conspiracy or common design, it can serve as a foundation for the hearsay
    exception.

[40]

The
    trial judge in this case did use the broader conspiracy to import and
    distribute as the basis upon which to determine if certain hearsay statements
    made by one co-conspirator, Dalloo, after the importation, were admissible
    against the appellant pursuant to the co-conspirators exception to the hearsay
    rule. In that context, he concluded that he was satisfied beyond a reasonable
    doubt that the appellant was a member of the broader conspiracy to import and
    distribute the cocaine.

[41]

However,
    that use of the broader conspiracy in the course of applying this hearsay
    exception does not enlarge the crime charged in the indictment, including the
    timing of the offence. As stated by this court in
Vrany
, at p. 26,
    [t]his rule  is an evidentiary rule and does not enlarge the definition of
    the conspiracy charged. In this case, the charge was conspiracy to import
    cocaine, and the law remains that the Crown was required to prove that the
    appellant joined that conspiracy before it was terminated  here, by the
    completion of its object, which was the importation of the cocaine.

[42]

Therefore,
    in order to properly ground a conviction for conspiracy to import, it was
    necessary for the trial judge to find that the appellant joined the conspiracy
    to import before the object of the conspiracy, the importation of the cocaine,
    was complete. To do so, he had to find what date the appellant entered the
    conspiracy. However, his only finding in this regard was that the date when the
    appellant entered the conspiracy as a participant was unknown, but that he
    entered the orbit of the conspiracy, as a full participant, during the life of
    the conspiracy: at para. 153.

[43]

The
    trouble with this finding is the use of the phrase during the life of the
    conspiracy. As noted above, the trial judge found that the appellant was a
    member of a conspiracy to import and distribute. Thus, it is not clear from
    this finding alone whether the trial judge found that the appellant became a
    member of the conspiracy before or after the termination of the importing
    offence. If it was the former, this would properly support a conviction for
    conspiracy to import, but if it was the latter, it would not.

[44]

In
    light of subsequent developments in the law relating to the offence of
    importing and the trial judges other factual findings, I am of the view that
    this ambiguity does not require a new trial. Let me explain.

[45]

Since
    the trial of these charges in 2015, this court has decided two cases,
R. v.
    Foster
, 2018 ONCA 53, 360 C.C.C. (3d) 213, leave to appeal refused, [2018]
    S.C.C.A. No. 127, and
R. v. Onyedinefu
, 2018 ONCA 795, which have
    interpreted the majority decision in
Bell
in the context of different
    fact scenarios in order to determine when the offence of importing is factually
    complete. In
Foster
, at para. 106, this court concluded that the offence
    of importing is factually complete at the point when the contraband and its
    carrier have cleared customs and thereby become available to their ultimate
    recipient. In
Onyedinefu
, at para. 8, this court concluded that importing
    is a process that begins with the procurement of the contraband, its transport
    to a point of entry, and ultimately to a domestic destination or recipient.

[46]

These
    two cases had not been decided at the time of this trial. On appeal, counsel
    for the appellant took the position that the offence of importation ended in
    New Brunswick on May 28, 2012, which was when the goods entered the country and
    cleared customs. Respectfully, in light of
Foster

and
Onyedinefu
,
    this is not correct. While the majority judgment in
Bell

holds that
    the offence of importing is complete when the contraband enters the country
    (p. 489), this courts judgment in
Foster

notes, at para. 101,
    that that phrase says nothing definitive about
when
the offence[s]
    begins or ends (emphasis in original). In
Foster
, the contraband was
    hidden in the appellants clothing, and it was seized on the appellants arrest
    at secondary inspection at the Toronto airport. This court held, at para. 108,
    that while the importing offence was complete in law then, it was not complete
    in fact, because the the object of the importation  to bring cocaine from
    Jamaica to a Canadian recipient  had not concluded. In
Onyedinefu
, the
    appellant took possession of a package containing heroin that was delivered by
    FedEx. The package originated in India and came to Canada by way of the United
    States. This court held, at para. 8, that while the importing of heroin was
    complete in law when the heroin entered Canada, it was not factually complete
    until the appellant, who was the Canadian recipient, took possession of it. In
    this case, the container with the cocaine became available to the recipient
    (Dalloo) at the rail yard in Brampton on June 13, 2012, and he took possession
    of it on that date. Thus, in light of
Foster
and
Onyedinefu
, the
    offence of importation ended on June 13, 2012.

[47]

With
    this end date in mind, let me now turn to the trial judges other factual
    findings. The trial judge found, at para. 152 of his reasons for judgment, that
    he was satisfied beyond a reasonable doubt that [the appellant] had the
    intention to enter into an agreement to import cocaine into Canada, and that
    that intention had already existed at the time of the first intercepted
    communication between [the appellant] and Dalloo. The time of the first
    intercepted communication between the appellant and Dalloo was the morning of
    June 12, 2012. Thus, the trial judge found as a fact that the appellant had the
    requisite
mens rea
to join the conspiracy at least as of June 12. As
Bell

has now been interpreted in
Foster
and
Onyedinefu
,
that was prior to the
    termination of the offence of importing on June 13.

[48]

Directly
    after making his finding regarding
mens rea
, the trial judge made his
    finding regarding the
actus reus
, stating, at para. 153:

I am further satisfied beyond a reasonable doubt that [the
    appellant] entered into this agreement, which he knew to be for the unlawful
    purpose of importing and distributing a large quantity of cocaine into Canada.
    While the exact point in time where he entered the conspiracy as a participant
    is unknown, it is clear, and I am satisfied beyond a reasonable doubt, that he
    entered the orbit of the conspiracy, as a full participant, during the life of
    the conspiracy.

[49]

In
    my view, the trial judges finding with respect to the
actus reus
must
    be read in the context of his preceding finding with respect to
mens rea
.
    These findings are made one right after the other. Reading these findings
    together, I am of the view that when the trial judge found, at para. 153, that
    he was further satisfied beyond a reasonable doubt that [the appellant]
    entered into
this agreement
 (emphasis added), he was referring back to
    his finding regarding
mens

rea
above, such that it
    should be understood that the appellant entered into
this agreement
coincident with when he intended to enter it. While the trial judge is not able
    to pinpoint exactly when the intention to enter and the actual entry into the agreement
    occurred, it is clear from reading these two passages together that he found
    that they both existed at least at the time of the first intercepted
    communications between the appellant and Dalloo, and, thus, before the end of
    the offence of importing.

[50]

In
    further support of this conclusion, I note that the intercepted communication
    referred to by the trial judge involved the appellant asking Dalloo about the
    container using cryptic language. From a practical point of view, I fail to see
    how this evidence could be used to find that the appellant had the intention to
    enter into an agreement to import cocaine without also supporting the finding
    that he entered into the agreement. To conclude otherwise, in my respectful
    view, would be to go against logic and common sense. Thus, reading the trial
    judges reasons contextually and practically, I conclude that he found that the
    appellant intended to enter and did enter into an agreement to import cocaine
    prior to the termination of the offence of importing on June 13, 2012.

[51]

This
    finding is supported by the evidence at trial, including the following:

·

Dalloo testified that the appellant was with him when he rented
    the storage unit on June 7 (
i.e.
before the container was delivered to Brampton);

·

Dalloo included the appellants name on the storage agreement as
    the only other person who could access the unit;

·

the appellant reacted with jubilation when the container arrived
    at the storage facility; and

·

the appellant had a significant financial interest in the
    shipment.

These examples all
    indicate that the appellant had joined the conspiracy to import the cocaine before
    the container arrived at the rail yard and therefore before the completion of
    the offence of importing.

[52]

As
    a result, I would not disturb the trial judges finding that the appellant was guilty
    of conspiracy to import cocaine. I would therefore dismiss the appeal on this
    count.

(2)

Appeal of the Conviction for Possession for the Purpose of Trafficking

[53]

The
    panel did not call on the Crown to respond to the ground of appeal pertaining
    to the admission of the overheard utterances and the effect on the appellants
    conviction for possession of cocaine for the purpose of trafficking. The trial
    judge delivered written reasons for his ruling on the admissibility of the
    utterances. The appellant submits that because the circumstances under which
    the utterances were overheard and later recorded made them unreliable, they had
    little probative value, and any such value was outweighed by their prejudicial
    effect.

[54]

The
    evidence given by the officer who was hiding under a truck and overheard the utterances
    by the appellant was that he committed 16 of them to memory and then later
    recorded them. The utterances were overheard over a period of 2.5 hours. In
    addition to these circumstances, the appellant points to the fact that the
    officer became more certain of the accuracy of his memory over the course of
    his testimony. Finally, the appellant submits that because the utterances were
    taken out of context, there was the potential for circuitous reasoning
    regarding their meaning and import to implicate the appellant:
R. v. Ferris
,
    1994 ABCA 20, 149 A.R. 1 [
Ferris

(C.A.)], affirmed [1994] 3 S.C.R.
    756.

[55]

We
    do not accept this submission. In his reasons, the trial judge considered the
    issues raised by the appellant. He found that the contextual evidence was more
    than adequate to allow the trier of fact to examine the utterances and determine
    their meaning. He referred to the test for admission of uttered words from
Ferris
(
C.A.
)
,
at para. 17:

The facts of this case are unique in that there exist no
    circumstances or context from which the true meaning of the words can be
    inferred. It is uncontradicted that the words were part of an utterance only,
    and that other words passed both before and after those words. It is
    uncontradicted that the words could have come at the beginning of a sentence or
    at the end of a sentence. In fact, the words may have been a part of a question
    such as You don't think I killed David? or a statement such as They think I
    killed David or They think I killed David but I didn't. His father could
    have asked him what the police think he did and he could have replied I killed
    David. Those utterances do not prove any fact in issue and are not an
    admission of guilt. Indeed, on the basis of the uncontradicted evidence, the
    possibility of statements with the words ... I killed David ... contained
    therein are numerous. There is no way of determining the meaning or thought to
    be attributed to the words. A trial judge could not ascertain, nor could the
    jury, the meaning of the words. The difficulty is compounded by the
    acknowledgement of Sergeant Schmidt that this accused was talking in a slow
    fashion, pausing, repeating himself or trailing off into nothing. The
    circumstances are all before the trial judge and he should determine whether or
    not the evidence is sufficient for a jury to conclude the meaning of the words.
    Without meaning being ascertainable the words are not relevant to any fact in
    issue and they have no probative value.

[56]

The
    trial judge then distinguished
Ferris
on the basis that the uttered
    words in this case were more than simply partial thoughts, and there was
    considerable context within which to consider them. I note that that context
    included all of the evidence regarding the delivery of the container to the
    storage unit, the unloading of the pallets into the vehicle bound for Ramlalls
    house in Whitby, and the fact that one pallet was left behind so that, for
    example, the utterance by the accused about breaking it open to see how it
    looks would be understood in that context. Finally, the trial judge observed
    that the question of the weight to be accorded to the utterances, including the
    accuracy of the officers recollections and of their notes, was for the trier
    of fact. For example, the fact that some of the recounted utterances were
    described as almost verbatim while others were a paraphrased synopsis would
    go to the weight rather than the admissibility of the utterances.

[57]

The
    trial judge concluded his ruling by finding that the probative value of the
    utterances exceeded their prejudicial effect.

[58]

The
    admission of such evidence is a discretionary call by the trial judge. In this
    case, he addressed that issue by identifying and applying the appropriate legal
    test for the admission of utterances, and he considered all of the frailties of
    the hearing and reporting of the utterances in the context of that test before
    determining that the evidence was admissible. The weight to be accorded to the
    evidence was left to the trier of fact.

[59]

We
    see no error in the approach of the trial judge or in his conclusion to admit
    the evidence of the utterances.

[60]

For
    these reasons, the conviction appeal is dismissed.

(3)

Sentence Appeal

[61]

In
    light of the dismissal of the conviction appeal, it is only necessary to
    address the appellants first ground of appeal relating to sentence.

[62]

The
    appellant seeks leave to appeal the sentence of 17 years, concurrent on each
    charge. He submits that the sentence of 17 years was demonstrably unfit and
    should be reduced to 13 years.

[63]

The
    appellant argues that the trial judge erred by finding, at para. 67 of his
    reasons for sentence, that the appellants level of participation was at least
    equal to that of Dalloo. Dalloo was the person who made all the arrangements
    with the seller in Guyana. He had been communicating with the seller for at
    least six weeks, whereas, at its highest, the appellants involvement commenced
    after the cocaine was in Canada. Therefore, the appellants level of
    participation was necessarily less than that of Dalloo, who was the importer.
    Further, the appellant argues that the trial judge failed to recognize that the
    appellant joined the conspiracy at a late stage and failed to treat that as a
    mitigating factor: see
R. v. Valentini

(1999), 132 C.C.C. (3d)
    262 (Ont. C.A.), at para. 112.

[64]

At
    his sentencing hearing, the appellant argued that he was not a lead participant
    in the conspiracy to import and therefore deserved a lower sentence than
    Dalloo. It was in that context that the trial judge analyzed the appellants
    role, concluding that he indeed had a high level of involvement, which included
    arranging for the containers safe delivery and the movement of its contents,
    the 112 kg of cocaine. The trial judge concluded, at para. 67 of his reasons
    for sentence:

All of this is consistent with Buttazzoni participating in the
    conspiracy at a significantly high level of involvement and financial interest,
    well above that of a courier.  His level of participation and financial
    interest in the importing and distribution of the cocaine was at least equal to
    that of Dalloo.  The evidence shows that they were working as partners with a
    shared interest in the safe delivery of the cocaine.

[65]

The
    finding that the appellant and Dalloo appeared to be working as partners once
    the drugs were delivered to Ontario was consistent with the finding that the
    appellant conspired to import the drugs as part of a scheme to import and
    distribute. However, the trial judge made no acknowledgement of the fact that
    it was Dalloo who made all the arrangements for importing the cocaine, and pled
    guilty to the offence of importing, while the appellant was acquitted of that
    offence.

[66]

In
    my view, the failure to acknowledge that significant difference in the level of
    the involvement of the two men led to an error in principle by treating them as
    equal for the purpose of sentencing. On the record, without Dalloo, the drugs
    would not have come to Canada.

[67]

In
    Dalloos case, the Crown asked for 16 years and the sentence imposed was 15
    years. In the appellants case, the Crown asked for 18 years, and the sentence
    imposed was 17 years.

[68]

Dalloo
    also had a criminal record from Florida; however, his was for production of
    marijuana
and
possession of firearms. His sentence there was five years
    imprisonment plus a five-year supervisory term, during which he was prohibited
    from possessing drugs. The sentencing judge at Dalloos sentencing hearing also
    noted that Dalloo had voiced to the appellant a threat of violence to Teddy if
    there were to be any rip-off. The appellant voiced a similar threat about Teddy
    to Dalloo. The sentencing judge specifically rejected Dalloos assertion that
    his motivation was just to support his family, given the magnitude of the
    quantity of cocaine that was brought into Canada. The sentencing judge also
    rejected rehabilitation as a significant factor in sentencing Dalloo, given his
    previous criminality and the potential effect of his offending conduct on
    thousands of people.

The difference for Dalloo was that he pled guilty after
    the preliminary inquiry and expressed remorse.

[69]

The
    most relevant precedent for the purpose of sentencing both men is
R. v.
    DOnofrio
,

2013 ONCA 145. The appellant in that case was convicted
    of possession of almost 112 kg of cocaine for the purpose of trafficking.
    Although his role was as a courier, he had high-level connections and was close
    to the importation scheme. He also had a related criminal record, similar to
    the appellant and Dalloo. DOnofrio received a sentence of 15 years, which was
    upheld by this court.

[70]

In
    my view, having regard to the appellants role in the scheme in comparison with
    that of Dalloo, the appropriate sentence for the appellant in this case is 15
    years, concurrent on both counts. Because Dalloo was the importer, his sentence
    would otherwise have been higher than the appellants had he not pled guilty
    and properly received a reduction in light of his plea.

Disposition

[71]

In
    the result, I would dismiss the appeal from conviction, grant leave to appeal
    sentence, and reduce the sentence to 15 years, concurrent on each count.

Released: KF August 8,
    2019

K.
    Feldman J.A.

I
    agree. P. Lauwers J.A.

I
    agree.
I.V.B. Nordheimer J.A.





[1]

Ramlalls conviction and sentence appeal was dismissed as
    abandoned by this court on May 3, 2016.


