



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Buffone, 2021 ONCA 676

DATE: 20211001

DOCKET: C64485 & C64484

Doherty, Gillese and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Vito Buffone and Jeffrey Kompon

Appellants

Mark Halfyard and Colleen McKeown, for
    the appellant Vito Buffone

Frank Addario and William Thompson, for
    the appellant Jeffrey Kompon

Tanit Gilliam, Amber Pashuk and Brian
    Puddington, for the respondent

Heard: September 15, 2021 by
    video conference

On appeal from the convictions entered by
    Justice James A. Ramsay of the Superior Court of Justice, sitting with a jury, June
    12, 2017 (C64484 & C64485).

By the Court:


[1]

After a 50-day trial before a jury, the appellants
    were convicted of conspiracy to import cocaine and several substantive
    offences. The Crown alleged the appellants were part of a criminal organization
    that, over a three-year period, imported and distributed more than two tonnes
    of cocaine.

[2]

By the end of the evidence, the existence of the
    conspiracy was not seriously challenged. The Crown alleged the appellants were
    at the top of the criminal organization and put forward a large body of
    circumstantial evidence to support that claim. The appellants testified,
    maintaining they had no knowledge of, or involvement in, any conspiracy to
    import narcotics. Both offered innocent explanations for the evidence the Crown
    relied on as proof of their involvement in the conspiracy.

[3]

The appellants appeal their convictions. The
    Crown seeks leave to appeal and if leave is granted appeals from the sentences
    imposed. The Crown asks this court to impose life sentences on both appellants.
    These reasons address only the conviction appeals. The Crown sentence appeal is
    dealt with in separate reasons.

[4]

The appellants advance four grounds of appeal.

(1)

The Analysts Evidence

[5]

On the Crowns theory, large boulders were imported
    into Canada and shipped to a warehouse near Port Colborne, Ontario. The Crown
    maintained that cocaine was secreted in the boulders and extracted from the
    boulders at the warehouse for distribution to various locations by some of the
    co-conspirators.

[6]

The police searched the warehouse and found no
    visible signs of cocaine. They did seize three pairs of gloves and submitted
    those gloves to the Department of Health for analysis. The analyses found
    cocaine on two of the three pairs of gloves. An analyst prepared three
    certificates setting out the results of the analyses and the Crown tendered those
    certificates at trial as proof that cocaine was found on two of the three pairs
    of gloves.

[7]

At trial, the defence argued the certificates
    were not admissible under the relevant provision in s. 45 of the
Controlled
    Drugs and Substances Act
, S.C. 1996, c. 19 (
CDSA
). The trial
    judge ruled the certificates admissible. The defence did not seek leave to
    cross-examine the analyst on the contents of the certificate.

[8]

The defence did, however, subpoena the analyst
    as a defence witness. The defence did not propose to challenge the accuracy of
    the certificate of analysis, but instead wanted to question the analyst on
    matters which the defence contended would demonstrate the limited, if any,
    probative value to the Crowns case of the findings reported in the
    certificate. For example, the defence wanted to elicit evidence as to the
    amount of cocaine detected on the gloves and the location of the cocaine on the
    gloves. The trial judge held the analyst could not be required to testify and
    quashed the subpoena.

[9]

On appeal, counsel renewed the arguments made at
    trial. Like the trial judge, we reject those arguments.

[10]

Section 44 of the
CDSA
allows the Minister to designate analysts for the purposes of the
CDSA
.
    Section 45(1) permits a police officer to submit any substance or sample of it
    taken for analysis. The analyst may prepare a certificate stating that the
    substance has been analyzed and setting out the results of that analysis:
CDSA
,
    s. 45(2). The results reported in the certificate speak only to the presence or
    absence of a controlled substance. They provide no details.

[11]

Under s. 51(1)
    of the
CDSA
, the certificate setting out the results of the
    analysis is admissible in any prosecution under the
CDSA
in
    the absence of evidence to the contrary to prove the statements set out in the
    certificate. The defence can cross-examine the analyst on the certificate only
    with leave of the court:
CDSA
, s. 51(2).

[12]

The purpose
    of the statutory scheme described above seems clear. The results of the
    analysis of substances submitted under s. 45 of the
CDSA
are
    an essential part of literally hundreds of prosecutions that are before the
    courts at any given point in time. There are only so many analysts. Parliament concluded
    that the effective use of the time and expertise of analysts would be best
    served by removing the requirement that analysts attend in person to give
    evidence in all cases. Instead, the analysts evidence can be given by written
    certificate. That certificate is determinative of the results of the analysis,
    absent evidence to the contrary. The accuseds right to make full answer and
    defence is protected by providing for the cross-examination of the analyst on
    the results of the analysis if the
court is satisfied that the analyst should be required
    to attend court for that purpose.

[13]

At the same time
    that Parliament facilitated proof of evidence of the results of the analysis of
    the substance, Parliament restricted the nature of the evidence that could be
    produced by way of certificate. The certificate provides evidence only of the
    statements set out in the certificate:
CDSA
, s. 51(1). Those statements are limited
    to a description of the substance or sample received and analyzed, an
    indication whether the analysis revealed a controlled substance and, if so, the
    identity of the controlled substance: see
R.
    v. Millier and Cyr
(1968), 65 W.W.R. 96, at p. 98 (B.C.C.A.), affd [1969] S.C.R. 955.


[14]

The appellants submit that s. 45 had no
    application in this case. They contend that s. 45 can be used only if the
    authorities submit for analysis the actual substance they suspect to be a
    controlled substance within the meaning of the
CDSA
. The appellants
    contend the police submitted gloves to the analyst and were not even aware of any
    substance on the gloves. They argue that gloves are not a substance for the
    purposes of s. 45.

[15]

There does not appear to be any caselaw directly
    on point. Crown counsel did provide the court with some cases in which items
    were submitted for analysis and certificates reporting the results of the
    analysis of residue found on those items were admitted at trial: e.g.
R. v.
    Forward
, 2017 NSSC 109, at para. 49;
R. v. Herchuk
, 2011 ABPC
    275, at para. 71. None of the cases, however, address the issue raised by the
    appellants. Nor do the cases marshalled by the Crown go so far as to
    demonstrate a common practice as submitted by the Crown.

[16]

In our view, the absence of any caselaw on point
    is best explained by the clarity of the language in the section. The word
    substance is not defined in the
CDSA
. Nor is there any language in
    s. 45 to suggest that the officers requesting the analysis must have a belief or
    suspicion of the existence of the substance eventually analyzed. Like the trial
    judge, we are satisfied, that on a plain reading, the word substance includes
    a substance found on an item submitted to the analyst. Section 45 contemplates
    a request that an analyst analyze any substance the analyst finds in the
    sample, or on the item submitted to the analyst pursuant to s. 45 of the
CDSA
.

[17]

We also cannot accept the argument that reading
    s. 45 to include the analysis of substances found on objects submitted to an
    analyst somehow impairs the fairness of the trial, or an accuseds ability to
    make full answer and defence.  Whether the analysts certificate speaks to a sample
    of a substance submitted in a vial or other container, or a substance on an
    object submitted to the analyst, the analytical process and the evidentiary
    value of the analysts certificate are the same. The certificate will indicate
    whether the substance found is a controlled substance and, if so, will identify
    the controlled substance. If the defence has reason to challenge the results
    reported in the certificate, the defence can seek leave to cross-examine the
    analyst.

[18]

The appellants further argue that the trial
    judge erred in refusing to allow the defence to call the analyst as a defence
    witness. They acknowledge that under s. 51(2), they could cross-examine the analyst
    on the contents of the certificate of analysis only with leave of the court.
    They did not seek leave to cross-examine because they did not seek to challenge
    the accuracy of the certificate.

[19]

The appellants submit, however, they are still
    entitled to call the analyst to elicit evidence on matters relevant to the
    probative value to the Crowns case of the finding reported in the certificate.
    In effect, the appellants argue, that while their right to cross-examine an
    analyst on the contents of the certificate is circumscribed by s. 51(2) of the
CDSA
,
    an accused is entitled to call that same analyst as his own witness, if the
    analyst potentially has any relevant evidence to give.

[20]

On the appellants approach, the defence can
    easily circumvent the limits imposed on requiring the attendance of the analyst
    at trial. An analyst will almost inevitably have evidence to give that is
    relevant to the case in which a certificate of analysis has been submitted. For
    example, the defence may want to call the analyst to elicit evidence that the
    results of the analysis cannot connect the controlled substance to any
    particular individual. That evidence would be relevant in the prosecution. On
    the appellants argument, it would be enough to require the analyst to attend
    court as a defence witness. The efficiencies created by ss. 45 and 51 of the
CDSA
would be all but lost
.

[21]

If the evidence of the analyst is tendered by
    way of certificate, the analyst has a very limited evidentiary role. In the certificate,
    the analyst speaks to the description of the substance analyzed and whether the
    analysis did or did not reveal the presence of a controlled substance. If
    cross-examination of the analyst is allowed, it too is limited to the accuracy
    of the contents of the certificate submitted by the analyst. In our view, the
    analysts limited evidentiary role cannot be expanded by calling the analyst as
    a defence witness on the basis that the analyst has relevant evidence to give
    that has nothing to do with the accuracy of the contents of the analysts
    certificate.

[22]

No doubt, other properly qualified witnesses can
    speak to matters that will impact on the probative value of the results of the
    analysis. Nothing prevented the appellants from calling that evidence. Similarly,
    to the extent the certificate did not speak to matters relevant to the
    probative value of the finding of cocaine on the gloves, it was open to the
    appellants to make that point in argument.

[23]

As the appellants did not challenge the accuracy
    of the certificates, and had not sought to cross-examine the analyst, the trial
    judge did not err in holding the analyst could not be required to respond to a
    defence subpoena.

(2)

The Trial Judges Conspiracy Instructions

[24]

The trial judges
    conspiracy instructions followed the three-step approach first laid down in
R. v. Carter
, [1982] 1 S.C.R. 938. At
    the first step, the jury considers whether the conspiracy alleged has been
    proved. At the second step, the jury considers the probable membership in the
    conspiracy of each of the accused. At the third step, the jury determines whether
    the membership of each accused in the conspiracy has been proved beyond a
    reasonable doubt: see
R. v. Dawkins
, 2021 ONCA 113, at paras. 35-42, 155
    O.R. (3d) 111.

[25]

The appellants allege errors by the trial judge
    at the second and third steps of the
Carter
instruction.

Step Two

[26]

The appellants contend that the trial judge did
    not tell the jury that, when deciding whether each appellant was probably a
    member of the conspiracy, it could consider only the acts and declarations of
    that appellant.

[27]

Jury instructions must be considered as a whole.
    It is true that in the trial judges first reference to the probable membership
    step of the
Carter
analysis, he did not expressly tell the jury that
    it could consider only the acts and declarations of each appellant. The trial
    judge did, however, tell the jury that the acts and declarations of others
    could only be considered after a finding that each appellant was a probable
    member of the conspiracy. By implication, the instruction told the jury that
    only the acts and declarations of an individual appellant were in play at the
    probable membership stage of the inquiry. Any possible uncertainty as to the
    meaning of the initial instruction was overcome in subsequent instructions. In
    those instructions, the trial judge expressly told the jury they could find probable
    membership as regards to each appellant based only on the acts and declarations
    of that appellant.

[28]

Reading the charge as a whole, we are satisfied
    the jury understood that when considering probable membership in the conspiracy,
    the jury had to consider each appellant separately and could consider only the
    acts and declarations of each appellant when deciding whether the Crown had
    proved probable membership in the conspiracy as against that appellant.

Step Three

[29]

The appellants submit that the trial judge did
    not tell the jury that it could use the acts and declarations of
    co-conspirators against the appellants at step three of the
Carter
instruction only if, with respect to each co-conspirator the Crown had proved
    probable membership in the conspiracy based on that co-conspirators acts and
    declarations. The trial judges instructions, however, had exactly that effect.
    He repeatedly told the jury that it could only consider acts and declarations
    of other alleged co-conspirators if satisfied those acts and declarations were
    done during the currency of the conspiracy and for the purpose of furthering
    the conspiracy. It would surely be a most unusual situation were a person to do
    something during the existence of a conspiracy, for the purpose of achieving
    the object of the conspiracy, and yet not be a member of that conspiracy.

[30]

The argument that the jury should have been
    instructed on the probable membership criterion, as applied to
    co-conspirators was made and rejected in
R. v. Farinacci
, 2015 ONCA,
    392, at paras. 53-57, 328 C.C.C. (3d) 101. The instruction in
Farinacci
is similar to the instruction given here. As in this case, the trial judge did
    not specifically tell the jury that it had to be satisfied the co-conspirators were
    probable members of the conspiracy based on evidence directly admissible
    against each co-conspirator. In rejecting the contention that this
    non-direction amounted to reversible error, Pardu J.A. said, at para. 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.

The words of Pardu J.A. apply to this
    case.

[31]

There would also be no advantage to the
    appellants in the instruction now said to be essential. As outlined above, the
    jury was told it could use acts and declarations of others at step three of the
Carter
analysis only if those acts and declarations were made and done
    for the purpose of advancing the objective of the conspiracy. Had the trial
    judge focused on probable membership as a pre-condition to the use of the acts
    and declarations of co-conspirators, he would have been required to outline for
    the jury all of the evidence capable of establishing the probable membership of
    each co-conspirator in the conspiracy. The Crown correctly points out the evidence
    capable of showing the probable membership of most, if not all, of the alleged
    co-conspirators was overwhelming. The approach now urged by the appellants would
    only have resulted in a much lengthier jury instruction, detailing all of the
    evidence showing the involvement of each of the co-conspirators in the
    conspiracy. It is difficult to see how that kind of instruction could have
    assisted the appellants.

[32]

We see no error in the trial judges 
Carter

    instructions.

(3)

The Trial Judges Instructions as to the Inferences to be Drawn from
    the Actions of Chanda Furney

[33]

Chanda Furney was the appellant Kompons partner.
    They lived together. The Crown did not allege that Ms. Furney was a member of
    the conspiracy.

[34]

When the police were searching the residence of
    Ms. Furney and Mr. Kompon, Ms. Furney attempted to conceal an
encrypted
cellphone that was on the nightstand beside
    the bed she and Mr. Kompon shared. It was the Crowns theory that the encrypted
    phone belonged to Mr. Kompon. The Crown contended that communications on that encrypted
    phone provided powerful evidence of the conspiracy and Mr. Kompons membership
    in it.

[35]

The trial judge instructed the jury on the
    evidence capable of connecting Mr. Kompon to the encrypted phone. In doing so,
    he referred to several parts of the evidence, including a number of texts
    between Pitbull (the name of the user of the phone) and someone using the
    name Ult. The tone of the conversations and some of the language used suggested
    a romantic relationship between Pitbull and Ult. The trial judge then said:

If Chanda Furney is Ult and knows about these
    sensitive texts, that could explain why she pocketed the phone. If she knew
    about it, that could be a piece of evidence from which you could infer that so
    did the man who shared the bedroom in which it was found. You do not have to.
    It is up to you.

[36]

It is difficult to know exactly what the trial
    judge was getting at with this instruction. Any suggestion that Ms. Furney was
    Ult, based on the manner in which Ult and Pitbull addressed each other,
    presupposes that Pitbull was Mr. Kompon, the very fact the Crown had to
    prove. Similarly, any suggestion that Ms. Furney pocketed the phone in the
    belief that it would somehow connect Mr. Kompon to criminal activity cannot be
    admissible against Mr. Kompon without at least some evidence he was privy to
    her efforts to conceal the phone from the police.

[37]

The trial judge recharged the jury in response
    to counsels objections. In doing so, he reminded the jury that there were many
    innocent alternative explanations for Ms. Furneys pocketing the device. He
    also said:

And before you could use this as evidence that
    she [Ms. Furney] knew about its sensitive nature you would have to reject any
    innocent explanation that there is. And of course, if it were to be used as
    evidence against Mr. Kompon, you would have to take the additional step of
    finding that he knew about it too, which is an inference you could draw, but
    you do not have to.

[38]

Based on the recharge, the jury could draw an
    inference against Mr. Kompon, based on Ms. Furneys handling of the device,
    only if he knew about the sensitive contents of the device. In these
    circumstances, he could only have that knowledge if he was the person referred
    to as Pitbull in the texts.

[39]

The initial instruction as to the inferences
    available for Ms. Furneys pocketing of the encrypted phone was confusing. The
    recharge went a long way to avoiding any possible misuse by the jury of that
    evidence, as against Mr. Kompon. In any event, apart from Ms. Furneys attempt
    to conceal the phone, the evidence identifying Mr. Kompon as Pitbull was
    overwhelming. Even if the instructions amounted to an improper invitation to
    use Ms. Furneys attempts to conceal the device as evidence that Mr. Kompon was
    Pitbull, the instruction could not possibly have had any effect on the jurys
    determination of that issue.

(4)

The Instruction on the Substantive Counts

[40]

The appellants correctly point out that the
    trial judge focused largely on the conspiracy count in his instructions to the
    jury. He did not reiterate the evidence summarized in the conspiracy charge
    when addressing the other charges. Nor did he repeat the law applicable to the
    co-conspirators exception to the hearsay rule, apart from telling them that it
    applied to the substantive offences as well.

[41]

The trial judge accurately set out the elements
    of the substantive offences. He also related those elements to the evidence in
    the case and the bases upon which the appellants could be found to be parties
    to those offences. For example, in respect of count two, the charge of
    trafficking in a controlled substance, the trial judge told the jury:

The evidence does not suggest that either Mr.
    Buffone or Mr. Kompon personally trafficked in any cocaine. You may only find
    either one of them guilty if you find beyond a reasonable doubt that he
    committed the offence together with another person. You would have to be
    satisfied that the cocaine was trafficked as part of a scheme to which the
    accused and others knowingly, voluntarily and intentionally agreed with the
    common purpose of trafficking in the cocaine.

[42]

The trial judges instructions are legally
    correct and well-suited to the specific nature of the allegation made in this
    case against the appellants.

[43]

The appellants have failed to demonstrate any
    error in respect of the instructions on the substantive offences.

conclusion

[44]

The appeal is dismissed.

Released:  October 1, 2021  DD

Doherty J.A.

E.E. Gillese J.A.

Grant Huscroft J.A.


