IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
R. v. Giles, |
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2008 BCSC 367 |
Date: 20080327
Docket: 23505
Registry: Vancouver
Regina
v.
David Francis Giles
David Roger Revell
Richard Andrew Rempel
PUBLICATION BAN
This Court Orders that the May 14, 2007 publication ban on “… any and all of the within proceedings …” is vacated and the following is ordered in its place:
1. No person shall broadcast or publish any evidence, photos, or statements by the presiding judge or counsel, or other matters arising at the trial of R. v. Giles, Revell and Rempel (Vancouver Registry No. 23505) which directly or by necessary implication identify any of the accused in the following two prosecutions (the “Related Proceedings”):
a) Vancouver Registry No. 23500-20 (currently before the Honourable Mr. Justice Romilly).
b) Vancouver Registry No. 23501 (currently before the Honourable Mr. Justice Groberman).
2. The Media may not have access to, or publish any of the contents of that intercepted private communication of January 20, 2005 which forms the basis of the allegations of extortion of the complainant, Glenn Louie, and the Media shall not publish any of the testimony given by J.J.V. at the trial of Giles, Revell and Rempel.
3. No person shall broadcast or publish the expert evidence of Staff Sergeant Lemieux and Inspector Andrew Richards on the issue of whether the Hells Angels or East End Chapter of the Hells Angels is a criminal organization, or any statement or ruling of the Court on that issue arising at the trial of R. Giles, Revell and Rempel.
4. No person shall broadcast to the public Intercepts 31 and 109 dated January 24, 2005 and June 14, 2005 respectively.
5. This order is only in effect in the Province of British Columbia and will expire when a verdict is rendered in Indictment 23501.
6. This order does not operate as a ban on publication of the Related Proceedings including identities of the accuseds in reports of the Related Proceedings, and this order does not derogate from any ban issued or to be issued in the Related Proceedings.
Before: The Honourable Madam Justice MacKenzie
Reasons for Judgment
| Counsel for the Crown: |
M.M. Devlin |
| Counsel
for the Accused, |
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Counsel
for the Accused, |
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Counsel
for the Accused, |
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Date and Place of Trial: |
May 14, 16, 18, 22; |
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Vancouver, B.C. |
[1] David Francis Giles, David Roger Revell, and Richard Andrew Rempel are jointly charged on count one of a three count indictment with, between April 3 and 7, 2005 possessing cocaine for the purpose of trafficking, and on count two with committing the same offence for the benefit of, at the direction of, or in association with a criminal organization, to wit: the East End Charter of the Hells Angels (the “EEHA”).
[2] The Crown’s case on count two against all three accused depends upon a finding of Giles’ guilt on count one, either as a principal offender, or as a party, because count one is the predicate offence for count two. Count two is the criminal organization offence and it depends upon the link of the accused to Giles in the commission of the possession offence in count one.
[3] Revell and Rempel are jointly charged without Giles on count three with trafficking in cocaine.
[4] The charges arise from project E-Pandora, an extensive police investigation into the alleged criminal activities of the EEHA.
[5] The evidence in this case included intercepted private communications including telephone and audio recordings, physical surveillance, and expert evidence. The Crown also tendered evidence obtained through searches of the EEHA clubhouses in Vancouver and Kelowna, the residence of Giles, a self storage locker, a hidden compartment in a car, and the yard and building of Revell’s used car lot where Rempel also worked.
[6] The eight kilograms of cocaine the police seized from the following three locations is the subject of both counts one and two:
1. Three kilograms of cocaine in locker F-11 at Westbank Self-Storage on Moose Road on April 4, 2005;
2. Five kilograms of cocaine in a hidden compartment in a green Chrysler Intrepid (the “Intrepid”) on April 6, 2005; and
3. Five bags of cocaine in a white plastic bag buried on the property at Westside Truck & Pawn Ltd. weighing 9.5 grams, 64.2 grams, 64.2 grams, 63.4 grams and 183 grams on April 6, 2005.
[7] The defence do not dispute that if the Crown proves possession of any of the above cocaine, it was possessed for the purpose of trafficking.
[8] Count three on the indictment, charging Revell and Rempel only, is based on trafficking one kilogram of cocaine to Mr. Shingara Bassi at Revell’s car lot, Westside Truck & Pawn Ltd., on April 6, 2005. The police followed Bassi away from the car lot, arrested him and recovered the cocaine.
[9] The defence do not dispute the expert opinion that in April 2005, the price of a kilogram of cocaine in the area of Kelowna, British Columbia was in the range of $24,600.
[10] Giles was the only accused who was a member of the EEHA at the times alleged on the indictment. Revell and Rempel were not members, and did not have any official status in the EEHA recruitment program.
[11] None of the accused testified or called any evidence in their defence.
BACKGROUND
[12] In July 2003, a recently arrested man offered to give the police information. He became the police agent around whom much of the E-Pandora investigation ensued. This agent embarked upon the first stage of the official recruitment program of the EEHA in September 2004, becoming an “Official Friend” of the club in an effort to gain full membership. He gathered evidence against various members of the EEHA from July 2003 to late January 2005 when he precipitously left the program.
[13] The police intercepted the private communications of various members of the EEHA including Giles, and the non-member Revell. However, the police seizure of the three kilograms of cocaine from the storage locker and the five kilograms from the hidden compartment in the Intrepid was mainly the result of surveillance efforts, as was Bassi’s arrest the day he was trafficked one kilogram of cocaine, the subject of count three against Revell and Rempel.
[14] The three accused all lived in the Kelowna area, British Columbia. Giles resided with his girlfriend, Pamela Watts. Revell resided with his girlfriend, Lori Bartkowski. Revell ran several businesses in the Westbank area, including the Reflex Gym, the Sunrise Family Bar and Grill, the Washtub Laundromat, and most important in the evidence, the used car lot called Westside Truck & Pawn Ltd. on Ross Road (the “car lot”).
[15] Rempel worked for Revell at the car lot. The building on Revell’s car lot contained an office and living quarters Rempel occupied. The car lot is where the trafficking in the kilogram of cocaine to Bassi occurred in count three, and where buried in the back, the police found several caches of smaller amounts of cocaine and residue. In the living quarters of the car lot office, they found drug trafficking paraphernalia, including scales and packaging material.
[16] Giles, a long-time member of the EEHA, spent time at the EEHA clubhouses in Kelowna and in Vancouver. There are audio intercepts of certain speeches he made to members at the Kelowna clubhouse on January 24, 2005 and June 14, 2005 that are central to the Crown’s case against him and are discussed below. Giles had a close relationship with Revell that is also a central feature of the Crown’s case against Giles on count one, and against Revell and Rempel on count two.
[17] Giles and Revell had substantial contact between about the middle of January 2005 and July 2005. They frequently expressed reticence about speaking on the phone, and through that period, used the telephone to arrange face to face meetings. They expressed awareness that the police were interested in their activities, and were likely intercepting their telephone calls. This was of course true.
[18] In its argument (ex. AA) the Crown concisely reviewed the evidence of the events leading to the seizure of the cocaine. It contains a summary of both the surveillance and the Blackberry messages, and reflects the synchronization of those two forms of evidence. The Crown’s “Chronology of Evidence” (ex. BB) provides greater detail of the coordination between the surveillance evidence and the content of the Blackberry messages it relies on.
[19] Counsel disagree with certain inferences the Crown asks me to draw. In particular, Mr. Jevning, counsel for Revell, says the evidence does not prove that Revell was “Balde” in the Blackberry messages exchanged with Rempel on April 5 and 6, 2005 which, together with surveillance evidence, are the central evidence against Revell.
[20] Mr. Jevning submits that although the evidence creates suspicion that “Balde” was Revell, and therefore suspicion about Revell’s guilt on counts one and three, it is not the only reasonable inference on the evidence.
[21] It is common ground that Rempel used the name “Greg Murphy” in the exchange of Blackberry text messages with “Balde”. Counsel for Rempel, Mr. Sherren, does not dispute the Crown’s evidence review, and makes no submissions on counts one and three.
[22] Although count one charges all three accused with possession of cocaine for the purpose of trafficking between April 3 and April 7, 2005, the evidence against both Revell and Rempel is intertwined and discussed together. However, except for a small part of the surveillance evidence on count one, the case against Giles is different. It mainly involves intercepted communications and I will it address it later.
[23] The Crown’s evidence review assumes a finding that Revell was “Balde” in the Blackberry messages exchanged with Rempel. For reasons that follow, I have made that finding. I also agree with what I find are the reasonable inferences reflected in the Crown’s evidence review in relation to counts one and three against Revell and Rempel. The evidence before me amply supports them.
[24] Therefore, I adopt the inferences from the Crown’s careful evidence review subject to certain changes I have made, and find the following facts.
Review of Evidence: Counts One and Three Against Revell and Rempel
Rempel enters storage Locker F-11 on March 17, 2005
[25] The evidence central to counts one and three began on March 17, 2005 when video surveillance recorded Rempel gaining access to storage locker F-11 at Westbank Self-Storage at 2231 Moose Road, Westbank. The video shows Rempel unlocking two padlocks on the locker door, entering the locker, and leaving a minute later carrying a dark duffel bag which he put down on the step to lock the door’s two padlocks. He got into his car with the duffel bag and drove away.
Rempel enters the Storage Locker on April 2, 2005
[26] Video surveillance cameras also recorded Rempel entering the same storage locker on April 2, 2005. He had arrived in the Intrepid which he parked in front of locker F-11. He crawled into the back seat, and got out of the rear passenger door about a minute later. Rempel left the car door ajar, unfastened the padlocks on locker F-11, returned to the car and retrieved a blue gym bag with black handles and a black end. He then carried the bag into locker F-11, emerging a few seconds later without it. Rempel locked the padlocks on the locker door, got into the Intrepid and drove away. This incident took about two minutes.
Activities at Westbank Self-Storage on April 4, 2005
[27] On April 4, 2005 at 1:04 p.m., surveillance police saw Rempel and Revell’s son, John, in front of Westbank Self-Storage on Moose Road. Rempel, in the Intrepid, was parked facing one direction while John Revell, in a grey Chevrolet pickup truck, was parked next to him, facing the opposite direction. At 1:06 p.m., Revell’s son John drove his truck into the Westbank Self-Storage compound, followed by Rempel in the Intrepid. The compound was gated and required an access card to enter.
[28] At 1:09 p.m. Rempel was recorded on video surveillance accessing locker F-11. He parked the Intrepid right in front of locker F-11. The front end of the vehicle was visible in the video. Rempel unlocked and opened the locker door. He entered the locker empty handed. Less than a minute later, he came out of the locker with his left arm clasped tightly against his body. He locked the locker door, and returned to the Intrepid holding his left arm tight against his body.
[29] Counsel all acknowledge that the watches of the surveillance officers were not synchronized.
Search Storage Locker F-11 on April 4, 2005
[30] On April 4, 2005, just past 8:00 p.m. the police executed a warrant and searched locker F-11 at Westbank Self-Storage. The locker was secured with two locks. The police recovered two bags inside. The first was a blue “No Boundaries” bag with black handles and sides. It contained three separate one-kilogram bricks of cocaine in plastic sealed bags and two empty plastic bags which, from their shape and size, would also hold one-kilogram bricks of cocaine. The second bag was a smaller blue and black gym bag containing a Panther brand stun gun and a .25 calibre Jennings handgun inside a blue box.
Events of April 5, 2005
[31] On the morning of April 5, 2005 Rempel was again driving the Intrepid. Revell was driving his blue Ford F350 pickup truck. Between 8:40 and 8:50 a.m., both vehicles arrived at the Sunrise café, and shortly after 9:00 a.m. Revell and Rempel were seen leaving the café together. Later in the morning, both men were observed at the car lot on Ross Road. The surveillance officers watched Rempel remove the license plates from the Intrepid.
[32] Just after noon on April 5, 2005, Giles phoned Revell and asked if he had a fax machine. Shortly after, Giles arrived at Revell’s Reflex Gym on Brown Road holding some papers. At about 12:56 p.m., Giles and Revell were standing together in the parking lot of the Reflex Gym. At 1:10 p.m., Giles was at the car lot on Ross Road having his truck washed. Giles was wearing a white sweatshirt with “AFFA” (“Angels Forever, Forever Angels”) across the chest.
[33] At about 2:42 p.m. Revell, in his Ford F350 pickup truck, pulled into a Chevron gas station on Highway 97 in Kelowna. He stopped his truck in the middle of the lot and waited. At about 2:44 p.m. a red Honda with license plate 817-HCL arrived and parked next to Revell. The driver of the Honda was an East Indian male matching the description of Bassi, who was arrested the following day in possession of one kilogram of cocaine and driving the same car. Revell got out of his truck and met briefly with the driver of the Honda. The two men shook hands, returned to their respective vehicles, and departed. I draw the reasonable inference that Revell was meeting with Bassi.
[34] At 4:48 p.m., Rempel entered the office at the car lot. At 5:03 p.m., Rempel went into the Intrepid parked in the car lot. He entered the car through the front driver’s side door, and leaned into the back seat. He appeared to manipulate something in the back seat area. Rempel got out of the car through the front passenger’s side door, with his left arm held close to his body. He walked back to the office and opened the door with his right hand, with his left arm still held up against his body. He had a glove on his right hand though the weather was not cold.
[35] Between 5:58 and 6:30 p.m., there was a series of text messages between Revell (user name “Balde”) and Rempel (user name “Greg Murphy”). These were recovered from the memory of a Blackberry device seized from Rempel incident to his arrest the next day on April 6. In one message, Revell told Rempel, “brown guy needs one”. From later events, it is a reasonable inference and one that I draw, that Revell was telling Rempel that Bassi, an East Indian man, wanted to purchase one kilogram of cocaine.
[36] By 7:00 p.m., Revell and Rempel were both at the car lot. At 7:08 p.m., the two men left in Revell’s truck.
The April 6, 2005 Cocaine Transaction with Bassi
[37] On the morning of April 6, 2005 Rempel and Revell completed a one-kilogram cocaine transaction with Bassi. These events began with a series of text messages.
[38] At 10:35 a.m. Revell sent a text message to Rempel indicating that “Brown Chad needs the same kind as last time”. Revell asked whether Rempel had it or whether it was in the “storage” (BB message 142).
[39] Rempel responded that he thought it was at the “storage” but he would “check here” because he was “not sure what we got where”. Revell answered, “have a look [there]” and if “[you] have it [there] I will send him now” (BB messages 141, 139).
[40] At 10:36 a.m. surveillance observed Rempel at the car lot with a shovel. A short time later he sent a text message to Revell indicating “not here” (BB message 138).
[41] At 10:40 a.m. Revell’s son John arrived at the car lot in his truck. At 10:42 a.m. Rempel was seen entering the office area. At 10:45 a.m. John Revell drove out of the car lot.
[42] At 10:46 a.m. Revell sent a text message to Rempel directing him to “get one of those out and have a look at one” (BB message 136).
[43] At 10:48 a.m. Rempel came out of the office and got into the driver’s side of the Intrepid, leaving the door open. At 10:50 a.m. Rempel opened the rear driver’s side door and leaned into the back seat. Two minutes later he backed out of the car and stood up with his left arm held tightly against his body. He then closed the rear driver’s side door with his right hand and returned to the office, keeping his left arm up against his body.
[44] Another series of text messages followed:
1. Rempel sent a message to Revell saying “it’s soft but really shiney good color” (BB message 133).
2. Revell replied “[ok] he is on his way” (BB message 132).
3. Rempel then sent a message asking, “Is he gonna wanna look at this” (BB message 130).
4. Revell responded “ya” and told Rempel, “keep one out”, and, “leave the rest in the car” (BB message 129).
[45] At 11:13 a.m. Bassi arrived at the car lot in the same red Honda that the surveillance police had observed the previous day. Bassi got out of the car and approached the office, carrying a small “scrunched up” apparently empty orange gym bag. Bassi knocked on the door, it opened, and he went into the office. At 11:17 a.m. Bassi left the office carrying the same orange gym bag which now appeared to contain something, got back into the red Honda and left the car lot. Rempel sent a text message to Revell confirming that “brown guy just left” (BB message 122).
[46] The police followed the red Honda from the car lot northbound on Highway 97 into Kelowna. At 11:28 a.m. the police pulled the car over. It stopped abruptly in the parking lot of a high school where Bassi got out carrying a duffel bag. He ran. The police chased and arrested him, and recovered a dark blue duffel bag, inside of which was an orange gym bag containing a one-kilogram brick of cocaine.
Events Leading to the Seizure of Cocaine from the Intrepid on April 6, 2005
[47] In addition to the Bassi cocaine transaction, Revell and Rempel were involved in a series of events that led to the seizure of five kilograms of cocaine from a hidden compartment in the Intrepid the afternoon of April 6, 2005. It began with a phone call from Sgt. Haslett to Revell’s Reflex Gym on the morning of April 6. Sgt. Haslett claimed he was a staff member at Westbank Self-Storage and left a message for “Richard” (Rempel) to call. A series of text messages followed between Revell and Rempel expressing concern about the storage locker:
1. At 11:08 a.m. Revell sent a text message to Rempel indicating that someone had called, “about your locker”, adding “that’s not good”. Revell told Rempel to call them back (BB message 127).
2. Rempel responded immediately, suggesting that the storage locker staff were looking for the “storage key” and that he would have to bring back the key that he had given to Revell (BB message 126).
3. Revell responded one minute later, directing Rempel to, “call them now and make sure” (BB message 125).
4. At 11:16 a.m. Rempel sent a message to Revell saying “my locker got robbed” (BB message 120).
5. At 11:18 a.m. Revell replied with a message warning Rempel that someone could be “watching” (BB message 119).
6. A series of text messages between Revell and Rempel followed in which the two men discussed who might be “watching”, who might have broken into the locker, and what Rempel should say to the staff at Westside Self-Storage (BB messages 118-107, 104-80).
7. In one of these messages, Revell suggested that Rempel look at the video surveillance to get an idea who was responsible for the break-in (BB message 110).
8. In another message, Revell told Rempel that they should “burry those now” (BB message 106). Rempel agreed, asking “where should we put them” (BB message 105).
9. At 11:36 a.m. Rempel sent a message to Revell suggesting that it would be a good idea to leave the car “all locked up” at some unspecified place where “we can keep an eye on it”. Rempel also said “no one knows about the locker”. Revell responded “ya maybe” (BB messages 101 - 100).
10. At 12:31 p.m. Revell sent a text to Rempel telling him to “put plates on car”. Rempel responded that he was “at the restaurant”, to which Revell replied that he needed Rempel in 15 minutes (BB messages 77-75).
11. In a series of messages starting at 12:41 a.m., Revell told Rempel to “get car” and head to “glenrosa” and the “motorhome” and to signal when he was at “gormans” (references to landmarks the police noted in subsequent surveillance) (BB messages 73, 66).
[48] At 1:07 p.m. Rempel was observed at the car lot. At one point, Rempel was crouched down at the back of the Intrepid. He then sent a text message to Revell that he was “just leaving [the] lot” (BB message 63). Revell replied with a message warning Rempel to “watch your mirrors” (BB message 62).
[49] In a subsequent series of text messages between 1:20 and 1:30 p.m., Rempel reported on his progress, indicating that he was “by mill”. Revell responded that he was two minutes away. Revell also told Rempel to take the plates off the car. Rempel replied that he would do so (BB messages 57-52).
[50] At 1:54 p.m. Revell’s truck was spotted driving back toward Westbank along Glenrosa Road, past an area referred to as “Gorman’s Mill”. At 1:59 p.m. Revell’s truck was in the parking lot of the Reflex Gym in Westbank, with Revell in the driver’s seat and Rempel in the passenger’s seat.
[51] At 2:13 p.m. Rempel was recorded on video surveillance at Westbank Self-Storage, examining locker F-11 with two other people. At 2:17 p.m. Rempel and another man were observed in surveillance standing outside the office of Westbank Self-Storage, with a third man who appeared to show them some papers. At 2:29 p.m. Rempel sent a text message to Revell reporting that the staff would not let them see the security tapes (BB message 50).
Seizure of the Cocaine from the Intrepid
[52] At 2:45 p.m. the police located the Intrepid parked next to two motor homes on the property at 3230 Preston Road, Westbank. One of the motor homes was registered to Revell. The hood of the Intrepid was warm, indicating it had recently been driven. The Intrepid had no license plates. By the vehicle identification number, the police determined the registered owner’s name was Curtis Helle.
[53] At 3:12 p.m. a man named Mike DeMattos arrived at 3230 Preston Road in a black truck with license plate 4977HJ. After telling the police that he owned the property and rented it to a car lot business in Westbank, DeMattos left.
[54] In another series of text messages between 3:22 and 3:25 p.m., Revell and Rempel discussed these developments:
1. Revell sent a series of messages to Rempel reporting, “we have a prob”, explaining that the “cops” were “at the car” where they had just left it (BB messages 48-44).
2. Upset, Rempel asked Revell what they should do (BB messages 43-42).
3. Revell suggested that they tell the registered owner of the car to “say nothing” (BB message 41).
[55] At 3:25 p.m., DeMattos returned to 3230 Preston Road and again spoke to the police. DeMattos gave them a business card on which he wrote the name “Mike” and the number 212-7311, telling the police that the car was not stolen. DeMattos left the property again.
[56] At 3:33 p.m. Revell met with an “unknown male” outside the Dairy Queen next to the Reflex Gym. The “unknown male” left in the same black truck, with license plate 4977HJ, that DeMattos was driving when he met with the police at 3230 Preston Road some eight minutes earlier. There is no dispute that the man outside the Dairy Queen who met with Revell was DeMattos.
[57] In text messages between 3:33 and 3:37 p.m., Revell and Rempel concocted a story to try to distract the police and to convince them that the Intrepid was not stolen, hoping they would leave it alone. Revell asked Rempel for the full name of “Curtis”, and Rempel replied that it was “Curtis Hellie” (BB messages 34-33). Curtis Helle is the registered owner of the Intrepid.
[58] In a series of messages, Revell told Rempel to get Curtis Helle and have him speak to the police about the Intrepid. Revell’s plan was for Helle to tell the police that he owned the car and was hiding it from his ex-wife (BB messages 31, 26, 15).
[59] At 3:40 p.m. DeMattos returned for the third time to 3230 Preston Road and spoke to the police. They told DeMattos they would be obtaining search warrants for the Intrepid and the motor home in connection with a drug investigation. DeMattos said he understood and that he just wanted to know what to tell the owners. Constable Petelle gave DeMattos a business card. This event ties into another series of text messages between 3:36 and 3:41 p.m. in which Revell and Rempel realize that the police investigating the Intrepid were the same police who searched the storage locker at Westside Self-Storage. Revell concluded that the police were watching them both (BB messages 29, 27, 24-21).
[60] Between 3:50 p.m. and 4:00 p.m., Revell and Giles were observed speaking to each other in the parking lot of the Reflex Gym in Westbank. At 4:00 p.m. both men left the parking lot in their respective vehicles.
[61] Meanwhile, at 3:55 p.m., Rempel drove a Mercury Grand Marquis out of a driveway on Sexsmith Road, later determined as Helle’s address. At 3:56 p.m. Rempel was observed driving the Grand Marquis with a man, later identified as Curtis Helle, in the front passenger’s seat. Revell sent several messages to Rempel telling him to take Helle “to the car” (referring to the Intrepid) and to get him there by himself (BB messages 13-10).
[62] At 4:10 p.m. Revell arrived at 3230 Preston Road in his truck at high speed. He was aggressive and agitated. He told the police they were on private property and demanded they produce a search warrant. The police said they were involved in a drug investigation and intended to seize the Intrepid and the motor home registered in Revell’s name. Revell said he would take the motor home unless the police showed him a search warrant. Constable Petelle told Revell he would be arrested if he tried to move the motorhome. Pointing to Constable McDermott’s pepper spray, Revell said “that’s not going to work” or “it does not work on me”. Revell then left the property, still agitated.
Arrest of Rempel
[63] At 4:26 p.m. on April 6, 2005 the police stopped the Mercury Grand Marquis and arrested its two occupants. Rempel was the driver and Helle was in the front passenger’s seat.
[64] The police seized a Blackberry handheld text messaging device from next to the driver’s seat. The police later sent this Blackberry for analysis and the text messages described above were downloaded. Although the username was “Greg Murphy”, from its location in the car and the content and timing of the messages, it is clear Rempel used the Blackberry. He does not dispute this fact.
Arrest of Revell
[65] At 4:30 p.m. on April 6, 2005 the police stopped Revell’s Ford F350 pickup truck and arrested Revell, the sole occupant. The police seized a powered on and functioning Blackberry device from a pocket in the front console of the truck.
Search of Westside Auto Pawn Car Lot on April 6, 2005
[66] From 6:24 p.m. to 10:43 p.m. on April 6, 2005 the police executed a search warrant at Revell’s car lot. Inside the office, they seized the following evidence:
1. From the bedroom, numerous ziplock baggies and a can of bear spray, and papers in the name of Rempel;
2. From the living room, a security card and three keys from a leather jacket. These keys were later found to open storage locker F-11 at Westside Self-Storage. Also seized was a black “support hoody” from a loveseat in this room; and
3. From the bathroom, an electronic scale, various clear plastic bags, several vacuum sealed bags which had been opened, and an exacto knife.
[67] The police also searched the exterior of the property for drugs that might have been buried with a shovel located at the back of the building. This resulted in seizure of the following quantities of drugs and packaging from areas where the ground had recently been disturbed:
1. A white plastic shopping bag containing a box of ziplock baggies and several chunks of cocaine buried under about one foot of dirt in an area next to a barbeque;
2. A white plastic bag containing a ziplock box with individual bags of cocaine inside buried in the dirt next to the rear door of the building;
3. A white plastic shopping bag containing cocaine residue buried in the dirt along the fence line on the southeast corner of the property; and
4. A plastic grocery bag containing cocaine buried in the dirt along the chain-link fence at the rear of the property.
Search of the Intrepid
[68] At 11:00 p.m. on April 6, 2005 the police searched the Intrepid. They found a hidden compartment between the back seat and the trunk that was secured by a magnetic lock fixed to the backrest in the back seat. Inside the compartment, the police found a blue “No Boundaries” duffel bag with black handles and black ends, containing five individually packaged one-kilogram bricks of cocaine.
[69] The license plates for the Intrepid (B.C. plate 455JFV) were seized from the trunk. In a Blackberry message earlier in the day, Revell had told Rempel to take the plates off the car.
Giles is Advised of Revell’s Arrest
[70] In the evening of April 6, 2005, a Hells Angels member, Carlo Verna, advised Giles of Revell’s arrest and the searches of Revell’s car lot and gym. Giles called Revell’s girlfriend, confirmed she’d spoken to a lawyer, and cautioned her about their phones being “wired”.
Subsequent Conversations Between Giles and Revell about the Arrest
[71] On April 7, after his release from custody, Revell contacted Giles and arranged to meet him later that day. There was subsequent contact between Giles and Revell that continued into July 2005. The Crown relies on an audio intercept at Giles’ home on May 2, 2005 at 6:13 p.m. (ex. J, tab 98) as significant evidence against both Giles and Revell on count one. Because I disagree with the Crown’s opinion of what Giles said in that intercept and the Crown’s view of its importance against either Revell or Giles, I will discuss it later when I consider the evidence against Giles on count one. It does not affect the result of the case against Revell.
COUNT ONE: REVELL AND REMPEL
The Law of Possession
[72] The offence of possessing a prohibited substance for the purpose of trafficking is found in s. 5(2) of the Controlled Drugs and Substances Act. Section 2 of the Controlled Drugs and Substances Act adopts the definition of possession in s.4(3) of the Criminal Code, which states:
(3) For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
[73] This definition provides that possession can be personal, constructive, or joint. Under all three different theories of liability, knowledge and control are key elements of possession. In order to prove possession, the Crown must establish that the accused had knowledge and control of the forbidden substance.
[74] Personal possession requires manual handling of the forbidden substance, knowledge of the nature of the substance, and some measure of control over it: R. v. Hess (1949), 94 C.C.C. 48 (B.C.C.A.); R. v. Beaver, [1957] S.C.R. 531.
[75] Proof of manual handling of the forbidden substance is not required to prove constructive or joint possession: R. v. Fisher, 2005 BCCA 444 at para. 24. Rather, to prove constructive possession, the Crown must prove beyond a reasonable doubt that the accused had knowledge of the nature of the forbidden substance and had some measure of control over it: Fisher at para. 24.
[76] To prove joint possession, the Crown must prove knowledge, consent, and some measure of control on the part of the accused deemed in possession of the forbidden substance: Fisher at para. 24; R. v. Barreau (1992), 9 B.C.A.C. 290 (B.C.C.A.) at para. 23.
[77] The Crown’s case against Rempel is based on personal possession of the cocaine. Its case against Revell is based on constructive or joint possession.
[78] As previously noted, the defence concedes that if the Crown proves possession of the cocaine beyond a reasonable doubt, it was possessed for the purpose of trafficking.
Application of Law to Count One Against Revell and Rempel
[79] Rempel’s counsel, Mr. Sherren, does not dispute the Crown’s review of the evidence, including the reasonable inferences it contains and that I find flow from facts the evidence establishes. He made no submissions as to Rempel’s guilt on counts one and three, reserving his argument for the criminal organization offence in count two, addressed later.
[80] The Crown submits the evidence proves beyond a reasonable doubt that both Rempel and Revell were in possession of the eight kilograms of cocaine the police seized from the storage locker and the Intrepid between April 3 and 7, 2005. It says the evidence, summarized as follows, overwhelmingly demonstrates their knowledge and control of the cocaine:
1. Rempel was recorded on video surveillance and observed in conventional surveillance accessing both the storage locker and the vehicle where the drugs were found.
2. Rempel was recorded on video surveillance placing a bag into the storage locker, which the police later recovered and found contained three kilograms of cocaine.
3. Rempel was observed in surveillance accessing the hidden compartment in the Intrepid, and thereafter appeared to conceal something under his arm.
4. The keys to the storage locker were seized from a jacket that Rempel was seen wearing. The jacket was inside the office of Revell’s car lot.
5. Drug trafficking paraphernalia and packaging was seized from the bedroom and bathroom areas of the office on the car lot Revell owned, and where Rempel apparently resided.
6. The Intrepid was frequently parked at the car lot business, owned by Revell, where Rempel worked and apparently resided.
7. There were significant quantities of cocaine and cocaine packaging buried on the car lot. Rempel was seen handling a spade or a shovel on several occasions. Both men made reference to either burying or finding “the stuff” in text messages.
8. The text messages recovered from the Blackberry device show that both men consulted each other with respect to the handling of the cocaine, the storage locker, and the Intrepid on a virtually minute-by-minute basis.
9. When Revell and Rempel learned that the storage locker had been “robbed”, they immediately went into “damage control” mode in order to (i) figure out who was responsible; (ii) preserve or hide the remaining cocaine concealed in the Intrepid; and (iii) deflect the attention of the police.
10. Among other things, Rempel, under Revell’s direction, drove the Intrepid to a property where Revell stored his motor home, locked the car, and removed and hid the license plates.
11. When Revell and Rempel found out that the police had identified the storage locker and had located the Intrepid, they immediately took steps to concoct a story to divert the attention of the police away from the Intrepid.
[81] I omitted the Crown’s reference to the May 2, 2005 intercepted communication between Giles and Revell which I will address later in these reasons.
[82] Also, I note that the Crown pointed to three intercepts relevant to whether Revell was “Balde”. In particular, there is one on June 1, 2005, in which Giles used the nickname “Baldy” to refer to Revell. Giles explained that he was “the guy with the car lot”. However, though the issue was not addressed before me, I do not think those intercepts are admissible against Revell. He was not one of the speakers and they occur after the April arrests. These intercepts cannot be considered “in furtherance” of a joint enterprise so as to fall within the co-conspirators’ exception to the hearsay rule. I therefore do not consider them as evidence against Revell.
The Position of Mr. Revell
[83] Mr. Jevning for Revell submits the evidence does not support the inferences the Crown urges the Court to find. Specifically, he says it fails to prove Revell was the “Balde” who was exchanging Blackberry messages with Rempel at the critical times. He says there is at least one rational conclusion on the whole of the evidence that is inconsistent with the guilt of Revell.
[84] Mr. Jevning also relies on adverse inferences that he asks me to draw respecting certain evidence he says the Crown ought to have presented but did not. He says when these “cornerstones” of the evidence are removed, the case is weakened to the point that Revell’s guilt is not proved beyond a reasonable doubt.
[85] Mr. Jevning says that although the circumstantial evidence creates suspicion, a consideration of the whole of the evidence admissible against Revell, including the negative inferences that I should draw against the Crown, leaves a reasonable doubt as to his guilt. Mr. Jevning makes the following argument:
1. There is no evidence Revell knew of the storage locker, the hidden compartment in the Intrepid, or that either contained cocaine. Revell was not present when Rempel was observed going into the hidden compartment in the Intrepid, and apart from one occasion when Revell was seen driving the Intrepid, he was not otherwise associated to it.
2. Revell was never seen at the locker and its keys were not linked to him. The keys were found in a jacket linked to Rempel.
3. The drug paraphernalia and packaging material was seized from the area of the car lot office where Rempel lived. There is no evidence Revell knew of the contents of Rempel’s residence which constituted a separate living area in the same building as Revell’s office. The living area, though in the same building, had a separate address and its search was separately authorized.
4. Although significant quantities of cocaine were located in the ground of the car lot, it was found in circumstances that tied it to Rempel. The allegation that both Revell and Rempel referred to either burying or finding “the stuff” depends on a finding that Revell was the “Balde” with whom Rempel communicated. Mr. Jevning suggests it would be speculative to find that Revell was “Balde”, especially when the negative inference is drawn on the lack of analysis of the Blackberry found in Revell’s truck.
[86] Mr. Jevning also disagrees with the Crown’s interpretation of the post-arrest intercept on May 2, 2005 between Giles and Revell. The Crown argues the intercept captures Giles and Revell discussing their loss of the eight kilograms of cocaine the police seized. He argues that the Crown is “theory fitting” to arrive at a value of the lost cocaine consistent with the amount of money that, according to the Crown, Revell tells Giles they “owe”. I agree there are problems with the Crown’s interpretation of that intercept, and will discuss them later when I deal with the evidence against Giles.
[87] I observe that important evidence against Revell includes the fact that he actually owned the car lot where a significant amount of cocaine was found buried in the back yard, and, I infer from the facts the evidence establishes, had been previously buried and dug up. Rempel, who actually handled large amounts of cocaine, lived in the same building on the car lot that housed Revell’s office, and Rempel also worked for Revell.
[88] Revell is also connected to the Intrepid, registered to Curtis Helle. A Transfer/Tax form shows that Revell, doing business as Westside Truck & Pawn Ltd., sold the Intrepid to Helle on March 23, 2005. In addition, surveillance officers observed Revell driving the Intrepid on one occasion.
[89] The case against Revell also depends upon a finding that he was “Balde” in the Blackberry messages exchanged with Rempel at the critical times and retrieved from Rempel’s Blackberry.
[90] Mr. Jevning submits the sequence of events shows that Revell was not the man using the name “Balde”. I will not set out all his arguments on this point. They are contained in his written argument. It is enough to address a few of them and say I find the arguments unpersuasive, against the weight of the evidence, and inconsistent with the reasonable and compelling inferences arising from the sequence of events. The timing and content of the Blackberry messages and the surveillance evidence, when considered together, provide as the Crown says, a virtual narrative of the events of April 6 and the scrambling of Revell and Rempel to avoid the police finding the cocaine in the Intrepid.
[91] A particular sequence Mr. Jevning relies on occurred April 6, 2005 when DeMattos returned to the Preston Road site for the second time at 15:25 hours and spoke with the police.
[92] Mr. Jevning refers to surveillance of Revell entering the Dairy Queen at 15:33 and leaving at 15:38 with DeMattos, arguing that there is a “clear inference” available that this was when DeMattos informed Revell the police intended to seize his motor home.
[93] I find there is not a “clear inference” that DeMattos told Revell at the Dairy Queen that the police were going to seize his motor home. DeMattos could not have told Revell that because the police had not yet given that information to DeMattos. He did not know at the Dairy Queen that the police were going to seize the motor home. The police only told DeMattos this on his third trip to Preston Road at 15:40. It may be a small point, but it is an example of Mr. Jevning asking me to draw inferences where they do not arise.
[94] This sequence of events also illustrates how the timing and content of the Blackberry messages coordinate with the surveillance evidence. DeMattos was the only one at the relevant time who knew that the police at Preston Road were saying the Intrepid was stolen. While Revell is at the Dairy Queen with DeMattos, “Balde” text messaged that information to Rempel. The only way “Balde” got that information was from DeMattos. No one else knew. I find that the police gave information to DeMattos, who told Revell. Revell was the “Balde” who messaged Rempel via the Blackberry. It only makes sense that “Balde” was Revell.
[95] A good example where the timing of the surveillance evidence and the content of the Blackberry messages synchronize, giving rise to the compelling inference that “Balde” was Revell in the Blackberry exchanges with Rempel is when “Balde” asked Rempel, “Wat was cops name. this morn (BB message 29 at 15:36). Rempel responded, “is written down on the yellow piece of paper at the gym” (BB message 27 at 15:35 [timing slightly off]). At 15:40, surveillance discloses Revell pulling his truck into his Reflex gym parking lot and going to the door. “Balde” then text messaged Rempel that “Same cop they broke into locker. They r waching u and me” (BB message 24 at 15:41).
[96] The obvious inference is that Revell as “Balde” asked Rempel for the police officer’s name, Rempel responded that it’s on the yellow paper at the gym, so Revell drove to the gym, retrieved the name, and recognized it as “Same cop they broke into locker..” and concluded that, “They r waching u and me”
[97] Mr. Jevning contends that when “Balde” referred to John in his messages to Rempel, they were not references to Revell’s son John, based on his submission that Revell does not call his son, “John”. Instead, he refers to him as “Johnny”. The Crown referred to various places in the evidence where Revell did call his son “John”, properly disposing of this argument.
[98] Mr. Jevning points to cross-examination of a surveillance officer who testified, having observed Rempel briefly with an unknown “bald, biker” type at the car lot, that this bald man appeared to give direction to Rempel. Mr. Jevning submits, on the basis of this and other surveillance evidence of this unknown bald man who was also driving around with Rempel as his passenger at certain points on April 5, that the “Balde” who exchanged the Blackberry messages with Rempel could have been this unknown bald man.
[99] However, there is no evidence about what the unknown bald man and Rempel were talking about in connection with the answer about “giving direction”. Even with the other bits of surveillance of this unknown “bald, biker type”, including on March 23 and April 5, the argument that this man could have been “Balde” is inconsistent with the cumulative effect of the surveillance observations matched with the timing and content of the Blackberry messages.
[100] Another argument Mr. Jevning made, at least initially, was that “Balde” could have been Revell’s son, John. I discard this theory because John Revell was actually with Rempel at times when “Balde” and Rempel were exchanging Blackberry messages, so it was clearly unnecessary for them to communicate by Blackberry. For example, John Revell was with Rempel at the storage locker after the police had “robbed” it, so there was no need for John Revell to text message Rempel, as “Balde” did, to learn what happened at the locker.
[101] I do not accept Mr. Jevning’s submission that I ought to reject certain surveillance evidence. I do not find that Constable Marshall’s surveillance is generally unreliable. It is consistent with the content and timing of Blackberry messages that disclose Revell and Rempel’s plan to have Rempel drive the Intrepid with the hidden five kilograms of cocaine to the Preston Road location where Revell kept his motor home, and leave it there to avoid police detection.
[102] Mr. Jevning submits that a misapprehension about Rempel’s appearance undermined Constable Marshall’s surveillance evidence because he described Rempel on March 7, 2005 in Chapters bookstore as having a goatee and a pierced ear. Constable Marshall also said that during the investigation, Rempel always appeared the same as he described him on March 7. Constable Mulhull testified that during the investigation, Rempel looked as he did in court. He had no goatee then.
[103] On the totality of the evidence, I do not find this discrepancy in the description of Rempel is material. As the Crown says, the evidence all fits together to establish that Rempel and Revell were indeed the people communicating by Blackberry.
[104] The manner in which the Blackberry messages and surveillance evidence coordinate is set out in the Crown’s admirably detailed “Chronology of Evidence”. There are other examples where the timing and content of the Blackberry messages and the surveillance evidence coincide. For example, it is not mere coincidence that Revell arrived at the Preston Road site at 16:10. The Blackberry messages confirm Revell’s plan to meet Helle there; Revell messaged Rempel that he was “Off Berry I will C him thair” (BB message 3 at 16:04). Rempel did not make it to Preston Road, but was arrested at 16:26 en route there with Helle. Revell was arrested four minutes later. His powered on and functioning Blackberry was found in the floor level pocket of the front console.
[105] The manner in which the Blackberry messages and the surveillance evidence cumulatively coordinate creates the irresistible inference that bald–headed Revell was indeed the “Balde” on Rempel’s Blackberry. The content and timing of the Blackberry messages matches the location and actions of Revell and Rempel in the surveillance evidence. This coordination provides a virtual narrative of the events as they occur on April 5 and 6, 2005 that give rise to count one, and as discussed below, count three. There is no dispute that Rempel was “Greg Murphy”, and the evidence leads to the inexorable conclusion that Revell was “Balde”.
[106] Mr. Jevning argues that I should draw a negative inference because the Crown did not adduce evidence of a technical analysis of the Blackberry found with Revell on his arrest, as it did for Rempel’s Blackberry. He submits this omission supports drawing an adverse inference that whatever information the Blackberry contained did not further the Crown’s case against Revell. Mr. Jevning submits that I should “fix” the Crown with a “negative inference” on the basis that it is asking the Court to draw inferences when it was in a position to shed light on “a cornerstone” of its case, and failed to do so. He lists a series of specific adverse inferences that the Court should draw, including an inference that the Blackberry in Revell’s car did not contain contact information for Rempel’s Blackberry, that it did not contain any messages mirroring those on Rempel’s Blackberry, and that it was not used to communicate with Rempel’s Blackberry, to name a few.
[107] I find on the evidence before me that Revell was the “Balde” who participated in the communications found on Rempel’s Blackberry. I decline to draw an adverse inference against the Crown for not adducing evidence about the contents of the Blackberry recovered from Revell’s truck. In my opinion, to draw an adverse inference in this case would have the effect of improperly elevating a lack of evidence in the Crown’s case to positive evidence. The Crown is entitled to conduct its case as it sees fit. There is a high burden on the Crown to prove its case beyond a reasonable doubt based on material and relevant evidence. When the Crown decides not to call relevant evidence, it risks failing to discharge its burden of proof. In this case, the Crown placed cogent evidence before the Court that Revell was "Balde". The Crown proved this fact, and it was unnecessary to adduce evidence relating to the Blackberry found in Revell’s car.
[108] Mr. Jevning also argues I should draw an adverse inference because the Crown did not call expert evidence about the wholesale value of eight kilograms of cocaine. I need not address this issue since I did not rely on the intercept relevant to that issue. In any event, even if I drew an adverse inference in this regard, the Crown has still proved Revell’s guilt beyond a reasonable doubt.
[109] I find the evidence proves beyond a reasonable doubt that both Rempel and Revell were in possession of the eight kilograms of cocaine the police seized between April 3 and 7, 2005.
[110] Before addressing the case against Giles on count one, I turn to consider count three.
COUNT THREE: REVELL AND REMPEL
[111] On count three, Revell and Rempel are charged with trafficking in cocaine arising from the sale of one kilogram of cocaine to Bassi whom they refer to in their exchanges of Blackberry messages as “brown Dave”, or “brown guy”.
[112] Again, counsel for Rempel had no submissions on count three. Mr. Jevning for Revell relies on the arguments he made on count one, but those submissions failed.
[113] Mr. Jevning also argues that this Court should draw a negative inference against the Crown because it did not call the two officers who surveilled Revell with Bassi on April 5, 2005 to give evidence.
[114] Whether to draw an adverse inference from the failure of the Crown to call a witness is in the discretion of the trial judge: R. v. Jackson, 2005 BCCA 539. However, the only adverse inference the trial judge may draw from a failure to call a witness is that the witness’s testimony would have been unfavourable: R. v. Koffman (1985), 20 C.C.C. (3d) 232 (Ont. C.A.). I do not agree that it is appropriate to infer that the surveillance officers would have given evidence unfavourable to the Crown’s case.
[115] The Crown has a broad discretion as to the witnesses it calls: see R. v. Cook, [1997] 1 S.C.R. 1113; Ewaschuk, E.G. Criminal Pleadings & Practice in Canada, looseleaf, 2nd ed. (Aurora: Canada Law Book, 2007) at para. 13:3080. The court will not interfere with an exercise of this prosecutorial discretion unless the Crown fails to call a witness because of an “oblique motive”: R. v. Yebes, [1987] 2 S.C.R. 168 at 190 – 91. An oblique motive requires an improper motive on the part of the Crown: Cook at para 57. Here, Mr. Jevning conceded that there was no improper motive on the part of the Crown. There is no absolutely no evidence that the Crown had an improper motive for declining to call the police officers who surveilled the meeting between Bassi and Revell on April 5, 2005.
[116] The Crown is required to call witnesses essential to the narrative: R. v. Lemay, [1952] 1 S.C.R. 232; R. v. Castellani (1969), 1 C.C.C. 327 (B.C.C.A.), aff’d [1970] S.C.R. 310. Evidence that is essential to the narrative does not mean that the Crown must call all witnesses with relevant evidence to give: Cook at para. 31. Rather, the concept of “essential to the narrative” refers to the Crown’s burden to prove the case against the accused beyond a reasonable doubt. The court in Cook explained at para. 31 the concept of “essential to the narrative” as follows:
"[E]ssential to the . . . narrative" does not mean, as many have attempted to suggest, that all witnesses with relevant testimony have to be called by the prosecution. On the contrary, it refers solely to the Crown's burden of proof in a criminal proceeding. Where the "narrative" of a given criminal act is not adequately set forth, elements of the offence might not be properly proven, and the Crown risks losing its case. Additionally, where certain witnesses are not called, this can become a factor for an appellate court to consider in reviewing a decision to determine if a verdict was unreasonable: Whitehorn v. The Queen (1983), 152 C.L.R. 657 (Austl. H.C.); The Queen v. Apostilides (1984), 154 C.L.R. 563 (Austl. H.C.).
[117] Finally, in R. v. Jolivet, 2000 SCC 29, after noting that R. v. Stinchcombe, [1991] 3 S.C.R. 326 enhanced the Crown’s disclosure obligations, the Supreme Court of Canada held at para.15 that, “[i]n general, witnesses should be called by the party that wants their evidence”.
[118] In this case, the Crown relies on circumstantial evidence already reviewed in these reasons to prove that the man Revell met with on April 5, 1998 was Bassi.
[119] Based on that evidence, I find as a fact that the man Revell met with on April 5, 2005 was Bassi. I draw no adverse inference against the Crown based on its decision not to call the surveillance officers. The evidence the Crown called is sufficient to establish that it was Bassi whom Revell met on April 5, 2005. Regarding the transaction between Bassi and Revell, the Crown led evidence essential to the narrative, and it would be improper to draw an inference that the surveillance officers would have given testimony adverse to the evidence before me. I am guided by the following comments of our Court of Appeal in Jackson at para. 15:
Where, as in this case, the evidence "essential to the narrative" has been given, drawing an inference that another witness' evidence, on the same matters, would be adverse to that given, would ignore the principles that the Crown has discretion in putting in its case, including which witnesses to call, that there are many reasons why a particular witness would not be called, and that the defence may call a witness who he thinks may be helpful to his case.
[120] My finding that Revell was “Balde” on Rempel’s Blackberry messages is also fatal to Revell on count three.
[121] It is clear that Revell and Rempel were engaged in trafficking cocaine to Bassi on April 6, 2005. First, Revell met with Bassi at the Chevron gas station on April 5, they spoke briefly, shook hands, and both men left. Bassi was driving the red Honda in which he was arrested the next day with the kilogram of cocaine.
[122] On the morning of April 6, 2005, Revell sent a text message to Rempel that “brown guy” wanted “one”.
[123] Blackberry messages and surveillance observations reflect Rempel’s efforts to locate a kilogram of cocaine for “brown guy”. The observations include Rempel carrying a shovel in the car lot where the police later found caches of cocaine buried in the ground, and going into the back seat of the Intrepid where the police later found the hidden compartment containing five kilograms of cocaine.
[124] Rempel then walked back into the office at the car lot, concealing something that I infer was cocaine under his left arm.
[125] Bassi arrived shortly afterward in the same red Honda he was driving when he met Revell at the gas station the day before. He carried an empty duffel bag and after a brief stop in the office, left with the same duffel bag that was now full. He drove off and the police followed him.
[126] After Bassi left the car lot, Rempel sent a text message to Revell that “brown guy” had just left.
[127] The police arrested Bassi a short time later in his red Honda. The police recovered from him the duffel bag containing the one kilogram of cocaine he had obviously just obtained at the car lot. The police maintained continuity of observation of Bassi from the time he came out of the car lot office until his arrest when they seized the cocaine.
[128] Rempel was inside the car lot building when the transaction with Bassi occurred, but he had retrieved the cocaine from the Intrepid right before Bassi came and got it. Revell was not present then, but the observations on April 5, the content of the Blackberry messages, combined with the surveillance of Rempel leaves no doubt that Revell and Rempel are guilty on count three.
[129] The Crown has proved beyond a reasonable doubt that Revell and Rempel are guilty of the trafficking offence in count three.
COUNT ONE: GILES
[130] I turn now to the case against Giles on count one.
[131] Giles is the only one of the three accused who was a member of the EEHA. On the substantive charge of possession in count one, I find the evidence as a whole is the weakest against Giles. The issue is whether it is sufficient to prove beyond a reasonable doubt that Giles is guilty on count one.
[132] The Crown summarized its case against Giles in its argument at paras. 206 - 210. The Crown argues that Giles’ involvement in the offence in count one can only be understood the context of his full patch membership in the EEHA, his role in expanding the EEHA into Kelowna, and his relationship with Revell. It submits that viewed in this context, the following evidence demonstrates Giles’ connection to the cocaine the police seized between April 3 and April 7, 2005:
1. Giles would not deal with anyone unless it advanced his own interests or those of the Club. Giles would not allow people to “ride on the coattails” of the Hells Angels unless it benefited or advanced the interests of the Club.
2. Giles had a close relationship with Revell, frequently meeting with him and giving him direction.
3. Although Giles and Revell frequently spoke on the phone, they were clearly reluctant to discuss anything of substance over the telephone. On one occasion Giles told Revell “that’s enough on the fuckin’ telephone”. On many other occasions, the two made arrangements to meet in parking lots, behind houses, or in other places where they could have face to face discussions, although they were clearly in a position to speak on the phone if they had chosen to do so.
4. Giles clearly viewed Revell as a money maker. In a conversation with his girlfriend, Giles said he was prepared to foot the cost for Revell’s travel to Calgary, pointing out that Revell had made him $30,000 in the past few months.
5. In the midst of the chaos associated with the police enforcement action regarding the storage locker and the abandoned Intrepid, Revell took time to meet with Giles.
6. On the evening of April 6, 2005, while the police searched Revell’s car lot, Verna met with Giles, who then phoned Revell’s girlfriend. Giles later confirmed with Revell’s girlfriend that he had been told about the search. Revell’s girlfriend reported that Revell was in police custody. Giles expressed no surprise at this, simply confirming with Revell’s girlfriend that she had spoken with a lawyer, and warning her that their phones were likely tapped.
7. Within several hours of his release from custody, Revell phoned Giles and arranged to meet him.
8. In early May 2005, Revell and Giles had a conversation in which they discussed, in hushed tones, the seizure of the cocaine and the financial implications for both of them. Revell told Giles that the cost was $106,000. Revell specifically stated that they had lost “eight”, which was a clear reference to the eight kilograms of cocaine seized by the police. Giles expressed no surprise at this. In discussing how much money was owed and how the money could be made back, Giles used the term “we”, referring to himself and Revell together.
9. Later in May 2005, Giles had a conversation with a third party, Hilts, in which Hilts asked how many “units” they “normally” kept in “the car”, to which Giles responded “seven”. From this comment and from other aspects of the conversation, it is evident that the discussion related to the Intrepid with the hidden compartment from which the five kilograms of cocaine had been seized. Giles explained that he told “him”, i.e. Revell, not to lie “from the start”.
[133] The Crown argues that “there is a cogent body of evidence from which it can be readily inferred that Giles had knowledge of the cocaine”. It submits that in light of the conversation between Giles and Hilts, “there is no other rational conclusion from the whole of the evidence but that Giles had knowledge of the vehicle, the hidden compartment, the cocaine, and its value”.
[134] The Crown submits it is not realistic to infer, on the whole of the evidence, that Giles only had knowledge of the cocaine after the fact because Giles frequently spoke to Revell in the months leading up to the cocaine seizure. Giles commented in February that Revell had made him $30,000 in the last few months.
[135] The Crown argues Giles’ control of the cocaine is established because Giles, as a full patch member of the Hells Angels, directed Revell and exercised authority over Revell’s drug trafficking activities. The Crown says this is a classic case of constructive possession. Giles’ involvement explains Revell reporting to Giles as events unfolded, their contact the day after Revell was arrested, and why Giles told Hilts that he warned Revell, “from the beginning” not to lie in his dealings with Giles.
[136] In the alternative, the Crown submits that the above evidence proves beyond a reasonable doubt that Giles was a party to the offence of possession. The Crown says Giles’ comment to Revell about how much “we” owe, and that “we’ll get back up” “are clear evidence of a common design in which Giles and Revell were working together to sell the cocaine”. Viewed in the context of the evidence as whole, it argues the Court can draw no other rational inference from these statements.
[137] At trial, the Crown led extensive evidence about the nature and activities of the EEHA to prove that it is a criminal organization which is an essential element of the offence in count two. This evidence included the testimony of a police agent, the expert evidence of two police officers, and many intercepted private communications, including two intercepts of Giles speaking to other members at “church” meetings in Kelowna. The Crown relies on this “criminal organization” evidence to bolster its case against Giles on the possession offence in count one. The Crown urges me to look at the evidence which specifically relates to Giles’ alleged involvement in count one through the prism of the criminal organization evidence. It argues that, viewed in the context of the criminal organization evidence, the evidence against Giles that actually relates to the possession offence proves Giles’ guilt beyond a reasonable doubt.
[138] To avoid mistakenly considering the evidence out of context and to avoid “over-intellectualizing” it, the Crown urges me not to parse and isolate individual pieces of evidence. Instead, the Crown cautions that it is critical to its case that I examine it all together and consider it cumulatively in deciding whether the totality of the evidence proves beyond a reasonable doubt that Giles is guilty on count one.
[139] In order to prove, beyond a reasonable doubt, that Giles possessed the cocaine, the Crown must prove each of the essential elements of possession. If possession is proved, the defence concedes that trafficking is established.
[140] I have considered all the evidence, and I am left with a reasonable doubt about Giles’ guilt on the cocaine offence in count one. I disagree with Crown’s submission that the audio intercepts of May 2, exhibit J, tab 98 in the trial (“intercept 98”) and May 24, exhibit J, tab 104 in the trial (“intercept 104”) assist in proving that Giles had knowledge and control of the cocaine in question and therefore specifically link him to the offence in count one. I do not find that there is evidence to support the proposition that Giles directed Revell.
[141] The Crown relies on expert evidence tendered about the “territoriality” of the Hells Angels and their tendency to operate in a cell structure that provides insulation from law enforcement together with evidence of Giles’ long-standing membership in the Hells Angels and his personal identification with and loyalty to the organization. It also relies on audio intercepts at the EEHA Kelowna clubhouse on January 24 (ex. I, tab 31) (“intercept 31”) and June 14 (ex. J, tab 109) (“intercept 109”) to support its case against Giles on count one.
[142] The Crown argues Giles’ own statements in those intercepts disclose an implicit motive or agenda on his part, when viewed with the experts’ opinion on the territoriality characteristic of the Hells Angels, to expand the territory of the EEHA into the Kelowna area. I do not agree with Crown’s interpretation of the meaning of Giles’ comments. Nor can I conclude that the expert evidence or Giles’ comments to other members is evidence that Giles operated in a cell with Revell and Rempel. I do not find that this evidence supports the Crown’s position that Giles had knowledge and control over the cocaine.
[143] There is no evidence that Giles ever handled the cocaine in question, and little evidence as to joint or constructive possession on his part, or that he was a party to the offence.
[144] In the reasons that follow, I consider the relevant law, address the significant evidence, and discuss my findings.
The Law of Possession
[145] I reviewed the law of possession above, in relation to counts one and three against Revell and Rempel. In order to prove possession, the Crown must prove all the essential elements of the offence beyond a reasonable doubt. The elements of possession are knowledge of the nature of the prohibited substance and a measure of control over it.
Circumstantial Evidence
[146] The Crown’s case against Giles on count one is based on circumstantial evidence. During argument, the Crown repeatedly admonished against “over-intellectualizing,” or considering individual pieces of the evidence in isolation from the totality of the evidence. I am alive to the principles regarding circumstantial evidence and the drawing of inferences, reviewed below.
[147] In R. v. Cooper, [1978] 1 S.C.R. 860 at 881, Ritchie J., writing for the majority, commented about instructing a jury in a case where all or most of the evidence is circumstantial:
It is enough if it is made plain to the members of the jury that before basing a verdict of guilty on circumstantial evidence they must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts.
[148] In R. v. Fleet (1998), 120 C.C.C. (3d) 457 at 464-465 (Ont. C.A.) the court considered how to instruct a jury in cases of circumstantial evidence. It found that the object of both judgments in Cooper was “the eradication of any formulaic approach to such cases.” The trial judge may charge the jury any of the following ways:
1. with the traditional language of proof beyond a reasonable doubt;
2. with the traditional language of proof beyond a reasonable doubt and pointing out the other inferences the defence says the jury should draw from the evidence and the necessity to acquit the accused if any of those inferences raises a reasonable doubt; or
3. that it must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts.
[149] The court in Fleet went on to find that “the essential requirement is to impress upon the jury the need to find guilt proven beyond a reasonable doubt and to make plain to them the manner in which such a doubt can arise in the context of a case of proof of identity by circumstantial evidence.”
[150] Where evidence is circumstantial, it is necessary to distinguish between drawing inferences and impermissible speculation. This distinction is best articulated in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 at 209 (Ont. C.A.) where Doherty J.A. for the court, held:
A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation.
[151] In R. v. Munoz (2006), 205 C.C.C. (3d) 70 at 84 (Ont. S.C.J.) Ducharme J. discussed the importance of distinguishing between inferences and speculation. He commented:
The inference must be one that can be reasonably and logically drawn and, even where difficult; it cannot depend on speculation or conjecture, rather than evidence, to bridge any inferential gaps.
[152] The court in R. v. Kyd (1957), 120 C.C.C. 178 at 183 (Alta. S.C. App. Div.) noted that a trier of fact must exercise caution when drawing inferences in criminal cases:
One must be most careful in drawing an inference in a criminal case. It must not be a mere guess or suspicion. A man is not to be convicted on a guess, however shrewd that guess may be.
[153] In R. v. To (1993), 16 B.C.A.C. 223 (B.C.C.A.), the court considered whether it could be inferred that an accused, charged with possession for the purpose of trafficking, had the requisite knowledge for possession. In finding that knowledge was the only reasonable inference and was proved beyond a reasonable doubt, the court held at para. 41:
It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferences consistent with guilt, but it does not demand certainty. I do not think it could properly be said that an inference of knowledge in this case would be unreasonable or unsupported by the evidence.
[154] I am mindful of the comments of our Court of Appeal in R. v. J. (G.L.), [1997] B.C.J. No. 2994 (B.C.C.A.) (QL) at para. 29 on the following principle:
[E]ach individual circumstance cannot be weighed in isolation to see whether or not it supports the guilt of the accused but rather all of the circumstances taken together must be considered to determine whether or not the evidence, as a whole, was reasonably capable of supporting the trial judge's conclusion.
[155] Thus, the trier of fact must consider whether, based on the whole of the evidence, the Crown has proved the guilt of the accused beyond a reasonable doubt.
Discussion
[156] In its case against Giles, the Crown again relies on the evidence review set out in its written argument. As in the review of the case against Revell and Rempel, there are passages where the Crown has included not just a summary of the evidence, but has also drawn inferences it suggests are open to me on the evidence. I find the Crown has overreached in its interpretation of some of the evidence. While I agree with most of the Crown’s evidence review and inferences, I do not agree with all of them.
[157] The most logical way of addressing the evidence and the Crown’s position is to progress through the relevant parts of the Crown’s evidence review because it contains the important features of the case against Giles, including the inferences the Crown suggests I draw. I will discuss the flaws I find in those inferences, and the weaknesses in the reasoning on which Crown’s case against Giles depends.
Knowledge of the Cocaine
[158] In order to prove possession, the Crown must prove beyond a reasonable doubt that Giles had knowledge of the cocaine that is the subject matter of count one.
[159] The evidence that the Crown relies on to prove Giles had knowledge of the cocaine is circumstantial. It argues that Giles’ relationship with Revell, their contact with each other around the time of Revell’s arrest, as well as intercepts 98 and 104 prove, when viewed with the totality of the evidence, that Giles had knowledge of the cocaine.
[160] In an intercept on February 5, Giles told his girlfriend, Pamela Watts, about a trip that “Dave” (Revell) would be taking to Calgary. The next day, Giles dropped off Revell and Rempel at the Kelowna Airport where the two took a flight to Calgary. This may explain the intercept of February 14 in which Watts complained about Revell’s travel expense on her credit card. Giles explained that “he went there to make money for me”, and “he made me thirty grand in the last few months”. It is not clear what Revell did to make money for Giles.
[161] Those two intercepts show a connection between Giles and Revell through the discussion of Revell making money for Giles. While it may appear suspicious, there is no evidence the discussion related to the possession offence in count one. The ride to the airport and the comment about Revell making money for Giles occurred about two months before the allegation in count one arose.
[162] Just after noon on April 5, Giles phoned Revell and asked if he had a fax machine. Shortly after, Giles arrived at Revell’s Reflex Gym on Brown Road holding some papers. At about 12:56 p.m., Giles and Revell were standing together in the parking lot of the Reflex Gym. At 1:10 p.m., Giles was at the car lot on Ross Road having his truck washed. This was the same day that Revell was seen in the Chevron parking lot meeting briefly with Bassi and shaking his hand. Giles’ appearance was not connected to that meeting, and Giles is not charged in count three. Again, this evidence shows a connection between Giles and Revell, but not between Giles and the cocaine in question.
[163] On April 6 between 3:50 p.m. and 4:00 p.m., Revell and Giles were observed speaking to each other in the parking lot of Revell’s Reflex Gym. At 4:00 p.m., both men drove away in their respective vehicles. By this time, Revell had learned from DeMattos that the police were at Preston Road and interested in the Intrepid and Revell’s motor home. Revell and Rempel were planning a story to divert the police attention away from the Intrepid.
[164] The Crown submits the timing and location of this meeting of Giles and Revell in the gym parking lot discloses Giles’ involvement in the offence in count one. Revell drove to 3230 Preston Road right after this meeting and aggressively confronted the police. He was arrested shortly thereafter.
[165] The timing of the meeting between Giles and Revell makes it appear incriminating.
[166] The Crown says this meeting was more than a coincidence as it occurred when Revell and Rempel were in crisis, realizing the police had entered the storage locker and were at Preston Road. That may be true, but there is no evidence about what Giles and Revell discussed when they met. The question is, therefore, whether when considered with the whole of the evidence, there is an inference that they were in fact discussing the crisis in which Revell and Rempel found themselves, and if so, whether that inference could justify a further inference, viewed again in the context of the evidence as a whole, that Giles had knowledge of the cocaine in count one. I do not think so.
[167] At 7:56 p.m. on April 6, Carlo Verna, a member of the EEHA, called Giles and said he was going to “swing by” Giles’ home. It is evident from a subsequent intercepted communication between Giles and Revell’s girlfriend Lori Bartkowski that Verna did in fact “swing by” to advise Giles that Revell’s car lot and gym had been searched by the police.
[168] Next, at 8:36 p.m., Giles left a message for Lori Bartkowski to phone him back. Bartkowski returned the call at 11:04 p.m., indicating that “Dave” is “visiting the boys in blue”. Giles alluded to Verna’s visit in which Giles was told that the police had searched Revell’s car lot and gym. Giles confirmed that Bartkowski had spoken to a lawyer. Giles warned Bartkowski that their phones were probably all “wired”, “yours, mine, all of them” but that he did not care. Giles told Bartkowski to let him know if and when Revell was released. I observe that through January to July, Giles was always cautious about the police intercepting him. He was keenly aware of their interest in him. This suggests that Giles and Revell were involved in some sort of illegal activity, but not its nature. Nor is there any link to the offence in count one.
[169] At 8:05 a.m. on April 7 the police released Revell from custody. Within several hours, Revell tried to reach Giles. At 11:12 a.m., Revell phoned Giles’ girlfriend Pamela Watt looking for Giles, whom she said was out hiking. Revell immediately phoned Giles on his cell phone and arranged to meet him at his truck after he finished his hike. There is no evidence about whether Giles and Revell met, and if so, what they spoke of.
[170] In a telephone conversation at 12:34 p.m. on April 10, Revell told Giles that things were “absolutely fucking horrible”. Revell said he would come by to discuss it. At 12:47 p.m., a conversation between Giles and Revell was intercepted via an audio probe at Giles’ house.
[171] Giles and Revell continued to arrange meetings and have discussions during the remainder of April and through July.
[172] The Crown’s summary of the evidence is accurate to this point. However, there are problems with the Crown’s position regarding its review of intercept 98. The Crown describes that intercept as follows:
In an audio intercept on May 2, 2005 at 6:13 p.m., Giles and Revell had a lengthy conversation that frequently changed topics. In one exchange, the two men discussed the fallout from the drug seizure. Revell told Giles that he “paid a hundred and six thousand dollars”. Giles responded, “Well, what do we owe them?” Revell said “still owe em one forty”. Giles asked Revell why, and Revell replied that he had “lost eight”. Giles said, “thought ya said he was going to forget costs”. Revell clarified by saying, “No, he said costs of the eight, is what he told me”. Giles replied, “We’ll get back up”.
[173] The Crown has included in the paragraph above the key passages on which it relies. But the first problem with the Crown’s interpretation of intercept 98 is that Giles did not say, “We’ll get back up”. Instead, I agree with the defence that he said, “He’ll come back around”. The Crown depends on its erroneous opinion of what Giles said here, together with other evidence, to support its theory that he had knowledge and control of the cocaine.
[174] The Crown concludes from the passage above that “in one exchange, the two men discussed the fallout from the drug seizure”. That conclusion is questionable, particularly with the difference between what Giles actually said, and the Crown’s mistaken view of it.
[175] The controversial part of the conversation takes about a page of the transcript. I have listened to the audio recording repeatedly, with and without the transcript. I hear different words than those recorded in the transcript. The difference in the words changes the significance of the intercept in my opinion.
[176] This audio intercept is very difficult to hear because of the background noise, static and fuzziness. It starts with Revell arriving at Giles’ home where Giles and his girlfriend are watching a film called “Meet the Fockers”.
[177] The volume is turned up so the sound is loud. There is a lot of fuzz in the background and loud static at certain points. It is very difficult to discern the words Giles, Revell and Pamela Watts spoke over the noise. There are many indiscernible or inaudible passages that are marked on the transcript by three dots to show words are missing. Several of these gaps are at critical points in the conversation.
[178] For example, I cannot tell whether the construction context Revell sets when he comments about his office being “all framed in”, and hiring “two more guys” continues into Revell’s reference to, “Fuckin bullshit. Paid a hundred and, hundred and six thousand dollars”, and whether Giles is responding to that when he says, “Well what do we owe ‘em?” Then Revell says, “Still owe ’em one forty” because “Lost eight”.
[179] Too many words that follow are inaudible, and when Revell says “But he’s gonna be down for awhile now”, he yawns loudly. It is hard to hear what Giles says. In the end, I do find Giles says, “He’ll come back around”, instead of, “We’ll get back up”. That correction in this intercept, together with the correction in intercept 104 that follows, to the words Giles spoke himself demonstrates how unsafe it is to rely on poor quality recordings of intercepts for which the context is not clear. Inferences must be solidly based on evidence, and not speculation or guesswork. Here, the context is not sufficiently discernible to ascribe an accurate meaning to the words.
[180] The Crown adduced evidence at trial that the cost of a kilogram of cocaine was $24,600. Based on $24,600 per kilogram, the loss of eight kilograms of cocaine would have been $196,800 instead of the $106,000 and the $140,000 ($246,000 total) Revell mentioned. Even if the one kilogram that was trafficked to Bassi was included, making the total loss $221,400, the figure still does not match the total amount Revell referred to, according to the expert’s number. It is also a mystery why Revell referred to two different amounts of money. The Crown’s interpretation is based on uncertain evidence.
[181] The Crown made another troubling comment that Giles and Revell “discussed in hushed tones” the seizure of the cocaine and the financial implications for both of them. They appeared to have changed their location in the house, and moved away from the television and Ms. Watts. I agree with the defence that there are no particularly “hushed” tones. The voices are low, and the speakers mumble and yawn. I do not know where in the room the audio was to pick up their voices.
[182] The Crown also argues at one point that Giles expressed no surprise at Revell’s statement that they had lost “eight” which the Crown says was a “clear reference to the eight kilos of cocaine seized by the police”. But one cannot tell whether he was surprised or not. We do not have enough information on which to base that statement. The Crown relies on a number of questionable inferences that in my opinion are equivocal on the evidence and form an unstable foundation for a conviction.
[183] Even with the change in Giles’ words to, “He’ll come back around”, the Crown says the call shows Giles’ involvement in count one because it proves his knowledge and control over the cocaine, jointly with Revell. Otherwise, says the Crown, Giles would not assume responsibility or involvement in a debt of that size; Giles’ use of the pronoun “we” when he asks Revell, “How much do we owe?” demonstrates his joint responsibility for the cocaine.
[184] I am not prepared to find, based on the poor quality of the recording and number of inaudible words, the uncertain context of the passage, and the lapse of time since the cocaine seizure, that the two men were discussing the loss of the eight kilograms of cocaine on April 6. They may have been, but I am not sure of it. I am unable to assign much weight to this evidence because of its poor quality and uncertain context.
[185] Even when Giles’ question to Revell, “What do ‘we’ owe?” is considered with intercepts 104, 31 and 109, the pertinent expert evidence, and other evidence of his contact and relationship with Revell, there is not a sufficient basis to convict Giles on count one. Other problems with the Crown’s interpretation are in Mr. Fowler’s “Closing Submission” (ex. CC) and I agree with them. It is not necessary to reproduce them all here.
[186] I do not accept the Crown’s submission that there is a “cogent body of evidence” from which it can be “readily inferred” that Giles had knowledge and control over the cocaine in question, even when intercept 98 is considered with intercept 104 between Giles and Hilts. I turn to it now.
[187] The Crown says the following in its evidence review of this call:
In the intercept of May 24, (#104), Giles asks a person named Mark Hilts if he has seen “Baldy” (referring to Revell). Hilts replies that he had spoken with him briefly and he was trying to keep his distance from him. Hilts then told Giles about a conversation he had with the owner of the “property” where “the car” was found (a reference to DeMattos). Hilts said the “cops dragged him in” and he was livid.
[188] At this point, the Crown quotes the transcript of the call:
Hilts asked Giles “how many units do you usually put in the car” and Giles replied “seven”. Hilts told Giles that when questioning DeMattos, the police said there were only four units in the car. Hilts asked Giles why the police would lie about how many “units” were in the car. Giles said, “I think it is time for me to have a chat with him” (a reference to Revell). Giles added, “I told him in the beginning” not to lie to him. Hilts went on to discuss how much is owed, quoting the figure $31,000. Giles said, “He lied to me”.
[189] The Crown interprets Giles’ last comments to mean that Giles had told Revell not to lie to him.
[190] Again, I cannot agree with the Crown’s interpretation of this call. First, I observe that it is common ground and find as fact that Hilts was telling Giles that the police had “dragged in” DaMattos, on whose property they found the Intrepid, and they were talking about the cocaine seized on April 6.
[191] However, once again, the transcript does not accurately reflect the words Hilts spoke when he asked Giles an important question about the number of units in the car. In fact, the Crown eventually agreed that the question Hilts asked was not, “…how many units you say, how many, how many units do you usually put in the car” as the transcript says, and on which the Crown based its written submission. Instead, as the defence suggests, and I agree, Hilts said, “…how many units you say, how many, how many units do you think was in the car?”
[192] This difference between the words in the transcript and the words that Giles spoke has a significant effect on the strength of the Crown’s position that the intercept shows Giles had knowledge over the cocaine in question. The difference in the wording weakens the incriminating effect of that evidence.
[193] In addition, when asked how many units he thought were in the car, Giles replied “seven”. In fact, five kilograms of cocaine were seized. I note that Giles’ response about the number of kilograms seized does not support the Crown’s theory that Giles had knowledge of the cocaine and was directing Revell in the commission of the offence. If so, he would have known how much cocaine was seized.
[194] The change in the wording of Hilts’ question, coupled with Giles’ incorrect answer of “seven,” changes the available inference as to the meaning of the call. The evidence does not support the Crown’s position that Giles knew about the cocaine in the car and had a degree of control over it at the time of the offence when there were five kilograms in the Intrepid. The evidence suggests that Giles may have obtained his erroneous knowledge about the number of units in the car after the fact. That is, Giles could have learned about the offence and amount of cocaine involved, for example, from Carlo Verna who spoke to Giles after the arrests, or from Revell after his release from custody on April 6. The evidence is so uncertain and limited that any conclusion about how much Giles knew and where or when he got his knowledge, amounts to impermissible speculation.
[195] The Crown argues that it is not a realistic inference, on the whole of the evidence, to conclude Giles only had knowledge of the cocaine after the fact, because Giles frequently met and spoke with Revell in the months leading up to the cocaine seizure. It argues that the relationship between Revell and Giles existed well before the events of April 6. They point to Giles’ comment in February that Revell made him $30,000 as evidence of this.
[196] However, I disagree that the only rational inference is that Giles had knowledge of the cocaine. At best, the Crown has proven after the fact knowledge. There is insufficient evidence to establish that Giles had knowledge of the cocaine at the time the offence was committed. It is a fundamental principle of criminal law that the actus reus and mens rea of an offence overlap or be contemporaneous. This is not the case here. In my opinion, based on all the evidence before me, the Crown has not proven that Giles had knowledge of the cocaine beyond a reasonable doubt.
[197] However, even if Giles knew what Revell was doing, how the Intrepid was used, and how much cocaine he possessed, there remains no evidence that Giles had any control over the cocaine, or that he aided or abetted Revell or anyone else in their possession of it.
Control of the Cocaine
[198] It is unnecessary to discuss whether Giles had control of cocaine in light of my finding that the Crown has not proved knowledge of the cocaine beyond a reasonable doubt. However, the evidence that Giles had some measure of control over the cocaine is particularly sparse and if I am wrong about whether he had knowledge, the issue may be disposed of this way.
[199] I turn now to the evidence that Crown relies on to prove that Giles had control of the cocaine.
[200] The Crown argues that Giles directed Revell and exercised authority over him. Its position is that as a full patch member of the EEHA, Giles exerted control over Revell, including the handling of the cocaine. The Crown says this is a classic case of constructive possession. It argues the contact between Giles and Revell at the time of Revell’s arrest, and Giles’ comments to Hilts that he had told Revell not to lie to him, are evidence that Giles had a measure of control over the cocaine.
[201] The Crown relies on the comment Giles made to his girlfriend in February that Revell had made him $30,000 in the last few months as evidence that Giles had control over the cocaine. Again, I note this comment was made two months before the commission of the offence charged in count one, and refers to money made before then. I do not see this comment as evidence of Giles “supervising” or “directing” Revell in accordance with the Crown’s theory. And I do not see it as evidence of control over the eight kilograms of cocaine that is the subject matter of count one.
[202] I do not infer that the meeting between Giles and Revell in the gym parking lot on April 6 is an example of Giles “supervising” or “directing” Revell’s activity, in accordance with the Crown’s position that Giles and Revell were operating in a cell structure. Giles and Revell routinely spoke on the phone to arrange meetings, and there is no evidence that this meeting was pre-arranged. I can not infer anything incriminating from this meeting when there is no substantial evidence, other than the Crown’s questionable interpretation of certain intercepts discussed below, that links Giles to the cocaine.
[203] Regarding intercept 104 on May 24, the Crown argues that Giles told Hilts that he told Revell not to lie to him. There is discussion between Giles and Hilts that appears to be about whether Revell lied or not, and Hilts’ comment, “…I jus’go, you still owe me the money. It’s not a big shop but you still owe me the dough. You’re down to thirty-one now” and Giles responds “Thirty-one hundred?” Hilts says, “thousand”. Giles says, “He lied to me”. This is confusing, and seems to relate to a “shop” of some sort, perhaps one of Revell’s businesses. I cannot tell what they are talking about here.
[204] Also, I agree with Mr. Fowler, counsel for Giles, that there is no clear indication from the context as to who the “him” refers to in Giles’ comment, “But I told him in the beginning you lie to me.” This is confusing because there is no indication as to who “him” is, as several people are mentioned. I can not make sense of it.
[205] The Crown suggests Giles saying he told Revell not to lie to him supports their theory that Giles directed Revell and had a measure of control over the cocaine. However, I am unable to find that Giles did in fact make that statement to Hilts.
[206] Giles did not give Revell direction or “clearly” view him as a subordinate. I do not see evidence that Revell reported frequently to Giles before or after significant events. This is speculation, yet the Crown depends on it to show Giles had control over the cocaine.
[207] The intercepts instead reflect a fairly balanced relationship based on friendship and some business dealings that the evidence does not explain. They may involve illegal activity, based on their reluctance to speak on the telephone. But that is not tied specifically to the offence in count one.
[208] There is substantial evidence that Giles and Revell socialized together, including with their respective families (tabs 8, 10, 21, 26), made social plans, discussed their business problems (tab 43), did mutual favours for one another (including the fax use by Giles, tab 84, and surveillance (tabs 47, 47, 49)). There is no evidence that Giles directed Revell. There is no evidence that Giles directed Revell and exerted control over the cocaine through Revell.
[209] In addition to the evidence that relates to the offence charged in count one, the Crown relies on evidence tendered at trial to prove that the EEHA is a criminal organization, to prove that Giles is guilty of the possession offence in count one.
[210] The Crown relies on clubhouse intercepts 31 and 109 as proof of Giles’ guilt on count one. The Crown contends that I must examine the conduct of the three accused, particularly the conduct of Giles, in light of his position as a full patch member of the Hells Angels. It submits that I should pay particular attention to his statement at the Kelowna clubhouse on June 14, which the Crown says reflects his identity as a “quintessential” Hells Angel.
[211] I will review the content of intercept 109 first.
[212] On the evening of June 14, 2005, members of the EEHA in Kelowna had a “church” meeting (the name of their weekly meetings) in the Kelowna clubhouse. The police intercepted a conversation between Giles, Verna and others. In it, Giles made the following comments that the Crown submits represent “his views toward the club and how they motivate and guide every aspect of his dealings with other people”:
There isn’t one fuckin’ citizen out there, not one that I socialize with, talk to or have anything to do with, (clattering sounds) that it isn’t planted in my head, what can I get from him for here. What’s he gonna do for me that’s gonna benefit this House. Somewhere down the line. Is he gonna come here and spend money? Is he gonna use my fuckin’ name and if he is, in any way, shape or form, ‘cause it’s only by pretext (big bang, believed to be fist on table), I want somethin’ on the fuckin’ table. And I wanna get, I want a donation, I want somethin’. And if I ain’t gettin’ it, then leave…And he ain’t gonna get the fuckin’ friendship here, and…, and socialize and chase pussy out of my fuckin’ room. Period. And that’s how I feel everybody should think. “Cause this ain’t about what it can do for you, it’s supposed to be what you can do for the Club. That’s what it’s supposed to be…
[213] I have extended the quote that is in the Crown’s evidence review because it is important for context and the reasons why I disagree with the opinion of the expert, Staff Sergeant Lemieux, about what the above passage and intercept 109 means, as a whole.
…..
Every friend that I meet, that I get something from or wants something from me, ‘cause nine times outta ten, if they’re gonna be your friend, they probably want something sooner or later. Cause of who you are.
[214] In comments with the same theme, to his girlfriend, Pamela Watts, the day after the church meeting, Giles said he gave the other members a half hour “spiel” about what it takes to be a Hells Angels Charter. Giles explained his views to Watts, saying, “they all want to ride off your ass,” and, “in the end, he’s gonna want somethin’ from me, ‘cause I am a Hells Angel. Not because I’m Dave Giles”.
[215] Intercept 31 occurred months earlier on January 24, again at a “church” meeting of the EEHA members at the Kelowna clubhouse where Giles discussed the idea of setting up a new Hells Angels Charter in Kelowna. As the Crown set out in its evidence review, Giles’ statements included the following:
1. Giles said he intends to speak about the Charter at the next Church meeting of the Hells Angels EEHA Chapter in Vancouver.
2. Giles proposed that the Kelowna Charter will be an extension of the EEHA and that they all have keys for both clubhouses. Giles explains “we’re not gonna leave the East End, we’re gonna separate from the East End with the same motto, with the same rules, with the same functions in mind”.
3. Giles went on to stress the importance of the Hells Angels name and reputation, and that the club should carefully control how and when these things are used. No one should benefit from the notoriety of the Hells Angels unless they are authorized to do so. They cannot permit anyone to ride on their “coattails”.
4. Giles elaborated that “charity begins at home” and that members must not allow friends to use the club name for their own benefit.
5. Giles explained that the Kelowna Charter be attached to the EEHA, and that they would have to secure the agreement of other Charters, namely Nanaimo, Haney, Vancouver, Mission and White Rock.
[216] This latter comment, according to the Crown, demonstrates how the various Hells Angels Charters in British Columbia divide the province up into territories or spheres of influence over which they will exert control, and is relevant to what the Crown interprets as Giles’ motive to establish a Kelowna Charter.
[217] In addition to the intercepts, the Crown led expert evidence from Inspector Richards and Staff Sergeant Lemieux that the Hells Angels is a criminal organization within the definition of the Criminal Code.
[218] Staff Sergeant Lemieux gave evidence that the Hells Angels often operate in cells headed by a senior member of the organization, and use lower level functionaries to engage in the actual commission of crimes at their direction. He testified that this allows high ranking members of the organization to insulate themselves from prosecution. The size of these “cells” will vary, but generally will not exceed five or ten people in total.
[219] Staff Sergeant Lemieux said the notion of conducting criminal activity in cells is tied to the concept of territoriality. The Hells Angels will move into a particular area and “take control” of it, pressuring anyone involved in particular criminal activity, for example drug trafficking, into either buying drugs from the Hells Angels, or giving the Hells Angels a percentage of their business.
[220] The Crown says it is necessary to recognize that in 2005, members of the EEHA wanted to set up a new charter in Kelowna to “expand their territory and sphere of influence” in order to appreciate the significance of the evidence in this case. It argues that Giles, a long term, full patch member of the Hells Angels, was “intent on exerting territorial control of the Kelowna area”. The Crown says Giles “directed or supervised the activities of Hells Angels ‘associates’ in Kelowna, including Revell”.
[221] The Crown relies on the intercepts from the “church” meetings to support their position that Giles and other members of the EEHA in Kelowna wanted a Hells Angels Charter in Kelowna to exercise control and influence over criminal activity in the area, particularly drug trafficking. However, I see no support for their theory in anything Giles said at the clubhouse meetings as reflected in intercepts 31 and 109. Also, nothing in these speeches links Giles to the offence in count one.
[222] Of importance to the Crown’s case against Giles, Staff Sergeant Lemieux’s opinion was that the manner of operating in a cell, and the characteristic of territoriality were evident in the intercepted communications in this case. He specifically referred to the above intercepts in which Giles discussed setting up a chapter in Kelowna. The Crown relies in particular on the following passage from Staff Sergeant Lemieux’s evidence:
I’ve seen and I’ve read transcripts and I’ve listened to conversations here in project E Pandora, especially the conversation in the clubhouse in Kelowna where Mr. Giles is talking about just that fact, where he is mentioning that the people, the friends around will not ride their coattails. In other words, will not be able to conduct their criminal activity without giving a percentage of their revenue to the Hells Angels.
[223] The Crown relies also on Staff Sergeant Lemieux’s specific opinion that, “It all stems from the power of the patch”. The “organization moves into a certain territory. They take control of that territory”. In his opinion, Giles’ warning against allowing people to ride on the coattails of the Hells Angels “demonstrates that perfectly”.
[224] I do not accept the expert’s opinion that the notion of operating in cells and the concept of territoriality arise on the evidence in this case. I do not find support for it in the clubhouse intercepts. And the intercepts fail to disclose evidence that Giles, Revell, and Rempel were operating in a cell at Giles’ direction.
[225] That conclusion, and the conclusion that Giles’ agenda or motive for talking about having a charter in Kelowna was to take over the drug trafficking or other criminal activity in the area is based on an assumption that because Giles is a member of the Hells Angels, he is also a drug trafficker. Then it follows that, because he commented that he only has dealings with non-members based on what they can do “for me, for here,” his relationship with Revell must have been based only on what Revell could do for Giles for the club. Therefore, since Revell could engage in drug trafficking to make money for Giles, and Revell was involved in this cocaine offence, then Giles must also have been.
[226] Staff Sergeant Lemieux has many years of experience of investigating the Hells Angels, particularly in eastern Canada. He has obtained his experience and knowledge from a variety of sources, including from major investigations and the Hells Angels themselves. However, I do not agree with his, or the Crown’s, interpretation of Giles’ statements in the clubhouse intercepts 109 and 31. Staff Sergeant Lemieux has formed an opinion that is inconsistent with the context of Giles’ statements, in my view.
[227] I have considered all of the evidence in its totality, and it does not prove beyond a reasonable doubt that Giles had a measure of control over the cocaine.
[228] In summary, the Crown’s interpretation of the evidence is strained. The actual evidence against Giles which relates to the possession offence is weak and the intercepted discussions the Crown says relate to the offence are unreliable. The Crown has urged the Court to view Giles’ actions in light of the expert evidence and the clubhouse intercepts to infer that Giles operated in a cell with Revell and Rempel, directing them in the commission of the possession offence.
[229] The Crown has over interpreted Giles’ statements and used the expert evidence to see an agenda that has no basis in the evidence. The totality of the evidence fails to prove the guilt of Giles beyond a reasonable doubt. Cumulatively considered, the gaps in the evidence are fatal to the Crown’s case. They cannot be filled by speculation, or “shrewd guesses”. I agree with counsel for Giles that the evidence against Giles is sparse, and no amount of context or theory fitting can fill the gaps in the Crown’s case.
[230] In this case, on the evidence, whatever knowledge Giles had after Revell and Rempel committed the offence is insufficient to prove he had knowledge and control, and therefore possession of the cocaine at the time the offence was committed.
[231] There is no proof that Giles was a party to the offence Revell and Rempel committed. There is no evidence that Giles did anything to assist or encourage them to possess the cocaine.
[232] It follows that I have a reasonable doubt about the guilt of Giles and find him not guilty on count one.
COUNT TWO: GILES, REVELL AND REMPEL
[233] Giles, Revell and Rempel are charged in count two as follows:
Count 2: Between April 3, 2005 and April 7, 2005 at or near the City of Kelowna, British Columbia, did unlawfully possess a controlled substance, to wit: Cocaine, for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act for the benefit of, at the direction of, or in association with a criminal organization, to wit: The East End Charter of the Hells Angels, and did thereby commit an offence contrary to section 467.12(1) of the Criminal Code of Canada.
[234] An essential element of count two is proof beyond a reasonable doubt of the offence in count one because count one is the predicate offence in count two.
[235] Giles is not guilty of possession for the purpose of trafficking, the predicate offence in count 2. Therefore, an essential element of count two against Giles is not established, and he is not guilty of the criminal organization offence in count two.
[236] Count two against Revell and Rempel depends upon a finding that Giles is guilty on count one because Giles is the only link, on the Crown’s theory, to count two. He is the link to the EEHA on the allegation that the offence in count one was committed “for the benefit of, at the direction of, or in association with a criminal organization, to wit: the East End Charter of the Hells Angels”. This latter element is also an essential element of count two. Without a finding of guilt on the part of Giles on count one, an essential element of count two is not proved. That is because the offence in count one cannot have been committed, “for the benefit of, at the direction of, or in association with” the EEHA without the involvement of Giles who was the only link to the EEHA. Therefore, Revell and Rempel are not guilty on count two.
[237] Because Giles is not guilty of the predicate offence, count two fails as against all the accused. It is therefore unnecessary to consider or address all the evidence called on whether the EEHA is a criminal organization, including the expert evidence on the nature, activities, and purposes of the Hells Angels, the agent’s evidence, and the intercepted private communications.
[238] In summary, I find Revell and Rempel guilty on count one and count three. Giles is not guilty on either count one or two. Revell and Rempel are not guilty on count two.
“The Honourable Madam Justice MacKenzie”