R. v. Montgomery

2014 BCSC 1483 R. v. Montgomery IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Montgomery, 2014 BCSC 1483 Date: 20140806 Docket: 73426 Registry: Kelowna Regina v. Clifford Roger Montgomery, Tariq Mohammed Aslam and Salvador Ascencio-Chavez Corrected Judgment: The text of the judgment was corrected at paragraphs 32, 67, 68, 82, 100, 105, 131, 139 and 140 on September 23, 2014 Before: The Honourable Madam Justice Beames Reasons for Judgment Counsel for the Crown: C.W. Greenwood H. Magnin Counsel for the Accused, C.R. Montgomery: N.L. Cobb E. Lewis Counsel for the Accused, T.M. Aslam: J.W. Hogan, Q.C. J. Banks Counsel for the Accused, S. Ascencio‑Chavez (start of trial): S.J. Tessmer Counsel for the Accused, S. Ascencio‑Chavez (completion of trial): K. Molle Place and Date of Trial/Hearing: Kelowna, B.C. April 2-5, April 8-12, April 15-19, April 29-30, May 1-3, May 6-10, May 14-17, May 21-24, May 27-31, June 3-7, June 10-14, June 17, June 19, November 25-29, December 6, 2013, February 11-14, February 17-19, April 3-4, April 9-11, 2014 Place and Date of Judgment: Kelowna, B.C. August 6, 2014 Introduction [1] On September 22, 2010, Canada Border Services inspected something described as a fruit-grinding machine ("the machine") imported from Argentina and destined for delivery to a consignee in Kelowna. Initial tests suggested that there was cocaine inside the machine and the police were called. The machine was dismantled and a large amount of cocaine was found inside the machine. [2] The investigation of the importation was assigned to the RCMP South East District Drug Section, located in Kelowna, and a decision was made to arrange for a controlled delivery of the machine to its consignee. The cocaine was removed and replaced with placebo cocaine, plus small samples of the original cocaine. In addition, dye and alarms were placed inside the machine. [3] On September 30, 2010, the machine was delivered to a storage facility in Kelowna, as designated by the consignee. [4] On October 1, 2010, the machine was picked up by three men, taken to a remote location and dismantled. None of the alarms installed into the machine functioned so as to alert the police that the machine had been dismantled. By the time the police obtained a general warrant and entered the property where the machine was located, the machine had already been dismantled and only one person, who was originally charged but is not now one of the accused before the court, was found on the property, although not in the immediate vicinity of the machine. [5] On October 4, 2010, Clifford Montgomery was arrested and charged in connection with this matter. On October 13, 2010, Tariq Aslam and Salvador Ascencio-Chavez were arrested in California and eventually returned to Canada to face charges. The indictment before the court charges all three accused, jointly, with possession for the purpose of trafficking cocaine, conspiracy to traffick cocaine, and conspiracy to import cocaine into Canada. Issues [6] The issues before the court are: a) Identity. Specifically, were the accused the three men who: i. picked up the machine? ii. transported it to the remote location? iii. dismantled it? b) Were any or all of the accused in possession of cocaine for the purpose of trafficking? c) Were any or all of the accused parties to a conspiracy to traffick cocaine? d) Were any or all of the accused parties to a conspiracy to import cocaine into Canada? Overview of the Facts [7] On September 22, 2010, Officer Uppal, with Canada Border Services, printed a worksheet listing cargo arriving into Canada which she was to decide whether to release or to refer for a secondary inspection. One of the items on her worksheet was described as a fruit-grinding machine from Argentina, which had arrived in Canada sometime on September 21, 2010. It was, according to the waybill information, a machine weighing approximately 2,400 kilograms, which was addressed to a drop box at a UPS store in Kelowna, to a consignee she determined was in the jewellery manufacturing business. She determined the machine was an elevated risk and needed secondary examination that same day. [8] When inspected by the border service agents on the secondary inspection team, the machine was found to be extremely large, unusual (according to one of the Canada Border Service officers), wrapped in plastic and fastened to a pallet. There were gears on the outside of the machine and three large drums stacked in a triangular pattern, with one stacked on top of two others, set in a metal frame. The machine appeared to be freshly painted, as the smell of paint could be detected when the plastic was removed. Although the machine appeared freshly painted, some of the metal was rusted away, with fresh paint applied over top. The border service agents could not see any engine or any place to put fruit. The gears did not seem to be set up or lined up properly. Consequently, further tests were done, including an ion scan, which tested positive for cocaine. The border service agents drilled into the drums, discovered cocaine, and called the Vancouver Drug Squad, who then referred the investigation to the RCMP. [9] On September 23, 2010, a four-man team from the South East District Drug Section attended at the warehouse in Richmond where the machine had been secured. With the assistance of a forklift operator and two machinists, the drums were removed from the frame and opened. Inside each drum was a silver coloured metal cylinder and inside each cylinder was cocaine, in bricks and loose, wrapped in black plastic bags. Including the plastic bags within which the cocaine was contained, the weights of the contents of the cylinders were 33.05 kilograms, 31.25 kilograms and 33.15 kilograms respectively. The cylinders were re-packed with placebo cocaine, plus small samples of the real cocaine, weighing, respectively, 4.5 grams, 3.8 grams, and 5 grams. Also installed in each cylinder was an alarm, which was designed to transmit a signal to a receiver when the cylinder was opened. At the top of each cylinder a powdered dye was sprinkled. The cylinders were then reinserted into the drums and the machine reassembled. The entire process took place on September 23 and September 24, 2010. [10] Staff Sergeant Gately assumed an undercover role as a driver for a delivery company. On September 24, 2010, he called Gavril Szucs, of Gaby Enterprises Ltd., which was the named consignee of the machine. He advised Mr. Szucs that the machine had cleared customs and that he would be picking it up after the weekend, on September 27, 2010. It was Staff Sergeant Gately's intention to buy time before the delivery was made, so that the police could put in place other measures to assist the investigation. Those measures included obtaining a wiretap authorization for Mr. Szucs' telephone, as well as for an audio device to be installed on the pallet to which the machine was attached, which wiretap authorization was received on September 29, 2010; locating and setting up an observation post, so that the police could observe the storage yard to which the machine was to be delivered; and the installation of a video camera across the street from the storage yard, which could be controlled from the intercept monitor room. Various other steps were taken in the interim, including extensive surveillance of Mr. Szucs. [11] In his undercover role, Staff Sergeant Gately telephoned Mr. Szucs again on September 27, 2010, to advise that delivery of the machine would be further delayed. On September 29, 2010, by which time the wiretap authorization was in place and the interceptions had been activated, Staff Sergeant Gately called Mr. Szucs to advise him that the machine would be delivered the following day, September 30, 2010. Upon receiving that information, Mr. Szucs called and relayed the information to Fernando Diaz. Mr. Diaz was a relatively recent, but good, friend of Mr. Szucs. [12] I find that Mr. Diaz was the only connection between Mr. Szucs and the machine. In the summer of 2010, upon learning that Mr. Szucs had an import/export licence, Mr. Diaz asked Mr. Szucs to assist him with the importation of a fruit-grinding machine. The assistance rendered by Mr. Szucs included: Mr. Szucs retaining Summit Customs Brokers in Kelowna to arrange for the importation; Mr. Szucs providing documents to Summit concerning the importation, which documents had been received by Mr. Szucs from Mr. Diaz; conveying to Summit the address for the storage facility to which the machine was to be delivered after it arrived in Canada; and receiving funds from Mr. Diaz and disbursing them, or at least most of them, as directed by Mr. Diaz to assist in the importation. [13] In the intercepted telephone call of September 29, 2010, after Mr. Szucs told Mr. Diaz about the anticipated delivery date, he was told by Mr. Diaz that Mr. Diaz's friend was going to pay money to Mr. Szucs and then Mr. Szucs would be able to release the machine to the friend. Mr. Diaz indicated that it might take a day or two, but that his friend would call Mr. Szucs and that the friend would have to pay money to Mr. Szucs before the machine could be released. [14] The fruit-grinding machine was delivered by Staff Sergeant Gately to the designated storage facility, Happy Shacks, at approximately 10 a.m. on September 30, 2010. A commercial company was contracted and attended with a crane to assist with unloading the machine from the flat deck truck Staff Sergeant Gately was driving. Staff Sergeant Gately ensured that the machine was placed in a part of the storage yard which would be captured by the video surveillance camera that had been installed across the street. [15] Shortly after the fruit-grinding machine was unloaded, Staff Sergeant Gately met Mr. Szucs in the yard at Happy Shacks. Before attending at the yard, Mr. Szucs had called Mr. Diaz at a number in Arizona, where Mr. Szucs understood Mr. Diaz to be at the time, to advise him that he was going down to meet the "delivery guy" to take possession of the machine. [16] When Staff Sergeant Gately and Mr. Szucs met, Staff Sergeant Gately demanded to be paid more money, which he claimed was owed as a result of him not being able to deliver the machine on September 29, 2010. He did so in hopes of stimulating more communication between Mr. Szucs, who at that point remained a target of the investigation, and whoever Mr. Szucs was dealing with. As hoped, Mr. Szucs, while still at the storage yard, called and left a message for Mr. Diaz to the effect that the delivery driver had demanded a further $2,000. When Mr. Diaz called back, Mr. Szucs expressed concern that the driver would return and pick up the machine if he was not paid the $2,000 and Mr. Diaz told him to just pay and not worry about it. Not wanting to let his friend down, Mr. Szucs attended at Summit to complain, and took other steps to try to save his friend the $2,000 demanded by the driver. [17] On October 1, 2010, Mr. Szucs called Mr. Diaz to advise him that the issue with the trucker was resolved. Mr. Diaz told Mr. Szucs that he was in discussion with "the guys" who would be picking up the machine about how much had to be paid in order to have the machine released to them. If there was any doubt about whether Mr. Szucs was a dupe, and not part of a group involved in the importation of the machine, it was completely resolved by the conversation that was intercepted on October 1, 2010, starting at 9:03:51 a.m. During that conversation, Mr. Szucs insisted to Mr. Diaz that an invoice had to be written for the machine and the total amount being paid for the machine had to be set out on the invoice, so that G.S.T. could be collected. Mr. Diaz instructed Mr. Szucs to release the machine to his friend if the friend paid $10,000 to Mr. Szucs, because he trusted his friend to pay the rest. [18] Shortly before 11 a.m. on October 1, 2010, Mr. Diaz called Mr. Szucs to tell him that a guy by the name of Victor would be calling him and that Victor would only be paying Mr. Szucs $5,000 in cash and, if he did so, Mr. Szucs should release the machine to him. Mr. Diaz said his friend would make arrangements for a crane or whatever was required to move the machine, and that he had rented a truck or something. [19] Very shortly after that call ended, Mr. Szucs received a call from an individual calling from 778-386-9410, which on all of the evidence I accept was a telephone subscribed to by the accused Salvador Ascencio-Chavez, but under the name "Victo Perez", who at that time was in Canada illegally, using a passport and other identification and credit cards in the name of Victor Perez Rodriguez. The caller from that number identified himself to Mr. Szucs as Victor, "Fer's friend". He advised Mr. Szucs that he already had the address for the place where the machine was stored and that he would like to meet Mr. Szucs at that place in about 20 minutes. Within approximately one-half hour, Mr. Szucs was called again by the individual who self-identified as Victor (I will be referring to this person for the time being as "Victor"), to say that he had just crossed the bridge and would be there shortly. [20] The subsequent meeting between Mr. Szucs and Victor was captured on video and parts of their conversation were captured by the audio recording device installed on the pallet to which the machine was attached. Together, they examined the machine and discussed the weight of the machine. Victor examined the papers attached to the plastic wrapped around the machine, which included the waybill, and took photographs of the machine using his telephone. Victor said he was going to go and "talk to the guys" and then he would come back. He asked Mr. Szucs to bring the paperwork for the machine when they next met. [21] After they left the area where the machine had been placed, Mr. Szucs and Victor had a further discussion at the back of Mr. Szucs' car, which was parked on the street outside the storage yard. During that meeting, it is apparent from the video that Victor spoke on his telephone and that he subsequently passed the telephone to Mr. Szucs. Mr. Szucs testified, and I accept, that when he took the telephone from Victor, his friend Fernando Diaz was on the telephone and advised him that Victor would return with money and take the machine. [22] Following this interaction, the police were obviously interested in Victor as a target and when he departed, driving a silver Jeep, they made efforts to follow him. Constable Rensby was one of the officers who followed the Jeep and he was able to confirm the Jeep had the licence plate number 370 PEL. The Jeep was lost in the area of Horizon Drive in West Kelowna. Various officers remained in the area, hoping to relocate it. [23] Constable Horvath parked by a school on Olympus Way, in a gravel parking lot where there were community mailboxes, which overlooked the "T" intersection of Horizon Drive and Pinewood Place. He had been there just a short time when he saw a silver Jeep Cherokee approach the intersection from Pinewood Place. There were two people inside. When the Jeep stopped, he made eye contact with the occupants and he observed gestures made by them. He testified that the Jeep made a slow turn on Horizon, a quick turn on Olympus, and then drove very slowly past the back bumper of his vehicle. He was concerned that he might have been burned, or detected to be a police officer, and as the Jeep carried on he quickly threw all of his stuff into the back of his vehicle and covered it up. The silver Jeep returned and stopped right at his back bumper, essentially preventing him from leaving. He described the driver of that vehicle as being a male of Mexican descent with dark hair, dark Ray Ban-like sunglasses and a dark casual shirt, who appeared to be in his 30s. The passenger got out of the silver Jeep and approached his vehicle. Constable Horvath pretended to be on his cellular telephone and the Jeep's passenger knocked on his window. He described that person as Caucasian, heavy set, a scruffy beard on his face, wearing a grey hoodie with a dark shirt underneath. He recognized that person as Clifford Montgomery from a photograph he had been shown the day before. He had a short conversation with the passenger at the window, who initially asked what he was doing in the neighbourhood, asserting there had been a number of recent break‑ins, and Constable Horvath replied that he was waiting for his girlfriend because they were going to go for a walk. The passenger returned to the Jeep and the Jeep departed. [24] Shortly before 2 p.m., the silver Jeep arrived back at Happy Shacks. Two men got out and made their way to the area of the fruit-grinding machine. After retrieving a measuring tape, they measured the machine, including the length of the pallet, and then measured the length of the inside of a nearby U‑Haul truck. They then left the yard at Happy Shacks, got into the silver Jeep, and departed. By this time, the police had air surveillance in place. Constable Binnie, who was making observations from the airplane, testified that the Jeep drove directly from Happy Shacks to a business he identified as Kelowna Moving Centre at McCurdy Road and Highway 97. [25] At 2 p.m., Victor called Mr. Szucs and told him he was grabbing a truck and could be at Happy Shacks in 20 minutes. At 2:08 p.m., he called Mr. Szucs back again and told him that he would need more time and that he would call when he was ready for a meeting. The Jeep was then observed by Constable Binnie as it travelled through Kelowna, across the bridge, up to West Kelowna and onto Horizon Drive. The Jeep turned onto Pinewood Place and stopped at the second house on Pinewood Place. The driver and the passenger got out and walked into the third house on Pinewood Place, which was later identified to Constable Binnie as 979 Pinewood Place. [26] The airplane continued to circle around Pinewood Place and Constable Binnie observed a brown quad-cab pickup truck with a trailer attached moving in front of the third house on Pinewood Place. The trailer was detached from the truck and left parked in the driveway. Constable Binnie observed two or three people in the front yard. A short time later, the Jeep and the brown quad-cab truck departed the area together. [27] Shortly before 3 p.m., Corporal Robertson saw the Jeep and the truck turn onto Highway 97 and travel in the direction of Kelowna. [28] At 3:01 p.m., Victor called Mr. Szucs to advise him that he was five minutes away from Happy Shacks. Mr. Szucs confirmed that he could be at Happy Shacks in five minutes too. [29] After another telephone call between the two men, Mr. Szucs was observed meeting with Victor at the parking lot area of Happy Shacks. Mr. Szucs testified that at that meeting Victor provided him with $5,000 in cash. The two men then walked together into the office of Happy Shacks and Mr. Szucs testified that he told the man in the office that Victor was the man who was authorized to take the fruit-grinding machine away from the storage yard. Mr. Szucs then returned to his car and departed. Victor returned to the area of the machine and had a telephone conversation, which was captured on the audio device, which was not in English, and for which I have been provided no admissible translation. Victor then departed Happy Shacks, in the silver Jeep, at approximately 3:45 p.m. He drove from Happy Shacks to Walmart. [30] Minutes after Victor departed from Happy Shacks, a brown Chevy truck pulled into the Happy Shacks storage yard. It was towing a black trailer that said "Rent Me" on the sides. It had short walls encircling it, but otherwise was an open flat deck sort of trailer. The truck drove past the machine and stopped so that the trailer was positioned close to the machine. The cab of the truck stopped in a position which was out of view for both the video surveillance camera and the officers who were in the observation post. Shortly after the truck stopped, two men walked from the area of the cab of the truck toward the trailer. For approximately one-half hour the two men, assisted by two employees of Happy Shacks, one of whom was operating a forklift, loaded the machine onto the trailer. As I indicated, the events were video recorded and the audio device captured sound and conversations which took place in close proximity to the fruit-grinding machine. Approximately 20 minutes after the loading efforts had begun, Victor returned to Happy Shacks in the silver Jeep and joined the men working with the fruit-grinding machine. He assisted in strapping the fruit-grinding machine down onto the trailer. By this time, the Happy Shacks employees had left the area of the trailer and machine. [31] At approximately 4:20 p.m., Victor walked back to his Jeep and waited. The two men disappeared from the sight of the officers at the observation post and out of the visual range of the video surveillance camera, and shortly thereafter the brown Chevy truck, with trailer attached, drove through and pulled out of the Happy Shacks storage yard and past Victor in his Jeep. As it was passed by the truck, the Jeep pulled in behind the truck and both vehicles turned right onto Highway 97, heading towards Kelowna. Several police vehicles followed, keeping some distance, and the truck and Jeep were kept under continuous surveillance by Constable Binnie who was still providing aerial surveillance. [32] The vehicles travelled across Okanagan Lake, through West Kelowna, and then onto the Coquihalla Connector, which is also known as Highway 97C. As they travelled along Highway 97C, one unmarked police vehicle passed them. That police vehicle was driven by Constable Blanchette with Constable Ellis as a passenger. Constable Blanchette had been involved in earlier surveillance and shortly after noon had followed the silver Jeep on Highway 97. At the intersection of Highway 97 (also known as Harvey Avenue) and Spall Road, he had been able to make observations of the driver as well as confirming the licence plate of the Jeep. The Jeep had licence plate number 370 PEL. He described the driver, the lone occupant at that time, as being male with a dark-sleeve jacket, dark hair, dark complexion, and sunglasses. When Constable Blanchette and Constable Ellis passed the Jeep on Highway 97C, Constable Blanchette testified that he saw the same driver, with the same sunglasses, although he was not certain that the shirt was the same, and he confirmed the same licence plate number on the vehicle. [33] Approximately eight minutes later, as he continued to drive on Highway 97C, Constable Blanchette passed the truck which was pulling the trailer with the machine on it. He observed the driver, but was unable to get a description of the passenger. He said the driver was wearing a zippered sweatshirt and was unshaven. He testified that the driver looked like Clifford Montgomery, whom he recognized from a photograph he had been provided with in a previous investigation, and from two or three discussions he had had with Mr. Montgomery several years earlier, when he was performing various duties in downtown Prince George. He identified Mr. Montgomery in court. [34] At approximately 6 p.m., the truck and the Jeep turned left off of Highway 97C onto a rural property. That property has been referred to in court as the Aspen Hills Ranch. Constable Binnie was able to observe the truck with the trailer park in an area with large outbuildings. He testified that the Jeep also initially stopped in that area and then drove to the main residence on the property, which was located further up the road. The Jeep was parked in that area. The two vehicles were kept under aerial surveillance that evening as it grew dark. Constable Binnie testified that he was in the air until approximately 10 p.m. Constable Binnie saw no other cars or trucks on the property. He did not see any vehicles arrive or depart before dark. After dark, which Constable Binnie estimated was approximately 8 p.m., he made only one observation of lights, which he believed were headlights pointed towards where he had seen the trailer parked. [35] As soon as the vehicles were observed pulling off of Highway 97C, the monitor room reactivated the recording and transmitting devices on the machine, which had been deactivated when the vehicles left the Happy Shacks storage yard. Between approximately 6 p.m., and shortly before 10 p.m., various conversations took place, involving at least three different men. I will be dealing in more detail with those conversations later. In addition to the conversations, many loud sounds, including banging sounds and engine sounds, were recorded and transmitted. [36] While the civilian monitors and officers were monitoring the audio recordings, work was being done to establish surveillance of the property. [37] After the truck and Jeep had pulled onto the rural property, Corporal Robertson drove up and down Highway 97C looking for another access point to the property and could not find one. A decision was made to set up an observation post across the highway from the driveway so that the driveway to the property could be observed. Additional staff was called in, from the lower mainland as well as from the local Emergency Response Team. Different police officers were taking up positions to the north and south of the driveway entrance. A command post was set up a short distance off of Highway 97C on the Princeton Highway, which was approximately 3.4 kilometres south of the driveway. The aerial surveillance continued until 10 p.m., as I indicated earlier. [38] By approximately 7:30 p.m., two officers were in place across the highway from the property, with a clear view of the driveway. The first two officers at that observation post were Constables Meijer and Gould, who were replaced by Constables Buxton-Carr and Fradette within not more than a couple of hours. Constable Meijer testified that no persons or vehicles arrived or departed from the driveway while he was in the observation post. [39] Constable Buxton-Carr testified that it was important to him that his presence in the observation post not be detected, and he ensured he did not do anything that required light. Consequently, he took no notes while he was in the observation post and recorded no times. He did make two observations of significance while he was in the observation post. The first was that he saw a vehicle approach the driveway, pull into the driveway, and stop at the gate. He testified that he believed the vehicle was a van of a GMC Safari style. He saw a person get out of the vehicle, approach and open the gate, and then return to his vehicle and drive through the gate. The driver got out to close the gate, stood and looked around for a period of time, and then returned to his vehicle and drove up the driveway. [40] The audio recording device on the fruit-grinding machine picked up a conversation at 21:46:49. One of the original three voices can be heard asking, "What's goin' on Barry?", to which a previously unheard voice replies, "Nothin'", followed by an inquiry. Approximately one-half hour later, those same two voices were picked up by the audio recording device and the person with the newly identified voice was asked whether he had a breaker bar in his van. [41] The other observation of significance made by Constable Buxton-Carr while he was at the observation post on that shift was that less than one hour or approximately an hour after he saw the van arrive, he saw a truck leave the property. He saw the truck drive down the driveway. The driver stopped the vehicle at the gate. The gate was then opened by an individual, about whom he could make no observations. The truck turned south on Highway 97C. Constable Buxton-Carr testified that he believed the vehicle to be a GMC Sierra-type truck, which is identical, in his view, to a Chevy Silverado pickup truck. He was unable to say how many occupants were in the vehicle. [42] Constable Fradette testified about having made similar observations from the observation post. He described the van that arrived as a Chevy Astro or GMC Safari style. He testified that while he was in the observation post he could sometimes see light coming from the property, which was at a higher elevation than the observation post, and that he could hear banging sounds, like someone hitting metal. He estimated that at approximately 11:45 p.m. he heard two thuds coming from the property, following which a vehicle was driven down the driveway. He described the vehicle as a GMC or Chevy-style pickup truck. He saw a person get out, open the gate, and then close the gate after the vehicle had been driven through. After the person was back in the truck, the truck went right on the highway. He did not know which side of the pickup truck the person got out of, and could make no observations specifically of the person. [43] At 23:40:30, the audio recording device on the machine picked up one of the original voices saying, "We're outta here right now". There was another discussion between two of the original voices about leaving one truck there. At 11:45:20, the audio recording device recorded the sounds of footsteps, followed by vehicle sounds. [44] When the observations of the pickup truck leaving the property were made by Constable Buxton-Carr and Constable Fradette, Constable Buxton-Carr contacted his surveillance team leader to alert him. Constable Uganec had been part of the perimeter surveillance team. He was positioned on the Princeton Highway, near the intersection with Highway 97C. He testified that at 23:45 he received a broadcast that a truck had left the Aspen Hills Ranch. He saw a southbound truck on Highway 97C, which turned right and proceeded down Highway 5A. He attempted to follow it, but the truck was travelling at such a high rate of speed he was unable to do so without the risk of revealing surveillance. There had been, until that truck passed, very few vehicles on the highway. He was unable to get a licence plate number for the truck and could not say how many doors there were on the truck. [45] As I indicated earlier, alarms had been installed in each of the cylinders inside the drums on the fruit-grinding machine. There was a separate receiver for each of the three alarms. No signal had been received to indicate that the cylinders had been opened, and in fact no signal was ever received from the alarms. [46] The police continued to maintain surveillance of the property and monitor the device audio recordings. After 11:45, when the pickup truck was seen departing the property, only one voice, belonging to the person who was first heard after the van was seen entering the driveway, can be heard on the recording, although there is also some banging heard from time to time. [47] On October 2, 2010, the police obtained a general warrant to enter onto the Aspen Hills Ranch. Constable Binnie returned to aerial surveillance commencing in the early afternoon. He noted there was a grey Jeep Cherokee on the property parked near a dual-axle trailer. There was also a green tractor in the area of the outbuildings, which he had not noted the day before. Constable Binnie testified that he saw white objects on top of the trailer. He also noted there was a van parked by the residence, higher up on the property. He saw no other vehicles. [48] After the general warrant was received, the police set up an observation post on the Aspen Hills Ranch. That observation post was then manned by the police through to the time of the execution of the search warrant on the property on October 4, 2010. [49] Constable Kuharski entered onto the property sometime between 6 and 7 p.m. on October 2, 2010. He made observations of the barn area of the property from a distance, and as it got progressively darker he got progressively closer to the outbuildings. From his vantage point he could see a larger barn and other structures in a sort of horseshoe shape. He saw what he described as a white Jeep parked beside a tractor, sort of in front of the barn. [50] At some point in time while he was making observations during the evening of October 2, he saw a light-coloured SUV enter onto the property. It drove up to the house and parked there, and then drove down and parked in the courtyard area by the white Jeep. He saw three people around the light-coloured SUV. He had also been able to see three people around the vehicle when it had parked at the house. After he made those observations, the Jeep and the SUV departed. He broadcast that information back to his surveillance team. [51] Constable Meijer, who had been involved in surveillance of a Jeep with the licence plate number 370 PEL on October 1, 2010, was part of that surveillance team. After he was notified that the vehicles had left the property, he went looking for the vehicles. He saw the Jeep Cherokee, with the licence plate number 370 PEL, at a brake check area on Highway 97C, stopped beside a brown or beige Tahoe SUV. He saw the Jeep and the Tahoe leave the brake check area and drive onto Highway 97C, towards Kelowna. The two vehicles then separated, with the Jeep turning right onto Glenrosa Road and the Tahoe taking that overpass but then continuing back onto Highway 97 towards Kelowna. [52] Constable Fradette entered onto the Aspen Hills Ranch property on the evening of October 2nd and remained on the property for approximately six hours. He testified that at approximately midnight to 12:30 a.m., having observed no movement in the area of the outbuildings and only minor movements of a person walking within the house, and a couple of times walking between the house and a white van parked in front of the house, he approached the barn and outbuildings area. His intention was to inspect the trailer and its immediate vicinity. Once he got close enough, he could observe three cylinders with a cog-like mechanism. The two cylinders closest to him seemed to have the back end removed. He was able to stick his hand inside four or five inches. He noted that there was a pallet leaning next to the trailer. [53] The driveway of the Aspen Hills Ranch and the barn area were kept under surveillance until October 4, 2010, when a search warrant was executed on the property. Aside from the light-coloured SUV arriving, and then departing in tandem with the Jeep Cherokee, no other vehicles were seen arriving or departing from the property. [54] A person was seen at the property on October 3, 2010. He was identified as Barry Ready. He was seen in the area of the main residence and in the barn area. When the search warrant was executed on October 4, 2010, Mr. Ready was found to be the only person on the property. His van was the only vehicle on the property, and it was found parked in front of the main residence. It was a Chevy Astro van. [55] On the morning of October 3, 2010, the Jeep Cherokee with the licence plate number 370 PEL was returned to the rental agency at the Vancouver airport. [56] On October 3, 2010, a Chevrolet Silverado pickup truck was seen parked in front of 979 Pinewood Place, which I find was the residence of Mr. Montgomery. The licence plate number of the truck was CT 0279. Constable Defrane, who had spent time in the observation post observing the activities at Happy Shacks, testified that the pickup truck looked like the same truck used to pick up the machine on October 1, 2010, although the truck was cleaner on October 3rd than it appeared to have been on October 1st. That vehicle was followed by the police in the early evening of October 3, 2010, and was stopped in downtown Kelowna for what was made to look like a routine traffic stop. The driver of the vehicle was Tariq Aslam. Mr. Aslam appeared calm and the traffic officer who made the stop did not notice any purple staining on Mr. Aslam during his brief dealings with him. Later that evening, the truck was observed at a gas station in West Kelowna. Constable Ellis testified that the driver of the vehicle was Tariq Aslam, whom she identified from a photograph. The vehicle departed West Kelowna and took the exit to Highway 97C towards Merritt. It was allowed to continue on its way, as a decision had been made to seek arrest warrants and then arrest individuals in a certain order, commencing with Mr. Montgomery. [57] On October 6, 2010, the truck associated with Mr. Aslam was seen by Constable Adams in Surrey. He arrived at a local Tim Horton's and a truck caught his attention as a result of where and how it was parked. When he ran the licence plate number, CT 0279, he discovered it was a vehicle of interest to the police. The vehicle was towed to a secure bay and inspected by members of the identification section. A total of 14 fingerprints suitable for analysis were found. Five of them belonged to Mr. Aslam. Nine other prints were found, only one of which was associated to an individual identified by the police, and that person was not a person of interest to the police in this investigation. Inside the glove box was an ICBC document with respect to the purchase of an unrelated vehicle. That document was in the name of Clifford Montgomery. [58] On October 4, 2010, Mr. Montgomery was arrested shortly after he departed from his residence at 979 Pinewood Place. Small purple spots were visible on Mr. Montgomery's hands, which were subsequently photographed during the execution of the general warrant. The purple spots were on his right thumb, his left middle finger, and his left little finger. After his arrest, his residence was searched. Various documents addressed to or in the name of Tariq Aslam were found in the residence, including two envelopes and a Westjet boarding pass in a spare room in the basement, and his passport in the top dresser drawer of the master bedroom on the main floor. In the master bedroom the police found a plastic bag, inside of which was a black t‑shirt, which looked identical to the t‑shirt worn by one of the three individuals who picked up the fruit-grinding machine, and a pair of black sweatpants. The sweatpants had white residue on them, and on subsequent testing both items of clothing were found to have purple stains which were determined to be gentian violet dye. In the main floor closet, the police found a grey hoodie with a Harley Davidson logo on it. It looked the same as the hoodie worn by another of the men who were involved in picking up the fruit-grinding machine from Happy Shacks on October 1, 2010. The hoodie had purple staining on it which, on subsequent analysis, was also found to be gentian violet. [59] During the search of the Aspen Hills Ranch, which commenced in the early afternoon of October 4, 2010, the police found various parts of the fruit-grinding machine. On examination by the identification section, some of the pieces of the machine were found to have purple stains on them. All of the cylinders had been removed from the drums and the fake cocaine had been removed. Used nitrile gloves were found inside the barn, which were found to be stained with gentian violet dye. Purple staining was seen on a garden hose near the barn. There was white powder and purple dye on the ground in front of the barn and white powder and purple staining on the floor of the barn. A sledgehammer was found in the barn, which I find is consistent with conversation heard on the intercepts during the evening of October 1, 2010, with respect to the use of a sledgehammer. In a large hole found on the property, south of the barn, the police found melted and burned black plastic, which appeared to be a garbage bag, with packing tape around it and white powder on it. There was other burned debris in the hole. [60] On October 13, 2010, Mr. Aslam and Mr. Ascencio-Chavez were arrested in California by an American border patrol agent. They were in a vehicle travelling southbound, in relatively close proximity to the US/Mexico border. Mr. Aslam agreed to be returned to Canada, and on November 17, 2010, Constables Geldart and Argue escorted Mr. Aslam back to Canada, where he was arrested. [61] Mr. Ascencio-Chavez was extradited. He was returned to Canada on March 16, 2011. Officers Poohachoff and Kronebusch travelled to San Diego to escort him to Kelowna. In the personal effects that returned with Mr. Ascencio-Chavez to Canada were found eight credit cards in the name of Victor Perez Rodriguez, the driver's licence recorded by the rental agency in Vancouver for the Jeep Cherokee 370 PEL rental, and a passport. When Mr. Ascencio-Chavez was returned to Canada, he gave a voluntary statement during which he confirmed that his real name was Salvador Ascencio-Chavez, and that he had been using the name Victor Perez Rodriguez for some time. [62] The investigation of the importation of the cocaine of course continued after the execution of the search warrants and the arrests. From the data extracted from one of the telephones seized from the vehicle Mr. Montgomery was driving before his arrest, for which he was the subscriber, it is clear that in the summer of 2010 there were communications between that telephone, which I will describe as Mr. Montgomery's telephone, and a telephone with a number Mr. Szucs testified was the Canadian mobile cellular telephone number for his friend Mr. Diaz. The Rogers Communication records show four telephone calls from the telephone subscribed to by "Victo Perez", which I will refer to as Mr. Ascencio-Chavez's telephone, and Mr. Montgomery's telephone during the last four days of August 2010. On September 1, 2010, a text was sent from Mr. Ascencio-Chavez's telephone to Mr. Montgomery's telephone, saying "Fernando is going to call you tomorrow", with a reply from Mr. Montgomery's telephone shortly after saying "I just talked to him". [63] Between September 1 and September 15, 2010, Mr. Diaz provided Mr. Szucs with a total of $10,000 towards expenses for the importation of the machine, and provided him with instructions about the paperwork for the importation and the place to which the machine was to be delivered after it cleared customs. [64] On September 14, 2010, the machine was shipped from Argentina, and eventually arrived in Canada by what is referred to as flying truck, on September 21, 2010. [65] On September 25, 2010, Mr. Ascencio-Chavez arrived in Canada and entered Canada using a passport in the name of Victor Perez Rodriguez. He flew from Edmonton, his point of entry, to Vancouver on September 26, 2010, and rented the silver Jeep that was later seen during the investigation. [66] On September 30, 2010, the day the machine was delivered to Happy Shacks and Mr. Szucs notified Mr. Diaz of the delivery, there were five calls from Mr. Ascencio-Chavez's telephone to Mr. Montgomery's telephone, with two of the calls apparently connecting and resulting in conversations, as well as one text from Mr. Ascencio-Chavez's telephone to Mr. Montgomery's telephone. [67] On October 1, 2010, ten minutes after the first telephone call from Mr. Ascencio-Chavez to Mr. Szucs, in which Mr. Ascencio-Chavez introduced himself as Fer's friend and made arrangements to meet Mr. Szucs at Happy Shacks, the telephone from which Mr. Diaz had called Mr. Szucs to let him know Victor would be calling, then called Mr. Montgomery's telephone, but the call was not answered. While the silver Jeep was under surveillance driving from Happy Shacks to West Kelowna, following the first meeting between Mr. Ascencio-Chavez and Mr. Szucs, a call was made from Mr. Ascencio-Chavez's telephone to Mr. Montgomery's telephone. [68] I will pause to note that counsel for Mr. Montgomery suggests that the dates and times of the calls made from Mr. Montgomery's telephone are not reliable and challenges Crown's submissions that Mr. Montgomery's telephone had been set to seven hours ahead of B.C. time. I have evidence that the user of a Blackberry cellular telephone (which Mr. Montgomery's telephone was) can manually set the date and time, and that dates and times on a Blackberry device should not be accepted as necessarily reliable without some corroborating evidence. Mr. Ascencio-Chavez's telephone records were obtained from Rogers Communications and show what I accept is a correct date and time for each call made and received. Those records are reliable. Comparing those records to the call records obtained from the analysis of Mr. Montgomery's telephone shows that each record details 10 calls between the two telephones, with identical times and dates, if seven hours are subtracted from the date and time stamp recorded by Mr. Montgomery's telephone. I accept the concordance demonstrates that the accurate dates and times of calls from the analysis of Mr. Montgomery's Blackberry telephone can be determined by subtracting seven hours from the time and date recorded by that device. General Legal Principles [69] There is no dispute between counsel in this case that the Crown's case against all three accused is a circumstantial one. It is also not contentious that in order for the Crown to prove a charge beyond a reasonable doubt where the Crown's case is circumstantial, it is necessary for the trier of fact to conclude that the only reasonable or rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Cooper, [1977] 34 C.C.C. 2d 18 (S.C.C.); R. v. Charemski, [1998] 1 S.C.R. 679; R. v. Griffin, [2009] 2 S.C.R. 42. [70] It is also clear that in considering whether the Crown has proved a charge, or any element of a charge, beyond a reasonable doubt, the court must consider the whole of the admissible evidence. The requirement for proof beyond a reasonable doubt does not apply to each separate piece of evidence: R. v. Morin, [1988] 2 S.C.R. 345; R. v. McNeil, 2010 BCCA 295. Identification [71] Who were the three men who picked up the fruit-grinding machine from the storage yard of Happy Shacks on October 1, 2010? [72] I will deal first with the identification of Clifford Montgomery. Constable Defrane testified that he was in the observation post, observing the loading of the fruit-grinding machine at Happy Shacks, using a scope. He had a photograph of Mr. Montgomery on a target sheet. He testified that he identified Mr. Montgomery from the target sheet he had been provided, which photograph he recalled from a previous investigation. I am satisfied that the photograph which various officers were provided with during this investigation (which was described as a photograph of Mr. Montgomery) was in fact a photograph of Mr. Montgomery. Constable Defrane is the officer who arrested Mr. Montgomery on October 4, 2010, shortly after Mr. Montgomery had driven away from 979 Pinewood Place in West Kelowna. He identified Mr. Montgomery in court as the person he arrested. He also testified that Mr. Montgomery is the person he saw on the video recording from the video surveillance camera, which recorded the loading of the fruit-grinding machine on October 1, 2010. [73] Constable Poohachoff was in the monitor room on October 1, 2010. He testified that using the controls in the monitor room, he zoomed in the surveillance video camera when the trailer arrived to pick up the fruit-grinding machine. He testified that he could identify Mr. Montgomery as one of the people loading the machine. He identified Mr. Montgomery on the basis of having seen Mr. Montgomery on a previous investigation. He identified Mr. Montgomery in court. [74] Constable Geldart, who also worked in the monitor room during this investigation, was one of the officers responsible for watching the video and listening to the audio and for queuing the two of them up together for court purposes. He was familiar, according to his evidence, with Mr. Montgomery as a result of dealings he had with him when he was working in Campbell River in 2003. I accept that evidence. He testified that Mr. Montgomery was one of the men involved in loading the fruit-grinding machine onto the trailer on October 1, 2010, and he identified Mr. Montgomery in court. [75] Constable Horvath, as indicated earlier, was in a surveillance position on Olympus Drive in West Kelowna when a Jeep pulled up directly behind his vehicle. He testified that the passenger who approached his window to ask him what he was doing was Mr. Montgomery, whom he recognized from a photograph he had been provided. Constable Horvath was also in the observation post when the pickup truck, towing the trailer, arrived to load the fruit-grinding machine. He testified that he recognized Mr. Montgomery, the man who had only a couple of hours earlier approached his vehicle, as one of the three men involved in loading the fruit-grinding machine. He identified Mr. Montgomery in court. [76] With respect to Tariq Aslam, Constable Horvath testified that while he was in the observation post observing the loading of the fruit-grinding machine, he had a photograph of Mr. Aslam with him. I am satisfied that the photograph provided to various officers during this investigation, purporting to be a photograph of Mr. Aslam, was in fact a photograph of Mr. Aslam. Constable Horvath testified that he looked through the scope and then looked at the photograph over the course of several minutes and that he was able to positively identify Mr. Aslam as one of three people involved in loading the fruit-grinding machine. [77] Constable Geldart had seen a photograph of Mr. Aslam before this investigation. He also was provided with a CABS photograph of Mr. Aslam. He testified that from reviewing the video of the loading of the machine several times, he was satisfied that one of the people involved in loading the machine was Mr. Aslam. He subsequently had an opportunity to meet Mr. Aslam in person when he flew to San Diego to, in part, participate in returning Mr. Aslam to Canada. He testified that he saw Mr. Aslam at the San Diego airport and as soon as he did there was no question in his mind that Mr. Aslam was the same person he had watched on the video load the fruit-grinding machine. He identified Mr. Aslam in court. [78] With respect to Salvador Ascencio-Chavez, Constable Horvath testified that the driver of the Jeep who pulled in behind his vehicle on Olympus Drive was the same Mexican male he later saw, through the scope from the observation post, assisting in strapping down the fruit-grinding machine on the trailer. [79] Constable Geldart observed the loading of the machine from the monitor room. He travelled to San Diego and met with Mr. Ascencio-Chavez at a detention facility in San Diego. He testified that the person he met with in San Diego was the same person whom he observed on video loading the fruit-grinding machine onto a trailer. [80] Constable Poohachoff met Mr. Ascencio-Chavez in San Diego at the airport and accompanied him back to Canada. He booked him into cells in Kelowna. He watched the video feed of the machine loading at Happy Shacks and he identified Mr. Ascencio-Chavez on the video and in court. [81] In addition to the evidence just referred to, which standing alone would be sufficient to satisfy me beyond a reasonable doubt that the three men at Happy Shacks were the three accused, there is additional evidence that strongly supports the conclusion that the accused were the three men who were involved in removing the machine from the storage yard. That evidence includes the following. Mr. Ascencio-Chavez has admitted that he used the name Victor Perez Rodriguez. He has admitted that he rented the silver Jeep with the licence plate number 370 PEL. The person who met with Mr. Szucs at Happy Shacks to secure control over the machine identified himself to Mr. Szucs as Victor. The Jeep travelled to Mr. Montgomery's residence from Happy Shacks. Clothing with the same appearance as that worn by two of the men loading the machine at Happy Shacks was found in Mr. Montgomery's residence, and various documents associated with Mr. Aslam, including his passport, were also found at that residence. There is evidence in the form of telephone records from Rogers Communication showing telephone contact, by voice call and by text, between a telephone subscribed to by "Victo Perez", with the telephone number used by "Victor" in calls between himself and Mr. Szucs, and a telephone subscribed to by Mr. Montgomery, including on October 1, 2010. There is also the evidence with respect to voice identification, which I will be dealing with shortly. [82] I am satisfied that the Crown has proved, beyond a reasonable doubt, that the three accused were the three men who, with the assistance of employees from Happy Shacks, loaded the fruit-grinding machine onto a trailer which then departed Happy Shacks, being towed by a pickup truck driving in tandem with the silver Jeep. [83] Given my conclusion about the identity of the men who took the machine from the storage yard, based on the evidence just reviewed, it is not strictly necessary that I deal with submissions made by counsel about whether I can or should compare the appearance of the people depicted on the video played in court to the appearance of the three accused in the courtroom. However, I have decided to make some remarks about those submissions. In summary, Crown says I can and should be able to make the comparisons, relying on R. v. Nikolovski, [1996] 3 S.C.R. 1197, and that if I do, it will be obvious that the three men at Happy Shacks are the three accused. Defence counsel say that a trier of fact cannot make such a comparison unless the Crown has given notice of its intention to rely upon this "exceptional identification procedure", relying on R. v. T.A.K., 2006 BCCA 105, and say that Crown did not give such notice, thereby depriving the defence from making full answer and defence. [84] In Nikolovski, the majority framed the question before the court as follows: Can a trier of fact identify the accused before the court as the perpetrator of the crime on the basis of viewing of the videotape alone without any corroborating testimony that the accused is the person depicted in the tape? (para. 12) In concluding the affirmative, the majority said: 22 So long as the videotape is of good quality and gives a clear picture of events and the perpetrator, it may provide the best evidence of the identity of the perpetrator. It is relevant and admissible evidence that can by itself be cogent and convincing evidence on the issue of identity. Indeed, it may be the only evidence available. For example, in the course of a robbery, every eyewitness may be killed yet the video camera will steadfastly continue to impassively record the robbery and the actions of the robbers. Should a trier of fact be denied the use of the videotape because there is no intermediary in the form of a human witness to make some identification of the accused? Such a conclusion would be contrary to common sense and a totally unacceptable result. It would deny the trier of fact the use of clear, accurate and convincing evidence readily available by modern technology. The powerful and probative record provided by the videotape should not be excluded when it can provide such valuable assistance in the search for truth. In the course of their deliberations, triers of fact will make their assessment of the weight that should be accorded the evidence of the videotape just as they assess the weight of the evidence given by viva voce testimony. 23 It is precisely because videotape evidence can present such very clear and convincing evidence of identification that triers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime. It is clear that a trier of fact may, despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of a single eyewitness. It follows that the same result may be reached with even greater certainty upon the basis of good quality video evidence. Surely, if a jury had only the videotape and the accused before them, they would be at liberty to find that the accused they see in the box was the person shown in the videotape at the scene of the crime committing the offence. If an appellate court, upon a review of the tape, is satisfied that it is of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person in the tape beyond any reasonable doubt then that decision should not be disturbed. Similarly, a judge sitting alone can identify the accused as the person depicted in the videotape. 28 Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence. Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but it is to a certain extent, testimonial evidence as well. It can and should be used by a trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. It may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events. It may provide such strong and convincing evidence that of itself it will demonstrate clearly either the innocence or guilt of the accused. 29 The weight to be accorded that evidence can be assessed from a viewing of the videotape. The degree of clarity and quality of the tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weight which a trier of fact may properly place upon the evidence. The time of depiction may not be significant for even if there are but a few frames which clearly show the perpetrator that may be sufficient to identify the accused. Particularly will this be true if the trier of fact has reviewed the tape on several occasions and stopped it to study the pertinent frames. 30 Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so. For example, when a jury is asked to identify an accused in this manner, it is essential that clear directions be given to them as to how they are to approach this task. They should be instructed to consider carefully whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt. If it is the only evidence adduced as to identity, the jury should be reminded of this. Further, they should be told once again of the importance that, in order to convict on the basis of the videotape alone, they must be satisfied beyond a reasonable doubt that it identifies the accused. 31 The jury or trial judge sitting alone must be able to review the videotape during their deliberations. However, the viewing equipment used at that time should be the same or similar to that used during the trial. I would think that very often triers of fact will want to review the tape on more than one occasion. 32 A trial judge sitting alone must be subject to the same cautions and directions as a jury in considering videotape evidence of identification. It would be helpful if, after reviewing the tape, the trial judge indicated that he or she was impressed with its clarity and quality to the extent that a finding of identity could be based upon it. This courtesy would permit Crown or particularly defence counsel to call, for example, expert evidence as to the quality of the tape or evidence as to any changes in appearance of the accused between the taking of the videotape and the trial and to prepare submissions pertaining to identification based on the tape. [85] In T.A.K., the identification of the accused also rested solely on whether the trier of fact could identify the accused from a convenience store security videotape which was seven seconds in duration. The victim was unable to identify the accused. The trial judge viewed the video twice in court and several times in her chambers, following which she made a positive identification of the accused as the person depicted on the videotape, without permitting defence counsel to make submissions about the clarity or quality of the videotape, or about the differences between the victim's description of the perpetrator, the appearance of the perpetrator on the videotape, and the appearance of the accused in court, as counsel clearly indicated he wished to do. The Court of Appeal, in setting aside the conviction and ordering a new trial, said: [16] The majority in Nikolovski clearly concluded that a videotape alone can provide the necessary evidence to enable the trier of fact to identify the accused as the perpetrator of a crime. However, that decision does not stand for the proposition that the court can convict an accused on the basis of videotape identification without giving counsel the opportunity to make submissions in that regard. On the contrary, the underlined passage in the above-quoted passage clearly anticipates that the court will give counsel the opportunity to call evidence and make submissions on such matters as the quality and content of the tape and, in this case, the relevance of any other identification evidence, before determining the accused's guilt or innocence. In other words, while the Nikolovski decision makes it clear that the inability of the defence to cross-examine the key "witness" on identification (i.e., the judge) is not fatal to a conviction in such circumstances, it does not support the proposition that the accused is not entitled to make submissions with a view to raising a reasonable doubt on the issue of identity. [17] In this case, I am not persuaded that defence counsel adopted a conscious strategy to have his case stand or fall solely on the ability of the trial judge to identify the accused in order to avoid the Crown calling further identification evidence (which the Crown had indicated in its opening remarks it was in a position to do). It is obvious that if the trial judge had indicated she was unable to make a positive identification based on the videotape, it would have been open to the Crown to call further evidence. [19] The question is what the trial judge should have done in the circumstances to avoid committing herself to a positive identification in the absence of submissions. The answer is to be found in Nikolovski. There, the majority indicated that it would be appropriate for trial judges in circumstances such as these, after reviewing the tape, to indicate that they were impressed with the clarity and quality of the tape to the extent they were satisfied that a finding of identity could be based upon it. They would then invite counsel to call any evidence and make any submissions they considered appropriate with respect to the issue of identification. Once that evidence was called and submissions received, trial judges would be in a position to state whether they were satisfied that identification had been established beyond a reasonable doubt. [86] In this case, each of the accused was identified by a witness or witnesses at trial as one of the three men who picked up the machine from Happy Shacks. I have not been asked, as the trial judges were in Nikolovski and T.A.K., to reach a conclusion about identity of the accused based solely on the videotape evidence, and I have not done so. Having said that, the videotape evidence is part of the evidence in the trial and I am the trier of fact. The videotape evidence was played all the way through on one occasion during the trial, and portions of it were played several times. I have also had the opportunity to and have viewed the videotape evidence in my chambers during my deliberations. If the videotape evidence, and specifically the depiction of the accused when compared to the appearance of the accused in court, raised any doubt whatsoever about the reliability of the other identification evidence, such that I had a reasonable doubt about whether the accused were indeed the men at Happy Shacks, I would obviously reach the conclusion that identification had not been proved beyond a reasonable doubt. In fact, the videotape evidence in this case raises no such doubt. [87] Were the three accused involved in transporting the fruit-grinding machine to the Aspen Hills Ranch? [88] Although it is clear from the testimony of the witnesses making observations of the loading process that it was not possible to see who got out of the pickup truck when it arrived at Happy Shacks or who got into the pickup truck before it was driven away from Happy Shacks, I am satisfied that there is no rational inference to be drawn from the evidence other than that Mr. Montgomery and Mr. Aslam were in the pickup truck when it arrived and were in the pickup truck when it departed. They first appeared on video, and to the observers from the observation post, very shortly after the pickup truck arrived. After the loading, they walked in the direction of the cab of the pickup truck, which could not be seen, and very shortly thereafter the pickup truck departed. There was no significant other activity taking place in the Happy Shacks yard at the time. One of the Happy Shacks employees, Joe Sandy, who operated the forklift during the loading, testified that the people who arrived in the truck, pulling the trailer, were the ones who he assisted with the loading of the machine. [89] Further, Constable Blanchette testified that he drove past the pickup truck, while it was towing the fruit-grinding machine on the trailer, on Highway 97C at approximately 5:20 p.m. on October 1, 2010. From a photograph that he had been provided with, as well as dealings with Mr. Montgomery in Prince George, some years before, Constable Blanchette testified that the driver of the pickup truck looked like Mr. Montgomery. [90] On the evidence, I am satisfied that the pickup truck and the Jeep Cherokee were under continuous air surveillance from the time they left the Happy Shacks storage compound until the time they arrived at the Aspen Hills Ranch. No stops were made and consequently there was no opportunity for individuals to get out of either vehicle or for other individuals to get into either vehicle. [91] I am satisfied beyond a reasonable doubt that the three accused, Mr. Montgomery and Mr. Aslam in the truck, and Mr. Ascencio-Chavez in the Jeep, drove in tandem from Happy Shacks to the Aspen Hills Ranch, with the machine on the trailer being towed by the truck. [92] Were the three accused involved in the dismantling of the fruit-grinding machine once it was at the Aspen Hills Ranch? [93] It is clear that within minutes of the fruit-grinding machine arriving at the Aspen Hills Ranch, voices began to be captured by the audio recording device installed on the pallet. The audio device was activated by the monitor room when the vehicles pulled off the highway into the driveway for the Aspen Hills Ranch, having been deactivated once the machine was in transit from Happy Shacks. [94] Before dealing with the content of the audio recordings, I will address, to the extent I consider it necessary, the issues raised by the defence with respect to the reliability of the recordings, including their accuracy, the times of the recordings and the quality of the recordings. The issues arise only with respect to the conversations captured by the recording device installed on the machine. No issue is taken with the conversations intercepted from Mr. Szucs' telephone. [95] The device installed on the machine, or the pallet, provided two sources of recordings. The sounds it recorded could be, and were, sent directly and in live time into the RCMP intercept system, and were time and date stamped automatically. In addition, the device had an internal memory which captured the sounds, and after the device was located and seized during the search of the Aspen Hills Ranch, that internal memory was downloaded. The downloaded internal memory had to be imported into the RCMP intercept system, and the times of the recordings had to be entered manually. Both the transmitted recordings, referred to as the container audio, and the recordings from the internal memory, referred to as the device audio, spanned many, many hours, unlike intercepted telephone conversations, which might last seconds, minutes, or perhaps slightly longer. [96] I accept that both the container audio and the device audio are identical in content, although there are quality differences on occasion. That difference led Constable Geldart, who together with civilian members assembled those parts of the recordings requested by Crown to be available to become part of the evidence at trial, to select container audio on some occasions and device audio on other occasions. I accept the evidence of Ms. McLeod that when she was requested to make a disc for court purposes containing only excerpts of some of the recordings, she did not edit or modify any of the content of the recordings. I also accept her evidence as to the dates and times of each excerpt, including the corrections she made to the times during her evidence at trial. I am not troubled in the least by the fact that the software she used to copy the excerpts requested was free software available on the internet. There is no evidence of a single instance where the device audio and container audio differed or of a single instance where the excerpt was not identical, in content, to the original recordings. [97] I return now to the content of the audio recordings. It is clear from listening to the audio recordings, which I heard in court and which I have listened to during my deliberations, that there are three very different voices that can be heard conversing in close proximity to the machine very shortly after the truck was stopped in the area of the barn on the Aspen Hills Ranch. [98] With respect to evidence concerning the identification of those voices, I will deal first with Mr. Montgomery. Constable Horvath was asked to listen to a portion of the audio recordings from the device installed on the fruit-grinding machine and he identified one of the voices as that of Clifford Montgomery, based on the conversation he had with Mr. Montgomery on Olympus Drive. [99] Sergeant Kilar, an undercover cell plant who was placed in custody with Mr. Montgomery and who spent several hours speaking to him on October 4 and 5, 2010, listened to an excerpt from a recording of the machine loading process at Happy Shacks, and was able to identify Mr. Montgomery's voice as one of the voices he heard speaking. [100] Constable Poohachoff, in the monitor room, was able to listen to the audio live while watching the video feed of the trailer loading procedure. He was able to attribute words spoken to different individuals based on what he was watching. Similarly, Constable Geldart was able, while watching the video and listening to the audio, to synchronize the words and gestures so as to determine what words were being said by which participant in the loading procedure. [101] Constable Geldart was able to identify the voice of Mr. Aslam based on having heard Mr. Aslam speak while he was at the San Diego airport in the process of being transported back to Canada. [102] Constable Poohachoff and Constable Geldart heard Mr. Ascencio-Chavez identify himself as Victor in call number 16, which is a call intercepted from Mr. Szucs' telephone, and shortly after that call, which had been for the purpose of arranging a meeting, Mr. Ascencio-Chavez appeared at the Happy Shacks compound and met with Mr. Szucs. Constable Poohachoff and Constable Geldart also attended in San Diego and heard Mr. Ascencio-Chavez speak in the course of an interview and in the course of an escort from San Diego to Kelowna, respectively. Each identified the voice of Mr. Ascencio-Chavez on the recordings. [103] After the voice identification of the individual speakers, Constable Poohachoff and Constable Geldart spent many hours listening to the audio recordings, for the purpose of determining who was speaking the different words captured by the audio recording device, determining what was actually being said and attributing words spoken to different speakers. [104] There are occasions when the speakers use names in reference to each other during the intercepts, and other occasions when possible nicknames are used. Mr. Aslam at one point says "Bravo Clifford". Mr. Montgomery uses what appears to be the nickname "T" in conversation with Mr. Aslam. The name "Sal" is also used in conversation, in which both Mr. Montgomery and Mr. Aslam are asking Mr. Ascencio-Chavez if he knows what he is doing, in response to which Mr. Ascencio-Chavez laughs and confirms that he does. Those uses of names were properly used by Constables Geldart and Poohachoff in assisting them in identifying voices. [105] I will also say that having heard the audio recordings, I am satisfied that the three voices heard speaking in the vicinity of the machine right after its arrival at the Aspen Hills Ranch are the same voices attributed to the three accused during the dealings between Mr. Szucs and "Victor", in the case of Mr. Ascencio-Chavez, and to the two men initially involved in loading the machine with the assistance of the Happy Shacks employees, in the case of Mr. Montgomery and Mr. Aslam. [106] I am satisfied, on all of the evidence, that the voices heard at Happy Shacks and on the intercepts of Mr. Szucs' telephone calls have been correctly identified where attributed to Mr. Montgomery, Mr. Aslam and Mr. Ascencio-Chavez. I am also satisfied that the accused are the speakers of the words attributed to them in the transcripts of the intercepts, as proofed by Officers Geldart and Poohachoff, while the machine was at the Happy Shacks storage yard. I am also satisfied that the same three speakers, Mr. Montgomery, Mr. Aslam and Mr. Ascencio-Chavez, are the first three speakers of the words attributed to them after the machine arrived, and the audio device was activated, at the Aspen Hills Ranch. [107] In addition to the voice identification evidence, it is absolutely clear that the three men who were in the truck and the Jeep when those vehicles left Happy Shacks were still in the truck and the Jeep when those vehicles arrived at Aspen Hills Ranch. There were no other vehicles seen on the property. There is no evidence whatsoever to suggest that there was any other entrance or exit for the property other than the driveway and no evidence to suggest that any vehicles or people arrived or departed from the property until the van arrived almost four hours later. [108] Although there are occasions when a voice was heard and it was not sufficiently audible or clear to enable a determination of who the speaker is, there is no evidence which would lead me to conclude that there was a fourth person present in the vicinity of the machine before the arrival of the van. I accept the evidence of Constables Poohachoff and Geldart that when they used "UM" in the transcript, it was intended to indicate that they heard a voice but not clearly enough to attribute it to anyone. The use of "UM", I accept, was not intended to, and does not, represent that there were additional speakers in the vicinity of the machine who were unknown and unidentified. [109] Within minutes of their arrival at the Aspen Hills Ranch with the machine, the three accused engaged in conversations about dismantling the machine. At 18:01, Mr. Montgomery said, " what we'll do, is we're gonna back the thing in the shop, we're gonna work on it and take everything apart", and Mr. Ascencio-Chavez replied, in part, " I like to take the cylinder inside". Five minutes later, all three accused discussed taking the cylinders out. By then, metallic banging sounds can be heard on the recording. A few minutes after that, Mr. Aslam and Mr. Ascencio-Chavez discussed using equipment, specifically a bobcat and an excavator, to help "pick it up", an obvious reference, when coupled with the discussion about the heavy load that could be felt in the truck when going downhill, to the machine. Approximately 10 minutes later, all three accused discussed how much of the machine had to be taken apart, with Mr. Montgomery asking if the "big white things" had to come off, to which Mr. Aslam replied that "he said inside those white things is another cylinder". That kind of conversation, together with intermittent banging and machinery noises, continued over several hours. The use of tools, including screwdrivers, pliers, sledgehammers and ratchets was discussed. Approximately 90 minutes after their arrival at Aspen Hills Ranch, Mr. Montgomery said, " we're scrappin' this thing for metal". An hour later, Mr. Aslam said, " supposed to take the fuckin' thing apart and we still haven't opened it." [110] As I said earlier, a van drove onto the property at approximately 9:45 p.m. Very shortly after, Mr. Montgomery greeted a person he called Barry. For the remainder of the evening, until the departure of the truck at approximately 11:45 p.m., a fourth voice, which I accept on the evidence was the voice of Barry Ready, can be heard on the recording. Mr. Ready's voice can be heard after the departure of the truck, but no other voices can be heard on the recording. No vehicles arrived or departed from the property until the arrival, and shortly after that the departure, of the Tahoe and the departure of the silver Jeep in tandem with the Tahoe, on the evening of October 2, 2010. Aside from the persons who arrived and then left during the retrieval of the Jeep, no one other than Mr. Ready was observed on the property, through to and including the time the police entered onto the Aspen Hills Ranch property on October 4, 2010 to execute the search warrant. [111] The machine was found to have been dismantled when Constable Fradette crept down to the barn area near midnight on October 2 or in the early morning hours of October 3, 2010, found the cylinders open, and reached his hand inside. [112] When the search warrant was executed at the Aspen Hills Ranch on October 4, 2010, purple dye was found in various places, including on parts of the machine, on a garden hose, on the ground in front of the barn and on the floor of the barn. Purple dye was also found on nitrile gloves found inside the barn. The dye found on the gloves was chemically indistinguishable from the purple dye found on the clothing seized from Mr. Montgomery's house when it was searched on October 4, 2010. [113] I will pause to note that the dye on the gloves and the clothing was also chemically indistinguishable from the sample of the dye that was sent to the lab and said to be the remainder of the dye that Constable Poohachoff sprinkled inside the cylinders after filling them with fake cocaine. As defence counsel correctly submitted, there is a real issue with respect to continuity of the sample sent to the lab. That obviously diminishes the weight, if any, to be given to the evidence with respect to a comparison of the sample dye and the dye found on items seized during the searches. However, it does not affect the analysis of the evidence with respect to the comparison of the dyes found on items seized. Further, there is at least some evidence that whatever dye was sprinkled inside the cylinders dyes human skin purple, based on the purple spots observed on Constable Poohachoff by his colleagues after the machine had been reassembled for the controlled delivery. [114] I will also say that I am mindful of the submissions of defence counsel concerning the quality of some of the officers' notes. I have taken those submissions into account in assessing the evidence and making my findings of fact. [115] On all of the evidence, I am satisfied beyond a reasonable doubt that the three accused, acting in concert, participated in dismantling the machine after transporting it from the Happy Shacks storage facility to the Aspen Hills Ranch. I find that the accused succeeded in opening the cylinders, and in the process, Mr. Montgomery and Mr. Aslam got dye on their clothing, and dye also ended up on gloves, on the ground in front of the barn, on the floor of the barn, and on parts of the machine. The three accused left the Aspen Hills Ranch, after Mr. Montgomery instructed Mr. Ready to "take all this shit, break it down" and "get the shit, get it all in there, all the bolts, all the shit, all the pins, just break it all down and put it in there. Okay? We're outta here right now ", leaving the silver Jeep behind. Possession of Cocaine for the Purpose of Trafficking [116] In order to prove possession of cocaine, the Crown must prove knowledge and control, and that the two co-existed at some point in time: R. v. Anderson, [1995] B.C.J. No. 2655 (C.A.); R. v. Fisher, 2005 BCCA 444; and R. v. Twohey, 2009 BCCA 428. As the Court said in Twohey, at para. 13: Knowledge and control does not need to be proved by direct evidence. Such a finding can be made based on circumstantial evidence, but only when the trier of fact is satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts: see R v Vu, 2004 BCCA 381 at para. 31, R. v. Cooper, [1978] 1 S.C.R. 860. [117] The removal of the majority of the real cocaine by the police, before the controlled delivery of the machine to Happy Shacks, is irrelevant to the analysis, as it is the accused's belief and expectation which governs the analysis: R. v. Chan (2003), 178 C.C.C. (3d) 269 (Ont. C.A.) (leave to appeal to the Supreme Court of Canada dismissed) at 21, 35-37, 40 and 43. [118] In this case, all three of the accused had actual joint possession of the machine containing the placebo cocaine and samples of real cocaine. Their knowledge of, or belief as to, the contents of the machine is made abundantly clear by their actions and words once they got the machine to the Aspen Hills Ranch. [119] Much is made by the defence of the characterization, by the Crown, of the machine as a prop, and it has been strenuously submitted that the Crown ought to have obtained an expert to opine about the machine and whether or not it was capable of being used to grind fruit. Those submissions are without merit. Whether the machine ever had been, or ever could have been, used on its own or as part of a larger machine for grinding fruit is rendered irrelevant by the fact that as soon as the machine had been taken to a remote location, the three accused set about dismantling it. Those actions demonstrate that at least to these three accused, the machine was being used solely as a delivery container. [120] It is clear that all three of the accused were aware of the nature of the contents, or expected contents, of the machine. All three engaged in discussions about extracting the cylinders, and what was to be done with the cylinders once the machine was dismantled. Mr. Aslam asked Mr. Montgomery, "How many in each? Twenty-five in each?", clearly referring to each cylinder, and Mr. Montgomery responded, "I think thirty somethin', thirty, thirty two, thirty four ". [121] There is no rational inference to be drawn from all of the evidence other than that all three accused knew, or believed, that there was cocaine inside the cylinders which were inside the drums of the machine. [122] The quantity of cocaine, approximately 97 kilograms, could only have been for the purpose of trafficking, a conclusion amply supported by the expert evidence and by common sense. [123] Consequently, I find each accused guilty on Count 1, possession of cocaine for the purpose of trafficking. Conspiracy to Traffick Cocaine [124] I turn now to Count 3 on the indictment, which charges all three accused with conspiring to traffick cocaine. A conspiracy is simply an agreement between two or more people to commit an unlawful act. The underlying unlawful act need not have been committed nor the object of the agreement fulfilled in order for the offence of conspiracy to be completed. [125] In R. v. Papalia and R. v.Cotroni, [1979] 2 S.C.R. 256 at 276-7, Dickson J., for the majority, said: The word "conspire" derives from two Latin words, "con" and "spirare", meaning "to breathe together." To conspire is to agree. The essence of criminal conspiracy is proof of agreement. On a charge of conspiracy the agreement itself is the gist of the offence: Paradis v. R.[[1934] S.C.R. 165], at p. 168. The actus reus is the fact of agreement: D.D.P. v. Nock [[1978] 3 W.L.R. 57 (H.L.)], at p. 66. The agreement reached by the co-conspirators may contemplate a number of acts or offences. Any number of persons may be privy to it. Additional persons may join the ongoing scheme while others may drop out. So long as there is a continuing overall, dominant plan there may be changes in methods of operation, personnel, or victims, without bringing the conspiracy to an end. The important inquiry is not as to the acts done in pursuance of the agreement, but whether there was, in fact, a common agreement to which the acts are referable and to which all of the (Page 277) alleged offenders were privy. In R. v. Meyrick and Ribuffi [(1929), 21 Cr. App. R. 94 (C.C.A.)], at p. 102 the question asked was whether "the acts of the accused were done in pursuance of a criminal purpose held in common between them", and in 11 Halsbury (4th ed.), at p. 44 it is said: It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. There must be evidence beyond reasonable doubt that the alleged conspirators acted in concert in pursuit of a common goal. [126] In R. v. J.F., 2013 SCC 12, at paras. 52-4, the court said: [52] In my view, where a person, with knowledge of a conspiracy (which by definition includes knowledge of the unlawful object sought to be attained), does (or omits to do) something for the purpose of furthering the unlawful object, with the knowledge and consent of one or more of the existing conspirators, this provides powerful circumstantial evidence from which membership in the conspiracy can be inferred. To be precise, it would be evidence of an agreement, whether tacit or express, that the unlawful object should be achieved. Ultimately, that issue is one for the trier of fact, who must decide whether any inference other than agreement can reasonably be drawn on the evidence. But, as I will explain, the case at hand illustrates how a constellation of such facts can make a finding of membership a virtual certainty. [53] In so concluding, I note that conspiracies are often proved by way of circumstantial evidence. Direct evidence of an agreement tends to be a rarity. However, it is commonplace that membership in a conspiracy may be inferred from evidence of conduct that assists the unlawful object. Justice Rinfret made this basic point in Paradis v. The King, [1934] S.C.R. 165, some eight decades ago: Conspiracy, like all other crimes, may be established by inference from the conduct of the parties. No doubt the agreement between them is the gist of the offence, but only in very rare cases will it be possible to prove it by direct evidence. [p. 168] [54] Furthermore, it is not necessary that all members of a conspiracy play, or intend to play, equal roles in the ultimate commission of the unlawful object. Indeed, members in a conspiracy need not personally commit, or intend to commit, the offence which each has agreed should be committed: R. v. Genser (1986), 39 Man. R. (2d) 203 (C.A.), aff'd [1987] 2 S.C.R. 685. Any degree of assistance in the furtherance of the unlawful object can lead to a finding of membership as long as agreement to a common plan can be inferred and the requisite mental state has been established. [127] The Crown relies on the actions of all three accused at the Aspen Hills Ranch, and the statements made by each, in order to prove that a conspiracy to traffick cocaine existed. Acts and statements of one co-conspirator are only admissible against other co-conspirators if the co-conspirators' exception to the hearsay rule, also known as the Carter rule, applies. In R. v. Mapara, 2005 SCC 23 at paras. 7-8, the Chief Justice, for the majority, said: 7 The central issue, however, is not the importance or ultimate reliability of the evidence, but its admissibility. The appellant concedes that under the law as it presently stands, the evidence was admissible under an exception to the hearsay rule known as the co-conspirators' exception, which permits reception of evidence of what co-conspirators say out of court in furtherance of the conspiracy. This is known as the Carter rule, after this Court's decision in R. v. Carter, [1982] 1 S.C.R. 938. The appellant argues that this rule should be set aside or altered to make Binahmad's evidence of the conversation with Wasfi inadmissible. 8 The co-conspirators' exception to the hearsay rule may be stated as follows: "Statements made by a person engaged in an unlawful conspiracy are receivable as admissions as against all those acting in concert if the declarations were made while the conspiracy was ongoing and were made towards the accomplishment of the common object" (J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 303). Following Carter, co-conspirators' statements will be admissible against the accused only if the trier of fact is satisfied beyond a reasonable doubt that a conspiracy existed and if independent evidence, directly admissible against the accused, establishes on a balance of probabilities that the accused was a member of the conspiracy. [128] The Crown contends that statements made by any one of the accused in the presence of another accused are not hearsay, and need not meet the Carter test in order to be admissible against that or those other accused. If, in making that submission, Crown intends to suggest that what is said by one accused in the presence of another accused is proof of the truth of contents of what is said by the speaker and directly admissible against the other, I do not accept that submission. What another person says might be helpful in determining what an accused says in response, or what the words of an accused mean. An accused can only be responsible for what he says. Unless an accused adopts or agrees with what is said by another person, what that other person says, outside court, even when it is in the presence of the accused, is not evidence against the accused. However, if I find that the Crown has proved that a conspiracy existed, and that an accused was probably a member of the conspiracy, then statements made by other probable members of the conspiracy which were made in furtherance of the conspiracy, whether in the presence or outside the presence of that accused, will be admissible against that accused, which is the Carter rule. [129] In this case, I am satisfied beyond a reasonable doubt that there was a conspiracy to traffick cocaine. By the acts and words of each of the accused, considered only in relation to that accused, both before and after the machine was transported to Aspen Hills Ranch, I am satisfied that each accused was a member of the conspiracy. Each of the accused was an active participant in loading the machine onto the trailer and readying it for transportation. Although in two separate vehicles, each of the three accused arrived at the Aspen Hills Ranch at the same time as the machine and each of the three accused immediately engaged in conversations and actions directed at gaining access to the contents of the machine. [130] Mr. Montgomery and Mr. Ascencio-Chavez had detailed conversation, at the outset of the dismantling process, about where the contents of the machine would go. Mr. Montgomery asked if Mr. Ascencio-Chavez wanted two cylinders for Vancouver, to which Mr. Ascencio-Chavez replied yes. Mr. Montgomery stated he would telephone his driver to take the cylinders from the Aspen Hills Ranch to Vancouver, and that they could then take one cylinder back to his house. Mr. Aslam, based on his statements at the Aspen Hills Ranch as recorded, appears to have been the most active of the three in determining how to dismantle the machine, with some guidance and directions from Mr. Ascencio-Chavez in particular, so that the three men could access the cylinders. Mr. Aslam made statements about what they were supposed to be doing and statements about how long it was taking to accomplish the task. He also referred to 100 kilos, which is close to the combined weight of the contents of the three cylinders. [131] Considering the actions of all three accused, including the transportation of the machine to the Aspen Hills Ranch, followed by the participation of each in the immediate attempts to dismantle the machine, taken together with their statements concerning the contents of the machine and the planned distribution of the contents of the machine, all of which I conclude was in furtherance of the agreement to traffick cocaine, I am satisfied beyond a reasonable doubt that each of the three of the accused were members of the conspiracy to traffick cocaine and I find each of the three accused guilty, as charged, of Count 3 on the indictment. Conspiracy to Import Cocaine [132] Count 2 of the indictment charges all three accused of conspiracy to import cocaine into Canada. The cocaine entered Canada on September 21, 2010, at which time the importation was complete: R. v. Bell, [1983] 2 S.C.R. 471 at 489. I accept that once the cocaine was in Canada, any conspiracy or agreement to import it was at an end. However, evidence gathered after an importation, including of acts and declarations of an accused person, may be used to infer the existence of the conspiracy and the membership of the accused in the conspiracy: R. v. Miller (1984), 12 C.C.C. (3d) 54 (B.C.C.A.) at 84-5; United States of America v. Shanker, 2011 ONCA 452 at para. 7. [133] As the Ontario Court of Appeal said in R. v. Gassyt and Markowitz (1998), 127 C.C.C. (3d) 546 (Ont. C.A.) at para. 17: First, it is my view that there was no merit to counsel's argument at trial. The fact that the evidence was gathered after the deed was (seemingly) done is of no moment. Indeed, before the introduction of wiretap evidence in the investigative process, I would think it would have been the rare case where direct evidence would be available that the conspirators met, discussed and actually agreed to carry out a common unlawful purpose. A conspiracy is more likely to be proven by evidence of overt acts and statements by the conspirators from which the prior agreement can be logically inferred. The following words of Rinfret J. in Paradis v. The King (1934), 61 C.C.C. 184 at 186 (S.C.C.) are apposite to this issue: Conspiracy like all other crimes, may be established by inference from the conduct of the parties. No doubt the agreement between them is the gist of the offence, but only in very rare cases will it be possible to prove it by direct evidence. Ordinarily the evidence must proceed by steps. The actual agreement must be gathered from "several isolated doings" (Kenny, Outlines of Criminal Law, 13 ed., p. 294) having possibly little or no value taken by themselves, but the bearing of which one upon the other must be interpreted; and their cumulative effect, properly estimated in the light of all surrounding circumstances, may raise a presumption of concerted purpose entitling the jury to find the existence of the unlawful agreement. [134] I am satisfied that acts and declarations made after the importation was complete, and the conspiracy at an end, unless they have a valid non-hearsay purpose, are only admissible as direct evidence against the specific accused who did the acts or made the declarations, and cannot be admissible against other accused under the Carter rule, as they cannot be said to have been in furtherance of a conspiracy that was already at an end. [135] Turning to the evidence, it is impossible to believe on the evidence before me that one person was responsible for all of the steps necessarily required to assemble and ship the cocaine from Argentina to Canada. The only logical and rational inference to draw from all of the evidence is that there was an agreement between two or more people (a conspiracy) to import the cocaine. The real issue here is whether the Crown has proved that any or all of the accused were members of that conspiracy. [136] I will deal first with Mr. Aslam. Crown has provided, in its written submissions, a list of 14 items which it submits is proof of his membership in the conspiracy to import. Three of them relate to what appears clear on the evidence, namely that Mr. Montgomery and Mr. Aslam are close associates of each other. I accept that there was regular communication between Mr. Aslam and Mr. Montgomery over the summer of 2010. As I said earlier, items belonging to Mr. Aslam, including his passport, were found at Mr. Montgomery's house when the search warrant was executed on October 4, 2010, as was an article of the clothing he wore while loading the machine at Happy Shacks. Standing on its own, of course, evidence of close association or friendship does not lead to the conclusion that Mr. Aslam was a member of a conspiracy to import cocaine, even if Mr. Montgomery is found to have been. [137] Nine of the items on Crown's list relate to Mr. Aslam's role in picking up the machine, transporting it to the Aspen Hills Ranch, and dismantling the machine. Specifically, Crown relies on Mr. Aslam's apparent knowledge that Mr. Ascencio-Chavez knew how to access the cocaine inside the machine, Mr. Aslam's awareness of the approximate quantity of cocaine, and his inquiry of Mr. Montgomery about how much cocaine was in each cylinder. Again, none of these items necessarily led to the conclusion that Mr. Aslam was a member of a conspiracy to import cocaine, as opposed to being a member of a conspiracy to traffick cocaine after it arrived in Canada. [138] Lastly, Crown relies on Mr. Aslam's conduct in leaving the Aspen Hills Ranch after the cylinders were opened and the placebo cocaine found, then abandoning his truck in Surrey, followed by his eventual arrest, with Mr. Ascencio-Chavez, near the U.S./Mexico border. Any and all of these actions are equally consistent with Mr. Aslam's possession of cocaine and membership in a conspiracy to traffick cocaine as with his membership in a conspiracy to import cocaine. [139] Of course, it is the whole body of evidence upon which a verdict is to be based. Given that the case is a circumstantial one, I must be persuaded that Mr. Aslam's participation in a conspiracy to import cocaine is the only rational inference to be drawn from the body of evidence before me. Taking into account all of the evidence which is properly admissible against Mr. Aslam, I am not persuaded that the Crown has proved that Mr. Aslam was a member of a conspiracy to import cocaine. I find Mr. Aslam not guilty of Count 2. [140] I turn now to Mr. Ascencio-Chavez. The Crown's case against him is much more compelling. In addition to his actions with respect to picking up, transporting and dismantling the machine, he arrived in Canada on September 25, 2010, the day after Staff Sergeant Gately had called Mr. Szucs to tell him the machine had cleared customs and would be picked up for delivery on September 27, 2010. He used a false name to enter Canada, to rent the silver Jeep, and to conduct his calls and meetings with Mr. Szucs. He was in communication with Mr. Diaz about the pick-up of the machine and in his first dealings with Mr. Szucs introduced himself as Fer's friend. He paid $5,000 cash to Mr. Szucs to secure release of the machine to him. While he was dealing with Mr. Szucs, he had a telephone conversation with Mr. Diaz. Mr. Ascencio-Chavez inspected the waybill attached to the plastic wrapped around the machine. After meeting with Mr. Szucs, I find that Mr. Ascencio-Chavez went to meet with Mr. Montgomery, calling him on the way, and then returned with Mr. Montgomery to further inspect the machine, including taking measurements of it. Once the machine was at the Aspen Hills Ranch, Mr. Ascencio-Chavez provided information to Mr. Aslam and to Mr. Montgomery about how to access the contents of the machine, and had the following significant exchanges, and for ease of reference I will refer to the clip number of the audio recordings in Exhibit 17: Clip 27: SAC: That's the thing, I like to take the cylinder inside. It's very small. Clip 27: CM: How big are the cylinders? SAC: That one check is this CM: Have you seen them before? SAC: From here to here. Clip 28: SAC: This one. TA: We take it apart? SAC: Yeah, yeah, yeah. inside upside down cylinder. Clip 30: TA: Now all we gotta do is unbolt that, right? SAC: Yes. TA: Pull that and go back in and push everything out. Now, do we need open this too? SAC: No, no, no. Just after we take these. take from here TA: this way? SAC: apart, yes. Clip 31: TA: We got to completely fuckin' gut this thing. CM: Are you fuckin' kidding me? TA: Obviously Sal knows what he's doing, right? Right? CM: Do you know what you're doing? SAC: Yeah, I will. SAC: I know exactly how to take the, the cylinder out of that. Clip 32: SAC: No, I think there's only two. To take that the, the other cylinder out. We have to put it in, stand up TA: Can't we just stand up with this then cause this side you say opens, right? SAC: Yes. Clip 33: TA: we got to pull these pins out. SAC: Yeah, right, ok, I know. TA: We have to. SAC: No, they told me how. SAC: Yes. Clip 34: CM: Fuck, this thing's very poorly put together. You gotta tell them to do a little better job. SAC: Okay (laughs) CM: It made it but it wouldn't take much for them to take it apart. SAC: But they're oh, what happened to CM: Cleared it, so then Canada cleared it. [141] Considering just the words and actions of Mr. Ascencio-Chavez, but as understood in the context of what was transpiring at the time and what was being said by others, and considering all of the evidence properly admissible against him, I am satisfied beyond a reasonable doubt that Mr. Ascencio-Chavez was a member of the conspiracy to import cocaine. I find him guilty of Count 2 on the indictment. [142] I will pause to note that I have concluded that the stamp purporting to show entry into Argentina which was found inside the passport in the name of Victor Perez Rodriguez is hearsay evidence, and is not admissible as proof that the bearer of the passport was in Argentina. Consequently, I have not considered it in my assessment of the case against Mr. Ascencio-Chavez. [143] Finally, I turn to Mr. Montgomery and the evidence directly admissible against him. The telephone subscribed to by Mr. Montgomery and found in his possession when he was arrested on October 4, 2010, was in communication with a telephone associated with Mr. Diaz, who provided instructions, documents and money to Mr. Szucs to enable Mr. Szucs to facilitate the importation of the machine into Canada. Although I am unable to conclude, on the evidence before me, whether Mr. Diaz was a member of the conspiracy or a dupe like Mr. Szucs, it is clear that Mr. Diaz played a role in facilitating the importation, as described earlier. Mr. Montgomery clearly knew, in advance, what was inside the machine. He actively participated in the loading of the machine, the transportation of the machine and the immediate steps taken to dismantle the machine, directing that the machine would be left for scrap. He was actively involved in discussing and determining, together with Mr. Ascencio-Chavez, where the contents of the machine would go. He knew the approximate weight of product in each cylinder, telling Mr. Aslam "30 , 32, 34". He spoke of "his driver" and "his guys" with respect to what I find were discussions concerning the trafficking of cocaine, including but not limited to that he expected to find inside the machine, using expressions such as "cases" and "on the cuff", which I accept are commonly used expressions in the drug trade to mean kilograms and fronting, or providing goods without immediate payment, respectively. He made the statement that Mr. Ascencio-Chavez needed to tell "them" to do a better job, in reference I find to the quality of the machine, and made reference to Canada clearing the machine, clearly in relation to the importation. [144] I have considered the evidence of the expert, Staff Sergeant Woodworth with respect to the different roles that may be played by different individuals in a conspiracy to import cocaine. Much of that evidence is nothing more than common sense, and would apply with respect to the export/import of most goods, as observed by the Court of Criminal Appeal of the Supreme Court of Australia in R. v. Toe, [2010] SASC 39. It is not necessary that I determine the specific role played by any particular individual member of the conspiracy, nor that every member of the conspiracy played an equal role. [145] On all of the evidence, I find that the only rational inference to be drawn from all of the evidence admissible against Mr. Montgomery is that he was a member of the conspiracy to import cocaine into Canada and I find him guilty on Count 2. Conclusion [146] In summary, on Count 1, I find all three accused guilty. [147] On Count 2, I find Mr. Montgomery and Mr. Ascencio-Chavez guilty. I find Mr. Aslam not guilty. [148] On Count 3, I find all three accused guilty. "A.J. Beames J." The Honourable Madam Justice Beames