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R. v. Venneri, 2012 SCC 33 (CanLII)


A police investigation called “Operation Piranha” revealed that D was operating a large drug-trafficking network in the Montréal area.  The wiretap and physical surveillance eventually led to two large seizures of cocaine in October of 2005, from the homes of two accomplices of D.  Following the seizures, D turned to V for assistance when his previous source refused to supply him with additional cocaine.  It was then that V, who previously had purchased drugs from D, began to supply D instead.  This arrangement ended in March of 2006 when V was arrested following a search of his home, where the police seized, among other things, nine grams of cocaine, a firearm, and a large sum of cash.  The trial judge convicted V of eight offences, including the commission of an offence for a criminal organization (count 3), instructing the commission of an offence for a criminal organization (count 5), and possession of cocaine for the purpose of trafficking (count 4).  The majority of the Court of Appeal entered acquittals for both criminal organization offences.  It found that V was not a member of a criminal organization and had not trafficked in cocaine “for the benefit of” or “in association with” a criminal organization.  It also quashed V’s conviction for possession of cocaine for the purpose of trafficking.

                   Held:  The appeal should be allowed for the sole purpose of setting aside V’s acquittal on count 3.

                   The Crown failed to prove that the drugs seized bore any relation to the conspiracy of which V was a part.  Absent that evidence, V’s conviction on the count of possession of cocaine for the purpose of trafficking amounts to an unreasonable verdict.

                   To secure a conviction under s. 467.13 of the Criminal Code, the Crown must prove, as a preliminary matter, the existence of a “criminal organization”, as defined in s. 467.1, and membership in it.  

By insisting that criminal groups be “organized”, Parliament has made plain that some form of structure and degree of continuity are required to engage the organized crime provisions that are part of the exceptional regime it has established under the Criminal Code.  Courts must not limit the scope of the provision to the stereotypical model of organized crime.  In this case, V was an associate of D rather than a member of his criminal organization.  V operated with a high degree of independence and showed little or no apparent loyalty to D and his associates.  They did not share mutual clients.  Nor did V have any real stake or financial interest in D’s organization.  The dealings between V and D were autonomous transactions between like-minded criminals, each guided by their own self-interest.  At all times, V was only a client or supplier of the organization ― an independent opportunist.  He played no role within the organization.

                   The fact that V was not a member of D’s organization does not preclude a finding that V operated “in association with” the organization when he acted as its client and its supplier contrary to s. 467.12 of the Criminal Code.  The phrase “in association with” captures offences that advance, at least to some degree, the interests of a criminal organization.  It requires a connection between the predicate offence and the organization, as opposed to simply an association between the accused and the organization.  The Crown must also demonstrate that an accused knowingly dealt with a criminal organization.  There is ample evidence that V knew that D was operating a large drug-trafficking organization ― or made himself wilfully blind to that obvious fact.  And the evidence leaves no room for doubt as to the required nexus between D’s organization and the offence of trafficking committed by V.  The organization received a direct benefit from the commission of the offence.

Jim O'Neil, LL.B.

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