IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. MacKeigan, 2011 NSPC 37
Date: April 18, 2011
Docket: 1973769, 1973670, 1973771
Registry: Truro
Between:
Her Majesty The Queen
v.
Sherrill Leigh MacKeigan
Judge: The Honourable Judge Timothy Gabriel
Heard: November 22, 23, 26, 2010; and February 22, 23, 24,
25, 2011
Oral Decision: April 18, 2011
Charge: 355(a) x 2
Counsel: Jan Murray for the Crown
Peter Planetta, for the Defence
GABRIEL, JPC (ORALLY):
[1] The accused, Sherrill Leigh MacKeigan, stands charged that :
(a) between June 9, 2006 and October 18, 2007, at or near Colchester County in the Province of Nova Scotia, she did possess property to wit: 2006 Volkswagen Golf, vehicle identification number 9BWGR21JO64007089, knowing that all or part of the property was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment contrary to section 354 of the Criminal Code, thereby committing an indictable offence in violation of section 355(a) of the said code; and that
(b) between October 23, 2002 and September 26, 2007, at or near Colchester County in the Province of Nova Scotia, she did possess property to wit: vehicles and other property, knowing that all or part of the property was obtained or derived directly or indirectly as a result of commission in Canada of an offence punishable by indictment contrary to section 354 of the Criminal Code, thereby committing an indictable offence in violation of section 355(a) of the said code.
EVIDENCE
[2] The accused was born on March 29, 1981. She is originally from New Glasgow, Nova Scotia, but moved with her parents to Calgary, Alberta, at four years of age. While she maintained some connection with Nova Scotia, coming back during portions of the summer months in most years, she did not return to reside principally in the Province until the year 2000. At that time, she returned to live in the basement apartment of a residence owned by her aunt and uncle. She remained there for a short period of time, before acquiring premises of her own.
[3] In 2003, Ms. Mackeigan moved to Truro. Her long range goal was to pursue a career as a veterinary assistant. To that end, she hoped to eventually enroll in Success College in Truro.
[4] Her education proceeded in starts and stops. To earn income for tuition, and support herself, Ms. MacKeigan found employment at a piano bar in a local hotel. It was there, in 2005, that she met Christopher Lynds . A relationship began almost immediately. They maintained some level of involvement with each other until the latter part of September, 2007.
[5] The intensity of their relationship fluctuated. It included one period of at least several months duration when they cohabited at Mr. Lynds’ residence (511 Jollytown Road, RR#2, Truro, Nova Scotia), periods when they were no longer residing together but still dating, and short periods of time when they were not "exactly"seeing each other, but still maintained a clear “connectedness”.
[6] This relationship completely ended when "Operation Haze"came to fruition. On September 26, 2007, Mr. Lynds and his brother, Curtis (among others) were arrested, charged, and (later) convicted of significant drug trafficking offences. Many assets were seized, including several vehicles contained in a large garage at 511 Jollytown Road.
[7] No attempt will be made at this point to inventory the property seized from Messrs. Lynds, both of whom were targeted in this operation. However, individual items of property will be referenced later as they become pertinent to these reasons.
[8] After the drug trafficking investigation was concluded, and the arrests made, a second stage of the investigation began. This dealt with the proceeds of the targets’ drug trafficking activities. While the accused did face drug charges herself, these have already been concluded and are not the focus of the case at bar. Important evidence in relation to the proceeds charges that she currently faces was provided by an undercover police officer.
[9] Lisa Whittington was the Crown’s first witness. She is a corporal in the RCMP with 10 years of service and was seconded to the Truro Drug Section at the relevant time. She worked in an undercover capacity for 7 months.
[10] Corporal Whittington was tasked to assist the Operation Haze team with the investigation of certain named targets, collectively dubbed "the Colchester Crime Group". The brothers Christopher and Curtis Lynds were believed to be prominent within this group. Her undercover assignment lasted from late February 2007 to September 26, 2007.
[11] Corporal Whittington’s objective was to get close to the accused, who was Christopher Lynds’ girlfriend. She succeeded in this endeavor, and what follows is a summary of the most relevant portions of her testimony.
[12] The RCMP had learned that the "New Breed Clothing Store" on Provost Street, New Glasgow, was one of three businesses in the Province under that name being operated by one or the other of the Lynds brothers.
[13] Corporal Whittington was directed to proceed to the New Glasgow store and identify people frequenting the establishment , particularly those noted as targets. On her second day in this capacity (February 26, 2007) Corporal Whittington met and began the process of befriending one such target, the accused, Sherrill MacKeigan. Not only was she known to be the girlfriend of the accused, Christopher Lynds, she was also known to work as an employee in that store.
[14] Corporal Whittington initially identified herself to the accused as "Lisa", and used a credit card in the name of "Lisa Leblanc" to make some clothing purchases. She further indicated that she was looking for a place to stay in town, and the two discussed some options in that regard. A rapport was established.
[15] Their discussions on this date branched out to cover topics such as the store, clothes, local clubs, and the like. Corporal Whittington advised that she was "depressed" as a result of some personal things going on in her life. Some ecstasy or "E"might help to bring her "up". Did Ms. MacKeigan know someone with whom she could connect for that purpose?
[16] The accused confided that she could obtain some ecstasy from her boyfriend at eight dollars a tablet. Corporal Whittington asked her to get 10. She then asked the accused about "coke" ‑ where she could score a gram. Ms. MacKeigan indicated that she could get that from her boyfriend too "at sixty dollars a gram...my boyfriend has the best prices".
[17] Their next meeting occurred on March 2, 2007. At that time the officer received the ecstacy and coke, and paid the accused for these purchases. She tried on more clothes at the store and arranged a further meeting.
[18] The March 19, 2007 meeting once again took place at the New Breed clothing store. At that time the accused provided more details of her life. She described her current living arrangements, that she was involved in an on again off again relationship with "Chris" (although she did not mention his last name at that time), and that the clothing store was owned by him. The store was closing soon. When it did, she advised that she intended to collect Employment Insurance.
[19] Their meeting concluded as Corporal Whittington provided her with $180 for her next purchase ‑ an "8 ball" (or 3.5 grams of cocaine). The accused indicated that she would contact her in a couple of days.
[20] They subsequently arranged to meet again on March 27, 2007, this time at the accused’s home, which consisted of an apartment on Prince Street in Truro. They drove around for a while in Constable Whittington’s vehicle, and had a general conversation about the accused’s boyfriend, how long they had been together ("off and on" over a period of several years") where and how they had met (at a local piano bar while the accused was employed there), where they accused had lived prior to Nova Scotia (Calgary, Alberta ), the fact that her boyfriend Chris was a diabetic, and other personal peripheral matters.
[21] During the course of this conversation, Corporal Whittington pressed the accused to confirm that Chris would sell to her at the price previously quoted. The accused assured her that her boyfriend had been doing this for 15 years, he does all of Truro and she could count on the price that had been earlier provided to her.
[22] On April 3, 2007 the two arranged to meet again. This time, Corporal Whittington picked Ms. MacKeigan up at her home, and the two drove out in her vehicle to 511 Jollytown Road. There the officer met Christopher Lynds for the first time. She had recognized him from photographs and she had also was able to observe his name on several pieces of mail that were lying about the premises.
[23] Corporal Whittington spent some time describing Mr. Lynds’ premises and the environs. All of the time she spent there that day, and most of the time spent on subsequent visits, occurred in the large garage on Mr. Lynds’ property, adjacent to his residence.
[24] This garage consisted of 5 bays, each with doors. The final bay was a common "residential" compartment with laptop, kitchen counter and cabinets, microwave, refrigerator, couch, pool table, and a ½ wall.
[25] With respect to the other 4 bays, one had tools and some other equipment therein, consistent with auto body work. For the most part, these bays were empty. Sometimes, on subsequent visits, Cpl. Whittington would notice a vehicle there having work done, but this was rare.
[26] The residential bay, or compartment, had a video surveillance screen mounted in the vicinity of the cabinets, showing the surrounding area. This screen was divided into 4 different segments or "views" of the road and the surrounding properties. In this way, all traffic on the road could be monitored.
[27] The surrounding area was relatively rural, consisting of approximately 2 cleared acres, with the house itself at the end of a large turn around driveway. A further walkway led from the house down a slight embankment to the garage. There was also another "smaller" garage on the property, which will not be referenced further in this decision.
[28] Exhibit 1 is reproduced as Appendix A. It consists of a hand drawn sketch, prepared by Corporal Whittington showing the big garage and its interior, as well as the situation of the driveway and the residence, in relation to Jollytown Road. The furthest segment of the garage is the eponymous "Margaret’ s apartment" occupied by a tenant of Mr. Lynds. The residential compartment is immediately adjacent, and is the area where all of Cpl. Whittington’s meetings with Mr. Lynds took place. This area measures approximately 15 feet by 40 feet. Customer access and egress seemed to take place via the garage bay doors.
[29] When Corporal Whittington arrived at Mr. Lynds’ residence for the first time, he was speaking into two different cell phones at once. While thus engaged, she watched him take out scales and some spoons, and to scrape some white powder off of a "brick" onto a scale. This white powder was placed in a baggie, and it was provided by Mr. Lynds to a person who was apparently a visitor to the premises. This third party also provided Mr. Lynds with some money.
[30] People continued to come from and go transacting the same sort of business while Corporal Whittington and the accused were present. They had a clear and unobstructed view of these transactions. There were at least six unknown males and one unknown female who made such purchases from Mr. Lynds on this date.
[31] After she had watched a number of transactions, Ms. MacKeigan said to Corporal Whittington: "Speak up Lisa or you’re gonna miss your turn again". At this point Mr. Lynds looked at her and said, "What are you looking for?"
[32] After she was introduced to Mr. Lynds by the accused (as her girlfriend "Lisa") Corporal Whittington told him that she was seeking three "8 balls if you’ve got it". She was quoted $51.00 per gram by Mr. Lynds, and she accordingly made the purchase .
[33] They remained on the premises for a rather lengthy period of time that day. The topics discussed during that interval included Ms. MacKeigan’s indication that Chris did "some" legitimate work. In addition to the New Breed clothing business (previously mentioned) he also did work on automobiles in the garage. She went on to say that he had registered his business some years ago under the title "Like New Car Care", however he had only been doing legitimate business for the past three months or so. Ms. MacKeigan indicated that the reason he was doing some legitimate business was because it looks good on the books.
[34] On the drive home, the accused asked Corporal Whittington if she would "sell her half" of the drugs she had purchased. She responded by saying that she couldn’t, because the guys she was selling to "were expecting a certain amount, they’d weigh it".
[35] Their next contact came on April 6, 2007. This occurred by telephone. Cpl Whittington called the accused to see if they could go out and meet with Mr. Lynds to purchase more drugs. The accused suggested to her at that time "you can just go yourself ‑ he’ll sell to you for the same price. I’ll call Chris and let him know you’re coming." On that basis, Cpl. Whittington went to Christopher Lynds’ residence on her own, and purchased another quantity of crack cocaine.
[36] She and the accused met again on April 25, 2007. Cpl. Whittington drove to the accused’s apartment and the two traveled to a local mall in Ms. MacKeigan’s vehicle. This was the black 2006 Volkswagen Golf automobile mentioned in Count 1 of the indictment.
[37] Ms. MacKeigan provided some details in relation to her acquisition of the vehicle. She advised that she had tried to buy the car on her own but had not been able to get the financing. She tried again, and the only reason that she succeeded this time was because Chris went with her and made a down payment for her.
[38] This down payment amounted to ten thousand dollars, and included several thousands in 20 dollar bills. The fact that the down payment was made up of such a large amount of relatively small denominations embarrassed the accused.
[39] The accused also talked about an earlier occasion when Mr. Lynds had been caught by the police in Amherst while returning from Montreal with illegal cigarettes for sale. The Lynds brothers (Chris and Curtis) had actually gone to Montreal to pick up several kilos of coke, but could not get it, so they brought back the illegal cigarettes instead..
[40] Ms. Mackeigan regarded this as a stroke of luck. She added that "Curtis deals mostly in ecstasy and smokes." The two parted that day upon having made arrangements for Cpl. Whittington to purchase some cigarettes and ecstacy from Curtis, and some "8's" from Chris the following week.
[41] On May 3rd 2007, Cpl. Whittington called the accused to advise her that she was in town. She was invited to the accused ’s apartment, where they had a general conversation, initially about some of the members of the Lynds family and their backgrounds.
[42] When the accused was told that she seemed a little "down" or depressed, she indicated that she and Chris Lynds had gotten into an argument over the weekend about "Donald" (apparently an ex‑boyfriend) who was in town from Calgary and had visited with the accused.
[43] The two left the accused’s apartment and went to Chris Lynds’ garage. Upon their arrival, Cpl. Whittington advised that she was interested in making a purchase, however she wished to go to lunch with the accused while her "order"was being filled.
[44] The two women ate at a local establishment. While there, the accused indicated that "dealing drugs is all Chris has ever done". She went on to talk about her former boyfriend, Donald, from Calgary, and added that he does the same thing Chris does, only he does it in Calgary.
[45] After the meal they returned briefly to the accused’s apartment, then back to Mr. Lynds’ garage. While they waited in the garage for him to get off the phone, Cpl. Whittington observed people coming and going constantly. With respect to one such visitor, the accused mentioned that he is "a crack head". She went on to add that he’s a professor at the college, and that "Chris sells way more crack than blow".
[46] By this time, although some of Cpl. Whittington’s "order" still had not arrived, Mr. Lynds did have part of it. He went over to the kitchen area of the garage, measured out some coke and gave her two baggies (each one was an 8 ball containing 3.5 grams). She paid him $350.00 for this quantity.
[47] Then they all left for for Curtis Lynds’ residence. Their goal was to see if he had there the inventory necessary to fill the remainder of Cpl. Whittington’s order. Curtis resided off Onslow Mountain Road, on a property that also contained three trailers, the second of which was under renovation at the time. Christopher Lynds got out of the vehicle and went to his brother’s residence. While they awaited his return, Ms. Mackeigan advised that Curtis was doing all of his sales from the trailer, rather than from his house.
[48] The two women then left the vehicle and went up Curtis Lynds’ trailer and made some further purchases. The order was still not completely filled. They were eventually able to obtain the balance of the order only after being referred to yet another supplier.
[49] Cpl. Whittington, the accused, and Chris Lynds then left to drive back to 511 Jollytown Road. On the way back, Mr. Lynds, in addition to discussing the occasion when he got "caught" coming back from Montreal with cigarettes ( which the accused had previously mentioned to the officer), also mentioned a grow operation, and the power bill associated with it.
[50] As the topic was raised, Ms. Mackeigan interjected that "this guy (Jody) grows marijuana for Chris. Chris gives him money for his power bill." She also mentioned that Chris had "punched Jody out", after having given him money for a power bill which Jody did not pay.
[51] On June 19, 2007, Cpl. Whittington went to Chris Lynds’ residence alone to make a purchase. The accused happened to be there when she arrived. The officer purchased cocaine and another $200.00 worth of crack. Upon being provided with the cash for the drugs, Mr. Lynds gave the money to the accused, who counted it and announced that it was "all there".
[52] On July 6, 2007, Corporal Whittington made arrangements with the accused to go to 511 Jollytown Road and pick her up. When she arrived, the accused was sitting at the counter, beside the cabinets referred to in Exhibit 1. Ms. MacKeigan was upset. Her dog had been run over earlier that day.
[53] Chris Lynds arrived shortly after. He positioned himself close to the counter, took out his equipment and began to prepare coke for a customer. He serviced approximately 6 to 10 customers while the two women were present.
[54] At some point, Mr. Lynds announced that he was taking his dirt bike out for a ride, and he left to do so. Upon his return, he indicated to them that he had just been chased by the police. He further indicated he had had to dump his dirt bike and get a ride back to the residence. According to him, the police were getting smarter, since they were now changing cars to fool him.
[55] On July 20, 2007, Corporal Whittington’s objective was to meet with Chris Lynds and try to buy an ounce of cocaine for $1400.00 and see if he would "front" her an 8 ball. She hoped to obtain some ecstasy from his brother Curtis as well. She spoke to the accused and the two decided to meet at Chris’s place.
[56] Upon the officer’s arrival, Mr Lynds was working on a vehicle ‑ he appeared to be cleaning it. This was the first time that she had been able to observe him doing "legitimate" work.
[57] Ms. MacKeigan arrived a short time thereafter with a new puppy. While the two were thus engaged, a female visitor to the garage arrived. The accused said "Watch this" ,and went on to advise Cpl. Whittington that the woman covers her mouth while talking, and that she does this because her boyfriend punched her teeth out. This particular woman had come to the garage to make a drug purchase accompanied by her daughter (who appeared to be younger than 10 years of age). Neither Ms MacKeigan nor anyone else in the garage commented upon the most troubling aspect of the transaction, that being the presence of the woman’s young daughter while it took place.
[58] After observing this transaction, Corporal Whittington requested Mr. Lynds to sell her some coke, as well as front her an 8 ball of crack. That accomplished, it remained for her to attempt to make an additional purchase from his brother. She was, instead, referred to an associate "Jonathan", as Curtis was unavailable.
[59] The accused drove her to Jonathan’s residence, which was approximately 5 minutes away. She introduced the officer to Jonathan and advised him that "Curtis always sells to Lisa". Upon being advised by Jonathan that he did not have sufficient supplies to sell her the quantity of ecstasy she sought, she was referred to yet another individual named "Cameron". Once again, the accused handled the transportation and introductions, however Cameron himself could not complete the transaction "until Jeff gets back". The accused explained to Corporal Whittington that "Cameron and Jeff sell blow too".
[60] While waiting for Jeff to arrive, the accused shared with the officer that she probably would not get back together with Christopher Lynds. Differing tastes was the main reason provided. She went on to say that she had moved out of 511 Jollytown Road approximately 2 weeks prior to the two women having met . She could not give the exact dates during which she had lived with Mr. Lynds.
[61] When Cpl. Whittington remarked that it was odd that Chris lives in that big house (on Jollytown Road) by himself, since it was " large enough for a big family", the accused laughingly added "or a drug dealer". She went on to observe that drug dealing is "easy money".
[62] "Jeff" arrived with Cameron’s inventory. Cpl. Whittington gave the accused a wad of bills and asked her to count it. She did so and the transaction was completed. The two women drove back to Mr. Lynds’ residence.
[63] On the way back the accused spoke of another (earlier) time when Mr. Lynds had gotten raided. He was not then living on Jollytown Road, but rather at a place on Dickson Street. When the police raided his place on that occasion, they only found 100 grams of "moldy weed" in the freezer. Apparently Mr. Lynds had the rest buried somewhere on the property. According to Ms. MacKeigan, her boyfriend received six months for this "just because of his name".
[64] Corporal Whittington remained involved in the operation for another 2 months after this meeting. Her remaining contacts with the accused, or the Lynds brothers, over that period occurred 2 to 3 times per week and were similar to the encounters previously described.
[65] Her involvement in the operation ended on September 26, 2007 which was the "take down" day. The Lynds brothers and several other associates were arrested. As previously indicated, the accused was also arrested on drug charges (which have since been concluded) .
[66] With respect to the Volkswagen Golf, Corporal Whittington indicated that she never saw anyone other than Ms. MacKeigan drive it. She herself was only in the vehicle 3 or 4 times, she generally saw it either parked in the accused’s spot at her apartment building on Prince Street in Truro, or (several times) at the residence of Mr. Lynds at 511 Jollytown Road when the accused was also there.
[67] On cross‑examination, the officer conceded that during her investigation, she was primarily interested in the drug trafficking itself, which was centered upon the Lynds brothers. She got close to the accused in order to get close to their operations. For that reason, the notes that she made throughout the course of her investigation were not as specific with respect to the financial details of their discussions.
[68] She was asked about the comment that she attributed to the accused, which was to the effect that dealing drugs is all that Chris Lynds has ever done. While she agreed that this may not have been the exact wording that Ms. MacKeigan had employed, the substance was correct. She indicated, moreover, that Ms. MacKeigan’s mood was sombre, not at all flippant, when she said it. In fact, Ms. Mackeigan made the comment at a time when the two were discussing Mr. Lynds’ extended family, and Ms. MacKeigan had just finished indicating that Mr. Lynds father was an alcoholic who had had a lot of heart troubles.
[69] There had never been any discussion between them about how much money New Breed made, or where the proceeds (if any) went. She did concede that she saw vehicles being worked on and cleaned at 511 Jollytown Road on a few occasions during the course of her investigation. Other than the "legitimate business" comment attributed to Ms. MacKeigan (previously mentioned) the two had never had any other conversation as to how lucrative the "Like New Car Care" business was.
[70] The next Crown witness was Charles Shepherd. Sgt. Shepherd had been a RCMP officer for 23 years, and was the operational non commissioned officer for the Integrated Proceeds of Crime Unit (IPOC) at the relevant time. This unit is multi-disciplinary in nature, and composed of municipal police, RCMP, Canada Revenue Agency personnel, forensic accountants, and other specialized investigators.
[71] IPOC’s mandate is to identify assets and expenditures of people involved in illegal activity and attempt to locate assets derived from such activity. Their investigations as they relate to this case came under the rubric of "Operation Haze", and were parallel to the drug investigation.
[72] Sgt. Shepherd was IPOC’s lead investigator. As such, he was the individual tasked with spearheading the investigation on the ground. Once again, the people of interest were those comprising what was referred to as the "Colchester Crime Group".
[73] IPOC’s role became more prominent once the drug investigation had concluded. Although they would have begun in approximately February/March of 2007, the bulk of their work was done after the multiple arrests on September 26, 2007.
[74] Some important work was nonetheless accomplished prior to the“take down”day. For example, court applications were made under section 462.48 of the Criminal Code for disclosure of records (including Canada Revenue Agency records) with respect to all targets. Production orders were obtained, and further related information was also gathered behind the scenes.
[75] On September 26, 2007, special search warrants were utilized to seize moveable assets, and restraining orders were employed to seize certain non‑moveable assets of the people involved.
[76] All of the targeted individuals were arrested by the Emergency Response Team, after which several teams of IPOC personnel (10‑15 persons per team) proceeded to secure and take control of the property. This included vehicles, boats, and some other big ticket items taken from Christopher Lynds’ house and garage. Sgt. Shepherd did not then deal with the accused . His responsibilities involved 511 Jollytown Road and the chattels thereon.
[77] The Crown sought to enter four exhibits through Sgt. Shepherd. The Defence objected and a voir dire was held. The parties agreed that all evidence taken at the voir dire in relation to any exhibits that were ruled admissible would be treated as part of the trial evidence available for my consideration. It was during this voir dire that some of the previously noted portions of Sgt. Shepherd ‘s evidence were provided.
[78] Among the documents seized was what was referred to as Exhibit VD-2 : A Certificate of Registration with respect to the 2006 black Volkswagen Golf in the accused ‘s name, which vehicle forms the subject matter of one of the counts with which she is charged. VD-3 was the Certificate of Insurance with respect to that vehicle. Both of these documents were found in the "office" portion of Christopher Lynds’ residence.
[79] At the conclusion of the voir dire, the Defence, which had initially objected to documents 2‑5, conceded that numbers 2 and 3 were admissible.
[80] VD-4 was a disability insurance application to First Canadian Insurance Company signed by Chris Lynds in relation to a vehicle owned by him, which was found inside the main garage on his Jollytown Road property. VD-5 was a Canada Revenue Agency Statement of Business Activities for Christopher Lynds for the calendar (and fiscal ) year January 1, 2004 to December 31, 2004.
[81] The accused objected to the admission of these last two documents on the basis that they were not relevant. Her counsel argued that this was a trial involving Ms. MacKeigan only, and therefore documents relating to a chattel owned by Mr. Lynds, or in relation to his income, ought not to be admitted.
[82] The Crown indicated that it was not seeking to admit these documents for the proof of their contents, but rather because they established Mr. Lynds birth date and social insurance number and therefore provided a means of cross‑referencing this data with that obtained from the Canada Revenue Agency (CRA) pursuant to production orders relating to the tax records of both the accused and Mr. Christopher Lynds.
[83] Based upon Counsel’s indication that there were also tax records relating to Mr. Lynds that the Crown would be seeking to enter , I reserved the ruling on VD4 and VD-5 until their relevance could be assessed in relation to the Crown’s evidence in its entirety.
[84] Having completed that assessment, I have concluded that VD-4 is inadmissible because it is not relevant to any aspect of the Crown’s case against the accused. None of the information on that Disability insurance form is needed in order to cross reference with the CRA material (which will be discussed more fully further on ).That CRA material itself contains enough internal corroboration to make virtually certain that it refers to the Christopher Lynds that we have been hereinbefore discussing, rather than some other individual of the same name.
[85] VD-5, however, is admissible. Since these charges relate to proceeds of crime, specifically, to proceeds allegedly generated by the illegal activities of Christopher Lynds, any evidence showing what Mr. Lynds declared from legitimate, reported sources during the relevant time is integral to that determination. For the same reason, I also ruled that Exhibit 22 (Mr. Lynds’ entire records from CRA for the years 2000‑2007, which will be discussed further on) was admissible.
[86] To return Sgt. Shepherd’s evidence, he testified that he first had a discussion with the accused on October 18, 2007, when her car (the 2006 Volkswagen Golf) was seized. At that time he advised her of what was happening and provided her with the opportunity to remove her effects from the car. Her vehicle was towed away, and it has been kept in the custody of the "seized property management director"ever since.
[87] Sgt. Shepherd was one of the officers who, along with Corporal Kevin Dunlevy and Detective Constable Mike Sanford, later conducted the interview with the accused on April 14, 2008 and obtained her statement.
[88] Before dealing with that statement in any detail, Corporal Kevin Dunlevy (the Crown’s next witness) testified that he was an investigator with the RCMP Proceeds of Crime Unit and had been so employed for approximately 3 ½ years.
[89] He was involved in "Operation Haze" as an investigator responsible for the seizure of all vehicles identified as targets. A total of 41 vehicles were seized , along with other property in relation to which there was felt to be evidence to suggest that they had been purchased in whole or in part with proceeds of crime.
[90] Pursuant to these duties, he had occasion to go to the Registry of Motor Vehicles to determine ownership of certain vehicles, including the 2006 Volkswagen Golf, which was found to be registered in the name of the accused. He also visited the dealership from whom the car had been purchased (Vantage Motors) and spoke to the salesman of the car in question, and the owner of the business. It was as a result of these investigations that the seizure of the accused’s motor vehicle, on October 18, 2007, as described by Sgt. Shepherd, later occurred.
[91] Corporal Dunlevy learned, in the course of his investigation, that a $10,000.00 down payment had accompanied the purchase of the accused’s vehicle. Shortly after he raised this with the accused, her lawyer (at the time) provided him with a letter indicating that this money had been derived from tips earned and saved by the accused while working at a local piano bar. The letter further stated that Corporal Dunlevy could confirm this by speaking with Ms. MacKeigan’s uncle, James Fraser, to whom these savings had been entrusted .
[92] When he initially met with investigators, Mr. Fraser confirmed just that. He said that he held the money for his niece Ms. MacKeigan, and that when she went to buy her vehicle, he simply returned the funds to her. The total exceeded $10,000.00, and consisted of tip money that she had earned over a number of years.
[93] Shortly after their first meeting, Mr. Fraser contacted Corporal Dunlevy again. He advised that the information with which he had provided the officer on that earlier occasion was false and that in fact he had never held money for Ms. MacKeigan at any time. The accused had asked him to say what he had said earlier to "help her out" in order that she might attempt to get her vehicle back, this being the Volkswagen Golf which had been seized on October 18, 2007.
[94] After the police received this latter information from Mr. Fraser, Ms. MacKeigan was brought in for questioning. This eventually led her to provide two statements, on April 10, 2008 and April 14, 2008 respectively.
[95] Her first statement was very brief. It dealt with anticipated obstruction charges arising from the false information with which she had provided her lawyer and, through him, to Cst. Dunlevy. The second, or "proceeds of crime" statement was much lengthier, and was provided on April 14, 2008.
[96] A video disc showing the entire statement was played for the Court’s benefit. An agreed upon transcript, 265 pages in length, was also tendered.
[97] Both sides agreed that the Statement was voluntary, and further agreed that in the event of any discrepancy between the transcript and the video tape, the video tape was to prevail. Having reviewed both in their entirety, I was unable to note any discrepancies between the two. In particular, those parts of the statement which were noted as inaudible in the transcript, were indeed inaudible when the video tape itself was being played.
[98] Obviously, the length of the transcript precludes all or even most of it being set forth herein. It is important, however, to note some of the more significant exchanges between the accused and her interrogators.
[99] When dealing with excerpts, context may be, at times, a difficult thing to capture. I have at all times considered the surrounding context (indeed I have carefully considered the entire statement) so as to attempt to ensure contextual fairness to the accused.
[100] In the segments noted below, the reference to "SM" means "Sherrill Leigh MacKeigan" the accused, "AS" refers to "Sgt. Al Shepherd", "KD" refers to "Corporal Kevin Dunlevy", and "MS" refers to "Detective/Constable Mike Sanford". The page references are to those in the transcript itself.
Page 41:
AS: But your, you weren’t impressed with the fact that he was doin’.
SM: I didn’t want to see him go to jail. (Inaudible) (Laughs)
AS: But you didn’t care whether he was selling drugs or not?
SM: No, I never said that either
AS: If, you figured if he sold drugs long enough, eventually he was gonna go to jail. At some point, he would have a, a slip‑up along the way. They’d already gotten arrested in Amherst, him and Curtis.
SM: Yeah. That was a pretty scary night.
Page 42:
KD: Didn’t he realize that things would catch up to him?
SM: Oh, I don’t know
KD: Did he talk about it?
SM: No, we didn’t, I never really cared to know really about anything, you know, ‘cause in situations like this, the less I know the better.
Page 43:
AS: About the ten thousand dollars for the car and what you told Kevin is you wanted, its the only thing you have, right?
SM: Mhmm. It is the only thing I have.
KD: And your dog, right?
SM: Well okay, yeah , if anybody (laughs)...
KD: You’ve got your dog, right?
SM: ...if anybody took my dog (laughs) all hell would break loose.
Page 44:
KD: The rest of this stuff is just material...
SM: It’s material, yeah.
KD: It’s crap really. When it comes down to it, I think, anyways. That’s the way I look at things.
SM: Oh no, like honestly I thought my life was over when you guys took my car.
KD: It’s a car, come on..
Page 45:
AS: And that brings us back to your ten thousand dollars ($10,000) worth of tips.
SM: (Laughs)
AS: You want to tell us what really happened?
SM: No. (Laughter)
AS: Why? Why?
KD: That’s okay, I mean we know what happened, but. It’s, it’s a matter of you being comfortable releasing the information as far as getting it off your chest, you know, knowing that what’s important in life. Is it a car? And, and, and me being tied up with some car that I only had because I was involved with this guy who’s a...
AS: No, no, ‘cause...
KD: ...drug dealer...
SM: ...it’s not even like that...
KD: ...versus you know, what’s really important...
SM: ...it’s not like that at all. I want that car because I made payments on that car every month.
Page 48‑49:
KD: It was his money, we know that. How long would it take you to pay that back?
SM: I don’t know, it depends when I start work. I don’t know! If, it depe‑ like I have to get a job, right? (Sighs) I’ve thought about it. I thought about a lot of things.
KD: I think about the fact that without that ten grand ($10,000), you wouldn’t have had that car.
SM: At the money that I was making at New Breed?
KD: Right.
SM: No I wouldn’t have because we checked into it.
KD: Well, that takes your financing level waaay down, right?
KD: Obviously, so. To me, I mean, you know, I’m, I’m not, I’m not in your shoes, but if I’m trying to distance myself from these people...
SM: So, what? Give up my car?
KD: No, no, no. I’m just saying on your own, in your own mind.
SM: No, because my, that thing like, that (sighs)
AS: It’s a car.
SM: No, it is a car. But it’s my first car, that’s mine. My hard‑earned money went into something that I could have in five (5) years and finally say...
AS: I own this.
SM: That’s mine. Yeah.
AS: So you understand what our problem is though...
SM: Yeah, I unders...
AS: Our problem is that first, the first ten thousand dollars ($10,000) that Chris put onto it didn’t obviously come from hard work that Chris made.
SM: Oh, I don’t know.
AS: Well, we know where it came from. It came from him selling dope. And, so in your mind, you know, we’re all big people here, we’re all understand what’s going on. And you’re, you and Kevin are havin’ this conversation and you’re saying that you have this, and I realize it’s your first car, but if you’re tryin’ to distance yourself from Chris...
SM: What does my car have to do with Chris?
AS: It’s got ten thousand dollars ($10,000) worth of drug money in it.
SM: Weelll...
AS: Doesn’t that bother you at all?
SM: That...(sighs, laughs)
KD: It’s hard to ex, it’s hard to comment on that isn’t it?
AS: You know, on one hand, you’re sayin’ you’re tryin’ to distance yourself, well I’m trying to distance myself from these people, I don’t want nothin’ to do with them, whatever, whatever. And you love that car and you wanna hang on to that car because it’s your first car, but it’s really, it has kind of a bad taste.
SM: Not really, no. (Laughs)
Page 50:
AS: It’s because, does that mean that when you were working at New Breed you weren’t making enough money? Is, is that why, they wouldn’t give you the financing?
SM: Yeah, I wasn’t making enough. I was only making like twelve hundred dollars ($1,200) a month.
KD: That ain’t gonna cut it, right? For a nice car.
SM: No. They were like yeah right.
AS: Yeah? Pay for your apartment and pay for all the rest of that stuff too right?
SM: Yeah.
AS: How come you’re s‑ how come you’re only makin’ twelve hundred dollars ($1,200) a month?
SM: That’s pretty good...
Page 51:
AS: So you were working five (5) days a week making three hundred dollars ($300) a week.
SM: Uh‑huh. Three‑eighty ($380) before taxes.
AS: Hmm. Which worked out to what an hour?
SM: I dunno.
AS: Not a lot.
Page 55:
KD: But you were with him(Christopher Lynds), when he gave the down–payment weren’t you?
SM: Yeah.
KD: Yeah. And so that was the ability to get the car in your name was with the ten thousand dollar ($10,000) down‑payment?
SM: That and with what I was making.
Page 85:
KD: Painful lesson. Numbers game, hey, it’s all a numbers game. Did you ever think that this was gonna catch up to ya?
SM: What, dating...
KD: Honestly?
SM: ...dating someone like that?
KD: Yeah. You had to. I know it did. Based on that, what you’ve told me today and what kind of a person you are, you know, I think you knew it would probably eventually catch up to you.
SM: No, I never had a thought, actually.
KD: No? But you don’t regret? Goin’ out with him?
SM: No. No, it was all a learning experience.
KD: Yeah. Good and bad, right?
SM: Yeah. Yeah. You see, you see a lot of things.
KD: That’s what they say: if you don’t learn lessons either hard or good, you’re not gonna live life.
SM: It was an eye‑opener. I now understand the severity of everything I did.
KD: Yeah?
SM: I think once you’ve been immun‑ not immune to it but I just, it’s just something that was there...
Page 85‑86:
KD: What about when you were going out with him, like, ‘cause, I’m just, you know, and this might be a tough question but, you’re goin’ out with someone like that, who’s in that business, did they ever say to you on a regular basis, like, I don’t need to tell you not to say anything or blah‑blah‑blah.
SM: No, I just...
KD: You just assumed that...
SM: Well, I just never, right? You just turned your, turned a blind eye.
Page 89:
KD: Money Laundering is the other one that we threw in there because when you have, you know, drug money running through your account, whether you were aware of it or not, you know, and that, and that’s what we’re trying to decide; whether you knew there was drug money, okay? And, you know, the fact that you were gonna talk to us and be honest and sort of clean the slate, you know...
Page 90:
SM: Hmm. It was my own choice though. Really, honestly? When I found out about everything three (3) years ago?
KD: Okay.
SM: If I was smart, I would’ve walked away.
Page 148:
KD: Um, whether you think Chris, Chris is a good guy, and obviously he is, but, you know, uh, did it ever occur to you that takin’ his money was, did, did you ever feel uneasy, you felt something. I know you did at some point in time like, you know, is this right, should I be doin’ this?
SM: Hmm.
KD: You had to. You can’t tell me that you didn’t.
SM: I don’t know.
KD: Yes you do.
SM: I don’t...
KD: Oh yes you do.
SM: No.
KD: I think we’re beyond that.
Page 149:
KD: Oh, okay, not guilt. But, maybe it’s not the right word. Taking money that you know was earned by dealin’ drugs. When, when does that sort of become, is it uncomfortable, is that a better word? Was it ever uncomfortable...
SM: I don’t know.
KD: ...or was it easy?
SM: I don’t know.
KD: Was it easy?
SM: I never really thought about it to be honest with you.
Page 174:
KD: I thought we were gonna agree on something, that he had a business front. I though we had a, you know.
SM: No, he did legit businesses.
KD: Yeah, but there’s legitimate businesses making enough money to sustain your lifestyle and then there’s a legitimate business that earns legitimate money but not enough to sustain your lifestyle; that’s called a front.
SM: Hmm.
KD: You would agree that that’s what he had? Chris?
SM: Hmm, I guess so.
Page 176:
KD: So you never talked about how he paid for all these things?
SM: No. I don’t ask questions.
KD: You really didn’t.
SM: No, honestly. I never, ever asked questions. No
Page 177:
KD: Who did you see up there buildin’ the garage?
SM: Oh I don’t know who it was.
KD: You didn’t know the people?
SM: No. I don’t go down there and venture and stick my nose in his business..
Page 181:
KD: What did he do with all his money then?
SM: Oh, I don’t know. I don’t ask questions. (Laughs)
KD: These two (2) eyes are open.
SM: Yeah, and I don’t even pay attention to really what goes on. No. Honestly, I don’t pay attention to that stuff.
Page 190:
MS: So how did you end up at New Breed? Like how did you end up workin’ there?
SM: Well, Chris opened up a store and I managed it.
MS: Okay. From what I know about the investigation and, you know, there wasn’t really much goin’ on at the store though was it.
SM: No, it wasn’t busy, no, it wasn’t successful.
Page 192:
MS: No, I don’t think you’re stupid either. That’s the whole, the whole reason why we’re havin’ this conversation; nobody else thinks you’re stupid either, that, you know, the, nobody that we talked about the files can accept that you don’t kinda know what’s goin’ on. I mean common sense will tell ya that the guy doesn’t work for a livin’ and he’s got all these toys and he can give you money when you want stuff, that he’s involved in stuff he shouldn’t be, right?
Page 193:
SM: Mhmm.
MS: If, common sense will tell you that. So, what about all the things that were goin’ on out in Jollytown like with the, the, the dollars that were gettin’ dropped there were right left and centre.
SM: Oh, I don‑, I have no idea what Chris’s income was. That’s like his business. It’s not my business, right?
Page 196:
MS: You know what I mean? So here’s a guy that, that first of all, let’s take it back over here’s a woman that sort of bright and has her shit together and here’s her man that gets up I the morning has smokes, coffee and the three (3) S’s, chills with his buds, I mean, he farts around in the garage a little bit, okay and he’s got a honkin’ property, just the, just the pavin’ job alone is, you know, so you’re goin’ to school and you’re workin’ and you’re, you know, payin’ the bills and stuff and you’re tryin to tell me that that doesn’t seem a little odd to you?
SM: He just did what he did. I don’t know.
MS: This is the part where you’re supposed to be believable and say, "well, yeah, you know, I, yeah, it wasn’t my business so I just kinda looked the other way" or somethin’. At least be believable.
SM: I, honestly, I never got involved in his business; that was his thing. I did my thing...
MS: But what would a smart person say that, that lives with someone who lets the dogs out for a leak, does the three S’s, chills with his buds, and smokes cigarettes and drinks coffee all day?
Page 197:
SM: What a life. Must be nice,
Page 208:
MS: So would it be fair to say that, you know, maybe you didn’t really wanna know what was happenin’ or you knew and looked the other way or what? Like, be believable.
SM: Yeah, pretty much. I just didn’t pay any attention to it. You know, it’s not my b‑ it’s none of my business.
MS: Okay, well we’ve already gotten past that.
SM: Yeah, I know but it’s not...
MS: Well it is your business a bit though ‘cause you kinda got drugged into this whole...
SM: Yeah, I know
MS: ...business, right? This is the aggravation it’s causin’ you now, you got moral problems and all kinds of stuff, right?
KD: And you know unfortunately that’s why it does become your business when we talked about your (inaudible)
SM: Yeah.
KD: That’s why it becomes you business. Because there’s ten thousand dollars ($10,000) that you can’t explain, right? That’s what, that (inaudible) period you’re not sure about.
SM: Yeah, I know.
Page 218:
MS: So you’re with him since two thousand and five (2005). So how much of that stuff that he has, even if you don’t quite know where it came from, is new since two thousand and five (2005)?
SM: He has his bedroom set, he has the, he has his furniture, like his leather couch and stuff life that. He had that for a while I guess. ‘Cause I remember when I first came in there was still one sectional piece downstairs that we had to sit on. It was like one part of it, not even a whole couch. And then he has the TV that Margaret had at her, his apartment.
Page 220:
MS: Now what about this, there’s a bar fridge and stuff there. What’s the story on that? Like a mini fridge? You know like a wine cooler or whatever? Or was that yours?
SM: In the kitchen?
MS: I think it was in the kitchen. Or was it in the garage?
SM: That was just from Wal*Mart. I think it was only like a hundred bucks ($100).
MS: Is that right?
SM: Yeah.
MS: That came from the furniture genie or were you there?
SM: No, I just came home to that. Yeah, see, I come home, I’m serious. I...
MS: It must have been good in your life. Come home, what am I gonna see tonight?
KD: Must’ve been sweet.
SM: No, I just. Yeah, I just came home I was like, wooh.
Page 221:
MS: Did he just say, did he say the furniture genie brought it or like how would he...
SM: No, he just said, you know, I got this and I said, oh yeah.
MS: I got this?
SM: Yeah. I got this.
MS: And, and you wouldn’t say, like, Sears off the back of a truck? Midnight...
SM: No.
MS: ...Madness or what?
SM: It was like sweet, you know.
MS: Sweet? What does sw, I know what sweet means.
SM: Sweet.
MS: If the price is right.
SM: Yeah. I don’t, I, yeah, I just never asked questions.
MS: Did you ever see any like warranties or receipts for any of that stuff that would come in?
SM: No, I never asked him that.
MS: No, I didn’t know you asked for that, you know what I mean?
SM: No. But I never like I wouldn’t like, I don’t know, I’m gettin’ the impression that I was supposed to be this like...
MS: No.
SM: ...wife who was like rarr, I need the receipt for that.
MS: No, but do you know what I mean? You didn’t ask too many questions about non‑typical uh...
SM: No, I don’t ask questions. It, honestly, it made me just because of who he was I just would rather not know.
Page 222:
SM: Yeah, I just never asked questions, you know, just better off not knowing.
MS: Maybe, may be afraid of the answer if you...
SM: Yeah, I just didn’t wanna know. And the less I know the better. And that’s...
MS: About, about his business.
SM: Yeah. I just didn’t wanna know about it.
Page 223:
MS: And if he was a legitimate guy that, you know, was really makin’ a livin’ doin’ legitimate shit then that wouldn’t be a concern, right? Wouldn’t be able to worry about it. I mean, right?
SM: Yeah, I probably would’ve asked him more questions.
MS: Exactly.
SM: Yeah.
Page 224:
MS: But I can understand, involved in criminal activity and sellin’ smokes or sellin’ coke or whatever, that’s not somethin’ you necessarily wanna wake the sleepin’ giant by askin’ those questions.
SM: No.
Page 230:
MS: Uh, you know, you see all these, all these toys and stuff, I mean, here again, the math is not addin’ up is it? Okay.
SM: I ho, I don’t ask questions. I didn’t wanna know, you know.
MS: You didn’t wanna know.
SM: No.
Page 254:
MS: Now I know (inaudible). I was askin’ you about what you said to uh, to the other cop, that we caught on tape about the business bein’ a front. What did you say about that? Did she answer me on that or did we get sidetracked.
KD: Oh. Oh yeah, we talked about that earlier as well but. She knows what a front is.
MS: No, no, no. Exactly.
KD: And you did say, and I don’t know about the tapes very much but Mike was sayin’ somethin’ about...
MS: Yeah, the transcript. It said that, you know, that that was just a, a kind of a way to legitimize things and it wasn’t, and I forget what you said, or did ya?
SM: No, I don’t think I said anything. No I think that, what was it, ‘cause it was somebody came in the garage and Lisa was like oh, you know, what’s the all F’n big panic about and I said oh, it’s an actual customer for car cleaning. Just, and that was it. You know.
MS: Did you say to her though like this was the way, the way the conversation went?
SM: Yeah, I said that, you know, he just, has to do something, right?
Page 255
MS: Well, somethin’ like that ‘cause, ‘cause, you know, you were tellin’ me, oh yeah he was legitimate, he was, you know, cleanin’ cars, blah blah blah.
SM: Yeah.
KD: We talked about the difference between a legitimate business and then one, and then a legitimate business that earns enough to sustain your life.
SM: Right.
KD: Right?
MS: Yeah. And she knows...
KD: No question that Like New Car Care is a legitimate business...
MS: On paper.
KD: On paper. Is it a legitimate business enough to sustain his life, is what we’re, our conversation was about.
MS: No.
KD: And we both agreed that that’s not true.
SM: Right.
[101] After Cst. Dunlevy’s testimony concluded, Derrick Anthony Lugar was the next witness to take the stand. He identified himself as the owner and general manager of the Volkswagen dealership in Truro, Vantage Motors. He had worked in this capacity for approximately 20 years. He met the accused in 2006 on the occasion of her purchase of the Volkswagen Golf, identification number 9BWGR21JO64007089, the vehicle referenced in count # 1.
[102] Mr. Lugar indicated that, in cases where a customer wishes to purchase a particular vehicle, basic financial information is taken. This information is then given to Volkswagen credit to assess whether the necessary financing will be made available to that customer. In the case of the accused, Volkswagen credit had initially rejected her. Her only remaining option was to come up with a sizable deposit.
[103] Mr. Lugar recalled that the accused and a male were involved in the selection of the vehicle and options. The man remained closely associated with Ms. MacKeigan throughout the process of selection of the automobile. He was driving a very expensive top of the line Chevrolet pick up truck, but did not otherwise fit the profile of most of the dealership’s customer base . He was described by Mr. Lugar as looking like a "white rapper, with his hat on backwards, pants down to his knees, late twenties/early thirties."
[104] The accused applied a second time for financing. On this occasion, a $10,000 deposit accompanied her application. It came in the form of cash, and included a number of 50's, 100's, 10s, and 20s. Mr. Lugar indicated that most of his dealership’s financial transactions do not involve cash payments of this magnitude.
[105] Exhibit 15 was introduced through Mr. Lugar. This was his dealership’s bank deposit slip in relation to these funds. Reference to that deposit slip indicates that the $10,000 deposit was supplied in the form of two (2) $10 bills, four hundred and twenty nine (429) $20 bills, sixteen (16) $50 bills, and six (6) $100 bills.
[106] Exhibits 13 and 14 were the bill of sale with respect to the vehicle and the conditional sales contract, respectively. They indicate a transaction date of June 9, 2006. On exhibits 13 and 14 the accused’s address is listed as 511 Jollytown Road, Mr. Lynds ’ residence. Mr. Lugar testified that generally, the address shown on these documents is that which would have been provided by the purchaser to the dealership at the time of purchase.
[107] The next crown witness was Anne Marie Innis. Her role was to provide the Court with assistance in identifying the information and interpreting the symbols contained in the copious Canada Revenue Agency records obtained by IPOC. These records related to both the accused and Christopher Lynds.
[108] Ms. Innis was employed by Canada Revenue Agency as a special enforcement program auditor, and had worked in such capacity for 23 years. Presently, her main task is to perform illegal activity audits for CRA.
[109] She first became involved in this matter when asked by her employer to verify certain records that CRA had provided to IPOC in relation to potential charges against the accused (Exhibit 21) and Christopher Lynds (Exhibit 22). Their source was CRA’s mainframe computer. These Exhibits encompass all of the information that CRA has in relation to both individuals for the years 2000‑2007.
[110] It would appear from page 13 of exhibit 21 that the accused’s total income during the year 2000 was $10,431. In 2001 her income from all sources comprised $7,248. In 2003 her global income was $5,276, in 2003 it was $7,911, in 2004 it was $11,583, in 2005, $5,964,and in 2006, it was $19, 240.
[111] It is noted that in 2006, at the time that her total declared income was $19,240, the accused had accumulated a significant tuition and education deduction amount carry forward from previous years. This, when combined with her other personal deductions for that year, served to "zero" her income. This 2006 income, in its entirety, was contained in a T-4 slip provided by her employer, Christopher Lynds.
[112] Exhibit 22 comprises all of the information available to Canada Revenue Agency in relation to Mr. Lynds over the relevant period. In 2000, he is shown as having no income and this repeats itself for 2001 and 2002 . No income reporting slips or other information slips were provided. In 2003 at line 104 ("other employment income") he showed $8,420, however no explanatory information slips were filed to show the derivation of this income either. Ms. Innis indicated that sometimes people with self-employed income earnings will report on line 104 in this fashion.
[113] In 2004, Mr. Lynds reported gross business income of $11,000 and net business income of exactly the same amount, with apparently no deductions for business expenses. Again, no statement of business activities or other information was provided to CRA to show how these figures were obtained.
[114] In 2005, his gross business income was $19,885 and his net was $11,062. Again no information slips were provided. In 2006 his gross business income was $83,256 with a net of $16,089. This coincided with what was also Ms. MacKeigan’s best year during the 2000 to 2007 window. As noted, a statement of business activities was not available to the Court, but it would appear that one significant deduction available to Mr. Lynds for the year 2006 would have been the $19,240 wages that were paid to Ms. MacKeigan during that year, as reflected on the T-4 that he issued to her.
[115] The Agency records also show that an importer number was assigned to Mr. Lynds in relation to New Breed Street Wear Clothing, as well as a payroll account in relation to that business, on January 20, 2006. Ms. MacKeigan was the sole employee of that business.
[116] The Crown next called James Daniel Fraser, the Uncle of the accused. He indicated that he is an unemployed electrician by trade and he knows the accused because she is his niece on his wife’s side. He indicated that they had a fairly good relationship for at least 8 to 10 years. He testified that he did not in fact ever hold money for Ms. MacKeigan although he had initially told RCMP officers "Kevin and Bill" that he did. He testified that he first told them that he held money for Ms. MacKeigan over a period of approximately 2 ½ to 3 years, that he kept it in the garage, and that it was an amount of over $10,000, but it wasn’t true. He told them what he did because Ms. MacKeigan had advised him that she was facing criminal charges, and that she had earned and saved the money that had gone into the down payment on the vehicle, but she had no proof.
[117] While acknowledging that he did try to help her out, he indicated that it was the accused’s idea to give the police this false information. Mr. Fraser stated that he really has no idea of what money the accused did make. He only told the police what he did in an attempt to help her out, because she was desperate to get her car back.
[118] After Mr. Fraser, the Crown closed its case. Among the exhibits tendered was a Certificate of Conviction (Exhibit 23) in relation to Mr. Lynds for drug trafficking in 2007. The defence elected to call no evidence- the accused did not testify.
ANALYSIS
[119] Having reviewed the evidence I can say that I found all Crown witnesses to be credible. In particular, I found Corporal Whittington’s evidence to be impressive and telling in relation to many important points.
[120] For example, through this officer the Court heard testimony that the accused felt that dealing drugs was all that Mr. Lynds had ever done. It also heard that he had a system of suppliers and associates, many of whom were known to the accused personally (together with the role they played in the network) and what they were selling ( for example, Curtis Lynds dealt mainly in illegal cigarettes and ecstasy and sold from his trailer rather than his house. Christopher Lynds dealt mainly in cocaine‑ although " he sells way more crack than blow"). The accused knew the addresses of “Jonathan and Cameron”, she also knew “Jeff”, and that "Cameron and Jeff sell blow too". She knew the peculiarities and idiosyncracies of many of Christopher Lynds’ customers (ie. the "crack head" professor and the unfortunate woman who had had her teeth knocked out by her boyfriend, who purchased drugs in the presence of her little girl.)
[121] Ms. MacKeigan told the officer about "Jody", who manages a grow operation for Mr. Lynds. She described the circumstances of their arrangement, including the fact that Mr. Lynds once had to punch him out for not doing what he was supposed to do. She further related that Like New Car Care was an auto repair shop operated by Lynds from the garage on his property on 511 Jollytown Road , and that for real customers to patronize the business was a comparatively rare event.
[122] Corporal Whittington further described how she was told by the accused that Christopher Lynds ran the car care business because it looked good on the books, that New Breed Clothing Store was not successful, and that it was set to close in 2007. The accused had also discussed her purchase of the 2006 Volkswagen Golf on June 9 2006, and the fact that the only reason she qualified for financing was because her boyfriend supplied the $10,000 down payment. This sum consisted of so many small bills that Ms. MacKeigan was embarrassed. The Court also heard that Chris Lynds kept wads of small denomination bills on his person while transacting drug sales and that this had been clearly observed on several occasions when both Corporal Whittington and the accused were present.
[123] The foregoing summary is not nearly exhaustive. It represents only some of what the officer was able to establish on the basis of her undercover work.
[124] Turning to the Canada Revenue Agency records (contained in Exhibits 21 and 22), while they were suggestive with respect to some matters, the information on the whole (particularly that of Mr. Lynds) left the impression that it had been somewhat arbitrarily selected in the interest of just "filing something". The primary significance of this information was that it failed to disclose a source of funds from which the $10,000 vehicle deposit could have been derived.
[125] Of course, individuals are sometimes less than candid in their dealings with Canada Revenue Agency for reasons that have nothing to do with proceeds of crime offences. These records ( both what they show, and what they do not ) are simply additional evidence to be assessed in conjunction with everything else.
[126] The relevant portions of sections 354 (1) and 355 (a) of the Criminal Code read as follows:
354. (1) Every one commits an offence who has in his possession any property or thing or any proceeds of any property or thing knowing that all or part of the property or thing or of the proceeds was obtained by or derived directly or indirectly from
(a) the commission in Canada of an offence punishable by indictment...
355. Every one who commits an offence under section 354
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years where... the value of the subject matter of the offence exceeds five thousand dollars;
[127] Did Mr. Lynds supply the cash deposit for Ms. MacKeigan’s vehicle? The evidence is overwhelming that he did. The combination of what the accused admitted in her statement to police, what she admitted to Corporal Whittington while the latter was undercover, the facts to which Mr. Lugar testified, the absence of another possible source as reflected in her tax records, and her need to ask her Uncle to lie to the police and corroborate her story about the source of these funds, make this abundantly clear.
[128] Were these funds obtained by Christopher Lynds in whole or in part, directly or indirectly, from the commission in Canada of an offence punishable by indictment? One way to begin to answer this question is to look at the funds themselves. The $10,000 deposit was paid in cash. Mr. Lugar testified that a cash payment of this magnitude was very unusual. It was also composed of an inordinate number of bills in small denominations.
[129] As Judge Sherar observed in R. v. Marriott 2001 N.S.J. 363, at paragraph 23:
The unexplained appearance of such a large sum of cash in small denominations $5, $10, $20, $50 mostly $20 dollars located in a briefcase on the kitchen floor of the residence leads one to the almost inextricable conclusion that the funds were from an illegal source. Especially in light of the antecedent criminal activity on the part of Mr. Marriott at least until the year prior to his demise in which he trafficked drugs from his residence which was jointly occupied by himself and Ms. Stone.
[130] I am additionally mindful of the decision of the Supreme Court of Canada in R. v. Tortone (1993), 84 CCC 3rd 15, which establishes that it is not necessary that there be direct evidence linking the specific proceeds to a specific criminal offence. Thus, the fact that Mr. Lynds was convicted of trafficking in 2007, as opposed to 2006 when the funds were provided, would not preclude a finding that the money was nonetheless derived from the sale of illicit drugs. The Crown must demonstrate on the evidence that the only reasonable inference available to me is that the funds were derived from criminal activity.
[131] Having carefully considered all of the evidence in this case, I am left in no doubt that the $10,000 down payment which enabled the purchase of the Volkswagen was supplied by Christopher Lynds, and that it was derived from the proceeds of his drug trafficking activities. Without repeating all of the evidence noted above, the descriptions of his daily activities offered by the accused, both in her statement to the police, and to Cpl Whittington, as well as the observations of the latter, which showed him selling drugs to multiple customers on virtually every visit that she made to 511 Jollytown Road, speak volumes in that regard.
[132] Possession by the accused is the next element which the Crown must prove beyond a reasonable doubt. During the time interval mentioned in Count 1 of the indictment, Ms. MacKeigan was the registered owner of the vehicle. Moreover, she was the only person that Corporal Whittington ever observed driving it during her involvement with the investigation (which ended on September 26, 2007). When parked, Corporal Whittington only ever observed it either at the accused’s residence, or at Mr. Lynds’ residence (when the accused was also there).
[133] The definition of possession (for the purposes of Sections 354(1) and 355(a)) is as contained in Section 4(3) of the Criminal Code. The relevant portion of that definition indicates that a person has anything in her possession when she has it in her personal possession. Section 358 defines the circumstances under which such possession is complete.
[134] I therefore find that the accused had the 2006 Volkswagen Golf automobile in her possession within the meaning of these sections, during the time span mentioned in the indictment.
[135] The only remaining issue is whether the accused possessed the vehicle knowing that all or part of the money comprising the down payment was obtained or derived from the commission in Canada of an offence punishable by indictment.
[136] As Justice Cacchione noted in R. v. Stephen (2008), 261 N.S.R.(2nd) 346, at paragraph 27:
The third element is whether Stephen knew or believed that the property had been obtained by trafficking in narcotics. It involves Stephen’s knowledge or belief about the origins of the property with which she dealt. Knowledge and belief are states of mind. To know something is to be aware of it, to perceive or understand it as fact, to apprehend it clearly and with certainty. To believe something is to have confidence or faith in it and, as a result, to rely on it as true. It is not incumbent on the prosecution to prove both knowledge and belief. Either one, proven beyond a reasonable doubt, is sufficient.
[137] Although that case (and some of the others that I will subsequently mention) dealt with offences under the Controlled Drugs and Substances Act, the considerations insofar as they relate to the knowledge element of the offences in the case at bar are equally applicable.
[138] How does the Crown prove knowledge? Generally, it is a matter of circumstantial evidence. The issue is whether the court is prepared to infer knowledge on the part of the accused on the basis of the proven facts.
[139] In another of his decisions, R. v. Hobbs (2008), 270 N.S.R. (2 nd ), 54 (SC) at paragraph 66, Justice Cacchione observed that:
The process of drawing inferences is well known. It was aptly described by Doherty, J.A. in R. v. Morrissey 1995 CanLII 3498 (ON C.A.), (1995), 97 C.C.C. (3d) 193 (Ont.C.A.) at p.209 as follows:
A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can be reasonably and logically drawn from a fact or a group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation...
[140] And further, at paragraph 67 of Hobbs (supra):
In R. v. Katwaru (2001), 153 C.C.C. (3d) 433 (Ont. C.A.) Moldaver J.A. stated at p.444:
...In order to infer a fact from established facts, all that is required is that the inference be reasonable and logical.
[141] To this I add (since the subject of my inference is an essential element of the offence) that I must also be satisfied that knowledge on the part of the accused (that all or part of the cash deposit on the vehicle was drug money) is the only reasonable inference that I can draw from the proven facts. This means that if the evidence would support a reasonable inference that is incompatible with such knowledge on the part of the accused, I must acquit.
[142] Ms. MacKeigan had indicated to Corporal Whittington in words to the effect that drug trafficking was all Christopher Lynds had ever done, that he had a car care business because it looked good on the books, and that the New Breed Clothing store was set to close and was not making much if any profit.
[143] Moreover, the accused knew of Mr. Lynds’ near brushes with the law, how long he had been selling, what he charged for his products, who his associates were, what goods they sold, where they sold them, and details of a grow operation run by Lynds through another individual. Having lived with him for a large portion of 2006 (I repeat parenthetically that the bill of sale and certificate of insurance relating to the purchase of the car showed 511 Jollytown Road as the accused ’s residence) Ms. MacKeigan also knew that he actually seemed to do very little during any given day, except see to the needs of the customers who attended his premises. As well, the $10,000 deposit itself was paid in such a large number of small denomination bills that it actually was a source of embarrassment to her. The only reasonable inference that I can draw from all of these facts is that she knew that the money was obtained as a result of Lynds’ drug trafficking activities.
[144] Even if I had concluded that she was without actual knowledge that these funds were so tainted, I would have concluded that Ms. MacKeigan was wilfully blind on the point.
[145] As stated by the Alberta Court of Appeal in R. v. Souter (1998) 216 A.R. 292 at paragraph 10:
Wilful blindness is sufficient mens rea for an offence that requires knowledge. In R. v. Georgeson (1995) 102 C.C.C. 3rd, 97, (S.C.C.), a case dealing with alleged possession of obscene material, the Supreme Court said at page 135:
It is well established in criminal law that wilful blindness will also fulfill a mens rea requirement. If the retailer becomes aware of the need to make further inquiries about the nature of the videos he was selling yet deliberately chooses to ignore these indications and does not make any further inquiries, then the retailer can be nonetheless charged under s. 163(2)(a) for "knowingly" selling obscene materials.
Deliberately choosing not to know something when given reason to believe further inquiry is necessary can satisfy the mental element of the offence...
A finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?
[146] Even during the course of her meeting with the police on April 14, 2008, her statement is replete with phrases like "it was better not to ask", "I was better off not knowing", "The less I knew the better" and such like. Anyone in the position of the accused would have had at the very least an exceedingly strong suspicion (so strong that it approached certainty) of the illegal source of these funds, especially given her extensive knowledge of her boyfriend’s drug trafficking activities and the denominations of the bills in which the $10,000 was paid . As such, absent actual knowledge, I would have found that her overwhelming desire to have the car caused her to ignore this suspicion, shut her eyes and accept the money, much in the same way that it led her to involve Mr. Fraser in a scheme to lie to the police about its origin.
[147] I therefore find the accused guilty on Count 1.
[148] With respect to the remaining count, I find the evidence to be much less satisfactory. There was very little to indicate possession of property or money, other than that which was used for the acquisition of the vehicle. What little there was related to vague allegations of smaller sums of money allegedly given to the accused by Mr. Lynds, as well as references to trips and other things for which he had paid and from which she allegedly benefitted. This latter evidence was nowhere near sufficient to sustain a conviction.
[149] I would therefore acquit on the remaining count.
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