Court of Appeal asks if trial judge influenced jury decision in criminal association case

Law360 Canada (June 7, 2024, 12:58 PM EDT) --

John L. Hill

Cosmin Dracea was convicted, along with others, for trafficking in cocaine and possession of the proceeds of crime. Along with the trafficking offence, an additional finding of guilt was for his association with a criminal organization called the “Ndrangheta.” It was the criminal association charge that led to Dracea’s appeal. The Ontario Court of Appeal handed down a unanimous judgment upholding the conviction on May 30, 2024 (R. v. Dracea, 2024 ONCA 440).

An analysis of the legal principles argued in the Court of Appeal is interesting. Still, many readers may wonder why the criminal association charge was contested so vigorously when dealing drugs would seem to be the main reason for conviction. In an earlier trial, he pleaded guilty to a drug trafficking charge and proceeds of crime possession but was found not guilty of involving himself with a criminal organization.

When he was charged and tried for similar subsequent offences, a jury convicted him on all counts. In terms of prison law and concerns for early release, the finding that Dracea was involved with the Ndrangheta may be the most serious of the criminal charges.

The Court of Appeal delved into the technical issue of whether the trial judge may have influenced the jury’s decision, a matter of significant importance in helping us understand what is permissible in a charge to the jury. The Court of Appeal’s main task was determining whether Dracea had been prejudiced when the trial judge attempted to apply a Carter analysis to allow hearsay evidence of co-conspirators to be used against Dracea. The test in R. v. Carter, [1982] 1 S.C.R. 938, if met, allows for the co-conspirator’s exception to the hearsay rule. In this case, it would enable a conversation between a co-accused, Ursino, and an unindicted co-conspirator, Avanes, to be used against Dracea.

Ursino was an alleged “boss” in the Ndrangheta organization. The Carter exception required the Crown (1) to prove beyond a reasonable doubt that there was a conspiracy between at least two people to import cocaine, (2) to prove on the balance of probabilities through Dracea’s own words that he was involved in the conspiracy and (3) to prove beyond a reasonable doubt that the statements of others linked Dracea to the conspiracy. Giving a jury instruction on how to apply Carter would be a challenge for any judge. But a mistake, should Dracea be able to convince the appeal court, could result in eliminating the criminal organization finding or at least earn him a new trial.

The Court of Appeal considered the trial judge’s instructions confusing because he addressed both co-accused in his charge to the jury. He consistently used the phrase “either or both” for the co-accused in setting out how a Carter analysis could be applied.

Unfortunately for Dracea, the appeal court said the jurors were smart enough to figure it out. In any event, they were given a copy of the judge’s instruction before retiring for deliberation and could figure it out independently. Dracea’s appeal was dismissed.

Why was Dracea focused on challenging the finding of his involvement in a criminal organization? An answer is suggested in examining the Federal Court of Appeal’s decision in Coscia v. Canada, 2005 FCA 132. Michele Coscia had been questioned on his ties to organized crime at a parole hearing. Possible involvement allowed the parole board to draw an adverse inference in its risk assessment. The Federal Court of Appeal drew a solid line in instructing the parole board that it could conclude a parole applicant’s involvement in organized crime only when there had been a criminal conviction for such participation.

For Dracea, eliminating the charge that he was involved in a criminal organization could improve the Parole Board’s assessment of what makes an applicant a manageable risk in society and speed his release from prison. The Appeal Court’s decision will be a disappointment.

The decision is also likely being cheered by York Regional Police, who have been trying to root out the Ndrangheta from Toronto and its environs for years. The criminal organization, formed in the 1860s in the Calabrian region of Italy, has become a major organized crime group that deals in drug trafficking and money laundering around the world. The police were frustrated that Canadian disclosure laws and a cap on the time it takes for a case to go to trial have hampered its ability to fight organized crime in southern Ontario. Tightening the Carter rules would make prosecutions less sure. Dracea’s upheld conviction for Ndrangheta’s involvement may delay his parole release, but for police projects, the case brings welcome news.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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