COURT OF APPEAL FOR ONTARIO
Simmons, van Rensburg and Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Raymond Ellis
Appellant
Breana Vandebeek, for the appellant
Jessica Smith Joy, for the respondent
Heard: November 26, 2015
On appeal from the convictions entered by Justice Thomas P. Cleary of the Ontario Court of Justice on December 30, 2014.
A. introduction
1The appellant appeals his convictions on two counts of attempting to possess a firearm without a licence.
2At trial, the Crown alleged that the appellant agreed to purchase two firearms from a co-worker, Donald Hare, in text messages exchanged between the two men while Hare was in Florida with his family in March 2014.
3Unbeknownst to Hare, the Toronto Police Firearms Enforcement Unit had information he was trafficking firearms. When he and his family crossed the border to return to Canada, he was detained and the van in which he was riding was searched. Canada Border Services officers found six firearms in an overhead storage compartment in his van as well as a Glock 30S in his front pants pocket. Hare did not have a licence for any of these firearms. The officers also seized a cell phone from Hare’s van.
4While the search of Hare’s van was taking place, police executed a search warrant at his home. He had licences to possess 19 firearms, including handguns and long guns. In addition to the firearms Hare was authorized to possess, police discovered a Glock 23 during their search of his home.
5Police determined that the cell phone seized from the van belonged to Hare. They extracted various emails, photographs and text messages from the phone, including 31 text messages exchanged between the appellant and Hare, the first 30 of which were sent while the latter was in Florida.
6At trial, with the appellant’s agreement, the Crown led its case against him solely through documentary evidence, which included:
an Agreed Statement of Facts and several defence concessions;
a police officer expert’s curriculum vitae and report relating to coded/covert language regarding firearms; and
a printout of the 31 text messages exchanged between the appellant and Hare.
7The appellant did not testify at trial.
8The trial judge found that the text messages exchanged between the two men demonstrated that the appellant made a bank transfer to Hare; that after learning of the impending transfer, Hare told the appellant that he was going out to get some guns; that Hare later informed the appellant “have yours”; and that, later still, Hare offered the appellant an upgrade relating to an existing agreement to buy a gun. The trial judge interpreted two subsequent messages, in which the appellant responded “Ok ok” to messages from Hare quoting prices for specific guns, to mean that the appellant had agreed to buy the two specified guns from Hare. The trial judge relied on those messages to find that the appellant had committed two counts of attempting to possess a firearm without a licence.
9The appellant raises two issues on appeal.
10First, he argues that the trial judge misapprehended the evidence by changing the punctuation in the text message relating to the offer of an upgrade.
11Second, he submits that, read as a whole, the text messages amount to nothing more than a conversation about purchasing guns. The appellant argues that the conclusion that he agreed to purchase a gun or guns from Hare and thus formed the intention to possess a firearm is not the only reasonable inference arising from the text messages. The appellant contends that, considering the whole of the evidence, the trial judge’s conclusion that the appellant’s statements “Ok ok” in two messages amounted to an agreement to buy firearms is unreasonable.
12For the reasons that follow, we allow the appeal in part and quash one of the appellant’s convictions.
B. the text messages
13The text messages at issue were sent on Tuesday, March 11 (10 messages), Thursday, March 13, 2014 (20 messages) and Tuesday, March 18, 2014 (1 message). Hare was apprehended while crossing the border on Sunday, March 16, 2014. The single text message sent by the appellant to Hare on Tuesday, March 18, 2014 was unread.
14In text messages exchanged on Thursday, March 13, 2014, Hare quoted a price to the appellant for two specific guns, a Colt compact 45 and an AR rifle, and the appellant responded “Ok ok”. None of the guns discovered in Hare’s van on Sunday, March 16, 2014 corresponded to those particular guns.
15We reproduce in full below the text messages between the two men introduced as evidence at trial. Following some of the text messages, we also reproduce some of the police officer expert’s comments on the interpretation of the text messages:
Tuesday, March 11, 2014
Appellant 1:43:31 a.m. Just got in, waiting on the bank to put the other
Appellant 4:22:15 p.m. Yo
Hare 4:22:47 p.m. Yo what up?
Appellant 4:23:50 p.m. Imma send 3 rii now
Hare 4:26:12 p.m. K let me know when in. go get few tools this aftrn
[Police officer expert: the term “tool” is commonly used to covertly refer to a firearm]
Appellant 4:26:54 p.m. Ok send some pic in any new ones!!
Hare 4:27:20 p.m. K
Appellant 4:34:22 p.m. I sent it shouldn’t be there
Hare 4:34:52 p.m. Cool txt u ltr
Appellant 4:35:25 p.m. K
Thursday, March 13, 2014
Appellant 12:42:54 p.m. Yo
Hare 1:14:35 p.m. What up have yours
Appellant 1:15:10 p.m. Any pic on anything new?
Appellant 1:15:21 p.m. Wen u coming back up?
Hare 1:16:08 p.m. Upgrade to same as what you have available. sunday.
Hare 1:16:27 p.m. Also 45
[Police officer expert: “45” refers to the caliber of a particular firearm.]
Hare 1:20:53 p.m. Cold up there?
Appellant 1:21:27 p.m. Cold as fuck bro
Appellant 1:21:39 p.m. -16 feels like -30
Appellant 1:22:12 p.m. How much you want for the 45
Hare 1:23:15 p.m. New colt compact 45 (1600)$
[Police officer expert: “colt compact 45” refers to a specific make of a 45 caliber firearm with a shorter barrel.]
Appellant 1:23:39 p.m. Ok ok
Appellant 1:23:55 p.m. How much are rifles going for
Appellant 1:29:12 p.m. Next on my wish list
Appellant 1:29:33 p.m. U can’t go any lower on the price
Appellant 1:32:03 p.m. For the ar
[Police officer expert: “ar” is a slang term used to describe a specific design of firearm, an AR15. A number of manufacturers produce a variant of this firearm. The most common is the Colt AR15, which is the civilian version 223 caliber rifle designed after the military version of the Colt M16.]
- Hare 1:32:34 p.m. 4 u 2000 if 500 deposit diamond back db 15 bare ri
[Police officer expert: the price will be $2000, including a $500 deposit on a Colt Diamondback revolver and $1500 for the rifle.]
Appellant 1:34:31 p.m. Ok ok
Appellant 2:15:34 p.m. SICK!!!!
[Police officer expert: “SICK” is a positive response]
- Appellant 2:19:32 p.m. How much is that?
Tuesday, March 18, 2014
- Appellant 2:13:19 p.m. Yoyo
C. Additional Evidence
16As part of the defence concessions, the appellant admitted that he has never possessed a firearms licence or firearms acquisition certificate and that he did not have any firearms registration certificates as of March 2014.
17The defence also acknowledged that $2000 is consistent with street pricing for an AR rifle and that $1600 is consistent with street pricing for a Colt compact 45 firearm.
D. positions of the parties at trial
(1) The Crown
18The Crown submitted that the sole issue at trial was whether the appellant’s responses, “Ok ok”, constituted an agreement to buy the specific firearms for which Hare had quoted a price – and that making such an agreement would constitute the offence of attempting to possess a firearm without a licence.
19According to the Crown, the text messages supported a finding that the appellant sent money to Hare so Hare could buy guns for the appellant. The appellant’s responses to the prices quoted for specific firearms, “Ok ok” in text messages 22 and 28 and “SICK!!!!” in text message 29, were a clear indication that he had agreed to purchase those particular guns – and his agreement to do so was sufficient to make out the offence of attempted possession of a firearm. The fact that Hare did not have a Colt 45 or a rifle in his van when he crossed the border did not mean that he did not already have them at his house.
(2) The defence
20Defence counsel at trial (not Ms. Vandebeek) argued that while it could be a reasonable inference from the text messages that the appellant sent money to Hare, the purpose for which the money was sent was not clear. Further, the appellant’s statements, “Ok ok” in text messages 22 and 28, were equivocal. They did not signify whether he had made up his mind to purchase the guns for which Hare had quoted prices. And it was not clear that text message 29, “SICK!!!!”, relied on by the Crown related to the same transaction. It seemed more likely that the phrases “SICK!!!!” and “How much is that?” (text message 30) related to a photograph that may have been sent. Moreover, if there had been an agreement to purchase the specific firearms for which Hare had quoted prices, one would have expected to see those firearms in Hare’s van when he crossed the border.
E. The trial judge’s reasons
21After reviewing the text messages, the trial judge concluded that they revealed the following reasonable inferences:
on Tuesday, March 11, at 1:43:31 a.m., the appellant told Hare he (the appellant) had asked a bank to put money somewhere;
later the same day, at 4:23:50 p.m., the appellant told Hare he was now sending $300, or some other denomination starting with a 3;
three minutes later, at 4:26:30 p.m., Hare responded, in effect, let me know when it is in. Hare also said he was going to get a few guns that afternoon;
at 4:34:22 p.m., the appellant told Hare he had sent it and it should be there – the only reasonable inference is he was talking about the money he had spoken of in the previous texts;
two days later, Hare texted the appellant and asked, in effect, what’s going on, how are you. He also said, “Have yours” – meaning he has something the appellant wants;
45 seconds later, the appellant asked, “is there a picture of anything new?”;
11 seconds later, at 1:15:21 p.m., the appellant asked, when are you coming back to Canada;
at 1:16:08 p.m., Hare responded with two separate thoughts. The first thought was “do you want to upgrade from the same as what you have”, indicating they had made a deal for a firearm or firearms – and Hare simply wanted to know, do you want to upgrade or add something to what you have. The second thought was “available Sunday”, meaning Hare would be in Canada on Sunday;
19 seconds later, Hare told the appellant he had a 45;
after various texts about the weather, the appellant asked how much Hare wanted for the 45;
Hare responded with the model and price;
24 seconds later, the appellant responded, “Ok ok”, meaning they had an agreement;
16 seconds later, the appellant asked about the cost of a rifle;
when there was no response from Hare for 5 minutes and 17 seconds, the appellant sent a message, “Next on my wish list” – and then 19 seconds later, asked, in effect, can you go lower on the price – meaning, here’s the next thing on my wish list, can you go lower on the price we have already discussed;
when there was no response from Hare for about 2 minutes and 30 seconds, the appellant texted, “For the ar” indicating he was talking about something they had already discussed, which was similar to Hare’s comment earlier, when he said, “Have yours”;
once the topic of a price for an AR came up, Hare responded with a price in only 29 seconds – viewed in context, the appellant’s response “Ok ok” signified acceptance;
the appellant’s response, at least 40 minutes later at 2:19:32, “How much is that”, demonstrates that the appellant’s “Ok ok” response does not indicate he was simply negotiating a price – rather, the men made two deals and the appellant wanted to know the total amount.
F. Analysis
(1) The positions of the parties on appeal
22On appeal, the Crown contends that the text messages demonstrate that the appellant committed the offence of attempted possession of a firearm without a licence because they show that the appellant reached an agreement or agreements with Hare to purchase a firearm or firearms. At trial, the Crown relied on the appellant’s statements in text messages 22 and 28, “Ok ok”, in response to price quotes from Hare as establishing two agreements and two offences. On appeal, the Crown also relies, in the alternative, on Hare’s statement in text message 12, “Have yours”, and Hare’s offer of an upgrade in text message 15 to establish at least one agreement to purchase a firearm.
23The appellant does not dispute that, in the circumstances of this case, an agreement to purchase a firearm would constitute the offence of attempted possession of a firearm without a licence. However, he maintains that in coming to the conclusion that the appellant’s statements “Ok ok” in text messages 22 and 28 signified the appellant’s agreement to purchase the firearms for which Hare had quoted a price, the trial judge misapprehended the evidence concerning text message 15, the upgrade text message.
24The appellant submits that in holding that text message 15 constituted two thoughts, the trial judge improperly altered the punctuation of the message. Rather than reading text message 15 as it was sent, “Upgrade to same as what u have available.sunday”, the trial judge read text message 15 as, “Upgrade to same as what u have. Available sunday.”
25According to the appellant, the trial judge’s misreading of text message 15 led him to interpret it improperly as meaning the two men had already reached an agreement for the sale of a firearm, rather than as simply an offer of an upgrade in the context of ongoing negotiations.
26Further, and in any event, the appellant submits that, viewed as a whole, the text messages are susceptible to differing interpretations and are much too vague to establish any agreement(s) for the purchase of firearms. When the appellant wrote in text messages 4 and 8 of sending something and its arrival, he could have been referring to photographs or even rifles (ri). Moreover, the language “Ok ok”, is inherently ambiguous and equally consistent with being simply an acknowledgement of Hare’s offer as opposed to a positive response. And contrary to the trial judge’s interpretation, text messages 28 and 29 could have been referring to something other than the previous text messages, for example, photographs or alternate forms of communication exchanged between the two men.
27As for the Crown’s alternate position on appeal, the suggestion that the words, “have yours”, in text message 12 referred to a gun is entirely speculative.
(2) Applicable Law
(a) Unreasonable verdict
28The test for an unreasonable verdict is whether “the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered” and the reasonableness of the verdict is a question of law. See R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168 at para. 23; and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 at para. 36.
29In the context of a judge alone trial, “the court of appeal often can and should identify the defects in the analysis that led the trier of fact to an unreasonable conclusion”: Biniaris at para. 37.
30Where the Crown’s case depends on inferences drawn from primary facts, the question, in assessing the reasonableness of the verdict, becomes: could a trier of fact acting judicially be satisfied that the accused’s guilt was the only reasonable conclusion based on the totality of the evidence: R. v. Mars, 2006 CanLII 3460 (ON CA), [2006] O.J. No. 472 (C.A.) at para. 4.
(b) The law of attempt
31To be convicted of an attempt, the Crown must prove the mens rea and actus reus of the attempted offence. With respect to mens rea, the evidence must establish that the accused intended to perpetrate the specific offence in question, whether committing the offence was possible or not.
32With respect to the actus reus, the accused’s actions must go beyond mere preparation to commit the crime. In R. v. Root, 2008 ONCA 869, [2008] O.J. No. 5214 at para. 100, Watt J.A. described the difference between mere preparation and an attempt to commit an offence:
This requirement of proximity, expressed in the divide between preparation and attempt, has to do with the sequence of events leading to the crime that an accused has in mind to commit. To be guilty of an attempt, an accused must have progressed a sufficient distance (beyond mere preparation) down the intended path. An act is proximate if it is the first of a series of similar or related acts intended to result cumulatively in a substantive crime. [Citation omitted.]
(c) Discussion
33The appellant was charged with what were essentially two identical counts of attempting to possess a firearm. The information reads as follows:
(1) Raymond Ellis between 1st day of March in the year 2014 and the 30th day of March in the year 2014 at the City of Toronto and elsewhere in the Province of Ontario, did unlawfully attempt to possess a firearm knowing that he was not the holder of a licence under which he may possess it contrary to section 92(1) of the Criminal Code.
(2) and further that Raymond Ellis between 1st day of March in the year 2014 and the 30th day of March in the year 2014 at the City of Toronto and elsewhere in the Province of Ontario, did unlawfully attempt to possess a firearm knowing that he was not the holder of a licence under which he may possess it contrary to section 92(1) of the Criminal Code.
34We reject the appellant’s submission that a guilty verdict on a charge of attempting to possess a firearm is an unreasonable verdict in this case. Considering the evidence as a whole there is nothing to support the suggestion that the appellant and Hare were discussing the acquisition of anything in the text messages other than guns.
35Considered in this context, the only reasonable interpretation of text message 12, sent by Hare on Thursday, March 13, 2014, “What up have yours”, is that Hare had obtained at least one firearm for the appellant based on a prior agreement between the two men that he would do so. This evidence of a prior agreement that Hare would obtain at least one firearm for the appellant is sufficient to constitute the offence of attempted possession of a firearm by the appellant.
36That said, we accept the appellant’s submission that it was unreasonable for the trial judge to find that the appellant’s statements “Ok ok” in text messages 22 and 28 meant the appellant was agreeing to purchase the two firearms for which Hare had quoted prices.
37The Crown does not dispute that, standing on their own, the responses “Ok ok” in those text messages can be viewed as equivocal.
38To find that text messages 22 and 28 demonstrate the appellant’s agreement to purchase the two specified guns, the trial judge had to consider the whole of the evidence at the trial. In our view, in interpreting those text messages as signifying the appellant’s agreement to purchase the specified guns, the trial judge failed to advert to a crucial aspect of the evidence – namely, the evidence that, when Hare crossed the border, he did not have either the Colt compact 45 or the AR the appellant was supposedly agreeing to purchase.
39In the absence of evidence of what guns police discovered at Hare’s home, the trial Crown’s submission that those guns may have been at his home was speculative.
40In the face of the evidence that Hare did not have a Colt compact 45 or an AR available when he returned to Canada, we consider the inferences arising from the two responses “Ok ok” too weak to support convictions for attempting to purchase a firearm without a licence. Viewed in the context of the whole of the evidence, we consider it a reasonable inference that the two responses “Ok ok” signified nothing more than an acknowledgement of the prices quoted.
41In the circumstances, there was no evidence capable of supporting a finding of guilt on a second count of attempting to possess a firearm and the conviction on count two of the information should therefore be quashed.
G. disposition
42Based on the foregoing reasons, we would allow the appeal in part and quash the conviction on count 2 of the information for attempting to possess a firearm. The sentencing reasons are not before us and the parties made no submissions concerning any steps we should take in the event we allowed the appeal in relation to one count on the information but not the other. The parties may make written submissions concerning sentencing within 21 days if so advised. If no further submissions are received within that period, the appeal is otherwise dismissed.
Released:
“MAY 11 2016” “Janet Simmons J.A.”
“JS” “K. van Rensburg J.A.”
“M.L. Benotto J.A.”
