Court File and Parties
Ontario Court of Justice
Date: 2014-05-23
Court File No.: Kitchener 4077/13
Between:
Her Majesty the Queen
— and —
Junior Jeffrey Ball and Katherine Irene Olsson
Before: Justice G. F. Hearn
Heard on: December 3, 5, 12 and 20, 2013; February 6 and 21, 2014; March 31, 2014; April 7, 17 and 25, 2014
Reasons for Judgment released on: May 23, 2014
Counsel
Ms. Lynette Fritzley — counsel for the Crown
Mr. Andrew Bond — for the defendant Junior Jeffrey Ball
Mr. Davin Charney — for the defendant Katherine Irene Olsson
Reasons for Judgment
Hearn, J.:
Background and History of Proceeding
[1] This matter came before the court for trial on December 3, 2013. At that time both accused entered pleas of not guilty to counts involving possession of a prohibited weapon, i.e. brass knuckles, possession of cocaine and possession of cannabis marihuana. Mr. Ball also entered pleas of not guilty to various counts set out as Counts 4 through 10 inclusive on the information where he alone is charged.
[2] Those counts involve allegations of offering to transfer two firearms, a Smith and Wesson .357 Magnum handgun as well as a 12 gauge shotgun. Further counts of possession of the .357 Magnum and possession of the firearms, contrary to various court orders and without the necessary authorization were also set out.
[3] The trial then continued on a number of days thereafter, but has finally evolved to the narrow issue involving Mr. Ball only and the alleged possession of and offer to transfer the .357 Magnum.
[4] To understand how that came to be some of the history of this matter must be set out in this judgment.
[5] Following the pleas the court embarked on a multi-day voir dire involving Charter applications brought by both Mr. Ball and Ms. Olsson alleging a breach of s. 8 of the Charter and on behalf of Ms. Olsson only an allegation involving a breach of s. 9. Basically the applications were an attack on the validity of the warrants to search the residence of Mr. Ball and Ms. Olsson situated at 454 Shelley Drive, Unit D in the City of Kitchener where various items noted in the counts were located together with a cell phone alleged to be in the possession of Mr. Ball. The s. 9 application involved an allegation that the police had arrested Ms. Olsson without the necessary reasonable and probable grounds.
[6] The voir dire continued, evidence was heard throughout December and on February 6, 2014 the ruling of the court was released. The details of that need not be revisited at this time, but for the reasons given the court dismissed both applications.
[7] Following the dismissal of both Mr. Ball's and Ms. Olsson's applications the trial proper proceeded. Various witnesses were then called by the Crown including Det. McCarthy the investigating officer in this matter who had given evidence during the course of the voir dire as well as other officers involved in the search of the residence and the arrest of the accused persons. In addition, relevant to the charges involving Mr. Ball, Special Cst. Michael Press, a qualified expert in firearms and language involving firearms, gave evidence on behalf of the Crown.
[8] Following the completion of the evidence on April 17, 2014 counsel for Ms. Olsson brought a motion for a directed verdict as against his client. Submissions were made and the court ruled on that date dismissing that particular motion. Counsel for Ms. Olsson was then asked if he intended to call any evidence on behalf of Ms. Olsson on the trial proper and advised that no such evidence would be called. At that point apparently appreciating the absence of a reasonable prospect of convictions with respect to Counts 1 through 3 inclusive of the information as it involved Ms. Olsson, the Crown invited those charges to be dismissed. As a result, those charges were dismissed against Ms. Olsson on April 17 and she was not thereafter involved in the trial of this matter.
[9] The trial then continued involving Mr. Ball only. At that point Mr. Ball advised the court he wished to change his pleas to guilty with respect to Counts 1 through 5 on the information. His original pleas of not guilty were struck and Mr. Ball then entered pleas of guilty to counts alleging possession of a prohibited weapon, i.e. brass knuckles, possession of a controlled substance, cocaine, and further possession of a controlled substance, cannabis marijuana. He also pled guilty to possessing the brass knuckles while prohibited from doing so by virtue of an order made under s. 109 of the Criminal Code on December 18, 2008 and while also prohibited by order of a court made on November 19, 2003. Mr. Ball maintained his pleas of not guilty with respect to the remaining counts and the trial continued with respect to those charges. Mr. Ball elected to give evidence on his own behalf and that evidence was completed on April 25, 2014. On that date following the completion of the evidence of Mr. Ball, Det. McCarthy was called briefly in reply, submissions were made and the matter was ultimately adjourned to today for judgment.
[10] During submissions the Crown acknowledged that there was no reasonable prospect of conviction with respect to the allegation of offering to transfer a 12 gauge shotgun on or about December 19, 2012 and as a result that charge has been dismissed. The remaining charges relate to the item alleged to be a firearm, the Smith and Wesson .357 Magnum.
Admissions Made and Issue to be Determined
[11] As noted previously, this matter has ultimately evolved down to a relatively distinct issue to be determined. At the commencement of the trial Mr. Ball acknowledged a number of items dealing with the charges that have either been dismissed or pled to. He also acknowledged that at all relevant times he was prohibited by two orders of the court from being in possession of a firearm. He further acknowledged that he was not a holder of a licence to possess a firearm at the relevant time. During the course of his evidence as well he has acknowledged that the cell phone seized during the course of the search of the residence and the subsequent arrest of Mr. Ball was his cell phone and the text messages located on that phone were either sent or received by him on all dates alleged by the Crown.
[12] Ultimately and of importance is the fact that during the course of the evidence of Mr. Ball, he acknowledged being in possession of a Smith and Wesson .357 Magnum handgun, which in fact is the handgun shown in the photos filed as an exhibit and which were seen on Facebook. He also acknowledges being the author of the various text messages involving the alleged transfer of that particular item. What Mr. Ball does not acknowledge is that that item was in fact a "firearm" as defined in the Criminal Code. Mr. Ball's position is that that item had been rendered inoperable and was so at all relevant times and therefore was not a "firearm".
[13] This then is the issue to be determined. The Crown readily acknowledges that the Crown's case "rises or falls" on whether the Crown can prove beyond a reasonable doubt the item that was in Mr. Ball's possession, as noted in the pictures and that he refers to in the texts and during the course of his own evidence, is a firearm as defined in s. 2 of the Criminal Code. Both the Crown and the defence acknowledge all other essential elements of the remaining charges before the court have been proven to the degree required.
Evidence of the Crown Witnesses Relevant to Determination of the Issue
1. Evidence of Detective Kevin McCarthy
[14] Detective McCarthy was the lead investigator in this matter. At the relevant time he was a member of the Guns and Gangs Unit of the Waterloo Regional Police.
[15] On April 2, 2013 he received some information which was generic in nature with respect to concerns that the accused Junior Ball was in possession of a handgun. He did some background checks and also observed the Facebook page of Mr. Ball and pictures of what he believed to be a .357 magnum handgun and ammunition.
[16] Marked as Exhibits #15 and #16 on the trial are copies of various photographs identified by the officer together with copies of the Facebook photos referred to. Given the evidence of Mr. Ball it is clear that Mr. Ball acknowledges the photos were taken in the basement of his then residence and show among other things a .357 Magnum handgun with some ammunition on a table. Also shown were a number of photographs that Mr. Ball had taken of himself in possession of that particular handgun in various poses.
[17] The officer observed the photos and ultimately applied for and received a search warrant to conduct a search of the residence of Mr. Ball and Ms. Olsson on Shelley Drive in the City of Kitchener. This was one of the warrants that were the subject of the voir dire conducted during the initial stages of the trial.
[18] The officer also referred to the Facebook page of the accused Katherine Olsson and those particular photos have been marked as Exhibit #16.
[19] Detective McCarthy gave evidence with respect to his attendance at the residence on April 5, 2013, the day the search warrant was executed and the arrest of Mr. Ball and Ms. Olsson effected. Ms. Olsson was interviewed and released on a promise to appear while Mr. Ball was held for a bail hearing at a later date.
[20] The officer testified that during the course of the search a cellphone ultimately acknowledged by Mr. Ball to be in his possession was seized. A search warrant was granted with respect to the search of that particular item on April 13, 2013 and that search resulted in additional charges being laid against Mr. Ball.
[21] Mr. Ball had been released on the original charges but the officer was in touch with him with respect to the ongoing investigation involving the search of the cellphone and the subsequent text messages discovered and on May 21, 2013 when Mr. Ball was scheduled to attend court he was arrested again at that time on two counts of trafficking firearms. At the time of his arrest Mr. Ball understandably was not "happy" according to the officers. Given the history of the matter and the officer's apparent knowledge of Mr. Ball as well as the circumstances surrounding his second arrest, Det. McCarthy had no intention to interview Mr. Ball. He noted he expected that to be the end of it, but he then received a phone call the same day as the arrest indicating Mr. Ball wished to speak to him.
[22] The officer met with Mr. Ball and an interview was conducted on the day of his second arrest. That interview was recorded and marked as Exhibit #17 is a copy of the video of that interview. Marked as Exhibit #17-A is a transcript of that interview marked as an evidentiary aid.
[23] During the course of the officer's evidence the video statement was played for the court. The officer testified that following the statement he had no further discussions with Mr. Ball involving the charges before the court.
[24] This officer was also the officer that forwarded the various text messages retrieved from Mr. Ball's cellphone to Michael Press who gave evidence at trial and who is an expert in the field of firearms and slang used by people who traffic in such items. This officer was also asked about various other individuals mentioned during the course of the text messages and seemed to have knowledge of those persons.
[25] In cross-examination the officer confirmed it appeared that the photos on Facebook of the handgun had been taken on January 24, 2013 and during the course of the statement Mr. Ball had indicated that he had "got rid of the .357 around Christmastime".
May 21, 2013 Statement of Junior Ball
[26] During the taking of the statement it is apparent from the video that Mr. Ball is upset and worried about his predicament. He had requested to talk to the officer and it is apparent from the statement he is attempting to assist his own situation with respect to the obtaining of bail by offering to provide information to the police. He was told about the contents of the phone. The officer accuses him of being a "drug dealer and weapons trafficker" and he responds by saying, "I'm not a weapons trafficker, just trying to get out man." He repeats that on a number of occasions and appears to be somewhat desperate in stating that position. It is clear the officer is attempting to locate the whereabouts of the .357 handgun and an alleged shotgun neither of which were found within the residence during the course of the search in April.
[27] At trial on more than one occasion Mr. Ball was questioned why during the course of the statement he had never indicated to the police what he had stated under oath at the trial with respect to the handgun and the suspected 12 gauge shotgun, i.e. the "shotgun" was an air rifle and the .357 Magnum had been rendered inoperable.
[28] It is clear from the statement that Mr. Ball's primary intention was to provide information to the officer to get some kind of leniency with respect to either the charges or the bail that he would need to arrange to be out of custody. The officer attempted to question him on the alleged shotgun and the .357 and the following exchange takes place:
Question: I don't need you to incriminate yourself because you're already done buddy, like do you want me to read some of this shit to you? You know what you wrote, you know what you text, your negotiating price, you're describing, you're saying, you're showing the ammo. You got it all. You got a picture of the gun in your hand. It's all here man.
Answer: Yeah, but it's …
Question: Time, date, stamp, it's a bow. There's a bow on it okay? And if you want to assist me to track down a .357 down so it doesn't kill someone or the 12 gauge that you sold.
Answer: Yeah, but if I help you I'm going to want help back, like, like …
Question: I'm not here to barter.
[29] Further in the statement Mr. Ball seems to indicate he can assist the officer in finding other items, but the officer was equally insistent on trying to recover the "firearms" that he felt were in Mr. Ball's possession at some point. Mr. Ball responded, "Well, putting me jail is not going to get them and like you're not going to get them from stupid people that – however you got to me."
[30] Ultimately it appears Mr. Ball was getting nowhere with the officer with the offer he was making with regard to assisting with the other items. It appears as well the officer was also getting nowhere with Mr. Ball with respect to the information he wanted concerning the suspect .357 and the shotgun.
[31] Detective McCarthy indicated he had no further discussions other than shown on the video with Mr. Ball concerning the issues occurring before the court. This is contrary to the evidence of Mr. Ball with respect to that particular issue.
2. Evidence of Special Constable Michael Press
[32] Special Constable Press is a member of the Toronto Police Service and has been so since 1987. He was assigned to the Organized Crime Enforcement – Gun and Gang Taskforce – Firearm Investigation and Analysis Unit where he holds the rank of Senior Firearms Officer. He is currently on secondment to the Royal Canadian Mounted Police where he holds the rank of Special Constable and is designated as a peace officer across Canada. His current secondment involves his position as a Firearms Enforcement Support Officer.
[33] His expertise was rightfully acknowledged to be in place by the defence and his impressive qualifications are set out in Exhibit #18. After hearing submissions of counsel Special Cst. Press was qualified as an expert and able to give opinion evidence with respect to firearm identification, classification and in street and coded language relating to firearms and ammunition.
[34] Special Constable Press had been contacted by Det. McCarthy and was asked to review various text messages from the cell phone found in the possession of Mr. Ball together with other associated information to determine if there was any coded firearm language, conversation or terms contained in the material provided. He had an opportunity to review the disclosure report with respect to the extracted information from the seized cell phone as well as Facebook firearm images including photos of the suspected .357 Magnum firearm and of Mr. Ball in possession of that item.
[35] Special Constable Press' report is marked as Exhibit #19 in this matter. In that report he reviews various text messages retrieved from the cell phone found in the possession of Mr. Ball and indicates he found many conversations taking place as part of exchanges of text messages using coded or slang language in reference to firearms. He found those were at times intermingled with technical gun references as the cell phone report shows that Mr. Ball was also viewing a number of firearm related websites.
[36] The various messages that this witness gave evidence on related to coded firearm terms and were in fact confirmed by Mr. Ball's own evidence with respect to the transfer of the .357 Magnum, although Mr. Ball ultimately indicates that the .357 Magnum was not in fact a firearm. However, clearly the text messages referred to by this witness and presumably sent with the similar intent by Mr. Ball to Mitch O'Neill, Jason Merkley and Fliss Cranman were meant to convey to those individuals that the .357 Magnum was in fact a firearm.
[37] The messages reviewed by this officer and the particulars are set out in his report. However, he notes the messages numbered 287 to 289 [see Exhibit #7] involve a series of messages from Junior Ball to Mitch O'Neill inquiring whether or not Mr. O'Neill can sell a "tool" for him. This is slang for the word "firearm" and he then refers to a .357 which is a .357 Magnum. He refers to the gun as being "blue", meaning not stainless steel but being "blued" or dark for a price of $3,000. The gun was referred to as being "new", meaning it has not been used or is dirty (being discharged during a criminal event) and the gun is "full", meaning that the ammunition is provided with the firearm.
[38] The officer also referred to messages 511 to 517 which are a series of text messages between Junior Ball and Fliss Cranman which indicate that Mr. Ball is needing to sell some "tools" or firearms and asks if he/she knows anyone. Mr. Ball advises the gun is a .357 Magnum, and again indicates the gun is "new" and "full" or loaded with ammunition and is "blue".
[39] Further, messages 533 to 536 again involve Fliss Cranman who inquires of the accused how much he wants to sell the gun for. The accused indicates that he paid $2700 for the gun without ammunition or "empty" and will sell it for that price "full", meaning with ammunition. There is also a message referred to where Mr. Ball is apparently messaging Adam Goddard indicating that he will provide drinks if Goddard knows anyone that wants a "tool" or gun as he needs to sell it.
[40] Messages 5149 to 5136 which are in reverse order are between Mr. Ball and an individual named Jason Merkley. Mr. Merkley is inquiring of Mr. Ball if he still has the .357 handgun and others. Mr. Ball asks Merkley if he wants it, Merkley says he thinks so and Ball tells him to bring the money. Mr. Merkley advises that he only has $1200 in cash and Ball indicates to Merkley that he paid $2700 without the ammunition, has had it for years and now has ammunition with the firearm ("It's full").
[41] Mr. Ball then advises Merkley the sale price of the gun is $1500 and no less. Merkley attempts to have that reduced to $1350 and then it goes back up to $1500 with Mr. Ball reaffirming that he originally paid $2700. Ball apparently also indicates to Mr. Merkley that he has other firearms including a 12 gauge shotgun and if he brings $2,000 he "can have them".
[42] It is of note that the Crown indicates quite accurately that Special Cst. Press was not cross-examined with respect to his interpretation of the various text messages nor, it should be noted, indeed was Mr. Ball cross-examined by the Crown on those particular issues to any extent.
[43] The messages referred to seem to relate to dates in December with the next set of messages dated January 18, 2013 again with Mr. Merkley. See messages 1589 to 1586 wherein Mr. Merkley seems to be inquiring about the 12 gauge shotgun previously referred to. As noted earlier, the Crown has not proceeded with the allegations with respect to that particular item. Further reference, however, to that particular item is found in messages 1731 to 1735 and following.
[44] In addition to reviewing the text messages, this witness also reviewed a number of downloaded digital images, including images of what the officer fairly notes "appears to be a firearm" laid out for display on a table with six cartridges. He identified the handgun as a Smith and Wesson .357 Magnum centre-fire calibre six shot revolver. The officer noted that the model number and the serial number of the firearm are not visible in the photos but does note that the pictures of that particular item, and specifically the calibre and design of the handgun, is consistent with the items being offered for sale by Mr. Ball as evidenced by the text messages. The officer also noted that in the photographs filed six cartridges of ammunition are visible and that number of cartridges is in agreement with the capacity of the revolver displayed in the images.
[45] The officer also had an opportunity to view the various photographs of Mr. Ball taking a digital image of himself with what appears to be a revolver handgun similar in appearance in the waistband of his pants and also of what appears to be Mr. Ball pointing and holding the same handgun in his hand. Again, this evidence effectively has been admitted by Mr. Ball, specifically that the photos are of him and the handgun is the .357 Magnum referred to both in the text messages and in the photographs this officer reviewed.
[46] This officer also testified that no one would be trafficking in a "replica" handgun or describe is as "full". He also noted that replicas have a different bluing and have no functional use. He did confirm in-chief that disabled firearms have no operational value and although they may be desired by a collector, their value is gone once they are deactivated. If a handgun was disabled it would not be described in his view as "full". The officer also noted that there was a cylinder catch recess on the handgun that he viewed in the photographs where it would appear there was a recess wear pattern from where the revolver had been revolving which in his view would indicate use of the firearm. The officer further testified that although Smith and Wesson make pellet guns which are different in appearance, the item that he viewed in the photograph was not a pellet gun. Also, in one of the photographs that he viewed of Mr. Ball, Mr. Ball is wearing a shoulder holster which the officer indicated was very rare as such a holster is usually only worn by police officers.
[47] In cross-examination, among other things, the officer indicated as follows:
(1) Although he has given such evidence in the past, he acknowledged that it was more difficult to determine whether an item is a firearm from a picture or video than it is by having the item available for testing and physical examination.
(2) He was not aware of all of the working parts of a .357 Magnum and acknowledged that he was not able to determine, again among other things, that the hammer was capable of being held back nor if it had been welded which would render the item inoperable. He acknowledged that he has encountered such handguns before.
(3) Similarly, he could not tell if the trigger was able to be activated or if it had been altered to stop it from being depressed which would render it inoperable as well. Again, he has encountered such in the past.
(4) Although he noted some groove markings on the cylinder as he had indicated in-chief, he had no idea when those were made and from the picture itself he could not tell if the cylinder was actually capable of revolving at the time the picture was taken. The same with the barrel of the item depicted in the photograph. That is, he was unable to look in the barrel to see if it was capable of discharging a bullet.
(5) He was also referred to other parts of a .357 Magnum with which he did seem to be familiar but acknowledged that those parts were not visible as they were on the other side of the firearm which is not shown in the picture.
[48] In cross-examination as well he acknowledged that his opinion was based on the pictures and the text messages that he reviewed to indicate that the .357 Magnum was a firearm. That is, he relied on those two sources, the pictures and, as defence counsel stated, the text messages between a criminal trying to sell the item to another criminal.
[49] The officer stated as well, although he had indicated that there was no market for replica firearms, he did agree with defence counsel that a deactivated firearm could be used by a criminal for intimidation purposes and could have some value in that regard. He ultimately acknowledged with respect to the examination of the photographs that he could not determine from the photographs whether in fact the handgun had been deactivated nor could he determine the serial number for the item so that he could attempt to trace its history.
[50] With respect to the various text messages, counsel reviewed those text messages that had been referred to by the witness in-chief and also reviewed with the witness messages that had been sent immediately before those messages referred to.
[51] With respect to the text messages exchanged with Mitch O'Neill, it was apparent from prior messages that Mr. Ball owed Mr. O'Neill money and Mr. O'Neill was looking for that money. The exchange relating to the .357 Magnum seemed to be an exchange involving Mr. Ball indicating to Mr. O'Neill that if he could sell the item for $3,000 he would have his money. The officer agreed it would appear that he was trying to do so to pay a debt that he owed to O'Neill.
[52] The officer also agreed that the searches on the internet to the various sites involving the sale of firearms, for example the Smith and Wesson site, could provide an individual with information related to such a firearm. The officer was candid and agreed that that information might be useful to someone trying to sell the .357 Magnum whether it was deactivated or not. The officer testified his own search of the website would indicate there is a great deal of information out there involving such an item including both its cost and its street value. The officer was unable to determine from the material provided to him what information had in fact been obtained during the course of those searches by Mr. Ball.
[53] With respect to the text messages exchanged with Fliss Cranman it would also appear from other messages that individual had no money and was in fact asking Mr. Ball to sell what appears to be drugs on credit. Mr. Ball responds that he is in a pretty desperate financial situation himself and the officer agreed it does not appear from the text messages that (a) Cranman was a good candidate to buy any item and (b) there never was an offer to sell the item to Cranman in particular. It appears from the messages that Mr. Ball was simply inquiring if Cranman could effectively put out "feelers" to anyone that might want to purchase the item.
[54] The officer was also referred to text messages relating to what the Crown alleges is a 12 gauge shotgun. Although the Crown has not proceeded with respect to that particular item as the Crown did not feel it was in a position to prove that charge beyond a reasonable doubt, the references to the shotgun were contained within the various text messages and were relevant as it is clear that during the course of the various text messaging Mr. Ball was attempting to sell ultimately two alleged firearms. This became somewhat important as it would appear that Mr. Ball was offering what the Crown alleges were an operable 12 gauge shotgun and a .357 Magnum handgun ultimately for a combined total of $2,000. This officer agreed that $2,000 for both of those items together with the ammunition would have been "way below street value". Indeed the text messages, the officer agreed, would indicate that such a value would raise his attention and would likely raise the attention of a prospective purchaser because of the "low ball figure". The text messages also refer to "sweetening the pot" even more by throwing in what appears to be a punching bag. This all became very relevant during the course of Mr. Ball's evidence when it became apparent that the item he had sold as a 12 gauge shotgun was, according to him, only an air rifle and had been placed in a punching bag to conceal it when the purchaser ultimately referred to by Mr. Ball had received that item. The focus of the cross-examination in this particular area, accomplished with some success, was to certainly indicate that Mr. Ball was reducing the price well below the street value for the items that he was attempting to sell, i.e. the two alleged firearms as well as the ammunition.
[55] The text messages surrounding the entire conversation with Merkley and Mr. Ball seems to have initiated with regard to drugs and some issue with respect to items that had been supplied by Merkley to Ball. It is clear that Merkley is concerned about losing Ball as a customer and they were effectively "haggling" over the drug issue. It was Mr. Merkley who raised the issue of the .357 Magnum again and offered $1200. Mr. Ball countered with dropping the price to $1500, which the officer agreed was significantly lower than the value of a .357 firearm on the street. The price even gets more suspicious when Mr. Ball offers the alleged shotgun and the .357 Magnum to Mr. Merkley for $2,000. The officer agreed, as noted, that value would be such that it would raise the attention of a prospective purchaser.
[56] The cross-examination continued and it would appear other texting would indicate that in addition to the items a punching bag was also to be supplied, which the officer agreed could be used to conceal the alleged 12 gauge shotgun.
[57] The officer candidly acknowledged he was not an expert in drug language, but it is clear that the officer was aware from his experience that some of the language between Mr. Merkley and Mr. Ball involved the sale and/or purchase of drugs. The officer also agreed it was not possible to determine the final sale price of any firearm or firearms and the officer could not tell from the exchange of texts whether compensation was in money or drugs. The officer acknowledged he had no idea what took place between some of the messages that he had reviewed.
[58] The officer testified at the conclusion of his cross-examination that neither with respect to the suspect .357 Magnum nor the 12 gauge shotgun could he provide an expert opinion as to their operability.
[59] In reply the officer confirmed that a disabled firearm does not fire ammunition and it is not a product that you see trafficked in on the street. You see such items in army surplus stores for collectors and if properly deactivated it can be purchased without a firearm permit.
[60] Upon the filing of the affidavit of Wendy Lee Davis who is a Firearm Officer (see Exhibit #20) which simply confirms that Mr. Ball does not have a Firearm Acquisition Certificate or a licence to possess such an item, the Crown's case was completed.
Evidence of the Defence
1. Evidence of Junior Ball
[61] Mr. Ball gave evidence on his own behalf. He is 32 years of age and has been involved in a long-term relationship with the co-accused Katherine Olsson. They have in fact three young children. They had resided together for a number of years apparently in Ontario, Alberta and in Saskatchewan but in the fall of 2012 their relationship had broken down somewhat and, as I understand Mr. Ball's evidence, although he would attend at the Shelley Drive address where Ms. Olsson lived with the children on a regular basis, he did not reside there all the time. He did, however, have various items he kept at the residence comprised largely of his personal property.
[62] He was shown a photograph of the .357 Magnum and the ammunition which had been posted on his Facebook account. He was asked by his counsel when he had first seen the handgun and he indicated he came into possession of it in 2010 when he had gone to retrieve some personal property at the request of a friend who apparently was in jail and was going to be deported to Romania. He had taken the items to his friend but this particular item was not something the friend was able to take and he had apparently given it to Mr. Ball.
[63] Mr. Ball had the item in his possession until shortly before his arrest. He had been told by his friend that it was a "model". He noted the handgun was not able to be operated. You could not pull the trigger, the cylinder did not turn and you could not put bullets into the handgun. You could also not put a coat hanger into the barrel. The bullets in the photograph did not come with the item. The handgun had remained in his possession until just before his arrest and had in fact travelled with him to various residences including in Alberta. When asked by his counsel why he kept it, he stated he kept it because "it looked cool".
[64] He also spoke of the alleged 12 gauge shotgun which he says was in fact an air rifle which he had found in a residence when he was living in Alberta. He did not know if it worked and had had it since about November of 2011.
[65] He acknowledged possession of the phone from which the various text messages had been extracted. He had received that phone from his best friend E.J. who apparently got it from Rogers. He had lost his own phone in November of 2012 and was financially strapped. His friend had given him the phone to use and he did use it.
[66] He candidly acknowledged that his financial situation was poor and his only job appears to be part-time roofing so he was supplementing his income by selling drugs. He described himself as a drug pedlar as opposed to a drug dealer and indicated he sold "coke and weed".
[67] In examination-in-chief Mr. Ball was led through the various text messages that had been referred to during the course of the Crown evidence and provided further details as to their meaning and his intent when sending the messages. He spoke of Jason Merkley and that he was a supplier of cocaine for Mr. Ball. There had been a disagreement between the two of them as a result of Mr. Ball feeling Mr. Merkley was cutting the cocaine too much prior to the sale to Mr. Ball.
[68] He also spoke of the text messages to Mitch O'Neill and Ms. Cranman. Ms. Cranman was looking to purchase some "weed" and although the .357 Magnum was referred to, those discussions went no further.
[69] With respect to Mitch O'Neill, he too was a supplier of cocaine to Mr. Ball. Mr. Ball in fact owed him money (and he volunteered that he still does) and the text messages relating to the .357 Magnum were an effort on his part to try and get money by selling the "model" as a real gun. He indicated he was effectively trying to "rip him off", referring to O'Neill. When asked if he was fearful of that type of effort, Mr. Ball indicated that he had no fear and he was not afraid of "any people". O'Neill ultimately did not seem interested in the purchase of the handgun and the reason for that, according to Mr. Ball, was that he "probably knows I don't have one".
[70] He spoke of the searches that he had done on various websites trying to gain knowledge of the .357 Magnum as well as the "shotgun" which was referred to as well during the course of his evidence. He did the research to get knowledge, as he put it, to "scam people" and to learn as much as he could about the items in case people started to ask him questions.
[71] He also did research on the price of illegal firearms which included searching websites and asking people ("criminals, I guess") as to the price of such items. This is where he came up with the indication that he had paid $2700 for the .357 Magnum.
[72] With respect to the shotgun, the Crown has not proceeded on charges involving that particular allegation but Mr. Ball at the time of giving his evidence was not aware of that. He spoke of the circumstances surrounding the various text messages to individuals with regard to the sale of the "shotgun". He talked about the price he was suggesting for the purchase of the gun which he again determined from research. He referred to the text messages to various individuals as "talking shit". Ultimately, the "shotgun" which Mr. Ball states was an air rifle was sold to Jason Merkley for the sum of $400, some of which was paid in cash and some of which was paid in drugs. The rifle had been concealed in a punching bag. Mr. Merkley had come to Mr. Ball's home, gave him some cash and some drugs and received the punching bag with the item concealed inside it. This is the item Mr. Ball indicates was held out to be a shotgun.
[73] The text messages disclose that later Merkley indicated to Mr. Ball that the "shells don't fit". He did come back to Mr. Ball and Mr. Ball gave him his money back once it was found out it was not the item that he thought he had purchased but Merkley did not give the punching bag back. Mr. Ball noted the bag itself was worth $400 and he never "got it back".
[74] Mr. Ball referred to a number of texts between he and Jason Merkley which discussed the sale of the alleged firearms intermingled with talk over drug transactions that had taken place between the two of them and the quality of drugs that had been obtained by Mr. Ball. The price of the .357 Magnum seems to have varied from $2700 suggested by Mr. Ball to $1200 cash suggested by Mr. Merkley. Mr. Ball then countered with $1500, "no less", and when asked by his counsel why he had dropped the price, he indicated "because it's not real". Mr. Merkley never did buy the "model revolver" but did end up buying the punching bag and an air rifle.
[75] With respect to the .357 Magnum, Mr. Ball indicated when questioned as to if he had sold it, indicated that he had traded it with Matt Behr in exchange for an ounce of "cut" and the purchase by Mr. Ball of a half ounce of cocaine.
[76] Mr. Ball acknowledged the pictures that are before the court showing the handgun on a table with the ammunition were taken in the basement of the address at Shelley Drive. The pictures were taken on January 24 and the pictures of him with the gun were taken by himself the day of or the day before the item was traded to Mr. Behr. Again, Mr. Ball referred to the pictures being taken because he thought it looked "cool".
[77] From the text messages and the evidence of Mr. Ball it appears Mr. Behr was a drug dealer as well who trafficked in "all kinds of drugs" and Mr. Ball was looking for him to supply drugs for his business. He stated that he told Mr. Behr about the handgun at a bar prior to the trade and advised Mr. Behr that the gun was not operable.
[78] Counsel went through various text messages tracing the transaction which looks like it was completed on January 24 wherein there were discussions between Mr. Behr and Mr. Ball with respect to the purchase of cocaine and the supplying of some "cut". Mr. Ball indicated he was not trying to fool Mr. Behr with respect to the gun as he was his "new guy".
[79] As noted, the texts referred to by Mr. Ball seem to confirm that the exchange was to be for a "zip of raw" and Mr. Ball undertaking to call Mr. Behr "from now on".
[80] Ultimately Mr. Ball testified the transaction was completed and in exchange for the handgun he received an ounce of "cut" and purchased a half ounce of cocaine from Mr. Behr. As I understand the evidence, Mr. Ball then started "working with" Mr. Behr after that transaction.
[81] Mr. Ball again confirmed the hammer on the gun did not work, the trigger did not activate and the cylinder would not revolve. The bullets were not taken by Mr. Behr and when asked where the bullets came from, Mr. Ball indicated he had retrieved them from a "stripper's belt at Roxanne's".
[82] Mr. Ball was cross-examined skilfully by the Crown on a number of issues. He, however, maintained his position throughout his cross-examination that the transactions he had referred to in-chief did not involve a real 12 gauge shotgun nor an operable .357 Magnum.
[83] He was questioned on gang affiliations which he denied, although he acknowledged he knew some of the individuals that may be members of a gang. Still, he denied that he was such a member, nor that Matt Behr was such a member. He was not certain with respect to Mr. Merkley.
[84] On April 5, the day of his initial arrest, while he says that he was "stoned" and had a "buzz" on, he was questioned by Det. McCarthy. He was cross-examined on the video statement that he had given at that time. There had been discussions then with respect to photos on his phone, but Mr. Ball indicated a number of items had been deleted and he was not aware that they could be retrieved when he had indicated nothing would be found on his phone, or at least no photos.
[85] He acknowledged during the course of that initial interview he had never indicated the gun being referred to was not a "real gun" but simply "a model". He had also never indicated during the course of the interview any connection to the items and Behr or Merkley, although Mr. Ball did indicate he had had discussions while in custody either on the first or second occasion with Det. McCarthy and had advised Det. McCarthy that the alleged 12 gauge shotgun was in fact an air rifle. Det. McCarthy denied any such discussions when called in reply.
[86] Of note, during the cross-examination the Crown was persistent in questioning Mr. Ball with respect to his failure to disclose the fact that the items, and in particular the .357 Magnum that was viewed on the Facebook page, were not real firearms. Mr. Ball had indicated, among other things, during the course of the cross-examination that it was "not even mine", that there was "no gun" and that it was "not even in my house". Mr. Ball, however, does indicate during the examination that there was "no firearm" and was insistent in that regard. He also indicated that after his release on the first occasion no one would talk to him so he could not seek out the "model" from Mr. Behr as suggested by the Crown. No one would speak to him and when he was in custody on the second occasion he was unable to pursue any requests of Mr. Behr or others.
[87] When the cross-examination of Mr. Ball resumed on April 25 the Crown continued once again to revisit the statements Mr. Ball had made to the officers when arrested on the first and second occasions and the absence of any indication at all as to the true nature of the items that he had held out to be firearms in the text messaging.
[88] Mr. Ball candidly acknowledged his goal was to get out of custody at the time when he was offering to assist the police in getting "other items" in order to do so. He had no concern about retaliation from any individuals from whom he might get the "other items" as he was not afraid of them and basically he was, during the course of the statements, "talking shit".
[89] The various text messages were revisited to a limited extent in cross-examination by the Crown. Again Mr. Ball was consistent with respect to the details of the various text messages and the history surrounding the texts that were taking place between he and others involving the alleged firearms as well as the purchase and sale of drugs. The questioning involved not only the .357 Magnum but also the suspected 12 gauge shotgun. Again, Mr. Ball was consistent with the evidence he had given in-chief and on occasion added further details with respect to the transactions involving those items.
[90] He was questioned on the bullets that were observed in the photograph with the .357 Magnum. He acknowledged there were three hollow point bullets and three others and he just happened to have the right number for the .357 Magnum (namely six). He felt the photograph with the ammunition made it look "cool" but did acknowledge the bullets did not go to Matt Behr with the .357 Magnum and he ultimately threw out the ammunition. Again, he indicated the fake ammunition had been obtained off a "fucking belt". He referred on more than one occasion during the cross-examination that "the fact is, the gun's not real".
[91] In reply the Crown recalled Det. McCarthy, the lead investigator who had taken the statements from Mr. Ball on April 5 and May 21. Det. McCarthy was asked by the Crown if Mr. Ball had ever told him that the items were not "real" or inoperable and the officer indicated he had never had such discussions with Mr. Ball.
[92] That concluded the evidence.
Position of the Parties
[93] The defence submits that based on the way the counts relating to the .357 Magnum have been framed the onus is on the Crown to prove as an essential element of the offences that the .357 Magnum was in fact a "firearm". The item is not referred to as a prohibited device which may have been sufficient to capture a replica firearm and the way the counts have been particularized the issue, which is ultimately agreed to be the issue by the Crown, is whether or not the .357 Magnum is a "firearm".
[94] The defence refers to the expert evidence of Special Cst. Press as well as the evidence of Mr. Ball and asks the court to apply the principles set out in Regina v. W.(D.) and accept Mr. Ball's evidence or, at the very least, find that evidence raises a reasonable doubt. The defence submits that the cross-examination of the Crown failed to produce any inconsistencies in Mr. Ball's evidence in-chief and never "fleshed out" the particulars of how Mr. Ball came into possession of the items nor the circumstances surrounding the arrangements as to the transfer of both the alleged 12 gauge shotgun as well as the .357 Magnum. The defence submits that the evidence in its totality is consistent with the .357 Magnum being something that was in fact deactivated and states that was never challenged seriously or otherwise during the course of the cross-examination of Mr. Ball.
[95] The Crown submits that Mr. Ball's story is replete with "low lights" and that his evidence should not only be completely rejected, it should not in any way raise a reasonable doubt. The Crown submits that Mr. Ball has created a story and he is not a reliable or credible witness. The Crown submits that the text messages and the evidence of Special Cst. Press clearly indicate that the .357 Magnum shown in the pictures and agreed to be ultimately transferred by Mr. Ball was in fact a "firearm" as defined in the Criminal Code.
[96] In the alternative, the Crown submits notwithstanding its position that the case "rises or falls" on the proof of the item being a "firearm", the Crown does not even have to prove it is a "real gun" and it is sufficient that Mr. Ball offered the .357 Magnum with the intent that the individuals to whom it was offered considered it to be "real".
[97] The Crown concedes, however, that the main issue is whether or not the .357 Magnum has been proven beyond a reasonable doubt to be a firearm as defined in the Criminal Code.
Analysis of the Law and Facts
[98] The charges before the court are criminal charges and as with all criminal offences the accused, in this case Mr. Ball, is presumed to be innocent until the Crown proves his guilt beyond a reasonable doubt. The burden or onus of proving the guilt of Mr. Ball to that degree rests with the Crown and it never shifts. Mr. Ball does not have to prove his innocence and I am to presume that he is innocent throughout my deliberations. I can only find him guilty if, after I consider all of the evidence, I am satisfied the Crown has proven the case to the degree required.
[99] I remind myself that it is my duty as a judge to consider the evidence carefully and dispassionately without any trace of sympathy or prejudice for or against anyone involved in this proceeding. Then after reflecting upon all of the evidence of each individual witness I must weigh it and make a decision as to whether I accept the entire evidence given by that witness, a portion of that evidence or none of the evidence given by that witness. After considering the whole of the evidence presented in the case, both by the Crown and the defence, I must reach a conclusion as to the guilt of Mr. Ball beyond a reasonable doubt or otherwise acquit him.
[100] Mr. Ball has given evidence in this matter and credibility is a central issue to be determined. I instruct myself therefore on the following basis:
(1) If I believe the evidence raising a defence or negating an essential element of the offences, I must acquit Mr. Ball.
(2) If I do not believe the evidence raising a defence or negating an essential element of the offences but I am left in reasonable doubt by it, I must also acquit Mr. Ball.
(3) Even if I am not left in doubt by evidence raising a defence or negating an essential element of the offences, I must ask myself whether on the basis of the evidence I do accept I am convinced beyond a reasonable doubt of Mr. Ball's guilt.
[101] The principle of reasonable doubt is to be applied to the credibility assessment which is necessary here, but it is important to keep in mind there is a distinction between a finding of credibility and proof beyond a reasonable doubt. The approach to credibility cannot omit any consideration of whether or not the evidence of the accused is, if rejected, nonetheless capable of raising a reasonable doubt. (See Regina v. J.J.R.D. (2006) 215 C.C.C. (3d) 252 (ONCA).)
[102] Relevant to the Crown's position that the case "rises or falls" on the issue of whether or not the Crown has proven to the degree required that the .357 Magnum is a firearm, I note initially the definition of a firearm contained in s. 2 of the Criminal Code which states as follows:
"'firearm' means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm;"
[103] The charges that remain involve the .357 Smith and Wesson handgun and relate to possession of that "firearm" without being the holder of a licence and while prohibited from having such "firearm" in his possession by virtue of two court orders and offering to transfer such "firearm" contrary to the provisions of the Criminal Code. Mr. Ball has acknowledged that he was prohibited from possessing a firearm by virtue of court orders and that he was not the holder of a licence authorizing possession of a firearm.
[104] Mr. Ball, however, takes the position that the item, the .357 Magnum, was in fact not a "firearm" as defined by the Criminal Code and was in reality a disabled or inoperable Smith and Wesson .357 Magnum as noted during the course of his evidence. He has acknowledged possession of that particular handgun in his own evidence and that certainly is not in issue, i.e. that he possessed the item. It is also obvious from his own evidence that he offered to transfer (and apparently did) such item. What is not agreed is that the item was a "firearm" as set out in the counts before the court.
[105] Section 84(1)(b) defines transfer as follows:
"'transfer' means sell, provide, barter, give, lend, rent, send, transport, ship, distribute or deliver".
[106] Section 99 of the Criminal Code, which is one of the charging sections, indicates as follows:
"99.(1) Every person commits an offence who
(a) manufactures or transfers, whether or not for consideration, or
(b) offers to do anything referred to in paragraph (a) in respect of
a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition knowing that the person is not authorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament."
It is of note, the section does not refer to an item held out to be a firearm, which ultimately becomes important in determining the Crown's alternative position as to proof of the transfer charge before the court as set out above.
[107] The Crown here has proven beyond a reasonable doubt virtually all the essential elements of the offences with the concurrence of the defence and, indeed, as reinforced by the evidence of Mr. Ball himself, save and except the issue of whether or not the .357 Magnum was a firearm. Mr. Ball has acknowledged possession of the item, which is clearly evidenced as well by the pictures taken by Mr. Ball on January 24, 2013 and found on his Facebook page together with his own testimony. It is also proven there was an offer to transfer the item evident from the text messages. There was in fact a transfer of such item as admitted by Mr. Ball himself in his evidence.
[108] Here, there is no firearm that was actually located during the course of the search of the Shelley Drive address and the .357 Magnum handgun has never been recovered. The case law provided by the Crown sets out what the Crown must prove where such a scenario exists.
[109] In Regina v. Covin and Covin (1983) 8 C.C.C. (3d) 240, a decision of the Supreme Court of Canada, in dealing with that issue the court noted:
"Therefore, whatever is used on the scene of the crime must in my view be proven by the Crown as capable, either at the outset or through adaptation or assembly, of being loaded, fired and thereby of having the potential of causing serious bodily harm during the commission of the offence or during the flight after the commission of that main offence, the hold-up."
[110] In Regina v. Osiowy, [1997] A.J. No. 98, the Ontario Court of Appeal at para. 20 noted as follows:
"…Even if the weapon is not available for examination, a witness who is knowledgeable about guns may be able to satisfy the Court that the weapon used was an operable firearm. There may be other witnesses, such as the gun's owner in the Sibbeston decision, who give evidence that the gun was operable. The judge is entitled to draw the inference that the weapon was operable, and thus within the definition of 'firearm', if sufficient evidence is presented."
[111] In Regina v. Richards, [2001] O.J. No. 2286, again the Ontario Court of Appeal at para. 4 stated:
"Having regard to the description of the gun given by the witnesses, the circumstances surrounding the use of the gun – namely that the witnesses were ordered to get down on the floor, had a gun pressed to the head, were threatened, and the modus operandi indicating that the appellant had ready access to guns called up from different locations prior to the subsequent robbery – it was open to the Trial Judge to come to the conclusion that the gun used by the appellant was a firearm."
See also Regina v. Carlson, [2002] O.J. No. 1884 (ONCA) at paras. 16 and 17, as well as Regina v. Charbonneau, [2004] O.J. No. 1503 (ONCA).
[112] The noted case law establishes it is open to the Crown to prove the item in question, here the .357 Magnum handgun, is a firearm even though the item has not been physically recovered and before the court as an exhibit. The Crown submits that when one looks at the evidence of the accused, the various text messages and the pictures found on Mr. Ball's cell phone and on Facebook, all of that coupled with the evidence of Special Cst. Michael Press is sufficient to prove that element, i.e. that the item was in fact a firearm, beyond a reasonable doubt.
[113] Dealing with the determination of this issue, after having had an opportunity to hear and observe the witnesses give their evidence and after assessing the evidence in its totality I find ultimately that the Crown has not met the burden of proving beyond a reasonable doubt that the handgun was in fact a firearm as defined in the Criminal Code. I say that for many reasons. Primarily, although I cannot say I accept Mr. Ball's evidence in its entirety, I am, at the very least, left in reasonable doubt by that evidence, particularly when considering that evidence as well as the evidence of the Crown witnesses.
[114] Dealing initially then with the evidence of Mr. Ball. Mr. Ball does not present as a likeable witness. He is an admitted drug pedlar which he feels is somewhat different than a drug trafficker, but that seems to the court to be a distinction without a difference. He presents as vain, as suggested by his own counsel, in the taking of the photographs with the suspected firearm which were posted on Facebook, somewhat arrogant and someone who is clearly entrenched in the criminal subculture. His evidence with respect to getting older and presumably attempting to get out of that particular environment seems somewhat sincere, although at the time of his initial arrest he was in possession of controlled substances and appears to have been an active seller of such substances, albeit at a low level.
[115] So although not a witness who would impress a court with his antecedents, his evidence was given in a manner that was presented in a straightforward and candid fashion. He was not an unimpressive witness and provided details that had somewhat the ring of truth to them with respect to the acquisition and ultimate transfer of the firearm to Mr. Behr. He was not cross-examined with respect to the circumstances actually surrounding the acquisition of the handgun, the nature of his possession of that item which, on his own evidence, had been with him for several years, nor the circumstances surrounding the actual transfer of the item on January 24, 2013. It seemed to the court the cross-examination focussed more on Mr. Ball's associates and his connection with any gang activity and, as noted during the course of the cross-examination by the Crown, it appeared to the court that certain aspects of the cross-examination seemed to have a collateral purpose to some extent.
[116] The Crown argues that Mr. Ball was angry and unresponsive. However, I found it was more a situation where Mr. Ball was becoming frustrated with the questioning by the Crown, particularly as it related to his failure to disclose to Det. McCarthy during the course of the videotaped statement the fact the gun was not an operable firearm as he disclosed during his evidence at trial. It seemed to me that he was becoming more frustrated than anything else with some of the questions posed, but whatever the case may be he was entirely consistent throughout his evidence with respect to the inoperability of the firearm and the fact that he was effectively scamming his acquaintances by holding out the .357 Magnum handgun together with the alleged 12 gauge shotgun to be "real" firearms. The Crown has not proceeded with the allegation concerning the 12 gauge shotgun as there was no reasonable prospect of a conviction. I really see little difference in the issue with respect to the .357 Magnum, save and except there were photographs of that item taken and posted for all to see by Mr. Ball. In my view, the photos are more about the fact that it was not an operable firearm than the fact that it was.
[117] In assessing Mr. Ball's evidence I have considered all of that together with the following:
(1) Much has been made about the fact that Mr. Ball said nothing during the course of the videotaped statements taken by Det. McCarthy as to the inoperability of the .357 Magnum or that the 12 gauge shotgun was an air rifle. However, one must consider Mr. Ball's circumstances at the time the statements were made. He was trying to get bail and he was unlikely to be believed in any event by Det. McCarthy given Det. McCarthy's view, at least with respect to the second statement, that he was not there to "barter" and felt to some extent that it was a "useless exercise" to interview Mr. Ball at all. He did not even think Mr. Ball would talk to him until Mr. Ball requested to see him when he was arrested in May.
What is to be noted, is that during the course of the statements, although no reference was made to the inoperability of the .357 Magnum or the fact that the 12 gauge shotgun was a rifle, neither was it said by Mr. Ball that they were actually firearms. Indeed he makes a point of saying, not only on his arrest at the residence but also during the course of the statements, that there was no "firearm". It may be a fine distinction but that comment together with other comments made during the course of the statements could indicate that Mr. Ball was fully aware the handgun was no longer a firearm for the reasons that he stated in his evidence. He does not seem anxious to talk about those items, although his desperation certainly indicates he is willing to give up his friends to assist him in getting bail. At the same time he was not really given the opportunity to explain the circumstances (if he in fact was ever inclined to do so) as the officer appeared to be somewhat impatient and his impatience was obvious during the course of the statements being taken. That impatience may be justified or at least understandable, but this court does not view the failure of Mr. Ball to provide the information to the officers at the outset that he originally supplied at trial as being the end of the matter or inconsistent with his evidence at trial. One does not get that sense when hearing Mr. Ball speak of the statements at trial and also when one has an opportunity to observe the video from the May 21 statement. It seems to the court that the Crown is being critical of Mr. Ball for simply perhaps exercising his right to silence, particularly when one considers that he had no obligation to say anything at all.
(2) The ammunition was never located. Mr. Ball says he threw it out. The expert evidence with respect to the ammunition is less than satisfactory, but most importantly, Mr. Ball's explanation as to where he got the ammunition from is a rather detailed and unique explanation. That is, he said he got it from a stripper's belt at a local strip club. I observed him when he said that and it was said almost in the manner that no one will believe this but…. It certainly was not said in the fashion, nor does this court take it to be said in a manner that makes it absolutely unbelievable.
(3) Mr. Ball indicates the handgun was rendered inoperable when he found it. He was not questioned on when he found it in the belongings of his friend who was being deported to Romania in 2010. He was not questioned on travelling to Alberta with it and returning home. Indeed, he was not questioned very much at all on the handgun and its condition as he testified to. His evidence is that the handgun had a plugged barrel, the cylinder did not revolve, the trigger was locked and the hammer would not pull back. That evidence is not inconsistent with the evidence of Special Cst. Press who acknowledged himself that determining whether or not the item was a "firearm" is a difficult process when one only has a picture of it or a video. Only one side of the firearm was observed and some parts of the firearm set out by defence counsel were not able to be observed by the expert as a result of only one side of the item being shown.
Special Cst. Press was not able to examine the item other than in the photograph. He was not able to tell the condition of the trigger, the hammer or the barrel. He did note that the cylinder showed some signs of wear but he could not say that the cylinder was operable at the time from the photograph itself. At the highest it would seem that it was at some point in time an operable handgun.
Mr. Ball does not strike the court as a "fool" and the posting of the photographs of the gun and himself in various poses with his shirt off on Facebook for everyone and anyone to see support more the proposition that the handgun was not real than the fact that it was. Mr. Ball strikes the court as a petty criminal who might be, in his own counsel's words, vain but he does not strike me as someone that is going to place photos of himself on a social media site where others could see it (including the police as evidenced by the issuance of the search warrant) if in fact it would provide incriminating evidence. Mr. Ball has a background and an occupation that would indicate street smarts and the evidence would appear to be that he was not particularly fond of the police, yet the posting of the photo invited trouble. As I have noted, it is not likely, and in fact it is likely more consistent with it being an inoperable handgun than a firearm. I am inclined to agree with counsel that the posting of the photos was simply to reinforce Mr. Ball's apparent self-proclaimed tough guy image. He is, after all, apparently "not afraid of anyone" and was not concerned about giving up his friends as testified to in his evidence. It is of note that the date the photos were apparently taken, January 24, 2013 was the same date on which the handgun was transferred to Matt Behr in exchange, according to Mr. Ball, for an ounce of "cut" and at the same time the purchase of half an ounce of cocaine.
(4) Also consistent with the position of Mr. Ball that the item was not a firearm is the apparent anxiousness shown by Mr. Ball to reduce the value being asked for the gun initially. He indicated he had gone to various websites to get information. Special Cst. Press indicated the information sought by Mr. Ball is available through those sites, including the pricing of firearms. That lends some credence to Mr. Ball's position that that is why he went to those sites. The value he placed on the gun is $2700 initially, that gets reduced rather significantly with an offer from Merkley for $1200, which Mr. Ball responds to by countering with $1500 and then throwing it in with a package deal effectively with regard to other items including the alleged 12 gauge shotgun for the sum of $2,000. The officer during the course of his evidence acknowledged that the pricing of the items was below street value ultimately and this is consistent with either Mr. Ball's desperation or the fact that the item was not what it was being held out to be.
(5) The text messages were the subject of evidence from Special Cst. Press, who in my view seemed to agree with a great deal of the suggestions made by counsel for Mr. Ball during cross-examination, as to the meaning of those various texts referred to by him in-chief and which became perhaps even more understandable when looking at other texts surrounding those initially referred to. Mr. Ball went through the various text messages and his explanation with respect to the circumstances surrounding the texts and the context of the texts may not be accurate but the explanations certainly were something the court cannot simply disregard. They in fact made some sense. Contrary to the Crown allegation that the texts combined with the rest of the evidence make Mr. Ball's version of events completely unbelievable, it seems to me that the same items make his version of the items in fact believable.
(6) Certainly Mr. Ball had connections and sought out individuals who he thought might purchase the items or who might know of someone that would. He does not seem to have a great deal of allegiance to any of these "friends". He may be effectively, as his own counsel indicates, a hustler or a con man without any real concern about consequences of betraying his "friends". The Crown makes a point of Mr. Ball not seeking out these individuals to whom the items were transferred to come forward and turn in the inoperable .357 Magnum or the air rifle sold as a 12 gauge shotgun. The Crown states that Mr. Ball never made any attempt to have Merkley or Behr come forward to "prove his innocence", but the court reminds the Crown that Mr. Ball does not have to prove his innocence and the guilt of Mr. Ball is required to be proven beyond a reasonable doubt by the Crown. The police had the names and knew the players involved. It may have been a pointless exercise to contact the individuals whose names were quite evident from the various text messages but it may not have been. It appears there has been no effort to do so on the part of the police. As I noted previously, at times the cross-examination of Mr. Ball seemed to involve more of a collateral investigation of various individuals and/or gang or gangs than dealing with the testimony of Mr. Ball with respect to the .357 Magnum in any great detail.
[118] At the end of the day the court is not in a position to reject Mr. Ball's evidence on its own and I cannot articulate why I would. Although that evidence certainly raises some suspicions, it also raises a reasonable doubt, particularly when coupled with the balance of the Crown evidence including the evidence of Special Cst. Press. Special Cst. Press, in my view, seemed like a very fair, reasonable and an objective witness who certainly did not discount any of the suggestions put to him by defence counsel with respect to the .357 Magnum as well as the text messages.
[119] The Crown has not proven that the .357 Magnum handgun, which is the basis for and the main subject matter of the four counts that remain involving Mr. Ball, was a firearm to the degree required. These are criminal charges and as with all criminal offences the accused is entitled to the benefit of the doubt, that doubt is reasonable. The Crown has not established the item was in fact a firearm as particularized in the counts before the court.
[120] Although the Crown seems to have entirely placed its argument on the issue of whether or not the item is a "firearm", the Crown has alternatively argued that based on the case of Regina v. Ralph, 2011 ONSC 3558, [2011] O.J. No. 3156, some grounds affirmed [2012] O.J. 13 (ONCA), the Crown does not in fact have to prove that it is a "real" gun. It is of note that the particular issue the Crown relies on was never put before the Court of Appeal and the appeal was dealt with on the basis of other grounds, whereas the conviction under s. 99 was never the subject of the appeal.
[121] However, in the Superior Court the facts indicate that the accused there had offered to sell a gun to an undercover officer. The gun was never seen, nor located and the defence argued that the accused was not serious and the Crown had not proven there was ever a real gun. At trial, counsel for the accused had argued that s. 99(1)(b) did not apply because the Crown had not shown that in making the offer the accused had access to an actual operable firearm. The defence had argued that if the accused was actually in possession of a firearm the Crown would have had to have shown it was a firearm within the meaning of s. 2 of the Criminal Code, otherwise a person under s. 99(1)(a) could be acquitted on the basis the gun was not a firearm as defined by the Code because it had been disabled but could still be convicted under s. 99(1)(b) and subject to the same penalty.
[122] The Superior Court held there that the wording and legislative intent as set out in s. 99(1)(b) are clear and do not require showing that the offeror could actually obtain a functioning firearm to sell to the offeree. It was simply sufficient that the offer was made. That is, trafficking by offer would be enough. The trial judge equated the reasoning there to the wording as set out in the Controlled Drugs and Substances Act and case law which dealt with by way of definition within that legislation an offer to traffic in a substance held out to be.
[123] First of all, I should state that I do not feel the Superior Court's decision is binding in any way, although it is persuasive, and I have seriously considered it. The court there was sitting at trial on indictable offences, just as this court is. Indeed, the Crown has conceded that the decision itself is not binding on this particular court. It is also of note that the Court of Appeal actually did not deal with the issue which the Crown now relies upon.
[124] Also, in my view, the circumstances in this case and in the legislation, i.e. the Criminal Code as opposed to the Controlled Drugs and Substances Act, are entirely distinguishable. First of all, I note the way the charges here have been particularized and that the offer to transfer relates to a firearm and not to an item held out to be a firearm. Further, it would seem to me to be an oddity that Mr. Ball could be acquitted on the charge of possession of a firearm without proof that the item was in fact a firearm, yet be convicted of offering to sell an item which was not a firearm, or at least which the court had a reasonable doubt was in fact a firearm.
[125] Defence counsel's position of absurdity is set out in Ralph itself in that someone who offers to sell a firearm that may not even exist would possibly be exposed to a minimum period of imprisonment of three years, but someone who actually sells a non-functioning firearm could be acquitted. It seems to me there was a good deal of merit in defence counsel's position at trial in that matter but, as I have noted, that matter was not the subject of the Court of Appeal decision.
[126] It is important to note that in the Superior Court ruling the judge found that the offer to transfer was serious, that the accused was not "just blowing smoke" and had in fact access to an actual operable firearm. In the case before this court, not only did Mr. Ball not have an operable firearm, or at least there is a reasonable doubt that he had such a firearm, there is no indication he even had access to one other than the .357 Magnum which, as I have noted, the evidence indicates may not have been a functioning firearm. It was that particular firearm that he was attempting to sell or transfer and no other. Indeed, the count itself with respect to the transfer charge specifically sets out that the transfer relates to the .357 Smith and Wesson Magnum. To be clear, the Crown here has alleged and ultimately failed to prove that that particular item which is noted in the count itself was in fact a firearm.
[127] It seems to me then that even if the argument set out in Ralph might be persuasive, it would only be in the context of the facts in that particular case and certainly not on the facts involving Mr. Ball given the evidence and the way the charges have been drafted.
[128] To summarize then, I find that the Crown has proven all essential elements of the remaining charges before the court, save and except that the .357 Magnum handgun was in fact a firearm. Although, as I have noted, I cannot say I accept Mr. Ball's evidence in its entirety, his evidence raises a very reasonable doubt on its own and when considered in the context of the totality of the evidence presented in this matter. I further find that the alternative argument presented by the Crown does not prevail with respect to the transfer charge for the reasons noted.
[129] As the Crown has failed to prove the .357 Magnum was a firearm within the definition contained in the Criminal Code, all charges relating to that particular item have not been proven to the degree required and those charges, being Counts 7, 8, 9 and 10 are dismissed. Count 6 has been previously dismissed and Mr. Ball will now be sentenced on the counts that he has ultimately pled guilty to, being Counts 1 through 5.
Released: May 23, 2014
Signed: "Justice G. F. Hearn"