Court of Appeal for Ontario

Date: 20240627 Docket: C69246

Judges: Miller, Paciocco and Copeland JJ.A.

Between:

His Majesty the King Respondent

and

Bill Allison Appellant

Counsel:

Mark Halfyard, for the appellant Jim Clark, for the respondent

Heard: June 17, 2024

On appeal from the conviction entered on November 27, 2020, by Justice Jane E. Kelly of the Superior Court of Justice, with reasons reported at 2020 ONSC 7187.

Reasons for Decision

[1] The appellant was convicted of offences related to trafficking firearms in association with a criminal organization, including conspiracy to traffic firearms and offering a restricted firearm for sale. The case against the appellant was circumstantial and based on intercepted telephone communications between him and other players: “Biggs”, who trafficked guns and drugs from the United States; Harris Poyser, who acted as Biggs’ courier; a firearms purchaser known as “Plum”; and the appellant’s co-accused, Kamar Cunningham.

[2] The appellant testified at trial and admitted that he was involved in a criminal organization. He admitted to trafficking narcotics for that organization. He admitted that the criminal organization was engaged in firearms trafficking. He admitted he wanted in on the firearms trafficking, but testified that Biggs continually strung him along, promising to send him firearms for resale, but never actually doing so.

[3] The appellant admitted that he in fact received shipments of guns from Biggs via Poyser on two occasions. But he testified that the guns he received were for personal use – he operated a lounge and required personal protection – and not for trafficking. He was unhappy with the first firearm he received via Poyser, complaining that it was in poor condition and that he had to have it fixed by a “mechanic”. A later delivery of two firearms was, he said, to replace the original firearm, and to allow him his choice of the two.

[4] It is undisputed that the appellant received two shipments of firearms. The first shipment, a single firearm of poor quality, was received on April 6, 2018. The second shipment, with two firearms, was received on April 20, 2018. The appellant had conversations with Plum following each of the two shipments. On the Crown’s theory, those conversations were negotiations on behalf of Plum’s clients for the purchase of the firearms that the appellant had received. The appellant testified to the contrary, stating that the conversations – among several mundane matters – concerned the negotiation of drug transactions.

[5] Interpreting the intercepted communications was not effortless. In addition to speaking in Jamaican Patois, the parties were also using coded language, intended to obscure their meaning. The trial judge, however, had the assistance of expert evidence (both with the interpretation of Jamaican Patois and the language used in the illicit firearms trade) and the appellant conceded that many of the intercepted communications concerned the trafficking of something illicit from Biggs in the United States to Ontario, that some of the conversations addressed shipments of firearms for personal use, and that some conversations addressed the appellant’s efforts to convince Biggs to send him firearms for trafficking.

[6] On the evidence before her, the trial judge found that the appellant’s explanations for the intercepted communications – that they addressed drug trafficking and the provision of firearms for his personal use – were inconsistent with the intercepted communications themselves. Although she was alive to the fact that the parties to the conversations were not always using the conventional meanings of words or standard grammar or syntax, she concluded that many of the details of the conversations were consistent with firearms trafficking but not drug trafficking or the delivery of guns for Mr. Allison’s own use. These involved, for example, negotiations about pricing, which correlated with evidence about the value of firearms. They also included statements such as: the items to be sold were “brand new” and in the “original package”; the appellant asking Plum whether a potential buyer was “just coming to look at it” or was ready to purchase; and the appellant referring to the trafficked items in the plural, each of which would make sense if the appellant was discussing firearms but not narcotics.

[7] Similarly, the trial judge noted that there were discussions with Biggs in which the appellant complained that the firearms with which he had been supplied were smaller .38 calibre handguns, for which it was difficult to find ammunition, and for which there was little demand. The trial judge found that these communications supported the finding that the appellant had received firearms for resale and that he was unhappy with the nature and quality of the firearms he had been sent, as they were not readily marketable.

[8] The appellant appealed on the basis that the verdict was unreasonable because the ambiguity of the intercepted communications was irresolvable and, as such, the communications could not establish beyond a reasonable doubt that the appellant had conspired to traffic firearms or made any offers to sell firearms.

[9] The appellant argued that many of the intercepted communications did not support the trial judge’s understanding of the conversations. For example, Biggs’ apparent reference to the first firearm as “your personal thing”, both supported the argument that the first firearm was intended for the appellant’s personal use rather than resale and was consistent with the theory that the subsequent firearms were sent as potential replacements. The appellant argued that further difficulties with the Crown’s theory emerge from conversations with Plum related to the future sale of “the thing I got from you the other day”, which could not have referred to the firearm because the appellant did not receive a firearm from Plum the day before. The appellant argued, in effect, that the trial judge had applied uneven scrutiny: she disbelieved the appellant’s evidence when it was inconsistent with a literal reading of the conversations but permitted the Crown to explain away inconsistencies between its theory and the conversations by an appeal to the non-literal, coded nature of the language used. Moreover, she did not require the Crown theory of liability to fit all the evidence.

[10] We are not persuaded that the trial judge erred. The trial judge considered the conversations in great detail as well as the same submissions made before us on appeal and made extensive findings over the course of more than 20 paragraphs. It is not the role of this court to redo that analysis. The trial judge was not required to prove the meaning of each utterance beyond a reasonable doubt. What she was required to do was to carefully parse the entirety of the evidence before her – including the intercepted communications, the expert evidence, and the appellant’s testimony – and determine whether the evidence or absence of evidence raised a reasonable doubt as to whether the appellant engaged in a conspiracy to traffic firearms and whether he offered a firearm for sale.

[11] The trial judge did an exemplary job of methodically assessing the evidence before her and explaining why she concluded that the evidence, as a whole, was sufficient to prove the appellant’s guilt beyond a reasonable doubt. Although the appellant has identified particular statements in the intercepted conversations that are genuinely ambiguous and difficult to understand, these do not render the verdict unreasonable in light of the compelling evidence assembled from the bulk of the intercepts. We are not persuaded that the trial judge made any reviewable errors.

[12] The appeal is dismissed.

“B.W. Miller J.A.”

“David M. Paciocco J.A.”

“J. Copeland J.A.”