ONTARIO COURT OF JUSTICE

Toronto Region

BETWEEN:

HER MAJESTY THE QUEEN

- AND -

Chermar GARDNER, Abshir ABDIRASHID, M.A., Kevin DURO, M.H., Guled MAHADALE, Ginelle McLEAN, A.Y. and Turrell TOMLINSON

Before: Justice D. Oleskiw

Heard on: January 7 - 11, 14 - 16, 18, 21 - 25, 28, 29, February 1, 4 - 7, 19 - 22, 25 – 28, and March 1, 5, 6, 8, 18, 21, 22, 25, 26, 2013

Judgment: April 24, 2013

Reasons for Judgment released on: April 30, 2013

COUNSEL

Ms. C. Rhinelander, Ms. S. James and Mr. R. Wilson for the Crown

Mr. G. Cudjoe for Chermar GARDNER

Mr. C. Bottomley and Mr. C. Sewrattan for Abshir ABDIRASHID

Mr. A. Boni and Mr. J. Tong for M.A.

Mr. J. Hershberg and Ms. A. Kwan for Kevin DURO

Mr. A. Abby for M.H.

Mr. E. Schofield for Guled MAHADALE

Mr. D. Goodman and Ms. A. Mehta for Ginelle McLEAN

Mr. D. Geller (of the B.C. Bar) for A.Y.

Mr. G. Leslie for Turrell TOMLINSON

PART I: INTRODUCTION

[1] This is a ruling on committal for trial for the nine named defendants following a three month preliminary inquiry that commenced on January 7, 2013.

[2] There are sixty-four counts before me, all arising out of a police investigation named "Project Marvel". The charges include trafficking and possession of cocaine and other drugs and conspiracies to do the same; trafficking and possession of firearms and conspiracies to do the same. The Crown alleges that all but two of the defendants committed these criminal activities for the benefit of, at the direction of or in association with a criminal organization referred to as the "YBK", (also known as the "Young Buck Killers"). The defendants, Gardner and Abdirashid are the only defendants for whom the Crown seeks committal on the most serious criminal organization charges of instructing a person to commit an offence for the benefit of, at the direction of or in association with a criminal organization pursuant to s. 467.13 of the Criminal Code.

[3] The specific charges and issues to be addressed are set out in Parts II and III below.

PART II: SPECIFIC CHARGES, CONCEDED COUNTS AND THE COUNTS IN ISSUE

[4] The preliminary inquiry commenced with two additional accused who, subsequent to arraignment, plead guilty to certain charges. Their charges were disposed of before a different Justice as indicated in Appendix I.

[5] A.Y. conceded committal on the charges he faces on this Information, and, accordingly, he is committed for trial on counts 11 and 12.

[6] Ginelle McLEAN conceded committal for trial on the charges she faces on this Information, and accordingly, she is committed to stand trial on counts 51, 52, 53, the alternatives to counts 54 and 55 as outlined in Appendix I, and count 56.

[7] Guled MAHADALE conceded committal for trial on the charges he faces on this Information, and, accordingly, he is committed to stand trial on count 1 and the alternative to count 2 as outlined in Appendix I.

[8] M.H. conceded committal for trial on some charges and the Crown withdrew others. According to the agreement of counsel M.H. is committed to stand trial on count 1, the alternative to count 2 as outlined in Appendix I, and counts 3, 4, 7, 8, 15. M.H. is discharged on count 23. Counts 37, 38, 39, 40, 43 and 44 are withdrawn against Mr. M.H.

i) The Charges against Chermar Gardner:

[9] Chermar GARDNER concedes committal for trial on the following counts and accordingly there will be an order for him to stand trial on those counts as outlined in Appendix I: counts 16, 18, 19, 20, 24, 26, 27, 29, 31, 32, 33, 47. The Crown invited a discharge on Count 23 for Mr. Gardner and a discharge is ordered on count 23. The counts in issue following the evidence called at the preliminary inquiry are:

Count 1 – Sept 1 – Dec. 13, 2011 - Criminal Organization – Commission – transfer or offer to transfer firearm – s. 99(1) / s. 467.12

Count 2 –Sept 1 – Dec. 13, 2011 - Criminal Organization – Commission – possess firearm – s. 92(1) / s. 467.12

Count 3 – Sept 1-Dec. 13, 2011 - Criminal Organization – Commission - trafficking controlled substance- s. 5(1) CDSA / s. 467.12

Count 4 – Sept 1-Dec. 13, 2011 - Criminal Organization – Commission – conspiracy to traffic controlled substance- s. 465(1)(c) / s. 467.12

Count 9 – October 16, 2011 – Possess Firearm – s. 92(1)

Count 15 – November 3 – 5, 2011 –Possess Firearm – s. 92(1)

Count 17 – November 4 - 6, 2011- Criminal Organization – Instruct – Trafficking cocaine – s.5(1) CDSA / s. 467.13

Count 21 – November 6, 2011 - Criminal Organization – Instruct – Trafficking cocaine – s.5(1) CDSA / s. 467.13

Count 28 – November 22, 2011 – Possess Firearm – s. 92(1)

Count 30 – November 25, 2011 – Trafficking Cocaine (Toronto) – s. 5(1) CDSA

Count 45 – December 7, 2011 - Criminal Organization – Commission - production of cocaine – s. 7 CDSA / s. 467.12

Count 46 –December 7, 2011 - Criminal Organization – Commission - possession cocaine for purpose of trafficking – s. 5(2) CDSA / s. 467.12

ii) The Charges against Abshir Abdirashid:

[10] Abshir Abdirashid concedes committal for trial on the following counts and accordingly there will be an order for him to stand trial on those counts as outlined in Appendix I: Counts 10, 11, 12. The Crown invited a discharge on Counts 3 and 4 for Mr. Abdirashid and a discharge is ordered on Counts 3 and 4. The counts in issue following the evidence called at the preliminary inquiry are:

Count 1 – Sept 1 – Dec. 13, 2011 - Criminal Organization – Commission – transfer or offer to transfer firearm – s. 99(1) / s. 467.12

Count 2 –Sept 1 – Dec. 13, 2011 - Criminal Organization – Commission – Conspiracy to possess firearm – s. 465(1)(c) / s. 467.12

Added Count – Sept 1 – Dec. 13, 2011- Criminal Organization – Instruct – transfer or offer to transfer firearm – s. 99(1) / s. 467.13.

iii) The Charges against M.A.M.A.:

[11] The Crown invited a discharge on counts 3 and 4 for Mr. M.A.M.A. and a discharge is ordered on counts 3 and 4. The counts in issue following the evidence called at the preliminary inquiry are:

Count 1 – Sept 1 – Dec. 13, 2011 - Criminal Organization – Commission – transfer or offer to transfer firearm – s. 99(1) / s. 467.12

Count 2 –Sept 1 – Dec. 13, 2011 - Criminal Organization – Commission – possess firearm – s. 92(1) / s. 467.12

Count 34 – Nov. 24, 2011 – Offer to transfer firearm – s. 99(1)

Count 35 – Nov. 24, 2011 – Possession of firearm for purpose of offering to a person – s. 100

Count 36 – Nov. 24, 2011- Possession of Prohibited or Restricted Firearm –s. 92

iv) The Charges against Kevin Duro:

[12] Kevin Duro concedes committal for trial on the following counts and accordingly there will be an order for him to stand trial on those counts as outlined in Appendix I: Counts 1, 2, 5 and 57. The counts in issue following the evidence called at the preliminary inquiry are:

Count 6 – Oct. 15, 2011 – Possess Firearm – s. 92(1)

Count 51 – Dec. 13, 2011 - Possession of loaded restricted firearm – s. 95(1)

Count 52 – Dec. 13, 2011 - Possession of restricted firearm – s. 92(1)

Count 53 – Dec. 13, 2011 – Possession of prohibited device – s. 92(2)

Count 54 –Dec. 13, 2011 – Careless handling of firearm – s. 86(1) (alternative)

Count 55 – Dec. 13, 2011 – Careless storage of ammunition – s. 86(1) (alternative)

Count 56 – Dec. 13, 2011 – Careless storage of firearm – s. 86(1)

v) The Charges against Turell Tomlinson:

[13] On Information #164811, Tomlinson is charged with the following offences for all of which committal is in issue:

Count 1 – Sept 1 – Dec. 13, 2011 - Criminal Organization – Commission – transfer or offer to transfer firearm – s. 99(1) / s. 467.12

Count 2 –Sept 1 – Dec. 13, 2011 - Criminal Organization – Commission – possess firearm – s. 92(1) / s. 467.12

Count 3 – Sept 1-Dec. 13, 2011 - Criminal Organization – Commission - trafficking controlled substance- s. 5(1) CDSA / s. 467.12

Count 4 – Sept 1-Dec. 13, 2011 - Criminal Organization – Commission – conspiracy to traffic controlled substance- s. 465(1)(c) / s. 467.12

Count 12 – December 13, 2011 – Possession of Cocaine – s. 4(3) CDSA

PART III: OUTLINE OF REASONS

[14] My reasons for the judgment on the live issues will be set out as follows:

• Part IV: Overview of the Case
• Part V: Legal Principles
  • i) The Test for Committal
  • ii) Criminal Organization
• Part VI: Analysis of YBK and Individual Defendants
  • YBK is a Criminal Organization and Membership Generally
  • i) Chermar Gardner
  • ii) Abshir Abdirashid
  • iii) M.A.M.A.
  • iv) Kevin Duro
  • v) Turell Tomlinson

PART IV: OVERVIEW OF THE CASE

[15] The "Project Marvel" investigation commenced after shootings in the northwest area of Toronto in May 2011. During the course of the investigation, the police obtained two wiretap authorizations, such that between September 1 and December 14, 2011 they intercepted volumes of telephone conversations and text messages. The intercepts indicate that members and associates of the YBK were involved in illegal drug and firearm trafficking and possession. The YBK identifies as part of the Crip nation and had its roots in the Jane and Finch area of northwest Toronto. The wiretaps disclosed that drug trafficking and firearm sharing systems were being set up in areas outside of Toronto, notably in Hamilton, Ontario, Calgary and Fort McMurray, Alberta and out to British Columbia.

[16] "Take down day" was December 13, 2011, when several warrants were executed. Upon the arrest of several individuals that day, including some of the defendants before me, the police seized drugs, guns and cell phones containing evidence relied upon in this proceeding.

[17] The evidence called at this preliminary inquiry was comprised of: (1) documentary and other evidence that was agreed to be sufficiently reliable and trustworthy to be admitted into evidence for the purpose of the preliminary inquiry only, pursuant to s. 540(7) of the Code, including, inter alia, the guilty pleas of four individuals who admit to being members of the YBK, photographs and videos from cell phones seized from co-accused, YouTube videos, firearm and drug reports, property reports, notes and photos relating to surveillance and arrests; (2) intercepted telephone conversations and text messages, most of which were transcribed and translated. The audio (Wav) files were entered as the original exhibits with the transcripts of same, being aids only, except that the "Tombstone Data" shown on those transcripts went in for its truth; (3) police and civilian viva voce evidence; (4) expert evidence in the form of reports filed and viva voce testimony, for which I qualified Staff Sergeant Babiar as an expert in drug trafficking, including coded and slang language relating to drug trafficking; Officer Michael Press as an expert in firearms, including coded and slang language relating to firearms; and Detective Constable Matt Oliver as an expert in the nature, culture, customs, characteristics, identifiers, symbols, terminology, behaviour and activities of urban street gangs in the Toronto Region.

[18] Although, at the outset, many of the defendants challenged voice identification in the intercepts, determinations were made throughout the preliminary inquiry, some on consent, that voice identification was proved for the purposes of the preliminary inquiry.

[19] By way of general overview of the issues to be decided in this case: All of the defendants concede that there is some evidence sufficient for committal that the YBK is a criminal organization within the meaning of s. 467.1 of the Criminal Code. The most significant challenge to committal on behalf of most defendants is that the predicate offences for which there is some evidence, are not shown to have been committed by the particular accused "for the benefit of, at the direction of, or in association with" a criminal organization as required for a prosecution pursuant to s. 467.12 of the Code. The other significant issue, particularly for Duro and Tomlinson, is whether there is sufficient evidence of constructive possession of firearms or drugs.

PART V: LEGAL PRINCIPLES

i) Test for Committal

[20] My function, as a preliminary inquiry judge, is to determine whether there is evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty on each of the charges at issue: U.S.A. v. Sheppard (1976), 30 C.C.C. (2d) 424 (S.C.C.). A concise summary of the governing principles this Court must apply in making that determination was recently set out by Fuerst, J. in R. v Brown, 2012 ONSC 6565 at paras. 17 - 18:

17 The Supreme Court of Canada confirmed in R. v. Arcuri, 2001 SCC 54 at para. 21, that a preliminary inquiry judge must commit an accused to stand trial where there is "admissible evidence which could, if it were believed, result in a conviction". The test is the same whether the evidence is direct or circumstantial. If there is direct evidence as to every element of the offence charged, the preliminary inquiry judge must commit the accused to stand trial. Where the evidence is circumstantial, however, there is an inferential gap between the evidence and the matter to be established. The judge must therefore weigh the whole of the evidence in the limited sense "of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw": Arcuri, at para 23. The court emphasized that the preliminary inquiry judge does not draw factual inferences, or assess credibility, or ask whether he or she would conclude that the accused is guilty. The judge asks only "whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt": Arcuri, at para. 30. The task of limited weighing is an assessment of "the reasonableness of the inferences to be drawn from the circumstantial evidence": Arcuri, at para. 30. In other words, the preliminary inquiry judge "must engage in a limited weighing exercise in order to determine whether a properly instructed jury could reasonably draw the suggested inferences": R. v. Slessor, 2007 ONCA 336.

18 Where there are competing inferences to be drawn from circumstantial evidence, the preliminary inquiry judge does not choose among them. Only the inferences that favour the Crown are to be considered: R. v. Sazant, 2004 SCC 77. As long as there is available a reasonable inference in favour of the Crown, then the preliminary inquiry judge must draw it, regardless of its strength: R. v. Sheardown, 2010 ONSC 4235. However, "[s]uch inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence then the accused must be discharged as there would be an absence of evidence on an essential element" of the offence: Sheardown, at para. 19.

ii) Criminal Organization

[21] The definition of a criminal organization is set out in s. 467.1(1) of the Criminal Code. In summary it states that: "criminal organization" means a group, however organized, that

• is composed of three or more persons;
• has as one of its main purposes or main activities
• the facilitation or commission of one or more serious offences,
• that if committed, would likely result in the direct or indirect receipt of a material benefit by the group, or any of the persons constituting the group

[22] The Supreme Court of Canada recently held in R. v. Venneri, 2012 SCC 33 that in order to engage the exceptional regime of the organized crime provisions of the Criminal Code, the definition of a "criminal organization" requires that the group has some form of structure and degree of continuity. The phrase "however organized" in the section is intended to capture "differently structured criminal organizations", but is not meant to strip the definition of its requirements of continuity and structure. (paras. 29, 31, 35).

[23] The Court emphasized articulated the rationale as follows:

36 Working collectively rather than alone carries with it advantages to criminals who form or join organized groups of like-minded felons. Organized criminal entities thrive and expand their reach by developing specializations and dividing labour accordingly; fostering trust and loyalty within the organization; sharing customers, financial resources, and insider knowledge; and, in some circumstances, developing a reputation for violence. A group that operates with even a minimal degree of organization over a period of time is bound to capitalize on these advantages and acquire a level of sophistication and expertise that poses an enhanced threat to the surrounding community. (para. 36)

[24] Accordingly, rather than looking to a checklist of attributes of a criminal organization to see if the group at issue fits the definition, the Court adopted a different approach:

40 It is preferable by far to focus on the goal of the legislation, which is to identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members. All evidence relevant to this determination must be considered in applying the definition of "criminal organization" adopted by Parliament. Groups of individuals that operate on an ad hoc basis with little or no organization cannot be said to pose the type of increased risk contemplated by the regime.

41 Courts must not limit the scope of the provision to the stereotypical model of organized crime -- that is, to the highly sophisticated, hierarchical and monopolistic model. Some criminal entities that do not fit the conventional paradigm of organized crime may nonetheless, on account of their cohesiveness and endurance, pose the type of heightened threat contemplated by the legislative scheme. (paras. 40-41)

Section 467.12

[25] Section 467.12 creates an offence more serious than the "participating" offence set out in s. 467.11. The "commission" offence in s. 467.12 is punishable by a term not exceeding 14 years and requires the Crown to prove that the accused:

• committed an indictable offence;
• for the benefit of, at the direction of, or in association with
• a criminal organization

s. 467(2) provides that:

(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that the accused knew the identity of any of the persons who constitute the criminal organization.

[26] In R. v. Venneri, 2012 SCC 33 the Supreme Court clarified the test to determine when a crime in committed "in association" with a criminal organization, as follows at paras. 53-57:

53 The phrase "in association with" should be interpreted in accordance with its plain meaning and statutory context. It is accompanied here by the terms "at the direction of" and "for the benefit of". These phrases are not mutually exclusive. On the contrary, they have a shared purpose and will often overlap in their application. Their common objective is to suppress organized crime. To this end, they especially target offences that are connected to the activities of criminal organizations and advance their interests.

54 Considered in this light, the phrase "in association with" captures offences that advance, at least to some degree, the interests of a criminal organization -- even if they are neither directed by the organization nor committed primarily for its benefit. As noted by Miles Hastie:

The phrase "in association with" should capture, like its siblings, an interest of the criminal organization in the predicate offence. The accused need not carry out the predicate offence exclusively for the criminal organization: the accused may (and, as an organization member, will usually) entertain other selfish motives. But offences committed for wholly selfish purposes should not generate liability. On some level, the offence must only capture actions with and for the criminal organization. [Emphasis added; emphasis in original deleted; footnote omitted.]

("The Separate Offence of Committing a Crime 'In Association with' a Criminal Organization: Gang Symbols and Signs of Constitutional Problems" (2010), 14 Can. Crim. L. Rev. 79, at p. 91)

55 The phrase "in association with" requires a connection between the predicate offence and the organization, as opposed to simply an association between the accused and the organization: see R. v. Drecic, 2011 ONCA 118, 276 O.A.C. 198, at para. 3. In R. v. Lindsay (2004), 70 O.R. (3d) 131 (S.C.J.), aff'd 2009 ONCA 532, 245 C.C.C. (3d) 301, the trial judge, correctly in my view, interpreted the phrase "in association with" as follows:

The phrase "in association with" is not impermissibly vague. The phrase is intended to apply to those persons who commit criminal offences in linkage with a criminal organization, even though they are not formal members of the group. The Oxford English Dictionary (10th ed.) defines the phrase "associate oneself with" to mean, "allow oneself to be connected with or seen to be supportive of". The phrase "in association with" requires that the accused commit a criminal offence in connection with the criminal organization. Whether the particular connection is sufficient to satisfy the "in association with" requirement will be for a court to determine, based on the facts of the case. [Emphasis added; para. 59.]

56 As mentioned earlier, an offender may commit an offence "in association with" a criminal organization of which the offender is not a member. Membership in an organization, however, remains a relevant factor in determining whether the required nexus between the offence and the organization has been made out (see Drecic, at para. 3).

57 The Crown must also demonstrate that an accused knowingly dealt with a criminal organization. The stigma associated with the offence requires that the accused have a subjective mens rea with respect to his or her association with the organization (see Lindsay (2004 S.C.J.), at para. 64).

[Emphasis added]

[27] The mens rea requirement approved by the Supreme Court in Venneri was described by Justice Fuerst in R. v. Lindsay, [2004] O.J. No. 845 as follows at para. 64:

[T]here is an implicit requirement that the accused committed the predicate offence with the intent to do so for the benefit of, at the direction of, or in association with a group he/she knew had the composition of a criminal organization, although the accused need not have known the identities of those in the group.(para. 64)

[28] Further, the Ontario Court of Appeal's comment on the relevance of proved "membership" as approved by the Supreme Court in Venneri was stated in R. v. Drecic, 2011 ONCA 118, [2011] O.J. No. 620 as follows at para. 3:

[T]he criminal organization does not have to be 'directly involved' in the underlying offence or play a 'direct and integral role in it'. ...The following observation made by Justice Nordheimer in R. v. Bodenstein (unreported, July 13, 2010, Ont.SC) is an accurate statement of the law:

In other words, if membership in the organization is part of the reason why the offence is undertaken or if membership in the organization assists in the commission of the offence, then it can be fairly concluded the offence was undertaken in association with the organization.

Section 467.13

[29] Section 467.13 contains the most serious of the criminal organization offences. The "instruction" offence carries a potential sentence of life imprisonment. In order to prove this charge the Crown must prove that the accused:

• is one of the persons who constituted the criminal organization;
• knowingly instructed, directly or indirectly, any person to commit an offence; and
• that it was for the benefit of, at the direction of, or in association with the criminal organization.

[30] Section 467.13(2) provides that:

(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that:

(a) an offence other than the offence under subsection (1) was actually committed;

(b) the accused instructed a particular person to commit an offence; or

(c) the accused knew the identity of all of the persons who constitute the criminal organization.

[31] The "instruction" offence specifically requires that the accused be a member of the organization and that s/he gave the instruction knowingly. The ability to give instructions connotes authority, but there is nothing in the section that requires the Crown to prove that accused is actually a leader in the organization. Rather, the objective of s. 467.13 is to prevent members of criminal organizations from using their ability to give instructions to support the objectives and activities of the criminal organization; R. v. Terezakis, 2007 BCCA 384, [2007] B.C.J. No. 1592 at paras. 73 - 77 per Chiasson and Newbury JJ.A.. Further, as Mackenzie J.A. noted in a concurring judgment in Terezakis at para. 15, "It is the instruction that is the offence rather than the predicate offence instructed, which may be any federal offence and need not be actually committed." In other words, the focus of the offence in s. 467.13 is on the instruction.

[32] The British Columbia Court of Appeal outlined the essential elements of the offence under s. 467.13 in R. v. Terezakis and, particularly as stated by Chiasson J. A. (joined by Newbury J.A.) at paragraphs 61 - 62:

The core elements of the actus reus under s. 467.13 are: being a member of a criminal organization and instructing the commission of an offence linked to the criminal organization.

The requisite mens rea for a conviction under s. 467.13 is knowledge that the group, of which the accused is part, has a criminal main purpose or activity and knowledge that the instructing offence is likely to benefit that group or at the direction of, or in association with the group....The ingredients are:

*membership in the group, however organized;

*knowledge that a main purpose or activity of the group is the facilitation or commission of serious crime;

*knowledge that the crime likely would result in direct or indirect benefit to the group or any person in the group;

*as a member of the group, knowingly instructing another to commit a crime for the benefit of the group, at its direction or in association with the group.

(Terezakis at paras. 61 - 62; see also paras. 41 and 68)

PART VI: ANALYSIS OF YBK AND INDIVIDUAL DEFENDANTS

YBK is a Criminal Organization and Membership Generally

[33] All defendants concede that there is some evidence that YBK is a criminal organization in this case. This concession reflects that there is an abundance of evidence before this Court that YBK consisted three or more members, and had as one of its main purposes or activities, the facilitation or commission of serious offences that would likely result in the receipt of a benefit, by the group or by any of the persons who constitute the group. The evidence establishing that YBK is a criminal organization is found in (i) the intercepted communications that show the core business of YBK members is drug dealing and firearms sharing; (ii) photographs and videos found in the cell phones of YBK members and alleged members featuring audacious displays of material wealth associated with the name YBK (i.e. "YBK" spelled out in $100 bills is but one example) together with images of illegal drugs and guns; (iii) a particular series of videos featuring many YBK members "play-fighting" in an apartment and concluding with Mahadale, a member, declaring, "This is not a muscle thing. YBK shoots niggers B. We only fist fight our bros. Everyone else gets shot". YBK also has a YouTube presence.

[34] None of the defendants took issue with the guilty pleas of G.L., S.W., K.D. and Nigel Joseph-Palmer being admitted at this preliminary inquiry pursuant to s. 540(7) of the Code. In light of this concession, and adopting the decision of Justice Wong in R. v Francis, [2005] O.J. No. 6375 at para. 26, (admissibility on the basis of 540(7) approved in R. v. Riley, [2009] O.J. No. 1375 at para. 21), I find those transcripts of guilty pleas admissible at this preliminary inquiry as proof of those individuals' membership in the YBK.

[35] Further, a jury could find, that all of the following defendants were members of the YBK at the relevant time: Chermar Gardner, Abshir Abdirashid, M.A.M.A., Kevin Duro, M.H., Guled Mahadale and Turrell Tomlinson. I make this finding based on the evidence outlined in relation to the individual defendants below, and also in light of D.C. Oliver's considered opinion that each of them is involved in conversations and/or videos and photographs that are indicative of their membership in the YBK.

[36] I am fully satisfied that a jury could reasonably conclude that the YBK was a group of three or more persons having one of its main purposes or activities the facilitation or commission of serious criminal offences which, if committed, would result in the receipt of material benefits by the group or any of the persons in the group. I am also satisfied that the jury could find that Gardner, Abdirashid, M.A., Duro, M.H., Mahadale and Tomlinson were members of the YBK during the timeframe of the intercepts.

I. Chermar Gardner

[37] The counts in issue for Gardner are: Criminal Organization- Commit, Counts 1, 2, 3, 4, 45 and 46; Criminal Organization - Instruct, Counts 17 and 21; and stand alone Counts 9, 15, 28 and 30.

(A) Criminal Organization Counts against Chermar Gardner

The Defence Position

[38] Mr. Cudjoe does not contest that there is sufficient evidence of the predicate offences in Counts 1, alternative to 2, 3, 4, 17, 21, 45 and 46. Rather, he submits that with regard to all of these counts, the Crown has not met the onus with regard to the nexus between the predicate offences and the criminal organization. In other words, the Crown has not established that the offences were committed or instructed to be committed "for the benefit of, at the direction of, or in association with a criminal organization."

[39] With regard to Count 21 (Session 559 and 561) Mr. Cudjoe also submits that there is no evidence that Gardner actually "instructed". Mr. Cudjoe argues that Gardner did not "instruct" G.L. to commit the offence of trafficking cocaine on November 6, 2011. Rather, he simply told G.L. what location to attend at in order to complete a drug sale.

a) Is there evidence that Chermar Gardner is a member of the YBK?

[40] There is an abundance of evidence that Gardner was a member of the YBK and that he knew that the group had a main purpose or activity to facilitate or commit a serious crime. It is not necessary to catalogue every item of evidence that proves this. The cumulative effect of some of the evidence, clearly passes the threshold for a preliminary inquiry. It includes:

i) Gardner's use of the name or symbol "YBK" numerous times, including displays of his association with "YBK" and financial benefit in photos from S.W.'s cell phone seized on October 2, 1012, showing (a) each of Gardner, Mahadale and S.W. sitting next to the letters "YBK" spelled out in one hundred dollar bills spread out on the floor. It appears that approximately $8,000.00 is used in the photo; (b) From the same phone, images of firearms, bullets, hashish and cannabis in paste form.

ii) Gardner's association with other people who constitute the YBK including (a) multiple intercepts establishing association with S.W. and G.L., who are both established members of the YBK; (b) Video-recordings from S.W.'s cell phone, with Gardner filming and providing some commentary, capturing "play fighting" in a small apartment amongst Abdirashid, M.H., M.A., S.W., and Mahadale. (A jury could reasonably conclude, based on the video and intercepts, that this is the occasion when Gardner broke Mahadale's ribs) The finale of these video clips has Guled Mahadale approaching the camera and declaring: "This is not a muscle thing. YBK shoots niggers B. We only fist fight our bros. Everyone else gets shot";

iii) Videos showing (a) Gardner and S.W. counting large quantities of cash (over $13,000.00 in one video); (b) Gardner, M.A. and S.W. in an apartment with someone holding up a clear bag that appears to contain a white powdery substance and Gardner holding up keys saying "This is how I get into my condo", counting large sums of cash, then saying, "I make my bitch sell her pussy here cuz, this is what we do"; (c) Gardner and S.W. entering a washroom in which there appears to be a digital scale and tied plastic containing white powder and Gardner saying, "We selling bitches, we really do this", then S.W. counting a large amount of cash into the camera.

iv) Gardner's discussion with Tomlinson and Osemwengie in Session 2005 on October 2, 2011 (when Gardner is in British Columbia) where they discuss territory, robberies and participation of YBK members in drug and firearm trafficking, including:

a) Gardner speaks of how he wants to get money to get all the dogs shining, "Where everybody gets their ones, everybody's shining, dog". (Line 1256-1263) and how the Young Bucks are getting "sweetied up" (Press gave evidence that this is coded language for "armed with guns") when he says "Don't worry the young bucks are on it B, young bucks and my nigger, ah...fresh out. (Sniffles) I'm telling you yow, the men need all those young bucks sweetied up. If you guys don't have them sweetied up there's no point B."(Line 2136-2140).

b) When Osemwengie comes on the line (from the Hood) and says that he is broke, Gardner tells him he has to start robbing people. When Gardner asks Osemwengie about the young bucks, Osemwengie informs him that they are all still good, but "they're waiting for you bro' to tell them yow...give them the go ahead bro'". Gardner responds, "All my niggers, PTG shotty..they're trained to go man. I don't know what you guys are doing, but these guys are hungry." Gardner goes on to say that the young guys look up to them and it is their time, but they have to feed the younger dogs before they turn on them.(Lines 1478-1838). Gardner and Tomlinson continue to talk about their "camp" and the recruitment of new members. (Lines 3300-4500). During this talk about bringing young kids they knew in their past back to their "camp" Gardner notes that he brought Maury (S.W.) "back around". (Lines 4300-4309)

c) Gardner talks about being out west, building "programs". He tells Tomlinson that he is "just building a program right now, once I build this program and leave it, its a rap. I'm coming back and build that program back. Just make sure the men have money to fuck with and programs to fuck with...Cause when I come back, I'm gonna try to be on a program thing again, you know, have everybody...checking in and shit"( Lines 2775-2791). He talks about Cheens (allegedly Austin) running a program and that he will make him continue to run it for a year or two and "soon he's gonna draw for us". (Lines 4626-4671) Gardner also talks about how his "first nip was a rack" (drug deal was for $1,000) and how H (probably M.H.) is out in Fort McMurray now and is "racking up like twenty -thirty racks". Gardner talks about how when he builds out a city, it will be his city and then, "the dogs could even come through like a...Dot shift" (lines 5002 - 5057). He also talks about linking up and meeting up with the dogs out West, although H (M.H.), PI (Abdirashid), JB (Kamal Hassan) and L. (M.A.) are variously several hours away from him (Lines 5065- 5129).

d) Gardner states his philosophy about gang life: "Look at Buck...it doesn't matter where you're from ...its where you are at. ...are you loyal? Are you worshipping the name? Are you riding?..Are you being loyal to the squad?" (Lines 3876-3896)

e) Gardner says he doesn't want to come back to Toronto until he can rack up enough (make enough money) to give his homeys some untoe (drugs), piff or fucking sweeties (guns) or something they could continue to hold, for him to homage (Lines 4796 - 4851).

v) Gardner's repeated references throughout the timeframe of the intercepts to drug trafficking "programs" in different cities involving different members and associates including those found in Sessions 2005, 6514, 2181, 4014, 66.

vi) The individual drug and gun counts which have been conceded and for which I have found enough evidence to commit for trial, well establish that Gardner was committing serious criminal offences.

[41] The totality of the evidence raises a compelling inference that Gardner was a well integrated member of the YBK, a criminal organization.

b) Criminal Organization - Commission - Counts 1, 2, 3, 4, 45 and 46:

Is there evidence Gardner was committing these offences for the benefit of, at the direction of, or in association with the YBK?

[42] Mr. Cudjoe does not dispute that there is some evidence that Gardner committed the predicate offences of producing cocaine and possessing cocaine for the purpose of trafficking on December 7, 2011 (Counts 45 and 46) as well as the predicate offences of transferring or offering to transfer a firearm, possessing a firearm, trafficking in a controlled substance and conspiracy to traffic in a controlled substance (Counts 1 - 4). The issue is whether there is sufficient evidence linking the predicate offences to the YBK such that a jury could find that Gardner committed the offences for the benefit of, at the direction of or in association with the YBK.

[43] The criminal activity of the YBK members most prevalent during the timeframe of the wiretaps, as disclosed in the evidence at this preliminary inquiry is drug and firearm trafficking. The experts, particularly Staff Sergeant Babiar and Detective Constable Oliver, gave evidence that drug trafficking and firearms are inextricably linked. Not only are weapons used to protect against robbery in drug deals, they are part of the modus operandi of drug dealing and are used to build the reputation of the group and protect its turf. As Babiar says "Carrying a firearm, association or membership in a gang may carry a certain amount of currency on the street". D.C. Oliver testified that the control of a gang's turf is very important in protecting and controlling their drug business within that turf. Gangs control their turf by instilling fear, through intimidation by identifying as a gang and by that gang showing strength through violence, displays of wealth and loyalty. Gang members protect themselves and the interests of the gang by sharing guns and drugs, often in stash spots that are within the turf.

[44] Based on the totality of the evidence admissible against Gardner, a reasonable jury could easily conclude that all of the predicate offences were committed "in association with" the YBK. All of the predicate offences are connected to the activities of the YBK and advance its interests, at least to some degree within the meaning of Venneri. Further, the offences benefited the group and persons constituting the group. On all of the evidence here, it is clear that by possessing, transferring or offering to transfer firearms, Gardner, as a member of the YBK, was "advancing the interests of the YBK" by, at a minimum, protecting fellow members, himself and the group's drug business. Similarly, by trafficking cocaine and other controlled substances, and sharing customers with members of the YBK, the members were rewarded. There is no question that Gardner's actions were connected to the YBK, as he was highly integrated in the gang. Membership in the gang assisted in the commission of the offences. A jury could find Gardner, and the members he dealt with in relation to the firearms and drugs, had as their goals, support for each other in the business of trafficking drugs, to protect their business and each other under the auspices of the YBK. There are clearly reasonable inferences to be drawn from the whole of the evidence that Gardner had knowledge that the group he associated with had as a main criminal purpose the facilitation or commission of the offences of drug and firearm trafficking and knowledge that this criminal activity would likely result in the direct or indirect benefit to the group or any person in the group.

[45] In addition to the evidence outlined in paragraph 40(i)-(iii) above, the evidence going directly to the production and possession counts (45 and 46) is a powerful illustration of Gardner's display of wealth together with another member of the YBK. This includes the "Cooking Dance" videos "Hardaz" in which Gardner and S.W. audaciously count large sums of money while cooking what appears to be crack cocaine; the series of photographs dated December 7, 2011 from S.W.'s cell phone, showing S.W. with large amounts of cash and what appears to be drugs and trafficking paraphernalia spread out on the table along with a hat and chain Gardner was wearing in the cooking dance video; then the seizure of items found in the apartment in which Gardner was arrested on December 13, 2011, including a wallet that looks strikingly similar to the one shown in the December 7, 2011 photos and a quantity of cocaine. Additionally, the photos dated August 22, 2011, in which each of Gardner, S.W. and Mahadale appear next to approximately $8,000.00 with "YBK" spelled out in $100.00 bills, show the association and link to the criminal organization. Not only did Gardner commit the offences in association with the YBK, the evidence reveals that members of the group, in fact, received financial benefits from the criminal activity.

c) Criminal Organization - Instruct - Counts 17 and 21:

Is there evidence that Gardner instructed the offences in association with or for the benefit of the YBK?

Count 17

[46] Count 17, (like Counts 16 and 18, which have been conceded), is based on a series of intercepts on November 4 and 5, 2011 (Sessions186, 316, 317, 319, 323, 324, 326, 342, 437, 581, and 596). I accept as reasonable, Staff Sergeant Babiar's evidence with regard to the drug references in these calls. At 8:57 p.m. Gardner talks to S.W. who tells him his "food" (crack) is gone. Gardner tells S.W. to go back to the stash and directs him to "take out like three grams out of the good bag" and continues with more details. Gardner tells S.W. that he is sending them a lot of deals and wants to know if S.W. is doing them. S.W. answers that he is "crushing a lot of nips" (doing a lot of deals).

[47] At 6:22 a.m. on November 5, 2011, Gardner receives a call from a female who asks Gardner to bring her a hundred dollars of crack cocaine. When she asks if he is too tired, he says that he is going to call his buddy and do it right now. At 6:30 a.m. Gardner receives another call from a male who wants 1/8 oz of cocaine. At 6:32 a.m. Gardner calls S.W. and S.W. gives Gardner details of deals he has been working on. Gardner tells S.W. that he has two deals lined up and they discuss how S.W. does not have enough supply. Gardner directs S.W. to bag up some crack. At 6:38 a.m. Gardner calls S.W. and directs him to take the drugs to the customers. At 6:54 a.m. Gardner calls S.W. again, asking if he is close to his destination. When S.W. arrives, the customer is upset and says to tell Gardner that next time he needs to let her know that someone else is coming. S.W. tells Gardner that he received the $100.00 from the customer and confirms that everything is bless. At 1:37 p.m. on November 5, 2011, S.W. tells Gardner that he wants to go to Toronto because it is boring over here. Gardner responds that he is on "the trap thing" (phone used for deals) and there is more food (crack) in the SB (storage box) if S.W. needs it. Gardner says why you say its boring? Why you leaving? You don't wanna make money, kid? Gardner then directs S.W. to get more drug supply in an SB (storage box), which S.W. cannot locate.

[48] This series of calls clearly establishes some evidence that Gardner is knowingly "instructing", in the sense of "directing" or "commanding" S.W. to carry out his detailed instructions on how to act as Gardner's agent in the drug deals. He even goes so far as to supervise S.W. by remaining on the phone while a deal is being done and demanding updates as the situation develops. Mr. Cudjoe, on behalf of Gardner, fairly concedes that there is some evidence of the "instructing" aspect of this count.

[49] I also find that there is evidence upon which a jury could find that the instruction was given to commit the crime for the benefit of or in association with the YBK for the same reasons outlined above. Further, there is a clear financial benefit from sharing customers and it is open to the jury to find that this was part of one of the "programs" being run by Gardner as a YBK member. Gardner advises that he has more drugs at SK's place (allegedly Wallace) and directs S.W. to get more drug supply from an "S-B" (storage box). S.W. is collecting money on Gardner's behalf and, clearly there is a financial benefit to Gardner, at least, as a person who constitutes the group.

Count 21:

[50] Unlike the detailed instructions given in the calls grounding count 17, this count is based on two extremely brief calls to G.L. (Sessions 559 and 561). Mr. Cujoe concedes that there is sufficient evidence for Trafficking and Conspiracy to Traffic cocaine (counts 19 and 20) as the predicate offences, but argues that Gardner is not "instructing" G.L. to commit an offence and that there is not sufficient evidence that it is for benefit of or in association with a criminal organization.

[51] The evidence is that on November 6, 2011, at 1:18 a.m. Gardner calls G.L. and leaves a message saying "I'm gonna call you back right now, I might have a forty whop.okay? (forty dollar deal for crack cocaine). Two minutes later Gardner talks to G.L. and the whole conversation is as follows:

G.L.: Yow.

GARDNER: Yow, go to 1801 and par in the trap. There's...yow there is a twenty whop...

G.L.: Yeah

GARDNER: ...and then after that I'm supposed to call this catty and she's supposed to come for like a forty.

G.L.: All right.

GARDNER: So she's gonna come to the 1801. But I don't know she's not answering her phone but the twenty is there; but I'm gonna send up the forty. Okay?

G.L.: Yeah

GARDNER: They might be both there by the time you're there.

G.L.: All right.

GARDNER: Umm.

[52] The allegation of "instruct" appears to be premised on Gardner's words, "Yow, go to 1801 and par in the trap". Mr. Cudjoe argues that this is not an instruction, it is giving directions to a particular location.

[53] There is no question that the jury can find that Gardner is an integral part of the YBK, that he runs drug programs, participates in co-operative drug dealing with members of the YBK and even that he is one of the leaders of the YBK. However, like Justice Pringle in R. v. Willis, 2007 ONCJ 605, [2007] O.J. No. 5691 at para. 118, I find that it would be unreasonable to find that every arrangement made by Gardner to facilitate or complete a drug deal "is converted to an 'instruction' within the meaning of s. 467.13 simply by virtue of his position in the organization. In other words, an arrangement or suggestion cannot be converted into an "instruction" simply because of the status of the accused."

[54] In my view, when deciding what "instructs" means for the purpose of s. 467.13, the legislative intent of the section must be borne in mind. A conviction under s. 467.13 exposes the accused to life imprisonment. As Chiasson J.A. noted in Terezakis at para. 80:

Parliament imposed escalating maximum sentences. It considered that committing a crime to benefit a criminal organization is more serious than enhancing the ability of the organization to commit crime and that it is very serious for a member of a criminal organization to instruct another to commit an offence for the benefit of, at the direction of, or in association with the organization.

[55] As Justice Pringle noted in Willis, the Oxford Dictionary defines "instruct" as: "to direct" or "to command". The word "instruct" connotes the exercise of authority, even if specific authority within the criminal organization need not be proved; Willis at para. 117; Terezakis at paras. 75 and 77.

[56] Taking the Crown's case at its highest, a jury could not reasonably find that Gardner was directing or commanding G.L. to do a drug deal. Rather, Gardner is telling G.L. which location to go to and making arrangements to complete the deal. The evidence on this count does not allow for a reasonable inference that Gardner is exercising any kind of authority over G.L. or that he is commanding him in the way he commanded S.W. in Count 17. Gardner will not be ordered to stand trial on Count 21 for the offence of instruction.

[57] Based on the same evidence of this transaction, Gardner can, however, be committed to stand trial for the offence of committing the indictable offence of either trafficking in cocaine or conspiring to traffic in cocaine for the benefit of, at the direction of, or in association with a criminal organization contrary to s. 467.12. Like the situation with S.W. above, there is evidence that both Gardner and G.L. are members of the YBK and clear financial benefits ensue to them and other benefits are felt by the larger group. There will be a committal on to stand trial on the offence pursuant to s. 467.12, although this is duplicative of Counts 3 and 4.

d) Stand Alone Counts

Count 9- October 16, 2011 - Possess Firearm with Austin

[58] This charge is based on a conversation between Gardner and Austin on October 16, 2011 at approximately 3:45 p.m. (Session 2423). Mr. Cudjoe submits that, although Officer Press opined that depending on context, the word "one" can refer to a firearm, Gardner's use of the word "ones" in Session 2423 does not lead to a reasonable inference that he is in possession of a firearm.

[59] I have listened to this call several times. Austin says he is trying to come to meet Gardner and others but he is not mobile. Gardner is insistent that Austin bring a "whip" (expert evidence supports that this means a vehicle). Austin responds that he is trying to get a whip, but he does have a "girl" (Officer Press opined that this is likely a reference to a firearm given the subsequent references in the same call to calibres of firearms). I accept that this reference to a "girl", and subsequent references in the same call, constitute some evidence that Austin possesses a firearm. Austin then asks Gardner where he is and confirms that he is trying to get there, at which point Gardner tells him to make sure he has a whip (vehicle) because "we don't have no whips". When Austin says he is trying to get a vehicle right now, Gardner comments "we have our ones but no whips and like...bro just like...like this is ridiculous, all the men. (unintelligible)." Austin keeps saying he is trying to get a whip and Gardner tells him again to make sure he comes with a whip. Gardner then says "I'm just out here. Two up situation (unintelligible) two up. Or do you just have one?" , to which Austin replies "One Dog" - and goes on to explain that four are gone basically, "we had to get rid of them dog, out here is hot bro." Gardner asks what are you perking, to which Austin responds, that he has his same blue-ers. Officer Press testified that this could be a reference to a firearm and the expression relates to a refinished gun. Austin then goes on to say that " They have fucking four" and goes on to describe what Officer Press says are guns according to calibre. The conversation then goes back to Austin not knowing where a vehicle is and problems with vehicles. It ends with Austin saying that he is coming down right now, and he is trying to get "a whip right now with SB". Expert evidence was called that SB could refer to a storage box used to conceal drugs or guns in a vehicle.

[60] In my view, even if the word "one" is used by Gardner to mean a firearm, a reasonable inference cannot be drawn that he is in actual possession of a firearm from this. A reasonable interpretation is that he is declaring at line 121, after Austin tells him he has a gun, that it is ridiculous that they have guns, but no vehicles. His question to Austin immediately afterwards, saying "two up situation" but asking for clarification, "or do you just have one?" confirms that it is Austin who has actual possession of one gun.

[61] I find that it would not be reasonable to infer that Gardner had actual possession of a firearm based on this call. Further, it cannot be reasonably inferred that he had constructive or joint possession of the gun in Austin's possession, which would require a measure of control on the part of Gardner. Instead, this call amounts to Gardner asking Austin, (an individual who is not proved to be a YBK member before me), about guns and directing Austin to find a vehicle. There is no evidence before this court that any meeting between Gardner and Austin actually took place. There is no evidence upon which a jury could conclude that Gardner had power or authority over a gun that Austin had in his possession, whether exercised or not.

[62] I have taken into account that this call takes place the day after Rookwood was murdered and that there is some evidence that members of the YBK were trying to "arm up" and expressed needs to be armed, including Gardner who has just arrived from British Columbia and texted M.H. that he is going into the Hood without a "sweetie"(gun).

[63] Gardner will be discharged on Count 9.

Count 15 - November 3- 5,2011 - Possession of firearm with M.H.

[64] This charge is based on a conversation between Gardner and M.H. on November 5, 2011(Session 367), with Session 27 as support. On November 3, 2011 Gardner tells an unknown male about associates who got arrested and how it could have been worse because usually "we're in that house like mad straps, everything like ten..ten, eight straps". Officer Press's evidence is that "straps" is a common coded term for firearms. Gardner says that the man was lucky because he could have gone to jail for years. Starting at line 638, Gardner also tells the male about how his "real good homey died" at the house Gardner would have been at if he hadn't missed his flight (from British Columbia). Gardner tells the male that "my niggers" were present and the shooters used an A-K-47. Officer Press testified that this is a technical reference to a specific model/design of firearm.

[65] Two days later, (Session 367) Gardner calls M.H. and asks him about the location of various guns. I have listened to and reviewed this call several times to assess Mr. Cudjoe's submission that Gardner and M.H. are talking about one gun only and neither of them know where that gun is located. Given that coded language is being used, it is not a straight forward matter. However, the intonation of the sentences and the use of different terms supports a reasonable interpretation that Gardner is referring to at least two, if not three, different guns in this call: a "deuce deuce" (coded language for a .22 calibre firearm); a "two fif" (coded term for a .25 calibre firearm) and possibly two of these .25 calibre guns; and a "pan" or a "pound" (I agree with Officer Press that this term appears to be used as a reference to a specific firearm that cannot be located and one about which M.H. and Gardner surmise that Duro has more information). M.H. tells Gardner that one gun is in Gardner's little bag and that Weeji (Abdirashid's brother) has Gardner's "one" (a jury could find that this is a firearm). Althought M.H. initially says he will not ride dirty (coded language for illegally transporting a firearm), he does tell Gardner (line 215) that he is going to figure something out, implying that he will find a way to deliver one of the guns to Gardner. One reasonable interpretation of the call, the benefit of which the Crown is entitled to at this stage, is that there is at least one gun over which M.H. and Gardner have control and that M.H. will arrange delivery of it to Gardner.

[66] I find that a jury could reasonably find that Gardner had the requisite knowledge and control for constructive possession of a firearm, being a gun in the bag or a gun being held by Abdirashid's brother, Weegi; R.v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8 at para. 17. As the Ontario Court of Appeal reminded us in R. v. Savory, [1996] O.J. No. 3811, "Control for the purpose of constructive possession does not require that the accused did in fact exercise control over the object in question. ...control means the power or authority over the object in question.,[control means that the accused] was able to exercise a directing, guiding or restraining power" over the object. (at paras. 7 and 8). Gardner's direction to M.H. to arrange delivery of the gun in the bag, and M.H.'s acknowledgment that he will "figure out somethin' right now", particularly since they are both gang members, constitutes some evidence of Gardner's knowledge and control over a firearm.

[67] Gardner will be committed to stand trial on count 15.

Count 28 -November 22, 2011 - Possession of Firearm

[68] This count is based on a conversation on November 22, 2011 (Session 4144) in which Gardner is asking Wallace for ammunition. Officer Press testified that the reference to "teeth" in this call is a common coded term for ammunition and I accept that evidence. Mr. Cudjoe argues that although Gardner is asking Wallace if he has "teeth for the small one", it is only speculation to conclude that Gardner has a firearm in his possession. This is so, especially since Gardner starting at line 140 says that "I don't have nothin'... I'm waiting on bro. Bro said he's gonna...'cause I just gave him the last smaller (translated into 'small one'). You know, I got both of them? ..Gave it ...I gave it to him. He said he's supposed to swap me a three."

[69] It is possible for the jury to interpret the call in manner suggested by Mr. Cudjoe, i.e., that Gardner is saying that he doesn't have a gun. However, it is also possible for the jury to reasonably conclude that when Gardner says that he "doesn't have anything" he means that he does not have any ammunition that fits the gun that is in his possession. The reasonableness of this interpretation is supported by Gardner's words beginning at line 163. When he explains about "having nothing" he says, "That's what I'm saying...I need teeth for that one there". Wallace says "And we have the small one twerking with no...no fucking..." Gardner responds "N...yeah. Nothing. That's the only thing I could perk in my S-bizzle. Nothing else fits. That's what I'm saying...Ah, ah, probably like a small ones will fit. Get me?"

[70] It will be for the jury to decide exactly how this call will be interpreted. However, there is a reasonable inference available and the jury could find that Gardner was in possession of a firearm on November 22, 2011. There will be a committal to stand trial on this count.

Count 30- November 25, 2011 - Trafficking Cocaine

[71] This charge is based on Sessions 4929, 4997 and 4998. At 12:43 a.m. on November 25, 2011, a male who self identifies as 'Trev' calls Gardner's telephone line (289) 775-0798 (determined during the voice identification voir dire to be Gardner's line under the name of Q.T.). T. asks Gardner if he can help him out with another "two". Gardner says he can and T. tells him that he is on his way. At 5:17 a.m. T. calls Gardner's line (289) 775-0798 again at which time G.L. answers the phone. T. says "Hey Q, it's T.". G.L. responds saying "What's up? ..It's Q's little bro'". T. then asks if G.L. can do him "a two". Staff Sergeant Babiar's opinion that they are talking about two ounces of cocaine is not disputed. Mr. Cudjoe, however, submits that it would be unreasonable to find Gardner is trafficking based on a deal that G.L. is completing four and a half hours later.

[72] I find that there is some evidence upon which a jury could find Gardner was at least a party to the trafficking based upon the cumulative effect of the following evidence:

i) T. is calling Gardner's telephone number and Gardner, in fact, answers and acknowledges an intended drug transaction four and a half hours earlier;

ii) G.L. identifies himself as Q's little brother. There is evidence that one of Gardner's alias is Q.T.. By identifying himself as Q's little brother, it is open to the jury to infer that G.L. is communicating that he is working with Gardner and that he will provide T. with the drug;

iii) G.L. tells T. to come to the side staircase at 221 Melvin in Hamilton, which is the same address Gardner gives his direct drug customers on November 27 and 28 (telling them to meet him in the stairwell) from the same telephone line;

iv) Unit #1801 at 221 Melvin is the apartment Gardner allows other customers to buzz in other drug deals he is conducting in November 2011(i.e. Sessions 6270, 6239, 6189, 6167). In an another drug deal, count 21, in which G.L. and Gardner participate on November 6, 2011 (Sessions 559, 561), Gardner tells G.L. to go to "1801" where a female customer is expected;

v) G.L., in his guilty plea, admits to being a member of the YBK; and

vi) Staff Sgt. Babiar and D.C. Oliver gave evidence that "trap phones" --that is a phone used for drug deals-- are often shared amongst gang members. Customer contact lists are built on one particular phone for reliable customer contact and then the phone is shared with other gang members so that customers are not lost by another member's unavailability.

[73] Gardner will be committed to stand trial on Count 30.

II) Abshir Abdirashid

[74] Abdirsahid concedes that there is sufficient evidence to commit on charges of (1) Conspiracy to traffic cocaine (from Oct. 14 to Nov. 3, 2011) - Count 10; (2) Conspiracy to traffic a firearm (Oct. 21 - 22, 2011) - Count 11; and (3) Conspiracy to possess a firearm (Oct. 21- 22, 2011) -Count 12. The remaining charges to be dealt with are:

Count 1- Between September 1 to December 13, 2011, committed the indictable offence of transferring or offering to transfer a firearm knowing they were not authorized to do so contrary to s. 99(1), for the benefit of, at the direction or in association with a criminal organization contrary to s. 467.12:

Added Count -that he, being one of the persons constituting a criminal organization, did on or about the 21st day of October, 2011, knowingly directly or indirectly instruct a person to commit the indictable offence of transferring or offering to transfer a firearm knowing that they were not authorized to do so contrary to s. 99(1) for the benefit of, at the direction of, or in association with a criminal organization contrary to s. 467.13.

Count 2 - Between September 1 to December 13, 2011, committed the indictable offence of conspiracy to possess a firearm contrary to s. 465(1)(c), for the benefit of, at the direction or in association with a criminal organization contrary to s. 467.12

[75] Although the defence attempted to argue to that the interpretation of firearm trafficking provisions must be distinguished from drug trafficking law, I have been given no reason whatsoever to depart from the approach taken by Belobaba J. in R. v. Ralph, 2011 ONSC 3558 at paras. 39 - 50. In that case Belobaba J., held that "trafficking drugs by offer" as defined in R. v. Murdock, [2003] O.J. No. 2470 (C.A.), applies to the offence of "offering to transfer a firearm" pursuant to s. 99(1).

[76] I find that sessions 1542, 1548, 1550, 1674, 1682 and 1495 constitute sufficient evidence that Abdirasid was transferring or offering to transfer a firearm to another person by doing far more than providing "incidental assistance of the sale through rendering aid to the purchaser" as recognized by the majority in Greyeyes, [1997] 2 S.C.R. 825. There is evidence upon which a jury could find that Abdirashid made a concerted effort to effect the transfer of one or more firearms to one or more persons. Based on the analysis in R. v. Leclerc, [2001] J.Q. 426 at paras. 128-143, I agree with the Crown submission that the series of calls establishes that there is some evidence of Abdirashid "providing, giving, lending, transporting, and/or delivery" or offering to do any of these things by Abdirashid taking steps for a person other than himself to take possession of the firearm. A summary of these intercepted calls is as follows:

i) First, on October 21 at 1:39 (Session 1495) Abdirashid directs G.L. to have a firearm ready for J.B. who will have the money to purchase it when he gets to Ontario.

ii) Then, later on October 21 at 5:24 p.m (Session 1542) Abdirashid calls A.Y. and tells him that his "homey" Ello just dropped out not too long ago (referring to the Rookwood murder on October 15). He says that J.B. (Hassan) is on his way to Toronto and he wants "a one" (gun) there. When A.Y. says that he is not trying to let go o' none now, Abdirashid says that his brother in law has a "25" (25 calibre gun) ready right now. Abdirashid then says that he needs his "habid" (gun), that he is trying not to be "naked out there" (unarmed). Officer Press confirmed that the references to "one, habid, 25, 9, baby nine" are gun references in this call. He then says that J.B. left on the bus today, implying that he should be (in Toronto) by Sunday. Abdirashid says he will fly out after he completes his court and probation officer commitments. Abdirashid refers to S-man being "naked out there" (line 244). When A.Y. says that he is sure that there is a "baby Nine" (compact concealable or smaller frame 9 mm calibre firearm) lying around, Abdirashid says that is perfect, how much for that right now? A.Y. says that he will ask how much he is letting it go for, he won't take a cut as a middle man, and will get back to Abdirashid.

iii) October 21 at 6:57 p.m. (Session 1548) Abdirashid calls A.Y. again and says that Bucky (Buckeridge) is with his brother in law and that it is an ASAP thing. Abdirashid says: "my boy is mobile..SB..everything's grooving. You know? This is the only day he can get it you know? (Expert evidence included that "SB" could refer to a storage box used to conceal guns and drugs in a motor vehicle). A.Y. tells Abdirashid to tell him to meet him in his Hood. A few minutes later on Oct. 21 at 7:01 p.m. (Session 1550)Abidrashid calls back again and A.Y. tells Abdirashid that tonight is not a good night because they are going to run into issues with "the pigs" (police) and that Finch Street is hot. He says the vibe is not good, tomorrow morning is best. A.Y. confirms that the deal is still good, but it is just a timing thing. Abdirashid says he will give him his brother-in-law, S-man's number. The next day, October 22 at 4:58 p.m. (Session 1674) A.Y. tells Abdirashid that Abdirashid's family did not connect with him yet. He said he was going to call around 5:00. Abdirashid notes that it is 3:00 his time (and 5:00 with you guys) and that he would find his family and see what is going on.

iv) At 6:39 p.m. the same day, October 22, (Session 1682) A.Y. tells Abdirashid that A.Y.'s associate tried to up the price of the gun to "two two" ($2,200.00). A.Y. says he is not going to disrespect his associate over a gun and Abdirashid agrees and notes that "fam is like a sticky situation. S-man has been in the Dot for a couple of days. The man said he want a "one" Bam..Man had like three Bam. My boy dropped out, and everything is gone." A reasonable interpretation of this is that the guns are gone since Rookwood's murder and the gun to be purchased is important. When A.Y. acknowledges this and says, but, still, he is not going to make the man pay two-two, Abdirashid says that is the proper price of a baby nine. S-man has fifteen ($1,500.00) right now and Abdirashid will put seven bills ($700.00) on it because "That's my bro, that my fam". When A.Y. asks if he should call his associate back, Abdirashid says "my homey, S-man, has fifteen right now" and "I can make seven bills tonight..just tell your homey to hold it down for tomorrow morning. ASAP I'm gonna send my boy seven bills."

v) In this same call Session 1682, Abdirashid and A.Y. talk about OLOW and Abdirashid notes that he does not switch on his homeys and that OLOW is his bro.. Abdirashid also talks about how he is "going back to the Dot" (Toronto) and will fly out after his court. He says S is coming back out here (to Calgary) and they are taking shifts. "So bam, I want..a one there waiting for me...I'll put up dollars, you know, it's all a team effort you understand me cuz?" (Line 324) When A.Y. says he is going to come check out Abdirashid's crib, Abdirashid says everyone (except OLOW and he) are in the Dot (Toronto). Abdirashid talks about how L. (M.A.) is out there together with your bro and "it is always a team effort thing" (Line 419).

vi) Abdirashid says he has been "grooving" since he got out there in the C-town (Calgary). He bought a car and crashed it within one week. He says that he just "fucks with certain people that make dollars. I know H make dollars, J.B. has a little program perking, I have my program, everybody ... at the end of the day we're all family. I'll help you to the full. Gully too he's the biggest waste youth bro.." (Lines 492-500). Abdirashid goes on to talk about how Dog (Gardner), L. (M.A.) and Gully (Mahadale) went to B.C. "doing their B.C. thing", J.B.'s in the Leth. Abdirashid talks about how H dropped Gully on him and went to the Mac (Fort McMurray). Abdirashid talks about how his one bedroom house was destroyed when the six guys were there (supported by video footage of "play fighting") and how his landlord is freaking on him.

vii) In this same call, Session 1682, Abdirashid talks about how when he comes down, he will take S-man's rentals including "one" (gun) in SB (storage box). (Lines 753-767) A.Y. replies that TAVIS is crazy here and that all they are looking for are "ones" (guns) and says "They'll draw you down...if you're speeding, they don't even give you a ticket. They draw you down and look for a one."(Lines 774-784). Abdirashid tells A.Y. about how he left the Dot (Toronto) four months ago and the police are still bugging him in Calgary. (Lines 1006-1142)

viii) Abdirashid says he is going to call S right now and he's going to send the dollars. He tells A.Y. that he (S) said that he had fifteen. That Abdirashid told him 'just bring twenty five' and that it better be the top of the line or two racks. (Lines 1199-1220) Abdirashid confirms that he is good with "youths in the crib working for him" and that OLOW is a goof but a "little good youth".(Lines 1385-1404). Abdirashid finishes the conversation by telling A.Y. to try to work his associate down to two but if not, say he can give him two racks tomorrow and score him two bills. Abdirashid says he will get back to A.Y. tomorrow by "ping" because the phone thing is fire. (Lines 1468-1492)

The Defence Position

[77] The argument on Counts 1, 2 and the added count of instructing focuses on whether there is sufficient evidence to find the following:

a) that Abdirashid was a member of the YBK during the relevant time-period;

b) that he "instructed" a person to commit an offence, including an argument that the Crown must prove that G.L. was not authorized to receive a firearm and that Abdirashid had knowledge of this; and

c) that the trafficking, conspiracy to possess, and instruction were for the benefit of, at the direction of, or in association with a criminal organization.

(a) Is there Evidence that Abdirashid is a member of the YBK?

[78] Intercepts as early as September 27, 2011 (Session 56) show that Abdirashid is highly associated with other members and associates of YBK and that he has indepth knowledge of and control over various criminal activities engaged in by "the team". The intercepts, taken together, including Sessions 56, 1280, 1542, 1548, 1550,1682, 1495, 1952, 2322, 2181, 77; the photographs of Abdirashid found in S.W.'s and Kevin Duro's cell phones, the "playfighting" video footage of YBK members in what a reasonable jury could conclude on all of the evidence was Abdirashid's apartment, which places him together with Gardner, Mahadale, M.A. and S.W. -- provide overwhelming evidence that Abdirashid is a member of the YBK. By his own admissions on the intercepts, Abdirashid operated primarily out of Calgary during the time of the wiretaps and was trafficking illegal drugs and firearms. Abdirashid's direct participation in the calls demonstrate his intimate knowledge of the YBK's programs and the people who were operating them. He is intertwined with a network of individuals, not just as a gossip, but as a participating member of actual criminal dealings.

(b) The Instruct Count

[79] The basis for this count is an intercept on October 21, 2011 at 1:39 EDT (Session 1495) where the call can reasonably be interpreted as Abdirashid directing G.L. to obtain a firearm for "J.B." for when he gets to Toronto. Abdirashid tells G.L. to "have "one" ready for him (referring to "J.B") and he's gonna have the money (for the gun), everything ready".(Lines 87-105)

[80] Mr. Sewrattan's first argument is that there is no evidence that Abdirashid had knowledge that G.L. was not authorized to transfer a gun as required by s. 99(1). The parties agree that G.L., in fact, was not authorized because he was under 18 years old the time. However, the defence still argues that there is no evidence that Abdirashid had any knowledge that G.L. was a youth or that he was not authorized to transfer a firearm.

[81] Assuming that the Crown does have to establish that the accused had knowledge that person he instructed to transfer a firearm was not authorized to do so, I find that knowledge can be inferred from all of the evidence in this case, whether because of G.L.'s age or otherwise. In particular, in session 1495, G.L. introduces the topic by speaking in coded language: "you were telling me ..how you're gonna gimme some change to buy habid (translation is "one" which is coded language for a gun) for you." Abdirashid continues the conversation using coded language for guns, individuals and transactions. Abdirashid knows that G.L. is a member of the YBK and Abdirashid is obtaining information from G.L. about where the "trenches" are located in Toronto and the details of Ello's (Rookwood's) shooting death, among other things -- all in coded language. I find that the use of coded language in this call constitutes some evidence that Abdirashid had knowledge that G.L. was not authorized to transfer a firearm.

[82] There is a wealth of evidence that Abdirashid was a member of the YBK and that he knew that its main purpose or activity was the facilitation or commission of serious crimes including drug and firearm trafficking. Session 1495 makes it clear that Abdirashid knows G.L. is a fellow gang member and the contents of the call supports a finding that the instruction to G.L. to obtain a firearm for JB is linked to the YBK for its benefit or in association with it and that Abdirashid had knowledge that likely the transfer would result in a benefit to the group or a person in the group.

[83] The instruction to transfer in Session 1495 was directed for immediate receipt by J.B. While there is an allegation that J.B. is Hassan, it is not necessary to determine J.B.'s actual identity to establish some evidence that he is either a member or an associate of the YBK. In several calls, Abdirashid refers to J.B. and describes him as being involved in drug sales in Lethbridge. In one call Abdirashid talks about going to Lethbridge and working with J.B., as J. B. has his phone out there. Abdirashid refers to him as "family" along with Gardner, Mahadale and H (M.H.): (e.g. Sessions 56, 1682; lines 492-500, 1495). Gardner refers to J.B. as being 13 hours away when he is talking about meeting up with the "dogs", J.B., L. (M.A.), PI (Abdirashid), Gully (Mahadale), and H (M.H.) - showing that JB is part of the network (Session 2005, lines 5062-5108).

[84] The intercepts make it clear that, after Rookwood's murder, members of the YBK believed that they benefited from acquiring more firearms, at a minimum, to protect themselves. The YBK benefited from members acquiring firearms, additionally, because, according to Officers Press, Babiar and Oliver, firearms assist in the gang's pursuits of drug dealing, protecting their drugs and territory and committing other offences. There is some evidence from which a jury could find that Abdirashid knowingly instructed G.L. to get a gun for J.B. for the benefit of or in association with the YBK.

(c) Counts 1 and 2

[85] Mr. Sewrattan argues that to the extent that a firearm was intended to come into the hands of "S-man", there is no evidence that the crime was committed for the benefit of or in association with a criminal organization because, he says, there is not sufficient evidence connecting "S-man" to the YBK. Although a jury might find that this gun too, was intended for J.B. (lines 88-220), it is also possible for a jury to conclude based on the words found in Sessions 1542, 1548, 1550, 1674 and 1682 that "S-man" was to receive the gun in Toronto. Mr. Sewrattan essentially submits that the arrangements to acquire a gun cannot be in association with or for the benefit of the YBK because "S-man" is not proved to be a member and we simply do not know why S-man needs a gun. I disagree.

[86] First, while there is not sufficient evidence to find that S-man is a member of the YBK, there is some evidence of his association with various members of the YBK. I accept the connections as set out in detail in the Crown's written submissions on committal with respect to count 1 in paragraphs 19 through 22.

[87] More importantly, however, I find that a jury could reasonably conclude that the arrangement to get a firearm into S-man's hands was for the benefit of or in association with the YBK, because they could reasonably conclude that the gun would be shared, and make its way into Abdirashid's hands. This conclusion could be found on Abdirashid's own words at the following references:

Session1542:

Lines118-120-"I need my one right now. I'm not trying to be naked out there"

Line 244 - "S-Man is fucking naked out there"

Session 1682:

Line 88-96- "S-Man has been in the Dot for a couple of days. The man said he want a one. Bam....Man had like three Bam. My boy dropped out, and everything is gone you know Cuz."

Lines 131-147 - "my homey has fifteen right now right. S-man has fifteen...I'm gonna send seven bills right now ....I'm gonna send my boy seven bills.

Line 305 - 326 ..I'm gonna come back to the Dot and S is coming back out here, you know? Taking shifts, you know the ones? A.Y.: yeah. "So bam. I want..a one there waiting for me, you know the ones?

A.Y.: oh yeah, for sure. I hear that..

Abdirashid: you know, that's what I am trying to say right now. I'll put up dollars. You know, it's all a team effort you understand me cuz?

Line 754 - 767[about coming to Toronto] I have my rental...everything perking. S-Man's already waiting, bam. Rental....I'm gonna take this guy's rental 'cause he has lots o rental, right? When he leaves.. as soon as he leaves, he's gonna come I'm gonna have the rental, everything waiting for me. One in S.B. every...you know one o' those?

[88] For the same reasons stated in paragraph 84, there is no question that the predicate offences set out in Counts 1 and 2 were committed by Abdirashid in association with and for the benefit of the YBK. Abdirashid is committed to stand trial on Counts 1, 2 and the added instruct count.

III. M.A.M.A.

Counts 34, 35 and 36; and Criminal Organization – commission – Counts 1 and Possession only Count 2

[89] In counts 34 - 36, M.A. is charged with offering to transfer and possessing a firearm contrary to sections 100 and 92(1) of the Code. The basis for these charges is a particular intercepted telephone call on November 24, 2011, being Session 249, as understood in the context of all of the evidence of Mr. M.A.'s membership in and knowledge of YBK's activities.

[90] Counts 1 and 2 charge that M.A. committed the predicate offences of offering to transfer and possessing a firearm on November 24, 2011 for the benefit of, at the direction of, or in association with a criminal organization. The live issue in these counts is whether there is some evidence that M.A. committed the predicate offences with the intent to do so for the benefit of, at the direction of, or in association with the YBK.

(a) Is M.A.M.A. a Member of the YBK?

[91] As I understand it, Mr. Tong concedes that there is some evidence that M.A. is a member of YBK. He does not take issue with the evidence showing Ali's association with YBK members, including two intercepted communications (Sessions 249 and 1495) during the time-frame of the wiretap authorizations and several appearances by M.A. in photographs and videos found in cell phones seized from S.W., Kevin Duro, Jamal Wallace and Q.G.. The photos and videos place M.A. in the physical presence of Chermar Gardner, Guled Mahadale, S.W.. Additionally, M.A. takes an active part in the "play fighting" video along with Abdirashid, M.H., S.W., and Mahadale (with Gardner filming).

[92] The whole of the evidence at this preliminary inquiry clearly reveals that M.A. is associated with numerous individuals who are associated with the YBK and that he is part of drug trafficking program operating in Western Canada. I am satisfied that there is evidence from which a jury could find that M.A. is a member of the YBK. There is some evidence that M.H. and Gardner returned to Toronto from western Canada in mid-October, 2011 with subsequent intercepts asking when M.A., Abdirashid and Mahadale will be returning to Toronto. S.W. appears to have been sent back to Toronto on a ticket purchased by Abdirashid.

(b) Ali's call to G.L. on November 24, 2011 (Session 249)

[93] In Session 249 on November 24, 2011, M.A. starts this outgoing call by announcing - "YBK". G.L. says he is busy in the trench and he makes more money in Hamilton than M.A. makes in Alberta "cash city". M.A. then offers to give G.L. his "mini M fourteen", a "twenty-one shot duey" and a "tray". M.A. describes the mini M fourteen as a "thirty mini M fourteen wood grain and chrome with a scope. He says that "they're here", indicating that he has multiple firearms. G.L. says he is going to make a girl come for it.

[94] Officer Press' evidence is that a Mini-14 is part of the manufacturer's description of a Ruger, Model, Mini-14, semi-automatic, 223 REM calibre rifle. This firearm is manufactured in the USA and is available with wood grain and finishes including stainless steel which would give a "chrome" appearance. The reference to the twenty one shot Duey could be referring to a firearm manufacturer named "Cooey" which has a number of different types of firearms available.

[95] In session 249, following the discussion of guns, M.A. and G.L. proceed to talk about drugs. G.L. refers to the "trap phone" he is using at the moment and that Dog (Gardner) is in the building. M.A. talks about J.B. who was cooking crack, five ounces, and came back with three extra. In response to G.L. saying his phone is ringing every second, M.A. says we don't do "forty whops" (deals for $40.00) here (in the West), they're too hot (too risky). M.A. says they don't need $40 deals out west after midnight it is straight $100 deals. G.L. says "I need you guys back out here" to which M.A. responds by encouraging G.L. to come out to him. M.A. says, "I got you B. I only got you, fuck the rest of the young bucks."(line 376).We only deal with L-P and Wassi and then fuck the rest of them. Fuck Maury too..."(line 289).

(c) Counts 34 and 1

The Defence Position:

[96] Mr. Tong argues that Ali's apparent offer to transfer firearms to G.L. is a joke and not "an offer to traffic in a firearm that is intended to be taken as a genuine offer by the recipient". Mr. Tong further contends that even if the Court finds some evidence that the predicate offence of offering is made out, there is no evidence that it was done for the benefit of, at the direction of or in association with a criminal organization because Ali's stated intention on the call was to deal only with G.L. and not the YBK. In fact, Mr. Tong says that the only reasonable interpretation of Session 249 is that M.A. intends to break away from the group.

[97] Mr. Tong's submission that the only inference is that the "offer" is a joke is not born out when the whole of the evidence is considered. Althought M.A.M.A. and G.L. each try to paint the picture that they are more successful than the other; M.A. refers to G.L. as an idiot in the call and the call is cut off at the end, there is evidence from which a jury could reasonably infer that M.A. intended his offer to give G.L. a firearm to be taken as a serious and genuine offer by G.L., including:

a) M.A. speaks the words "I'm gonna homage you my mini fourteen wood grain and chrome with the scope". He says he will give G.L. three things right now. In addition to the mini fourteen, he says that he will give G.L. the "tray" and a "twenty one shot Duey". He says "they're here" and what G.L. has to do is "bring it to the Dizidie first", (Oliver says this is a code name for Toronto). G.L. responds that he is going to make his "girl" come for it.

b) Although G.L. made M.A. aware that they had at least five firearms as of October 21, 2011, it does not follow that G.L. or the YBK did not need any more firearms by November 24, 2011. There is evidence that YBK's firearms had been depleted between October 21 and November 24, 2001. Gardner makes a reference to losing 3 or 4 "girls", (possibly firearms) to Abdirashid on November 15 (Session 2181). Further, on October 26 and 27, 2011, a search warrant was executed at 3250 Keele Street, apartment 101 which was the "safe house" or "the trench" for members of the YBK. At this time, police seized a fully loaded firearm hidden in the ceiling tiles just outside apartment 101. (K.D. guilty plea, page 16). From his discussions with G.L. in Session 1495, M.A. is well aware of G.L.'s and other YBK members' heightened need for operable firearms.

c) M.A. is using coded language to refer to the firearm in this call.

d) Further, when G.L. talks about the "trap phone" (phone used for drug deals) he is using right now, M.A. says that he heard it was in "Hollywood's name. Hulk Hogan". This a further indication that M.A. knows what is happening in the Toronto area even though he in not physically in the area.

[98] Despite Mr. Tong's able argument, I cannot agree that the offer being a joke is the only inference. It is one possible interpretation of the words spoken, but that will be for the jury to decide.

[99] In my view, it is of no event that the Crown has not proved through voice identification evidence that the person on the other end of the phone is G.L.. M.A. is calling telephone number 289 933-3401 and announcing YBK at the outset of the call. The person answering responds to being called G and says he is in the trench using the trap phone. (It is noteworthy that G.L.'s first name begins with a "G"). The parties are familiar with Dog (Gardner) and the business of drug production and sales. I am satisfied that there is some evidence that M.A. is making an offer to transfer a firearm to a person who is either a member or an associate of the YBK in the Toronto area.

[100] Mr. Tong also argues that Ali's words from lines 377-389 show that he did not have the intention to commit the offence for the benefit of, at the direction of or in association with YBK. He particularly relies on Ali's words:

"Come out here [to the west]. I got you B. I only got you. Fuck the rest of the young bucks....We only deal with ...L-P and Wassi and then fuck the rest of them. Fuck Maury too."

[101] Again, Mr. Tong's argument presents one possible interpretation. Other reasonable interpretations are also possible. There is some evidence that Wassi (K.SP.) is associated with the YBK. His photograph is found in S.W.'s cell phone seized on October 2, 2011and is entitled "Jay()()I WANT ALL DA MONEY!=).FREE UPdddd.jpg". There is an abundance of evidence that Maury (S.W.) is a member of YBK, but also many indicia that various members were unhappy with his behaviour. Apparently, he was sent back to Toronto after causing problems out west and some members blamed Rookwood's death on him (i.e. Session 2332).

[102] D.C. Oliver testified that sometimes there is a younger set within street gangs. In session 2005 Gardner and Tomlinson talk extensively about a set of younger "young bucks". One reasonable interpretation of M.A. saying "fuck the rest of the young bucks" is that he wants to break away from some of the younger set.

[103] In any event, as at December 3, 2011, M.A. is calling and wants still wants to talk to Gardner (Session 8191). Further, after the November 24, 2011 call, G.L. continues to talk to S.W. (i.e. Session 7269) and G.L. continues to complain to Gardner about S.W.'s behaviour (i.e. Session 7276). Accordingly, while the intercepts reveal that there may be specific loyalties and some evolving disputes between various parties, a reasonable jury could infer that these did not diminish the core existence of the group, and, indeed, did not diminish Ali's offer to "homage" a firearm to a fellow YBK member or associate who is working in the new trench.

[104] I have no difficulty concluding that reasonable jury could find that M.A. offered to transfer a firearm knowing he was not authorized to do so and that he did so for the benefit of or in association with a criminal organization. Not only is Ali's membership in the YBK an important factor, but there is also evidence from which a jury could infer that he knows the person to whom he is offering the firearm is setting up a new trap for the YBK and he is offering the firearm for the purpose of encouragement and support in that endeavour. There are reasonable inferences that M.A. knew that the group he associated with had as its main criminal purpose, the facilitation or commission of the offences of drug and firearms trafficking and knowledge that this activity would likely result in a direct or indirect benefit to the group or any person in the group. There will be committals on Counts 1 and 34.

(d) Counts 35 and 36

[105] The Crown also alleges that Session 249 proves that M.A. possessed a firearm. Count 35 alleges that the possession was for the purpose of offering it to another contrary to s. 100 of the Code. Count 36 now alleges possession of a firearm knowing that he was not the holder of a licence and a registration certificate contrary to s.92(1) of the Code.

[106] Officer Press opined that the "mini14" M.A. says he has "here", refers to a Ruger Model: Mini 14, semi-automatic, 223 REM calibre rifle that comes with wood grain and chrome-like finishes. This is a reasonable conclusion based on the context of the call and Officer Press's expertise.

[107] Mr. Tong submits that the Crown has not adduced sufficient evidence that the firearm was operational as is required for the possession counts. Officer Press candidly conceded that he had no way to determine if the firearms referred to by M.A. were operational. Mr. Tong highlights that resemblance to a known firearm does lead to the inference that the described firearm is operational.

[108] The law is set out by Justice Pringle in R. v. Willis, 2007 ONCJ 605, [2007] O.J. No. 5691 at paras. 31-32:

31 ... [W]here a firearm is not recovered, the case law requires more than just a reference in conversation to a gun, or a mere depiction of one in an image, in order to come to a reasonable conclusion that the gun is an operable firearm. Other factors such as the circumstances of its use, its description, the conversation or images surrounding its possession, or any expert evidence tendered must permit a jury to conclude beyond a reasonable doubt that it was a real firearm. In short, the totality of the circumstances and evidence must be taken into account. In this regard, I have considered the following cases provided by the Crown and defence: R. v. Charbonneau, [2004] O.J. No. 1503 C.A.); R. v. Richards, [2001] O.J. No. 2286 (C.A.); R. v. Abdullah, [2006] O.J. No. 3936 (C.A.); R. v. Carlson, [2002] O.J. No. 1884 (C.A.); R. v. Fakomi et al. (unreported decision of Hackett J., Ontario Court of Justice, released February 28, 2007) and upheld on review by Trafford J. in R. v. Campbell, [2007] O.J. No. 2578 (S.C.J.); R. v. Wilson, [2006] O.J. No. 3065 (O.C.J., Lipson J.); R. v. Mills, [2001] O.J. No. 3675 (S.C.J.); R. v. Guzzo, [2007] O.J. No. 3306 (S.C.J.); R. v. Sibbeston, [1991] N.W.T.J. No. 85 (S.C.); and R. v. Osiowy, [1997] A.J. No. 98 (C.A.).

32 I agree with Lipson J. in the Wilson case that the principle which emerges from the case law was succinctly stated by Eberhard J. in R. v. Mills when he said:

Where all the circumstances lead to an inference that the item looking like a firearm is a firearm, it is open to the trier of fact to draw such an inference."

[109] In this case, the evidence upon which a jury could conclude that the gun described by M.A. was a real firearm, including:

a) I have already concluded that there is some evidence that the offer to transfer the mini-14 to G.L. and/or a YBK member or associate in the Toronto area was serious.

b) M.A. was informed of and had some understanding of the situation in the Toronto area, including the circumstances of Rookwood's murder, where, clearly one or more operable guns were used. He understood, from his conversation with G.L. in Session 1495, how important it was for YBK members to be armed effectively in the trenches (i.e. lines 1946-1981).

c) It is open to the jury to find that "homaging" a fellow gang member, who is actively engaged in the drug dealing business, one or more firearms is a show of respect only if the firearm is an operable one. Notwithstanding his use of the term "idiot" in reference to G.L., it is open to the jury to find that M.A. is treating G.L. as a friend, trusted associate and fellow gang member in this call. Similarly, it is open to the jury to conclude that it would be disrespectful of M.A. to homage a fellow gang member an inoperable firearm, particularly after what M.A. would believe was a bad experience of YBK members at Rookwood's shooting.

d) All three experts testified that street gangs who are dealing drugs use guns as an integral part of their business. The intercepts establish that M.A. is clearly involved in the drug dealing business in connection with the YBK.

e) There is evidence that YBK members shared firearms amongst themselves and there is evidence that the modus operandi of the YBK is to use real firearms. The use of operable firearms by YBK members is established in part by: (1) S.W.'s guilty plea admitting his possession of firearms in association with YBK; (2) K.D.'s guilty plea admitting to discharging a firearm at the Wilson subway station; and (3) the fact that a fully loaded firearm was found in ceiling tiles just outside of the apartment at 3250 Keele Street where G.L., S.W. and K.D. were arrested on October 26, 2011 (K.D. plea, page 16).

[110] Accordingly, when the whole of the evidence is considered, I find that there is some evidence upon which a reasonable jury could conclude that the mini-14 firearm (Ruger Model: Mini 14, semi-automatic, 223 REM calibre rifle) was operable and the M.A. had possession of it on November 24, 2011. The fact that he offered it to G.L. and/or a YBK member or associate in the Toronto area is some evidence that he possessed it for the purpose of offering it to another. M.A. will be committed to stand trial on the charge of possession for the purpose of offering it to a person contrary to s. 100.

[111] There is no evidence that the Ruger Model: Mini 14, semi-automatic, 223 REM calibre rifle or any other alleged firearm M.A. possessed on November 24, 2011 was a prohibited or restricted firearm. Mr. Tong concedes that otherwise, if there is sufficient evidence of possession, there is also sufficient evidence that M.A. did not have a licence or registration certificate. Accordingly, M.A. will be committed to stand trial on the charge of possession of a firearm knowing he was not the holder of a licence under which he may possess it and a registration certificate for the firearm contrary to s. 92(1) of the Criminal Code.

(e) Offences committed for the benefit of or in association with YBK

[112] For the reasons already stated in paragraph 104, Ali's offer to transfer was committed in association with or for the benefit of the YBK. Similarly, as a YBK member who is engaged in drug trafficking out west, Ali's possession of the firearm is sufficiently linked to the YBK, especially in light of the evidence of the mobility of gang members and their guns. Although session 1495 precedes the November 24 possession, it is relevant to the level of knowledge that M.A. has about the YBK operations in Ontario and elsewhere. Some of the evidence from 1495 includes:

i) On October 21, in Session 1495, M.A. (aka "L."), Abdirashid (aka "PI") and Hassan (aka "JB") talk to G.L. (aka "G") and K. (aka "Castro"). Officer Press stated that this call is one of the most detailed calls containing street, coded and covert language including various technical references to firearms and ammunition.

ii) In this call, with Abdirashid, M.A. and Hassan coming on the line at different points, G.L. gives details of his experience at Chris Rookwood's homicide that occurred six days earlier on October 15. These details, according to G.L. include that, "the dogs were there", Rookwood got a large calibre bullet or bullet from a rifle to the chest; there was blood everywhere, the walls were ripped apart and the apartment looked like a battlefield; that "H" fired two shots from a 40 calibre (the ordie) and it sounded like a 22 (a deuce) compared to what the shooters had. The T.V. and the walls were shot up (Swiss cheesed) and they ran all the way to the Hood with their guns out.

iii) M.A. gets on the line (line 866) and says that he is coming on Monday or Tuesday, confirming that "you guys", being G.L. and K., are in the H (Hamilton). M.A. says that he expects to be in "in the dizzy" for about one month. K. and G.L. tell M.A. that they are just about to do "one little eat food" (rob someone for $4,000; cush and some jewellery). G.L. then tells M.A. about all of the firearms they have, that they are "five up" (have five guns), "big maxers" (large firearms). G.L. tells M.A. that when he gets back to the trenches he is going to line up all the guns in the residence and take a video. When M.A. asks if it is just two of them in the trenches now, G.L. answers:

"No, no, not right now....When we're in the trenches we're like, fifteen deep. And ever since fucking...that happened to family we don't even knock out. Every single sweetie [gun] is like your pillow and its right beside you. Any knock on the door; everybody lines up door like eight up"

iv) G.L. discusses specific guns and locations of guns with different participants on the call. Officer Press confirmed in his Report and viva voce evidence that this call contained multiple references to G.L.'s knowledge of and access to specific firearms and how there are guns ("sweeties") everywhere since Rookwood's murder ("that happen to family").

v) M.A. also talks to K. (starting at line 1582) about a young associate named Kusi who Gardner (aka Dog) sent up to get a 22 ("little deuce deuce") and a 9 mm ("gleaze nine") on October 15 and how he has not returned yet and may have been arrested. D.C. Spriggs testified that Kusi, in fact was arrested at a Greyhound bus depot in possession of firearms and has plead guilty.

IV. Kevin Duro

[113] The counts in issue following the evidence called at the preliminary inquiry are Counts 6 and 51-56.

(a) Count 6 – Oct. 15, 2011 – Possess Firearm – s. 92(1)

[114] The possession charge in Count 6 is based on a series of intercepts involving Duro and M.M. (not the accused before this court) on October 15, 2011 (Sessions 1223-1244). The first call is made approximately half an hour after Rookwood is shot. Duro is looking for something that is near a creek in a container and M.M. is trying to give Duro directions to find it. After approximately thirty minutes of hunting, finally Duro finds it and declares, "Oh fuck yeah, I found it, I found it, I found it".

[115] The coded terms used in the calls is "S-P". Officer Press testified that, based on the urgency expressed in the calls, the fact that Rookwood had just been shot and in light of language used in calls for Counts 1 and 2, he believed that "S-P" was a firearm. I find that based on the admissible evidence against Duro, a jury could reasonably find the item sought and found, was a firearm.

[116] Further, the jury could also find that the firearm was operable based on both the immediate context of the calls coming directly on the heels of the Rookwood shooting and based on the modus operandi of the YBK, that is, to use operable firearms. Some of the evidence establishing that the YBK used real firearms is: (1) S.W.'s guilty plea admitting his possession of firearms in association with YBK; (2) K.D.'s guilty plea admitting to discharging a firearm at the Wilson subway station; and (3) the fact that a fully loaded firearm was found in ceiling tiles just outside of the apartment at 3250 Keele Street where G.L., S.W. and K.D. were arrested on October 26, 2011 (from K.D. plea, page 16).

(b) Counts 51-56- December 13, 2011

[117] Counts 51-56 arise from events on take-down day, December 13, 2011 at 2000 Sheppard Avenue West in Toronto. The Crown alleges that Kevin DURO and Ginelle MCLEAN jointly possessed and carelessly handled and stored a loaded 9mm Smith & Wesson semi-automatic handgun, ammunition and a prohibited device. Ginelle McLean concedes committal on these counts. Duro does not.

[118] The loaded prohibited weapon, ammunition and device were found in a black computer bag in Kenisha McLeod's bedroom in apartment #707 at 2000 Sheppard Avenue West immediately after Duro was arrested outside of the apartment building at ground level and shortly after Ginelle McLean was observed by police to leave her apartment #412 carrying an orange bag up to apartment #707.

[119] The Crown's case for possession against Duro is one of constructive and/or joint possession.

The Evidence

[120] The evidence before me is that Duro is a member of the YBK, a criminal organization involved in various weapons and drug offences. There is ample evidence suggesting that YBK members hide and share guns with one another, and lend them to each other as need arises. Numerous intercepts have YBK members admitting to possessing firearms and discussing the transfer of firearms. Duro is a participant in some of these calls. Counsel concedes that there is some evidence that, on October 12, 2011, Duro possessed a firearm. Specifically, Officer Press believed the "neenas" Duro admits to possessing in Session 1557, to be a 9mm calibre firearm.

[121] The morning of December 13, 2011 was "take-down day" for Project Marvel. Many of the accused before this Court were awoken at about 5:00 a.m. on that day by ETF officers making dynamic entries into their residences. Police arrested many and executed warrants searching suspects residences for guns and drugs.

[122] Police surveillance was conducted on December 12 in anticipation of the searches and arrests to be made on December 13. On December 12, police officers followed Gardner, who was joined by Wallace and Duro. They travelled in a rental car, a black Senata plate #BKZM 383, driven by Duro. Through the evening, Gardner, Duro and Wallace stopped at various locations in the neighbourhood, went to Hamilton in the area of 221 Melvin, made more stops and then finally came back to 2360 Weston Road. At 12:07 a.m. on December 13, 2011, Duro drove away from 2360 Weston Road, alone, in the black Senata.

[123] After other suspects had been arrested in the early morning hours of December 13, Duro was intercepted on a telephone call at 8:15 a.m. (Session 561) in which he talks to an unknown male about the "big raids". Duro tells the male that he thinks they kicked down his mother's door, they "even went O-T to look for some o' the dogs" and the unknown male asks if "Kayla" is good, because they raided her man, Nigel (Jospeh-Palmer's) house. When Duro says he is fearful right now, the unknown male says "either you can just keep low dog or you just leave dog". Duro says he is going to try to leave right now and then says "But no, I'm at a ...ping me on the BB just now okay?"

[124] The police were in the parking lot of 2000 Sheppard Avenue West before 8:00 a.m.. Part of the team who had been involved in the arrest of Gardner at 2360 Weston Road on the morning of December 13, departed for 2000 Sheppard Avenue West at 7:49 a.m. The plain clothed officers arrived at 2000 Sheppard at approximately 7: 51 a.m.. They immediately saw the black Senata with plate #BKZM383 that Duro had been driving at 12:07 a.m, parked in the parking lot visible to apartments with south facing windows, including #412 (i.e. #412 window and balcony face south into the parking lot). D.C. Clarke testified that upon arriving at 2000 Sheppard, he first went up to the 4 th floor to orient apartment #412. Then he came back down to the parking lot where he watched the window of apartment #412. At 8:45 a.m. he saw the blinds move as though someone was peering out the window. At this point he alone went up to the 4 th floor where he kept watch over apartment #412 from the hallway. At 9:13 a.m. he saw a female come out of #412 and walk eastbound very quickly into the east stairwell. She was carrying the reddish/orange sports bag identified in Exhibit 3-3, Tab 25, #8 (that was later determined to contain Ginelle McLean's identification). D.C. Clarke hurried to the 7 th floor where he saw McLean knock and then enter apartment #707. (Apartment 707 is on the most easterly side of the building and its balcony faces east.) Once she was in the unit, D.C. Clarke went back to the parking lot, informed Dtv. Sukurman of the development, and then stayed in the parking lot maintaining surveillance on the black Senata from his own unmarked vehicle. He believes he was back down in the parking lot at approximately 9:17 a.m.

[125] Kemeisha McLeod testified that she resides in apartment #707. Ginelle McLean is her cousin and she resides in apartment #412 at 2000 Sheppard. Ms. McLeod acquired a phone in her own name for Ginelle, such that the bill comes to Ms. McLean's address, although Ginelle pays the bill. Ginelle McLean has a boyfriend named "Kevin."

[126] Ms. McLeod testified that at approximately 8:34 a.m. on December 13, 2011 Ginelle McLean sent her text messages asking if she was awake and then saying that she is coming up. The first time Ginelle McLean came into #707 that morning (possibly 5 – 30 minutes after the texts) she was carrying a black computer bag that Ms. McLeod had never seen before. Ginelle McLean put the black bag down in Ms. McLeod's bedroom and said she was charging her phone. Ms. McLeod showed Ginelle McLean where her charger was beside her bed. Then Ms. McLeod left the bedroom, leaving Ginelle McLean talking on her phone in the bedroom.

[127] Ginelle McLean left apartment #707 and then returned a second time, this time carrying her colourful orange bag that she often uses. Ms. McLeod was unsure of how much time Ginelle McLean spent in #707 the first time and how much time passed before she came back a second time. When she came up the second time, Ginelle McLean knocked on the door and Ms. McLeod let her in. Ginelle McLean told Ms. McLeod that she was going to leave again and asked Ms. McLeod to leave the door open. Ms. McLeod gave Ginelle McLean a key and told her to lock the door and use the key when she returned.

[128] Ginelle McLean was in apartment #707 when the police arrived at the door at approximately 9:58 a.m. A search of Ms. McLeod's bedroom revealed two bags on the floor between the bed and the wall. The orange sports bag contained identification in the name of Ginelle McLean. The black computer bag contained three boxes of ammunition, a 9 mm Smith & Wesson handgun in a sock, a magazine with a 16 round capacity and a gun cleaning kit.

[129] At 9:48 a.m. Officer Younger observed Kevin Duro exiting 2000 Sheppard via the east stairwell. Duro was wearing the same clothes he was seen wearing on December 12. He was arrested as he hurriedly approached the parked black Senata, (plate #BKZM 383) at 9:49 a.m..

[130] Apartments #412 and #707 were both searched. When officers entered apartment #412 at approximately 10:30 a.m., there were two people (Mr. Read and Mrs Teresa McLean) sleeping in bedroom #2 and there were no occupants of bedroom #1. In a search of bedroom #1 later that day, police found numerous documents in the name of Kevin Duro (or linked to him). Duro's identification was found in a wallet and some full sized documents were found loose in the room, including:

a) Social Insurance card, Birth Certificate, Health Card and Hospital cards in the name of Kevin Duro;

b) Notice of Reinstatement of Driver's Licence for Kevin Duro issued July 13, 2011 with expiry date of September 11, 2011;

c) Letter addressed to Kevin Duro at 603-4500 Jane Street regarding Ontario Drug Benefit Program ("Trillium") dated March 7, 2011;

d) Motion material for an extension of time to pay a fine dated April 7, 2011 and a receipt for payment of a fine dated July 11, 2011 in the name of Kevin Duro

e) dated documents including immunization form dated Dec 20, 2001 and June 17 2002; grade 10 student identification card; high school CPR card; Temporary Driver's Licence dated January 5, 2007; and

g) a letter with associated envelope addressed to Ginell Mclean at 412-2000 Sheppard Ave. West from Kevin Duro, Maplehurst, Milton. The letter is entitled, Dear Babes and is signed "Plaz", an admitted nickname of Duro.

[131] Except for the envelope from Maplehurst, where an address is seen on the documents naming Kevin Duro, his address is noted as 630-4500 Jane Street. No other evidence, such as clothing or items of property connected to Duro, was presented to connect Duro to Unit #412.

[132] The loaded gun that was recovered from #707 was identified as a Smith & Wesson; SW9VE Sigma, 9mm Luger, serial number DUS4295, with a barrel length of 102 mm. It was operational and is a prohibited firearm. The 17 cartridges of .9 mm calibre center-fire cartridges found in the firearm and magazine constitute "ammunition" as defined in section 84 of the Code, as does the ammunition found in boxes (.9 mm, .40mm and .45 mm calibre). The magazine was a 16 shot high capacity magazine and is a prohibited device. [Certificates of Analysis, Bruce FINN].

[133] The gun and related items were sent for forensic testing. The only forensic evidence before me is that G.L.'s fingerprint was found on the gun cleaning kit that was found with the firearm and ammunition.

The Crown's Theory

[134] The Crown's theory is that Duro was residing with Ginelle McLean in apartment #412 at 2000 Sheppard Avenue on the morning of December 13, 2011 and that they were in joint possession of the black computer bag and its contents. The Crown alleges that Duro instructed MCLEAN to transport the black computer bag from apartment #412 to apartment #707 in an effort to hide the bag's contents should police come looking for Duro at her apartment. Accordingly, the Crown's theory is that Kevin DURO jointly and constructively possessed the contents of the black HP bag at the relevant time.

The Applicable Law

[135] Justice Hill helpfully summarized the law of possession in R. v. Anderson-Wilson, 2010 ONSC 489, [2010] O.J. No. 377, where he stated at paras. 68 – 73:

68 Proof of possession requires the Crown to establish the two distinct elements of knowledge and control: R. v. Robinson, 2009 ONCA 626 at para. 22; R. v. Chalk (2007), 2007 ONCA 815, 227 C.C.C. (3d) 141 (Ont.C.A.) at para. 19. Control refers to power or authority over the item whether exercised or not: R. v. Mohamad (2004), 182 C.C.C. (3d) 97 (Ont.C.A.) at para. 60-1; R. v. Savory (1996), 94 O.A.C. 318 (C.A.) at para. 7 (leave to appeal refused [1997] S.C.C.A. No. 189, [2007] 2 S.C.R. xv); R. v. Chalk, supra, at para. 19. Criminal liability for voluntary occupancy in a vehicle knowing there is a weapon in the conveyance does not, unlike a possession charge, require proof of control: R. v. Swaby (2001), 54 O.R. (3d) 577 (C.A.) at para. 17-20; Criminal Code, s. 94(1).

69 In order to prove possession, the prosecution may establish actual or personal possession by an accused or possession as described in s. 4(3)(a)(i)(ii) of the Code. In other cases, the Crown may seek to prove constructive or attributed possession as defined in s. 4(3)(b) of the Code - "where one of two or more persons, with the knowledge and consent of the rest, has the thing in his custody or possession, it shall be deemed to be in the custody and possession of each of them". In order to constitute joint possession pursuant to s. 4(3)(b) there must be knowledge, consent and a measure of control on the part of the person deemed to be in possession: R. v. Terrence, [1983] 1 S.C.R. 357 at 364.

70 Where two or more offenders are acting in concert respecting a firearms crime, "the usual rules of complicity apply": R. v. Steele, 2007 SCC 36, [2007] 3 S.C.R. 3 at para. 33. Liability for possession may be established by proof of partyship pursuant to s. 21(1) of the Code: R. v. Piaskoski (1979), 52 C.C.C. (2d) 316 (Ont.C.A.) at 318. Possession of a loaded firearm may also be established through reliance on s. 21(2) of the Code - for example, proof that persons formed an intention in common to rob someone and that an individual accused was "a party to the firearms offences because he knew or ought to have known" that one of the group would have a gun: R. v. Chang, 2009 ONCA 564 at para. 2-4; see also R. v. Chualna (2003), 2003 BCCA 650, 181 C.C.C. (3d) 192 (B.C.C.A.) at para. 26-39.

71 In crimes of unlawful possession, it is "not necessary for the prosecution to prove the required knowledge by direct evidence ... it could be inferred from the surrounding circumstances": R. v. Aiello (1978), 38 C.C.C. (2d) 485 (Ont.C.A.) at 488 (aff'd, [1979] 2 S.C.R. 15); see also R. v. Pham (2005), 203 C.C.C. (3d) 326 (Ont.C.A.) at para. 18 (aff'd 2006 SCC 26, [2006] 1 S.C.R. 940); R. v. Anderson, [1995] B.C.J. No. 2655 (C.A.) at para. 15-16. Frequently then, such cases are proven by circumstantial evidence: see R. v. Meggo, [1998] O.J. No. 2564 (C.A.) at para. 1. This includes proof of unlawful possession of a firearm: R. v. M.A., 2008 ONCA 741 at para. 3-7.

72 The essential component of self-instruction on circumstantial evidence is that the trier of fact must be satisfied that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Griffin; R. v. Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.) at para. 33. Circumstantial evidence must be viewed as a whole and not each piece individually: R. v. Warkentin et al. (1976), 30 C.C.C. (2d) 1 (S.C.C.) at 20. "[T]he mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt": R. v. Griffin; R. v. Harris, supra, at para. 34.

73 The Crown may seek to establish the existence of a fact in issue by submitting that an inference may reasonably and circumstantially be drawn from the primary facts - there exists an inferential gap between the primary fact and the fact to be proved: R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.) at 31-2; R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.) at 172-3. Whether the inference is a reasonable one to draw usually involves an application of "human experience and common sense" (R. v. Figueroa et al., 2008 ONCA 106, [2008] O.J. No. 517 (C.A.) at para. 33; U.S.A. v. Huynh (2005), 200 C.C.C. (3d) 305 (Ont.C.A.) at 307). Circumstantial inferences are ones which "can be reasonably and logically drawn from a fact or group of facts established by the evidence": R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont.C.A.) at 209. A trier of fact "cannot be invited to draw speculative or unreasonable inferences": R. v. Figueroa et al., at para. 35, 42. Most cases "will involve hiatuses in the evidence which can be filled only by inference": Lameman v. Canada (Attorney General), 2006 ABCA 392, [2006] A.J. No. 1603 (C.A.) at para. 87. "The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess": U.S.A. v. Huynh, at 307.

[136] In this case it is appropriate to take heed of the comments and cautions about speculation set out by Justice Ducharme in R. v. Munoz (2006), 205 C.C.C. (3d) 70 (SCJ) where he stated at paras. 29 - 31:

29 The courts have repeatedly cautioned against confusing a reasonable inference with mere speculation. Where an inferential gap exists, it can only be properly overcome by evidence. This point was powerfully made by Doherty J.A. in R. v. Huynh (2005), 200 C.C.C. (3d) 305 (Ont. C.A.). This case involved an appeal of the committal for extradition of an individual on charges of conspiracy and money laundering relating to the designated offence of trafficking in a controlled substance. The material relied on in support of the extradition justified the inference that the appellant had conspired with others to covertly transfer very large amounts of cash from the United States to Canada. He did so by concealing the money in a secret compartment fashioned in the gas tank of his vehicle. While there was no direct evidence as to the source of the cash, the Crown argued that it could be reasonably inferred that the cash was the proceeds of trafficking in a controlled substance based on: (a) the amount of cash involved; (b) the frequency with which cash was being transferred from the United States to Canada; (c) the manner of concealment of the cash suggesting a level of sophistication and a commercial operation; (d) the coded conversations of participants and their obvious concerns about surveillance; and (e) the anticipated evidence of a DEA officer that the modus operandi was consistent with the activities of drug dealers. In rejecting the Crown's contention, Doherty J.A. reasoned as follows:

The material identified by the respondent certainly permits the inference that the cash was the proceeds of some illicit activity. Drug trafficking comes readily to mind as one possible source. The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess. The gap between the inference that the cash was the proceeds of illicit activity and the further inference that the illicit activity was trafficking in a controlled substance can only be bridged by evidence. The trier of fact will assess that evidence in the light of common sense and human experience, but neither are a substitute for evidence. The requesting state has not offered any evidence as to the source of the funds even though its material indicates that one of the parties to this conspiracy is cooperating with the police. ... I do not think there is anything in the material that would reasonably permit a trier of fact to infer that the cash was the proceeds of drug trafficking and not some other illicit activity. [Emphasis added]

30 It is difficult, if not impossible, to define with any precision a bright line distinction between the drawing of reasonable inferences and mere speculation. However, in this regard I would adopt the language of Aldisert J. in Tose v. First Pennsylvania Bank, N.A. 648 F. 2d 879, 895 (3rd Cir.), cert. denied, 454 U.S. 893 (1981) at 895:

The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncracies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts. As the Supreme Court has stated, "the essential requirement is that mere speculation be not allowed to do duty for probative facts after making due allowance for all reasonably possible inferences favoring the party whose case is attacked." Galloway v. United States, 319 U.S. 372, 395, 63 S. Ct. 1077, 1089, 87 L. Ed. 1458 (1943).

31 However, it must be emphasized that this requirement of "logical probability" or "reasonable probability" does not mean that the only "reasonable" inferences that can be drawn are the most obvious or the most easily drawn. This was explicitly rejected in R. v. Katwaru, supra, note 5 per Moldaver J.A. at 444:

[I]n the course of his instructions on the law relating to circumstantial evidence, the trial judge told the jury on numerous occasions that they could infer a fact from established facts but only if the inference flowed "easily and logically from [the] other established facts".

The appellant submits, correctly in my view, that the trial judge erred by inserting the word "easily" into the equation. In order to infer a fact from established facts, all that is required is that the inference be reasonable and logical. The fact that an inference may flow less than easily does not mean that it cannot be drawn. To hold otherwise would lead to the untenable conclusion that a difficult inference could never be reasonable and logical. [Emphasis added]

Rather, the requirement of reasonable or logical probability is meant to underscore that the drawing of inferences is not a process of subjective imagination, but rather is one of rational explication. Supposition or conjecture is no substitute for evidence and cannot be relied upon as the basis for a reasonably drawn inference. Therefore, it is not enough simply to create a hypothetical narrative that, however speculative, could possibly link the primary fact or facts to the inference or inferences sought to be drawn. As Fairgrieve J. noted in R. v. Ruiz, [2000] O.J. No. 2713 (C.J.) at para. 3, "Simply because a possibility cannot be excluded does not necessarily mean that a reasonable trier could be justified in reaching such a conclusion on the evidence." The inference must be one that can be reasonably and logically drawn and, even where difficult; it cannot depend on speculation or conjecture, rather than evidence, to bridge any inferential gaps. [emphasis added]

The Crown's Position

[137] The Crown urges the Court to draw the inferences of Duro's knowledge and control of the firearm and related items based on the following totality of circumstances:

i) that Duro and McLean are a couple who shared apartment unit 412;

ii) that Duro was in unit #412 at 2000 Sheppard on December 13 based on (1) his romantic relationship with McLean together with the fact that the police last saw him leave the boys at 12:07 a.m. and they next saw his car parked in front of 2000 Sheppard at 7:49 a.m.; (2) his personal papers of varying dates are evidence that he spent time in the apartment; and (3) his acknowledgement in the 8:15 a.m. phone call that he thinks his mother's house was raided too;

iii) McLean made 2 or 3 trips up to #707, including bringing the black bag containing the gun and ammunition into apt. 707. That McLean was seen leaving unit 412 and entering unit 707 with an orange bag that was soon found next to the black bag in apt. 707 and that orange bag had her identification in it;

iv) D.C. Clarke saw someone peering through the blinds of #412 at approximately 8:45 a.m.;

v) that Duro exited 2000 Sheppard from the east stairs at ground level at 9:48 a.m.;

vi) given Duro's involvement in gang activities, from the sequence of calls (i.e. his call at 8:15, then McLean's texts to Ms. McLeod,) a jury could infer that Duro had knowledge of the firearm because he knows the police are looking for him and he knows the raids are imminent;

vii) G.L.'s fingerprint was found on the lid of the gun cleaning kit. G.L. is an established YBK member with whom Duro has had contact;

viii) The Crown also says that the fact that Duro admits to possessing a "neenas" (Press says this is common coded language for a 9mm gun) on October 12, 2011 in Session 1557 is further circumstantial proof that he had possession of the Smith & Wesson; SW9VE Sigma, 9mm Luger, serial number DUS4295 that was found in apartment # 707.

Findings

[138] First, the fact that Duro admits to possessing a 9 mm calibre gun on October 12, 2011 does not logically lead to the inference that he possessed the particular Smith & Wesson; SW9VE Sigma, 9mm Luger, bearing serial number DUS4295, found on December 13, 2011. The two month gap, and more importantly, the range and number of 9mm calibre firearms that exist make this an exercise in speculation. Similarly, the fact that he is heard on wiretaps discussing the possession and exchange of firearms amongst YBK members does not assist in determining whether he had personal possession or knowledge and control over the particular 9mm Smith and Wesson found in Apt. 707 on December 13, 2011.

[139] There is no evidence whatsoever that Ginelle McLean is in any way associated with the YBK or its weapon-sharing behaviours. There were no wiretaps introduced in which Ginelle McLean participated. A jury might find that McLean and Duro had a relationship, even a current relationship, based on Ms. McLeod's evidence, but there is not a scintilla of evidence that McLean and Duro spoke to each other on December 13 or had any contact with each other on that date. There is no evidence of habit or any indication that Duro had asked McLean to hide guns for him in the past. Although Duro clearly expresses his intent to flee in the 8:15 a.m. call, there is no expression of an intent to move a firearm. He is under surveillance yet there is no wiretap of Duro telling anyone, let alone Ms McLean, about an intention to move a firearm.

[140] Based on the personal documents found in the wallet, a jury could find that, at some point in time, Duro was in apartment 412. However, he is never seen entering or exiting #412 at any time on December 13, notwithstanding the surveillance. In any event, there is simply no evidence linking the gun and ammunition to apartment #412. There is no evidence that the gun was inside unit #412.

[141] The fact of an undefined boyfriend/girlfriend relationship with McLean and Duro's presence on the ground level of 2000 Sheppard at 9:48 a.m. on December 13, 2011, does not reasonably support the inference that he had knowledge or control over the gun possessed by McLean. Officer Clarke testified that the 2000 Sheppard apartment building has approximately 16 or 17 floors with approximately 16 units per floor. Accordingly, the building has approximately 256 apartments, with many hallways and stairwells. The evidence about the nature of Ms. McLean's relationship with Duro is sparse, but there is no reason to believe that Duro is the only person with whom she associates.

[142] There are no forensics to show that Duro was ever in actual possession of this firearm and nothing connects him to the black bag. He is never seen carrying the black computer bag or the gun. In fact, there is no evidence as to where the black bag itself came from.

[143] The only forensics link G.L. to the gun. The general practice of sharing firearms amongst YBK members cannot reasonably support the inference that Duro had knowledge and control or actual possession of this specific firearm on December 13, 2011.

[144] Essentially, the Crown relies heavily on Duro's relationship with McLean and asks the court to speculate that (1) he entered apartment 412 on December 13 in actual possession of the 9mm gun and (2) told his girlfriend to hide it for him. There is simply no evidence that Duro instructed McLean to hide the firearm for him or that he possessed the Smith & Wesson SW9VE Sigma, 9mm Luger firearm on December 13, 2011.

[145] I have considered the totality of circumstances, as disclosed by evidence that is admissible against Duro, and find that the Crown's case, taken at its highest, does not reveal any evidence upon which a reasonable jury, properly instructed, could find Duro guilty of any of Counts 51 through 56 or the alternatives to counts 54 and 55. Duro will be discharged on those counts.

Ginelle McLean

[146] Ms. McLean conceded committal on all counts against her. Regarding the transfer counts, however, the evidence of McLean's movement of the firearm and ammunition on December 13, 2011 does not fall within the definition of transferring a firearm as defined by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32. She will be committed to stand trial on the alternative charges of careless handling and storage of a firearm and ammunition.

V. Turrell Tomlinson

[147] The Counts in issue for Tomlinson are Counts 1 - 4 and Count 12, possession of cocaine on December 13, 2011.

Counts 1 - 4

[148] The wiretap evidence before me in which Tomlinson is a participant dates from September 10 to October 4, 2011. Detective Constable Spriggs testified that the telephone line associated to Tomlinson became inactive in October 2011 and Tomlinson was arrested and detained for a period of time.

[149] The evidence before me does not disclose Tomlinson to be as integrated into the transactions involving other proved members of YBK as Gardner, Abdirashid, M.A., Duro, M.H., Mahadale, S.W. or G.L.. However, it would still be open to the jury to conclude that he is a member, although not necessary to do so, in order to find that he transferred and possessed firearms, and trafficked and entered a conspiracy to traffic controlled substances "for the benefit of, at the direction of, or in association with" the YBK.

[150] The long discussion between Tomlinson and Gardner on October 2, 2011 (Session 2005) is important evidence against Tomlinson in this regard. D.C. Oliver reviewed this call in detail and offered the opinion that it indicates that both Gardner and Tomlinson are members of the YBK. This is a reasonable interpretation of the call that has Tomlinson talking to Gardner about activities of the gang, including a recent robbery, gang culture and the need to share firearms (Lines 3590 - 3659), reference to the young bucks needing to be armed (Lines 1256-1269; 2136-2146) and connections to Buckeridge. Gardner talks about his programs and locations of other gang members. Both Tomlinson and Gardner discuss recruitment of new members and Tomlinson agrees that it is about loyalty and "worshiping the name". They both talk about boys from "our camp" in this context (Lines 3873-3948, 4510). The call provides some evidence that Tomlinson possesses a 40 calibre firearm and would have to go on the street to sell it if he wanted to get out West. (Lines 5446-5460).

[151] Cumulatively, Sessions 2005, 662, 976, 1174, 1295, 1856 and 2119 establish some evidence of the offences charged in Counts 1 - 4. First, a jury could reasonably conclude that Tomlinson was involved in street level distribution of crack cocaine, and that this was being conducted "in association with YBK" in light of the following evidence:

i) Session 2005 is evidence that Tomlinson has a strong and friendly association with Gardner, a member of YBK;

ii) Session 2005 provides some evidence that Tomlinson has indepth knowledge of the workings of YBK and its members and associates. D.C. Oliver testified that, although it is possible that one could talk about guns and drugs with a YBK member with whom you grew up and trusted, without being a member himself, he did not believe that this conversation was one that would be engaged in my non-members. Like this Court, Oliver considered Tomlinson's conversation regarding recruitment of YBK members to be an important indicator of Tomlinson's membership;

iii) From September 24 to October 4, 2011, there is evidence that Tomlinson is working directly with Buckeridge trafficking drugs, but from different locations (particularly, Sessions 1174, 1856 and 2119). During this time Tomlinson asks Buckeridge for information about people and activities in the "hood", in connection with drug deals. For instance, in Session 2119, when Buckeridge tells Tomlinson about a drug deal that flopped and that he is "hungry", Tomlinson asks, surprised, "you never saw Niguel". Buckeridge explains that he only talked to Niguel who says he is down and is "just getting a lot of consignment and fucking it up". There is some evidence that Niguel is Nigel Joseph-Palmer, who, in his guilty plea to trafficking in a controlled substance for the benefit of, at the direction of or in association with a criminal organization, admitted to being a member of the YBK. In Session 1856, there are further references to Palmer and other alleged associates of YBK in relation to drug dealing.

iv) Buckeridge continues to work with Gardner (Sessions 3200, 6514, 8330, 8483, 166) and associate with Osemwengie (Session 616) after October 4, 2011.

[152] A jury could also reasonably conclude that Tomlinson was transferring firearms and possessed a firearm "in association with the YBK" in light of the following evidence:

i) In addition to the reference to Tomlinson possessing his own gun in Session 2005, the jury could reasonably infer that Tomlinson and Buckeridge's references to "girlfriend" and "bitch" in Sessions 2005, 662, 976, 1295 are coded references to a firearm when the context of all of the calls is considered. On September 10, 2001 (Session 662), Buckeridge calls Tomlinson, who is in a different location, and tells him that he was just with "Rico" (Ricardo Dawson), "SK" (Jamal Wallace), and Omo (Osemwengie) - all alleged YBK associates and Osemwengie being a participant on part of Session 2005. Immediately, thereafter Tomlinson asks, "So you didn't see my girlfriend out there?" They talk about whether Rico is using it or not, and when Tomlinson says he is trying to come over and get it, Buckeridge says "let me fucking fuck her". Tomlinson agrees and says "Yeah, go ask him (Rico) for her" saying that he (Rico) should "have a next girl with him". They talk about how Rico "moves like a fish" so Tomlinson tells Buckeridge to ask him what is going on.

ii) On September 15, 2011(Session 976) Tomlinson tells Buckeridge that he is probably coming back today and asks: "You're still fucking that girl?" Buckeridge says "Which one? Yeah, obvi" and Tomlinson responds "Okay. Obviously".

iii) On September 23, 2011 (Session 1295), Tomlinson tells Buckeridge that he and others are in Toronto and on their way now to meet Buckeridge now. Tomlinson directs Buckeridge to "just be ready with your bitch". Buckeridge says he is ready and Tomlinson again says "Yeah, be ready with your bitch".

iv) On October 2, 2011 (Session 2005) Tomlinson tells Gardner that he just paid the "six bills" he owed to Buckeridge and Gardner implies that Buckeridge needs support. (Lines 1274-1303) Gardner confirms that Buckeridge is back out there on the block and is a "real nigger" and that "many of the dogs are all bros together", "it's not like we ...only have a clique of like five people" (Lines 2166-2273). Then, at lines 2484-2533, Tomlinson tells Gardner that Buckeridge needs a "girlfriend", "his own girl" because "when I'm out there, I'm trying to be out there too bro'." Gardner responds, saying, "the man just need to send a one-two change...send somebody to come get...I have a two-ers out here, you know." Tomlinson says, "yeah, I know." And Gardner responds, "I'm ready to sell anytime b". Tomlinson confirms that "Buck need to cop that one there."

v) On December 13, 2011 Buckeridge was arrested at 5:05 a.m. in his bedroom with a 40 calibre, fully loaded Smith & Wesson semi-automatic handgun under his mattress. Another firearm and ammunition, a Bushmaster semi-automatic rifle and magazine, were seized from under the bed in an adjoining bedroom.

[153] I find that there is evidence upon which the jury could find that the offences were committed in association with the YBK, as defined in Venerri. There is some evidence that Tomlinson is a participant in the YBK, including being involved in recruitment. Tomlinson associates with Gardner and Buckeridge in relation to firearms possession and trafficking. He associates with Buckeridge and other alleged YBK associates in relation to drug trafficking. There are reasonable inferences that he had the requisite intent for committal on Counts 1 – 4. In making this determination, I have not relied upon the evidence of a t-shirt with "R.I.P. My Nigga STACKZ" written in blue that was found in the basement bedroom at 23 Gosford, Unit 4.

[154] Tomlinson will be committed to stand trial on Counts 1 - 4.

Count 12: Possession of Cocaine

[155] On December 13, 2011 at approximately 5:00 a.m., Tomlinson was arrested and a search warrant was executed at 7013 Rexwood Road, Unit 154 in Mississauga. At the time of arrest, Tomlinson and a female were in the main floor bedroom. In the furnace room adjacent to this main floor bedroom, police found and seized 2.16 grams of crack cocaine. The cocaine was hidden on top of metal duct work wrapped in yellow plastic.

[156] Mr. Leslie argues, on behalf of Tomlinson, that there is no evidence of possession, primarily because there was also access to the furnace room from outside: there was a door coming from the garage and a door coming from the backyard. In other words, access through the bedroom in which Tomlinson was arrested was not the only way into the furnace room. Further the female was present in the bedroom as well. There is no evidence as to when the cocaine was placed in its hiding spot. Mr. Leslie argues that there is no evidence that Tomlinson had knowledge of this small amount of cocaine that was hidden in the furnace room.

[157] I disagree. A reasonable jury could find that Tomlinson had knowledge and control over the cocaine, and thus was in constructive possession of it, based the cumulative effect of the following circumstantial evidence:

i) The bedroom Tomlinson was arrested in had direct and exclusive interior access to the furnace room where the cocaine was hidden;

ii) Tomlinson's driver's licence bearing the address 7035Rexwood Road was found in the drawer of the side-table next to the bed in the bedroom in which Tomlinson was found, along with his Health Card and other everyday personal items such as nail clippers and skin products;

iii) No identification in any other person's name was found in the bedroom; and

iv) The cocaine was wrapped in distinctive yellow plastic that had been torn by hand. A strikingly similar piece of hand-torn yellow plastic was found in the very drawer Tomlinson's drivers licence and health card were located.

[158] Tomlinson is ordered to stand trial on Count 12.

CONCLUSION

[159] The accused will be committed to stand trial on the charges as outlined in Appendix 1.

April 30, 2013

"JUSTICE DIANE OLESKIW"