R. v. Jones, Smith, Waldron

Date: September 25, 2013

Information No: 11-2179

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

— And —

Tristin Jones, Jermaine Smith, Jafari Waldron

Before: Justice Jacqueline V. Loignon

Reasons for Judgment released on: September 25, 2013

Counsel

For the Provincial Crown: M. J. Neubauer

For the Federal Crown: Ms. D. Hayton

For Mr. Jones: M.P. McCann

For Mr. Smith: M.K. Kilongozi

For Mr. Waldron: R. Carew

LOIGNON J.:

Introduction

[1] Tristin Jones, Jermaine Smith and Jafari Waldron are charged on a 42 count Information with various firearms, drug and drug related offences between January 2009 and March 2011. The Crown alleges that all 3 were involved in firearms trafficking to various degrees. The investigation into these allegations began sometime 2009 and covered a two-year time span. This investigation was known as project Lancaster. While the main focus of the project was the trafficking of firearms, the investigation revealed that the 3 accused also may have been involved in the trafficking of marihuana.

[2] In the course of the investigation, detectives sought and were granted various Production Orders, Part 6 wiretap authorizations, and warrants to search. In addition, investigators conducted extensive surveillance of all 3 accused as well as of many of their associates. Various undercover operations were also conducted involving different targets. The investigation came to an end on March 9, 2011 upon the arrest of all 3 accused and the execution of search warrants at their residences.

[3] The trial of this matter was held over 12 days in November, December 2012 and April 2013. The bulk of the evidence called consisted of conversations alleged to have taken place between the accused and others, placed before the Court through the wiretaps and collected text messages. In addition, the court also heard of police surveillance of the accused and others, two undercover operations and the fruits of various search warrants executed throughout the investigation. Finally, the court heard from various experts in the fields of firearms and drugs. This evidence was not only to assist in satisfying various technical definitions relevant to the charges, but also to better understand the often coded conversations taking place between the accused themselves as well as with others.

The Law

A - Firearm Offences

"Transfer" and "Offer to Transfer" (s. 99 of the Criminal Code)

[4] The Crown must prove beyond a reasonable doubt that the accused:

(1) Transferred or offered to transfer;

(2) a firearm, prohibited weapon, a restricted weapon, a prohibited device, any ammunition or prohibited ammunition;

(3) knowing that he was not authorized to do so under the Firearms Act or other act of Parliament.

[5] Section 99(1)(a) specifies that consideration for the transfer is not a necessary element of the offence.

[6] Section 84 of the Criminal Code defines transfer in the following manner: "transfer" means sell, provide, barter, give, lend, rent, send, transport, ship, distribute or deliver.

[7] In understanding a transfer as defined in s. 84 of the Code, the common element is the notion of a transaction. In committing the offence by way of offer, the accused must offer to transact in a firearm knowing that they are not authorized to do so. (R. v. Grant, 2009 SCC 32, at para. 145)

[8] The offence of offering to transfer a firearm requires proof that the accused made a genuine offer to transfer a firearm. The Crown need not prove that the accused had the ability or intention to actually follow through with the transaction. Rather, it need only prove a genuine offer, intended to be taken seriously. Indeed, the Ontario Court of Appeal in R. v. Murdock decided that a "trafficking by offer" offence is proven where there was an offer to traffic and the offer was intended to be taken seriously. (paras 9-14; see also R. v. Farhat at par 38)

[9] More recently, in R. v. Ralph, 2011 ONSC 3558, the Court stated the following:

40 The wording and legislative intent as set out in s. 99(1)(b), however, is clear. Section 99(1)(b) does not require a showing that the offeror could actually obtain a functioning firearm to sell to the offeree; it is sufficient that the offer is made. In other words, trafficking by offer is enough.

47 As deadly as drug-dealing can be, trafficking in firearms is, by any measure, even more deadly. If one rereads the above paragraph from Murdock, replacing the words "narcotics" or "drugs" with "firearms" or "guns", one has an immediate understanding and justification for s.99(1)(b) of the Criminal Code.

48 This is why, in my view, the Court of Appeal's decision in Murdock, which dealt with trafficking by offer in drugs, also applies to trafficking by offer in the context of firearms. To track the Court's language as quoted above in para. 45 and apply it to the facts herein: "…the offence of trafficking by offer is made out if the accused offers to traffic in a firearm (the actus reus); and intends to make an offer that will be taken as a genuine offer by the recipient (the mens rea)."

49 I therefore conclude that Murdock is dispositive of the trafficking by offer issue herein. The Crown is not required to show that, in making a serious offer to sell a 9 mm. semi-automatic to DC Tracy, the accused had actual access to such a weapon.

[10] This approach has been applied in subsequent cases including in R. v. Lewis (2012) OJ No. 3286 (OCJ) where the accused testified that he did not intend to follow through with the proposed firearm transaction. Notwithstanding this evidence, and relying on the reasoning in R. v. Murdock, supra, the Court held that it was not a defence to the charge and found the accused guilty of offering to transfer a firearm.

[11] In sum, the offer need not involved consideration (s. 99); need not be completed (R. v. Murdoch, supra); need not be intended to be completed (R. v. Lewis, supra); the key aspect is that the offer be intended to be taken seriously (R. v. Murdoch, Ibid; see also R. v. Farhat par 39, 42-44). In understanding the offer, it is necessary to consider more than just the words. Indeed, in some instances the circumstances of the offer will amount to nothing more than boasting or puffery. The overall context must be assessed to ascertain the offer and whether it was intended to be taken seriously. Factors to be considered may include: the understanding of or overall purpose for the firearm, access to the firearms; negotiations, not only as to price and type but also with respect to who is conducting them and how; use of coded language. This is obviously a non-exhaustive list and will vary according to the individual circumstances, some factors taking on added importance in different circumstances.

Proving a "Firearm"

[12] A firearm need not be recovered and forensically examined in order to meet the Criminal Code definition of "firearm." Whether a gun is a "firearm" is a question of fact for the tier of fact to resolve, and absent forensic examination this determination can be made on the basis of circumstantial evidence surrounding the alleged firearm. (R. v. Ranieri, 2009 ONCA 6; R. v. Charbonneau; R. v. Carlson, 2002 OJ No. 1884 (CA); R. v. Richards)

[13] In R. v. Grizzle the Court considered the absence of forensic examination and undertook a review of the Court of Appeal's decisions on that topic. The Court stated:

19 The Court of Appeal in at least three cases has upheld convictions where the gun was not located and (sic) complainant was equivocal on whether it was real or an imitation:

• In R. v. Charbonneau, the evidence was the complainant's clear belief that it was a gun, her description of it, the accused's conduct, his threat to shoot while holding it and a complete absence of evidence to the contrary.

• In R. v. Carlson, 2002 O.J. No. 1884, the evidence was the conduct of the accused in brandishing the gun, waving it around and pointing at it while screaming, "this is a hold up." The witnesses' description of it as "small" and "black" and having 6-8 inch muzzle. I recognize that in this case there was the distinguishing feature (not present here) that the accused has ready access to guns according to testimony of others.

• In R. v. Richards, the evidence was the description of the gun given by the witnesses, the circumstances surrounding the use of the gun, namely that people were threatened with it and that the accused had ready access to guns. (Again, not in evidence here.)

20 It will be up to the jury to determine based on the totality of the evidence whether the gun was real or fake. They will consider the circumstances of the event, the words and conduct of the accused, the reaction of the witnesses in the context of the event. Here, the jury will consider the evidence about:

• The nature of the argument, including the fact that it was unplanned;

• The conduct of the accused including the description of his use of the gun;

• His threat to shoot;

• The reaction and belief of the witnesses.

21 Depending upon the evidence believed and relied upon by the jury, they could be satisfied beyond a reasonable doubt that the firearm was real. It will, however, be up to the jury to make that determination. (R. v. Grizzle, 2012 ONSC 2478, paras 19-21)

[14] As is obvious from the above citation, this decision was at a Preliminary Inquiry and was prompted by an Application for a directed verdict which was ultimately denied.

[15] In R. v. Wills, 2007 ONCJ 605, the accused were charged with, amongst other offences, possession and trafficking of illegal firearms. A rap music video released by the accused where they appear to be holding firearms caused police to commence their investigation. The police intercepted communications between the accused in which they discuss their possession and trafficking of firearms.

[16] The accused argued at the end of their Preliminary Inquiry that there was insufficient, or no, evidence that the guns shown in video were in fact firearms, nor was there evidence that the guns they were discussing in the intercepted communications met the definition of 'firearms." At paragraphs 31-32 the Court stated the following with respect to circumstances where a firearm is not recovered:

31 I agree with Mr. Genua's submission that where 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; R. v. Richards; 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; 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 that 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.

[17] At paragraphs 36-37, the Court had the following to say with respect to its analysis of the evidence and permissible inferences:

36 In relation to counts 12 and 13, Mr. Wilson's own communications support the fact that he possessed a real firearm during the time of the wiretap authorization, with the strongest evidence of this being his admission that he moved his gun so that the police wouldn't find it if they raided his house. Indeed, in tab 18, EX 1C, pp. 4-5, Mr. Wilson doesn't even use the slang term "burner" or "thing" that Sgt. Bobbis testified was frequently used as slang for a gun: in this call Mr. Wilson specifically says that his grandmother told him to "take the gun out." In a conversation the next day, he continues the story of his grandmother's dream about the gun with Leighton Bonnick, who asks him, "and you had the machine in the house too?", and Mr. Wilson responds, "I had it there the other day." They go on to talk about the fact that Mr. Wilson had the "little teeth," but he moved out everything, even his "food." Bonnick agrees, saying "anything that can incriminate you king man" and Wilson responded "yeah": see tab 22, EX 1C at pp. 60-62.

37 Sgt. Bobbis testified that "machine" was a reference to the gun, and the "little teeth" were the bullets. He noted that "food" was guarded contextual language for drugs, testifying that in his opinion the conversation was about Mr. Wilson moving his gun, ammunition and drugs so that the police would not find anything incriminating if they came to his house. In light of Mr. Wilson's own reference to a gun, a jury could find this interpretation a very reasonable one.

[18] Ultimately the Court in Willis concluded that there was indeed evidence that would permit a jury to find beyond a reasonable doubt that the accused Wilson was in possession of a firearm. This evidence included, and I paraphrase:

• An expert who viewed the video opined that the accused was holding a large calibre revolver and that he was holding it in a manner consistent with it being operable;

• The accused were seen in the video apparently revealing ammunition loaded in the gun;

• The lyrics surrounding the display of guns in the video suggested a gang lifestyle involving the sale of drugs, with guns to protect drug territory; and

• The intercepted communications that indicate the accused was committing real crimes in relation to drugs and guns.

[19] From a review of the above cases, it appears that in determining whether a firearm satisfies the Code definition the trier of fact may consider the following evidence:

• Witness of accused description of the firearm;

• A witness' belief as to the firearm;

• The accused's handling of the firearm;

• The context or circumstances of the accused's handling such as threats to shoot, argument;

• The accused's access to ammunition;

• The accused's conversations in relation to the possession or use of the firearm;

• Expert evidence;

• Evidence to the contrary

B - Drug Offences

Conspiracy

[20] The elements of conspiracy are (i) an intention to agree, (ii) the completion of the agreement and (iii) a common unlawful object. In a conspiracy case, the offence is complete upon the agreement being made – no acts in furtherance of the conspiracy need be proven. Obviously, acts in furtherance may provide circumstantial evidence of the agreement at the center of the conspiracy. (R. v. Root, 2008 ONCA 869, at para. 65-67; leave refused 2009 CarswellOnt 6604 (S.C.C.))

"The essence of criminal conspiracy is proof of agreement. On a charge of conspiracy the agreement itself is the gist of the offence: Paradis v R., at p.168. The actus reus is the fact of agreement: D.D.P. v. Nock, at p. 66 ... There must be evidence beyond a reasonable doubt that the alleged conspirators acted in concert in pursuit of a common goal."

R. v. Papalia and Cotroni, at p. 16.

[21] In R. v. Sokoloski, the Supreme Court of Canada held that the agreement of one Mr. Davis to obtain, transport and deliver to the purchaser, the accused Sokoloski, a significant amount of methamphetamine for resale constituted a conspiracy to sell that drug. The key component to the buy/sell conspiracy agreement is the purchaser's intention to resell and the supplier's knowledge of and agreement to this plan. The court reversed the lower court decision, which would have required joint participation by both parties in the transportation or delivery of the methamphetamine. The Court said:

In my opinion it was an error in law to hold that in order to establish a conspiracy, as charged, it was necessary to prove an agreement between the parties jointly to manufacture, sell, transport or deliver a controlled drug, without the requisite authority. The evidence establishes that Davis agreed with the appellant, at the appellant's request, to obtain for him, and to transport and deliver to him a substantial quantity of prohibited drugs. The appellant agreed to pay Davis for these services.

This was a deal for the sale of drugs with a resale value of $9,000. The purchase by the appellant was not for his own consumption, but, as found by the trial Judge, for the purpose of resale, i.e. for trafficking. Had the deal been consummated and the drugs received by the appellant, in the light of the trial Judge's finding, the appellant would have been in breach of s. 32(2) of the Food and Drugs Act by being in possession of prohibited drugs for the purpose of trafficking within the meaning of the Food and Drugs Act.

In my opinion, that agreement constituted a conspiracy to traffic.

[22] In R. v. Longworth, Freeman, Newton and Wolfe the Ontario Court of Appeal held that where a trier of fact concludes that there is an agreement between a buyer and seller where the purchaser agrees to acquire a large amount of marihuana not for personal use, but intended for resale, and that the supplier was aware of the intention to resell, then this agreement would constitute a conspiracy to traffic in marihuana:

The jury would also be warranted in finding that the quantity of marihuana intended to be purchased by Newton was so large that it was not purchased for his personal use, but was intended for resale, and that Wolfe was aware that Newton was purchasing the marihuana for resale. If the jury had made those findings the agreement between Wolfe and Newton for the resale of marihuana would have constituted a conspiracy to traffic in marihuana: See Sokoloski v. The Queen.

[23] In R. v. Sohrabian the Court of Appeal considered charges of conspiracy in the context of a buy/sell transaction. Court adopted the reasoning in R. v. Sokoloski and R. v. Longworth and ultimately found that there it was sufficient to prove a conspiracy in a buy/sell transaction where there is proof that the seller knew that the purchaser intended to resell the drugs in question:

The appellant also submits that even if it is proven that the appellant provided or sold the dreys to Mirshakan who in turn sold to the undercover agent the transaction is a "buy-sell" transaction & conspiracy to traffic is not made out.

The quantity of heroin involved in this case is so large that it was obviously intended for resale & not for [sic] personal use, to the knowledge of the appellant. The agreement between the appellant & Mirshaken accordingly [illegible text] an agreement to traffic in heroin: Rolosk v. The Queen (1977); R. v. Longworth (1982). In any event, the evidence indicates that the appellant & Mirshaken, were in partnership with respect to distribution of the drug.

Types of Possession

[24] Section 4(3) of the Code identifies three forms of possession: personal, joint and constructive. Under each form of possession the key elements of knowledge and some act or measure of control must be established. (R. v. Terrence)

[25] Knowledge and control need not be proven by direct evidence but may be inferred from surrounding circumstances. In order to establish constructive possession, the Crown must demonstrate not only that the accused knew of the existence of the item, but also that the accused exercised some measure of control over it. More specifically:

"In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed." (R. v. Pham, at par 15; aff'd)

[26] The key elements to establish joint possession are knowledge, consent and some measure of control on the part of the person deemed to be in control. More specifically: (R. v. Pham, at par 16; aff'd)

The Evidence

[27] As already noted, the bulk of the evidence to be considered by the Court is in the form of intercepted communications and text messages. These will be considered in a count-by-count review of the Information. In addition to that, the Court also heard of two undercover operations and various instances of surveillance. These will also be considered within the individual counts. Counsel for the accused admitted that none of the accused had legal authority to possess or transfer firearms or other restricted or prohibited weapons.

Expert Evidence

Mr. Michael Press

[28] In a previous ruling, Mr. Press was qualified as an expert in the following areas:

1. Firearms, classification, identification, testing and street pricing;

2. Interpretation of street and coded language as it relates to firearms.

[29] In the course of the project Lancaster investigation Mr. Press was approached by the Ottawa police service and given 120 texts to review and analyze. Those texts are found amongst those filed as Exhibit 4 on the trial. M. Press produced a report explaining when and why, in his view some of the exchanges related to firearms. Mr. Press has been involved in investigations of this nature for many years. He is highly familiar with the terminology used to conceal conversations where firearms are discussed. He emphasized that understanding the messages requires some familiarity with firearms and street language but that the overall context of the messages will also inform any interpretation of the words. In addition, just as one line may inform another, a series of texts may inform another.

[30] I have not reproduced Mr. Press' evidence but rather have referred to it within the counts to which it applies. Overall I found Mr. Press' evidence to be very helpful and balanced.

Detective Chris O'Brien

[31] Detective O'Brien from the Ottawa police service was qualified as an expert with respect to gun classification, identification, testing and street pricing as well as coded language in relation to firearms. Detective O'Brien reviewed the wiretap conversations that have been filed as Exhibit 8 in order to arrive at an opinion with respect to whether the activities described in those conversations amount to firearms trafficking. As with Mr. Press, Detective O'Brien considered more than just the individual conversations but also the broader context of the investigation in order to arrive at his opinion. Detective O'Brien's opinions are referred to within the review of the individual counts.

[32] Detective O'Brien gave evidence with respect to the street value of various calibers of firearms. He indicated that a semi-automatic firearm of mid to high quality would have a street value of $2,000 to $3,000. In his view the seized Rigami .25 would perhaps have a value lower than that. He noted that a part was missing but this was easily overcome. A .9mm would have a mid-range street value of $3,000. Two thousand dollars would be at the low end while four thousand would be at the high end of the range. In his view $5000 was a very high price, even for a good .45 firearm, such as a colt .45. He gave an example of a Desert Eagle, a .50 calibre weapon as being at the upper end of the price range because it is a large "tv" gun. He advised that on the black market price is often based on size (conceal ability), capability, desirability, looks and prior use in a crime.

Detective Jamie Foley

[33] Following a qualifications voir dire, Detective Foley was qualified as an expert in the following areas:

• The use, distribution, pricing, packaging and trafficking of cannabis marihuana;

• Jargon, coded language and terminology related to cannabis marihuana; and

• Details of production and distribution, paraphernalia, practices, habits and consumption patterns of drug users and traffickers.

[34] Detective Foley considered the intercepted conversations as well as the fruits of the various searches in giving his opinions. His evidence follows within the relevant counts as well as a consideration of the arguments raised by counsel for the accused as to the strength of the opinions expressed.

Searches

[35] On November 20th 2010 a search warrant was executed at 2046 Camrose Street in Ottawa, residence of Devin Mayers. In the basement of the residence police found a 9mm Ruger semi-automatic pistol with ammunition. The serial number had been removed from the firearm. The firearm was classified as a prohibited firearm because it had a barrel length of less than 105mm. The magazine containing the ammunition was found to be a prohibited device due to its capacity being greater than 10 rounds. The firearm was found by Detective O'Brien to be in firing condition.

[36] On February 10th 2010 a .38 calibre Hopkins and Allen revolver was seized from Shridev Café's residence at 8-106 Woodridge Crescent in Ottawa. The firearm was classified as a prohibited weapon, was tested by Detective O'Brien and found to be in firing condition.

[37] On February 10th 2011 the residence Alexander Lacroix at 97 Rideau Street in Ottawa was searched by police. Police seized a Kimber custom II .45 calibre semi-automatic handgun, loaded with seven rounds of ammunition. This is a restricted firearm and was found by Detective O'Brien to be in firing condition.

[38] On March 9th 2011 the following items were located at 967 Eifel Avenue, the residence of Tristan Jones and Natasha Duckworth:

• 9 cell phones, 2 in their original boxes;

• 3 baggies of marihuana (total of 10 grams);

• 2 sandwich bags of marihuana (total of 77 grams);

• 2 boxes of Ziploc bags;

• 1 bag containing 6 individual bags of marihuana (total 24.5 grams);

• 1 baggie with 7 grams of marihuana;

• 2595$ in Canadian currency;

• 1160$ of American currency;

• 30 ml of hash oil and 2 ml bottle of oil;

• Various SIM cards;

• Digital scale;

• Various cell phone chargers.

[39] On the same date police executed a search warrant at 312-1365 Bank Street, the residence of Jermaine Smith and Lovely Javier. The following was seized:

• 5 cell phones;

• 315$ in Canadian currency;

• 3 rolled marihuana cigarettes (2.5 grams);

• A steel butterfly knife;

• Ziploc baggie of marihuana (8.3 grams);

• Digital scale.

[40] Jafari Waldron's residence at 94 Lebreton St. was searched on March 9, 2011. Amongst the items seized was a gun cleaning kit and several phones, including one with a screensaver reading Karina Almeida Waldron. Detective O'Brien examined the gun cleaning kit advising that he was familiar with such kits and that this particular was very nice. He indicated it could clean firearms from a .22 caliber up to a 12 gauge shotgun.

[41] On March 9th 2011 Ottawa police searched the residence of Ibrahim Iman at 217 Price Albert Street in Ottawa. Police seized the following amongst other items:

• Browning 9mm semi-automatic handgun, being a restricted firearm. It was later tested by Detective O'Brien and found to be in working order;

• 9mm ammunition;

• Rigarms .25 calibre handgun. This firearm is classified as a prohibited on due to its barrel length of less than 105 mm. It was found to be in firing condition;

• .25 calibre ammunition;

• .38 Special ammunition box

• Mason jars containing marihuana (26.3grams);

• Black backpack containing 2 plastic bags with marihuana (189.4 grams);

• Digital scales;

• Cell phones;

• $2205 Canadian currency.

[42] Still on March 9th 2011, Bert Dionne was arrested and his residence at 1811-1365 Bank Street was searched. The following was located:

• 5 sandwich size bags of marihuana (214.9 grams);

• Scale and baggies;

• Large blue Rubbermaid bin and lid containing 12 large freezer bags of marihuana (2668.7 grams);

• 1 large freezer bag of marihuana (215.7 grams);

• Cell phones.

[43] Also on March 9th 2011 a search warrant was executed at 549 Foxview Place, residence of Christian Farhat. The following was located:

• Debt lists;

• 975$ in Canadian currency;

• A cooler containing Ziploc bags of marihuana (1346.7 grams);

• 16 large Ziploc bags of marihuana and 3 small bags (1627.7 grams);

• A digital scale.

[44] On March 9th 2011 a search warrant was executed at 2233 Route 309, Notre-Dame-de-la Salette, Quebec, a residence associated with Robert Meyer. The search of the residence yielded the following:

• Fertilizer, bone meal, jiffy pellets;

• Green moisture meter, 2 dehumidifiers;

• A Melnor device;

• Sealing machine with plastic;

• Electronic scale;

• 336 mature marihuana plants;

• 95 marihuana clones;

• Electric wires and panels;

• 12 lamp shades;

• Fans, capacitors, filters;

• Calendar and harvest instructions;

• Drying shelves.

Background Information Regarding December 4, 2010 Shooting

[45] On December 4th 2010 at approximately 4am, a person or persons fired gunshots at 1079 Barwell Avenue in Ottawa. Shots were fired through the front door of the residence. Several rounds were logged in drywall inside the home. At least two rounds were logged in the sofa inside the home, one intact 9mm projectile was found in the front hall floor, and one round went through the back door and struck the residence behind 1079 Barwell Avenue. There were 9 bullet holes through the front door, and 10 spent 9mm firearm casings were found on the front lawn of the residence. Car tire track were observed on the front lawn. This is the residence of Uma Thomas, who is Jensen Thomas's mother. Jenson Thomas is also known as "J-Dawg."

[46] The shooting on December 4, 2010 prompted a flurry of calls between Waldron and Smith as well between Smith and others, including Jensen Thomas. There was speculation as to the motive for the shooting, any response or retaliation to the shooting and efforts to obtain firearms. Smith and Waldron were the go-to men for those firearms:

• Jensen asks Smith to lend him a "ting" 1 hour following the shooting. Smith directs Jensen to his cousin Waldo. (Exhibit 8, Tab 79 sessions 813)

• Smith tells Waldron of the shooting and of Jensen's need for a "thing" (Tab 80, session 835)

• On December 5th, 2010 Smith speaks to an unidentified person suggesting that those who had done the shooting would get dealt with and that he himself was just waiting for the call. (Exhibit 8, Tab 82, session 941)

• Later that night, at 10:29 Smith and Waldron speak and Smith tells him of people at "Smooth's" house with "tings" looking for him. (Exhibit 8, Tab 84, session 1018)

• Within a minute, at 10:30 Smith receives a call from a male who indicates: "these niggas are lookin for my crib and tings". Smith responds with: "so you need Jaf's number". The answer is "I need a ting". (Exhibit 8, Tab 85, session 1018)

• At 10:32 Smith again speaks with Waldron and advises him: "the nigga wants to get a ting you know". He clarifies that this relates to Thomas and Smooth and their common situation. (Exhibit 8, Tab 86, session 1022)

• At 10:36 the two speak again and this time Waldron suggests that "if the man wants a thing just tell him yo there's a thing for five." Smith appears taken aback by the number. Ultimately Waldron tells Smith to tell the caller the "digits". (Exhibit 8, Tab 87, session 1024)

• On December 6, at 1:39 pm, Smith is speaking with an unidentified caller and tells him of the price for a "ting". He tells the caller that "he's pushing it for too much dawg". Smith puts the person off, explaining why the price is too high. (Exhibit 8, Tab 89, session 1064)

• At 10:52 pm that same day, Smith speaks with an unidentified male who tells him of the people responsible for the J-Dawg shooting. The male tries to borrow and then asks Smith to assist in getting a "ting":

  U.M.: Yeah but me I just need a ting in case I'm with niggas 'cause they's my niggas you know

  Smith: Yeah

  U.M.: Just in case they gonna pop at me too you know I'mma have to pop back like you know I'm not just gonna sit there

  Smith: Too much talking on the phone

  U.M.: Yeah yeah yeah real talk

  Smith: But if anything if anything nigga 'round I'll holl'at you

  (Exhibit 8, Tab 91, session 1118)

• On Dec. 7, 2010 at 3:11pm: Mr. Smith calls someone named "Miami." They discuss the person who called Mr. Smith to say he was in danger. Miami responds "I got my own things to deal with—enough problems of my own to be worrying about fucking niggas blazing at each other ah left right and centre over fucking stupidness you know." There is some further conversation where Smith asks Miami if he can "line them ting up". (Exhibit 8, Tab 92, session 1152)

• A few days later, on December 10, 2010 at 3:02 in the morning, Smith discusses the Thomas shooting with a "Mike", especially the lack of reaction to it. (Exhibit 8, Tab 97, session 1380)

[47] While the accused are not charged with any offences arising out of the above exchanges, they are nonetheless significant in highlighting Smith and Waldron's repeated discussions of a 'ting' which, taken within the context of these calls clearly refers to a firearm. This is relevant in considering that term in other conversations where the references may be more veiled. In addition, the reaction to the $5000 price also shows Smith is knowledgeable about firearm pricing. Overall, the conversations are part of the entire context to be considered by the Court in determining the various elements to be proven on the different firearm counts, especially as it may relate to "proving" the firearm and the seriousness of any offer to transfer.

Count by Count Analysis

Preliminary Issue

A - Voice Identification

[48] At the beginning of trial, counsel for all accused indicated that voice identification of their clients on wiretaps was not admitted. Ultimately, on December 20th 2012, it was conceded by all accused. While it may not be disputed for the wiretaps, because authorship of the text messages is disputed by Jones and Waldron, I will briefly outline the basis of the voice identification.

[49] Two volumes of transcripts of the wiretaps were filed (Federal Exhibit 7; Provincial Exhibit 8 and 8B) along with a USB with all of the recordings. (Exhibit 8C)

Jafari Waldron

613-700-0133

Subscriber information: Paul Morris, 300 Cambridge North suite 101, Ottawa, Ontario.

[50] On February 16, 2011 a phone call is placed to Jafari Waldron at the above telephone number. (Exhibit 8 session 595) In that phone call, Waldron self-identifies as the user on that phone. Given that the substance of that conversation deals with Mr. Waldron's children it leaves little doubt that Mr. Waldron is indeed the person being dealt with. Furthermore, at session 6780 on March 2, 2011 Mr. Waldron again self-identifies on the 613-700-0133 phone number. The context of the conversation, namely dealings with Canada Revenue Agency, makes it clear that the caller is indeed Mr. Waldron.

613-237-2095

Subscriber information: Jafari Waldron, 94 Lebreton St North, unit 2, Ottawa, ON.

[51] On March 2, 2011(Session 1096) Mr. Waldron self-identifies for a company he is attempting to contact using this number. At the time of the police searches on March 9, 2011, police seized mail addressed to Jafari Waldron at 94 Lebreton Street in Ottawa. Also seized at the time was a banking statement in the name of Almeda Karina at the same address.

[52] I do note that throughout the intercepted telephone conversations there is a consistent use of nicknames including, Jaf and Waldo. I am certainly satisfied that it is Mr. Waldron who is captured on the intercepted communications.

Tristin Jones

[53] Detective Benson gave evidence that he listened to the intercepted conversations and recognized Mr. Jones' voice. I myself have listened to a number of the intercepts and am satisfied that Mr. Jones is speaking for the following reasons: distinctive accented voice, an occasional stutter; and identification in some instances of his own residence as well as his children in various activities.

[54] Mr. Jones is heard and identifiable on telephone lines: 613-723-0597; 613-799-9331; 613-818-5306; 613-899-5403. The subscriber information for 613-723-0597 is Natasha Duckworth, 967 Eiffel Av. Ottawa, ON.

Jermaine Smith

613-315-3345

Subscriber information: Perry Wayne 2269 Riverside Drive, Ottawa, ON

[55] At session 4804 on March 8, 2011, Jermaine Smith has a conversation with an unidentified male and ultimately self-identifies as Jermaine Smith. The conversation pertains to a company listed as Aero Inc, attempting to collect an outstanding amount from Mr. Smith. Having listened to the intercepts where Mr. Smith is alleged to be involved in the phone calls, I also note a frequent distinctive high pitch laugh. Mr. Smith is also heard and identifiable on telephone line: 613-315-6334. Mr. Smith is not alleged to have sent any of the text messages at issue.

B - Text Message Authorship

[56] With respect to the text messaging, while there is not the advantage of voice recognition by the investigating officer or the ability to listen and recognize the voices, it is not impossible for the Crown to demonstrate beyond a reasonable doubt that the alleged individuals are indeed the authors of the text messages. The Crown must demonstrate through an accumulation of circumstantial evidence the individuals the messages are attributed to are indeed their authors. In that regard, the information as it pertains to the voice identification is certainly a relevant factor with respect to the text messaging. Accordingly, I believe the following factors to be persuasive in establishing a link between the number and the authorship of the messages:

• The phone number itself, whether it was used by the individual in the voice identified communications or any admissions concerning the number;

• Billing information and again consistency with voice identification;

• The number of messages and consistency in the nature of communication;

• Any surveillance or other physical interaction linking the number to the user; and

• Self-identification or signature type information.

Jafari Waldron

613-806-6582

The subscriber information: Kurt Gilles of 401-300 Cambridge St., Ottawa, ON.

[57] This information is not verified by Telus but is rather self-disclosed information. As noted with respect to phone number 613-700-0133 above, the address is once again at 300 Cambridge St., an address. Detective Benson testified that Mr. Waldron lived there at some point.

[58] Number 613-806-6582 is used consistently in communication with 780-278-7592. It is clear from the 700 text messages and 200 telephone conversations that there is some sort of relationship ongoing between the two parties. Throughout, the author of the messages indicates "call me, it's Jaf" or simply "call me." In some instances there is daily communication and in many of those communications the author of the message from 613-806-6582 refers to himself or the author of the message from 780-278-7592 calls him "Jaf" or "Staks". It is significant to note that the time period of these communications is between August 5th, 2009 and June 30thth 2010.

[59] On the 23rd and 24th of November 2009 there are extensive communications with 780-278-7592 both to and from the numbers consistent with the prior conversations where Mr. Waldron self-identified. In addition, on November 25th 2009 at 16:19:06 a text message is sent from 613-806-6582 to 613-552-9450. The extent of the text is "It's Waldo."

[60] On the 23rd of December 2009 the user of 613-806-6582 texted 780-278-7592 and advised that his father had just been stopped by police in the course of a traffic stop and to stop texting him. Evidence was adduced by way of an admission with respect to a traffic stop by police of Mr. Waldron Sr. on the date in question.

[61] Beyond the communications with the caller at 780-278-7592, the user of 613-806-6582 also refers to himself as Jafari Waldron, Waldo, Stacks, Jaf or Jaff on numerous other occasions. On one such occasion he not only advises "its Jaff" but confirms that the 613-806-6582 is his number. In addition there are numerous communications with individuals where the user is called Stacks or Jaff or Waldron. There is an especially high volume of such texts with the user of 780-278-7592, but also with 613-897-7462 with whom there is also a relationship and children. These texts also run from August 2009 to June 2010.

[62] Finally, the investigating officer, Detective Benson testified that in April of 2010 he noted a decline in activity with number 613-806-6502. As a result, he telephoned that number. He was able to confirm a voice mail indicating a new number of 613-282-6452.

613-282-6452

[63] Subscriber information obtained from Telus and found at Exhibit 24 indicates that the above number is registered to a Christian Wallace at 301-300 Cambridge Street, Ottawa. As noted earlier, Telus does not verify subscriber information. That having been said, as with the prior numbers, there is some consistency in that address and its appearance on the subscriber information. As with number 613-806-6582, there are many instances of texting with the users of 780-278-7592 and 613-897-7462.

[64] The circumstantial evidence associating Mr. Waldron to phone numbers 613-806-6582 and 613-282-6452 demonstrates the following:

• a pattern of use of those lines with other users including 780-278-7592 and 613-897-7462 suggesting un-interrupted use;

• a pattern of conversations, including instances of self-identification similar to those found on the intercepted communications;

• the traffic stop on December 23rd 2009 where Waldron is a passenger in the vehicle and texts 780-278-7592 confirming the event and his use of 613-806-6582; and

• a consistent association with 300 Cambridge St..

[65] I have not been directed to any texts in the hundreds filed at Exhibit 4 that would support a theory that someone else, even occasionally used the phones or that Mr. Waldron was not the exclusive user of the two phones. In view of the overwhelming evidence, that soundly belies coincidence, I am satisfied that the Crown has proven beyond a reasonable doubt that the user of both 613-806-6582 and 613-282-6452 is Jafari Waldron and that he sent the texts from those numbers.

Tristin Jones

613-799-7529

Subscriber information: Natasha Duckworth, 967 Eiffel Ave., Ottawa, ON.

Contact number: 613-723-0597 (same subscriber information as 799-7529)

User address 670 Chapel St., Ottawa, ON.

[66] I have reviewed the call logs obtained through a Production Order and filed as Exhibit 23. The Production Order covers from August 5, 2009 to January 5, 2010. The logs for 613-799-7529 show regular contact between that number and 613-806-6582. In this case, regular contact means contact on almost a daily basis, sometimes multiple times a day. On November 25, 2009 only there are approximately 18 contacts between the two numbers

[67] On January 29, 2010 Constable Lafleur of the Ottawa Police Service met Mr. Jones at a Canada Border Service Agency Office in Ottawa. Mr. Jones ultimately gave the officer a piece of paper with the name "Jason" and number 613-799-7529. When asked by the officer, Mr. Jones confirmed that the number was his. Later on, the officer exchanged text messages with Mr. Jones using that number. In addition, Detective Shabbaz testified that when he encountered the accused at Le Spot clothing store in Ottawa in January 2011, he gave his name as "Jason". He also heard him called "Dreads" by staff at the store.

[68] On November 25, 2010, (Exhibit 8, tab 3 session 175) Mr. Jones confirms his home phone number as 613-723-0597. The home phone number is registered to his spouse at their home address where police conducted surveillance and confirmed Jones' association with it. Number 613-799-7529 is registered to the same person at the same address. Counsel for Mr. Jones admitted that Mr. Jones used the phone despite it being registered to his spouse.

[69] The circumstantial evidence associating Mr. Jones to phone number 613-799-7529 demonstrates the following:

• a pattern of use with Waldron suggesting un-interrupted use;

• the undercover police operation confirming Jones' number, his use of it and subsequent texts sent to that number;

• an admission as to use;

• consistent subscriber information including secondary telephone number; and

• a consistent residency at 967 Eiffle Ave.

[70] In view of the evidence I am satisfied that the Crown has proven beyond a reasonable doubt that the user of 613-799-7529 is Tristin Jones and that he sent the texts from that number.

Counts #1-#8

That Tristin Jones did transfer a firearm between January 1, 2009 and January 27, 2011.

[71] The Crown alleges that Tristin Jones transferred 8 firearms to unknown persons between January 1, 2009 and January 29th 2011. The Crown does not seek convictions on all eight counts but rather concedes that the gravamen of the offence is captured with one conviction only.

[72] The evidence in support of this count came from an undercover officer named Umer Shabazz. Det. Shabazz was made aware of the investigating team's belief that Jones was trafficking in firearms in Ottawa. Detective Shabazz's objective was to get close to Tristin Jones and buy a weapon from him.

[73] On December 21st, 2010 Det. Shabazz attended at the Spot Clothing Store on Rideau Street. Prior to attending that location, the officer had been shown a photograph of Jones in order to identify him. The officer attended the store and stuck up a conversation with a worker there. Approximately 15 minutes later, Mr. Jones entered. There was initial conversation with respect to their countries of origin. During their conversation, Mr. Jones indicated that he had been in Canada for 10 years and ran a small business selling macaroni pie and flying fish. In response, Detective Shabazz indicated that he had a small business including shipping items to Haiti and Nigeria. No specifics were given with respect to the type of items. Shabazz gave his cell phone number to Jones who indicated that he would call. In the course of the conversation, Mr. Jones advised that he went by the name Jason. However, while in the store, he was referred to as 'Rasta' by one of the other workers.

[74] The conversation with Mr. Jones lasted some 40-45 minutes concluding when the officer indicated to Mr. Jones that he would be back in town in the New Year. Following this meeting with Mr. Jones, the Detective returned to the Ottawa police station where a debriefing took place. Within the next 2½ hours the detective completed notes with respect to the encounter.

[75] On January 6th 2011 Detective Shabazz attended Ottawa and went to the Spot Store. On that date, he had no direct interaction with Mr. Jones. He did go into the store however and asked for Mr. Jones's home phone number. It was not given to him. Detective Shabazz left his phone number and asked that it be given to 'Rasta'.

[76] A second meeting with Mr. Jones took place on January 27th 2011. Detective Shabazz was back in Ottawa to try and meet with Jones and show him various pictures of firearms. Detective Shabazz attended the Spot Clothing Store at 7:53 pm. At approximately 8:00 pm Mr. Jones entered the store. Some discussion took place with respect to Barbados and a few minutes later the two left the store and went for tea at the Tim Hortons next door.

[77] Once the two men were seated, Detective Shabazz asked Mr. Jones if he was "solid" to which Jones replied, "yes." Detective Shabazz then took his cell phone from his pocket and showed Jones various pictures of handguns. In all, 8 photos were shown to Mr. Jones. Mr. Jones looked at them while the officer held the phone. Nothing was said by either man. Following the display, the officer explained to Jones that he and a partner buy guns off the street and ship them to Haiti and Nigeria. He then asked if he knew anyone in Ottawa who could connect them so they could purchase guns. Mr. Jones said that he had a good friend from Montreal he could connect them to. Mr. Jones asked what kind of money would be paid for the firearms to which the officer responded between 2500$ and 3000$ each. Mr. Jones asked if the guns needed to be "clean." The officer responded that it did not matter as the guns were leaving the country.

[78] Detective Shabazz testified that Mr. Jones went on to say that the friend from Montreal brought him 6 guns last year and that he got rid of them very fast. He then stated that he had had two this year and that they were now gone. He said that he had a few shells at home. He said that whenever he gets something like that, he gets rid of it right away. He said that people in Ottawa are always asking for stuff but when it's time to pay, you can't find them. He said he would make calls to his friend in Montreal.

[79] Mr. Jones then digressed from the topic of the firearms per say and went on to discuss the trouble he had been having with the police and harassment which he reported to a Jamaican Sergeant in the OPS. He also spoke of a Lebanese Sergeant in charge of the DART unit, describing him as a big man.

[80] Officer Shabazz also reported the following from Mr. Jones: that a man from Edmonton was selling guns in Ottawa and that he dealt with his cousin. This male had been arrested in Edmonton with 8-10 guns and 2 silencers. The guns were shipped on Greyhound busses in old bags. The male would accompany the guns from Edmonton to Ottawa. When asked how much time the male got, Mr. Jones indicated that his cousin hadn't mentioned that.

[81] Mr. Jones stated that he also had another contact from Cornwall but had not seen him for a while. He furthermore advised that this contact would require that the items be picked up in Cornwall. Shabazz indicated that he need only set up a meeting. The officer further reported that Mr. Jones stated that he would contact him very shortly and would make the required phone calls. Both individuals left the Tim Hortons at approximately 8:53 pm having spent 40-45 minutes there. The officer had no clear recollection as to the environment immediately surrounding them. The officer advised that the conversation was a very soft one but one where the tone was of two buddies carrying on a conversation.

[82] As with the prior meeting, this was debriefed at the Ottawa police station. By 9:30 the debriefing was over and the officer made his notes 45 minutes later.

[83] Between January 27th and February 16th 2011 there was no communication by Jones to Detective Shabazz. The final meeting between Mr. Jones and Detective Shabazz was on February 16th 2011. This was not a prearranged meeting.

[84] The officer arrived at the Spot Clothing Store at 7:45 pm and asked for Mr. Jones. The officer also asked for a phone number for Jones. The officer, was told that it was unlikely that Mr. Jones would attend given that was his daughter's birthday. He and another officer who was present, indicated they would hang out for a few minutes in case Jones attended. At 8:16 the officer received a phone call from his police handler that Mr. Jones was coming to the store.

[85] Five minutes later, while they were on the sidewalk Mr. Jones came up to Detective Shabazz. He was very agitated and asked why he had been in the store asking for him. Detective Shabazz introduced his partner and said that they wanted to talk and that they were just there for the night. Mr. Jones said that the people in the store were getting pissed off about people going in looking for him. He said that when he heard from Montreal he would phone but had not heard as of yet. Detective Shabazz stated to Mr. Jones that he had some serious money and was looking for a piece to buy. He asked whether there was anyone he could put him in touch with. Mr. Jones said no. This was the end of the interaction with Mr. Jones. Again a debriefing took place at the Ottawa police station and subsequently Detective Shabazz went to his hotel and made his notes there.

[86] Nothing further was received from Mr. Jones, nor did the officer see him again. Detective Shabazz had no further involvement with the project.

[87] Throughout his dealings with Mr. Jones, drugs were never mentioned. The conversations with respect to firearms however were quite nonchalant according to Detective Shabazz. When the firearms were discussed, there was no detail provided by Mr. Jones concerning the nature of those he had disposed of quickly. It was simply to the effect that he had gotten rid of 6. The officer conceded that despite it being a 45 minute meeting, many details were missing from his notes of the various conversations with Jones.

Analysis

[88] Do the words uttered amount to an admission to having transferred 8 firearms and furthermore, is there sufficient circumstantial evidence to support a finding that a firearm as defined in the Criminal Code was transferred?

[89] The evidence in relation to these counts is the words attributed to the accused himself. This having been said, a 45-minute conversation was reduced to approximately 5 minutes of notes. In terms of what is reduced to notes these do appear to be accurate. For example, the information about a larger Lebanese Sergeant in the Dart team was confirmed by Detective Benson. In addition, the acronym DART (Direct Action Response Team) was also confirmed by Benson as being a section within the Ottawa Police. Detective Shabazz did concede however that much of the conversation was not within his notes. This is of concern when the entirety of the evidence is words to be attributed to the accused.

[90] The conversation between the undercover and the accused is about guns. The accused describes a process by which guns are transported to Ottawa from Edmonton. He speaks of having a contact in Montreal and getting rid of 6 and then 2 firearms very fast. The argument from the Crown is that "getting rid of" within the context of the discussion is a transfer. Defence suggests that "getting rid of" could be a disposal and that there's no real way of being satisfied that the accused did indeed transfer within the meaning of the Code.

[91] Given the factors present here: the early showing of the photos; the question about being solid; the information from Edmonton; the information about suppliers all suggest an active involvement beyond an innocuous interpretation of "get rid". That having been said, there is only vague information as to when the transfers took place; no information as to what precisely was transferred or to whom. Furthermore, there is no circumstantial evidence of the "firearms" transferred: no acknowledgement when looking at the pictures of types of firearms transferred; no discussion about caliber, make, ammunition, no description at all of an intended or actual use. In my view, the evidence on these counts amounts to what the Court in R. v. Willis, supra cautioned against: "[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."

[92] While there may have been a general discussion about the transfer of firearms, it does not contain sufficient particulars to allow the court to conclude beyond a reasonable doubt that a transfer of a firearm took place between the dates in question.

[93] I acquit Mr. Jones of these counts.

Count #9

That the accused Jones and Waldron offered to transfer a firearm on November 25, 2009.

[94] The Crown alleges that a series of text messages on November 25th 2009 between Waldron and Jones demonstrate a concerted effort to work together to offer to transfer firearms to an individual at 613-864-3673, namely Shridev Café. I note that an admission was made that the above phone number was registered to Mr. Café.

[95] Was there an offer to transfer, was it meant to be taken seriously and did it involve a firearm as defined in the Code?

[96] The expert evidence of Mr. Press assists with the interpretation of the text messages. In his opinion the references to numbers 45, 357, 380, 38 and 9 are references to calibers of firearms, handguns more specifically. In his view the various lines that followed concerned pricing for the firearms and that the sums listed were consistent with medium to high calibre firearms, such as those listed earlier. Mr. Press further indicated that "ting" is a relatively common term that can mean several different things. However, it is also a term that he has often seen associated with firearms. It was his opinion that given the accompanying information that "ting" did indeed refer to firearms. I also note that beyond simply this particular exchange of text messages, "ting" is a term that appears frequently in both the intercepts and texts messages, often used within a context of a discussion of what appears to firearms. It is also important to recall that on February 10th 2010 a .38 calibre Hopkins and Allen revolver was seized from Shridev Café's residence.

[97] I am satisfied that the references are to firearms based on the technical information, the price haggling consistent with the calibers, the expert evidence, the broader evidence including the firearm seizure and the absence of evidence to the contrary.

[98] It is clear that Mr. Waldron offered a firearm to Mr. Café; "Yo dog, you still want one of those tings you asked for yesterday?" This is followed by a positive response, an inquiry as to the nature of the firearm and price. Mr. Waldron obtains that information from Mr. Jones and then communicates it back to Mr. Café at 613-864-3673. In the communication between Waldron and Jones on the pricing it is clear they are working together given the language used namely "So dog we give em 3 how we gonna eat?" The price is then communicated to Café and there are arrangements made between Waldron and Café to arrange a time to meet.

[99] Based on the communications between Café and Waldron, it is clear that the offer made was meant to be genuine given the arrangements made to meet. I am satisfied that all the elements of the offence have been made out with respect to an offer to traffic in firearms by Jaffari Waldron. With respect to Mr. Jones, his actions while not directly with Mr. Café demonstrate direct participation in the offence. Indeed, irrespective of their respective roles, Waldron and Jones worked together in order to ensure that a product was available to be offered to Mr. Café.

[100] As a result, I find both Mr. Jones and Waldron guilty of count 9.

Count #10

Mr. Waldron is charged that he offered to transfer a firearm on November 25th 2009 to an unidentified individual at 613-325-0545.

[101] At the same time that Mr. Waldron was offering to provide a firearm to Mr. Café, he was also involved in text conversations with an unknown individual at 613-325-0545. The text messages take place between 13:22:01 and 13:51:48. Mr. Waldron contacts the above number and begins the exchange with: "Remember tha bitch that flipped out in ur crib? Anymans want a twin" The response is: "Ye my bredrons single styll. How much bread does she got?" The response to that is: "2800" followed by a comment "she's rich. How old is she, mid 40s? 45?" Waldron responds with "5 more she's 50."

[102] The technical firearms information is the reference to 45, namely a .45 calibre firearm. The coded language includes "bitch" in reference to a firearm, "bread" in reference to money and then the price of 2800$. Mr. Press testified that he has seen "bitch" used before with respect to firearms, in particular a shotgun. He also testified that 2800$ is a price consistent with a .45 calibre handgun on the black market. In his view, the overall context was consistent with the previous texts and he was of the view that this referred to a firearm transaction.

[103] Nestled within the exchanges as between Waldron and Shridev Café, the entire context strongly supports the inference that Mr. Waldron is actively disposing of a number of firearms and offering them to the two individuals he is communicating with. While the conversation with the person at 613-325-0545 is quite brief, it is direct. It is irrelevant whether the transaction took place or not, what I must consider is whether it was meant to be taken seriously. Based on the entire context, including other on-going negotiations, as well as the exchange itself I am satisfied that it was intended to be taken seriously. Given the technical information and Mr. Press' evidence in addition to the other contextual information, I am satisfied that the item being discussed meets the definition of firearm.

[104] Mr. Waldron will be found guilty of count 10.

Count 11

That Waldron offered to transfer a firearm on December 22nd 2009.

[105] The text conversation on the 22nd of December 2009 with phone number 647-206-5859 begins at 9:58:01 with general pleasantries. At 10:04:26 the caller to Mr. Waldron asks "Iz dat gurl stl gna b available?" The response from Mr. Waldron is "She should stil." This is followed by a question "N hnw old iz she now?" The response from Mr. Waldron is "Bout 9 to 45." The response is "Can we nagotiate da papr wrk?" Mr. Waldron responds "25 minimum."

10:08:33 from 647-206-5859 to Waldron "Coz it iz knd of steep, no?"

10:09:30 from 647-206-5859 to Waldron "k does she have panties?"

10:09:36 from Waldron to 647-206-5859 "Dog wat man dem a pay over on ur side?"

10:11:42 from Waldron to 647-206-5859 "Dog cop on ur side cuz u sound like a u have d link"

10:13:22 from 647-206-5859 to Waldron "I depndz but i all gud stl i wna know how much da dresser draw cod hld"

10:13:52 from 647-206-5859 to 613-806-6582 "Lol"

10:17:12 from 647-206-5859 to 613-806-6582 "U no me. Always tryin 2 get a gud deal. Bt da reasn i ask iz cos i jus wna mke sure i get a prpa bitch"

10:19:17 from 647-206-5859 to 613-806-6582 "Plus p has da mst of dem lockd sum were so im only wrkin wit 1 whre nw"

10:26:53 from 647-206-5859 to 613-806-6582 "Coz i need it 2 b reliable coz i hve a little prob n wen i strt i dnt wna stop lol datz da only reasn i even ask bt cream aint no prob"

10:27:49 from 613-806-6582 to 647-206-5859 "Dont worry everyting cris"

10:28:56 from 647-206-5859 to 613-8066582 "Dnt wrry i trst ya judgement"

10:29:19 from 613-806-6582 to 647-206-5859 "Niga lol"

10:31:03 from 647-206-5859 to 613-806-6582 "How much does da draw drssr draw hold"

10:32:20 from 613-806-6582 to 647-206-5859 "Varies if its a baby"

10:34:48 from 647-206-5859 to 613-806-6582 "No bbyz i wnt a adult wit da maxium r a spare"

10:35:28 from 613-806-6582 to 647-206-5859 "like 10 to 15"

10:38:08 from 647-206-5859 to 613-806-6582 "15 soundz like a start n a xtra wod b appreciated

[106] In this particular instance, Mr. Press believed that the reference to "girl" was to a gun; the reference to "age" (being 9-45) was in actual fact a reference to calibres and the mention of "paperwork" an inquiry as to cost. In this instance the parties mention the number 25 ($2500) which in the expert's view, is consistent with the street value of a 9mm gun. The reference to "panties" was in his view a reference to ammunition while "dresser drawer" referred to magazine capacity. Mr. Press clarified that magazine capacity can vary. The legal capacity in Canada is 4-10 but it is possible to obtain various magazines for a capacity of up to 28 cartridges. Mr. Press further testified that the reference to "baby" is a reference to a compact firearm but that these types of guns usually don't have a very high magazine capacity. The reference to an "adult" suggests the desire for a greater magazine capacity.

[107] Mr. Press indicated that reliability for a firearm is a significant issue. A poor quality gun or a firearm with the wrong type of ammunition can result in the firearm blowing up in the user's hand. A poor quality firearm will cause jamming such that the feeding path will not function. Mr. Press has often seen references to firearms to include references to "girls" or "females" such that overall, in his view, the discussion was in relation to the acquisition of the firearm. It is clear from the conversation itself and the overall context that the references are not to a female person.

[108] Given the technical information, the street value, the coded language with respect to ammunition, magazine capacity and the overall context of the conversation, I am satisfied that Mr. Waldron is referring to a firearm. Counsel for Mr. Waldron suggests that the exchange does not amount to an offer but is rather a general discussion and that ultimately Waldron does not agree to fill the order. I disagree with the characterization of the discussion being general. There is an inquiry as to a product being available, there is confirmation of availability of a 9 or 45 calibre firearm, the price is set at 2500$ minimum and then there is a further discussion with respect to ammunition and various magazines. The conversation between the two is beyond a general discussion and in my view amounts to an offer by Mr. Waldron to supply the caller with a .9 or a .45 calibre firearm, ammunition and magazine. The fact that Mr. Waldron may not ultimately fill the order is irrelevant in my view. That would be akin to requiring the offeror to have access to firearms, when the law simply requires that an offer be made and that it be intended to be acted upon. Looking at the call as a whole, especially the comments about needing the gun to be reliable because of a problem as well as not wanting to stop once started, these certainly show that the caller was treating the discussion seriously. Mr. Waldron's reassurances demonstrate his intention that the offer be taken seriously.

[109] I find Mr. Waldron guilty on count 11.

Counts #12 and #13

That Waldron offered to transfer a firearm on May 15 and May 19, 2010 to an individual at 613-252-9205.

[110] On May 15, 2010 Waldron (613-282-6452) texts 613-252-9205 and has the following exchange:

23:02:11 613-282-6452 to 613-252-9205 Yo hala at me

23:07:47 613-282-6452 to 613-252-9205 380 girls

23:13:00 613-252-9205 to 613-282-6452 380 perfect

23:13:54 613-252-9205 to 613-282-6452 extra

23:14:49 613-252-9205 to 613-282-6452 extra teeth

[111] Then on May 19, 2010:

12:22:56 613-282-6452 to 613-252-9205 U get ur ting dog

12:33:06 613-252-9205 to 613-282-6452 no bro neggae are joking I need some like 45 or 9

12:34:19 613-282-6452 to 613-252-9205 Got 9

12:40:59 613-252-9205 to 613-282-6452 Num

12:42:39 613-282-6452 to 613-252-9205 Im a get bak 2 after 3pm

15:22:03 613-282-6452 to 613-252-9205 Yo dog forget about it hes being a goof he wants 4

15:27:47 613-252-9205 to 613-282-6452 wow

15:30:07 613-282-6452 to 613-252-9205 ya he says its silver way different from smurf don't wory im a wait till next one

15:30:28 613-252-9205 to 613-282-6452 k

[112] Taken together, the Crown suggests that Waldron twice offered to transfer a firearm to the person at 613-252-9205. Defence suggests it is impossible to ascertain that there was indeed an offer but rather the exchange suggests a willingness to pursue further discussion.

[113] Concerning the May 15th exchanges, Mr. Press opined that 380 referred to a 380 calibre of firearm and that "teeth" was a common street term for ammunition. He further testified that the conversation on the 19th of May related to firearms based on the use of "ting" as well as the use of "45 or 9" which are firearm calibres. He suggested that the person at 613-252-9205 was looking for a 45 or 9mm firearm. The response was "got 9". The prospective purchaser then requests the price ("num"). While Mr. Press suggested that the purchaser indicates he has $2000, I cannot agree with that interpretation as that particular response is from Mr. Waldron, the alleged offeror. I agree with the defence suggestion that Waldron is likely indicating that he will get back to the purchaser after three, which is in fact the case when looking at the text times. Indeed, at 3:22 he responds "...forget about it hes being a goof…".

[114] Based on the use of technical firearm information (caliber and firearm finishes), the exchange on pricing, it is clear the discussion on May 19th 2010 is about firearms. Within that context, and following the request for a 45 or 9, I am of the view that the statement "got 9" is an offer for a firearm. The further efforts to obtain a price show that the offer was meant to be taken seriously. As was previously stated, the transaction need not come to fruition, which in this case it did not. The offer need only be intended to be taken seriously. I am satisfied that Count 13 has been proven beyond a reasonable doubt.

[115] Mr. Waldron will be convicted of Count 13.

[116] While the Crown suggests that the exchange of May 15th is better understood with that of the 19th, I note that those discussions on the 19th concern a 9 or 45, not a 380. While there may be some technical information indicative that the exchanges concern firearms, the exchanges themselves on the 15th remain cryptic. Indeed, if, as Mr. Press suggests, there is a request for extra ammunition, Waldron does not respond, which does not help the inference that these messages were an offer to traffic in firearms. In addition, it would be presumptive to conclude that Waldron is the offeror as opposed to the purchaser based only on the fact that on the 19th he is offering a 9mm. Indeed, when looking at the texts, it may be 613-252-9205 offering "extra teeth". As a result, I cannot find that the offence has been proven beyond a reasonable doubt.

[117] Mr. Waldron is acquitted of Count 12.

Count #14

[118] Conviction not sought.

Count #15

That Mr. Waldron did conspire with Mr. Jones to traffic in marihuana on November 15, 2010 by agreeing to traffic in marihuana.

Count #16

That between November 15, 2010 and March 7, 2011 Mr. Jones did conspire with Robert Meyer, Brian Cooks and Mr. Waldron to traffic in marihuana by agreeing to traffic in marihuana.

[119] With respect to the conspiracy that Tristin Jones did conspire with Robert Meyer to traffic in marihuana, counsel for Mr. Jones has conceded that based on the principle of comity that such a charge is made out beyond a reasonable doubt. [See R v. Meyer 2012 ONCJ 791] Crown concedes that there is no evidence that Jones conspired with Brian Crooks to commit the offence alleged. The only issue remaining to be decided is whether the Crown has proven beyond a reasonable doubt the conspiracy between Jones and Waldron to traffic in marihuana.

[120] It is undisputed that Robert Meyer was supplying Jones with marihuana. The Federal wiretaps furthermore make it evident that Meyer clearly understood that the marihuana he was supplying to Jones was being resold to other individuals. More specifically, that Jones was supplying other sellers. [See Exhibit 7 tab D5, D24, D46, D54]

[121] With respect to Waldron's involvement with Mr. Jones, it is clear from various text messages between the two that their collaboration dates back to a period prior to the events alleged. This evidence is relevant in order to inform the inferences that can be drawn from the evidence specific to the time period at hand. In March of 2010, Waldron contacts Jones in order to obtain some "trees" but qualifies that with "Not too much, I have to build up clientele first". The following day a similar conversation takes place between Waldron and Jones where Waldron inquires as to the product that is available and Jones advises him. Mr. Waldron then delays any new product for a day or two explaining that the product is moving slowly and he is trying to build up sales. [Exhibit 23, folder 613-806-6582, pages 20-29] Also part of that exchange is an indication by Mr. Jones that the marihuana product he has is going for $675.

[122] Expert testimony called by the Federal Crown in relation to the drug transactions indicated that a reference to 'trees' as well as 'white berry' are terms for marihuana. The expert, Detective Foley further indicated that a price of $675 was consistent with the price of a ¼ pound of marihuana. According to the Detective, a ¼ pound would sell for between $600 and $900.

[123] Of significance as well within the time period pre-dating the conspiracy is the frequency of the contact. A review of the cell phone communications between Waldron and Jones indicates that between March and June 2010 Waldron and Jones were in telephone contact an average of 45 times per month. In the various communications there are requests for information concerning the strain of marihuana available as well as pricing quotes and orders for various amounts. For example '675 for a ¼ pound of white berry'; a request for sour D or purple; skunk; request for a Q. [Exhibit 23; 613-282-6452 pp 6-26]

[124] Detective Foley testified that 'sour diesel', 'purple kush', 'sour kush', 'pplant' and 'skunk' are all strains of marihuana and therefore references to the drug. Of significance within this time frame as well is the frequency of the requests for drugs. Crown alleges that the reference to 'Q" is a reference to a ¼ pound. The Crown then points to a subsequent conversation for a ¼ pound followed by another ¼ pound 4 days later. This latter order is increased to a ½ pound according to the Crown later on in the day. The Crown suggests that in view of the size of the orders being made by Waldron the marihuana was clearly not for personal consumption.

[125] There are conversations between Waldron and Jones where the price and quality of the marihuana is discussed. More specifically on June 17th 2010 Waldron advises Jones that the "Q it short G". Several days later on the 30th of June 2010 Waldron texts Jones to see if he can get "the Q any cheaper". In addition to the price of the marihuana being discussed, Jones and Waldron speak of financial arrangements including Jones requiring payment up front despite a request from Waldron that the drugs be fronted to him and paid for at a later date. [Exhibit 23, text May 26th to June 30th 2010, pages 17, 34, 20]

[126] Amongst the intercepts filed by the Federal Crown were a number of conversations between Waldron and his other clients. There are references to parties wishing to "grab like a 3 and a half off you"; request for "like 2 grams"; a request for "1/2 Q and 2 G". [Exhibit 7, tab D25, D26]

[127] With respect to the time frame covered in the information, namely November 15th 2010 to March 9, 2011, there is the same type of conversation as occurred earlier in the year as between Waldron and Jones. There is however only one which occurs on November 22nd 2010. On that date Waldron seeks to confirm whether Jones has received a new supply. He then seeks a 'Q of the skunk'. Upon being told that Jones received an order of '½ sour and ½ skunk'. Waldron wishes a 'Q of the skunk' but is advised by Jones that he currently only has a few ounces [Exhibit 7, tab D2]. I do agree with the Crown interpretation that Mr. Waldron appeared to be frustrated that he could not obtain the amount of marihuana he wanted quickly. Waldron seemed to be requesting a ¼ pound of marihuana and Jones ultimately agrees to provide him with '2 ounces of sour and 2 ounces of skunk'. Interestingly enough, on the same day, but later on in the evening, Mr. Meyer attends Jones's residence very briefly. It is also significant to note that following Mr. Meyer's arrival at Jones's residence, Waldron also arrives. This may be suggestive of a certain level of cooperation and coordination between Jones and Waldron or it could be Waldron picking up the drugs Jones had agreed to provide him with.

[128] I do agree with defence's proposition that the reference in the wiretap to "This guy is freaking out" is not necessarily with respect to a customer, rather it appears to be a reference to the crying child that can be heard in the background of the call. In my view therefore, that statement has nothing sinister about it.

[129] In the course of cross-examination of Detective Foley, counsel for Mr. Waldron obtained various concessions from the expert that in some of the intercepts the reference to 'Q ' and '½ Q' could actually be to ounces. In addition, specific calls were confirmed as implicating gram level transactions. In at least three calls, namely those at tabs D-25, D-26, D-33 the references appear to be at the gram level. That having been said, the call at D-2 is a reference to a quarter pound given the request for 2 ounces each of the strains of marihuana.

[130] The expert also confirmed that while a purchase for 4 ounces could be for a purpose other than redistribution, given the product can last up to 2 months, this is not a usual practice. Detective Foley indicated that it is rare to see purchases for personal consumption at the ounce level. Detective Foley testified that where there is personal use it would be expected to find items such as pipes, bongs, tobacco, grinders and rolling papers. I do also note that nothing was found in Waldron's residence to support personal consumption.

[131] In R. v. Meyer the factors considered by the Court in arriving at a conclusion that an agreement to traffic was born out included the following factors;

a) Meetings, private conversations, telephone discussions

b) the nature of the conversations

c) Repeated sales between the parties

d) Knowledge by the conspirator of the relevant criminal scheme including knowledge of resale.

e) The presence of personal benefit

f) Market share between the parties in terms of one party creating a market demand for the other

g) A financial integration including how the buyer is paying the seller as well as any alternative arrangements to purchase drugs from later sales

h) Responsiveness to quality complaints demonstrating a high degree of responsiveness to the consumer demands [R. v. Meyer, supra, at para. 58]

[132] In that case, the Court was inexorably led to the conclusion that Jones and Meyer agreed to pursue a mutual criminal objective in which Mr. Meyer worked as the standing supplier for Jones's ongoing trafficking enterprise. It was a collaborative enterprise in which the two men agreed to work together.

[133] In this particular instance, that is to say a conspiracy between Jones and Waldron as well as a conspiracy between Waldron and Jones to traffic in marihuana, there is evidence of repeated phone calls as well as repeated supplying and the taking of orders. This however occurs primarily in the period prior to the charged conspiracy. Indeed, the bulk of the communications suggestive of an agreement take place between March and June 2010. It is clear that Mr. Waldron was to develop his own clientele for purposes of resale It is also clear that Jones was aware of it as Waldron says so directly to him. There was financial integration whereby Jones required that Waldron pay up front so that he could pay his own supplier. Jones and Waldron also discussed quality control such as orders being short. In that regard, the factors considered in R. v. Meyer are certainly present from March 2010 to June 2010. These would also clearly meet the requirements of a conspiracy as defined by the Court of Appeal in R. v. Sokoloski, supra; R. v. Lognworth, supra and R. v. Sohrabian, supra.

[134] Irrespective of the factors present in the spring of 2010, there must still be evidence of an agreement to traffic for the period charged in the information. On November 22 there is the telephone call between Waldron and Jones, a discussion about a quarter pound of marihuana and the attendance at Jones' residence by Meyer, the supplier, followed shortly thereafter by Waldron himself. I have not been directed to any other evidence on this point. There is no evidence of activity from June-November 2010 or from December 2010-March 2011. There is evidence of Waldron selling marihuana, but not who his supplier was at that time. There is no evidence of telephone calls, discussions of product, of size of orders, or any orders for that matter. While Jones may have been his supplier, the absence of any communication other than this one instance November 22, would suggest a contrary inference that indeed, there was another supplier.

[135] In my view, there is insufficient evidence for me to conclude on the existence of an agreement between Waldron and Jones to traffic in marihuana in the period charged in the information. This is not a case such as in R. v. Sohrabian, supra where the size of the shipment is so large as to make resale the obvious use. Indeed, the expert in this instance testified that it is possible that a purchase of 4 ounces is for something other than resale.

[136] In addition, there is no evidence of an agreement between Waldron and Jones to traffic on November 15, 2010 as alleged in Count 15 of the information. There is no evidence whatsoever about that date.

[137] Mr. Waldron is found not guilty of Count 15. With respect to Count 16, Mr. Jones is found guilty of conspiring to traffic in marihuana with Robert Meyer only.

Count #17

That between November 15, 2010 and March 7, 2011 Mr. Smith did conspire with Christian Farhat, Burt Dionne and Lovely Javier to traffic in marihuana by agreeing to traffic in marihuana.

[138] The Crown theory with respect to Jermaine Smith's trafficking activities was that Christian Farhat supplied Smith with marihuana and Mr. Smith stored the marihuana at an apartment in the same building as his own but occupied by Bert Dionne. At the time of the investigation Diana Lovely Javier was Smith's common law partner. Both Mr. Dionne and Ms. Javier assisted Mr. Smith with his trafficking activities as parties to his enterprise while the nature of the conspiracy with Farhat was a buy-sell conspiracy.

[139] To begin with, there is no issue as to the substance in this count being marihuana given the following: testing from the seizures; consistency in the names of the strains being used; Foley's evidence as to those strains being of marihuana; Foley's evidence that the prices were consistent with the various weights being sold.

Bert Dionne

[140] The Crown called evidence that Dionne was arrested on March 9th 2011 in apartment #1811 at 1365 Bank Street. At the time of his arrest his residence was searched and a cell phone with number 613-793-3389 was located. In addition, 3099.7 grams of marihuana were seized along with a scale, baggies, a Tupperware container and a blue Rubbermaid container. Most of the marihuana was found in 12 large freezer bags inside the Rubbermaid container.

[141] The extent of the voice identification evidence in relation to Mr. Dionne was Detective Benson testifying that on the January 26th 2011 intercept, he had heard the other voice previously and it was the voice of another resident at 1365 Bank Street. At the time he gave he gave his evidence, the specific name escaped him. This is my view is not a sufficient voice identification of the other speaker. That having been said, there are a number of factors which support the association of phone number 613-793-3389 with Mr. Dionne. The first is its location at the time of the search. In addition, on January 26th 2011, Smith placed a call from his phone to number 613-793-3389 directing that the person come downstairs and wear his jacket. Dionne lived in apartment #1811 while Smith was at #312. On March 8th 2011, Smith again contacts Dionne using the same phone number and there is a discussion with respect to the quantity of marihuana in the apartment and Mr. Smith asks "Is there 4 up there?" It's obvious that the conversation is with an individual living in an upper level apartment. Having listened to these conversations, the speakers appear to be the same. I am satisfied that based on all of the circumstances that the individual on the intercepted communications is Bert Dionne.

[142] On March 8th 2011 police were conducting surveillance of Mr. Smith and saw him meet with an individual in a red Hyundai Accent. At 12:47pm Mr. Smith received a 2 litre blue plastic Rubbermaid-like tote, consistent with the one located in Mr. Dionne's apartment. Smith carried the tote into 1365 Bank Street at 12:51pm. The next morning, March 9th 2011 a Rubbermaid container was located in Mr. Dionne's apartment full of marihuana. A photograph from March 8th 2011 was filed as an exhibit and it clearly indicates Mr. Smith carrying a large blue tote container.

[143] Later on, on March 8th 2011, Smith contacts Dionne looking for him to bring Smith a "QP". Detective Foley testified that a "QP" was short form for a ¼ pound of marihuana. In the course of the conversation Dionne indicates that he is not at home. Jones asks Dionne "How much is up there?" and Dionne ultimately responds that it's in his closet in his bedroom.

[144] In these calls Smith demonstrates that he knows Dionne is holding drugs and Dionne has no difficulty whatsoever saying where exactly the supply is stored, his bedroom closet. I do agree with the Crown submission that it is unlikely that this type of information would be shared unless it is a joint operation.

[145] In addition, throughout the intercepted calls involving Smith and his Christian Farhat, he was clearly purchasing marihuana at the pound or ½ pound level. At the time the search warrant was executed however, Smith had a relatively small amount of marihuana. Given the chronology of events from March 8th to 9th, it becomes obvious that Smith must have had some type of storage for the marihuana. Mr. Dionne's proximity, namely being in the same apartment building, makes Smith's access to the drugs very easy. In addition to the marihuana found in Dionne's apartment, there was also a scale and packaging baggies. Mr. Smith in contrast did not have any type of packaging paraphernalia in his apartment. It is reasonable to infer that an agreement existed whereby Smith obtained the supply, delivered it to Dionne who stored it and packaged it to assist the marihuana trafficking enterprise. I am satisfied that Dionne was an active participant in Smith's trafficking scheme and as such agreed to conspire to traffic in marihuana.

Diana Lovely Javier

[146] There is no voice identification of Javier. There is no admission that the voice heard on the intercept is Javier. There are no production orders confirming that the number attributed to Javier is indeed hers. The evidence connecting Javier to Smith is Detective Benson's evidence, one piece of mail found in the apartment at the time of the March 9th search as well as the contents of the calls. Detective Benson gave evidence that Javier was Smith's common law spouse and that they had a child. There is a call to the person believed to be Javier while at day care picking up a child confirming this. In the same call Smith inquires as to when she will be home as she will be repeating a transaction with a person called Rocky. [Exhibit 23, Tab D-60] There is a call to the number attributed to Javier where instructions are given as to where to find money in Smith's personal belongings. [Exhibit 23, Tab D-56 and D-64] Finally, there is a call from Smith to an unknown number indicating that "his girl" would look after the transaction. [Exhibit 23, Tab D-61] I do note however that it is not clear where the transaction will take place, which makes this reference inconclusive. Based on this accumulation of circumstantial evidence, I find that the voice on the intercepts is indeed that of Ms. Javier.

[147] With respect to the existence of an agreement to traffic in marihuana, a review of the intercepts filed shows that Ms. Javier acted as a substitute for Mr. Smith in collecting and paying for the marihuana or delivering supplies. For example, Ms. Javier began a conversation with Smith, which was continued with an unknown male when there was an issue from the buyer as to the product being sold. [Exhibit 23, Tab D-65] On two occasions Ms. Javier paid $2850 to an individual referred to as Rocky and was told to accept a package from him. [Exhibit 23, Tab D-57; D-60] Detective Foley testified that $2850 is consistent with the price of a pound of marihuana.

[148] It is clear from Ms. Javier's actions that she accepted and agreed to carry out the tasks she was directed to. She acted in concert with Smith in pursuit of a common goal. ([R. v. Papalia and Cotroni, supra]) Accordingly, I am satisfied that the Crown has proven beyond a reasonable doubt that there existed a conspiracy between Smith and Javier.

Christian Farhat

[149] The Crown alleges that Christian Farhat was Mr. Smith's drug supplier and the nature of their conspiracy was that of a buy/sell conspiracy.

[150] The first issue is whether Christian Farhat was captured on the wiretaps. There is no voice self-identification or recognition from any of the witnesses who testified. There are no production orders or an admission as to the phone line used by Farhat. There is one instance on January 21, 2011 where Farhat was under surveillance and located at a Costco garage at 12:05 according to Detective Benson. An intercepted series of text messages that same day at 12:02 indicate that the user of 613-853-6764 was at the Costco garage having his tires changed. [Exhibit 23, Tab D-51] At 13:45 there is a further message from that number saying the person is on their way and will be there in 10 minutes. [Exhibit 23, Tab D-52] Cst. Walrond of the OPS intercepted Mr. Farhat at 2:15 in the area of Billings Bridge Plaza, located across the street from Smith's residence on Bank Street. At the time of the stop, Mr. Farhat was found to be in possession of 1.5 kg of marihuana. The circumstantial evidence connects Mr. Farhat with 613-853-6764. I am satisfied from having listened to the inter­ceptions that it is the same person throughout.

[151] The intercepted communications filed show various strains being supplied by Farhat and the prices. [Exhibit 23, Tab D-17 to D-22] Detective Foley confirmed that these strains are indeed of marihuana (purple kush, juicy), as well as that one pound is typically priced between $1500 and $3000. Farhat was selling a half pound for $1250 and offered other types and weights for $2800. [Exhibit 23, Tab D-17, D-21] The intercepted communications filed show communications on a regular basis and at very short intervals in some cases where Smith wants more product. For example there are inquiries for product December 15, 17, 19, 23, January 5, 7. In one instance Farhat agreed to fix the price with a common customer and in another he agreed to lower his price but Smith had to be discreet about it. [Exhibit 23, Tab D-42, D19] Finally, Farhat was responsive to Smith's quality control issues, even agreeing to show the product to Smith prior to purchased. [Exhibit 23, Tab D-19, D-21, D-28] Farhat did not want to discuss business with Smith on his personal line, preferring another. According to Detective Foley this is not unusual, drug traffickers will often have multiple lines to avoid police detection.

[152] The factors above show a very high degree of integration between Smith and Farhat's respective enterprises. The amounts and frequency of the purchases suggest that Farhat was aware of Smith's redistribution to others. In addition, the financial arrangements and quality control issues outlined above are persuasive evidence of their common business goals. As in R. v. Meyers, supra at par 59, I find that the totality of the evidence leads to the conclusion that "This was a collaborative enterprise in which the two men agreed to work together so that [Mr. Smith] could sell narcotics, an enterprise that inured to their mutual benefit."

[153] I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Smith entered into agreements with Dionne, Javier and Farhat to a traffic in marijuana.

[154] Mr. Smith will be found guilty of Count 17.

Count #18

That Mr. Jones did transfer a firearm on November 20, 2010 contrary to section 99(2) of the Criminal Code.

[155] This count is premised on intercepted communications between November 18th 2010 and November 24th 2010. In addition, the Crown is also relying on surveillance conducted of Mr. Jones's residence on November 19th 2010 as well as the fruits of a search warrant executed at Devin Mayers's residence at 2046 Camrose Street in Ottawa. This warrant was executed in the early morning hours of November 20th 2010.

[156] On Thursday November 18th Devin Mayers contacts Mr. Jones in order to "check you for that today". Nothing specifically is said which would provide sufficient context to understand what "that" refers to. Based on Mr. Jones's response however, he understands what is being referred to and defers Mr. Mayers indicating "Not ready today. I ain't got all of them yet though."

[157] The next day Mr. Mayers again calls Jones, just before 11am. The context of the conversation is clear that this is a follow up from the previous day. Mr. Jones tells Mr. Mayers "I got the G". Mr. Mayers indicates that he will attend Jones' residence in approximately half an hour. This exchange between the two takes place at 10:52am and at 11:40am Devin Mayers arrives at the residence. Mayers enters the house and exits 10 minutes later. He was followed by police by car for some time but surveillance was ultimately terminated prior to his arrival at his own residence. He was identified as Devin Mayers by one of the officers conducting surveillance that day. In the early morning hours of November 20th 2010, police executed a search warrant that had been obtained late November 19th. At the time of the search Mr. Mayers spoke with police and given his concern about his elderly grandmother who was in the house, he offered to take police to the firearm. Mr. Mayers led police directly to the firearm. This firearm was a .9mm semi-automatic Ruger handgun with ammunition. The gun was tested and found to be in firing condition by Detective O'Brien.

[158] Detective O'Brien as well as Mr. Press gave expert evidence that "G" is a term that is used to refer to many things and its meaning is to be derived from the context. Both testified that "G" can sometimes refer to a firearm. On November 24th 2010 Mr. Jones speaks with Mr. Waldron and they discuss what has just happened to "D". Jones asks "Who D" and Mr. Waldron clarifies "Devin". Waldron indicates that Mr. Mayers's house had been searched. Mr. Jones says "Again." Mr. Waldron then says: "Must have find a ting, them ting you know." Mr. Jones's response to this was "Oh fuck." Mr. Jones then asks "what if they will find a burner". When seeking to establish the timing of the search, Mr. Waldron indicates "Fuck I don't know I just recently guy, you know what I mean." Mr. Jones replies: "Well it got to be recently, 'cause I see a [unintelligible] it could be last week."

[159] Mr. Press and Detective O'Brien testified that "burner" is a term that is commonly used to refer to a firearm. As noted above, "ting" is also a term used by these individuals to refer to firearms.

[160] Mr. Mayers, when he attends Mr. Jones's residence is not seen at any time with any type of bag. This having been said, it's clear from the surveillance photographs that were taken at the time that Mr. Mayer's was wearing a coat. It goes without saying that the absence of a bag is inconclusive as to having picked up a firearm.

[161] Counsel for Mr. Jones submits that the reference to a G is inconclusive and may be consistent with a grand, meaning $1000. He further suggests that the reference initially to "that" followed with "I ain't got all of them" is inconsistent with a gun. Further, that the next day the use of "things" as Mayers says "you think things are gonna be good today" seems to be consistent with a quantity of something being discussed. I don't agree with this last interpretation. "Things" in that context seems more of a general inquiry rather than a reference to an object. While Counsel points to a conversation between Mayers and Jones about money and the sale of marihuana at Exhibit 8, Tab13 consistent with such a theory, this conversation is in February 2011. I also find that this interpretation ignores the conversation from the 24th of November, much closer to the events and where Jones mentions a "burner", is concerned about the news and suggests a timing of the week prior. I further note that the 19th was in the week prior to the 24th of November in 2010.

[162] Taking the evidence in its entirety: the references to "G", "ting", "burner"; the concern expressed over the police search; the reference to a recent acquisition on Mayers's part; and the firearm recovered the next day from Mayers, there is an available inference based on objective facts that Mr. Jones transferred a firearm to Mr. Mayers at the time of his attendance on the 19th. The fact that nothing is seen in either Mr. Mayers's hands by way of a bag or the firearm itself in no way detracts from the inference given the nature of the item transferred and the ease with which it may be concealed. I do not find that the evidence when taken as a whole is consistent with other inference being suggested.

[163] I find Mr. Jones guilty of this count.

Count #19

That Mr. Smith offered to transfer firearm ammunition on November 26th 2010.

[164] On November 26th 2010 Mr. Smith has a relatively clear conversation with an unidentified male who is looking for "shells for a 32". Mr. Smith bristles at the terms being used and directs the caller to use code language. The caller then changes his language but only to a degree in that he now advises that he is looking for 32 sized jeans. He specifically refers to that being his waist size. Mr. Smith replies "Those are rare jeans". The caller, still keeping the clothing theme indicates he normally buys 34, knowing that the 32 are rare. Mr. Smith offers to provide them indicating however that they are rare but, "if it's in store I can get it."

[165] Providing further context to the analysis is a subsequent portion of the intercept where they speak about what they had been wearing at a local bar. The caller says "I was wearing that shit dawg". Mr. Smith replies: "You should of seen what my cousin is wearing...my little cousin wearing something nasty. Remember the retirement Jordan-the Jordan jersey...it was like a baby jersey like that." The two discuss carrying a firearm and the disposal of a firearm once it's been used, which they call "dirty". At the end of the conversation, Mr. Smith appears to be attempting to obtain the firearm indicating that he doesn't care that it was used in Ottawa and is dirty.

[166] Michael Jordan wore the #45 jersey after his return to the NBA from retirement. The term "Jordan retirement jersey" appears to be coded language to refer to a .45 calibre handgun. Detective O'Brien testified that the reference to the Jordan retirement jersey was clearly coded language to refer to such a handgun. He also testified that in Canada .32 and .25 calibre ammunition is prohibited as it is for small handguns that are easily concealed. He further testified that this ammunition is very hard to find. Mr. Press also testified that a firearm that has been used in the commission of an offence it less desirable and is often referred to as "dirty".

[167] Based on the content of the call, the language used both coded and un-coded I am satisfied that Mr. Smith offered to provide firearm ammunition to the caller. I am satisfied that ammunition was being discussed given the very direct language used, the characteristics of this type of ammunition as confirmed by the expert and the broader firearms discussion that takes place between the parties. I am also satisfied that the offer was to be taken seriously given the acknowledgement that while the shells were rare if they were available, Mr. Smith would obtain them. Furthermore, the insistence on Mr. Smith's part in reverting to a thinly coded discussion supports the interpretation offered of the wiretaps as well as the legitimacy of the offer.

[168] Mr. Smith will be convicted of this count.

Counts 20, 23-27, 30, 32

That Mr. Smith did offer to transfer a firearm on November 27th 2010, December 14th, December 21st, January 22nd 2011, January 26th 2011, February 5th 2011 and February 10th 2011.

[169] The evidence in relation to the above counts is found in the wiretaps marked as Exhibit 8, tabs 76, 101, 102, 48, 50, and Exhibit 8b. In short, the conversations that are found at those various tabs reflect Mr. Smith actively offering to purchase firearms and making various references to the desired type of firearms, prices, and his ultimate purpose which is to put them on the street for "war".

[170] For example, at Exhibit 8 tab 76 session 280, Mr. Smith is told that there are 30 of them coming and he asks with respect to the price. When he is told 23, Mr. Smith says "That's a little high". He counters with 22. In addition, he also tells the caller that he'll grab a couple of "baby 9s" following the caller advising him that there is a shipment of such firearms coming. He also specifically indicates that the guns need not be 'clean' saying: "Don't wash nothing."

[171] The call found at tab 50 session 1267 is a thinly veiled conversation regarding firearms. Mr. Smith phones an individual and advises him that he's forgotten his "hat" downstairs. The recipient of the call is unsure and so Smith clarifies, "Pittsburgh one" When the individual still is not clear, Mr. Smith states, "I swear, you don't know nothing." And then "You don't know how to read between lines homey." Ultimately Smith directs the individual to attend downstairs wearing his jacket.

[172] With respect to the conversation tab 102 session 1789, Mr. Smith is telephoned by an unknown individual. He is specifically asked with respect to having certain items, which according to Detective O'Brien, refer to firearms due to the "fireworks" reference. Detective O'Brien based this opinion on an association with a muzzle flash. Mr. Smith says that he does not have any and that he is trying to obtain some for a better price. The conversation in no way constitutes an offer to transfer either immediately or in the future. It's rather a reference to a search for a better price.

[173] At tab 101, session 1746 the parties involved are Jermaine Smith and an individual who has contacted him. The parties are having a conversation that's rather obscure. However, at one point there is a reference to two individuals having "straps". Subsequently Mr. Smith asks the caller "Is any of those around right now." A reference is then made to a "lil'a ting" followed by "prices are still steep." This has been interpreted as a reference to small firearms. Within the context of the previous conversation where Mr. Smith is advised of "baby 9s" becoming available shortly, the meaning would seem to suggest a reference to those firearms. Mr. Smith then follows up with "Yo I have a thing I could roll right now still heavy." ... " Yo Jordon's retirement." As previously noted the reference to 'Jordon's retirement' has been interpreted to be a reference to a .45 calibre firearm. Within the context of the above and previous conversations it is clear that Mr. Smith is speaking about firearms however, it is not clear that he is offering to transfer firearms.

[174] I find Mr. Smith not guilty of Counts 20, 23-27, 30 and 32.

[175] The conversations above, while not constituting evidence of the offences charged are nonetheless important to show how entrenched Mr. Smith is in the gun sub-culture and his active involvement in seeking out firearms.

Count #21 and Count #22

That Mr. Smith and Mr. Waldron did offer to transfer a firearm on December 3, 2010.

[176] Mr. Smith is charged in Count 21 and Mr. Waldron in Count 22 arising out of a conversation between the two. The Crown does not seek a finding of guilt against Smith (Count 21) but contends that Mr. Waldron's words constituted an offer to transfer a firearm.

[177] At Exhibit 8 Tab 78, session 729 Mr. Smith and Mr. Waldron engage in a conversation where Mr. Smith asks Waldron if he could borrow his 'jersey'. As previously noted, Mr. Smith commonly uses references to articles of clothing, especially sport jerseys. Based on this, it can be inferred that this reference is indeed to a handgun. Mr. Waldron's reply is that he did not have it. He indicates that he is "getting rid of it". In the wake of some consternation on Mr. Smith's part, Waldron indicates that he is "getting 5 for it B". Mr. Smith tries to persuade Waldron that he ought to keep it, and further indicates that he was going to try and obtain it right away for that particular evening. Mr. Smith adds that that evening he was attending at either a time or a place where nobody would be searched.

[178] The five has been interpreted as code for $5000 and, according to the expert evidence $5000 is at the high end for a firearm even on the black market. The indication from Detective O'Brien was that a firearm of that price would be for a high caliber, high quality handgun. The conversation attributed to Mr. Smith is consistent with the ones set out above in that it certainly confirms his involvement in the firearms subculture, with ready access to firearms and a willingness to carry them.

[179] With respect to the words attributed to Waldron, the Crown contends that the words constitute an offer to sell a firearm. The context of the conversation does not suggest that Mr. Waldron is offering to sell his firearm to Mr. Smith. Rather, it would seem that Mr. Waldron simply is not in a position to provide it to Mr. Smith having already committed it to someone else. While there certainly is a discussion with respect to price, that discussion is simply a statement as to the expected sale price for the firearm. This is not an instance of haggling or price setting. As a result, I cannot find beyond a reasonable doubt that Mr. Waldron offered to transfer his firearm.

[180] As a result, Mr. Waldron will be found not guilty on count 22.

[Counts #23-27 dealt with above]

Count #28

That Mr. Smith offered to transfer a firearm on February 5th 2011.

[181] The evidence for this count is found at Exhibit 8 tab 52 session 1959. In the conversation with an individual referred to as Dukes, Mr. Smith offers a firearm, "Yo you remember that thing you asked me for?... Yeah I could get one". There is an indication of a price of 3 or $3000 followed by an explanation by Mr. Smith as to prices being higher in the winter. This is in response to Duke's reaction to the proposed price. Mr. Smith then attempts to justify the price not only because of availability but desirability. He further indicates how this particular firearm became available. Dukes then indicates that he will think the matter over.

[182] The reference later on in the conversation to 'jerseys' and 'Bobby Orr' and 'Gretzky' are a reference to calibre. Detective O'Brien specifically indicated that within this context the language was suggestive of an offer for a 9mm handgun for $3000. The price was consistent with black market pricing for a "9mm.

[183] Based on the conversation as well as the evidence of Detective O'Brien I am satisfied that the conversation is an offer to sell a firearm. I am satisfied that the object being offered was a firearm based on: the thinly veiled technical information; the consistency with the offered price for such a firearm on the black market; the overall context including: the shooting in December, the conversations where Smith is searching out firearms, Mr. Smith's access to and willingness to dispose of firearms; and no evidence to the contrary. I am further satisfied that given the justifications as to price, desirability, and availability, it was an offer intended to be taken seriously.

[184] Mr. Smith will be found guilty of Count 28.

Count #29

That Mr. Smith did offer to transfer a firearm on February 5th 2011

[185] The evidence for this particular count is found at Exhibit 8 tab 53 session 2099. While occurring on the same day as the prior offer, in this particular instance the conversation is between Mr. Smith and a known individual namely Alexander Lacroix.

[186] Mr. Smith begins with "Know anybody looking for those things?" Mr. Lacroix at first is unsure as to what Mr. Smith is referring to but then a reference to a prior conversation seems to strike a chord with Mr. Lacroix who responds that he is not making very much money this particular month. He then qualifies this by saying "if those things are around I'm always interested." Price is given as 3, to which Mr. Lacroix responds "Wow". Mr. Smith then justifies the price by indicating that it's 'nice'. Mr. Smith also indicates to Mr. Lacroix that he was advised of the price the day before and was spreading the word. Mr. Lacroix responds that he's still holding onto something. Mr. Smith queries whether it is Gretzky and the response is yes. He adds that he is holding on to the old Michael Jordan "not the first number the second number". Smith responds by laughing through some of the exchange and then adds "ok, I got a mini – yeah whites yeah"...."I got a mini version of that dawg." ..."says its more it has like more dental work in it."

[187] Detective O'Brien testified that the reference to Michael Jordan's second number refers to a .45 calibre handgun. In addition, the reference to dental work is coded terminology for ammunition.

[188] It's clear from this conversation and prior ones that Mr. Smith routinely uses references to various sporting personalities' jersey numbers in order to describe firearms: Gretzky, Michael Jordan, Bobby Orr (in error). It is also clear from the initial portion of the conversation that Mr. Smith offered a firearm to Mr. Lacroix. I am satisfied that the object being offered was a firearm based on: the thinly veiled code for the friaream; the technical information; the consistency with the offered price for such a firearm on the black market; the overall context including: the shooting in December, the conversations where Smith is searching out firearms, Mr. Smith's access to and willingness to dispose of firearms; and no evidence to the contrary. I am further satisfied that given the justifications as to price, desirability, and availability, it was an offer intended to be taken seriously. Mr. Lacroix despite demonstrating some initial reluctance indicates that he is always interested. It is irrelevant whether the transaction ultimately took place or whether Mr. Lacroix backed out. Rather, the exchanges within the conversation show that the offer was intended to be taken seriously and in fact was taken seriously by Mr. Lacroix.

[189] Mr. Smith will be found guilty of Count 29.

[Count 30 dealt with above]

Count #31

That Mr. Waldron did offer to transfer a firearm on February 5, 2011

[190] The evidence for this count can be found at Exhibit 5, tab 109, session 892, as well as the entire context of the evidence and Detective O'Brien's opinion.

[191] Essentially, Detective O'Brien has given the opinion that in this call the unknown male is urging Mr. Waldron to part with a firearm. ["sexy bitch"] It appears that Mr. Waldron is playing coy with the potential purchaser in that he initially indicates he is not trying to get rid of it. Waldron tells the caller that he has a potential other buyer and asks the male if it's for him specifically or for some­one else. The response is for himself. This seems to have some impact on Waldron who then indicates that 4 is the minimum. Detective O'Brien put this at $4000 minimum for the firearm.

[192] In terms of the terminology found in the call 'sexy bitch' is consistent with prior conversations where reference is made to 'bitches' or female gender. While the range provided by Detective O'Brien for firearms on the street indicates $4000 being on the upper end, it is not inconsistent with the pricing seen and, as Detective O'Brien has noted, it depends on the calibre, appearance, availability, and desirability.

[193] Defence counsel suggests that because Waldron begins by saying "I'm not even trying to get rid of it", this would be inconsistent with offering anything for sale. The other alternative is that Mr. Waldron is playing coy in order to drive up the price. Indeed, his reference to potentially having another buyer in the wings certainly would support such an interpretation. At the conclusion of the call Mr. Waldron indicates that the buyer should contact him if he comes across the necessary funds or requires a 'ting'. The male's response "I have the bread yo, I'm just like [unintelligible] needs something now you know [unintelligible]". This would seem to be a stalling tactic on the part of the purchaser rather than disinterest. The fact that the sale is not concluded or not pursued beyond seeking the price does not take away from the offer made by Waldron.

[194] I am satisfied that the object being offered was a firearm based on: the terminology used; the consistency with the offered price for such a firearm on the black market; the overall context including Mr. Waldron's access to and willingness to dispose of firearms; and no evidence to the contrary. I am further satisfied that given the discussion as to price and who the end user would be, that it was an offer intended to be taken seriously. In those circumstances, I am satisfied that the offence has been proven beyond a reasonable doubt.

[195] Mr. Waldron will be found guilty of this count.

[Count #32 dealt with above]

Count #33

That Mr. Waldron did offer to transfer a firearm on February 11, 2011

[196] This count arises out of a text-message exchange with an unknown person on February 11, 2011. The exchange found at Exh 8, tabs 151-155 is as follows:

Yo dog its stacks I need to borrow some cake im in a tight situation

At work man Wat u looking for And when imam gonna get it back

I need 2 staks il give it bak in 1 month

Lol Damn Nigga U gonna have to send me some collateral till then

U can hold my 45 mix tape no problem.

[197] Crown argues that Mr. Waldron needs a $2,000 loan and that he is offering his .45 handgun as collateral. Defence argues that these terms are inconsistent with prior exchanges in terms of the language and therefore it is impossible to attribute true meaning to them. In addition, counsel opines that Count 31 and the offer to transfer a firearm for $4,000 would obviate the accused's need for $2,000.

[198] Detective O'Brien advised that "45" referred to a .45 calibre handgun given the number itself. He was not however familiar with other instances of language such as "mix tape". Two thousand dollars, being the amount of the loan was however within the range for a .45 firearm. The number 45 arises too consistently within these wiretaps and text messages to be coincidental. I do not agree with defence counsel that there is a connection between 45 and 33 being record speeds and therefore the reference to a mix-tape being legitimate. This is conjecture in my view. Furthermore I do not find it likely that a $2000 loan would be secured with a mix-tape.

[199] I am satisfied that the object being offered was a firearm based on: the terminology used; the consistency with the offered price for such a firearm on the black market; the overall context including Mr. Waldron's access to and willingness to dispose of firearms; and no evidence to the contrary. I am further satisfied that given the context, namely security for a loan, that it was an offer intended to be taken seriously. In those circumstances, I am satisfied that the offence has been proven beyond a reasonable doubt.

[200] Mr. Waldron will be found guilty of this count.

Count #34

[201] Withdrawn

Count #35

That Mr. Smith did possess cannabis marihuana contrary to s. 4(1) of the CDSA.

[202] At the time Mr. Smith's residence was searched on March 9, 2011, 3 rolled marihuana cigarettes were located as well as a further 8.3 grams of marihuana. Mr. Smith occupied the apartment with his girlfriend as was evidenced by pieces of mail in both of their names, which were also seized at the time of the search. While the cigarettes were found in the open, the 8.3 grams were found in the closet. At exhibit 7, Tab D-61 the wiretaps the accused undertakes to have "his girl" complete a transaction. At tab D-64 the accused directs the person in the apartment to the closet. Knowledge and control are clearly established.

[203] Mr. Smith will be found guilty of this count

Count #36, 38 and 39

Mr. Jones is charged with possession of a conducted energy weapon (CEW) contrary to:

section 88(2) possessing a weapon dangerous to the public peace;

section 91(3) possession of a prohibited weapon without a licence; and

section 92(4) possession of a prohibited weapon while knowingly not holding a licence.

[204] Mr. Jones has admitted that he did not possess a licence. This item – that was described by Detective Benson as a CEW, was found in Mr. Jones' car on the day of his arrest. Detective Benson testified that he could not recall if on the day of the seizure the item was charged. He pointed out the various plug ins and buttons. It is unknown whether the alleged CEW is operational or can be made operational. It is unknown whether the item fits the definition or description found in SOR/98-462 Part 3, para 6.

Any device that is designed to be capable of injuring, immobilizing or incapacitating a person or an animal by discharging an electrical charge produced by means of the amplification or accumulation of the electrical current generated by a battery, where the device is designed or altered so that the electrical charge may be discharged when the device is of a length of less than 480 mm, and any similar device.

[205] I am not persuaded that the Crown has demonstrated beyond a reasonable doubt that the item was CEW. If it is not even known if it was charged or was even turned on, it is unknown whether there was any current such that it would meet the definition in section 6. In my view, the absence of any such evidence altogether causes the evidence to fall short of proving that the item was indeed a prohibited weapon as contemplated in the definition above.

[206] Were there some evidence about the functioning of the CEW then that, combined with the activities of the accused, could lead to an inference that it was possessed for a purpose dangerous to the public peace. However, without such evidence, the Court is left to consider a look-alike cell phone found in a car that does not satisfy the definition of a CEW in the Regulation. In the circumstances I am not prepared to draw the inference.

[207] As a result, Crown has not discharged its burden and the accused Mr. Jones is found not guilty on these counts.

Count #37

That Mr. Smith is possessed a prohibited device – butterfly knife – without being the holder of a licence, contrary to section 91(3) of the Criminal Code.

[208] As noted above, during the search of Smith's residence on March 9, 2011 a butterfly knife was located in the living room. The knife at issue was described by Detective Benson as a single blade on a double hinge. This hinge covers the blade and can be flipped open. The knife itself satisfies the definition of a prohibited weapon in that, according to Detective Benson's evidence, very little force was needed to flick it open. Mr. Smith has admitted that he did not possess a licence for the butterfly knife recovered in his residence.

[209] Mr. Smith is found guilty of this count.

Count #40

That on March 9, 2011 Mr. Jones did possess for the purpose of trafficking cannabis marihuana contrary to s. 5(2) of the CSDA

[210] On March 9th 2011 at the time various search warrants were executed, police located 118.5 grams of marihuana in Jones's possession. In addition to the actual marihuana there were various bags for packaging as well as a digital scale. Based on the foregoing as well as the intercepted communications Mr. Jones is conceding that the Crown has proven that possession of the purposes of trafficking of marihuana.

[211] As a result I find Mr. Jones guilty of this count.

Count #41

That on March 9, 2011Mr. Smith did possess cannabis marihuana for the purpose of trafficking contrary to s. 5(2) of the CSDA

[212] At the time of the search on March 9, 2011, 10.8 grams of marihuana were located in Mr. Smith apartment. On that same date, 3,099.7 grams were located in Mr. Dionne's apartment above. Can the Crown prove beyond a reasonable doubt that Smith possessed marihuana for the purpose of trafficking or that he had constructive possession of the marihuana in Dionne's apartment?

[213] To begin with, the substances taken form the locations were tested and came back as marihuana. Surveillance evidence shows Smith meeting with an individual and receiving a large blue tote on March 8, 2011. On March 9, 2011 a large blue Rubbermaid tote was located in Dionne's apartment containing a significant quantity of marihuana. There were over 3 kilograms of marihuana in total in the apartment.

[214] Still on March 8, 2011, Smith has a conversation with Dionne where he says to Dionne "you wanna bring a QP". The response is "I can't I'm not at home". What follows is a conversation about who is in the apartment and what is available:

Smith: is there four up there

Dionne: uh y – there should be yeah

Smith: well I need it right now

Dionne Okay

Smith: Umm

Dionne: I'll get him to bring it to you

Smith: Okay yo I wanna wanna QP dawg

Dionne: it's in my closet in my bedroom

Smith: alright well tell them was it the new one

Dionne: yeah yeah yeah

Smith yeah tell them tell them call them and tell them right now

[215] It is obvious from this exchange that Smith is aware of the presence of the drugs in the apartment and is directing Dionne as to what to do with them.

[216] Detective Foley's evidence indicates that 3kg of marihuana is well outside those amounts which are typical for a user, even a heavy one at that. In addition, he advised that amounts of marihuana in the pound to kilogram level are found in upper level trafficking by contrast with street level trafficking, which is at the gram to ounce level. With respect to paraphernalia, Detective Foley testified that individuals engaged in drug trafficking would also typically have multiple cell phones, scales and packaging material. In both Smith and Dionne's apartments police found scales and multiple cell phones. In Dionne's apartment ziplock bags were also found.

[217] Finally, intercepts at Exhibit 23 tabs D-56, 57, 59, 60 and 64 show Smith directing someone in his apartment to receive money and drugs as well as give money and drugs to individuals coming to the apartment when he is not there.

[218] Overall, the evidence shows that Mr. Smith had knowledge as to the presence of marijuana at both apt 312 and apt 1811 at 1365 Bank Street. He directed individuals at both locations as to the disposal of the marijuana as well as other related activities. Sum total he was in actual possession as well as constructive possession of the drugs. This, combined with Detective Foley's evidence as to the amounts involved and paraphernalia being consistent with trafficking, I am satisfied that this count has been proven beyond a reasonable doubt.

[219] Mr. Smith will be found guilty of count 41.

Count #42

That on March 9, 2011 Mr. Jones did possess proceeds of crime derived from trafficking contrary to the Criminal Code.

[220] On March 9th 2011, at the time of the execution of the search warrants at Jones's residence located at 967 Eiffel Avenue, police located $2595 in Canadian currency and $1,060 of US currency. $1755 of the cash was found on Mr. Jones' person.

[221] The Crown urges that I draw the inference that given the cash nature of drug trafficking that the only reasonable inference is that some if not all of the cash was proceeds from Jones's trafficking. Detective Foley testified that drug trafficking is a cash business and that banks are not typically used to store cash in order to avoid police detection. Defence argues that Tristin Jones operated a food preparation and distribution business and that it would be reasonable to assume that that would be a cash business as well. Defence also points to the fact that Mr. Jones shared the home with his spouse Natasha Duckworth and that these two factors answer the suggestion that the funds are the proceeds of crime. With respect to the defence suggestion that the business operated by Mr. Jones answers the theory that the money is proceeds of crime, there is very little evidence with respect to this business. Indeed, while Detective Shabazz received information with respect to the fact that Mr. Jones sold macaroni pie and flying fish, as well as occasional sightings of Mr. Jones with Styrofoam-like containers, there is no evidence with respect to the size of the business or that it is indeed a cash business. With respect to Ms. Duckworth, the information received is that she is employed with the prime minister's office. Again, this information was provided by Jones to Detective Shabazz. As is obvious, such employment would in no way account for the money found in the residence.

[222] Defence further argues that the presence of the American currency could be accounted for given that some people travel to the US and thereafter will retain money after such a trip. There is no evidence to support this theory and is pure speculation.

[223] Given the conclusion that Jones was trafficking in marihuana, given the drugs found in the residence along with the tools of the drug trade, and finally given the amount of amount of cash seized from Mr. Jones specifically, it is a reasonable inference that the currency seized was the proceeds of his illegal activities.

[224] Mr. Jones will be found guilty of this count.

Released: September 25, 2013

The Honourable Justice J. V. Loignon