Ontario Court of Justice

Date: July 20, 2016

Between:

Her Majesty the Queen

— and —

Jovhan Robinson

Before: Justice Nakatsuru

Heard on: May 10, 16, 18, 2016

Reasons for Judgment released on: July 20, 2016

Counsel:

• S. Sgouromitis, for the Crown
• G. Gross-Stein, for Robinson

NAKATSURU J.:

A. Introduction

[1] Mr. Jovhan Robinson is said to be an aspiring gun trafficker and a robber. Mr. Robinson pretty much admits that he got himself involved in talk about both. However, he claims that he was not very good at it. He is now charged with some very serious crimes including conspiracy. The question is whether he is a criminal or whether he was just a foolish young man.

[2] The Crown's case relies almost in its entirety on interceptions of private communications made during the course of a police investigation named Project RX. The central intercepts occurred during a short time period between April 10 and April 17, 2014. The telephone calls and text messages are mainly between Mr. Robinson and an alleged co-conspirator, a Mr. Shaquan McLean. Mr. Robinson has testified in his own defence. Given his testimony, much of the factual issues in this case have narrowed considerably. A large part of the Crown's case has not been contested by the defence. Indeed, the defence does not dispute much of what is said in the intercepts. It comes down to what is the legal effect of these communications.

[3] Mr. Robinson faces four charges: 1). That he with Mr. McLean and/or with another person or persons, conspired to commit the indictable offence of weapons trafficking contrary to s. 99(1) of the Criminal Code; 2). That he did transfer or offer to transfer a firearm knowing he was not authorized to do so contrary to s. 99(1) of the Criminal Code; 3). That he with Mr. McLean and/or with another person or persons, conspired to commit the indictable offence of extortion contrary to s. 343 of the Criminal Code and; 4). That he with Mr. McLean and/or with another person or persons, conspired to commit the indictable offence of robbery contrary to s. 344 of the Criminal Code.

[4] I intend to do the following in these reasons. I will first deal with the conspiracy to extort and rob. I will then deal with the final two counts relating to the attempted purchase and sale of a specific firearm, a Para-Ordinance 9 mm handgun. While my focus will be on the communications between Mr. Robinson and Mr. McLean, I am mindful there is a large body of evidence, including other interceptions of private communications that form a part of the Crown's case. If it were not for Mr. Robinson's testimony which involved significant admissions, more reference to other evidence would have been needed. Given how this case was ultimately litigated, the focus of the parties' submissions has been on these communications between Mr. Robinson and Mr. McLean.

B. The Conspiracy to Rob and Extort

[5] These two counts can be dealt with together as they essentially are about the same transaction. On April 10 and 11, 2014, Mr. Robinson and Mr. McLean discuss a potential robbery of a drug dealer. To facilitate the robbery, they discuss sending a bullet through the home of the dealer. Hence, the extortion conspiracy.

[6] The Crown's case boils down to essentially three calls with the focus on one call between Mr. Robinson and Mr. McLean. That said I must also consider the whole of the evidence which includes other intercepted communications. Some are relevant to establishing the relationship between Mr. Robinson and Mr. McLean. I must also consider Mr. Robinson's own testimony.

[7] Before turning to the assessment of that evidence, I will briefly set out the law on the essential elements of a conspiracy.

1. The Essential Elements of a Conspiracy

[8] It is settled law that there are three essential elements the Crown must prove beyond a reasonable doubt in a conspiracy: 1) an intention to agree; 2) the completion of an agreement to commit an indictable offence; and 3) an intention to carry out the agreement/common unlawful design: see R. v. Marshall (2015), 2015 ONSC 4593, 22 C.R. (7th) 318 (Ont. S.C.J.) at para. 40; R. v. O'Brien, [1954] S.C.R. 666 at p. 668; R. v. Cotroni; Papalia v. The Queen, [1979] 2 S.C.R. 256 at pp. 276-7; R. v. Root (2008), 2008 ONCA 869, 241 C.C.C. (3d) 125 (Ont. C.A.) at paras. 63 to 72.

[9] A fundamental point of contention between the parties in this case is whether the evidence has proven beyond a reasonable doubt that Mr. Robinson and Mr. McLean had reached an agreement to commit the relevant indictable offence. There is no question that the two had discussions about it. However, absent an agreement, mere discussion about a crime does not result in culpability. The law has consistently made this point. In R. v. O'Brien, (1974) 59 Cr. App. R. 222 at p. 225-6, the Lord Chief Justice of the English Court of Appeal phrased it in this way in a case where the accused was charged with conspiring to effect a prison break for three IRA prisoners:

The difficulty which the learned judge might have encountered had he gone more fully into this point is this, that the essence of a conspiracy is an agreement, and persons do not commit a criminal offence merely by talking about the possibility of committing some wrongful or unlawful act unless they reach the stage when they have agreed to commit that act if it lies in their power.

The dividing line between those two matters is a very narrow one, as is illustrated by an earlier decision in this Court. Mills (1963) 47 Cr. App. R. 49 ; [1963] 1 Q.B. 522. The relevant extract is to be found on p. 54 of the Criminal Appeal Reports. In his judgment Lord Parker C.J. says this: "No doubt in many cases it may be a very fine line whether the parties at the particular moment under consideration are merely negotiating or whether they have reached an agreement to do something if it is possible or propitious to do it, and it may be that those cases will be decided largely on the form of the reservation. If the reservation is no more than if a policeman is not there, it would be impossible to say that there had not been an agreement. On the other hand, if the matters left outstanding and reserved are of a sufficiently substantial nature, it may well be that the case will fall on the other side of the fence, and it will be said that the matter is merely a matter of negotiation."

[10] Professor Peter MacKinnon who is cited in the case of R. v. Lessard (1982), 10 C.C.C. (3d) 10 (Que. C.A.) at p. 87 makes the same distinction:

But consultation, advice, awareness and approval do not, either separately or cumulatively, make a conspiracy. Liability should require, and in theory does require, that there be an act of agreement. And the agreement must be to participate together in the co-operative pursuit of a common object.

[11] Given that conspirators do not draw up written contracts evidencing the agreement, the question naturally flows what does such an agreement look like? An agreement can be either tacit or explicit. Proof of it usually relies upon circumstantial evidence. Doherty J.A. provides a useful description of it as a "meeting of the minds" in the case of R. v. Alexander and Blake (2005), 206 C.C.C. (3d) 233 (Ont. C.A.) at para. 48:

The actus reus of the crime emphasizes the need to establish a meeting of the minds to achieve a mutual criminal objective. This emphasis on the need for a consensus reflects the rationale justifying the existence of a separate inchoate crime of conspiracy. Confederacies bent upon the commission of criminal acts pose a powerful threat to the security of the community. The threat posed by a true agreement to jointly bring about a criminal end justifies a pre-emptive strike by the criminal law as soon as the agreement exists, even if it is far from fruition. However, absent a true consensus to achieve a mutual criminal objective, the rationale for the crime of conspiracy cannot justify criminalizing joint conduct that falls short of an attempt to commit the substantive crime.

[12] Armed with these considerations, I will now turn to the evidence in this case. There are additional legal issues I need to address but I will address those during the relevant portions of my decision.

2. The Testimony of the Accused on the Robbery/Extortion

[13] Mr. Robinson testified and his credibility is a significant issue. Of course, I am aware that the doctrine of reasonable doubt applies to this issue of credibility. I will later address my findings that I have made with respect to Mr. Robinson's general credibility. For the moment, I intend to focus on his evidence as it relates to the two counts charging him with conspiracies to commit the offences of robbery and extortion.

[14] Mr. Robinson is a 26 year old man who lives with his grandmother in Toronto. He is presently in the second year of a three year program at George Brown College. He has no criminal record. He met Mr. McLean through his sister who was dating Mr. McLean's uncle's brother. Mr. Robinson met him about 5 or 6 years before. Mr. McLean lived in Scarborough and was younger than Mr. Robinson. Mr. Robinson testified that he saw Mr. McLean here and there, at family functions, and then began to see him more.

[15] Mr. Robinson admitted that he trafficked in weed. He sold at the ounce level. Mr. McLean knew that Mr. Robinson sold marijuana. The accused also admitted that he spoke with Mr. McLean about potentially robbing someone involved in selling marijuana. However, Mr. Robinson testified that nothing came of it. When asked about the intercepts relied upon by the Crown, the accused agreed that they were talking about robbing someone and about firing a bullet through his home. However, Mr. Robinson testified that all of this was merely in the realm of possibility and that this was just talk and negotiation. The person Mr. Robinson had in mind to rob was a man who he knew by the name of Justin who lived in Hamilton. He knew of Justin through the barbershop they both visited. It seems that Justin would brag about the money he made selling marijuana. Mr. Robinson did not know where Justin lived. There was no plan made to rob him according to the accused. Mr. Robinson also admitted that he and Mr. McLean would talk about other possible robberies.

[16] The topic of robberies had come up 2 or 3 months before the April intercepts. Mr. Robinson agreed they talked about who would be easy to target. Mr. Robinson agreed in cross there may have been 2 other targets and that he was the person providing them. Mr. Robinson also thought it was best to have a gun for the robbery. According to Mr. Robinson no one else was going to participate in it other than him and Mr. McLean. With respect to the idea of putting a bullet through the house, it was Mr. Robinson who came up with that. In his view, if that was what it would take he would do it. However, he did not have a gun. In cross-examination, despite considerable pressure, Mr. Robinson denied that they had a plan or an agreement. He insisted that this was all just talk or negotiating with Mr. McLean and that this talk came to nothing.

[17] The defence argues that I should accept this part of Mr. Robinson's testimony as being true. The Crown takes an opposing view. I have given it careful consideration. Mr. Robinson was frank and candid in his evidence. He did not evade responsibility. He maintained his position under cross-examination. There was really nothing particular in his testimony in terms of demeanour and substance regarding the robbery/extortion that causes me to reject his evidence.

[18] It is true that there were few details given by Mr. Robinson about the target. But that is not a reason to discount his testimony. It was consistent with his position that no agreement had been reached to rob this Justin. Further, when subject to the test of plausibility, I do not find his testimony implausible. Mr. McLean and Mr. Robinson are not up to much good. They talk of illegal activities and this robbery and extortion is but one such topic. They talk but do not actually come to an agreement. Finally, I have also analyzed the intercepts themselves. This is further discussed below. That analysis is consistent with what Mr. Robinson essentially testified to.

[19] All that being said, I cannot wholeheartedly accept without reservation all of Mr. Robinson's testimony. I will explain that further when it comes to the other charges. For the purpose of these counts though I do accept his testimony when it comes to the robbery/extortion.

3. Analysis of the Evidence on Counts 3 and 4: The Conspiracies to Rob and to Extort

[20] The fundamental issue here is whether the Crown has proven beyond a reasonable doubt that this alleged conspiracy existed. If it did, there is really little doubt who were the members of the conspiracy. There is no credible or reliable evidence to suggest it was a larger conspiracy than Mr. Robinson and Mr. McLean. Now I must point out that a two person conspiracy does pose difficulties when it comes to the co-conspirator's hearsay exception. The law requires that the three stage procedure set out in R. v. Carter (1982), 67 C.C.C. (2d) 568 (S.C.C.) apply. However, in a two person conspiracy, care must be taken in ensuring that hearsay is properly accounted for in the assessment of the evidence: see R. v. Bogiatzis (2010), 2010 ONCA 902, 285 C.C.C. (3d) 437 (Ont. C.A.) and R. v. Puddicombe (2013), 299 C.C.C. (3d) 534 (Ont. C.A.).

[21] At the first stage of the analysis, the whole of the evidence including hearsay can be considered with respect to whether the Crown has proven beyond a reasonable doubt the existence of the conspiracy. This is required before probable membership based upon evidence directly admissible against Mr. Robinson is considered on the second stage. It is at the first stage that the defence and the Crown join issue. The Crown submits that a conspiracy has been proven beyond a reasonable doubt based on all of the evidence. The defence submits that it has not.

[22] I have listened carefully to the call on April 10, 2014, at 7:19 p.m. between Mr. Robinson and Mr. McLean. I have listened to the tone of the conversation and carefully considered what was being said. The language has some slang and codified words. The two men refer to a "poon" and an "eat". Sgt. Ganz who was qualified to provide expert opinion evidence testified that "poon" could mean a gun and an "eat" could mean a robbery. Mr. Robinson testified that in fact this is what the words mean.

[23] The call is short. Mr. McLean calls Mr. Robinson and asks is it looking good for this week or next. Mr. Robinson initially thinks he was referring to a firearm and says he could call him to see what is going on. At this point in time, Mr. McLean corrects him and says he is talking about the "eat".

[24] Mr. Robinson then clues in. He quickly starts to talk, rambling a bit in my opinion, and says he is trying to "get the same one that we wanted to do". He says the guy is sitting on at least twenty, is a nervous person, and that he "wanna fucking at least send one, at least one through his house, like you know, at least a… one single grain through there." A "grain" refers to a bullet. Mr. Robinson says the man is coward and would bring them what they want. Mr. Robinson says that is how he wants to kinda deal with it. Mr. McLean replies yeah "we could deal with that too" and then goes on to talk about the gun.

[25] In assessing the weight to be given to this call, first of all, I recognize that Mr. McLean says "yeah" a number of times during the call but placed properly in context, I find he is simply stating he has heard what Mr. Robinson is saying. It is not an explicit assent or agreement to the substance of what was being said. Even when Mr. Robinson sets out his view about sending a bullet through the house, Mr. McLean briefly states we "could" do that but not much weight can be attached to that in terms of concluding from this exchange a true agreement. As in any conversation, context is important. While it is a possible inference there is an agreement being expressed between the two men in the call, the overall substance of the call is ambiguous enough that I am not able to draw that inference with certainty.

[26] Secondly, I am struck by the exchange as evincing a kind of false bravado on the part of Mr. Robinson about how he wanted to do things. It comes across as hardly thought out. It seems that Mr. Robinson is just responding to the inquiries of Mr. McLean off the top of his head. Quite frankly, Mr. Robinson comes across as not even having a plan to rob or extort but as just talking. It also seems clear that Mr. McLean seems to be hearing this for the first time. Hearing that Mr. Robinson thinks it is a good idea to send a bullet through the house. I should add that Mr. Robinson does not even have a gun at this time.

[27] Thirdly, it is clear that Mr. Robinson and Mr. McLean have talked about something like this before. But from the confusion at the beginning of the conversation about what they are talking about and how Mr. Robinson reacts when Mr. McLean says he is referring to the "eat", they have not had serious conversations about the robbery. In other words, it is not at the forefront of their minds when they are speaking. It seems from the flow of conversation that Mr. McLean is essentially asking about the robbery they had talked about and is it going to happen soon. Mr. Robinson then simply puts Mr. McLean off with excuses and bluster.

[28] Finally, in my view, not much weight can be placed on Mr. McLean's comment made after Mr. Robinson proposal of putting a bullet through the victim's house. To infer from these brief remarks that an agreement to commit the offence of extortion was solidified given the context of the evidence as a whole, is asking too much.

[29] Another call was made on April 11, 2014, about 45 minutes after midnight. It is between Mr. McLean and an unknown male. It is clear the two know each other and are friends of sort. Mr. McLean's comments are not always clear. He is on a cellphone at Jack Astor's. Part of this longer conversation involves social talk including references to individuals who were having problematic sexual dalliances. Other parts are more relevant to the charges. One part deals with talk about firearms that Mr. McLean was interested in getting. Another part is relied upon by the Crown in terms of these two particular conspiracies. This is of course hearsay but it can be relied upon to prove the existence of the conspiracy. After Mr. McLean and the unknown male greet each other and inquire into how each is doing, Mr. McLean states that "Chubbs says he has an eat". Chubbs refers to Mr. Robinson. Mr. McLean says a bit more in this part but the portions are not clear enough for me to determine definitively what is said. I emphasize that it is the audio that is the evidence and not the transcript provided as assistance to the audio's comprehension. Mr. McLean then says it is a "proper one".

[30] Thereafter, the unknown male talks about now being the best time because someone is not working. Then tomorrow is Friday and "Sunshine" is coming in to check the unknown male anyways. The unknown male says "So, if we have a food to go and crush, you already know. That's the best thing to do." According to Sgt. Ganz, "food to go and crush" could mean drugs to rob. The conversation then steers into a different direction about the guns.

[31] The Crown submits that this is Mr. McLean attempting to recruit this unknown male to the plan. In other words, this call is an act/declaration in furtherance of the robbery plan agreed to by Mr. McLean and Mr. Robinson.

[32] I have given careful consideration to the call and the position of the Crown. I do not accept the Crown position. Certainly this is a possible inference available but I do not draw that inference. I find that the conversation is too brief and too opaque to find that Mr. McLean is trying to recruit the male speaker or some other male. There is no actual request by Mr. McLean for anyone to participate. It could also simply be this unknown male commenting favourably on the idea to rob.

[33] There is one last call on April 11, 2014 at 2:48 p.m. between Mr. Robinson and Mr. MacLean but there is only a brief reference to the "eat". It was briefly mentioned when Mr. Robinson clarified they were talking about the gun and not the robbery. I find that there is little significance to this call in terms of proof of the conspiracies found in counts 3 and 4.

[34] I recognize that I must assess these calls in the context of the whole of the evidence including the other intercepts and the testimony of the accused.

[35] In doing so, I make the following observations. It is evident that there are not a lot of calls presented by the Crown dealing specifically with these counts. That said I recognize that even one call can prove an agreement beyond a reasonable doubt. In addition, a conspiracy need not be a complicated one. The plan can be simple. The agreement does not have to be well thought out or even a considered one. Furthermore, the co-conspirators do not need to agree upon the details of the plan or even be aware of those details. Finally, I understand that there can be a conspiracy even though it may be conditional or there may be some form of reservation.

[36] Here there is no evidence that Mr. Robinson or Mr. McLean ever acted upon their discussions about the robbery or extortion. Again, while such acts in furtherance are not necessary for there to be proof of a conspiracy, their existence is relevant in proving the existence of a conspiracy. The absence of any such evidence suggests that an agreement had not yet been reached. In this case, no steps were taken to commit the robbery or extortion. No gun was obtained. There was no further discussion about how exactly the offences were to be committed. Nothing was said about how the proceeds were to be divided up. Indeed, Mr. McLean did not seem to even know the particulars of the person Mr. Robinson was talking about. Again, while it is not necessary for conspirators to know about all the details pertaining to the object of the conspiracies, the fact that almost none of the details were ever discussed signifies to me that these discussions were at a stage preliminary to any agreement.

[37] The Crown offers only a couple of direct conversations between the alleged conspirators. These have been analyzed by me above. There are no other calls about the robbery or extortion between the two men despite the fact Mr. Robinson and Mr. McLean were the only two alleged conspirators. They had considerable opportunity to discuss this further if they wanted to and they did not. The Crown submitted that the execution of the robbery and extortion was thwarted by Mr. McLean's arrest on April 24. I do not find this submission persuasive. It overlooks the fact that there were some two weeks between the intercepts relied upon by the Crown and the arrest of Mr. McLean when the two had a chance to talk further of the crimes let alone actually commit them. They did neither.

[38] Finally, I have taken into account the testimony of Mr. Robinson. I find that when I have assessed his testimony in the context of the other evidence, I cannot reject it when it comes to what he says about the robbery and extortion. Mr. Robinson testified that the discussions simply amounted to negotiation and not an agreement. There was no meeting of the minds between him and Mr. McLean to pursue these unlawful purposes. I am prepared to accept his testimony on this. It was consistent internally. It was also consistent with the intercepts and their context. I find it to be reasonably true.

[39] As a result, the Crown has clearly proven beyond a reasonable doubt talk about a robbery and extortion. Mr. Robinson himself admitted he had bad thoughts about it. But the Crown has not proven to the same level of certainty an agreement about a robbery or an extortion. At its highest, in my view, there was an attempt to agree but the conspiracy did not come to fruition. An attempted conspiracy to commit a substantive offence is not a crime known to Canadian law. I can only echo the following comment by Fish J. in the case of R. v. Déry (2006), 2006 SCC 53, 213 C.C.C. (3d) 289 (S.C.C.) at para. 37. I find it directly applicable to this case:

This is not a case with only one willing party. Nor was there any agreement, bogus or bona fide, for Mr. Déry to join. The appeal turns entirely on whether criminal liability attaches to fruitless discussions in contemplation of a substantive crime that is never committed, nor even attempted, by any of the parties to the discussions. I am satisfied that it does not.

[40] The case of Déry holds that there is a continuum between bad thoughts to proof of the crime of conspiracy. Criminal liability does not attach to the former. As steps are taken to turn bad thoughts into reality, the threshold for that liability may be crossed. Fish J. uses a memorable metaphor in discussing that threshold. The law is not intended to catch crime incubating "in the egg". It catches only those that are "hatched". For conspiracies, they can only be "hatched" by agreement. See also R. v. Burke, [2014] O.J. No. 2582 (S.C.J.) at paras 18-20 for another illustration of a case where discussions fall short of a conspiracy to commit a robbery.

[41] I find that here the Crown has failed to prove beyond a reasonable doubt that these alleged conspiracies were "hatched". In other words, the Crown has failed to prove beyond a reasonable doubt the actus reus of the offences.

[42] Before turning to the remaining two counts, I must address the case of Marshall. The Crown has relied significantly upon Code J.'s trial judgment in that case. Without doubt, I have found Code J.'s erudite and complete exposition of conspiracy law most helpful. Code J. also found the two accused in Marshall guilty of a conspiracy to commit a robbery. The case does share some similarities to the case before me. In that case, the Crown relied mainly upon intercepted private communications to prove the conspiracy between Marshall and Wong to rob a man who had a large amount of cash upon him according to a female source. However, the case also has important differences when it comes to the evidentiary record. In Marshall, the content of the discussions between the conspirators, the immediacy of the robbery they were talking about, the use of language implying agreement, the excited and enthusiastic tone of the accused conspirators in their discussions, and the fact that the robbery did not happen only because of the inability of one of the accused to promptly get the weapon to commit the robbery, lead Code J. to find that there was an agreement. Further, there was a flurry of communications between the two all within 11 minutes as one accused attempted to secure this weapon. These were important acts and declarations that helped proved the existence of the agreement. Finally, when the robbery did not occur as the target had left before the weapon could be obtained, the two conspirators talked about their failed plan and their upset. They also spoke about their hope that the target would return. In these circumstances, I do not find it surprising that Code J. found that these discussions had crystallized into an agreement. However, I find that the evidence before me is quite different from Marshall and the case readily distinguishable on its facts.

[43] For these reasons, I find Mr. Robinson not guilty on counts 3 and 4.

C. Conspiracy to Commit Weapons Trafficking

1. Summary of the Evidence

[44] In outlining the salient evidence on this count, I will refer to the intercepts as I review Mr. Robinson's testimony. Mr. Robinson testified that Mr. McLean had also asked for a "poon" which is slang for a firearm. Mr. Robinson agreed to look around but wanted some monetary benefit for himself. Although nothing was discussed, Mr. Robinson believed that Mr. McLean would toss him a couple of hundred dollars for his help. This discussion started one or two months before April of 2014. This was around the time of the two men had discussion about potential robberies.

[45] Mr. Robinson related that he knew a man named Gucci. He did not know him well but Mr. Robinson knew he was a dealer in crack cocaine. One day near a neighbourhood bar called "Z Bar", Mr. Robinson asked Gucci if he knew how to get a gun. They discussed it but Gucci was reluctant since he did not know Mr. Robinson or his "cousin", Mr. McLean, very well. They discussed a possible type of gun, a Para-Ordinance 9 mm handgun. However, there was no certainty that Mr. Robinson could obtain the gun from Gucci. Mr. Robinson got Gucci's telephone number. In cross-examination, Mr. Robinson testified that because he saw Gucci selling drugs, he presumed Gucci may have had a connection to a gun. Mr. Robinson testified that Gucci maintained getting the gun was only a possibility but did give the purchase price of $1500. Mr. Robinson did not know where Gucci lived.

[46] Mr. Robinson contacted Mr. McLean to tell him of this. Mr. McLean was interested. When he called Gucci back, Mr. Robinson testified that he was rebuffed and was told that Gucci did not discuss these sorts of things on the telephone. Gucci wanted to meet instead.

[47] In his examination-in-chief, Mr. Robinson was then taken through the various text messages and calls introduced by the Crown. On April 10th, after Mr. McLean and Mr. Robinson spoke about the potential robbery (already alluded to above), Mr. McLean switched the conversation to the "poon". Mr. McLean stated he could even trade for it but asked if he was selling it for fifteen. Mr. Robinson agreed. Mr. McLean then said he was going to get that for sure. In cross-examination, Mr. Robinson testified that he had already spoken to Gucci before this call and that he had texted Mr. McLean about it. Mr. Robinson was aware that Mr. McLean was in the market for a gun.

[48] On April 11, Mr. Robinson sent Mr. McLean a text saying he was going to try and call Gucci in order to get the gun. A few minutes later, Mr. Robinson called Mr. McLean. He told Mr. McLean that he was going to try and get the gun for the next day.

[49] On Saturday, April 12, Mr. Robinson texted Mr. McLean and advised him that the meeting was supposed to take place on the Monday at 3 p.m. A couple of hours later, Mr. McLean called Mr. Robinson. Mr. McLean asked if the person who had the gun was interested in a trade of guns. Mr. Robinson replied he did not think so. Mr. McLean asked about the Monday and Mr. Robinson replied he was not too sure because he (meaning Gucci) was not around but out of town and would be back on Monday. When pressured a bit more by Mr. McLean, Mr. Robinson replied "But I don't know. I can see still, I don't know 'cause like you know. He's just told me that was around and so I just linked you." Mr. McLean replied that even if he didn't want to trade, he was still going to get the gun. Mr. Robinson testified that Gucci wanted to sit down and meet about it.

[50] On Monday, April 14, Mr. Robinson testified that he called Gucci but received no answer. He went to Z Bar where they were to meet but Gucci did not arrive. Mr. Robinson did not call Mr. McLean back because he was unable to meet with Gucci to set things up.

[51] On April 16, at 4:12 p.m. Mr. McLean texted Mr. Robinson to "cal". At 9:41 p.m. Mr. Robinson texted back saying nothing was happening that night. In between the texts, Mr. Robinson testified that he tried to call Gucci but he could not get a hold of him. At 10:09 p.m., Mr. McLean texted "When then". Mr. Robinson texted back "I'm tryna make him come drop me it." In cross-examination, Mr. Robinson agreed that "it" meant the gun but what he was in fact referring to was the sit-down or meeting because Gucci wanted to meet Mr. McLean. Then immediately Mr. Robinson texted again "But he wit his youte" to which Mr. McLean texted "Ok". Mr. Robinson testified that he wanted to get a hold of Gucci to discuss the gun further. When he did finally, Gucci was with his kids and did want to meet or speak.

[52] The next day, April 17, at 9:55 a.m., Mr. McLean texted the accused "Can I get that today." Mr. Robinson replied "I'll link him still see what he saying now." At 10:11 a.m. Mr. Robinson texted back "Round 3 he said." At 10:11 a.m. McLean again texted "cal". Mr. Robinson texted at 10:31 a.m. "He said 3". Mr. Robinson testified that he spoke with Gucci and they arranged a sit-down for that afternoon at 3 o'clock. Close to noon, Mr. Robinson called Mr. McLean. In the intercept, Mr. Robinson related that he (referring to Gucci) finished work at two-thirty and would be home by three and once there, he would "link" (meaning telephone) Mr. Robinson. Mr. Robinson asked Mr. McLean if he had someone to drive him. Mr. McLean replied he had a driver and he had to get the money. Mr. Robinson told Mr. McLean that once he called Mr. McLean, he should come over "And we'll meet you, I'll meet you and then we go over there." Mr. McLean agreed. Mr. Robinson testified as the call says, he and Mr. McLean were planning to meet up with Gucci and that Mr. McLean was going to get a ride to the meeting at Z Bar.

[53] At approximately 4 p.m., there are seven texts between Mr. McLean and Mr. Robinson within a span of a couple of minutes. Mr. McLean first texted if he could come for it. Mr. Robinson texts back "Kk soft no worries imam buck wit da youte now he gonna give it to me." This is translated into "Kk soft no worries I am going to meet with that youth now he gonna give it to me." In cross-examination, Mr. Robinson admitted "it" meant a gun. But he insisted this was just about a meeting. Mr. Robinson testified that he did not have $1500 to buy the gun. According to the accused, Mr. McLean always had the money and needed to be there to buy the gun. Mr. Robinson denied that he was a trusted associate of Gucci who would be entrusted with the gun to sell to Mr. McLean.

[54] Returning to the intercepts, almost immediately, Mr. Robinson sends another text "he nervous thinks man want to jam him". Mr. McLean texts back "Lol soft even better rather meet u anyways". Mr. Robinson then texts "Trust but ye Im dippin now to buck him already left my house." Mr. Robinson was asked to explain these texts. Mr. Robinson testified that he was telling Mr. McLean to slow down and relax when he first received Mr. McLean's request to get the gun. Gucci had not called by three. Mr. Robinson had called Gucci but he did not get an answer. Mr. Robinson told Mr. McLean that he was going to meet with Gucci and was going to get it. However, in reality, he had not yet been in contact with the man.

[55] Mr. Robinson further explained that Gucci was nervous and that he seemed afraid of a robbery. Mr. Robinson could tell that during the discussion they had had about the gun, from the body language and other indicators, Gucci was nervous about going through with the transaction. Mr. Robinson explained that such a fear would be reasonable in the circumstances. He told Mr. McLean this because Mr. Robinson was having such a difficult time in getting a hold of Gucci.

[56] Mr. Robinson admitted that when he said he was leaving to meet Gucci, he had not yet left his house even though he said he had. This was because he had not yet been called by Gucci. However, he did leave his house eventually to go see if he could find Gucci at the bar. This was not successful. He further tried calling but this too was unsuccessful.

[57] When asked why Mr. Robinson would tell Mr. McLean that he was going to have a sit-down even though he had not yet even gotten a hold of Gucci, he explained that he was short on money and he was being optimistic that he was going to get this transaction completed. He did not tell Mr. McLean the truth because he did not want Mr. McLean to become upset, impatient, and to go somewhere else for a gun.

[58] Mr. Robinson testified that there was further discussion at a family barbeque shortly after between himself and Mr. McLean about the gun. Mr. McLean asked him whatever happened to the gun. Mr. Robinson admitted that he never really had any solid information although he had told Mr. McLean what he had was solid. Mr. McLean asked why and Mr. Robinson explained how he needed the money. Mr. McLean became upset and pissed at Mr. McLean.

[59] In cross-examination, Mr. Robinson agreed that the greatest exposure a drug trafficker has is when he has product with the accompanying danger of being identified as a trafficker. He agreed there would be the same exposure for firearms. When asked why the meeting, Mr. Robinson explained he wanted Mr. McLean and Gucci to get together so they would feel comfortable with each other in order for the deal to go through. Mr. Robinson denied he had a close relationship with Gucci and was trying to get the gun from Gucci to Mr. McLean. He insisted that all he was doing was to try and get the two men together for a meeting.

[60] In re-examination, Mr. Robinson testified that he knew Mr. McLean did sell guns but he did not know what Mr. McLean was going to do with the Para-Ordinance and he knew Mr. McLean kept some guns for himself.

[61] Before I turn to the assessment of Mr. Robinson's credibility there is other evidence I will allude to. In the background of these particular calls were other calls and texts between Mr. McLean and others that Mr. Robinson was not a party to. It is not necessary to get into great detail regarding these intercepts. There are charges that remain outstanding regarding these intercepts. I can glean from these intercepts that in and around the relevant time, Mr. McLean was attempting to sell another firearm, a Ruger, to a man named Scrilla. In addition, there is evidence that Mr. McLean and a young person, T.S., were acting together in selling the Ruger. Finally, there are intercepts that also shows that Mr. McLean and T.S. are together interested in buying the Para-Ordinance 9mm handgun from Mr. Robinson.

[62] I will more specifically outline some calls. On April 16, 2014, at 2:15 p.m. there is an intercept between T.S. and Mr. McLean where they discuss buying the Para-Ordinance from Mr. Robinson. They arrange to get the money for that purchase from T.S. to Mr. McLean. At 4:27 p.m. T.S. stated that he gave "everything" to the courier. On April 16, Mr. McLean told T.S. that they could not get the gun that night. The latter complained that Mr. McLean was not doing enough to get the gun. This is when Mr. McLean texted Mr. Robinson asking "When then."

[63] On April 17, 2014, T.S. again called and insisted that Mr. McLean complete the purchase of the Para-Ordinance. This lead to the series of texts between Mr. McLean and Mr. Robinson. At 12:11 p.m. T.S. and Mr. McLean spoke on the phone. Mr. McLean asked where T.S. was and to come and drop him the money. Mr. McLean stated they said after three-thirty. Mr. McLean complained about not having a ride. At 2:59 p.m. Mr. McLean and T.S. again spoke. During a lengthy conversation about other things, T.S. asks did you not say three-thirty and that it was three now. T.S. asks "Exactly, you have to be there at three-thirty, no?" McLean replies "I said he… the guy gets off work at three-thirty… like are… are you smoking or something?"

a. The General Assessment of the Credibility of the Accused

[64] At first blush, there are a number of things I find difficult to accept about Mr. Robinson's testimony when it comes to these charges. For instance, the lack of detail such as the name of the man who was supposed to sell the firearm. "Gucci" says Mr. Robinson. But he knows little of the man beyond that. Gucci could be a totally fabricated name. Mr. Robinson may be simply unwilling to provide the true name. There is no intercept where the name "Gucci" ever comes up. It also seems implausible that two men would enter a serious transaction like the purchase of an illegal firearm with such little known of each other. Another thing is how oddly casual Mr. Robinson behaves by asking this person who he barely knows if he had a gun or knew where to get one. Given these considerations, I find it understandable why someone hearing such a story for the first time without knowing the full background of the evidence may simply dismiss this as a self-interested yarn with little semblance to the truth. However, for me to properly weigh and assess Mr. Robinson's testimony, I must step back and understand the context in which these acts are said to have taken place. This is a sub-culture with different traditions, norms, and codes. That sub-culture involves individuals who are engaged at times in illegal activities such as drug trafficking and are willing to purchase and sell guns. Hopefully, as an aside, it is a small and isolated one which will become increasingly endangered with the efforts of law enforcement and the justice system.

[65] To ensure that I impartially and fairly assess Mr. Robinson's credibility, I must recognize its existence and the fact Mr. Robinson, at least at that time, seemed quite familiar with it. With that in mind, I can see that the narrative told by Mr. Robinson is not as far-fetched as it may seem. I can find it plausible that individuals who know each other through their criminal activities may know little of each other except perhaps by a street name of some sort. It is not unfathomable that individuals who are looking for a firearm would ask individuals in the same sub-culture if they knew of a gun to purchase. Looking at his testimony through the lens of judicial experience and common sense, I am not willing to dismiss it outright as a complete and improbable fabrication.

[66] In addition, there are aspects of Mr. Robinson's testimony that is confirmed by the intercepts. I will get into this more closely later. For now, I say that this too lends support to Mr. Robinson's testimony despite any inherent implausibility.

[67] Another factor to consider is Mr. Robinson's candour. He is not a particularly sophisticated man and does not appear blessed with the ability for great sophistry. In observing his testimony, I was struck by his candour. He seemed most willing to admit pretty much all the negative aspects of the case against him. His testimony about the intercepts and what he and Mr. McLean were up to tracked much of the prosecution's interpretation. He did not try to shield or justify his behaviour. However, it is not lost on me that counterbalancing this apparent candour is the fact that his testimony tracks the prosecution case only to the point where any further admission could lead to criminal liability. In this way, I must exercise some caution in accepting his testimony based upon any apparent display of honesty.

[68] In assessing the effect of cross-examination, I will say that Mr. Robinson's credibility generally held up well. Over-all, I cannot say that his evidence was fundamentally inconsistent or implausible. Generally, Mr. Robinson's testimony is one which I can say that cross-examination did not have a determinative effect on the assessment of his credibility one way or another.

[69] In conclusion, again speaking generally, I accept much of what Mr. Robinson has testified to. Indeed, the Crown relies upon some of his testimony as well since he makes a number of admissions. I therefore find Mr. Robinson generally credible. There are differences between the parties in key areas regarding the findings of fact I should make. It is trite that I can accept all, some, or part of his testimony. I will turn to those findings of fact as I analyze the remaining counts. At this point in my reasons, I conclude that Mr. Robinson generally gave credible evidence.

2. Analysis Regarding Weapons Trafficking Conspiracy

[70] I have already set out the fundamental definition of a criminal conspiracy. At this point, it is useful to set out the section dealing with weapons trafficking. This is section 99 of the Criminal Code. I note that the actual section refers to the "manufacture or transfer" rather than the "trafficking" of a designated weapon although the heading reads "trafficking" offences. Section 99 reads:

99 (1) Every person commits an offence who

(a) manufactures or transfers, whether or not for consideration, or

(b) offers to do anything referred to in paragraph (a) in respect of

a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition knowing that the person is not authorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament.

[71] "Transfer" which is the relevant term in this case is defined in s. 84(1):

transfer means sell, provide, barter, give, lend, rent, send, transport, ship, distribute or deliver.

[72] Mr. Robinson is charged that he conspired with Mr. McLean and/or other persons to commit the offence of weapons trafficking. On the evidence at this trial, the Crown submits that the conspiracy alleged involves the Para-Ordinance 9 mm firearm. The members of this conspiracy are alleged to be Mr. Robinson, Mr. McLean, and/or Gucci. Depending on who is alleged to be a member with Mr. Robinson in this conspiracy, the legal contours of the conspiracy and the evidentiary support differs. It is argued by the parties that there are two possible conspiracies that the Crown seeks to prove based upon the allegation in the count and the evidence lead at trial. Either conspiracy factually can be contemplated within the single count of conspiracy:

• A conspiracy between Mr. Robinson and Gucci to transfer the firearm; or
• A conspiracy between Mr. Robinson and Mr. McLean to transfer the firearm.

[73] With respect to a conspiracy between Mr. Robinson and Gucci, the Crown theory is that Mr. Robinson and Gucci agreed to the common design of providing and selling the Para-Ordinance to Mr. McLean. It is unnecessary under this theory to prove that Mr. McLean, the intended recipient of the transfer, was a member of this common design.

[74] Alternatively, the Crown argues that he has proven that the members of this conspiracy were Mr. Robinson and Mr. McLean. Here the defence counters that the conspiracy proven is a simple buy/sell agreement which did not amount to a common purpose absent evidence of a shared intent between Mr. Robinson and Mr. McLean to further transfer the firearm. The Crown responds that the authorities that the defence relies upon for this proposition, mainly dealing with the trafficking of illicit drugs, do not apply when it comes to firearms trafficking. Alternatively, even accepting that the doctrine applies, the Crown submits that he has proven this conspiracy.

[75] In assessing these arguments, I must emphasize that what is important is the careful assessment of the common purpose of the alleged conspiracy and whether the evidence supports it. The authorities previously referred to in my reasons have equal application here. The best place to start the analysis is the contention that the conspiracy involved an agreement to transfer the firearm to Mr. McLean, an agreement between Mr. Robinson and Gucci. If this is proven, then it is unnecessary to resolve whether the Crown has also proven Mr. McLean shared this common purpose. Proof of an agreement with either Gucci or Mr. McLean will suffice: see Root at para.76.

b. The Conspiracy Between Mr. Robinson and Gucci

[76] The Crown does not accept Mr. Robinson's testimony that he was dealing with a person named Gucci as described by Mr. Robinson. However, the Crown agrees that the evidence is undisputed that there was a third party involved who was the source of the gun. For convenience sake, I will continue to refer to this person as Gucci. It is the Crown's position that Mr. McLean was dealing with both Mr. Robinson and Gucci in attempting to secure the Para-Ordinance. In other words, he argues that Mr. Robinson and Gucci had agreed to sell Mr. McLean the gun and Mr. Robinson was the person who was going to personally provide the gun to Mr. McLean. The Crown submits that Mr. Robinson's role in the transfer of the gun was more than he admits to and that he was not incidental to the transfer as he claims. The Crown argues that Mr. Robinson and Gucci's participation as evidenced by the intercepts had reached an agreement and the two men both intended to agree to this common design. According to the Crown, it only makes sense that Mr. Robinson was dealing with someone he knew closely and who had agreed to transfer the gun to Mr. McLean. That Mr. Robinson knew the type of gun and its price would be evidence of this.

[77] The defence submits that no such agreement between Mr. Robinson and Gucci ever existed. It is submitted that the acceptance of Mr. Robinson's testimony leads only to the conclusion that no agreement was ever reached. Mr. Robinson was just overly optimistic he could obtain the gun from Gucci. This is supported by the intercepts and the ultimate failure in obtaining this firearm. The defence submits that some of the comments made by Mr. Robinson were just him "overplaying" his hand to Mr. McLean so he would not lose the benefit of this arrangement.

[78] Let me begin by referring to Rand J. in O'Brien when he made the following comment at p. 670:

I agree that a conspiracy requires an actual intention in both parties at the moment of exchanging words of agreement to participate in the act proposed; mere words purporting agreement without an assenting mind to the act proposed are not sufficient.

Applying this comment to this case, the Crown must prove beyond a reasonable doubt that any words or acts on the part of Mr. Robinson that seem to express an agreement, in actuality, proves the agreement itself and an intention on the part of Mr. Robinson to agree. In addition, the Crown must prove that Gucci also intended to agree. Without doubt, words or deeds that seem to imply agreement can be serious proof of these things. However, they may not necessarily be one and the same. People say and do things that are not what they seem to be. In this case, Mr. Robinson's words and deeds must be considered in the context of the evidence as a whole.

[79] One important factual issue that must be resolved is the course of conduct involving Gucci and Mr. Robinson. It is clear from the intercepts that Mr. Robinson was to meet with Gucci with respect to the transfer of the gun. The Crown argues that the meetings and the circumstances in which they were set up and talked about, is strong evidence of an agreement. The defence submits that they are not when viewed along with Mr. Robinson's testimony.

[80] After carefully considering the evidence, I find that Mr. Robinson did not meet with Gucci. In my view this was due to reluctance on the part of Gucci. Certainly, Mr. Robinson displayed no such reluctance. He was in his own words short of cash and eager to conduct this transaction. However, the same cannot be said of Gucci's attitude. From the beginning, on April 10th when Mr. McLean was speaking with Mr. Robinson about the other thing, the "poon", Mr. Robinson despite claiming several times he was going to get it, was having considerable difficulty in making any headway. In the background, T.S. was pressuring Mr. McLean to move on this potential gun purchase. In my opinion, this history is inconsistent with a solid agreement between Mr. Robinson and Gucci. Now, I appreciate there could be many possible reasons why logistically the transaction may not have been completed expeditiously and efficiently even assuming an agreement had been reached. For instance, a change in plans or the unavailability of a party to meet on a certain day. However, when I assess the overall context of the communications, it seems to me that Mr. Robinson was simply making excuses and trying to placate Mr. McLean in order to try and conduct this transaction even in the absence of any agreement from Gucci.

[81] It is clear that Mr. Robinson did not meet with Gucci on Monday, April 14 at three o'clock as he claimed he was going to in a text sent on the Saturday, April 12th. When Mr. McLean and Mr. Robinson actually talked about it that day, that meeting according to Mr. Robinson became even more tenuous as he started to say Gucci was out of town. Further, when asked about whether Gucci would do a trade, Mr. Robinson seemed to flounder and expressed uncertainty. This supported his testimony that he and Gucci had not really come to any agreement about this. Finally, I am certain that meeting never did take place otherwise there would have been no need for the second meeting. It is interesting that in between April 12 and April 16, there was no further contact between Mr. Robinson and Mr. McLean about what had potentially happened at that meeting that had been set up. Nothing was said or done until April 16 at 4:12 p.m. when Mr. McLean sent a one word text to Mr. Robinson to call him. At 9:41 p.m. Mr. Robinson texted and said nothing was going on that night.

[82] On April 16, it appears that T.S. has sent Mr. McLean money for the Para-Ordinance. But again, later in the evening Mr. Robinson texted that he was trying to make Gucci drop him the gun and that Gucci was with his youth. While the parties take differing interpretation of these texts, what is not disputed is that again, on that day, even though Mr. Robinson was saying to Mr. McLean he was trying to get the gun, the meeting never occurred.

[83] The following day, another attempt was made. T.S. insisted that Mr. McLean move on this purchase. Again, Mr. Robinson indicated he was going to meet with Gucci after Gucci got off work. In my opinion, Mr. Robinson did not meet Gucci at that day. In the intercepts, the meeting was to take place at 3 p.m. However, an hour past that time, Mr. Robinson had not called or texted Mr. McLean to come over as he had said he would in his telephone conversation earlier. Instead, Mr. McLean texted Mr. Robinson asking if he could come for the "it". This means the gun. However, it is clear from the subsequent texts that Mr. Robinson had not yet met with Gucci. He replied to Mr. Mclean not to worry but that he was going to meet with Gucci to get it. Following that Mr. Robinson said Gucci was nervous about being robbed. The last message from Mr. Robinson was to the effect that he had left his own house to meet with Gucci. From these intercepts, it is clear that Mr. Robinson had not yet met with Gucci. There is again equivocation about Gucci actually wanting to do the transaction when Mr. Robinson says Gucci is afraid of a robbery. This seems like another excuse Mr. Robinson was making. Then there was silence between Mr. Robinson and Mr. McLean except the one word text "Yo" that Mr. McLean sent to Mr. Robinson near midnight that night.

[84] Mr. Robinson testified that despite what he was saying, he was simply trying to keep Mr. McLean interested in the gun but that he had never had the chance to come to any agreement with Gucci. The defence submits that the "Yo" sent by Mr. McLean late that night was a one word inquiry about what had happened. On the other hand, the Crown argues that Mr. Robinson's testimony is contrary to what the texts actually say.

[85] In my view, I agree that what Mr. Robinson testified to is not always consistent with the plain reading of the texts. There are also some details that have not been adequately explained by Mr. Robinson such as why there were no further communications between the two if no meeting took place. At the end of the day, while I cannot fully accept Mr. Robinson's evidence on this point due to this, I am prepared to give him the benefit of a reasonable doubt for the following reasons. Mr. Robinson's explanation that he was "overplaying" his hand as it is characterized by the defence is reasonably true. It does make sense that Mr. Robinson would not be entirely honest with Mr. McLean if he wanted to try and accomplish the deal and string him along even if he had not firmed things up with Gucci. It is also plausible within the context I am dealing with where participants involved in illegal activities act in their self-interest without concern for honesty. In addition, when his testimony is assessed against the overall history of the intercepts, it is clear that Mr. Robinson on the face of his communications is having considerable difficulty lining up this gun deal. In other words, his testimony that he could not set up the meeting is consistent with the intercepts. It may well be that he was being dishonest with Mr. McLean that he was actually going to the meeting on the 17th fearing that Mr. McLean would become fed up with Mr. Robinson's excuses. As the defence contends, this overplaying also makes an appearance earlier on April 12th when after Mr. Robinson initially tells Mr. McLean in a text that the gun was going to leave with him at 3 p.m. on Monday, in the subsequent phone call between the two, this prediction readily falters with no real prospect of this happening. Further, the text sent by Mr. Robinson that Gucci was nervous and afraid of being robbed supports Mr. Robinson's testimony that Gucci had a reason for not showing and also shows Mr. Robinson setting up another excuse if the ultimate deal got delayed. The final consideration why I have given Mr. Robinson the benefit of a reasonable doubt is that there is a lack of confirmation that such a meeting ever took place. There was no police surveillance or other evidence that shows that Mr. Robinson did leave and meet with Gucci or that some event took place that supports a purchase of a gun. Further, there are no intercepts that directly confirm that a meeting or that a transfer of the Para-Ordinance happened. There were no such intercepts between Mr. Robinson and Mr. McLean or Mr. McLean and others such as T.S., which given how little Mr. McLean felt inhibited in talking about his illegal activities, I would have expected had such a purchase occurred. Indeed, there are no intercepts between Mr. Robinson and Mr. McLean at all after April 17th. While there are no intercepts the other way indicating Mr. McLean's ongoing desire to obtain the gun, this could be explained by the fact there was that "Yo" text that evening, the fact that Mr. McLean was ultimately arrested on April 24th, and Mr. Robinson's testimony that he told Mr. McLean in person that the purchase could not happen. This could well explain why the efforts to secure the Para-Ordinance stopped sometime shortly after April 17th.

[86] In conclusion, I find that the Crown has not proven beyond a reasonable doubt that Mr. Robinson and Gucci ever agreed to the transfer of the firearm. I conclude this based upon the testimony of Mr. Robinson as well as the whole of the other evidence. It is consistent with the course of conduct over that period of time when the transfer of the firearm is unsuccessful. It also is consistent with the reluctance of Gucci in dealing with someone he did not know and Mr. Robinson's own text and testimony that Gucci was fearful of being robbed. This speaks very much against the Crown submission that Gucci and Mr. Robinson were close and were conspirators in an agreement to transfer the gun. While Mr. Robinson did get details such as the type of gun and the price, this is as consistent with Mr. Robinson's version of his discussion with Gucci as with any agreement made between the two. Thus, there remains a reasonable doubt that there was an agreement and that Gucci intended to carry out this agreement. If anything, Gucci never really intended to transfer the firearm given how the events unfolded.

c. The Conspiracy Between Mr. Robinson and Mr. McLean

[87] I have found that no conspiracy existed between Mr. Robinson and Gucci. There remains the issue of whether the conspiracy alleged involved Mr. Robinson and Mr. McLean. It is the position of Mr. Robinson that the evidence proves at best there was only a buy/sell agreement between Mr. Robinson and Mr. McLean. It is submitted that this does not amount to a conspiracy to commit the indictable offence of weapons trafficking.

[88] The defence relies upon the case of R. v. Khiar, [2015] O.J. No. 196 (S.C.J.) decided by Morgan J. In that case, the accused was alleged to be the purchaser of at least one firearm from his alleged co-conspirator, Mr. July. Mr. Khiar was charged with one count of weapons trafficking conspiracy. The Crown's case consisted of interceptions of private communications and police surveillance. Morgan J. found that the two did reach an agreement for the sale and purchase of weapons. Ultimately, though, Mr. Khiar was acquitted of the charge because the evidence established at most what was characterized as a simple buy/sell agreement. The evidence did not establish that there was any intent on the part of Mr. Khiar to re-sell or transfer what he had agreed to purchase from Mr. July. In the case at bar, defence submits that Khiar properly applies the line of authority that involves conspiracies to traffic in drugs: see Sokoloski v. The Queen (1977), 33 C.C.C. (2d) 496 (S.C.C.); Sheppe v. The Queen (1980), 51 C.C.C. (2d) 481 (S.C.C.); R. v. Longworth (1982), 67 C.C.C. (2d) 554 (Ont. C.A.); R. v. Kelly (1984), 13 C.C.C. (3d) 283 (Sask. C.A.); R. v. Forbes, 1985 Carswell Alta 428 (Alta. C.A.); R. v. Genser (1986), 27 C.C.C. (3d) 264 (Man.C.A.); R. v. Gauthier, 1983 Carswell NB 242 (N.B.C.A.); R. v. Chaulk (1991), 65 C.C.C. (3d) 353 (Nfld.C.A.); U.S.A. v. Drysdale, 2000 Can L. II 22651 (Ont. Sup. Ct); R. v. Horne, 2015 QCCA 556.

[89] The Crown responds that Khiar should not be followed. He submits that this line of authority commencing with Sokoloski is inapplicable when it comes to weapons trafficking. The Crown points out that the offence of the "transfer" of a firearm specifically excludes any consideration of sale or purchase. As a result, it is argued, although the evidence may establish only a buy/sell arrangement this does not preclude a conviction for a conspiracy to commit the indictable offence of weapons trafficking. The Crown further submits that the purpose behind the offence of weapons trafficking is unlike drug trafficking. For the latter, the legislation is intended to prevent the sale and consumption of drugs. For the former, it is about ensuring that guns do not get into the wrong hands and the legislation is aimed at deterring the movement of illegal guns. The Crown submits that it would be wrong to stigmatize a simple purchaser or seller of illegal drugs as a conspirator but argues the same cannot be said about those involved in weapons trafficking, a more serious offence.

[90] I do not find the Crown's argument persuasive. First of all, both offences have worthy legislative purposes and can constitute serious crime. Depending on the drug involved and the quantity, a simple purchase and sale of illegal drugs can attract heavy sentences. This is not a valid way to distinguish Khiar. Secondly, the definition of trafficking a controlled drug and substance is as broad as the definition of "transfer" as found in s. 84(1). It too does not require an exchange of money for the offence to be committed:

traffic means, in respect of a substance included in any of Schedules I to IV,

(a) to sell, administer, give, transfer, transport, send or deliver the substance,

(b) to sell an authorization to obtain the substance, or

(c) to offer to do anything mentioned in paragraph (a) or (b),

otherwise than under the authority of the regulations.

[91] Of course, the legal definition of the indictable offence to which the conspiracy refers remains material to the analysis. However, in my opinion, what is more germane is the nature of the specific conspiracy. When the legal definition is as broad as "traffic" or "transfer", the wording of the count and the evidence led in order to prove the offence are more important in determining what the purported conspiracy is that is being alleged against the accused. Where those considerations reveal a conspiracy between a seller and a purchaser, I must have regard to the authorities cited by the defence.

[92] In my view, the fundamental questions that need to be addressed are what is the common objective of the conspiracy and do the alleged conspirators intend to adhere to it? I have found helpful the explanation of this in R. v. Nguyen, [2016] O.J. No. 1117 (C.A). In that case the Ontario Court of Appeal quashed convictions for conspiracy charges of a retail garden supply seller who sold supplies and equipment to marihuana grow operators. It was alleged that Nguyen aided and abetted a conspiracy to produce marihuana or possess it for the purpose of trafficking. After applying the test for aiding and abetting a conspiracy as set out in the case of R. v. R.F., 2013 SCC 12, [2013] 1 S.C.R. 565, the Court held that there was no evidence of a mutuality of objective and found the verdicts unreasonable. Pardu J.A. in explaining this doctrine of mutuality of objective referred with approval to an article written by her colleague Doherty J.A. at paras. 21 – 23:

21 In an article entitled "Conspiracies and Attempts" in the National Criminal Law Program, Substantive Criminal Law (1990), vol. 1, Doherty J.A. (then of the Supreme Court of Ontario) traced the roots of the requirement of a mutual object in a criminal conspiracy. He began, at p. 24, with a quotation from R. v. Cotroni (1979), 45 C.C.C. (2d) 1 (S.C.C.), at pp. 17-18:

The important inquiry is not as to the acts done in pursuance of the agreement but whether there was a common agreement to which the acts are referable and to which all of the alleged offenders were privy.

There must be evidence beyond a reasonable doubt that the alleged conspirators acted in concert in pursuit of a common goal.

22 He demonstrated how the "mutuality of object" doctrine set out in Cotroni had been applied in more commonplace situations, at pp. 24-26:

In subsequent cases, the "mutuality of object" doctrine set out in Cotroni has been applied to two more commonplace fact situations. The first involves so-called bilateral crimes, such as trafficking, where the Crown has argued that an agreement by "B" to sell to "C" renders "B" and "C" co-conspirators. The second involves those cases where the Crown alleges a general conspiracy of wide proportions, and the accused maintains he was involved in a much more restricted criminal agreement to commit the same crime.

In the first situation, Cotroni is taken as requiring some mutual purpose beyond "B's" intention to sell and "C's" intention to buy. In the second situation, the "mutuality of object" approach requires that each accused be privy to and agree to the larger scheme, although not necessarily to all of the details.

R. v. Kelly offers an example of the application of the "mutuality of object" definition to a bilateral agreement to buy and sell. "S" offered to sell a narcotic to "K", knowing that "K" intended to resell the drugs. The conduct of "S" constituted trafficking; "K" intended to engage in an act of trafficking as well. The overall course of conduct contemplated by "S" and "K" involved two separate, albeit inter-dependent, acts of trafficking. There was not a single object. They had not agreed to pursue a common object, but rather each had their own object. After a detailed review of the authorities, the Court of Appeal acquitted Kelly on an application of the "mutuality of object" approach to the crime. [Footnote omitted.]

23 Doherty J.A. went on to cite, at pp. 27-28, R. v. Longworth (1982), 67 C.C.C. (2d) 554 (Ont. C.A.), for the proposition that proof that a person was a party to a conspiracy required proof not only of knowledge of the wider scheme, but adherence to the object of the wider scheme:

In R. v. Longworth et al., the Crown charged a conspiracy, extending over three years, to traffic in a narcotic. "N", one of the accused, was involved in a single purchase from "W", the alleged distributor. The amount of the purchase suggested "N" intended to resell at least part of the amount he purchased. There was no other evidence of "N's" involvement in "W's" "network" although it could be inferred that he knew his purchase was not "W's" only sale. The Court's attempt to rationalize conflicting authorities produces some confusion between the concepts of agreement and common design. In the end, however, the Court clearly requires proof of a joint determination to pursue the overall distribution scheme. The Court held that "N" was not a party to the wide agreement alleged and could not be convicted on the basis of his proved involvement in a conspiracy to commit the same crime but on a much more limited scale.

[93] It is this mutuality of object doctrine that is central. In my opinion, the fact that I am dealing with a conspiracy to traffic in a firearm rather than a conspiracy to traffic in a drug is not a ruling consideration. Rather, the question is whether in a bilateral crime such as this, is there a mutual purpose that both alleged conspirators have agreed to pursue? The mutual purpose must be the indictable offence that is said to be the object of the conspiracy. It is not simply enough that there is an agreement per se but there must be an agreement to pursue that common object. In a buy/sell arrangement, while the two purported conspirators may agree to conduct the transaction, (a contract of sale and purchase) they neither intend to nor do they act in concert in pursuit of a common goal. One is pursuing the goal of purchasing the gun or drug while the other's goal is to sell that same gun or drug. In other cases such as Sokoloski where the evidence shows that there is a common object shared by the seller and purchaser of a further re-sale, then the mutuality of object doctrine is met. It is this prior agreement that is crucial although in the implementation of it a transaction of sale and purchase may be carried out: see Sheppe v. the Queen (1980), 51 C.C.C. (2d) 481 (S.C.C.) at p. 483. Still in other fact situations, like in the case of Kelly, the mere fact that seller may know that a re-sale is being contemplated by the purchaser, does not make the two conspirators to traffic if the evidence does not prove that the seller has made this object his or her own. In summary, whether the alleged conspiracy is proven in such a bilateral crime does not depend upon what is being trafficked or the definition of the traffic or transfer, but whether the evidence establishes there is a mutuality of object or purpose in pursuing the indictable offence of trafficking or transferring.

[94] There is one final consideration. An agreement to sell and purchase a designated weapon may involve the physical transport or delivery of the weapon. For there to be a conspiracy involving the transport or delivery of a weapon, these acts must be more than simply incidental to a buy/sell transaction. In other words, the fact that the definition of both "traffic" and "transfer" include the acts of "transport" or "deliver" does not change the essence of a conspiracy that is about a purchase and a sale. Laskin C.J.C., although he was in dissent in Sokoloski came to this conclusion. At p. 500 Laskin C.J.C. states:

I am of the view that the position is the same with respect to the elements of transport or delivery which are the only other parts of the definition of "traffic" remotely applicable here. Again, it seems to me to be a mistaken proposition to argue, as did Crown counsel, that the accused and the seller conspired to traffic because they "arranged" to have the drug transported or delivered. The introduction of contract language into this case to support a charge as serious as conspiracy is to me very odd. Every contract for the sale of goods can be said to involve delivery in execution of the contract, and if, as in my view is the case, by offering to buy there is no unlawful conspiracy in the act of selling or agreeing to sell, then there is equally no unlawful conspiracy in the delivery of the goods by the seller to the buyer. The delivery by the seller is a normal incident of a sale by him. Certainly, if the buyer himself picked up the goods, e.g. drugs, at the seller's premises, it would be incongruous to urge that this amounts to a conspiracy to traffic, although the pick-up was "arranged" between the parties.

The majority did not disagree with these comments. Martland J. did not accede to this Crown argument that the appellant should be convicted of the conspiracy because he agreed to have the drug transported or delivered. Rather, the majority held that a prior agreement to traffic had been proven on the evidence since the seller knew and intended that his sale to the purchaser facilitate a further resale of the drugs. See also R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at paras.141-147.

[95] This legal question resolved, I must assess the evidence to determine whether the Crown has proven the conspiracy alleged or whether the defence is correct in its position that this law as applied to Mr. Robinson should result in his acquittal.

[96] Let me start by saying that the factual matrix of this case is not simple. This is not a classic buy/sell arrangement between Mr. McLean and Mr. Robinson. Mr. Robinson testified that it was not him who had the gun and who could sell it to Mr. McLean. It was Gucci. Mr. Robinson testified that what he was doing was merely setting up a meeting between Mr. McLean and Gucci whereby they could conduct the transaction. In other words, he agreed to facilitate the transaction but not to actually sell the firearm as he could not do so. Indeed, Mr. Robinson testified that he was quite far from actually facilitating the trafficking since he had not even truly obtained Gucci's assent to do so. The Crown disputes this and argues Mr. Robinson's testimony in this regard should not be accepted. For reasons I will explain later, I accept Mr. Robinson's testimony that he was only trying to set up a meeting between Mr. McLean and Gucci and that he was not actually going to bring the gun to Mr. McLean and complete the sale himself.

[97] Given these factual findings, on the one hand, the failure of the Crown's proof could go further than what the defence has submitted to me. This could be viewed as a failure to establish the actus reus of the offence. In other words, this is simply Mr. McLean and Mr. Robinson negotiating the sale of the Para-Ordinance 9 mm handgun preliminary to the formulation of an actual agreement to purchase and to sell. This is not the typical buy/sell arrangement that the cases consider. Here the actual sale of the firearm is very much conditional on many things not yet quite worked out. Further, the facts could be viewed as Mr. Robinson trying to facilitate a potential agreement between Mr. McLean and Gucci. This agreement too was far from being reached. Mr. Robinson then would be simply trying to aid and abet a potential buy/sell arrangement not yet struck. This would be even further removed from any criminal liability. On this view of the facts, Mr. Robinson should be acquitted of the charge of conspiracy.

[98] On the other hand, these facts can be assessed as a variant of a buy/sell agreement conditional on the seller, Mr. Robinson, being able to set up the meeting whereby the sale and transfer of the gun takes place between the other two men. On this view, Mr. Robinson has agreed to participate in the sale of the gun although he has little ability to personally effect the transaction. The fact he may have agreed to do something when he could not do it himself, would not negate the formation of a completed agreement. In my opinion, looking at the overall picture, this presents a better and more accurate view of the facts. It is also consistent with Mr. Robinson overplaying his hand to Mr. McLean as the defence has described it.

[99] All that said, on this view of the facts, I find that there was no mutuality of object in this agreement. Mr. McLean is intent on securing and buying this gun from Mr. Robinson. Mr. Robinson is a willing participant and agrees that he will help in selling this gun to Mr. McLean with the hope he would obtain some money from Mr. McLean. So far, based upon these findings of fact, I find this case similar to Khiar in that the Crown has proven an agreement to buy and sell a Para-Ordinance 9 mm handgun. The delivery or transportation of the firearm in order to facilitate this is only incidental to the purchase and sale.

[100] This is not sufficient proof of any mutual object as alleged in the conspiracy. To do so, the Crown must prove beyond a reasonable doubt a shared mutual purpose between Mr. Robinson and Mr. McLean to further re-sell or otherwise transfer the firearm. I find that the Crown has not proven this beyond a reasonable doubt for the following reasons.

[101] I find that the Crown has not proven that Mr. Robinson knew that Mr. McLean would further re-sell or otherwise further transfer the Para-Ordinance handgun. I appreciate that Mr. Robinson admitted that he knew Mr. McLean had sold guns before in the past but he testified he knew that Mr. McLean also kept the guns he bought. Mr. Robinson specifically denied that he knew Mr. McLean intended to further transfer this firearm. There are no intercepts that indicate such knowledge on Mr. Robinson's part. I accept Mr. Robinson's testimony on this that he did not have knowledge whether it is actual knowledge or wilful blindness. I find that Mr. Robinson did not know about T.S. or his involvement with Mr. McLean. I further find that Mr. Robinson only intended to sell the gun to Mr. McLean and accept his overall testimony that he did not have a shared intent with Mr. McLean to further traffic or transfer the firearm.

[102] Mr. Robinson's testimony is supported by the other evidence in this case. Mr. Robinson knew Mr. McLean through his sister, but there was no long standing or ongoing criminal relationship between the two. I have already found that the two talked about a robbery and extortion but they did not agree to it. This is not a case where the purchaser and seller are involved in prior criminal activities together or are so closely associated that the nature of their relationship would factor into the proof of the conspiracy alleged. There is no evidence that Mr. Robinson exercised any control over Mr. McLean's activities in general or with respect to this transaction itself. There were few conditions beyond price placed on the transaction. Mr. Robinson's benefit from the sale to Mr. McLean was most ambiguous and did not depend upon any further resale of the firearm. It strikes me from the evidence overall that Mr. McLean appeared to be well ensconced in criminal activity while Mr. Robinson seemed to be a peripheral player who wanted to try and get a piece of the action whatever it may be.

[103] This was only one transaction that the two were going to be involved in. A transaction that I find did not actually take place. Furthermore, the value of the transaction was $1500. It was not relatively speaking a significant amount. Finally, unlike drugs which if the quantity is large enough a buy/sell transaction can lend itself to the inference that the drugs would be resold or further distributed, this was only one gun. It was as likely that Mr. McLean would possess the gun for his own use as it was that he would further deal it to someone else.

[104] In conclusion, looking at the whole of the evidence, the Crown has not proven this count beyond a reasonable doubt and Mr. Robinson will be acquitted.

D. The Substantive Offence: Offer to Transfer a Firearm

[105] The Crown acknowledges that there is no evidence that Mr. Robinson actually transferred the firearm to Mr. McLean. Rather, the Crown relies upon Mr. Robinson's offer to transfer the firearm to Mr. McLean. The Crown argues that I should reject Mr. Robinson's testimony on this issue given the plain reading of the texts. It is submitted that Mr. Robinson offered to get Mr. McLean the gun from Gucci and to give it to him. Even if I accept that Gucci was reluctant to sell such a gun and Mr. Robinson was not in any position to actually get the gun for Mr. McLean, the Crown contends that it has proven beyond a reasonable doubt that Mr. McLean made the offer and intended that offer to be genuine.

[106] The defence argues that Mr. Robinson's testimony should be accepted or raises a reasonable doubt. The defence submits that Mr. Robinson is neither a principal nor a party to the offence. There are two key aspects of the defence position. The defence agrees that on their face, the texts appear to support the inference that Mr. Robinson was making an offer to get a gun for Mr. McLean. However, when interpreted properly with regard to all of the intercepts and Mr. Robinson's testimony, there remains a reasonable doubt as to whether the Crown has proven the actus reus or mens rea of the offence. It is submitted that the accused did not intend to make an offer to transfer a gun. Rather his intention at its highest was to set up a meeting where Gucci would make the offer. Whatever Mr. McLean might interpret about what Mr. Robinson said or did, Mr. Robinson was not offering to sell a gun to Mr. McLean. Thus, he cannot be convicted as a principal to the offence. Further, the defence submits that he is not a party to the offence since Mr. Robinson did not know that Gucci would sell the gun to Mr. McLean. As Gucci did not make an offer to sell the gun to Mr. McLean, Mr. Robinson could not be convicted as a party to that offence.

[107] For the offence of weapons trafficking by an offer, the Crown must prove the accused,

• offered to transfer a designated weapon (the actus reus); and
• intended to make an offer that will be taken as a genuine offer by the recipient (the mens rea).

Words or actions which constitute the offer do not prove the crime alone. The fault requirement is subjective and the Crown must prove beyond a reasonable doubt that the offer to do the prohibited act was intended to be a true and genuine offer: see R. v. Murdock (2003), 176 C.C.C. (3d) 232 (Ont. C.A.) at paras. 14, 23-24.

[108] It is important to emphasize that the offence may be established even though the person making the offer has no intention of going through with the transaction or even if he has no ability to carry it out. This has direct application here. Mr. Robinson could not sell the gun to Mr. McLean without Gucci's participation. However, if he did make the offer and intended it to be genuine, he would be guilty as a principal.

[109] The credibility of Mr. Robinson's testimony is crucial here. I have found much of what he has said to be credible. However, this is not conclusive on the issue of whether I find believable his testimony that he did not intend to make a genuine offer to Mr. McLean. His evidence is that all he wished to do was set up a meeting between Gucci and Mr. McLean. The difficulty is that this goes against what he has plainly said in some of the intercepts. I appreciate that cross-examination did not undermine or shake this part of his testimony. But I also appreciate that his testimony was very self-serving. After carefully considering all of the evidence, while I cannot say I whole-heartedly accept this testimony, I find that it is reasonably true and find as a fact that Mr. Robinson was setting up such a meeting and am left with a reasonable doubt about whether the Crown has proven that the accused is a principal to this offence under ss. 21(1)(a) of the Criminal Code. In addition to what I have already said about Mr. Robinson and his credibility, these are additional reasons why I have come to this conclusion.

[110] Mr. Robinson's testimony that he was only trying to set up a meeting is confirmed by a number of intercepts and whole context of the events. In other words, his testimony does not stand or fall on its own. Beginning with a call between Mr. McLean and T.S. on April 10, 2014, when they were discussing a potential sale by Mr. McLean and T.S. of a different handgun, Mr. McLean referred to his "cousin", who I take to be Mr. Robinson, as having something, he "thinks". Mr. McLean also stated referring to Mr. Robinson "I don't know what he's saying." After this call, Mr. McLean then immediately called Mr. Robinson. At the beginning of the call there was some confusion as to what they were talking about, but Mr. Robinson believing it had to do with Gucci, says "Ah fuck…ah…I can link him still. Fucking…I'm just out of town right now, I could link him but I'm on my way back to town still, so I can link and see what is going on." From the beginning there is this lack of certainty on the part of Mr. Robinson and consistent with his testimony, his need to telephone Gucci to set something up. On April 11, Mr. Robinson texted that he was trying to line it up for the next day. Again, the next day arrived, and no such thing was lined up.

[111] On April 12, Mr. Robinson texted and delayed the matter to the Monday, at which time Mr. Robinson said the gun wanted to leave with Mr. Mclean. When Mr. McLean told T.S. the guy wanted to be ready at 3, T.S. seemed a bit incredulous about the whole thing and called Mr. McLean and his "cousin" both dumb. Later on April 12th, when Mr. Robinson and Mr. McLean were discussing the deal for the Monday given Mr. Robinson had said that Gucci was out of town, Mr. McLean inquired about a trade. He told Mr. Robinson to ask if Gucci wanted to do a trade. Then Mr. McLean acknowledged Gucci wanted money instead. Mr. Robinson then said "But I don't know. I can see still, I don't know 'cause like you know. He's just told me that [the gun] was around and so I just linked you." I find this comment supports Mr. Robinson's testimony. Essentially, Mr. Robinson is saying that Gucci had mentioned the gun and that Mr. Robinson's role was pretty minimal. In keeping with that, Mr. Robinson did not know Gucci's views on a trade of firearms rather than cash. Just from the tone of the call, there is much uncertainty in Mr. Robinson's voice.

[112] The defence then relies significantly on the call on April 17 at 11:53 a.m. between Mr. McLean and Mr. Robinson. This is the call in full:

Shaquan MCLEAN: Hello.

Jovahn ROBINSON: Yo.

MCLEAN: Yo fam what're you saying?

ROBINSON: Nothin' uh she (sic) said she (sic) finishes work about two-thirty, he should be home around three so anytime around three. Once he's home he said he is gonna link me…

MCLEAN: Yeah.

ROBINSON: … and once I guess he links me fuck… you have a driver right?

MCLEAN: Yeah I… I'm gonna get one I'm just gonna um deal with the situation 'cause fuckin' I have to… I have to get the money 'cause my boy my… my… my fuckin'… my fuckin' my little brother has to… has to…has to get it (Unintelligible background voices) from the house. (Sniffles)

ROBINSON: Okay, okay so...

MCLEAN: (Unintelligible) I have a driver.

ROBINSON: All right so then yeah so then once I link you just forward over then.

MCLEAN: Okay (Unintelligible).

ROBINSON: And we'll meet you, I'll meet you and then we go over there.

MCLEAN: Okay fam.

ROBINSON: Ah.

[113] In this call, I find that Mr. Robinson asks Mr. McLean if he has a driver in order to come over and that together they will go over to meet Gucci. This is express support for the defence position that Mr. Robinson was indeed just setting up a meeting. Mr. McLean also says he has to get the money to take to the meeting. The other texts that the Crown relies upon have to be interpreted in the context of this call where I find that a meeting is being set up between Mr. McLean and Gucci.

[114] On April 17 at 2:59 p.m., there is a call between Mr. McLean and T.S. During that call they talked about the pending transaction. T.S. said "Exactly, you have to be there at three-thirty no?" Mr. McLean replied he said the guy gets off work at three-thirty. In my view, this too supports the defence position that Mr. McLean was to attend the meeting. Along with the previous call, it is hard to interpret it as anything else.

[115] It also makes sense that if Mr. McLean was to meet with Gucci, the communications between Mr. Robinson and Mr. McLean would keep each other informed about the time when the meeting was to take place. If Mr. Robinson could have obtained the gun on his own, the only time that would be of interest to Mr. McLean would be when Mr. Robinson could deliver the gun.

[116] The other matter that has a ring of truth to is Mr. Robinson's testimony that he did not have the $1500 to buy the gun. Gucci would not have given the gun to Mr. Robinson without receiving cash for it. I cannot accept the suggestion that Mr. Robinson had a much more trusted relationship with Gucci such that this might be a reasonable possibility. The intercepts reveal considerable difficulty by Mr. Robinson in contacting Gucci. If the relationship was that close and there was a firm deal to do the transaction, this would be inconsistent with the difficulties that occurred. In particular, Mr. Robinson's text that the man was nervous and was afraid of being robbed is highly relevant to this issue. In my view, it is strong evidence that speaks against such a trusting relationship between the seller and Mr. Robinson. In these circumstances, it totally improbable Gucci would have given the gun to Mr. Robinson without the money. The other possibility is that Mr. Robinson himself could have used his own money. However, I accept his testimony he did not have money. He was never impeached on this and the evidence supports the view that at best, Mr. Robinson was trying to facilitate the transaction rather than being in a position to purchase the gun himself with his own money. This testimony is also supported by the calls between T.S. and Mr. McLean where T.S. was getting the money over to Mr. McLean on the day when the meeting was supposed to take place. There is no evidence that Mr. McLean ever gave Mr. Robinson the money. In my opinion, it would also be highly unlikely that he would hand that amount of cash over to Mr. Robinson. There is nothing to reasonably support that Mr. McLean was going to give the $1500 to Mr. Robinson to take to Gucci from the intercepts. Mr. McLean received the money from T.S. but none of the intercepts show that he was going to give the money to Mr. Robinson to complete the purchase. Gucci was very unlikely to part with the gun until he received the money. Therefore, in my view, Mr. Mclean and Gucci had to meet for the transaction to take place.

[117] In addition, there was never any discussion or indication on the intercepts about what Mr. Robinson would make from the proposed transaction whether it would be from Mr. McLean or Gucci. One would have expected something more concrete if it was truly Mr. Robinson making the offer to sell the gun. Again this circumstance seems more consistent with Mr. Robinson merely making an introduction with the hopes of something tangible coming his way later.

[118] I recognize this factual finding that Mr. Robinson is only setting up a meeting is at odds with some texts. However, I must keep in mind the context of the medium being used, the guarded posture of the speakers, and the apparent disregard for grammar or accuracy. Some of the texts and language about the gun leaving with you or he was going to give it could be simply loose and cryptic use of language to describe what was actually going to take place. What actually needed to take place would be far more involved than the simple hand-over or pick-up of the gun. Using another example from a different and more commonplace scenario, a person interested in purchasing a new car may say or text he or she is going to get the car. But in reality that may involve finding a dealership, meeting with a salesperson, negotiating a price and conditions, and waiting for delivery. Resorting to plain and literal interpretation of words may be at times misleading.

[119] The Crown argued that it did not make sense for Gucci to meet with Mr. McLean. This would only have increased Gucci's potential risk and exposure. Mr. Robinson stated that Gucci insisted on it. I do not accept the Crown's argument. It does make sense to me that before conducting a transaction such as this that the seller may want to know who he is dealing with. It does make sense to me that Mr. McLean would want to meet the seller and examine the gun before handing over the money.

[120] Having regard to Mr. Robinson's testimony about his intentions, the acts that took place, and some of the other conversations surrounding these texts, I have a reasonable doubt that he made an offer to traffic the Para-Ordinance or intended to make a genuine offer to Mr. McLean. To me, what Mr. Robinson was trying to do was to get Mr. McLean and Gucci together so that they could conduct the transaction. He could not make an offer, he did not make an offer, and he did not intend to make a genuine offer. He was attempting to broker a deal but was not making the offer to traffic himself. I acknowledge that another possible interpretation of the evidence is that Mr. Robinson did an offer to traffic the gun, was going to set up a meeting to facilitate it, and exaggerated his ability to make good on it. If this was the case, then he would be guilty. However, I find the defence position reasonable and equally plausible especially given Mr. Robinson's testimony. As a result, I conclude that the Crown has not proven beyond a reasonable doubt that Mr. Robinson was a principal to this offence.

[121] There remains the issue of whether Mr. Robinson is a party to the offence of weapons trafficking as an aider or abettor. The actus reus of the offence is doing or, in some circumstances, omitting to do something that assists or encourages the perpetrator to commit the offence. The mens rea requires the person to have rendered the assistance or encouraged for the purpose of aiding or abetting the principal offender to commit the offence. "Purpose" has two components: intent and knowledge. The Crown must prove the accused intended to assist or abet the principal in the commission of the offence. As for knowledge, the aider must know that the perpetrator intended to commit the offence although he or she need not know precisely how it will be committed and that intention need not be shared by the aider and abettor: see R. v. Briscoe (2010), 2010 SCC 13, 253 C.C.C. (3d) 140 (S.C.C) at paras. 16-18; R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198 at para. 76.

[122] In this case, I have concluded that the Crown has failed to prove beyond a reasonable doubt that Mr. Robinson had the requisite mens rea as an aider and abettor. First of all, I believe it is quite clear by now that I have accepted that Mr. Robinson had little or no assurance that Gucci did want to sell Mr. McLean the Para-Ordinance 9mm. He was puffing what he knew and had claimed to have arranged it for Mr. McLean. As a result, I have a reasonable doubt that Mr. Robinson knew that Gucci intended to commit the offence of weapons trafficking. In addition, I find that the Crown has not proven beyond a reasonable doubt that Mr. Robinson intended to aid or abet Gucci in the sale of firearm. Mr. Robinson had little or no relationship with Gucci. Mr. Robinson was not getting paid by Gucci. It was Mr. McLean who wanted the gun and who was going to pay for it. Mr. Robinson's relationship was much closer to Mr. McLean. It was Mr. McLean who was pushing Mr. Robinson to set up the meeting. Looking at the total picture, Mr. Robinson intended to aid and abet Mr. McLean, the purchaser, and not Gucci, the seller: see R. v. Machushek 2016 SKCA 41. As a result, the Crown has also not proven Mr. Robinson had the intent to aid and abet the alleged weapons trafficker.

[123] For these reasons, I find Mr. Robinson not guilty of the last remaining count.

Conclusion

[124] I would like to make one parting comment. I have been challenged by this case. It is not because of the complexity of the legal issues posed by the charges although I admit that they were not always easy. I have been challenged because this young man was clearly up to no good. In the particular circumstances of this case, the line between criminal liability and a reprehensible anti-social attitude was a fine one. It is sometimes seductive to convict and punish someone for being a "bad" person. Especially when that person came so close to committing the offences for which he was charged. However, that fine line remains a bright line. That line is a fundamental one. It marks the boundary between a finding of guilt and the presumption of innocence. Our criminal justice system depends upon impartial and dispassionate judges who are not swayed by any result-oriented thinking, doing their best in drawing that line correctly.

[125] I have tried to do so in this case.

Released: July 20, 2016

Signed: "Justice S. Nakatsuru"