WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY —(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) FAILURE TO COMPLY WITH ORDER — Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Francis, 2021 ONCJ 742

DATE: 2021 01 29

COURT FILE No.: Toronto Region 19-15008566, 20-15002665

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

AKEEM TEVIN FRANCIS AND JAIVON PRINCE-SKYERS

Before Justice Carol A. Brewer

Heard on September 22, October 19, 20, 27, 28, 29, November 26, 2020

Reasons for Judgment released on January 29, 2021

Stephen Byrne............................................................................................ counsel for the Crown

Sina Shabestary............................................. counsel for the defendant, Akeem Tevin Francis

Morrie Luft..................................................... counsel for the defendant, Jaivon Prince-Skyers

C.A. Brewer J.: Introduction

[1] This is a ruling on the issue of committal for trial following a preliminary inquiry on the following charges:

• attempted murder (Mr. Francis)
• possession of cocaine for the purpose of trafficking (jointly)
• possession of cocaine for the purpose of trafficking (Mr. Prince-Skyers).

[2] It is the theory of the Crown that Mr. Francis and Mr. Prince-Skyers were engaged in a drug trafficking enterprise together. At about 11:00 p.m. on November 25, 2019, when Mr. Francis was in Barrie for the purpose of selling drugs, he was robbed at gunpoint by three men. Immediately after the robbery, Mr. Francis contacted Mr. Prince-Skyers, who drove to Barrie and brought Mr. Francis back to Toronto. Mr. Francis was angry about the robbery and expressed a need to retaliate in order to protect his reputation and his drug enterprise with Mr. Prince-Skyers. Mr. Francis made efforts to obtain a firearm and ammunition. On November 26, 2019 at about 8:51 p.m., Mr. Francis left his home on Grandravine Drive and got into the back passenger seat of a white Hyundai Elantra. The car was driven by Abhinav Gaur and Mr. Prince-Skyers was in the front passenger seat. After stopping for what the Crown alleges to be a drug transaction, the car in which the defendants were traveling drove north to Barrie. At 10:40 p.m., the white Elantra pulled into the drive-through lane of a Wendy’s restaurant in Barrie. The police conducted a high-risk vehicle stop. Mr. Gaur, Mr. Francis and Mr. Prince-Skyers were ordered out of the car at gunpoint and arrested. When the vehicle was searched, a loaded 40 caliber Sig Sauer handgun and a knotted black sock containing about an ounce of cocaine were found under the front passenger seat. Those items were only accessible from the rear passenger seat where Mr. Francis was seated, as there was an elevated air vent that blocked access from the front passenger seat. Mr. Prince-Skyers had 4.89 ounces of cocaine in a black satchel he was wearing, as well as 1.87 ounces of cocaine concealed on his person.

[3] In seeking committals for trial, Crown counsel relies upon the following evidence:

• intercepted telephone calls and text messages between Mr. Francis and others, including Mr. Prince-Skyers;[^1]
• surveillance conducted by the police; and
• testimony from police officers, who participated in the vehicle stop and in the searches of the car and the two defendants.

[4] Mr. Shabestary and Mr. Luft oppose committal on any of the counts pertaining to their clients.

The Test to be Applied

[5] As a judge presiding at a preliminary inquiry, my role is to ensure that there is sufficient evidence to commit the defendants for trial. Accordingly, I must determine, in relation to each of these charges, whether there is some evidence upon which a reasonable jury, properly instructed, could convict.[^2] In carrying out this task, I am not entitled to draw factual inferences or to assess the credibility or reliability of the evidence. In addition, where the case involves circumstantial evidence, I am only entitled to assess the reasonableness of the inferences to be drawn and determine whether the evidence, if believed, could support an inference of guilt.[^3] Any reasonably available interpretation of, or inference from, the evidence at the preliminary inquiry must be resolved in favour of the prosecution.[^4]

[6] When dealing with a case involving circumstantial evidence, a judge presiding at a preliminary hearing is to engage in a “limited weighing” of the evidence to assess the reasonableness of any inferences that may be drawn from the evidence.[^5] An inference is a factual deduction that can reasonably and logically be drawn from a fact or group of facts established by the evidence.[^6] In order for an inference to be legitimately drawn, it must be both reasonably based on the evidence and a reasonable conclusion from those proven facts.[^7] Whether an inference is easy, hard or difficult to draw is of no moment to a decision on committal. Provided the inferences advanced by the Crown are within the field of available inferences and address each of the essential elements of the offence, a committal follows.[^8] It is irrelevant that the evidence might also support inferences inconsistent with guilt.[^9] Yet, as the Court of Appeal cautioned in United States of America v. Huynh: “The process of drawing inferences from evidence is not, however, the same as speculating, even where the circumstances permit an educated guess.”[^10]

[7] Pursuant to section 548(1) of the Criminal Code, I am also entitled to commit the defendant for trial on any other indictable offence in respect of the same transaction as the charges on the information. The phrase “in respect of the same transaction” has been held to mean that the other charge must arise out of a series of connected acts which are closely interwoven with or related to the offence charged in the information.[^11]

Initial Issues

A. Linking the Defendants to the Intercepted Communications

[8] Mr. Shabestary submits that Mr. Francis should be discharged, as there is no evidence establishing that the telephone line attributed to him was used by the defendant.

[9] The telephone calls and text messages attributed to Mr. Francis by the prosecution involve the phone number (705) 816-1673, with a subscriber name of Bob Thomsan. On November 26, 2019 at 1:41 p.m. the person using the number (705) 816-1673 was asked what kind of phone he had. That man responded that he had a Samsung 7 Edge.[^12] At the time of his arrest, Mr. Francis was found to be in possession of a Samsung cellular telephone with a gold case. In an intercepted call on November 27, 2019 at 1:05 a.m., the officer in charge of the wiretap investigation, Detective Sergeant Kulmatycki called the number (705) 816-1673 and the Samsung telephone that had been seized from Mr. Francis rang and was answered by Detective Constable Syed.[^13]

[10] Similarly, one of the persons with whom Mr. Francis communicated had a subscriber name of Jamal Lucky at number (437) 240-9452. When Mr. Prince-Skyers was arrested, he was in possession of two cellular telephones, one of which was a Blackberry. In an intercepted call on November 27, 2019 at 1:13 a.m., Detective Sergeant Kulmatycki called the number (437) 240-9452 and the Blackberry phone that had been seized from Mr. Prince-Skyers rang and was answered by Detective Constable Syed.[^14]

[11] I recognize that on October 28, 2019, a call was made to Detective Sergeant Kulmatycki, using phone number (437) 240-9452 – the number of the phone seized from Mr. Prince-Skyers - during which the caller identified himself as Mr. Francis. It seems to me that a reasonable trier of fact could listen to the voice in the October 28, 2019 call and conclude that it was the same person as the one using phone number (705) 816-1673 on November 25 and 26, 2019. Given the short time period between the intercepted calls, starting on November 25, 2019 at 11:48 p.m., and their seizure from the defendants shortly after 10:40 p.m. on November 26, 2019, I believe that there is some evidence upon which a properly instructed trier of fact conclude that the defendants were the people using the seized telephones.

B. Coded Language

[12] The parties agree that the intercepted communications frequently involve guarded conversations using coded language. However, Mr. Shabestary takes the position that the intercepted communications are full of jargon and coded language that cannot be interpreted without expert evidence. Defence counsel describes the meaning attributed by Mr. Byrne to certain words or expressions as speculative and the equivalent of providing evidence.

[13] In interpreting the interceptions in this case, it is necessary to consider the communications in context and in their entirety and bear in mind that not every conversation is coded. Although expert evidence would have been helpful to assist in understanding what certain words or phrases mentioned in the communications are about,[^15] I believe that through logic, common sense and context a reasonable trier of fact could interpret the intercepts and be able to grasp the essential features of the conversations.

[14] In particular, I believe that a reasonable trier of fact could infer that some of the words frequently used in the intercepts have the following meanings:

• “jammed” and “run up on” describe being robbed;
  • in one conversation with Mr. Francis, Jones commented, “the guys that robbed you, they seen Smiley before.” Jones later said, “So they jammed you because of Smiley?” Mr. Francis replied, “basically, yeah.”[^16]
  • in describing the same incident, Mr. Francis said that “youths ran up on me”,[^17] adding “they just came here … to rob.”[^18]
• “stick”, “blickie”, “ah”, “pocket rocket” and sometimes “thing” are references to a gun;
  • Mr. Francis instructed Malik to tell Manny to “go get my thing”.[^19]
  • in various conversations about being robbed, Mr. Francis spoke of “three niggers with sticks”[^20] and “three niggers with blickies”.[^21] He also commented that the robbers “have the things out, hiding it from her … putting their hand over the stick”[^22] and they had “little small ahs”[^23] which he described as “pocket rockets”.[^24]
  • Mr. Francis expressed frustration that when he wanted to have a “blickie”[^25] / “stick”[^26]/ “ah”[^27] with him, he was told not do so by Smiley.
• “full” means loaded;
  • in an exchange of text messages, Mr. Francis told Malik, “get my stick”.[^28] Malik responded, “We have it”.[^29] Mr. Francis asked, “is it full”[^30] and Malik replied, “Told him to full it.”[^31]
  • “My blickie is being filled as we speak.”[^32]
• “grains” and “teeth” describe bullets;
  • Mr. Francis asked Nelson, “You have my stick?”. When Nelson said “yeah”, Mr. Francis inquired whether Nelson had “teeth for it”. Nelson responded that “My teeth are in Brampton” and “I don’t have them on me.” Mr. Francis directed Nelson to “take the teeth out o’ yours and put it in mine … make sure it’s full.”[^33]
  • subsequently, Mr. Francis wanted to know “is it full?”. When told that “it’s not full” and that Manny was not responding to text messages, Mr. Francis said, “I’m a come get it just now … I just need some more grains.”[^34]
  • still later, Mr. Francis asked Tynes, “can your bros get me … forty teeth?” When she did not understand what he meant, Mr. Francis told her both on the phone and in a text message that he wanted “teeth for a 40”. [^35]
• “pop off”, “bop off”, “beat” and “smoke” are synonyms for shot or shooting;
  • in the course of one conversation, Pops asked, “What? They were shooting? They were popping off?” Mr. Francis replied, “Yeah.”[^36]
  • “They had like blickies, like popped it off me.”[^37]
  • during a number of communications, Mr. Francis also said, “They fucking bopped off on me”,[^38] “Just came in and just bopped off”,[^39] “These niggers fucking bopped off … All three of them had it pointed at me”[^40] and “I’ve never been bopped off on in my life.”[^41]
  • when discussing the robbery with Tynes, Mr. Francis expressed regret that he did not have his stick with him, saying that if he’d had it, he would have “started beating”.[^42]
  • during a conversation unrelated to the robbery, Mr. Francis told Ambrose, “I see you guys are not really with this shit. Shots beat and you guys had sticks and you guys ran.”[^43]
  • Mr. Francis described one of the robbers telling the other two to “make sure you search him again ’cause I don’t wanna get shot in my head”[^44] and “I don’t want to get smoked in my head, make sure you check him again.”[^45]
• “pitch” means kill;
  • “They’re like lay on the floor…. I’m not laying on the floor ‘cause … yo, are you dumb? So you guys pitch me? Nah, nah”.[^46]
  • “he’s like … I don’t even want to pitch you. I just want Smiley.”[^47]
  • “How did you guys jam Ace? … and you guys didn’t pitch him? … he for sure is going to show them that they’re idiots for doing that.”[^48]
  • “Niggers bop off and you guys don’t pitch a nigger, that’s the dumbest shit you can do.”[^49]
  • “they pussy, they never killed me.”[^50]
  • “I’m like yo, these guys have to get pitched, fam.”[^51]
• “eat” refers to making money; and
  • Mr. Francis told Tynes that when “these guys see the money I had”, the robbers complained, “Oh damn, you’re doing better than us … how come we can’t eat. We can’t make a dollar when [he’s] over here”.[^52]
  • Jones told Mr. Francis that he was being undervalued by Smiley. He pointed out that Mr. Francis had improved business at Trish’s and that all Smiley “had to do was keep giving [Mr. Francis] work” and “everybody will eat”.[^53]
• “work” frequently means cocaine.
  • in an exchange with Jones, Mr. Francis asked, “How much work you need?” Jones replied, “maybe like a Cuban.” When Mr. Francis said, “I have that still”, Jones asked “hard or soft?” Mr. Francis responded, “Whatever you need.”[^54]
  • Mr. Francis told Tynes that the robbers “are not making no money ‘cause we have all the better work.”[^55] He commented that the robbers’ “work tastes shit”.[^56] They “are cutting their work with Dextrol [and] … it tastes nasty.”[^57]
  • further, Mr. Francis disclosed to Tynes that the robbers “got no work … They think they got work … [but] they got powdered sugar.”[^58]

The Factual Background

[15] At the time of the robbery, Mr. Francis had been selling cocaine in Barrie. He was using the residence of a woman named Trish as his base of operations. This had been arranged through a man called Smiley, who Mr. Francis referred to as “my cousin’s nigger”[^59]. He had been at that location for three weeks and was making money. Trish was still living in the residence while Mr. Francis was there. She was a drug addict and, by the time of the robbery, owed Mr. Francis a drug debt she was unwilling to pay.

[16] On November 25, 2019, at about 11:00 p.m. some men approached the back door of the residence. Mr. Francis was not expecting any customers. When he saw the men, Mr. Francis moved away from the door and warned Trish that some people were there. As the men were leaving, Trish unlocked the door and yelled to them, much to Mr. Francis’ consternation. They returned and entered the residence, calling for Smiley. One of the robbers was wearing a ski mask; the other two did not conceal their faces. All three had guns, which they fired during the course of the robbery. Mr. Francis was ordered to lie down but refused to do so. He was searched and the robbers took all of his money, his “shank”, some “weed”, a “bounce of C-B” and some powdered sugar packaged to look like cocaine.[^60] One of the robbers suggested that they put on gloves and “go up in his bum”[^61] but that did not occur. Mr. Francis’ phone was taken, but the robbers returned it before they left. The robbers did not get any cocaine, as Mr. Francis had buried it in a flowerpot. Mr. Francis also had concealed “half a B in my balls.”[^62]

[17] Mr. Francis described the men as “Driftwood youths” – from the Driftwood area of North York. All of the men were black; one was Somalian. One of the robbers was about 6 feet, 3 inches tall, another about 6 feet tall and the third was Mr. Francis’ height. Mr. Francis made a point of staring at the two unmasked men in order to remember their faces. Indeed, he recognized one of the men from seeing him before. Mr. Francis realized that the robbers were selling drugs “six doors down” from Trish’s place.

[18] The first person that Mr. Francis contacted after the robbery was Mr. Prince-Skyers. At 11:49 p.m. on November 25, 2019, Mr. Francis told Mr. Prince-Skyers that he had been robbed and that “the work’s gone.”[^63] Mr. Prince-Skyers responded, “I’m coming over there right now.”[^64] At 1:06 a.m. on November 26, 2019, Mr. Prince-Skyers told Mr. Francis that he was going to be outside in a few minutes.

[19] Mr. Francis was extremely angry, not just because of the loss of the money, but because the situation happened at all. Mr. Francis suspected that he had been set up by Trish (to get out of repaying her debt to him) and/or Smiley (because Smiley knew that Mr. Francis was also dealing drugs independently). In the hours that followed the robbery, Mr. Francis contacted a number of people. In the intercepted communications, he described the robbery, made repeated efforts to get both a gun and ammunition, sought advice and allies and planned his retaliation.

[20] Mr. Francis believed that responding to the robbery needed to be given priority because it “was a territory thing”.[^65] He was frustrated by Smiley’s lack of action and the negative impact it would have on Mr. Francis’ reputation and his business. Mr. Francis commented:

My boy brought me O-T and I got jammed. What the fuck? He didn’t ride? Nope. Do you know how bad that sounds, bro?[^66] Now, I’m just gonna have to bring my name and … if Smiley doesn’t want to handle it … he out because nobody has any respect for us.[^67]

[21] In describing the nature of his retaliation, Mr. Francis said:

I go back over there, bro … I need a young ‘un and a next young ‘un over there … two’d up … ‘cause … I’m a play rough, fam … they’re gonna see how it feels.[^68] I just feel pissed off. I wanna fucking smoke these guys.[^69] it’s a war now … I’m not scared to die, I’m just cheesed … I didn’t even care about going back to jail, these guys violated, bro. I have to.[^70] I’m about to bring my whole hood to B. … Of course I wanna do them in. I’m locking down their program … I know that there’s jam, we’re riding the same night, like same day. I don’t know what is going on right now, my blickie is here ready, full.[^71] these guys have to get pitched[^72] I have my thing, let’s go … I don’t care about the police … We know where they chill. My nigger, they’re six houses down … We can lock it up.[^73]

[22] At 8:51 p.m. on November 26, 2019, Mr. Francis was picked up by a white Hyundai Elantra, driven by Mr. Gaur. Mr. Prince-Skyers occupied the front passenger seat and Mr. Francis got into the rear passenger seat. The car took a circuitous route, perhaps prompted by information Mr. Francis received about a car following them. At 9:22 p.m. the white Elantra arrived at the Crossroads Plaza at 2625 Weston Road, where Mr. Prince-Skyers briefly left the vehicle and went into a bank. The vehicle was next observed in the rear parking lot of a drug store located at 1995 Weston Road at 9:44 p.m. Eight minutes later, at 9:52 p.m., a silver Hyundai Elantra parked beside the defendants’ vehicle. Mr. Prince-Skyers left the front passenger seat of the white car, carrying a black bag over his shoulder. He got into the rear driver’s side seat of the silver Elantra. At 9:55 p.m., Mr. Prince-Skyers returned to the white car, carrying the same bag. The Elantra in which the defendants were travelling left the parking lot and drove north to Barrie.

[23] As noted earlier, the police stopped the white Elantra in the drive-through of a Wendy’s restaurant in Barrie. The 40 caliber handgun the police found under the seat in front of Mr. Francis had a bullet in the chamber and ammunition in the magazine. The black sock found beside the gun contained two plastic-wrapped bundles, one containing an ounce of cocaine, the other holding .035 of an ounce (1.01 grams) of cocaine. Inside Mr. Prince-Skyer’s black satchel was a bank card in his name, a lighter, USB cables and a dark gray plastic bag, which held a clear plastic 5x8 zip-lock baggie with 4.89 ounces of cocaine. During a strip-search of Mr. Prince-Skyers, a package fell to the ground when his black boxers were removed, although the defendant also had on a pair of white boxers. The package consisted of three layers of plastic over a zip-lock bag holding 1.87 ounces of cocaine.

Possession of Cocaine for the Purpose of trafficking

A. The Legal Framework

[24] Both Mr. Francis and Mr. Prince-Skyers are charged with possession of cocaine[^74] for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act. In order to obtain a committal for trial on these counts, the Crown must adduce some evidence upon which a reasonable trier of fact could find that each defendant: (1) possessed the substance; (2) the substance is cocaine; (3) each knew that the substance was a controlled substance; and (4) each possessed it for the purpose of trafficking. In this case, the elements of the offence in issue are proof of possession and of an intention to traffic.

[25] The CDSA adopts the definition of “possession” in section 4(3) of the Criminal Code,[^75] which sets out three types of possession: (1) personal possession; (2) constructive possession; and (3) joint possession. In this case, the focus is on the first and third types of possession.

[26] Personal possession requires proof of manual handling or physical custody of the object; knowledge of what the object is; and some measure of control over that item.[^76] Generally, personal possession will involve situations where drugs are found on a person’s body, such as where the individual is holding them, or keeping them in a pocket. In R. v. Bird, 2020 ABCA 236 at ¶13, the Alberta Court of Appeal held:

"Physical custody" may exist even where there is no touching of the object. For example, a person carrying a backpack known to contain a gun is properly seen as being in personal possession of the gun. A purchaser of drugs is in personal possession of drugs in his vehicle, even if they were placed on the front seat by the seller, without the purchaser ever touching them. While manual handling and knowledge is generally conclusive of personal possession, the absence of manual handling does not necessarily preclude possession, because "control" and knowledge combined with a sufficient degree of physical proximity may nonetheless establish possession. Whether physical proximity combined with control amounts to personal possession is a matter of degree.[^77]

Applying this analysis, the court found that Mr. Bird was in personal possession of a loaded, prohibited firearm which had been left in the pocket of the driver’s door of a truck the accused had borrowed from a friend. The gun was clearly visible and was positioned with the muzzle down and hand grip up towards the door handle, where it was within easy reach of the driver. Mr. Bird had knowledge of the presence of the firearm, although he never touched it. The element of control was established when Mr. Bird chose to drive off with knowledge of the firearm in the truck, when he could have exercised other options such as refusing to take the truck or insisting that his friend take the gun.

[27] Joint possession involves a situation where one member of a group is in possession of a drug or contraband and other group members, who have knowledge of that possession and consent to it, are also deemed to be in possession of that item. Passive acquiescence is not sufficient to establish joint possession. There must be evidence of some form of active concurrence on the part of the accused. In addition, the other group members must have some measure of control over the item in order to be deemed to possess it.[^78] Control is established where there is a right to grant or withhold consent as to whether an item can be stored in a place, although it is not necessary that the consent in fact be exercised.[^79] Knowledge can be inferred from the surrounding circumstances, which show that the accused either knew about the item or was wilfully blind or reckless about its presence.[^80]

[28] Trafficking is defined as including selling, transferring and delivering a controlled substance[^81] In addition, “sell” encompasses offering for sale, exposing for sale, having in possession for sale and distribution, whether or not the distribution is made for consideration.[^82]

[29] An intention to possess a drug for the purpose of trafficking can be established by direct evidence, circumstantial evidence or through inferences provided by an expert witness.[^83] Typically, the court will be asked to draw an inference of such an intention from circumstantial evidence, such as the amount and value of the substance, the presence of drug paraphernalia (scales, cutting agents, packaging), evidence of on-going drug activity, the presence of large amounts of money, the manner in which the substance is packaged and intercepted communications.[^84]

B. The Position of Counsel

[30] Mr. Shabestary accepts that there is sufficient evidence to warrant a committal for trial on a charge of possession of a substance, contrary to section 4(1) of the CDSA, with respect to the cocaine found in the sock in close proximity to Mr. Francis. Mr. Luft takes the same position with respect to the cocaine found in Mr. Price-Skyers’ satchel and in his underwear. However, both defence counsel submit that there is no evidentiary basis for an inference that Mr. Francis and Mr. Prince-Skyers were in joint possession of the cocaine or that the cocaine was possessed for the purpose of trafficking. In particular, Mr. Luft points to the absence of any evidence as to what amount of cocaine is consistent with personal use, as opposed to for the purpose of sale.

[31] Mr. Byrne contends that each of the defendants were jointly in possession of all of the cocaine in the car. It is his position that, when the totality of the evidence is considered, Mr. Francis and Mr. Prince-Skyers were engaged in a joint enterprise involving the sale of cocaine for profit.

B. Analysis

Possession

[32] In R. v. Jones, 2006 NSCA 50, Justice Hamilton said:

10 With respect to joint possession, where a number of individuals are occupying a car containing drugs, the issue of knowledge and consent is often determined by the nature of the relationship and mutual activities of the occupants in relation to the car and its contents. … 11 Evidence indicating a joint enterprise with respect to the drugs permits a finding of consent on the part of those who do not have physical possession of the drugs …

The court upheld the trial judge’s conclusion that the accused and the young person with him were a team working together to traffic in cocaine. The circumstances involved the police pulling over a car driven by Jones, where he and his passenger were wearing balaclavas. A plastic bag, containing 18 individually wrapped pieces of crack cocaine, was in plain view on the floor where the passenger was sitting, and Mr. Jones was in possession of a cell phone and $99.76 in cash. An expert witness testified, in response to a hypothetical question involving these facts, that the evidence was consistent with a “dial-a-dope” operation.

[33] In my opinion, on the basis of the cumulative effect of the following evidence, a reasonable trier of fact could infer that Mr. Francis and Mr. Prince-Skyers were involved together in a drug dealing enterprise and were jointly in possession of all of the cocaine found in the white Elantra:

• Mr. Francis was engaged in drug trafficking, both with Smiley and independent of him;
• Mr. Prince-Skyers knew that Mr. Francis was dealing in drugs, as demonstrated by his comprehension of Mr. Francis saying that “all of the work is gone”;
• the two men have a close relationship:
  • Mr. Prince-Skyers was the first person called by Mr. Francis following the robbery;
  • he immediately decided to go to Barrie, without being requested to do so by Mr. Francis and without needing to know the address;
  • Mr. Prince-Skyers was using and was found in possession of the telephone Mr. Francis employed to call Detective Kulmatycki a month before the arrest;
• Mr. Prince-Skyers reacted angrily to the robbery and showed a personal interest in its impact:
  • an inference could be drawn that Mr. Prince-Skyers was speaking of Trish, the woman who let the robbers into the house, when he said:

    I’m definitely going to pull up on this dumb fucking bitch. The bitch jammed me for money, fam. The girl took money from me, fam. Oh, that’s a green light for sure. Anyways, we will stop there before we go up …[^85]

• Mr. Prince-Skyers was a participant in Mr. Francis’ plan to retaliate against the robbers;
  • he expressed a willingness to go with Mr. Francis whenever he was ready;[^86]
  • he arranged for the two of them to be driven to Barrie; and
• a trier of fact could infer that Mr. Prince-Skyers engaged in a drug transaction, with Mr. Francis’ knowledge, while en route to carry out the plan to retaliate against the robbers.
  • after picking up Mr. Francis, Mr. Gaur drove to a plaza, where Mr. Prince-Skyers entered the bank;
  • they drove to a rear parking lot, where Mr. Prince-Skyers left the vehicle while carrying a black satchel. He entered another car for three minutes before returning to Mr. Gaur’s Elantra with the same black bag;
  • when he was arrested, Mr. Prince-Skyers’ satchel held his bank card and 4.89 ounces of cocaine, but no money was found;
  • had Mr. Prince-Skyers been acting solely on his own behalf, there was no reason for him to engage in a drug transaction while accompanying Mr. Francis for the purpose of dealing with the robbers.

For the Purpose of Trafficking

[34] I believe that the evidence bearing on an intention to traffic is quite weak. No expert evidence was called to provide insight into the value or purity of the cocaine or the amounts of such a drug that are consistent with trafficking as opposed to personal use. The defendants were not in possession of drug paraphernalia or large amounts of money. Mr. Prince-Skyers had two cell phones and Mr. Francis had a cell phone and a gun in close proximity to him. I recognize that telephones and guns are common tools in the drug trade.

[35] However, there is authority to suggest that prior acts of trafficking are relevant to the issue of an intention to traffic.[^87] On this basis, I find that there is some evidence upon which a reasonable trier of fact could find an intention to traffic, in view of the intercepted communications describing Mr. Francis’ past acts of trafficking, the drug transaction carried out by Mr. Prince-Skyers on the way to Barrie and significant amount of cocaine jointly possessed by them.

Attempted Murder

A. The Legal Framework

[36] Section 239 of the Criminal Code provides that every person who attempts by any means to commit murder is guilty of an indictable offence. The mens rea of the offence is a specific intent to kill. An intention to inflict harm, even significant harm, combined with recklessness as to the consequences of inflicting that harm, is insufficient to establish the mental element of attempted murder.[^88]

[37] The actus reus for attempted murder involves conduct of the accused done for the purpose of carrying out the intent to kill. The conduct must amount to some act that goes beyond mere preparation for committing the offence.[^89] However, that conduct, in itself, need not be criminal or even unlawful.[^90] No physical injury to the victim is necessary.[^91]

[38] Discerning when preparation ends, and an actual attempt begins is not easily accomplished. In R. v. Cline (1956), 1956 CanLII 150 (ON CA), 115 C.C.C. 18 (Ont. C.A.) at p. 28, Justice Laidlaw said:

The consummation of a crime usually comprises a series of acts which have their genesis in an idea to do a criminal act; the idea develops to a decision to do that act; a plan may be made for putting that decision into effect; the next step may be preparation only for carrying out the intention and plan; but when that preparation is in fact fully completed, the next step in the series of acts done by the accused for the purpose and with the intention of committing the crime as planned cannot, in my opinion, be regarded as remote in its connection with that crime. The connection is in fact proximate.

[39] The Supreme Court of Canada elaborated on this point in R. v. Deutsch, 1986 CanLII 21 (SCC), [1986] 2 S.C.R. 2, where Le Dain J. held:

27 In my opinion the distinction between preparation and attempt is essentially a qualitative one, involving the relationship between the nature and quality of the act in question and the nature of the complete offence, although consideration must necessarily be given, in making that qualitative distinction, to the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished. I find that view to be compatible with what has been said about the actus reus of attempt in this Court and in other Canadian decisions that should be treated as authoritative on this question. … 31 In my opinion, relative proximity may give an act which might otherwise appear to be mere preparation the quality of attempt. … But an act which on its face is an act of commission does not lose its quality as the actus reus of attempt because further acts were required or because a significant period of time may have elapsed before the completion of the offence.

[40] In R. v. Boudreau, 2005 NSCA 40 at ¶32, MacDonald C.J.N.S. commented:

any analysis of the actus reus, practically speaking, must be viewed in conjunction with the mens rea. It is impossible to separate the two. This was succinctly stated by Professor Kent Roach in Criminal Law, (Toronto: Irwin Law, 2000) at p. 102: Determining whether the accused has gone beyond mere preparation and committed an actus reus for an attempted crime is difficult to predict. In a practical sense, much will depend on the strength of the evidence of wrongful intent. Going through the glove compartment of a car has been held to be the actus reus for its attempted theft when the accused indicated that he was searching for keys to steal the car. On the other hand, making a plasticine impression of a car key has been held to be only preparation to steal the car. Approaching a store with balaclavas and a gun could be a sufficient actus reus for attempted robbery, but retreat when informed that the store was closed may reveal a reasonable doubt about the intent to commit the robbery. In practice, a more remote actus reus will be accepted if the intent is clear.

[41] As expressed by the Court of Appeal in R. v. Sorrell, [1978] O.J. No 714 at ¶23:

We are of the view that where the accused's intention is otherwise proved, acts which on their face are equivocal, may, nonetheless, be sufficiently proximate to constitute an attempt. Where, however, there is no extrinsic evidence of the intent with which accused's acts were done, acts of the accused, which on their face are equivocal, may be insufficient to show that the acts were done with the intent to commit the crime that the accused is alleged to have attempted to commit, and hence insufficient to establish the offence of attempt.

B. The Position of the Parties

[42] Mr. Byrne submits that the intercepted communications provide unequivocal statements of Mr. Francis’ intention to kill. He suggests that the text messages saying “Drill time” show that, after 20 hours of planning, the preparation phase had ended and implementation had begun. The drive to Barrie was an act of commission and, but for the police intervention, Mr. Francis would have gone to the robbers’ abode and killed them.

[43] Mr. Shabestary maintains that, on this evidence, an intention to kill cannot be inferred. He argues that the interpretation given to the communications by Crown counsel is speculative and based on conjecture, rather than evidence. In Mr. Shabestary’s submission, even if murder were on the agenda, the mere fact of driving to a fast food restaurant in Barrie is not a step beyond mere preparation. He drew my attention to the following passage from R. v. Henderson, 1948 CanLII 17 (SCC), [1948] S.C.R. 226, which was cited with approval by the Supreme Court of Canada in R. v. Deutsch, supra at ¶29:

Although it may be said that no one could doubt the express purpose of the bandits, I do not believe that it can be held that the mere fact of going to the place where the contemplated crime is to be committed, constitutes an attempt. There must be a closer relation between the victim and the author of the crime; there must be an act done which displays not only a preparation for an attempt, but a commencement of execution, a step in the commission of the actual crime itself.

C. Analysis

Mens Rea

[44] In my view, the intercepted communications strongly support a conclusion that Mr. Francis intended to respond to the robbery with violence – in particular, that he planned violence using a firearm against those who robbed him. Based upon Mr. Francis’ use of language such as “I wanna do them in” and “these guys have to get pitched”, I am satisfied that a reasonable jury properly instructed could infer that Mr. Francis had a specific intent to kill the men who stole from him.

Actus Reus

[45] A review of the jurisprudence on the evidence adduced to establish the actus reus for attempted murder shows the significance of proximity in time, location and acts remaining to be carried out in order to fulfill the intention to kill. At one end of the continuum is R. v. May, 2006 NSSC 329, where the complainant left the accused after a common law relationship of 13 years’ duration. Mr. May openly expressed the opinion that if he could not have the complainant, then no one else would. Mr. May obtained a sawed off shotgun and two shells, drove over an hour to the complainant’s residence, entered the complainant’s house, lured her outside, obtained the shotgun, pointed it at her and said, “this is where you are going to die”. A struggle ensued and the complainant managed to flee to a neighbour’s home. Mr. May entered the neighbour’s residence and again pointed the shotgun at the complainant, before the neighbour gained control of the gun. Boudreau J. found that the accused had done everything in preparation and execution of the intention to kill, apart from “a split second firing of the gun”.[^92]

[46] At the other end of the spectrum is R. v. Francis, 2017 ONSC 1505. In that case, the accused threatened and assaulted the complainant after she ended their relationship. He specifically told an undercover officer that he was going to kill the complainant’s two children and then take his own life, in order to make the complainant suffer for the rest of her life. Justice Akhtar found that the accused had made serious efforts to obtain a firearm and had asked the undercover officer to arrange for someone to search the school board’s database in order to locate the complainant’s children. However, Justice Akhtar concluded that, because the accused did not know where the complainant and her children were and he was not yet in possession of a gun, the plan to kill was still in the preparatory stages.

[47] There are two judgments, that are closer factually to the circumstances present in this case, which I have found to be of assistance. In R. v. Manmohansingh, [1987] O.J. No 729, the accused went to the parking lot of the hospital where his estranged wife worked in order to ascertain when her shift ended. The following night, the accused returned to the parking lot and parked in a spot with a clear view of his wife’s truck. He had a sawed-off rifle with a bullet in the chamber and the safety catch removed. The firearm was cocked and ready to fire as he waited for the complainant to enter the parking lot. The Court of Appeal upheld the trial judge’s conclusion that the accused’s actions went beyond mere preparation and constituted a step in the commission of the actual crime.

[48] Similarly, in R. v. Mantley, 2013 NSCA 16, Farrar J.A. determined that the trial judge did not err in his interpretation of the actus reus for attempted murder. The accused’s estranged wife was admitted to the hospital. When Mr. Mantley went to visit her, she asked him to leave and not to return. Subsequently, at about 4:00 a.m., the accused was seen entering the hospital through the Emergency Department and walking towards the doors leading to the main part of the hospital. He was dressed in clothing that concealed the fact that he was carrying a knife, a mallet and a baseball bat. When Mr. Mantley discovered that the doors to the lobby were locked, he tried to enter the main building through the triage area. During this time, the accused mentioned, on more than one occasion, that he was going to kill his wife. Justice Farrar stated:

52 These acts which on their face, are acts of commission, do not lose their quality as the actus reus of attempt because Mr. Mantley had not yet reached the proper hospital floor or because he was not in the same room as his wife or within seconds of completing the crime of murder. Applying the proximity test accepted by Le Dain, J. in Deutsch, supra, the appellant's actions clearly amounted to an attempt and not mere preparation. 53 There was very little left for Mr. Mantley to do to complete the murder except go to his wife's room, pull out a weapon and attack her with it.

[49] In relation to this case, I believe that Mr. Byrne’s position that “drill time” means that the implementation of the plan to kill the robbers had begun is speculative and not supported by the evidence. First, unlike the other words used in the interceptions which I believe could be interpreted by a reasonable trier of fact, there is no contextual basis for ascribing meaning to “drill time”. More importantly, the ambiguity of the words “drill time” is apparent from the circumstances surrounding the sending of the two text messages containing those words. At 9:04 p.m. on November 26, 2019 Mr. Francis sent a text message saying “drill time” to his brother, Raheem.[^93] At that point, the defendants were still in Toronto and the drug transaction involving Mr. Prince-Skyers and the occupants of the silver Elantra had not yet occurred. The second “drill time” message was sent to Tynes at 10:06 p.m., after the drug transaction had ended.[^94] In these circumstances, I do not think a trier of fact could reasonably infer that “drill time” means implementation of a plan to kill the robbers.

[50] In any event, the evidence would permit a reasonable jury to find that Mr. Francis knew where the intended victims were staying and that he travelled to the city where they were located, along with a loaded handgun with a bullet in the chamber. There is no evidence as to the distance between the place where the robbers were staying and the Wendy’s restaurant. Mr. Francis’ brother sent him a text message at 11:11 p.m. on November 26, 2019, asking “how you going to get inside”[^95], which suggests that planning was still underway. Even in R. v. Mantley, supra and R. v. Manmohansingh, supra, the accused had been at the place where the victim was situated and either made efforts to enter the premises or lay in wait in a location where it was certain the victim would go. I have concluded that a properly instructed jury could not find that Mr. Francis’ actions were sufficiently proximate in location and in acts to be accomplished to carry out the intention to kill. In other words, Mr. Francis’ actions were too remote from the goal of killing the robbers for a reasonable trier of fact to find that an act beyond preparation had occurred so as to constitute the actus reus of an attempt to murder.

Conclusion

[51] For these reasons, my findings on the charges dealt with on the preliminary inquiry are as follows:

• attempted murder – Mr. Francis is discharged;
• possession of cocaine for the purpose of trafficking (joint) – Mr. Francis and Mr. Prince-Skyers are committed for trial; and
• possession of cocaine for the purpose of trafficking – In light of my conclusion on the other count of possession of cocaine for the purpose of trafficking, I understood that Mr. Byrne is not seeking a committal for trial.

[52] The other charges on the Criminal Code information, for which there was not a preliminary inquiry available, will be adjourned to the Superior Court of Justice, together with the count on which both defendants were committed for trial.

Released: January 29, 2021

Signed: Justice Carol A. Brewer

[^1]: The intercepted communications were windfall evidence from a double homicide investigation, where Mr. Francis was considered to be a potential witness. [^2]: U.S.A. v. Sheppard, [1976] S.C.J. No 106 [^3]: R. v. Arcuri, [2001] S.C.J. No 52 [^4]: R. v. Sazant, [2004] S.C.J. No 74 at ¶18; R. v. Al Ghazzi, [2006] O.J. No 4052 (C.A.) [^5]: R. v. Arcuri, supra at ¶ 23 [^6]: R. v. Morrissey, [1995] O.J. No 639 (C.A.) at ¶ 52 [^7]: R. v. Munoz, [2006] O.J. No 446 (S.C.J) at ¶ 22-31 [^8]: R. v. Kamermans, 2016 ONCA 117 [^9]: R. v. Jackson, 2016 ONCA 736 [^10]: [2005] O.J. No 4074 (C.A.) at ¶ 7 [^11]: R. v. Goldstein, [1988] O.J. No 549 (C.A.) [^12]: Crown Wiretap Materials, Vol. 3, tab 6C, session 3617 at p. 29 [^13]: Crown Wiretap Materials, Vol. 4, tab 11A, session 3712 [^14]: Crown Wiretap Materials, Vol. 4, tab 11B, session 6427 [^15]: See, for example, R. v. Farah, 2016 ONSC 2874 [^16]: Crown Wiretap Materials, Vol. 3, tab 5E, session 3527 at p. 8 and p. 30 [^17]: Crown Wiretap Materials, Vol. 1, tab 3E, session 3476; Vol. 2, tab 4B, session 3414 at p. 2; Vol. 3, tab 6B, session 3595 at p. 2 [^18]: Crown Wiretap Materials, Vol. 3, tab 6B, session 3595 at p. 10 [^19]: Crown Wiretap Materials, Vol. 1, tab 3J, session 3483 [^20]: Crown Wiretap Materials, Vol. 2, tab 4H, session 3427 [^21]: Crown Wiretap Materials, Vol. 2, tab 4B, session 3414 at p. 2; Vol. 2, tab 4K, session 3430 at p. 5; Vol. 3, tab 5E, session 3527 at p. 15; Vol. 4, tab 9C, session 3411 at p. 3 [^22]: Crown Wiretap Materials, Vol. 3, tab 5E, session 3527 at p. 32 [^23]: Crown Wiretap Materials, Vol. 3, tab 6C, session 3617 at p. 50 [^24]: Crown Wiretap Materials, Vol. 3, tab 6B, session 3595 at p. 6 [^25]: Crown Wiretap Materials, Vol. 2, tab 4U, session 3495 at p. 48 [^26]: Crown Wiretap Materials, Vol. 2, tab 4W, session 3552 at p. 10-11; Vol. 3, tab 5F, session 3580 at p. 13 [^27]: Crown Wiretap Materials, Vol. 2, tab 4W, session 3552 at p. 9 and p. 26 [^28]: Crown Wiretap Materials, Vol. 1, tab 3P, session 3515 [^29]: Crown Wiretap Materials, Vol. 1, tab 3Q, session 3516 [^30]: Crown Wiretap Materials, Vol. 1, tab 3V, session 3522 [^31]: Crown Wiretap Materials, Vol. 1, tab 3W, session 3523 [^32]: Crown Wiretap Materials, Vol. 2, tab 4U, session 3495 at p. 10 [^33]: Crown Wiretap Materials, Vol. 1, tab 2B, session 3480 at p. 2-4 [^34]: Crown Wiretap Materials, Vol. 2, tab 4X, session 3627 at p. 56-57 [^35]: Crown Wiretap Materials, Vol. 2, tab 4Z, session 3647 at p. 9-12 and tab 4AA, session 3648. A reasonable jury would also be aware that the firearm found near Mr. Francis’ feet was a 40-caliber handgun. [^36]: Crown Wiretap Materials, Vol. 3, tab 6C, session 3617 at p. 50 [^37]: Crown Wiretap Materials, Vol. 2, tab 4K, session 3430 at p. 8 [^38]: Crown Wiretap Materials, Vol. 2, tab 4B, session 3414 at p. 3 [^39]: Crown Wiretap Materials, Vol. 2, tab 4U, session 3495 at p. 7 [^40]: Ibid at p. 60 [^41]: Ibid at p. 12 [^42]: Crown Wiretap Materials, Vol. 2, tab 4W, session 3552 at p. 10-11 [^43]: Crown Wiretap Materials, Vol. 3, tab 6C, session 3617 at p. 41 [^44]: Crown Wiretap Materials, Vol. 2, tab 4W, session 3552 at p. 10 [^45]: Crown Wiretap Materials, Vol. 3, tab 5E, session 3527 at p. 16 [^46]: Crown Wiretap Materials, Vol. 3, tab 5F, session 3580 at p. 56 [^47]: Crown Wiretap Materials, Vol. 2, tab 4W, session 3552 at p. 16 [^48]: Crown Wiretap Materials, Vol. 3, tab 5F, session 3580 at p. 53 [^49]: Crown Wiretap Materials, Vol. 2, tab 4U, session 3495, at p. 61 [^50]: Crown Wiretap Materials, Vol. 4, tab 7J, session 3488 [^51]: Crown Wiretap Materials, Vol. 3, tab 6B, session 3595 at p. 7 [^52]: Crown Wiretap Materials, Vol. 2, tab 4U, session 3495 at p. 35-36 [^53]: Crown Wiretap Materials, Vol. 3, tab 5F, session 3580 at p. 123 [^54]: Ibid at p. 138 [^55]: Crown Wiretap Materials, Vol. 2, tab 4X, session 3627 at p. 25 [^56]: Crown Wiretap Materials, Vol. 2, tab 4U, session 3495 at p. 36 [^57]: Crown Wiretap Materials, Vol. 3, tab 6D, session 3625 at p. 4-5 [^58]: Crown Wiretap Materials, Vol. 2, tab 4U, session 3495 at p. 15 [^59]: Ibid at p. 31 [^60]: Crown Wiretap Materials, Vol. 2, tab 4U, session 3495 at p. 15-18, p. 23 and p. 26; Vol. 3, tab 5B, session 3505 at p. 3; Vol. 3, tab 5E, session 3527 at p. 16 [^61]: Crown Wiretap Materials, Vol. 2, tab 4U, session 3495 at p. 18; Vol. 3, tab 5F, session 3580 at p. 59-61 [^62]: Crown Wiretap Materials, Vol. 3, tab 6B, session 3595 at p. 49 [^63]: Crown Wiretap Materials, Vol. 4, tab 9C, session 3411 at p. 3 [^64]: Ibid at p. 4 [^65]: Crown Wiretap Materials, Vol. 3, tab 5F, session 3580 at p. 115 [^66]: Ibid at p. 76 [^67]: Ibid at p. 50 [^68]: Crown Wiretap Materials, Vol. 2, tab 4U, session 3580 at p. 27-28 [^69]: Crown Wiretap Materials, Vol. 2, tab 4X, session 3627 at p. 24 [^70]: Ibid at p. 25 and p. 29 [^71]: Crown Wiretap Materials, Vol. 3, tab 5F, session 3580 at p. 36 and p. 57-58 [^72]: Crown Wiretap Materials, Vol. 3, tab 6B, session 3595 at p. 7 [^73]: Ibid at p. 29-31 [^74]: Cocaine is a substance listed in Schedule 1, s.2(2) of the Controlled Drugs and Substances Act (CDSA). [^75]: CDSA, section 2(1) [^76]: R. v. Morelli, 2010 SCC 8 at ¶ 16 [^77]: See also Bruce A. McFarlane, Robert J. Frater, Croft Michaelson, Drug Offences in Canada, 4th ed., (Toronto: Thomson Reuters Canada Ltd., 2019) § 6:40:20; and R. v. Barker, 2020 ONCJ 65 at ¶ 65. [^78]: Drug Offences in Canada, ibid at § 6:40:20; R. v. Terrence, [1983] I S.C.R. 357 [^79]: R. v. Chambers, [1985] O.J. No 143 (C.A.); R. v. Savory, [1996] O.J. No 3811 (C.A.); R. v. Nixon, [2007] O.J. No 741 (S.C.J.) [^80]: R. v. Aiello, [1978] O.J. No 373 (C.A.); R. v. Pham, [2005] O.J. No 5127 (C.A.) [^81]: CDSA, section 2(1) [^82]: Ibid [^83]: Drug Offences in Canada, supra at § 6:60 [^84]: Justice Peter DeFreitas, “Possession and Trafficking Offences”, Federation of Law Societies, National Criminal Law Program 2013, Vol. 1, § G.1 at p. 12; Drug Offences in Canada, supra at § 6:60 [^85]: Crown Wiretap Materials, Vol. 4, tab 9I, session 3615 at p. 4 [^86]: Crown Wiretap Materials, Vol. 4, tab 9E, session 3536 and tab 9I, session 3615 at p. 4, l. 101 [^87]: Drug Offences in Canada, supra at § 6:60:200; R. v. Thompson, [2003] O.J. No 4411 (C.A.) [^88]: R. v. Boone, 2019 ONCA 652 at ¶ 51; R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225 at p. 248-251 [^89]: R. v. Boone, ibid at ¶ 49; R. v. Gordon, 2009 ONCA 170 at ¶ 56; Criminal Code, s. 24 [^90]: R. v. Boone, ibid at ¶ 49; R. v. Gordon, ibid at ¶ 56; R. v. Ancio, supra at p. 248 [^91]: R. v. Gordon, ibid at ¶ 50 and ¶ 56 [^92]: R. v. May, supra at ¶ 54 and ¶ 57. See also R. v. Goldberg, 2014 BCCA 313 at ¶ 25-26 and ¶ 48 and R. v. Boudreau, 2005 NSCA 40 at ¶ 29-33. [^93]: Crown Wiretap Materials, Vol. 4, tab 10I, session 3688 [^94]: Crown Wiretap Materials, Vol. 2, tab 4FF, session 3697 [^95]: Crown Wiretap Materials, Vol. 4, tab 10M, session 3706