ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-500000035
DATE: 20120308

B E T W E E N :

HER MAJESTY THE QUEEN – and – AKEEM DEHANEY

E. Pancer and M. Passeri , for the Crown
M. Owah , for the Accused

HEARD: January 17-31, 2012

M. DAMBROT J. :

[ 1 ] Akeem Dehaney is being tried by me, without a jury, on seven counts in an indictment alleging that he:

1. Trafficked in marihuana between January 7 and April 1, 2009 contrary to s. 5(1) of the Controlled Drugs and Substances Act (count 3)

2. Trafficked in cocaine between January 7 and April 1, 2009 contrary to s. 5(1) of the Controlled Drugs and Substances Act (count 4)

3. Possessed a firearm without being a holder of a licence or registration certificate between January 7 and April 1, 2009 contrary to s. 91(1) of the Criminal Code (count 5)

4. Attempted to possess a firearm knowing that he was not a holder of a licence or registration certificate between January 7 and April 1, 2009 contrary to s. 91(1) and s. 463 of the Criminal Code (count 6)

5. Possessed a loaded prohibited or restricted firearm without being a holder of a licence or registration certificate on or about March 13, 2009 contrary to s. 95(1) of the Criminal Code (count 7)

6. Possessed cocaine for the purpose of trafficking on March 15, 2009, contrary to s. 5(2) of the Controlled Drugs and Substances Act (count 8)

7. Possessed property obtained from the commission of an indictable offence on March 15, 2009, contrary to s. 355 (b) of the Criminal Code (count 9).

[ 2 ] The accused was one of 82 persons who were arrested at the culmination of Project Fusion, a police investigation which focussed on two criminal organizations engaged in the distribution of drugs, and on persons who supplied drugs and firearms to those organizations.

[ 3 ] The investigation included the judicially-authorized interception of private communications and the execution of search warrants. The evidence led before me included a large number of admissions, evidence of a search of the accused and the seizure of certain items that had been in his possession, and transcripts of intercepted private communications involving, or said to be related to, the accused.

The Admissions

[ 4 ] I do not propose to outline in full the great many admissions made in this case. Many of them were technical, and dispensed with proof of the authenticity of the transcript of intercepted private communications. Others relieved the Crown of proving matters relating to other persons who were the focus of Project Fusion. However some of these admissions provide context for the evidence adduced against the accused, and must be summarized briefly.

[ 5 ] It was admitted that Hubert Green was the leader of a criminal organization and was engaged in the trafficking of crack cocaine at and beyond the kilogram level, as part of a well-entrenched drug trafficking network. The organization also included mid-level and street-level distributors, who were overseen by Green. Green possessed firearms and provided them to members of the organization. Between January 7, 2009 and April 1, 2009, Green was intercepted trafficking in firearms on numerous occasions.

[ 6 ] On January 13, 2009 and again on April 1, 2009, restricted and prohibited firearms were seized from locations controlled by Green.

[ 7 ] It was admitted that Lisa Parmanand was involved in the distribution of firearms to Green. She had a history of obtaining firearms in the United States and importing them into Canada, and as a result, she was prohibited from entering the United States. In order to continue to sell firearms to Green, she employed David Barrett as a “gun mule.” Barrett would travel to the United States, retrieve guns she had arranged to purchase, and transport them to Canada.

[ 8 ] On April 9, 2009, American agents executed a search warrant at a residence in Atlanta, Georgia, and seized guns and ammunition that had been purchased for Barrett. It was established that Barrett was going to deliver these goods to “Channell,” who was going to drive them into Canada and turn them over to Parmanand.

[ 9 ] The accused possessed no valid firearms licence or acquisition certificate, and did not possess a valid registration certificate for the firearms seized in this investigation, or any other firearms.

The Seizures from the Accused

[ 10 ] On March 15, 2009, at 3:15 p.m., members of the Toronto Police Service Drug Squad approached the accused standing at the corner of Lawrence Avenue East and Kingston Road. When the accused became aware of the approaching police, he was observed digging into his right pants pocket and throwing to the ground what turned out to be a ball of crack cocaine a little smaller than a golf ball and weighing 3.5 grams, tightly wrapped in plastic, and what appeared to be an iPod, but was actually a digital scale. After the accused was arrested, two cell phones and $100 in twenty dollar bills were seized from his possession.

[ 11 ] I have outlined the evidence concerning these events in greater detail in a ruling on a Charter voir dire at which the admissibility of this evidence was challenged. The parties have agreed that the evidence taken on the voir dire , including the testimony of the accused, would form a part of the evidence on the trial. I note that the accused admits that he had the various items that I have mentioned in his possession at the time of his arrest, but denies that he threw any of them to the ground. I believe the evidence of the police officers on this point, and disbelieve the evidence of the accused.

The Intercepted Private Communications

[ 12 ] I do not propose to summarize the transcripts of these interceptions in great detail. It is important to note, however, that by the end of the trial, voice identification was not in issue, and that much of the case turned on the interpretation of what was said in these calls. The calls are said to support the various charges against the accused, and may be grouped in relation to those offences. I will mention their content to some degree after making reference to the central thrust of the evidence of the accused.

[ 13 ] I note that I was assisted in interpreting the interceptions by two police officers whose expertise in relation to guns and drugs respectively, was admitted. More specifically, one officer, Special Constable Press, was admitted to be an expert in the identification, classification and testing of firearms, as well as street and coded language interpretation related to firearms. The other, Detective Diaz, was admitted to be an expert in drug distribution, including hierarchy, pricing, packaging, concealment methods, drug terminology and quantities consistent with personal and commercial use.

[ 14 ] Some of this evidence was essential for my consideration of the interceptions, in particular in relation to street terms for drugs and guns, an endlessly evolving vocabulary, and to then-current prices for guns and drugs at various levels of distribution. This evidence was clearly admissible. At times, however, the evidence of the experts exceeded the bounds of their admittedly broad qualifications, and descended to drawing common sense inferences from the conversations in context. In part, such evidence was admissible, in my view, because some of the context surrounding the evidence was not before me, and some of the evidence that was before me required some interpretation. But some of this evidence, strictly speaking, was not admissible. Counsel for the accused made no objection to this, no doubt because the case was tried without a jury. I have been very careful in my review of the interceptions to decline to accept ready-made inferences, and to draw my own inferences having regard to the content of the interceptions, the context, particularly interceptions preceding and succeeding the ones in question, the seizures from the accused, and the properly admissible expert evidence.

The General Evidence of the Accused

[ 15 ] The accused testified in this case. He said that he was a trafficker in marihuana, who sold small quantities to his friends in order to support his own marihuana use. He also admitted that he had the 3.5 grams of crack cocaine in his possession on March 15, 2009, along with scales, cell phones and cash. He said that he was a regular crack cocaine user, although not an addict, and that he had purchased the 3.5 grams, along with another similar quantity of crack, jointly with others for their collective use, although he put the most money into the purchase. He was unemployed at the time, but had the money to make the purchase from selling marihuana to his friends.

[ 16 ] He and his friends had used some of the crack on the day of the arrest, and he had held on to the remainder because he didn’t trust the others. He was to deliver it back to his friends for the purpose of their collective use. He was given the scales to enable him to ensure that he brought the right amount back. His counsel conceded that this makes him guilty of possession of cocaine for the purpose of trafficking, but that he was not guilty of that offence for a commercial purpose, as alleged by the Crown. This issue must be resolved, because it is highly relevant to sentencing.

[ 17 ] Much of the evidence of the accused was directed towards providing an explanation for the intercepted telephone calls that differs from the Crown’s interpretation. Before I can analyze the evidence of the accused through the lens of R. v. W. (D.) , 1991 93 (SCC) , [1991] 1 S.C.R. 742 , it is necessary to examine the Crown’s evidence in order to consider the accused’s explanation in context. I will organize this exercise in relation to the alleged offences.

The Content of the Intercepted Private Communications

Count 3: Trafficking in marihuana

[ 18 ] There are intercepted communications which, according to the accused, are instances of trafficking in marihuana. The Crown’s position is that the accused was trafficking in cocaine. It will only become necessary to consider this charge if the cocaine trafficking charge fails.

Count 4: Trafficking in cocaine

[ 19 ] The evidence in support of this count consists of a series of telephone calls beginning on January 22, 2009 and ending on March 13, 2009, quite clearly demonstrating that the accused purchased a quantity of drugs from Hubert Green on seven occasions, and a further series of calls beginning on March 12, 2009 and ending on March 14, 2009 in which drug purchasers were arranging to buy drugs from the accused.

[ 20 ] I will begin with the calls in which the accused is the purchaser. The quantity of drugs being purchased in each instance is variously described as a bizzle, a half thing, a Cuban, a cubano, a cube, soccer, and a ball. Detective Diaz testified that he interpreted all of these words to refer quantities of crack cocaine. A bizzle is an ounce; a half-thing is a half-ounce; a Cuban, cubano or cube is a quarter-ounce; and soccer or a ball is an eighth of an ounce. Diaz readily admitted, however, that a bizzle, depending on the context of the communications, could also refer to marihuana. Indeed, a bizzle more commonly means marihuana. At the preliminary inquiry in this matter, when a large number of accused were before the court, many of whom were far more “important” than this accused, and when Diaz had a very large number of interceptions to interpret, he interpreted bizzle to mean marihuana in these communications. He came to a different conclusion upon closer consideration before this trial. He also said that a half-thing could mean anything. But he had no reservations about Cuban, cubano, cube, soccer or ball. These clearly meant crack cocaine.

[ 21 ] Diaz also noted that the price quoted for a half-thing ($800) and a Cuban ($400), were consistent with the prices for crack cocaine. A half ounce sold for from $550 to $800, and a quarter ounce for from $350 to $400.

[ 22 ] Of course, these calls do not stand in isolation. They must be considered together with other evidence, including other calls – particularly the calls between the accused and drug purchasers. In these calls, on five occasions the accused discussed selling drugs to various purchasers referred to as Hottie, Hailey, and Bling, as well as an unnamed male and an unnamed female.

[ 23 ] In the first of these discussions, the participants discussed selling a double, a deuce, a three, and a four. Diaz interprets these terms to mean $20, $30, and $40 worth of crack cocaine. I note that Diaz testified that the standard quantity of crack purchased for consumption is a 20 piece, or a twenty, referring to $20 worth of cocaine. Similarly, a thirty piece is $30 worth of crack, and so on.

[ 24 ] In the second transaction, Hailey asked for a forty for her 30 bucks, saying that the accused is generous to her when she gives him less money, but when she gives him more money, he gives her four little boulders. At one point Hailey told the accused not to make her wait because she is going to “freak out.” Diaz interpreted this conversation to involve a request for forty dollars-worth of crack cocaine for a bargain price of $30. He associates “boulders” with crack cocaine and not marihuana. He also associates the desperate need for drugs expressed by Hailey with crack cocaine, and not with marihuana.

[ 25 ] In the third transaction, Bling asked the accused to sell him a five for $45. Diaz interprets this as a request for $50 worth of crack for $45.

[ 26 ] In the fourth transaction, a male asks for a three for two, saying that he has the full two papers. Diaz interprets this call as a request for $30 worth of crack for $20.

[ 27 ] In the fifth transaction, a desperate female who is out of funds offers to pay 80 tomorrow for a six now. When the accused resists this offer because the police are around, she offers 100 for the six. Diaz interprets this as an offer to purchase $60 of crack initially for $80, and ultimately for $100. He again places reliance on the desperation of the purchaser.

[ 28 ] It is a reasonable inference from the various discussions that whatever the accused was selling, most if not all of these transactions were completed. It is also plain from the discussions that they were not isolated or rare events. There had been many more sales to these persons in the past, and the accused had other customers as well. In one of the conversations, for example, one of the accused’s purchasers told him that he was bringing him business.

[ 29 ] It is noteworthy that all five of these transactions took place between March 12, 2009 and March 14, 2009, just before the accused’s arrest on March 15, 2009 with 3.5 grams of crack cocaine in his possession.

Count 6: Attempting to possess a firearm

[ 30 ] Count 6 provides some context for count 5. As a result, I will deal with count 6 first.

[ 31 ] The evidence in support of this offence consists of a series of intercepted communications between the accused and Green, and certain other calls that assist in understanding them.

[ 32 ] On January 27, 2009, the accused called Green, an acknowledged leader of a criminal organization, a wholesale crack cocaine trafficker and an illegal gun dealer. Green told the accused that he didn’t have anything. The accused said that that was not what he was talking about. He meant “… the other thing you talked to me about … that you are releasing for … three? Three G?” The accused then clarified, “The baby thing?” And later, “… the thing you’ll let — let off to me for three G’s. The baby thing.” “I … fuckin’ want that.” Green replied, “I have it.” The accused asked if he would let him have it for 25. Green insisted on 28. The accused agreed, and said “I’ll give it to you Friday.”

[ 33 ] While “baby” could mean many things, it was the opinion of Special Constable Press that having regard to the entire communication, it meant a Baby Desert Eagle or some other compact or small caliber higher quality firearm. He noted that the price talked about, assuming that 25 to 28 meant $2,500 to $2,800, was consistent with the market price for such a gun in Canada. Although such a gun could be purchased in the United States for about $500, it is resold in Canada for up to $3,000.

[ 34 ] The next day, Green called an unknown man and asked him if he could get him a “nine.” The man said that he could not, but would call Green if he was able to get one. Press interpreted a “nine” as a 9 millimeter, such as a Baby Desert Eagle.

[ 35 ] On January 30, 2009, Green called Parmanand, an admitted firearms importer and distributor, and told her that he had a “youth” with “papers” who wants a “thing.” Green didn’t want to give him “his thing.” Parmanand said that she had an “H and K” (meaning a Haeckler and Coach firearm – a high quality German firearm according to Special Constable Press) but it was expensive – 2500. Green said that the youth only had “two.” Parmanand asked for a few hours to see if she could locate anything.

[ 36 ] A few hours later, shortly after midnight, Parmanand called back and told Green that her “homeboy” was out of town. She asked if his guy was rushed, because she could sell him one of hers but she didn’t want to. She reminded Green about a 32 and a 20. After discussing these items further, Green said that the youth kept calling him. Parmanand said that her “homeboy” had one for 2,500 but it was high. She told Green to give her a couple of days and she would find something.

[ 37 ] Later that day (January 31, 2009) Green spoke to the accused and asked if he was the one that wanted the thing. The accused said that he was. Green told him to relax and hold the paper, and that he was coming to him with the thing in the evening.

[ 38 ] Later that evening Green called the accused to tell him that he hadn’t gotten it yet, but would be calling him soon. Immediately after this call, Green called Parmanand and told her that his homeboy had been calling him continuously. Parmanand said that her dude didn’t want to come down in price for the H and K. They agreed that it was not worth 25. Parmanand told Green that her next dude was coming in with 10 (guns). After this call, Green immediately called the accused again and asked if he was looking for something for himself. The accused said that he was.

[ 39 ] The following day (February 1, 2009), Green told Parmanand that he took the paper from the youth, and confirmed that the amount was 2. She confirmed that her guy didn’t want to come up off the thing, but her next dude was coming in a week. Green said that he was pressed, and Parmanand said that she would find something before.

[ 40 ] On February 21, 2009, Parmanand told Green that she talked to her homeboy who was supposed to come through with ten, and he was “sitting down for a minute” but is fine, and that they (presumably the police) let him go but they are holding one of his friends.

[ 41 ] On February 27, 2009, Parmanand told Green that she was going to check with her homeboy because she knows he has one left. She told Green not to give back the change yet.

[ 42 ] On March 3, 2009, immediately after communicating with Barrett, her gun mule who brought her guns from the United States, Parmanand told Green that everything was good, and that she was in his neighbourhood and that she got him the “cologne.” They agreed to meet.

[ 43 ] Immediately after this call Parmanand spoke to Barrett who told her that he wasn’t going to give her “that” for another couple of days.

[ 44 ] On March 11, 2009, Parmanand told a man in Georgia that her homie, presumably Barrett, would be leaving on Friday. The man told her that he didn’t have anything for him. Parmanand told him that he should swing back three “lulas” (meaning firearms, according to Press) for her. They then discussed other guns and prices, and the nature of her operation.

[ 45 ] On March 16, 2009, after several further discussions with people in Georgia, Parmanand asked Green if he gave the money back to his homeboy. Green said that he gave him part of it. Parmanand told him to take it back because she was coming to get it. She needed it because “he” was leaving the next day. A series of calls following this one make it clear that Parmanand and Green did meet.

[ 46 ] After many other calls between Parmanand and various other people including Barrett, on March 31, 2009, Parmanand told Green that her homeboy got something down south and should be here by the weekend.

[ 47 ] As I have already noted, on April 9, 2009, American agents executed a search warrant at a residence in Atlanta, Georgia, and seized guns and ammunition that had been purchased for Barrett. It was established that Barrett was going to deliver these goods to “Channell,” who in turn was going to drive them into Canada and turn them over to Parmanand.

Count 5: Possession of a firearm

[ 48 ] On March 13, 2009, around the time that Barrett went to Georgia, the accused had a conversation with an unknown man. The man asked the accused if he had finished using the “thing.” He also asked the accused if he had squeezed it. The man was concerned because he didn’t have any more dentures for it. The accused said that he had not squeezed it. The man told him that if he was going to squeeze it, make sure it was for a “proper purpose.” The male described an incident where he had loaned out the thing, “the men told me that they were going to take care of a thing and they didn’t and they squeezed off all the teeth.” Press interpreted “thing” to be a gun, “squeeze” to mean firing a gun, and “dentures” to be ammunition.

The Evidence in Support of Counts 8 and 9

Count 8: Possession of cocaine for the purpose of trafficking

[ 49 ] The evidence in support of this offence is the seizure, on March 15, 2009, at 3:15 p.m., at the corner of Lawrence Avenue East and Kingston Road, of a 3.5 gram ball of crack cocaine from the possession of the accused with a value, according to the evidence of Diaz, of $180 to $250 wholesale, or $480 to $900 retail based on a price of $20 for .08 to .15 grams, together with disguised digital scales, two cell phones and $100 in twenty dollar bills. Also relevant to this charge is the series of cell phone calls during the three days prior to the seizure in which drug purchasers were arranging to buy drugs from the accused for multiples of $20, and his admission that he intended to share the ball of crack cocaine with others who had contributed to the purchase price.

Count 9: Possession of property obtained from the commission of an indictable offence

[ 50 ] The evidence relating to count 8 is relevant to this count as well.

The Evidence of the Accused Relating to the Intercepted Private Communications

[ 51 ] The accused testified that in his conversations with Green relied on by the Crown in support of count 4 (trafficking in cocaine), he was actually negotiating the purchase of marihuana. He said that bizzle, half thing, Cuban, cubano, cube, soccer, and ball all referred to marihuana. A bizzle is an ounce; a half-thing is a half-ounce; a Cuban, cubano or cube is a quarter ounce; soccer or a ball is an eighth of an ounce.

[ 52 ] He also said that the prices mentioned in the conversations made sense for marihuana as well as crack cocaine when properly understood. For example, while Diaz said that “four flat” for a Cuban meant $400 for a quarter ounce of crack, the accused said that it meant $40 for a quarter ounce of marihuana, a price that Diaz said made sense.

[ 53 ] In the later conversations where the accused is clearly selling drugs, the accused testified that he was selling marihuana, not crack cocaine. While Diaz said, for example, that when the accused was selling a double or deuce for $20, this meant a twenty piece of crack for the prevailing price of $20, the accused said that he was selling two grams of marihuana for $20. With respect to the remark by one of his purchasers to his supplying her with little boulders, he said that this meant a small amount of marihuana wrapped in a circular form in a baggie.

[ 54 ] With respect to count 6, the accused testified that these conversations with Green concerned the purchase of a larger quantity of marihuana, and not a gun. He said that his request for a baby thing was a joke, and meant a small amount of marihuana – a pound or a quarter pound. Green considered him to be a baby because he was always asking to buy small amounts of marihuana. He was unsure what he meant by the other thing. It could have been anything – perhaps marihuana or electronic products. When he discussed the purchase of a larger amount of marihuana with Green, he was “boosting” – trying to boost himself to that level, get Green to front a larger quantity to him, and then swindle Green. Similarly, in the conversation with Green on January 31, 2009, he was not speaking about a gun. He was speaking about something like gadgets, electronics, or baby strollers.

[ 55 ] The accused also said that he wouldn’t buy a gun from Green, because Green would simply give him one if he needed one – Green wouldn’t want to lose him as a customer.

[ 56 ] With respect to count 5, he testified that he was speaking to his friend Ryan Sterling about a custom paintball gun with a scope that he had borrowed from Sterling. He had had it for three weeks but hadn’t had a chance to use it, although he did squeeze it, or shoot it. When Sterling said that he didn’t have any more dentures, he meant that he was out of paintballs for the gun. Sterling was complaining about friends who had played around with the gun instead of using it at a paintball place.

[ 57 ] The evidence of the accused that he had been in possession only of a paintball gun was supported by Ryan Sterling, who testified for the defence. But in several respects, Sterling’s evidence contradicted the accused’s evidence.

[ 58 ] Sterling said that he loaned the paintball gun to the accused for a week, and the telephone call took place half way through that week. He had only gone paintballing once before when he decided to get his own gun. He had never fired it before lending it to the accused. The gun had what looked like a scope on top, but was really an air chamber. It was not a custom gun.

[ 59 ] In examination in chief, Sterling said that he didn’t think he had a criminal record. Under cross-examination, he admitted that he had been found guilty of obstructing police, and of failure to comply with a recognizance. In re-examination he said that he didn’t think that these were criminal offences.

Analysis of the Evidence

General Conclusion about the Evidence of the Accused

[ 60 ] I was not impressed by the evidence of the accused. It was highly improbable in many respects, and was often contradicted by incontrovertible aspects of his intercepted communications and other evidence. But this does not mean that he is guilty of any or all of the offences alleged against him. I will consider each offence individually and, regardless of my general view of his credibility, consider whether I believe him when he says that he is not guilty of any or all of the alleged offences, and if not, whether his evidence raises a reasonable doubt about his guilt of any or all of the alleged offences. Finally, if I do not believe the accused, and his evidence does not raise a reasonable doubt, I will determine whether I am satisfied beyond a reasonable doubt, based on all of the evidence, that the accused committed any or all of the alleged offences.

Count 4: Trafficking in Cocaine

[ 61 ] The Crown’s case on this count turns on the interpretation I place on the accused’s telephone calls outlined above, beginning on January 22, 2009 and ending on March 13, 2009, with Green, and with several drug purchasers. There is no doubt that in the calls with Green, the accused was arranging to purchase drugs. And there is no doubt that in the calls with the purchasers, the accused was selling drugs. But I can only convict the accused of this count if I am satisfied beyond a reasonable doubt that he was selling cocaine.

[ 62 ] The accused says that he was buying and selling marihuana. He provided a plausible interpretation of the coded language used in the calls that could fit quantities and prices of marihuana if that evidence stood in isolation. But viewed in context, I do not believe the accused’s evidence, and it does not raise a reasonable doubt in my mind.

[ 63 ] I begin with the conversations with Green. I accept the forthright evidence of Diaz that while bizzle more commonly refers to marihuana, and that half-thing could refer to any drug, Cuban, cubano, cube, soccer and ball clearly mean crack cocaine and not marihuana. I am not troubled by the fact that at the preliminary inquiry in this matter, Diaz had interpreted bizzle to have its more common meaning: marihuana. At that time a large number of accused were before the court, many of whom were far more seriously implicated in the criminal organization headed by Green than was this accused, and there were a very large number of interceptions to interpret. The explanation Diaz gave for changing his opinion is both understandable and convincing. As a result, I do not believe the accused when he says that he was purchasing marihuana from Green, and his evidence does not raise a doubt in my mind on this issue. Instead, I am satisfied beyond a reasonable doubt that the accused was purchasing crack cocaine from Green, although I note that it does not form an element of the offence. What is more, I am satisfied that the accused was purchasing crack cocaine from Green in quantities consistent only with reselling it, rather than using it. This provides useful background to the evidence of the accused actually selling drugs, although it obviously does not, of itself, prove that he was trafficking in cocaine.

[ 64 ] I turn next to the conversations with purchasers. This time, the words used to describe the quantities and prices of the drugs standing alone do not lead me to reject the evidence of the accused out of hand. However, several considerations do lead me to reject this evidence, including other features of the calls, my conclusion that the accused was purchasing resale quantities of crack cocaine from Green, and other evidence arising after the calls. With respect to the calls themselves, I am convinced that “boulders” is a word associated with crack cocaine and not with marihuana. I am convinced that a marihuana purchaser would not exhibit the desperation to get ahold of marihuana that the purchasers in the second and fifth transaction did, but that a crack cocaine purchaser would. And I take into account that the accused was found transporting a trafficking quantity of crack cocaine three days after the first phone call, and one day after the fifth one. Taking into account all of this context, I do not believe the evidence of the accused that he was not trafficking in crack cocaine, and his evidence does not raise a reasonable doubt in my mind. In the end, I am satisfied beyond a reasonable doubt that he was trafficking in crack cocaine, and I find him guilty of count four on the basis of the Crown’s theory.

Count 6: Attempting to Possess a Firearm

[ 65 ] The Crown’s case on this count turns on the interpretation I place on the accused’s telephone calls with Green on January 27 and 31, 2009, in the context of a series of communications between Green and Parmanand (an admitted firearms importer and trafficker), and another man clearly involved in firearms trafficking, and the ultimate seizure of firearms in Georgia associated with Parmanand. I have no doubt that Green’s communications with Parmanand were designed to secure one or more firearms for one or more of his customers, but the issue is whether I am satisfied beyond a reasonable doubt that the accused was Green’s firearms customer, or one of his firearms customers. The accused testified that in the calls with Green on January 27 and 31, he was arranging to purchase marihuana.

[ 66 ] I do not accept the accused’s evidence that his communications with Green involved the purchase of marihuana. In the call on January 27, 2009, it will be recalled, Green initially told the accused that he didn’t have “anything,” and the accused replied that that wasn’t what he meant – he meant the “other thing” that he was releasing for 3G’s, or $3,000. The accused’s explanation that Green, a crack cocaine trafficker and illegal gun dealer, initially thought he was talking about marihuana or electronic products seems unlikely. It is totally unbelievable that when the accused clarified what he meant by the other thing – the baby thing that would cost $3,000 – he meant marihuana.

[ 67 ] On his own evidence, the accused was not a purchaser of marihuana in quantities that cost $2,500 to $3,000. His explanation that he was intending to swindle Green, the leader of a criminal organization who was engaged in the trafficking of crack cocaine at and beyond the kilogram level, as part of a well-entrenched drug trafficking network, is simply absurd. Further, their conversation first referred to “anything” and then the “other thing”. These were different commodities. It is impossible to understand why when Green initially said that he didn’t have “anything,” the accused would have assumed he was not speaking about marihuana. And there is no reason that the accused would have referred to a $2,500 to $3,000 purchase of marihuana as a baby thing. This discussion was obviously not about marihuana.

[ 68 ] When the calls on January 31 are viewed in the context of the call on January 27, I equally conclude that they were not about marihuana.

[ 69 ] As a result, I do not believe the accused when he says that those calls concerned an attempt to acquire marihuana, and his evidence to this effect does not raise a reasonable doubt in my mind about his guilt on this count. It remains to be determined whether the whole of the evidence relating to this count satisfies me of the accused’s guilt beyond a reasonable doubt.

[ 70 ] I turn then to a consideration of the whole of the evidence. The telephone calls of January 27 and 31, 2009, standing alone, do not satisfy the onus of proof. But I add to this the evidence of Press that having regard to the entire communication, “baby” meant a Baby Desert Eagle or some other compact or small caliber higher quality firearm. As mentioned above, Press noted that the price talked about, assuming that 25 to 28 meant $2,500 to $2,800, was consistent with the resale price for such a gun in Canada, which could be up to $3,000.

[ 71 ] Added to this is the fact that the very next day after this call took place, Green called an unknown man and asked him if he could get him a “nine.” The man said that he could not, but would call Green if he was able to get one. Press interpreted a “nine” as a 9 millimeter gun, such as a Baby Desert Eagle, and I accept this interpretation. This strengthens considerably the inference that the Crown invites me to draw that the conversation on January 27 was an effort to purchase an illegal firearm.

[ 72 ] What is more, on January 30, 2009, Green called Parmanand, an admitted firearms importer and distributor, and told her that he had a “youth” with “papers” (meaning money) who wants a “thing.” Green didn’t want to give him “his thing.” This discussion was clearly about a gun, and Green’s preference to secure a gun for his customer from Parmanand, and not provide him with the gun that he currently had. Parmanand asked for a few hours to see if she could locate anything. A few hours later, shortly after midnight, Parmanand called back and told Green that her “homeboy” was out of town. She asked if his guy was rushed, because she could sell him one of hers but she didn’t want to. Green said that the youth kept calling him. She told Green to give her a couple of days and she would find something.

[ 73 ] Later that day (January 31, 2009) Green spoke to the accused and asked if he was the one that wanted the thing. The accused said that he was. Green told him to relax and hold the paper, and that he was coming to him with the thing in the evening. Later that evening Green called the accused to tell him that he hadn’t gotten it yet, but would be calling him soon. Immediately after this call, Green called Parmanand and told her that his homeboy had been calling him continuously. Parmanand said that her dude didn’t want to come down in price for the H and K. Parmanand told Green that her next dude was coming in with 10. After this call, Green immediately called the accused again and confirmed that he was looking for something for himself. And the following day (February 1, 2009), Green told Parmanand that he took the paper from the youth, and confirmed that the amount was 2. She confirmed that her guy didn’t want to come up off the thing, but her next dude was coming in a week. Green said that he was pressed, and Parmanand said that she would find something before.

[ 74 ] To me, having regard to what preceded them, the proximity of Green’s calls to Parmanand trying to secure a gun for a “youth,” and Green’s communications with the accused about holding his paper for the purchase of a “thing” are beyond coincidence. I am not certain that the calls in late February and thereafter concern the accused. But I am satisfied on the basis of the evidence of what took place prior to and on February 1, 2009 that the accused was attempting to possess a firearm and is guilty of count 6.

Count 5: Possession of a firearm

[ 75 ] The Crown’s case on this count turns on the interpretation I place on the accused’s conversation with an unknown man on March 13, 2009. The accused identified the unknown man as Ryan Sterling.

[ 76 ] The Crown says that the accused was discussing an illegal firearm and ammunition loaned to him by Sterling. The accused and Sterling testified that they were discussing a paintball gun and paintballs. This explanation strikes me as entirely absurd. Just by way of example, in the call, Sterling described an incident where he had loaned out the “thing,” and the men he had loaned it to told him that “they were going to take care of a thing and they didn’t and they squeezed off all the teeth.” Sterling gave evidence that his complaint was that the men used his paintball gun outside instead of in a paintball gun place. This is simply not credible. Having regard to the absurdity of the overall explanation for the call, the inconsistencies between the evidence of the accused and Sterling, and Sterling’s effort to deny that he had a criminal record, I do not believe the accused’s or Sterling’s explanation of this communication, and their explanations do not raise a reasonable doubt in my mind. Having regard to the whole of the evidence, I am satisfied beyond a reasonable doubt that the accused is guilty of this count as well.

Count 8: Possession of cocaine for the purpose of trafficking

[ 77 ] The Crown’s case on this count turns on the inferences that are drawn from the events of March 15, 2009, particularly the seizure of a 3.5 gram ball of crack cocaine from the possession of the accused with a value, according to the evidence of Diaz, of $180 to $250 wholesale, or $480 to $900 retail, together with disguised digital scales, two cell phones and $100 in twenty dollar bills. Also relevant to this charge is the series of cell phone calls during the three days prior to the seizure in which drug purchasers were arranging to buy what I have found to be crack cocaine from the accused for multiples of $20, and his admission that he intended to share the ball of crack cocaine with others who had contributed to the purchase price.

[ 78 ] As I have noted, the accused would be guilty of this offence on the basis of his own evidence, as conceded by his counsel. But I do not believe his evidence insofar as he says that his intention was merely to share this crack with co-purchasers, nor does this evidence raise a reasonable doubt in my mind on this point. On the contrary, the whole of the evidence satisfies me beyond a reasonable doubt that this unemployed young man was engaged in an on-going commercial venture to supply crack cocaine in small amounts to his many customers, some of whom had been calling him to make purchases over the three day period prior to his arrest, and that he had possession of the ball of crack together with disguised scales and two cell phones for precisely that purpose. I find him guilty of count 8.

Count 9: Possession of property obtained from the commission of an indictable offence

[ 79 ] The Crown’s case on this count turns on the same evidence as count 8. I do not recall that the accused provided any explanation for having $100 in twenty dollar bills in his possession at the time of his arrest. But having regard to the fact that I have found that he was in possession of the crack cocaine for the purpose of making sales to his customers, and that the 20 piece, which sells for $20 as I accept from Diaz, is the standard for consumption of crack cocaine, I have no difficulty in concluding that the $100 in twenty dollar bills found in the possession of the accused was property obtained from the commission of the indictable offence of trafficking in cocaine. I find him guilty of count 9.

Disposition

[ 80 ] For these reasons, I find the accused not guilty of count 3, and guilty of counts 4, 5, 6, 8 and 9 in the indictment.

M. Dambrot J.

RELEASED: March 8, 2012

COURT FILE NO.: 12-500000035
DATE: 20120308

ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N : HER MAJESTY THE QUEEN – and – AKEEM DEHANEY

REASONS FOR JUDGMENT
DAMBROT J.

RELEASED: March 8, 2012