COURT FILE NO.: CR11-10000537-00
DATE: 20120926
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
KHUMANE AGIL
Defendant
Ron Krueger, for the Crown
Jesse Razaqpur, for the Defendant
HEARD: June 4, 5, 6, 7, 8, 11, 12, 13, 14, and 19, 2012
MOLLOY J.:
REASONS FOR DECISION
A. INTRODUCTION
[1] Khumane Agil is charged with possession of six separate illegal firearms and with conspiracy to traffic in cocaine. The cocaine trafficking charge is based entirely on wiretap interceptions. All of the firearm charges are based on videotapes found on cell phones seized from Mr. Agil’s home during the execution of a valid search warrant. No actual firearms were ever recovered.
[2] The conspiracy to traffic raises an interesting legal point. Only two individuals are involved in the telephone call in which the drug transaction is discussed: Mr. Agil (who appears to be offering to sell a large amount of cocaine); and an unknown male (who appears to be arranging to purchase it). The defence argues that an agreement between two people to buy and sell cocaine does not in law constitute a conspiracy to traffic. The Crown argues that given the amount of cocaine involved (9 ounces for $9900.00) and the easy relationship between Mr. Agil and the purchaser, there is an inference that they are part of a drug distribution network and that Mr. Agil would know that the drugs were being purchased for future resale. It is not necessary for me to resolve this legal issue because of my factual findings. For the reasons set out below, I am not satisfied beyond a reasonable doubt that there was a clear agreement to purchase the drugs. Therefore, I find Mr. Agil not guilty on the conspiracy to traffic charge.
[3] The other six counts on the indictment each relate to possession of a handgun. When Mr. Agil’s home was searched, three Blackberry cell phones were seized. One of those phones (Exhibit 3 at trial) was found in the pocket of a man’s blazer in a bedroom in the basement. Another phone, (Exhibit 5), was found underneath the bed in which Mr. Agil was found at the time of the police raid. Exhibit 3 contained, among other things, three short video clips. Mr. Agil’s voice can be heard in each video. In five of them, he is alone; in the sixth he is in a car with another man. Each video involves Mr. Agil displaying a different handgun and making threatening comments about putting bullets into people. In addition, there are two video clips on Exhibit 5, each involving a display of a gun. This gun is also featured in one of the videos on Exhibit 3. Thus, there are six guns in all, but eight videos, since one of the guns is the subject of three videos.
[4] The indictment alleges that these six guns are illegal firearms such that possession of them is prohibited under s. 91(1) of the Criminal Code, that Mr. Agil possessed the guns between the specified dates, and that this occurred in Toronto. Three issues arise, which I have come to think of as the “what, when and where” of this case:
(1) What do the videos depict? Are they real guns, or could they be replicas?
(2) When were the videos filmed? Was it within the dates alleged on the indictment?
(3) Where were the videos filmed? Was the possession in Toronto, or somewhere beyond the jurisdiction of this court?
[5] The onus is on the Crown to prove beyond a reasonable doubt the “what, when and where” with respect to each alleged firearm offence. If a reasonable doubt is raised as to any one of these elements, an acquittal must result.
[6] None of these questions is easy. On the question of “what”, the only conclusive way to determine whether a gun is real is for an expert to physically examine it. No guns were ever found. Therefore, the issue in each instance is whether there is sufficient circumstantial evidence for me to be satisfied beyond a reasonable doubt that the item depicted in the video is a real gun, notwithstanding the absence of physical examination. In some cases the issue of “where” is problematic. The cameras that took the videos did not have operational GPS functions. The question then is whether there are any clues from the background seen in the video or from other evidence to establish where Mr. Agil was at the time the videos were taken. Finally, timing, or the “when”, is also a problem. None of the videos were taken by the phones upon which they were found. Although there is some indication of their date from the title of the video recorded on the phone’s memory, there are technical difficulties with the reliability of that data. Again, the question is whether there is sufficient other evidence to support an inference that the videos were recorded at the times indicated.
[7] For the detailed reasons that follow, I have reached the following verdicts:
(i) Not guilty on Count 1 (because I do not know where the possession occurred);
(ii) Not guilty on Count 2 (because I do not know where the possession occurred);
(iii) Not guilty on Count 3 (because I do not know where the possession occurred);
(iv) Not guilty on Count 6 (because I do not know when the possession occurred);
(v) Not guilty on Count 7 (because I am not satisfied beyond a reasonable doubt that there was an agreement);
(vi) Guilty on Count 4; and,
(vii) Guilty on Count 5.
B. WHERE?
Count 1: Hi Point in the Car
[8] Under Count 1, Mr. Agil is alleged to have been in possession of a Hi Point Handgun between January 1, 2007 and May 5, 2010 “in the City of Toronto, in the Toronto Region and elsewhere in the Province of Ontario.” The video relied upon by the Crown with respect to this charge is entitled “02-05-07-1848” and is alleged to have been recorded on May 2, 2007.
[9] In this video, Mr. Agil is seated in a car with another man. The radio is playing, but there is nothing to indicate that this was a station heard only in Toronto, or for that matter, only in Ontario. Nothing can be seen outside the car, such as road signs, buildings, scenery or the like, to give any indication of where the car is.
[10] Mr. Agil is known to have ordinarily resided in Toronto and is admitted to have been in Mississauga (near Toronto) on May 9, 2007 and in Toronto between June 28, 2007 and August 10, 2007. However, that does not mean he was in Ontario on May 2, 2007. He could easily have been elsewhere, particularly bearing in mind that a car, by its very nature, is mobile.
[11] I cannot be satisfied beyond a reasonable doubt that the event depicted on this video took place in Toronto, or elsewhere in Ontario. This is an essential element of the offence. Therefore, the Crown has failed to establish Mr. Agil’s guilt under Count 1.
Count 2: Colt
[12] Count 2 charges Mr. Agil with possession of a Colt handgun between January 1, 2007 and May 5, 2010 “in the City of Toronto, in the Toronto Region and elsewhere in the Province of Ontario.”
[13] In the video, Mr. Agil can be heard talking about the gun. It is conceded that it is his hand holding the gun throughout the brief video. However, the gun is shown against a shiny metal surface and nothing else about the location can be detected. There appears to be a radio or television playing in the background, but the dialogue is unintelligible and provides no indication of the geographic location. The title of the video clip is “02-05-07-0002.” If the Crown theory is accepted, this video would have been filmed just after midnight on May 2, 2007, several hours before the video that is the subject of Count 1. However, just as is the case with Count 1, there is no evidence to support a finding that Mr. Agil was in Toronto, or even Ontario, on May 2, 2007, at the time this video was filmed. It could have been recorded anywhere. Accordingly, I also find Mr. Agil not guilty on Count 2.
Count 4: Beretta in the Basement
[14] The Crown relies upon three separate video clips in respect of Count 4:one video entitled “04-04-10_1158" which was found on Exhibit 3; and two videos from Exhibit 5 entitled VID00029 and VID00030. Based on the expert evidence of Sr. Firearms Officer Michael Press and my own review of these three videos, I am fully satisfied that each video depicts the same gun. The size, make, colour and other particulars match exactly. Also, in the Exhibit 3 video and in VID00029 one can see the area where the serial number has been removed. This cannot be coincidental. The same gun is shown in all three videos.
[15] I am also satisfied beyond a reasonable doubt that VID00029 was filmed in the family room of Mr. Agil’s Toronto home. The main backdrop for the video displaying the gun is a floor that appears to be tiled in shiny white linoleum. The flooring has large square tiles, and within each tile there is a smaller patterned square that has a blue or grey tint with white. It is quite distinctive. Also, when the camera briefly swings away from the gun, it is possible to see a rectangular throw rug with a red border around a patterned yellow centre at the bottom of a set of stairs. On May 4, 2010, when the search warrant was executed, the police took photographs of the family room in the basement. It is clear from those photographs (particularly from photo 68 on Exhibit 1), that the family room floor is covered in those same tiles. Further, at the foot of the stairs leading from the upstairs into the basement, there is a rectangular throw rug, with a red border around a floral pattern that is predominately yellow (see photo 70 in Exhibit 1). It is the same rug and the same stairs depicted in VID00029.
[16] It is clear from all of the evidence that Mr. Agil had the regular use of the basement area. Many of his belongings were there. He, himself, was found there at the time of the search. A number of photographs and videos on his cell phones feature other items being displayed in the basement area, in particular extremely large amounts of cash displayed in stacks or fanned out to show large denominations of bills in mainly Canadian and US currency. In one of the phone calls intercepted from Mr. Agil’s cell phone on February 6, 2010, Mr. Agil can be heard telling a female person, who would appear to be his sister, that she should not let anyone come into the basement because he had “a lot of important stuff in there.”
[17] VID00030 was filmed in the same area and within two minutes or so of VID00029. The same distinctive flooring tiles can be seen behind the gun as it is being displayed in that video. Likewise, video 04-04-10_1158 features the same tiled floor as a backdrop to the display of the gun.
[18] I am satisfied beyond a reasonable doubt that these three videos were filmed in Toronto. Therefore, that essential element of the charge set out in Count 4 is established.
Counts 3, 5 and 6 (Smith and Wesson, snub-nose, and unspecified handgun)
[19] The videos relied upon in respect of Counts 5 and 6 feature a gun being displayed against the same type of white flooring tiles as are shown in VID00029. Viewed in isolation, a glimpse of white flooring might not be enough to establish location beyond a reasonable doubt. However, there is a distinctive pattern to the flooring, which can be seen clearly in the video entitled “03-03-10_1014” (Count 5) and the video entitled “06-01-19_1457 (Count 6).” Also, there is other evidence of Mr. Agil filming various items in that same basement, including the gun that is the subject of Count 4, as I have noted above.
[20] Looked at within this context, I believe the only logical inference from all of the facts is that the two videos at issue for Counts 5 and 6 were filmed in the basement family room of Mr. Agil’s home in Toronto. It follows that this essential element of the offences charged in Counts 5 and 6 is established beyond a reasonable doubt.
[21] I am unable to come to the same conclusion with respect to Count 3. As with the other videos, it features a gun being displayed against a white background. I am highly suspicious that this is the same backdrop as seen in the two videos at issue for Counts 5 and 6. However, the clip is only 8 seconds long and is of a very poor quality. The background is white, but I cannot be sure that it is the same type of flooring that is more clearly depicted in the other videos. It is highly likely to be Mr. Agil’s home in Toronto, but I am not satisfied of that fact beyond a reasonable doubt. I am therefore finding Mr. Agil not guilty on Count 3.
Summary of Findings on Geographic Location
[22] I am not convinced beyond a reasonable doubt that the videos relating to Counts 1, 2 and 3 were filmed in Toronto. As this is an essential element of the offence, those three charges are dismissed.
[23] I am satisfied beyond a reasonable doubt that the Crown has proven the videos relating to Counts 4, 5 and 6 were filmed in Mr. Agil’s home in Toronto. This satisfies the “where” element of those offences, and I will therefore proceed to consider whether they fall within the time frame specified in the indictment.
C. WHEN?
[24] The offences charged in Counts 4, 5 and 6 are alleged to have been committed between December 1, 2009 and May 5, 2010. The videos showing the guns were already on Mr. Agil’s phones when they were seized on May 4, 2010. Therefore, it is the earlier date that is relevant. The question is whether I can be satisfied beyond a reasonable doubt that these videos were filmed after December 1, 2009.
[25] If the videos had been filmed on the phones upon which they were found, my task would be considerably easier as the EXIF (Exchangeable Image File Format) data embedded in the image on the phone itself would provide that information. However, none of the videos in this case were filmed on the devices upon which they were found. Therefore, the task is considerably less straightforward. Further, even where EXIF data exists, it is only as accurate as the time programmed into the recording phone itself. If that timing is not accurate, then neither is the EXIF data.
[26] There are three other sources of information about timing. The first is the date on the phone showing when the video was placed on the phone. This does not give any information as to when the video was actually shot; it merely shows that it must have been before that particular date. Again, this is also dependent upon the time on the phone itself being accurate.
[27] The second source is the name of the video file, which is placed on the image at the time it is recorded. When the file name is encoded to show the date and time of the recording, this is some indication of the date the video was recorded. However, this assumes that the name was not subsequently altered and that the date and time on the camera/phone doing the recording is accurate.
[28] The third possible source of information is from external data, including what is said on the video itself.
[29] None of these sources is fully reliable. I accept the evidence of both the Crown and defence experts that it is impossible to be conclusive about the dates of these videos based solely on the information stored on the phones themselves.
Count 4: Beretta in the Basement
[30] Videos with respect to Count 4 on the indictment were found on Exhibit 3 (a Blackberry 8320 with Wifi, first available in September, 2008) and on Exhibit 5 (a Blackberry 8130, available in November 2007). There is no EXIF data for these videos and it cannot be determined what device was used to record them, except that it was not either of the devices upon which they were found.
[31] The video on Exhibit 3 bears the title “04-04-10_1158.” That name would normally have been automatically placed upon the video by the device that recorded it and it is some evidence, although not conclusive evidence, that the video was recorded at 11:58 a.m. on April 4, 2010. The accuracy of that date depends upon the accuracy of the time on the recording device and whether anyone altered the name at any point. According to the information obtained by forensic analysis of the Exhibit 3 cell phone, this video was transferred to that phone on April 12, 2010, the same date that a number of other images were transferred to it.
[32] The police had a wiretap authorization for the Exhibit 3 cell phone being used by Mr. Agil and intercepted a number of text messages in February 2010. When the cell phone was later seized pursuant to the search warrant, the dates and times of those text messages as recorded on the phone itself were compared to the date and time of the intercepts according to the police records. As a result, it is clear that the Exhibit 3 cell phone was set to the correct date during that period and the time was within a minute or two of the police clock.
[33] It is an agreed fact that Mr. Agil was in Dubai in 2008, returning to Canada on August 8, 2008. During the time he was in Dubai, he took a number of videos of the area and of himself, essentially bragging about how successful he was. There were a number of those videos on the Exhibit 3 cell phone, all with the same naming convention as the video on Exhibit 3 of the Beretta. The dates shown in the names of the Dubai videos match the dates when Mr. Agil is known to have been in Dubai.
[34] Videos 00029 and 00030 were on Exhibit 5, an earlier model Blackberry. According to the forensic analysis of that phone, these videos were first transferred to that phone on April 4, 2010 at 11:02 and 11:04 a.m., respectively. All three videos show the same gun in the same location, and contain substantially similar narrative from Mr. Agil. That is some indication that they were filmed around the same time.
[35] Independent data confirms that on May 5, 2009, pursuant to a search warrant, police seized a car driven by Mr. Agil. At that time, Mr. Agil was present and was not very pleased to see the car being towed. He took video footage of the officers present. Those videos are on his Exhibit 5 cell phone bearing the names VID00011, VID00012, VID00013 and VID00014. The sequence of the photos is consistent with the sequence of events and shows that the numbering proceeds chronologically. The phone records indicate that this video came onto the Exhibit 5 cell phone on May 5, 2009, the actual date upon which the event occurred. The time recorded on the phone is out by about one hour when compared to the notes of the police officers involved, which is not a significant discrepancy.
[36] On March 8, 2010, Mr. Agil was stopped on the highway by the Ontario Provincial Police. He took photographs of the OPP vehicles, which contain EXIF data indicating they were taken on March 8, 2010.
[37] Again, none of these indications of accuracy or reliability are conclusive. However, they do tend to support the inference that the date shown in the name of the video is accurate.
[38] Finally, Mr. Agil himself states in every one of these videos that it is 2010. The video on Exhibit 3 starts with Mr. Agil describing the gun he is brandishing as being “the latest addition to 2010 collection.” On VID 00029, he states, “You see that, motherfucker? That’s for 2010.” His narrative in VID00030 includes him saying, “2010 going on to, y’know what I mean, better things and bigger things.”
[39] I recognize that no one factor I have reviewed would be definitive as to the date the video was recorded. However, when everything is considered together, I find that the only logical conclusion is that these three videos were in fact filmed in 2010, just as Mr. Agil said on the videos themselves, and just as the dates shown on the phones indicate. While other possibilities can be conjured up, they are merely speculative without any evidence to suggest they are realistic.
[40] Accordingly, I am satisfied beyond a reasonable doubt that the item shown on these three videos was in Mr. Agil’s possession in 2010, within the time frame set out in the indictment.
Count 5: Snub-nose
[41] There is only one video in respect of this count and it was found on Exhibit 3. The name of the video clip, as recorded on the phone, is “03-03-10_1014.” This is at least suggestive that it was filmed on March 3, 2010 at 10:14 a.m. It was not filmed on the cell phone upon which it was found and there is no EXIF data to assist in pinpointing the date upon which it was first recorded. It was transferred to the Exhibit 3 cell phone on March 3, 2010 at 11:17 am, assuming the date and time on that phone were accurate at the time. As I have outlined above in relation to Count 4, there is good reason to believe that accuracy to be the case. The date on the phone would appear to have been accurate in April (as confirmed by the same date appearing on the other phone) and also in February (as confirmed by the wiretap intercepts).
[42] Finally, the issue is not whether the date and time can be pinpointed with precision. The question is whether the video was filmed in 2010. In that regard, I find the narrative accompanying the video to be particularly compelling. The video begins with Mr. Agil saying, “See what it is 2010?” I see no reason for him to say it was 2010, if in fact it was some earlier date. The fact that Mr. Agil said it was 2010 and the title of the video says it was 2010, persuades me that it was in fact 2010. I am satisfied of that fact beyond a reasonable doubt.
Count 6: Unspecified Handgun
[43] The video relied upon in respect of Count 6 is entitled “06-01-10_1457” and according to the internal Exhibit 3 cell phone records it was transferred to that cell phone on February 8, 2010 at 8:53 a.m. The fact that it was transferred on that date is no indication of when it was recorded. Therefore, it is only the title of the video that gives any clue as to the date upon which it was filmed.
[44] I cannot be satisfied beyond a reasonable doubt as to the date of the possession shown in this video based solely on the file name. Without some other piece of evidence to corroborate the likely reliability of that date, I simply cannot be sure. I therefore find Mr. Agil not guilty on Count 6.
Summary of Findings on Timing
[45] I am not satisfied beyond a reasonable doubt that the possession shown on the Count 6 video occurred in 2010, within the time stipulated on the indictment. Therefore, there will be an acquittal on that count.
[46] I am satisfied beyond a reasonable doubt with respect to the timing on Counts 4 and 5 – in both instances the possession was in 2010 and therefore within the time frame covered by the indictment. As previously stated, I am also satisfied that these videos were taken in Toronto. Therefore, the next step is to consider whether the items depicted in the Count 4 and Count 5 videos are real guns, such that possession of them would be a criminal offence.
D. WHAT?
Legal Authorities
[47] Mr. Agil is charged under s. 91 of the Criminal Code with possession of a firearm without holding a license. It is conceded that he does not hold a license. The only issue is whether the items displayed in the videos are “firearms” within the meaning of the Criminal Code.
[48] “Firearm” is defined in s. 2 of the Criminal Code as meaning “a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm.”
[49] Typically, when firearms are recovered by the police, they are physically examined and tested by an expert who then testifies that it is a real gun capable of firing a projectile such as a bullet. In other cases, a weapon is known to be a real firearm because it was actually fired in the course of an offence. However, these are not the only ways that something can be proven to be a firearm. Sometimes, an inference can be drawn from the totality of the evidence that a particular item is a handgun even when the gun itself is never recovered and there is no evidence that it actually fired a bullet.
[50] In R. v. Richards,[^1] the accused was convicted at trial of robbery with a firearm. An object appearing to be a gun was brandished in the course of the robbery, but was not fired and was never recovered. The Court of Appeal upheld the trial judge’s conclusion that this had been a firearm within the meaning of the Criminal Code. The Court of Appeal took into account the manner in which the gun was used, what was said by the perpetrator, and the fact that he had access to guns. The Court held, at para. 4:
It was unwise of the Crown to abandon a count in the indictment relating to the use of an imitation weapon in the commission of a robbery. Nevertheless, having regard to the description of the gun given by the witnesses, the circumstances surrounding the use of the gun – namely that the witnesses were ordered to get down on the floor, had a gun pressed to the head, were threatened, and the modus operandi indicating that the appellant had ready access to guns called up from different locations prior to the subsequent robbery – it was open to the trial judge to come to the conclusion that the gun used by the appellant was a firearm. The appeal as to conviction is dismissed.
[51] A year later, the Court of Appeal reaffirmed this position in R. v. Carlson,[^2] in which an accused was convicted of pointing a firearm in the course of a bank robbery. The defence argued on appeal that there was no evidence before the jury as to the operability of the item used by the robbers and that it could not, therefore, be said to be a firearm. However, the Court of Appeal held that the cumulative effect of what the gun looked like, how it was used, what was said by the robber, and the fact that the robber had ready access to guns supported the conclusion that it was a handgun. The Court held, at para. 16:
In accordance with this court's decision in R. v. Richards, 2001 CanLII 21219 (ON CA), [2001] O.J. No. 2286, we are satisfied that taken cumulatively, the following items of evidence could reasonably support a finding that the hand gun in issue was a firearm:
During the course of the robbery, the appellant brandished the gun, waved it around and eventually pointed it at the back of an employee's head, all the while screaming that this was a "hold-up" and demanding money.
Various witnesses described the gun as "small" and "black" with a 6 to 8 inch muzzle.
The fact that the appellant had ready access to guns according to the combined testimony of his accomplice Grannas and his common-law spouse Ms. Ryynanen.
[52] Similarly, in R. v. Charbonneau,[^3] the Ontario Court of Appeal held that the way a gun is handled and what is said can be a basis for concluding that it is a firearm, particularly in the complete absence of evidence to the contrary. The Court held, at para. 3:
It is true that the complainant was equivocal on the question of whether she could tell for certain whether the gun was real or fake. However, the trial judge also had before him the evidence of the complainant’s clear belief that it was a gun, her description of the object, the appellant’s conduct in relation to it and his use of it together with the appellant’s threat to shoot while holding it. Moreover, there was a complete absence of evidence to the contrary. Taken together, this is a sufficient foundation for the trial judge’s finding that it was a handgun.
[53] In R. v. Ranieri,[^4] the Ontario Court of Appeal took into account threats of violence and aggression in relation to a gun in concluding that it was a real firearm. Again, the absence of any evidence to the contrary was accepted as relevant to a determination that the gun was real. The Court stated, at paras. 2-3:
In our view, there was sufficient evidence upon which the trial judge could make the requisite finding, including:
(1) the description of the gun offered by the victim and his friend;
(2) the description by the victim and his friend of the loading of the gun;
(3) the circumstances of aggression and the appellant’s threats and violent behaviour; and
(4) the appellant’s statement that he would return in several days and shoot the victim and his friend and/or their property.
In these circumstances, absent any evidence from the appellant, [we are] satisfied that the trial judge was entitled to find that the gun in question was a firearm.
[54] Finally, although not binding on me, I find the reasoning of Sparrow J. in R. v. T.O.[^5] to be very persuasive. The facts before the court were very similar to the situation before me. The police had seized a cellphone on which there was a video of the accused holding what appeared to be a gun and stating, among other things, “this can kill you.” The issue was whether this was a real gun, or merely an imitation or replica. The expert witness called by the Crown (Officer Michael Press) testified that the features of the gun in the video matched those of a real gun and that the serial number had been ground off. Sparrow J. took this into account along with the words spoken by the accused while handling the gun and concluded it was a real firearm. She held, at paras. 18-19:
In my view, in all the circumstances of this case, the Crown has proved that the gun was real and therefore a firearm within the meaning of s. 2 beyond a reasonable doubt. Despite his qualifications of his opinion referred to above, Press ultimately opined that the gun was real. In particular, I rely on the fact that the serial number was hammered out, an action obviously designed to conceal the identifying number. If the gun were a replica or any other type of imitation, given that possession is not regulated, there would be no readily understandable need to conceal the identifying number. According to Press, the gun as seen in the images exactly matched the pictures seen in the Firearms Reference Table.
Furthermore, the words spoken in the video indicated to him as an expert that the gun was operable. He was largely unshaken in cross-examination. In my view, the video also indicates that the gun was operable. The accused stated that he could kill and that the weapon was ready to fire. He touched the slide saying in essence that it was ready to fire. Furthermore, as stated in Charbonneau,[^6] there is “no evidence to the contrary that the gun was operable.”
[55] I take from these cases that physical evidence is not always necessary to establish that a gun meets the definition of “firearm” in the Criminal Code. It is also possible for the Crown to prove that essential element through circumstantial evidence, including: the appearance of the gun; the manner in which it is operated or handled; any words or actions of the accused in relation to it; and the accused’s access to firearms.
Expert Evidence
[56] I heard evidence from two expert witnesses on the issue of whether the items displayed on these videos were actual firearms: Sr. Firearms Officer Michael Press (who testified on behalf of the Crown); and Mr. Stelios Chrysochou (who testified for the defence). Both witnesses agreed that it is not possible to say definitively that any of the guns shown on the videos are real guns based solely on their appearance on the video. To be certain that a gun is real and fully operational, it would be necessary to examine it physically. I accept that evidence.
[57] Both experts also agreed that there is nothing about the appearance of the guns on the videos to enable them to rule out the possibility of their being real firearms. Based on appearance alone, they might be real or they might not be.
[58] Likewise, both experts agreed that there are many varieties of guns that look like the real thing, but which do not meet the Criminal Code definition of firearm. These include air guns (which fire plastic pellets by way of compressed air), replica firearms (which either do not fire, or fire specially designed blanks), and deactivated firearms (which used to be functional firearms, but which have been mechanically altered to make them inoperable). I was shown video footage and photographs of replica guns that look exactly the same as real guns of the same make. Again, I accept that evidence.
[59] Mr. Chrysochou testified that he was unable to determine whether any of the items shown in the videos were real functioning firearms meeting the Criminal Code definition. I accept that evidence.
[60] With respect to Video 06-01-10_1457 (Count 6), Mr. Chrysochou testified that, based upon the manner in which the gun was being handled, in his opinion it was not a real firearm. Because I have already dismissed that charge based on timing, it is not necessary for me to determine whether the gun shown in that video is real. However, I will deal with the issue, because a conclusion to the contrary might be seen as affecting the result on the other counts.
[61] I do not accept Mr. Chrysochou’s evidence on this point. He noted that at the beginning of the video, the safety mechanism on the gun in the video is engaged. Then Mr. Agil removes the magazine, displays the fact that cartridges can be seen in the magazine, and places the magazine out of sight. He next puts the magazine back in, disengages the safety lever, and squeezes the trigger. The hammer can be heard clicking, but no bullet is fired. Mr. Chrysochou concludes from this that there could not have been a bullet in the chamber of the gun when it was fired. That is unassailable. However, Mr. Chrysochou also concludes that if there was no bullet in the chamber, there would have been no reason to have the safety lever engaged at the outset when the magazine was still in the gun. He reviewed the rules for proper handling of firearms at a firing range and said that Mr. Agil was not following the proper procedure for the handling of a real firearm. He therefore concluded that this was not a real firearm.
[62] First of all, nothing about this video is remotely connected to the appropriate procedure for the handling of real firearms at a firing range. That is a completely irrelevant consideration. Secondly, the fact that the safety did not need to be engaged unless there was a bullet in the chamber, does not mean that it could not be engaged in that situation. Mr. Chrysochou acknowledged that another possible explanation was that Mr. Agil was simply playing with the safety lever and never had a bullet in the chamber. I agree with Mr. Chrysochou about the logic of not needing the safety on unless there was a bullet in the chamber. However, there is nothing logical about the video in any event. It is not possible to conclude that the gun could not have been real because of this factor.
[63] The Crown’s expert, Officer Press, accepted that it was not possible to determine conclusively that the guns on the videos were real based solely on the images themselves. Nevertheless, he stated his opinion that they were real guns based on a number of factors he took into account along with the visual images. There are some aspects of that evidence which I recognize are within the expertise of this witness, and some aspects which are not. I have ignored those aspects which I believe are an exercise of logic based on drawing inferences from surrounding circumstances. However, Officer Press does have special expertise on some aspects upon which I have relied, notably, the way the gun is handled, the types of guns and ammunition commonly seized by police in Toronto, and the sound a real gun makes when being racked.
[64] Officer Press noted the way Mr. Agil was holding the gun in a number of the videos. For example, in Video 03-03-10_1014 (Count 5), Mr. Agil can be seen placing his trigger finger to the right side of the trigger guard, rather than on the trigger itself. Similarly, in Video 00029 (Count 4), Mr. Agil places his finger in a similar position, parallel to the slide assembly, after the magazine is inserted into the gun, an indication that he is aware the gun is loaded and operable. Officer Press testified that this is the type of safety precaution one would not expect unless the gun was capable of firing. In another video, Mr. Agil’s trigger finger is behind, rather than over, the trigger. Officer Press testified that this is not a normal procedure for a person trained in the proper handling of firearms, but is nevertheless consistent with a person being careful with a loaded, real firearm. I rely on Officer Press’s expertise in relation to what kinds of safety precautions are typical of a person using a real firearm. I take his evidence as going no further than that.
[65] Officer Press pointed out that the serial number has been filed off the gun which is the subject of Count 5 (the Beretta). I accept his evidence on this point. It is clearly observable on the video. I also accept Officer Press’s evidence that he can see no valid reason to file the serial number off a replica firearm. He has considerable expertise in handling and analyzing thousands of illegal handguns seized from criminals in Toronto. He has also seen hundreds of replicas seized in similar circumstances. He has particular expertise in the significance of a serial number being removed from a gun, and I rely on his opinion in that regard. However, even without his opinion on that point, I would have come to the same conclusion on my own.
[66] In a number of the magazines displayed on the video, there are various types of ammunition. Sometimes there are even different types of cartridges within the same magazine. Officer Press testified that in his experience this is typical of real guns used in criminal activity in Toronto. Ammunition can be difficult to acquire and therefore is often mismatched. However, he said he would not expect to see that sort of thing in an imitation firearm. This is squarely within his area of expertise and is an opinion he is qualified to express. While this factor is by no means conclusive, it has some persuasive value in considering whether these guns are real.
[67] Officer Press identified the gun shown in video 02-05-071848 (Count 1) as being a Hi Point handgun. He said it has a very distinctive appearance, is cheaper than many of the other varieties of handguns available on the streets in Toronto, and is very common in criminal use in Toronto. The butt, or handgrip, of the particular Hi Point seen on this video is covered with shiny black tape. Officer Press testified that this is also a common feature of such handguns seized by the police in Toronto. He said that the Hi Point is a lower quality handgun and he often sees those guns with cracked or broken grips when they come into the police station. This is more consistent with the gun being a real gun, than with it being a replica.
[68] Part of Officer Press’s opinion was based upon the sound certain parts of the guns made when moved. An assessment of how something sounds is highly subjective. This difficulty is compounded in the present case because the sound quality of the videos is often poor. However, I do recognize Officer Press’s expertise in this area, based on having done these tasks with real weapons and imitation or replica weapons thousands of times. He listened to the videos many times over, including with headphones to enhance the sound. I rely on his expertise in this regard. In particular, Officer Press was confident that he could hear the sound of a real firearm being racked in VID 00029 (Count 4). He described the distinct sound of the slide going backwards, then forwards, and of a cartridge then going into the chamber. He was unshaken in that opinion on cross-examination. He said he could tell the difference in the sound of that movement as between a real gun and a replica, based on having done it himself thousands of times. I accept that this is within Officer Press’s area of expertise. Again, I do not take this as definitive, but it is a factor to be taken into account in weighing all of the evidence.
[69] In both his evidence at trial, and his written report, Officer Press stated his belief that the items displayed in the videos were real guns. In reaching that conclusion, he relied on a number of factors including: (1) the physical attributes of the guns being displayed; (2) how the mechanisms worked and the sounds they made; (3) the various types of bullet configurations; (4) how the guns were handled; and (5) comments made by Mr. Agil during the video describing the guns and what they could do. Of these factors, the first four are within Officer Press’s area of expertise. I rely upon his evidence as to the significance of those factors. However, I do not rely on any conclusions he reached based on the commentary made by Mr. Agil as he handled the various items on the video. That is not an area involving expertise in firearms, but rather an exercise of logic in the drawing of inferences from evidence. The latter is the ultimate question for the trier of fact, and I therefore disregard Officer Press’s evidence on that. Further, while I accept his evidence that certain other factors he took into account are more consistent with the guns being real, I am not taking into account his belief that these items are therefore real guns. His opinion in that regard may possibly be tainted by his reference to the comments made by Mr. Agil on the video. I am therefore considering the whole issue anew.
Other Factors
[70] I conclude from all of the evidence that Mr. Agil, at least to some extent, was engaged in a lifestyle of criminality. Although I have acquitted him on the conspiracy to traffic in cocaine charge, it is nevertheless clear from the wiretap interception that on April 5, 2010, Mr. Agil was negotiating to sell a large quantity of cocaine for just under $10,000.00. In one of his videos taken in Dubai (Exhibit 4, video 14-03-08_0519), he refers boastfully to himself as having “the life of a crook who got away.” In numerous other videos he displays large quantities of cash in large denominations, in bundles or fanned out, with thousands of dollars in each bundle. The way he talks about the money, and the manner in which it is displayed, is more consistent with it having been acquired illegally than otherwise.
[71] In one of the videos[^7] Mr. Agil can be heard gloating while displaying a large amount of cash (in the company of another man who is not seen). In the course of Mr. Agil’s commentary, he says:
We just fresh off the eat food, you know what I’m saying? We’re just eating nigger’s food, yakking them all day, you see. See all you see is just loot, loot, loot, just more loot bro, and I’m on my way to the fucking bank man, you know what I’m saying? I just hope you niggers get the picture about not to fuck with these niggers, you know, we’re the money makers, the fly zone niggers, you know what I’m saying? We’re coming for your money next. If you got money, we’re coming for it.
[72] I heard expert evidence from Sgt. Jeffrey Ross that these slang references to “eating food” refer to robberies of money. That may well be the case. On cross-examination, a number of other possibilities were put to Sgt. Ross, but he remained of the view that this conversation related to robberies of other people for their money. In my view, it does not matter whether the references are to stealing money from people, as opposed to stealing drugs, or even selling drugs and getting their money that way. The important underlying message from this video is that this money was not earned by honest labour. Rather, it represents criminal activity of some kind involving large amounts of money.
[73] I also heard expert evidence as to the prevalence of firearms among criminals trafficking in drugs and committing robberies. In truth, expert evidence is probably not even necessary on this issue, particularly for a criminal trial judge in Toronto. The connection between those crimes and guns is, sadly, well known and frequently referred to in our case law. I fully acknowledge that such crimes are often committed with imitation or inoperable handguns. Nevertheless, the fact remains that there is a nexus between this type of criminality and the use of, and access to, real firearms. Thus, a person engaged in violent and dangerous activity (such as high-level drug dealing and/or robbery) is more likely to have access to and to possess a real firearm.
[74] Having said that, I hasten to add that a finding that Mr. Agil was engaged in other criminal acts cannot be used to conclude that he is a bad person with a propensity to commit the crimes with which he is now charged. There must be a real evidentiary link between the criminality and the charge in question before inferences can be drawn.[^8] Evidence of a criminal lifestyle is by no means conclusive that the guns displayed in the videos were real, as opposed to imitation. Indeed, the probative weight to be given to such evidence cannot be very great. However, it is a relevant factor to be taken into account along with all the other evidence.
[75] On October 21, 2000, Mr. Agil was shot and received multiple injuries, including the loss of his left eye. The Crown relies on this fact as supporting an inference that Mr. Agil is therefore more likely to have real guns, as opposed to imitation ones. Again, this evidence falls dangerously close to being evidence of mere propensity. Also, it is very dated in relation to the charges now before the court, having occurred a decade earlier. However, the nature of the narrative in the videos does lend some support to the Crown’s theory that Mr. Agil’s motive to own real guns is fuelled by the fact that he was himself shot in the head. Over and over again in the videos he makes reference to putting bullets in people’s brains. In my view, this provides some evidence of a motive to possess guns and has some relevance to whether those guns are real, as opposed to imitation. The probative value is not high. That being said, in a case based on circumstantial evidence, it is appropriate to take into account all of the evidence, including that which is less than compelling on its own. Sometimes even though no single piece of evidence is compelling, when all of the minor pieces of evidence are added up, the weight of the whole of the evidence can be overwhelming.
[76] The Crown also relies upon two wiretap intercepts in which, it is argued, Mr. Agil’s involvement with guns is discussed. One of those calls was with an unknown female on May 1, 2010. The woman called Mr. Agil on his cell phone and he clearly recognized her voice without her having to say who she was. She told him she needed a favour and said, “Need you to find me a burner.” I accept the expert evidence before me that “burner” is often a slang word meaning gun. However, “burner” can also mean other things, e.g. a disposable or untraceable cell phone. Whether or not it means “gun” would depend on the context. I see nothing in the context of this interception to support the conclusion that it means “gun” in this case. There is an inference, however, that it means something illegal. As soon as “burner” is mentioned, Mr. Agil protests, “Why you wannna … talk like that on my phone man. I don’t know nothing about that. You’re so hot, yow, fuck that shit.” This would appear to be some awareness of the impropriety of talking about such an item on his phone. However, beyond that, I cannot conclude that this is any indication that Mr. Agil is a supplier of guns.
[77] The other wiretap interception relied upon by the Crown is a discussion between Mr. Agil and his sister, Nasadaf, on February 17, 2010. The main difficulty with this particular call is that Mr. Agil and his sister slip back and forth between English and some other language. Therefore, part of their discussion is unintelligible. Also, at times both of them speak quickly and mumble, so it is sometimes difficult to tell if the partially inaudible portion is English or some other language. The actual audio recording of the wiretap intercept was made an exhibit at trial. I was also provided with a transcript for my assistance. However, it is the recording itself that constitutes the evidence and I am not bound to accept the transcript as being accurate. At the beginning of the call, Mr. Agil and his sister discuss the fact that she has been trying to reach him and has left messages for him on two of his cell phones. Mr. Agil then states that it is ironic that she should leave a message about having a “bad feeling” and tells her about an incident that had occurred. The conversation about the incident is unintelligible as it is largely in a foreign language. However, Nasadaf then asks whether it was about “power rivalry shit or drugs or what is the deal?” Much of Mr. Agil’s response is largely unintelligible. At one point, he seems to be saying “All I know is I’m out of it”, and he concludes by saying, “I don’t do nothing.” The following exchange then ensues:
Nasadaf: Then why do you have a gun if you’re out of the situation?
Agil: You know why?
Nasadaf: Why?
Agil: Just in case.
Nasadaf: (Laughs) Yeah, in case
[78] Although counsel before me were unable to agree that the word “gun” was uttered by Nasadaf, I am satisfied that it was. She was asking her brother why he had a gun if he was out of the situation and he said he had one “just in case.” According to the transcript, the next words uttered by Mr. Agil are, “Like you know recently the situation get rough and I lock down with the matic from everything.” Although counsel agreed that Mr. Agil used the word “matic,” I have some difficulty hearing that on the tape. However, if he did use the word “matic,” I have no hesitation in concluding from the context that he is referring to an automatic gun. In any event, I am confident from the rest of the conversation that in response to his sister’s questioning Mr. Agil admitted to having a gun “just in case.” I take this to be more likely a reference to a real gun, rather than an imitation; as otherwise, he would tell his sister his gun was not real to allay her concerns.
Count 4 Analysis: The Beretta is a Real Gun
[79] I turn then to an analysis of the three videos relied upon in support of Count 4 (the Beretta in the basement) and to whether the item displayed is a real gun.
[80] In the Exhibit 3 cell phone video (04-04-10_1158) Mr. Agil holds the gun and displays both sides of it to the camera for a total of 14 seconds. As he is doing so, he states:
The latest addition to 2010 collection. My (unintelligible). Huh? You wanna get some of this in your dome, cocksucker?
[81] He then releases the magazine and slides it out, displaying the fact that there are cartridges inside it. While doing this, he states:
Let me show you (unintelligible). You see these in your brain?
[82] VID00030 on Exhibit 5 is similar in content, except that the magazine is not removed. This video is 40 seconds in length. Mr. Agil holds the gun in his hand and shows it from side to side, including displaying the barrel where the name of the gun is printed. While doing this he states:
Bitch. That’s my (unintelligible) Can you read that? Huh? [while displaying the name on the barrel] I guess not. It’s the limited edition mother fucker. Na means? You will lose your brain. 2010. Going on to, y’know what I mean, better things and bigger things. See me when you’re ready. Get it all in your (unintelligible) cap.
[83] The most detailed display of the gun is in VID 000029 from Exhibit 5, which is 30 seconds long. The narrative is very similar in theme. However, the parts of the gun are manipulated more extensively in this video as compared to the other two. The video starts with Mr. Agil displaying the gun and stating:
Huh? You see that shit, mother fucker? That’s for 2010 G. Mother fucker (unintelligible).
[84] Mr. Agil then puts the gun on the floor and displays the magazine containing cartridges, which he has just removed from the gun. While displaying the bullets inside the magazine, he says:
Huh? If you want you can get some of this in your mouuuuuth. [with the word “mouth” being dragged out] Type of shit you want in your mouth? Lemme load it up for ya.
[85] At this point, the gun is off camera and the camera veers erratically around the room. In the background, sounds can be heard from the mechanism of the gun. I accept the evidence of Officer Press that he can hear that the magazine is inserted, the gun is racked, and a cartridge goes into the chamber of the gun. The camera is then focused again on the gun itself. Mr. Agil’s trigger finger is now laid along the side of the trigger guard, safely away from the trigger itself. He then says:
Looks better now, does it? ‘Cause the clip is in and you can get it all up in your face. Face m …
[86] I accept the evidence of Officer Press that the physical attributes of this item are identical to a Beretta semi-automatic handgun. I also accept his evidence, and can see for myself on the video, that the serial number has been filed off.
[87] There is a similar tone and content running through the narratives on all of the videos, including the videos relating to the other counts. It is difficult to describe in words the nature of that underlying tone. It is low and menacing, but there is also an element of gloating, or boastfulness. Mr. Agil repeatedly refers to using the gun to put a bullet in somebody’s face or head. In my opinion, those threats give rise to a strong inference that this is a real gun with the capacity to put a bullet in somebody’s head. The only other possibility is that Mr. Agil is lying and that he is making those references about an imitation gun in order to intimidate somebody and fool them into thinking he has a real gun. I point out, however, that there is absolutely no evidence to support such a possibility. The clear inference from Mr. Agil’s own words, spoken over and over, is that this is a real gun, fully capable of firing and killing someone. There is nothing to contradict that.
[88] Further, the serial number is filed off this gun. I see no logical basis for believing that there would be any reason to file the serial number off an imitation weapon. If it was truly done to an imitation gun for the purpose of making it look more believably real, I would expect Mr. Agil to point that out in the narrative. He did not. While the missing serial number can be discerned through close scrutiny, it is by no means obvious. I do not accept that this was done as a further step to trick someone into believing it is a real gun. That is blatant speculation with no evidence to support it.
[89] In addition, I accept Officer Press’s evidence as to the sound of the cartridge entering the chamber. This could not happen on an imitation gun. This is further evidence that the gun is real.
[90] Based on these factors, I have reached the conclusion that the item displayed on these three videos is a real Beretta semi-automatic, that it is operational, and that it meets the definition of “firearm” set out in the Criminal Code. I am satisfied beyond a reasonable doubt that this is the only logical conclusion based on the evidence taken as a whole.
[91] In addition, I have taken into account the following factors:
(a) Mr. Agil is known to have been engaged in criminality, including drug trafficking at a high level and crimes in which large amounts of money were involved;
(b) the videos were shot on April 4, the day before Mr. Agil was involved in negotiations for a high-level drug deal;
(c) Mr. Agil admitted to his sister in February 2010 that he had a gun;
(d) Mr. Agil handles the gun in a manner consistent with its being a loaded, fully operational real firearm.
[92] None of these factors is persuasive on its own. However, each is consistent with the conclusion that this is a real gun and lends some support to the overall strength of the other evidence. Even without this evidence, I would have been satisfied that this gun is real.
[93] Accordingly, I find Mr. Agil guilty on Count 4.
Analysis Count 1: The Hi Point in the Car is a Real Gun
[94] Next I will consider the evidence with respect to the handgun displayed on Video 02-05-07-1848 (the Hi Point in the car). I dismissed this charge because I had no basis for concluding that this occurred in Toronto. However, I am satisfied on the evidence that the item displayed on this video is a real, operational handgun which meets the definition of “firearm” in the Criminal Code.
[95] This video is the only one involving a gun in which a person other than Mr. Agil is also present. The unknown male is present in the front passenger seat of a car with Mr. Agil. At the beginning of the video the other man handles the gun and then passes it to Mr. Agil. Although both men are speaking, the same low, menacing tone is prevalent, particularly from Mr. Agil. Both men are clearly comfortable with each other and there is a decided element of gloating present. The same kind of taunting language is present as is the case with the three videos featuring the Beretta. Mr. Agil is heard to say, “Yes, you cocksuckers, you see that?” while brandishing the gun. The other man then says, “I love the way the Hi point (unintelligible).” Mr. Agil then extracts the magazine and displays the cartridges inside, stating, “If you want one of these in your ass you’re a faggot.” The man with him responds, “In your fuckin’ face.” It is clear from the tone of voice and context that these men are not threatening each other, but rather some unseen absent enemy or opponent.
[96] At one point, Mr. Agil can be seen laying his finger along the side of the trigger mechanism, a safe manner of handling a real, loaded gun. The grip of the gun has been taped over, which, based on the evidence of Officer Press, I consider to be consistent with this being a real gun as this is typical of Hi Point handguns found by police in Toronto.
[97] In my view, based on the appearance of the gun and magazine, the manner in which they are being handled, and the words accompanying the video, this is a real Hi Point handgun capable of being fired. I recognize that some of those words, particularly the comment about liking the Hi Point, are spoken by Mr. Agil’s companion. However, it is apparent from Mr. Agil’s reaction that he is in agreement with what his friend is saying The clear inference from their words and actions is that this gun is real.
[98] I am satisfied beyond a reasonable doubt that this is a real Hi Point handgun. Although such a finding is not relevant to Count 1 because of my finding with respect to the location of this video, I have included this analysis in my reasons because it has some relevance to my findings in respect of Count 5 (the snub-nose handgun).
Analysis Count 5: The Snub-nose is a Real Gun
[99] Finally, I turn to the video that supports the charge in Count 5 with respect to the snub-nose handgun (03-03-10_1014).
[100] This video is striking in its overall similarity to the videos relating to Count 4 (the Beretta), except that it features a different type of gun. The manner of displaying the gun is very similar, as is the underlying narrative. Mr. Agil can be seen holding the gun with his finger positioned on the outside of the trigger guard, in a manner consistent with the safe handling of a real loaded gun. While displaying the gun, Mr. Agil states:
Hmmm? Niggers see what it is 2010? Even the snubbies (unintelligible). Dome in your fuckin’ head cop. Y’heard? This ain’t no joke ’ting. See the hollows in there too, mother fucker? If you get it.
[101] I accept the evidence of Officer Press that the item displayed is a snub-nose revolver, sometimes known as a “38 Special.” Not only is that Officer Press’s expert opinion from looking at the video and comparing it to known standards for a snub-nose revolver, Mr. Agil himself identifies it as such by calling it by its slang name “snubbie.” Although Mr. Chrysochou initially testified that he could not tell if this was a snub nose revolver because the barrel looked longer than two inches, he conceded on cross-examination that without measuring it he could not really tell if it was longer than two inches. On this point, I prefer the evidence of Officer Press, who used the length of Mr. Agil’s finger along the side of the gun as a point of comparison. This is buttressed by the fact that Mr. Agil also calls it a snubbie on the video.
[102] In his narrative, Mr. Agil refers to “hollows” being in the gun. Officer Press testified that this is a reference to hollow point bullets, which are designed to mushroom or expand on impact. However, both experts testified that it is not possible from looking at the video to tell whether the gun is loaded with hollow point bullets. Nevertheless, I consider that the fact that Mr. Agil said this is more consistent with this being a real firearm.
[103] In addition to these factors, I have considered Mr. Agil’s prior criminal activity and prior injury and his likelihood therefore to have a real firearm, as well as his admission to his sister that he carried a gun “just in case.”
[104] I have also taken into account the fact that I have already determined that the Beretta featured in three similar videos is a real gun, and that the Hi Point featured in another video is also a real gun. All of the videos are strikingly similar. There is also a clear pattern of conduct here. Mr. Agil, for reasons I do not know, likes to film himself holding real guns while describing in menacing tones the capacity of those guns to shoot people, usually in the head. There can be reasons, albeit nefarious, for an individual to have numerous illegal firearms over a period of time. I am hard pressed, however, to come up with any logical reason why a person would have such a variety of replica or imitation firearms. In my opinion, this also reinforces my conclusion that the snub-nose revolver shown in this video is a real, operable gun and meets the definition of “firearm” set out in the Criminal Code.
[105] Accordingly, I find Mr. Agil guilty on Count 5.
E. COUNT 7: CONSPIRACY TO TRAFFIC IN COCAINE
[106] The evidence relied upon by the Crown in respect of this charge is from one telephone conversation intercepted by the police on April 5, 2010. The man to whom Mr. Agil is speaking has not been determined. However, it is clear from their conversation that this is a person well-known to him and that they are on friendly terms. There had obviously been some prior conversation between the two men about a deal for cocaine, with Mr. Agil being the supplier. In the April 5, 2010 conversation, the man asked the price and Mr. Agil replied, “Eleven each bizzounce,” which is conceded to mean $1100 for each ounce of cocaine. The man then asked how much for the pack and Mr. Agil responded, “Nine, right?” There is then a confused discussion in which the man seemed unable (or unwilling) to multiply $1100 by 9, until finally Mr. Agil said, “Okay. Let me do it for you. Ninety-nine, is that better for you brother?” The man asked again, “How much?” and Mr. Agil replied “ninety-nine.” Both men then laughed. The other man said “Come check me.” Mr. Agil answered, “All right.”
[107] It is clear to me that Mr. Agil is discussing selling nine ounces of cocaine for $9900.00. However, the only indication that the man has agreed to buy is his statement, “Come check me.” I do not see this a clear evidence of an agreement to purchase the cocaine. That may have been the likely outcome of this conversation. It is certainly suspicious. However, I am not satisfied beyond a reasonable doubt that an agreement had been reached.
[108] Quite apart from the other necessary ingredients to constitute a conspiracy to traffic in cocaine, there must at least be an initial agreement. Since I am not satisfied on this pivotal point, the charge must be dismissed.
F. CONCLUSION
[109] In the result, I find Mr. Agil guilty of possession of a firearm on both Counts 4 and 5. The other charges are dismissed.
MOLLOY J.
Released: September 26, 2012
[^1]: R. v. Richards, 2001 CanLII 21219 (ON CA), [2001] O.J. No. 2286 (C.A.). [^2]: R. v. Carlson, [2002] O.J. No. 1884 (C.A.), leave to appeal refused [2002] S.C.C.A. No. 363. [^3]: R. v. Charbonneau, 2004 CanLII 9527 (ON CA), [2004] O.J. No. 1503 (C.A.). [^4]: R. v. Ranieri, 2009 ONCA 6, [2009] O.J. No. 25. [^5]: R.v. T.O., 2010 ONCJ 751, [2010] O.J. No. 6144. [^6]: Charbonneau, supra note 3. [^7]: Exhibit 4, video 25-08-07_1530. [^8]: R. v. LePage, 1995 CanLII 123 (SCC), [1995] 1 S.C.R. 654.