R. v. HINDS, 2015 ONSC 1682

DATE: 20150318

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MICHAEL HINDS

Joe Hanna for the Crown

Laura Giordano for Michael Hinds

HEARD: March 9-13, 2015

MacDonnell, J.

[1] On March 9, 2015, Michael Hinds appeared before this court for a trial on a charge that he did “on or about the 29th day of April in the year 2013, in the City of Toronto, in the Toronto Region…commit the offence of Trafficking in Firearms, contrary to section 99(1)>(b) of the Criminal Code.” Mr. Hinds had initially elected to be tried by a court composed of judge and jury but with the consent of the Crown he re-elected to tried by a judge sitting alone. Upon arraignment he pleaded not guilty. After hearing the evidence adduced and the parties’ final submissions, judgment was reserved until today.

I. Overview

[2] The allegation of the Crown is that Mr. Hinds committed the offence of trafficking by offering to transfer a firearm to Joshawa Dehond. The evidence in relation to the alleged offer consists entirely of a single brief intercepted telephone call that Mr. Dehond received from a male shortly before 5:00 p.m. on April 29, 2013. The only other evidence presented by the Crown was aimed at identifying Mr. Hinds as the male who called Mr. Dehond. Mr. Hinds did not testify nor did he call any evidence.

[3] At the end of the case, the matters in issue were whether the Crown had proved beyond a reasonable doubt:

(i) that Mr. Hinds was the male who called Mr. Dehond;

(ii) that the subject matter of the call was a firearm;

(iii) that in the course of the call an offer was made to transfer a firearm to Dehond; and

(iv) that Mr. Hinds knew that he was not authorized to transfer a firearm to Dehond.

[4] In my opinion, only the third of those matters needs to be addressed in these reasons. Assuming without deciding that the male speaking to Mr. Dehond was Mr. Hinds, that what he was speaking about was a firearm, and that he knew that he was not authorized to transfer a firearm to Dehond, I am not satisfied beyond a reasonable doubt that he made or was a party to an offer to transfer a firearm to Dehond.

II. The Alleged Offer

[5] As I have said, the evidence in relation to the alleged offer consists entirely of the contents of a single intercepted conversation between Mr. Dehond and a male who the Crown says is Mr. Hinds. The relevant part of the conversation was as follows:

Male: All right yow, fam listen… I’m hitting Don Mills Road right now, I’m a come check you and we need to fucking thing, ‘cause … alright, ‘member… ‘member my boy okay. My homey. See what I’m saying? You remember my boy, no?

Dehond: I don’t know which one you’re talking about.

Male: The same one we went to check yow. Me and you.

Dehond: From long time?

Male: Yeah, yeah, yeah, yeah, yeah.

Dehond: Yeah

Male: For the…for the…for the…for the same…for the same thing there, okay?

Dehond: Yeah, yeah, yeah.

Male: The man came, and he’s like yow, the man has… he’s like yow, I have a… the sick sick, and I have a sick one. He’s like yow, listen, he’s like just ‘cause your homey never came at me, no way whatever and like we knew that it was garbage see what I’m saying. He’s like yow listen, tell him for the same I’ll give him better. He’s like, and matter of fact I’ll … I’ll deeps him to mine. Nine five. But it… he…he…he said, he’s gonna fucking deal with me first. To see how…

Dehond: Huh?

Male: He said, he said he’s gonna deal with me first, so you, so we can see it, right?

Dehond: Yeah.

Male: But what I’m gonna do is I’m gonna fucking…Don’t worry I’m a holler at you. I’m on my way there right now. You at your crib?

Dehond: Yeah, yeah that’s what I was going to say, just talk to me when you’re here what you’re doing.

Male: Yeah all right, you already know, fam…

III. The Law

[6] Section 99(1) of the Criminal Code provides:

Every person commits an offence who

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

(b) offers to do anything referred to in paragraph (a) in respect of a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition knowing that the person is not authorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament.

[7] Section 99 is found within Part III of the Criminal Code. Section 84(1) provides that for for the purposes of Part III, “transfer means sell, provide, barter, give, lend, rent, send, transport, ship, distribute or deliver”. The allegation of the Crown is not that Mr. Hinds actually transferred a firearm, contrary to s. 99(1)(a), but rather that he offered to do so, contrary to s. 99(1)(b).

[8] The verb “offer” is not defined in the Code. The definitions provided by the Concise Oxford English Dictionary (11th ed., revised) (2008) include the following:

1 present (something) for (someone) to accept or reject. 2 express readiness to do something for or on behalf of someone. 3 provide (access or an opportunity)…

[9] What those definitions imply is that the making of an offer ordinarily requires more than a statement of intent to do something. It requires, as well, the anticipation of a response, namely, acceptance or rejection of what is proposed. The legal usage of the word is consistent with that understanding. For example, Black’s Law Dictionary (8th) (2004) defines offer as “the act or an instance of presenting something for acceptance…” The Dictionary of Canadian Law (4th) (2011) defines it as “the indication by one person that the person is willing to enter into an agreement with another person”. The Oxford Companion to Law (1980) describes an offer as “an indication or expression of willingness to become bound by some obligation if another party, the offeree, accepts the offer…” [emphasis added]

[10] The language used in cases that have considered the scope of the word “offer” in the context of the definition of trafficking in what is now s. 2(1) of the Controlled Drugs and Substances Act is consistent with that interpretation. In R. v. Hancock [1978] B.C.J. No. 1147 (C.A.), at paragraph 7, Chief Justice Farris stated that “an offer to sell or deliver a narcotic is complete once the offer is put forward by the accused in a serious manner intending it to induce the officer to act upon it and accept it as an offer.” In R. v. Bell, 2002 ABCA 107, Berger J.A. adopted that statement, virtually verbatim. In R. v. Murdock, 2003 4306 (ON CA), [2003] O.J. No. 2470, Doherty J.A. stated, at paragraph 40: “Offers to traffic in narcotics even when there is no intention to traffic, induce recipients of the offers to participate in drug trafficking and thereby promote and expand the illicit drug trade.” [emphasis added]

IV. Application to this Case

[11] On behalf of the Crown, Mr. Hanna submitted that the court should find that in the portion of the intercepted conversation set out above the male was telling Dehond (i) that he had been in contact with a third party with whom they had previously dealt, (ii) that the third party had told the male that he was now prepared to provide Dehond with a firearm, and (iii) that the third party wanted to deal with him (the male) in that regard. Mr. Hanna submitted that it is clear that the male was passing on the offer of a firearm on behalf of the third party and accordingly that the male is liable to conviction pursuant to s. 21(1)(b) of the Criminal Code.

[12] I accept that the construction of the conversation that Mr. Hanna urged the court to adopt is plausible. However, is it the only one that is reasonably available?

[13] In considering that question, it is important to bear in mind that there is nothing apart from the conversation itself to provide context for what was said. For example, there is no evidence of anything that either Dehond or the male were doing before the conversation, what they did after, what the nature of their relationship was, or who the third party was. There is no evidence that a transfer ever occurred. It is also important to remember that the conversation was anything but straightforward. Indeed, the Crown relied on the fact that it was guarded to support an inference that what was being discussed was something unlawful. Although the court is bound to make best efforts to determine what the conversation was about, the court is not obliged to succeed. In a case like this, where the conversation is devoid of context, its cryptic nature raises real concerns about the ability to be certain as to its meaning.

[14] If I assume that the subject matter of the conversation was a firearm, I would agree that the only reasonable inference is that the male was talking about acquiring a firearm. While it would also be reasonable to infer that the male and Dehond had had prior discussions in that respect, and that Dehond had an interest in the proposed acquisition, the conversation is at least open to the construction that the male was intending to obtain the firearm for himself. In arguing against that construction, Mr. Hanna placed considerable weight on the fact that the male told Dehond that the third party said “Listen, tell him for the same I’ll give him better… Matter of fact I’ll deeps him to [give him] mine [for $950].” Mr. Hanna submitted that the “him” to whom the third party was referring had to be Mr. Dehond. That is certainly an available inference , but I do not agree that the possibility that it was someone else altogether can be excluded. The difficulty is that in the absence of an external context the conversation can be construed in a number of ways, none of which are sufficiently compelling to exclude reasonable doubt as to its correctness.

[15] In any event, even if the male was talking about acquiring a gun for Dehond, I am not satisfied that he was making or passing on an “offer”. Rather, it seems to me that he was simply reporting to Dehond on the state of his negotiations with the third party for the acquisition of a firearm. There is nothing in the conversation to indicate that the male was looking for a response from Dehond before proceeding with the acquisition. As I have said, proof of an “offer” requires more than proof of an assertion of intention to do something. The assertion must be accompanied by an anticipation of a response – either acceptance or rejection – from the person to whom the assertion was made. I am unable to construe what the male said that he was going to do in relation to the firearm as being in any way conditional upon a response from Dehond.

[16] For the foregoing reasons, I am not satisfied beyond a reasonable doubt that the intercepted communication sets forth an offer to transfer a firearm to Mr. Dehond. Accordingly, Mr. Hinds is found not guilty of the offence of trafficking in a firearm.

MacDonnell, J.

Released: March 18, 2015