CITATION: R. v. Khiar, 2015 ONSC 352

COURT FILE NO.: CR-13-30000828

DATE: 20150116

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Ibrahim Khiar

BEFORE: E.M. Morgan J.

COUNSEL: Molly Flanagan, for the Crown

Marco Forte, for the Defendant

HEARD: October 27-28, 2014, January 9 and 14, 2015

REASONS FOR JUDGMENT

[1] The Defendant is charged under an amended indictment, as follows:

IBRAHIM KHIAR stands charged that he, on or about the 21st day of September in the year 2011, in the City of Toronto, in the Toronto Region, did conspire with Guyvin JULY, Devaroo ANDERSON and persons unknown to commit an indictable offence, to wit: weapons trafficking, contrary to section 465(1) (c) of the Criminal Code.

[2] It should be noted at the outset that section 99 of the Criminal Code, entitled “Weapons Trafficking”, creates an indictable offense of manufacturing or transferring “a firearm, a prohibited weapon, a restricted weapon or prohibited device, any ammunition or any prohibited ammunition…” The provision does not distinguish between dealing in firearms and dealing in ammunition. The Crown alleges that the Defendant had arranged to purchase either or both of these forms of “weapons” from one of the co-conspirators, Guyvin July, who had in turn purchased the weapons from the other co-conspirator, Devaroo Anderson.

[3] Neither firearms nor ammunition were ever found on the Defendant or in his possession. The charge therefore focuses on the agreement entered into between the Defendant and the named co-conspirators rather than on actual trafficking or possession of illegal weapons.

[4] The Crown’s position is that the agreement that forms the essence of the conspiracy was actually made on September 19, 2011. Crown counsel explains that the date of September 21, 2011 referenced in the indictment is the date that the transaction implementing the already-formed conspiracy took place.

[5] The Crown has tendered evidence with respect to the alleged September 19th conspiracy in the form of intercepted text messages from that date. These texts are put forward as evidence of the fact of the agreement. It is, of course, the agreement itself that forms the actus reus of the conspiracy: R v Papalia; R v Cotroni, 1979 CanLII 38 (SCC), [1979] 2 SCR 256.

[6] The Crown has also tendered evidence with respect to the September 21st transaction in the form of intercepted telephone conversations and text messages from that date, as well as testimony from several police officers who were conducting surveillance of the Defendant’s alleged co-conspirators. Counsel for the Crown submits that the September 21st transaction is further evidence that the agreement between the Defendant and his co-conspirators was an “agreement of two or more to do an unlawful act”: R v O’Brien, 1954 CanLII 42 (SCC), [1954] SCR 666, at 668.

[7] In addition to evidence from September 19 and 21, 2011, the Crown has submitted intercepted communications dated September 14, 2011, the week before the alleged conspiracy. The Crown contends that this evidence shows the Defendant making arrangements for a purchase of ammunition from Mr. July, and that the intercepted cell phone calls chronicle a meeting at Yorkdale Mall where a package was delivered by Mr. July to the Defendant. There are also formal admissions under section 655 of the Criminal Code made by the Defendant, through his counsel, that relate some of the Defendant’s movements immediately after the September 14th meeting at Yorkdale.

[8] The September 14th communications and other activities of the Defendant that day do not form part of the conspiracy contained in the indictment. However, Crown counsel submits that those events are relevant in that they demonstrate the type of relationship between the Defendant and Mr. July and that they thereby provide a lens through which to view their interactions the following week.

[9] There is also evidence in the record of intercepted communications dating from earlier in September 2011, as well as from August 2011, between Mr. July and persons other than the Defendant. The Crown submits that these communications demonstrate that Mr. July was at the time a weapons trafficker engaged in transactions that went beyond the more narrow role played by the Defendant. While counsel for the Crown concedes that the Defendant played no part in the earlier transactions or communications, she submits that this is further evidence of the type of relationship that the Defendant had with Mr. July – i.e. that Mr. July was a weapons supplier and the Defendant was one of Mr. July’s several trafficking customers.

[10] Finally, the Crown has tendered evidence of intercepted communications which show Mr. Anderson to have been Mr. July’s own supplier of weapons. In addition, the Crown has put into evidence a firearms license in the name of Devaroo Anderson, pursuant to which Mr. Anderson was licensed to possess 15 different firearms.

[11] One of the police witnesses, Officer Jason Reynolds, testified that at the time of Mr. Anderson’s arrest and the execution of a search warrant at his home on October 13, 2011, Mr. Anderson could not account for any of the firearms that he was licensed to possess. It is the Crown’s theory that Mr. Anderson is the “top tier trafficker”, to use Crown counsel’s expression, and that he was selling weapons to Mr. July who, in turn, sold them to the Defendant, among others.

[12] Counsel for the defense acknowledges that the intercepted communications indicate that Mr. July was trafficking in weapons. He notes, however, that one of the police officers conducting the surveillance, Detective Glenn Asseline, testified that Mr. July is also known to traffic in drugs. Defense counsel further observes that the Defendant and Mr. July speak in rather guarded language in the intercepted communications, and it is only speculation as to what they are referring to in any given exchange. Since nothing was ever seized from the Defendant, counsel submits that there is no real proof that the conspiracy was related to weapons trafficking.

[13] While I agree with defense counsel that the transcripts of the intercepted communications are at times rather cryptic, they can be understood without much need for interpretation. I have been assisted in my understanding by the testimony of Michael Press, who the Crown presented as an expert in the technical terminology of firearms and ammunition. To the extent that the intercepted texts and telephone conversations refer to numbers, Mr. Press has explained that those are calibers of the standard types of firearms and ammunition often sold on the street, or short forms of those caliber numbers. There is no suggestion in the intercepted communications that the Defendant and Mr. July ever discussed drugs; all of the discussions appear to have been related to weapons alone.

[14] One particular exchange of text messages between the Defendant and Mr. July on Monday, September 19, 2011 appears to explicitly set up the delivery of either firearms or ammunition on Wednesday, September 21, 2011. Applying Mr. Press’ explanation of calibres and short form names to theses text messages, it is apparent that the discussion concerns a 357 magnum, a 380 auto, and a 40 Smith and Wesson, and/or the ammunition associated with those firearms. These texts are contained in a brief of transcripts of intercepted communications put into evidence by the Crown, and read as follows:

2011/09/19, 12:01:37 EDT – from Guyvin July to the Defendant: ‘Yoyo those 3 will be ready Wednesday’

2011/09/19, 12:02:00 EDT – from Guyvin July to the Defendant: ‘57. 80. And 40 right?’

2011/09/19, 12:02:24 EDT – from the Defendant to Guyvin July: ‘Ya’

[15] These communications are followed in the Crown’s brief by a series of messages and transcripts of phone calls dated September 21, 2011 between the same two individuals arranging to meet that evening. In the late afternoon of September 21st, the Defendant texted Mr. July and asked “R u ready”. Shortly thereafter, Mr. July replied: “Nah around 7-8ish the man came to drop them off earlier but I wasn’t around so I gotta wait till he doubles back”.

[16] P.C. Ruel Mosquite testified that he was part of a team conducting surveillance of Mr. July on the evening of September 21, 2011, and that at around 8:00 p.m. Mr. July’s vehicle was parked at 228 Galloway Rd. in Scarborough when a Jaguar registered to Mr. Anderson pulled up next to it. Officer Mosquite stated that he then saw Mr. July and the male driver of the Jaguar greet each other with a fist bump and retrieve a black canvass bag from the trunk of the Jaguar and place it into the trunk of Mr. July’s car. Officer Mosquite described the bag as “a canvas shopping bag” that was rectangular in shape and appeared to be “weighted down”.

[17] Detective Glenn Asseline testified that he was in charge of the surveillance team on September 21, 2011. He said that he observed the same meeting between Mr. July and Mr. Anderson that had been described by Officer Mosquite, which he said took place at 8:15 p.m. He followed Mr. July’s car, which drove off just after Mr. Anderson deposited the bag in his trunk. At 8:53 p.m. he saw Mr. July stop at a bus stop at Royal York and Eglinton Avenue and pick up a passenger who Officer Asseline did not recognized at the time. That passenger turned out to be the Defendant. The two of them continued together in Mr. July’s car until they arrived at an apartment building at 15 La Rose Avenue.

[18] The surveillance of Mr. July was picked up at 15 La Rose Avenue by D.C. James Chant. He testified that he observed Mr. July’s car in the parking area adjacent to the building. He said that he saw the Defendant get out of the front passenger seat of the parked car and walk back toward the trunk area of the car. According to Officer Chant, a moment later the Defendant returned from the back end of the car holding a black bag in his right hand.

[19] Officer Chant indicated that he had gotten out of his own car and entered the building on La Rose Avenue in order to obtain a better vantage point. He entered the building by following a resident through the parking lot door, and then continued to observe the Defendant and Mr. July through the doorway. He saw the Defendant speak with Mr. July through the window of the car, after which the Defendant got back into the car holding the bag and the two of them drove off.

[20] Officer Chant had meant to return to his vehicle in order to continue following Mr. July’s car. He had planned to see if the package was delivered to a subsequent person or location. However, it turned out that he had entered the apartment building at 15 La Rose Avenue behind a resident who had apparently opened the parking lot door with a pass key. Since Officer Chant did not have a pass key, he had inadvertently locked himself in the building and could not get back to his car before Mr. July drove away. He was therefore unable to follow the Defendant and Mr. July as planned, and could not provide any evidence as to where they went or what they did with the black bag.

[21] It is Crown counsel’s position that the bag taken from the trunk of Mr. July’s car by the Defendant was the same one that had been put there earlier by Mr. Anderson. It is defense counsel’s position that any such conclusion would be speculative, pointing out that Officer Mosquite described the bag as resembling a black recyclable shopping bag while Officer Chant had used the term “duffle bag” which connotes something larger.

[22] In addition, defense counsel stresses that in cross-examination, Officer Chant conceded that from his vantage point he could not see whether the Defendant had actually removed the bag from the trunk of Mr. July’s car. He stated that although he thought the bag was in the trunk, it was conceivable, although unlikely, that the Defendant had retrieved it from the back seat of the car, or that it had been lying on the driveway and the Defendant had picked it up from the ground behind the car.

[23] Crown counsel submits that one must consider the September 19th messages and the September 21st surveillance evidence in light of what had already transpired the previous week, on September 14th. The record contains the transcript of an intercepted text message dated September 14, 2011, in which the Defendant arranged to buy a “two box” from Mr. July for $260. Mr. Press testified that this roughly conforms with the street price of a box of bullets, although he conceded that this could vary quite widely.

[24] The September 14th communications are supplemented by a number of formal admissions which state that the Defendant was observed meeting that same day with Mr. July at Yorkdale Mall at 5:50 p.m. The Defendant further admits that on September 14th he took a black plastic bag that appeared to contain boxes from Mr. July’s car into another car and drove to a housing complex on Mabelle Avenue. The admissions then state that the police who had been following the Defendant lost contact with him when he entered the housing complex. By the time he was located by the police 10 minutes later, the Defendant was walking along Dundas Street without the black bag.

[25] The Crown submits that the court must mix the intercepted messages of September 14th together with the admissions about the Defendant’s activities on the evening of September 14th, and then add the exchange of text messages between the Defendant and Mr. July on September 19th, and top it off with the police officers’ surveillance of Mr. July, Mr. Anderson, and the Defendant on September 21st. In the Crown’s view, what emerges when one stirs the evidence together is a weapon trafficking relationship between Mr. Anderson and Mr. July that, beginning on September 14th, also included the Defendant, and which then materialized in the form of a specific agreement to traffic in weapons concluded on September 19th, which was in turn confirmed by the executing of that agreement on September 21st.

[26] In R v Carter, 1982 CanLII 35 (SCC), [1982] 1 SCR 938, the Supreme Court held that for a conspiracy charge the Crown must show that there was (a) a conspiracy, (b) to traffic in [weapons], and (c) that the Defendant was a member of that conspiracy in the sense that he shared in the common design with his co-conspirators. To put it another way, the elements of conspiracy include “an intention to agree; completion of the agreement; and a common (unlawful) design”: R v Root (2008), 2008 ONCA 869, 241 CCC (3d) 125, at para 66 (Ont CA), citing USA v Dynar, 1997 CanLII 359 (SCC), [1997] 2 SCR 462, at para 86.

[27] I have little trouble with the first two criteria as set out in Carter and as re-stated in Root. That is, I can readily conclude from the evidence that a conspiracy existed in the sense that the parties intended to and did reach an agreement, and that the agreement was for the sale and purchase of weapons.

[28] The intercepted communications demonstrate that Mr. July was, during the relevant period, generally engaged in the purchase and sale of firearms and ammunition. By way of illustration, on August 17, 2011 he offered to acquire for a customer “a little snub three-eight”, and on September 2, 2011 he called someone at his home to look for boxes marked “38”. Mr. Press opined that this refers to the caliber of firearms and ammunition. Mr. July also sought out boxes marked “S-P-L”, which Mr. Press indicated means “special” as an ammunition designation, and further asked his friend on the phone to “See if any of them say thirty-eight.” Mr. July’s September 21st rendez-vous with Mr. Anderson, who had 15 licensed firearms and could not account for any of them upon his arrest, further confirms that a weapons trafficking conspiracy was in place.

[29] The real question is whether the Defendant was a member of this conspiracy. As indicated above, the September 19th exchange of texts amounts to an agreement between the Defendant and Mr. July that may well constitute the actus reus of the Defendant’s participation in the conspiracy. However, the Crown must also show that the Defendant had the requisite mens rea. Under the circumstances, that entails establishing that the Defendant and his alleged co-conspirators shared a common design, and that each “had the intent to become a party to that common design with knowledge of its implications”: Papalia; Cotroni, at 283.

[30] The point is not that each conspirator must be aware of all of the details of the common scheme; indeed, they “need not know each other, nor need they communicate directly with one another”: Root, at para 68. However, “[t]here must be evidence beyond a reasonable doubt that the alleged conspirators acted in concert in pursuit of a common goal”: R v Henareh, 2014 ONSC 2588, at para 182. To put it another way, “[i]t is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose”: Papalia; Cotroni, at 277, quoting 11 Halsbury (4th), at 44. Here, the common design, or common unlawful purpose, is the trafficking in weapons.

[31] Defense counsel submits that while Mr. July and Mr. Anderson may have had a larger trafficking relationship, there is no evidence that the Defendant was part of an established chain of distribution. In fact, he points out that there is evidence in the intercepted communications that Mr. July met the Defendant for the first time during the September 14th encounter at Yorkdale; in one phone call that day Mr. July introduced himself to the Defendant, and in another the Defendant told Mr. July what he would be wearing at Yorkdale so that he would be able to recognize him. Likewise, the defense notes that there is no evidence of the Defendant communicating with Mr. Anderson. All of this, defense counsel submits, adds up to the Defendant’s lack of participation in the common undertaking of trafficking.

[32] I am not convinced that to be part of the conspiracy the Defendant must be shown to be part of the seller’s network or chain of distribution in any formal or pre-established way. A person could conceivably be a one-time or occasional member of a conspiracy that is larger than his own participation. However, at the very least the buyer must intend to re-sell and seller must be shown to know that buyer intends to re-sell. As the British Columbia Court of Appeal put it in R v Tran, 2014 BCCA 343, at para 70, quoting R v Styles, [1979] BCJ No 253, at para 46 (BC CA): “[i]f A sells; [sic] or agrees to sell, [weapons] to B in circumstances in which it may be reasonably inferred that he knew that B was going to re-sell some of the [weapons], at least, A and B are parties to a conspiracy to traffic in [weapons]”.

[33] In other words, a simple buy/sell agreement does not amount to a common purpose absent evidence of a shared intent to further distribute or re-sell the illicit product: R v Sheppe, 1980 CanLII 190 (SCC), [1980] 2 SCR 22, at 26. As Laskin CJC put it dissenting in Sokoloski v The Queen, 1977 CanLII 17 (SCC), [1977] 2 SCR 523, at 527, “I do not understand, however, how a seller and a buyer can be guilty of conspiracy by the one being willing to sell and the other being willing to buy…There is no agreement here between them to support a charge of conspiracy.” Or, as Martland J. put it for the majority in Sokoloski, at 535, “[t]he purchase by the appellant was not for his own consumption, but, as found by the trial judge, for the purpose of resale, i.e. trafficking.”

[34] There is no direct evidence of an intent on the Defendant’s part to re-sell or transfer what he agreed to purchase on September 19, 2011 and that he apparently received from Mr. July on September 21, 2011. Crown counsel submits that this intent can be inferred from the circumstances of the transaction. Since the evidence is circumstantial rather than direct, “before basing a verdict of guilty… [I] must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts”: R v Cooper, 1977 CanLII 11 (SCC), [1978] 1 SCR 860, at para 881.

[35] In advocating for this inference, Crown counsel points to the way in which the Defendant took possession of the goods in Mr. July’s car on September 21st. She says that the fact that the Defendant removed the bag from Mr. July’s trunk and carried it with him to the passenger seat of the car suggests that he took possession of the bag which had been deposited there by Mr. Anderson, and that he thus participated in the common design to traffic. With respect, that inference is not the only one that could reasonably be drawn.

[36] Despite certain minor discrepancies in the evidence of the various police officers, I do consider it a safe assumption that the bag that Officer Chant saw the Defendant carrying at La Rose Avenue was the same one that Officer Mosquite saw Mr. Anderson deposit in the trunk at Galloway Road, and that the bag contained at least one firearm or some ammunition. That said, all that Officer Chant could describe was the Defendant taking a black bag and sitting with it in the car as he and Mr. July drove away. Since Officer Chant managed to lock himself in the building, he was unable to follow the car and to provide any testimony as to where they went or whether the bag was delivered to anyone. For all anyone knows, the Defendant took the bag somewhere to be kept for his personal use. The bag and its contents were never found.

[37] Crown counsel further states that the September 14th transaction is indicative of a pattern of activity from which one can infer that the Defendant was intent on re-selling or transferring the weapons. Again, however, that inference is not the only one that could reasonably be drawn.

[38] On September 14th, after receiving a package from Mr. July, the Defendant was apparently followed by the police to a housing complex on Mabelle Avenue where he was promptly lost. Again, the police who had been tasked to follow him were unable to provide any evidence as to where the Defendant went or whether the bag was delivered to anyone. For all anyone knows, that bag too was placed by the Defendant somewhere to be kept for his personal use. As on September 21st, the bag and its contents were never found.

[39] Since Crown counsel puts some weight on the September 14th events in drawing inferences about the Defendant, I will pause to observe that this line of reasoning strikes me as tenuous at best. To infer an intent supposedly formed on September 19th, not from the subsequent transaction on September 21st but from a prior transaction on September 14th, treads dangerously close to propensity reasoning. The law “generally prohibits character evidence to be used as circumstantial proof of conduct, i.e., to allow an inference from the ‘similar facts’ that the accused has the propensity or disposition to do the type of acts charged and is therefore guilty of the offence”: R v Handy, 2002 SCC 56, [2002] 2 SCR 908, at para 31.

[40] While the Crown states that the September 14th transaction provides a “lens” through which to view the Defendant’s relationship with Mr. July – and thus his relationship with the conspiracy to traffic in weapons – what this really amounts to is a view that, having committed an offense one week, the Defendant can be inferred to have committed another similar one the next week. Sopinka J. stated emphatically in R v B(CR), 1990 CanLII 142 (SCC), [1990] 1 SCR 717, at 744, that “the policy of the law is wholly against this process of reasoning.” Thus, even if the evidence established that the Defendant re-sold or transferred weapons on September 14th – which it does not – that would not be a proper basis on which to conclude that he intended to do the same thing on September 19th or 21st.

[41] Finally, counsel for the Crown submits that the sheer quantity of weapons purchased by the Defendant on September 21st is indicative of an intent to re-sell them. As she put it in her final reply at trial, “multiple weapons were being distributed”. Crown counsel states that the quantity is important for drawing the inference that Mr. Anderson, Mr. July, and the Defendant all knew that the firearms were being purchased for the purpose of being re-distributed.

[42] I agree that the quantity of weapons purchased could form a basis for inferring an intent to re-sell or re-distribute them. This point was stated in the negative by the Martin JA in R v Longworth and Wolfe (1982), 1982 CanLII 2262 (ON CA), 38 OR (2d) 367, at para 48 (Ont CA), who observed that “a retailer who merely purchases from a distributor a relatively small quantity of marihuana” does not thereby become a party to a conspiracy to distribute the illegal drug. In fact, in Sokoloski, at 535, Martland J. focused on the resale value of the drugs in question – i.e. on the quantity of drugs purchased – in concluding that they could not have been acquired for personal consumption by the appellant.

[43] Counsel for the defense points out, of course, that no weapons were ever seized from the Defendant or otherwise recovered, and so no one knows the quantity that he purchased. On September 19th the Defendant and Mr. July discussed three firearms, or perhaps three types of ammunition, but the evidence is ambiguous as to what was actually agreed upon and ultimately delivered. Even the size of the bag, and by extension the quantity of its contents, is the subject of a difference of opinion by two of the police officers.

[44] As already indicated, the Crown’s theory is that Mr. Anderson was the source of the weapons and was Mr. July’s supplier. However, it turns out that of the three types of weapons discussed by Mr. July and the Defendant – 357 magnum, 380 auto, and 40 Smith and Wesson – two of them were not part of Mr. Anderson’s arsenal. Mr. Anderson’s firearms list, which has been provided by the Canadian Firearms Registry and has been made an exhibit, contains two 40 Smith and Wesson firearms but does not contain either a 357 magnum or a 380 auto.

[45] Moreover, on August 17, 2011, a month prior to the September 19th conversation between Mr. July and the Defendant, another intercepted telephone call between Mr. July and an unrelated individual named Deshawn Hibbert reveals that Mr. July agreed to acquire for Mr. Hibbert a firearm referred to as an “S and Dub” – which presumably are the initials for Smith and Wesson. It would appear that one of Mr. Anderson’s two Smith and Wesson guns had therefore already been sold, although there is no evidence as to what actually became of it.

[46] In short, there is no reliable evidence of the quantity of weapons purchased by the Defendant. Unfortunately, a mishap intervened to foil the police in their attempt to follow the Defendant and to find out what exactly he had purchased and what he intended to do with his purchase. Without that evidence, it not possible to infer with any confidence whether the Defendant was part of a common design to traffic in weapons. He might have conspired to acquire three firearms in order to re-distribute them, but then he might equally have agreed to acquire one firearm since two were unavailable, or perhaps some ammunition of the same calibre, for his personal use.

[47] It is trite law that the Crown must prove every element of the offense charged. As in all criminal cases, it must be kept in mind that, “[t]he onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt is inextricably linked to the presumption of innocence”: R v Lifchus, 1997 CanLII 319 (SCC), [1997] 3 SCR 320, at para 13. While this incorporates the notion that “a reasonable doubt is not an imaginary or frivolous doubt”, ibid., at para 39, the Crown must adduce sufficient evidence to allow me as trier of fact to come to a determination “as to exactly where the truth of the matter lay”: R v Nimchuk (1977), 1977 CanLII 1930 (ON CA), 33 CCC (2d) 209, at para 7 (Ont CA).

[48] The Defendant is evidently involved in high-risk activity; firearms and ammunition are inherently hazardous. But I do not know whether he is part of a distribution and trafficking scheme, or is an end user of the weapons. There is a reasonable doubt as to whether his activity amounts to participation in a conspiracy to traffic, and the Defendant must get the benefit of that doubt.

[49] I sincerely hope that this experience will have prompted the Defendant to turn his energies to activities that are beneficial, and less dangerous, to himself and the community around him.

[50] I find the Defendant not guilty of conspiracy to traffic in weapons.

Morgan J.

Date: January 16, 2015