COURT FILE NO.: CRIM 18/5-525
DATE: 20190426
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Kerry Hughes, for the Crown
Crown
- and -
LLAMALL WEEDEN, KADEEM
Lori Galway, for Mr Weeden
FORRESTER, SWAINE SIMPSON
James Mencel, for Mr Forrester
and DYLON McGREGOR
Arif Alibhai, for Mr Simpson
Hubert Gonzalez, for Mr McGregor
Accused
JUDGMENT
D.L. Corbett J.:
The Charges
[1] Llamall Weeden is charged with 14 offences related to:
a. Trafficking a firearm to Dylon McGregor (counts 10, 11, 12, 13 and 14);
b. Conspiring to traffic a firearm to Swaine Simpson (count 9);
c. Conspiring with Kadeem Forrester to traffic in cocaine and marijuana (counts 1, 4, 6 and 8); and
d. Possession for the purposes of trafficking and trafficking cocaine and marijuana (counts 2, 3, 5 and 7).
[2] Kadeem Forrester is charged with four counts, with conspiring with Llamall Weeden to traffic cocaine and marijuana (counts 1, 4, 6 and 8).
[3] Swaine Simpson is charged with one count, with conspiring with Llamall Weeden to traffic a firearm (count 9).
[4] Dylon McGregor is charged with three counts, one of trafficking shatter (cannabis resin) and two related to buying a gun from Llamall Weeden (counts 15, 16 and 17).
Disposition
[5] On October 5, 2018, I entered a verdict of not guilty for the four charges against Kadeem Forrester, for which I gave oral reasons which are supplemented in this judgment. On November 14, 2018, I found Llamall Weeden and Dylon McGregor guilty of the charges against them, and I found Swaine Simpson not guilty of the charge against him. I gave oral reasons at the time of judgment with these written reasons to follow.
Nature of the Crown Case
[6] These charges arise from “Project Sizzle”, a substantial investigation into gang-related drug and gun offences. Police obtained wiretap authorizations from McMahon J.[^1] and monitored various telephone numbers. The intercepts thus obtained were ruled not to have been obtained in violation of the accuseds’ rights by B. O’Marra J.[^2] There was some initial dispute about whether, in agreeing to be bound by the ruling of B. O’Marra J., the parties had agreed that the intercepts tendered in this case are authentic. This dispute was resolved after a mid-trial conference with McMahon J. on the basis of an agreed statement of fact in which the parties agreed that the information in the transcripts of intercepts is accurate.[^3]
[7] The Crown’s evidence falls into six categories:
a. Recordings and transcripts of intercepts, in two subcategories:
i. evidence of substantive offences; and
ii. evidence to identify persons speaking in intercepts.
b. Expert evidence to explain street language used in intercepts to enable the court to understand what the intercepts mean.
c. Police testimony respecting:
i. undercover surveillance;
ii. the arrest and search of McGregor and the search of his apartment; and
iii. the arrest of Weeden and search of his house.
d. Physical evidence seized during the search of McGregor and during the searches of McGregor’s apartment and Weeden’s house.
e. Simpson’s videotaped police statement.[^4]
f. Expert evidence respecting the gun seized from McGregor’s apartment and affidavit evidence of searches conducted of firearm registries.
[8] None of the accused called evidence at the trial.
Summary
[9] Kadeem Forrester: the case against Forrester turns on the intercepts.[^5] If the person identified in the intercepts as Forrester is the accused, Kadeem Forrester, then he is guilty of conspiracy to traffic in cocaine and marijuana with Weeden. Thus the key issue in Forrester’s trial is whether the Crown proved voice identification beyond a reasonable doubt.
[10] The Crown relied upon three intercepts to prove voice identification of Forrester. At the conclusion of the Crown’s case, I granted a defence motion for a directed verdict dismissing the charges against Forrester on the basis that these intercepts do not prove voice identification beyond a reasonable doubt. This decision followed a ruling that the Crown could not rely upon a fourth intercept to prove voice identification because the Crown had not complied with Criminal Code notice requirements and there would have been prejudice to the defence to admit this intercept so late in the proceedings.[^6]
[11] Swaine Simpson: the case against Simpson is based on the intercepts between Simpson and Weeden. Simpson’s voice identification is proved beyond a reasonable doubt by Simpson’s acknowledgment during his police interview that it was him speaking with Weeden.[^7]
[12] In the intercepts, Simpson is trying to buy a gun from Weeden. Weeden is obtaining the gun from a third party, Kemal Guthrie, who is buying it from a fourth unnamed party, who bought several guns in New Brunswick and brought them to Ontario to sell. I am satisfied beyond a reasonable doubt that this is the meaning of these intercepts, and thus I am satisfied that the Crown has proved the facts on which it relies for the charge against Simpson. This leaves two issues in respect to this charge: (a) did Simpson and Weeden reach an “agreement” within the meaning of the law of conspiracy; and (b) if the answer to the first question is yes, is Simpson, as the person buying the gun, guilty of conspiracy?
[13] I answer the first question in the affirmative: I am satisfied that Weeden and Simpson agreed on a transaction and only one point remained: the exact final purchase price.
[14] I answer the second question in the negative: purchasing an illegal gun – like purchasing an illegal drug – is a bilateral transaction by its nature. The vendor is trafficking in the illicit item; the buyer is acquiring it unlawfully. The Crown did not contest this point, but argued that here, by agreeing to buy the gun from Weeden, Simpson conspired with Weeden in respect to the purchase of the gun by Weeden from Kemal Guthrie. I do not accept this argument: when a drug user asks his supplier when the next shipment of drugs will arrive, he does not become a co-conspirator to the predicate drug transaction. It can be no different when the illicit item is a gun rather than drugs.
[15] Llamall Weeden: the voice identification evidence for Weeden is overwhelming: he self-identifies reliably three times and several of his conversations dovetail with events witnessed by police surveillance officers.
[16] In respect to the conversations with Simpson, I am satisfied that Weeden agreed with Kemal Guthrie to buy a gun to sell to Simpson and that these facts make out the charge against Weeden of conspiracy to traffic a firearm.
[17] In respect to the conversations with the person alleged to be Forrester, it is clear from the conversations that Weeden is conspiring with that person to traffic in cocaine and marijuana – the only issue for which there is a reasonable doubt is the identity of the person alleged to be Forrester. I granted the Crown request to amend the indictment to allege that the trafficking was between Weeden and Forrester, “and/or another unknown person”: the evidence makes out the conspiracy allegation, and proving the identity of the person with whom Weeden was trafficking is not essential to ground his culpability for the crime.
[18] The evidence against Weeden and McGregor is an overwhelming circumstantial case that Weeden and a person identified by police as McGregor agreed on the purchase and sale of a semi-automatic handgun. Police followed Weeden to McGregor’s apartment and watched Weeden enter the building and then McGregor’s apartment. They also watched him leave three hours later, drive away, return briefly, and then leave for good. Police then arrested McGregor as he was about to unlock the door to his apartment. When police searched the apartment, they found a handgun matching the description of the gun Weeden had given to McGregor in the intercepts. From the eyewitness police evidence, the intercepts of McGregor and Weeden, and the search of McGregor’s apartment, I am satisfied beyond a reasonable doubt that it was the accused, Llamall Weeden, who drove to McGregor’s apartment, that he brought with him a semi-automatic handgun, ammunition and an illegal ammunition magazine, and that he sold that gun, ammunition and magazine and left them at the apartment with McGregor.
[19] McGregor argued that I should have a reasonable doubt that Weeden sold the gun to “Josh Adams”. I address this argument shortly when I summarize my conclusions respecting McGregor. I find that it does not matter whether the buyer was McGregor or Adams so far as Weeden’s culpability is concerned: I am satisfied beyond a reasonable doubt of the charges against him in connection with the sale of the handgun to a male at McGregor’s apartment.
[20] Finally, there are other charges against Weeden for trafficking in cocaine and in marijuana. The case against Weeden on these charges consists of intercepts and police surveillance. The intercepts establish that Weeden was contacted by several drug users wanting to buy small amounts of cocaine and marijuana. The calls establish that these transactions were ongoing: these were regular customers of Weeden: he was their drug dealer, and the intercepts prove multiple transactions. The surveillance evidence reinforces this conclusion: police observed Weeden buying drugs from his supplier’s courier in a parking lot in a shopping mall. The surveillance evidence, by itself, would not establish these as drug transactions beyond a reasonable doubt. However, when these observations – of what looks like a clandestine drug purchase – are placed in the context of intercepts, I have no doubt about the nature of the events that police observed: they saw Weeden buying drugs for resale to his customers.
[21] Weeden’s case was defended diligently by senior defence counsel, who probed, very carefully, all apparent weaknesses in police evidence. I have yet to hear a credible case of this complexity that does not have some problems with inconsistencies or gaps in information. Taken altogether, the Crown case against Weeden is overwhelming: Weeden was in business as a dealer in drugs and guns. He was detected in these activities in intercepts, and then was observed completing a gun transaction with the person identified by police as McGregor. There shall be findings of guilt on all of the charges against Weeden.
[22] Dylon McGregor: as stated above, I am satisfied beyond a reasonable doubt that Weeden sold a handgun to a person identified by police as McGregor, and that this handgun was found by police in McGregor’s apartment shortly after McGregor was arrested outside the door to his apartment, his apartment keys in hand. That leaves only one remaining issue: whether I have a reasonable doubt that it was McGregor who bought and took possession of the handgun.
[23] I do not. The intercepts establish that the gun was bought by a male, which excludes McGregor’s girlfriend. The apartment is set up for one couple and their pet dog. There is one bedroom. There is male and female clothing throughout the apartment. There are pictures on the walls showing McGregor and his girlfriend, sometimes with their dog. The room in which the gun was found is set up as a small living area, and has a great deal of marijuana paraphernalia in it (explained, perhaps, because McGregor’s girlfriend is an authorized user of medical marijuana). There is no sign that this room was used as a second bedroom, or that any person other than the couple living in the apartment had access to or used the room. McGregor had keys to the apartment and fobs to enter the apartment building on his person when he was arrested. And McGregor’s personal papers – such as his driver’s license, passport, health card, and other personal documents – were found in the apartment. The only evidence for any other person being associated with the apartment is a telephone account document in the name of “Josh Adams” from the cellphone provider “Chatr”. This document was found among McGregor’s personal papers. No other evidence related to “Josh Adams” was found in the apartment.
[24] Police believe that “Josh Adams” is an alias used by McGregor. The only evidence for the existence of “Josh Adams” in this trial is the Chatr account document found in McGregor’s papers. The rest of the evidence points overwhelmingly to McGregor living with his girlfriend in the apartment to which he held keys, in which his personal effects were found, and which he was entering, alone, with his key, at the time of arrest. The Chatr account does not give rise to a reasonable doubt that Josh Adams exists, that he was at the apartment on the day in question, that he bought the gun from Weeden, or that he left the apartment without being seen by police and disappeared, leaving the gun he had just bought in a hoody hanging in the closet of a room that shows no sign of being associated to him or to anyone other than McGregor and his girlfriend.
[25] This evidence satisfies me beyond a reasonable doubt that it was McGregor who bought the gun from Weeden. It is supported by voice identification evidence. On March 2, 2016, McGregor and Weeden discuss (among other things) McGregor buying a gun from Weeden.[^8] During their conversation, Weeden tells McGregor that the following day is his birthday. McGregor goes to Weeden’s on March 3, 2016, Weeden’s birthday, and there are intercepts of McGregor confirming that he is coming to Weeden’s, and then McGregor telling Weeden he has just arrived at Weeden’s house.[^9] Immediately after this, the car associated with McGregor parks across the street from Weeden’s house, and McGregor gets out of the car and goes into Weeden’s house. Police testified to McGregor’s identification, and brief video surveillance shows McGregor crossing the street and entering Weeden’s house. The voice on the phone during the conversation is the same voice during the conversations about purchase of the gun. The video is not good enough for the court to be able to identify McGregor positively, but it certainly looks like him. The car he was driving is the car associated with McGregor (blue Honda Civic license BSPK 386). These observations corroborate the rest of the evidence tying McGregor to the phone calls with Weeden, and on the totality of the evidence I am left with no reasonable doubt on the point: it was McGregor on the phone with Weeden and who bought the gun from Weeden. I am likewise satisfied beyond a reasonable doubt that McGregor transferred shatter (cannabis resin) to Weeden, and thus is guilty of trafficking marijuana. There shall be a finding of guilt on the three charges alleged against McGregor.
Structure of these Reasons
[26] First (paras. 32-42), I review the expert evidence of Officer Greg Hoffman and Sgt. Richard Duffus, tendered to provide the court with necessary knowledge to understand the intercepts.
[27] Second (paras. 43-68), I review the voice identification evidence for Weeden, Simpson and Forrester, from which I conclude that the voice associated with Weeden is the accused, Llamall Weeden, the voice associated with Simpson is the accused, Swaine Simpson, and, as I note above, that I have a reasonable doubt that the voice associated with Forrester is the accused, Kadeem Forrester.[^10]
[28] Third (paras. 69-91), I review the evidence against Weeden respecting the drug trafficking charges, including the pertinent intercepts and the surveillance evidence of Weeden buying drugs for resale in a shopping mall parking lot.
[29] Fourth (paras. 92-109), I review the evidence against Weeden respecting the charges of conspiracy to traffic in cocaine and marijuana.
[30] Fifth (paras. 110-162), I review the evidence against Weeden and McGregor respecting the charges related to sale of a handgun by Weeden to McGregor and transfer of shatter (cannabis resin) from McGregor to Weeden.
[31] Sixth (paras. 165-173), I review the evidence related to charges of conspiracy to traffic in a firearm against Weeden and Simpson.
[32] Seventh (paras. 174-191), I address several issues raised in the trial that are not otherwise addressed in these reasons.
[33] Eighth (para. 192), I set out my verdicts.
1. Expert Evidence Respecting Drug and Gun Street Language
(a) Gun Street Language
[34] I qualified Officer Greg Hoffman as an expert on the classification, identification and functioning of firearms, ammunition and ammunition magazines and common firearm related terms.[^11] Hoffman’s qualifications were not challenged and it is apparent from his curriculum vitae and his evidence respecting his experience that he is very knowledgeable about guns and gun terminology.
[35] As I review below, the intercepts relating to guns are obviously about guns. Of particular significance here is that when Weeden described to McGregor a gun he had for sale as a “G-19”, he was referring to a Glock pistol, model 19. When Weeden told McGregor that he had one of these guns “with 10 in the handle” and another “with 15 in the handle”, he was referring to the size of ammunition magazines that fit within the handle of a G-19. The gun that was found in McGregor’s apartment was a Glock, model 19, with a magazine capable of holding 15 bullets in the handle – matching exactly the description of the gun given by Weeden to McGregor in the intercepts: this was the gun they talked about when they agreed on the sale.
[36] In the conversations with Simpson, it is likewise clear that Weeden and Simpson are talking about guns. There were several guns available, including some “pumpers” (shotguns[^12]) and two “handys” (handguns). These had been bought in New Brunswick, where they were inexpensive, by an unidentified person, who brought them to Ontario to sell. Weeden was dealing with a third person – Kemal Guthrie – not the person who brought the guns from New Brunswick – and Weeden could arrange to acquire one of the guns for Simpson. Simpson indicated a desire to purchase a “handy”, not a “pumper”, and the balance of the communications focused on Weeden arranging to get one of the “handys” to sell to Simpson.
[37] Having inspected the gun seized from McGregor’s apartment, Officer Hoffman confirmed that it is a Glock model 19, with “15 in the handle”, that is, a 15 bullet magazine inside the handle of the gun.[^13] He also testified that the gun meets the definitions in the applicable Criminal Code provisions.
(b) Drug Street Language
[38] Sgt. Richard Duffus is a 28 year veteran of the Toronto Police Service with extensive experience in drug crime enforcement. He has done undercover work himself, and now, as a sergeant, he supervises and supports undercover officers. He has been qualified previously as an expert in street level distribution of crack cocaine, crystal meth, heroin and cocaine in seven cases prior to Project “Sizzle”, and he has been qualified as an expert respecting production, distribution, pricing, quality, purities and packaging of marijuana and cocaine, and in respect to street terminology and coded or guarded language regarding illegal drugs, in several proceedings in the Ontario Court of Justice.[^14]
[39] There was one issue with Sgt. Duffus’ qualifications. “Shatter” is a relatively new way in which cannabis is processed, sold and consumed. It involves super-heating active ingredients into a toffee-like substance which, when dry, is brittle and can “shatter” into pieces. This form of cannabis was not generally part of the drug market back when Sgt. Duffus was working undercover. It has risen in popularity over the past ten years. Sgt. Duffus testified that “shatter” is generally associated with drug dispensary sales rather than street trafficking. Policing of drug dispensaries is assigned to a special unit at the Toronto Police Service and is not generally policed by Sgt. Duffus’ unit, and therefore Sgt. Duffus does not have much personal experience with shatter.
[40] The Crown tendered Sgt. Duffus as an expert in cocaine and in “marijuana in its various forms, from leaf to ‘shatter’”. After hearing Sgt. Duffus’ evidence on the voir dire, I was satisfied that he had the requisite expertise to tell the court what shatter is, how it is prepared, sold and consumed, and street language used to describe it – knowledge that Sgt. Duffus has developed as a very experienced front-line and supervisory drug enforcement officer. This is information outside the ken of the ordinary trier of fact and satisfies the “necessity” branch of the Mohan/Abbey test for admissibility.[^15] Sgt. Duffus is a properly qualified expert, as a very experienced drug enforcement officer, to provide this evidence to the court. But I would not call him an “expert” on shatter, per se (a reservation that Sgt. Duffus, himself, seemed to share).
[41] Drug culture and terminology is not an established professional discipline, like medicine, for example, where an expert can clearly delineate bounds of her expertise. A medical doctor could provide expert evidence on a broad range of medical topics, but the precise area of expertise (“general practitioner”, “emergency room physician”, “cardio-vascular surgeon”), establishes a focused expertise in a particular area. I see Sgt. Duffus as an experienced generalist in the illegal drug trade in Toronto. I qualified him as an expert respecting:
production, distribution, pricing, quality, strength and packaging of illegal drugs, specifically cocaine in its various forms from powder to crack and marijuana in its various forms, as well as street terminology and coded or guarded language relating to illegal drugs and the hierarchy and sale methodology of illegal drug dealers.[^16]
[42] Sgt. Duffus provided the court with necessary information to understand what shatter is. It turns out that the only material reference to shatter arose in the dealings between Weeden and McGregor. McGregor had some shatter to provide to Weeden. When Weeden left McGregor’s apartment, having sold McGregor the gun, Weeden forgot to take the shatter with him. There is an intercept between Weeden and McGregor shortly thereafter in which McGregor tells Weeden that he forgot his shatter, which was still in the freezer. With Sgt. Duffus’ evidence this all makes sense: shatter, a toffee-like cannabis derivative, could well be kept in the freezer. There was no other evidence to gainsay Sgt. Duffus’ testimony on this point and I accept it.
[43] In respect to other terms used during intercepts, Sgt. Duffus prepared a helpful “Drug Lexicon”.[^17] Sgt. Duffus prepared this lexicon with this case in mind, although the document is styled more generically, and I understand that he intends to maintain this lexicon, and perhaps update it periodically, for use in future cases. I accept the “ Drug Lexicon” as setting out Sgt. Duffus’ opinion about drug language and guarded or coded language used in the Toronto drug trade at the times material to this case.
[44] Sgt. Duffus was cross-examined about a drug lexicon said to be used by the US Drug Enforcement Agency and a glossary said to be used in the United Kingdom. Sgt. Duffus was not familiar with these documents and did not adopt them as authoritative for current drug terminology in the Greater Toronto Area. There was no other evidence about these references and I place no weight upon them: “street language” is inherently context-specific as to time and place, and the only evidence before me on this issue is the evidence of Sgt. Duffus. The DEA and UK documents are not in evidence, not having been adopted by Sgt. Duffus or attested to by another witness.[^18]
Voice Identification Evidence[^19]
(a) Llamall Weeden[^20]
[45] Weeden was arrested at home, at 72 Delport Close, Mississauga, at about 5 am on June 2, 2016. Keys for the car associated with Weeden, together with house keys for 72 Delport Close, were located on Weeden’s person at the time of arrest. When 72 Delport Close was searched, five cellphones were seized. One of them, labelled cellphone “D”, was tested. I accept the evidence of Officer Desjardins (who testified by video link from Ottawa) that cellphone D contained a SIM card associated with the telephone number 416-272-6674, one of the numbers associated with Weeden in the intercepts.[^21] When the premises were searched, police found a rental application for the premises identifying Rikesha Lawrence as the tenant and Weeden as an occupant, together with an Equifax document respecting Weeden and Ms Lawrence, found together in the washroom attached to the master bedroom.[^22] Weeden and Ms Lawrence apparently shared a bedroom in the house, where they lived together with their three children. The car associated with Weeden was parked inside the attached garage. In the car was found Weeden’s personal identification including his driver’s license, health card, social insurance card, and four bank cards, all together in a wallet in the centre console beside the driver’s seat in the car.[^23] I am satisfied that Weeden lived at 72 Delport Close. I am satisfied that the phone labelled D and found in the house was his phone, used by him in many of the intercepts.
[46] Weeden self-identifies in several calls:
a. ordering take-out food for delivery, in which he identifies himself as Llamall Weeden and gives his correct address and phone number;
b. calling the Peel Secondary School Board, asking for information about education programs, in which he identifies himself as “Llamall Weeden” and gives his telephone number; and
c. calling the Peel Regional Police to speak with a police officer about a car accident in which he had been involved. Weeden gives his name and telephone number.[^24]
These are calls to unrelated third parties where the caller would use his correct name and address.[^25] Weeden did not testify and there was no other evidence to cast doubt on the authenticity of the self-identification in these calls.
[47] In addition, Weeden is intercepted saying that his birthday is on March 3rd.[^26] March 3rd is, in fact, Weeden’s birthday.[^27]
[48] In light of all this evidence, identification of Weeden during police surveillance during events explained by intercepts, and there being no evidence to the contrary, I am satisfied beyond a reasonable doubt that it is Weeden’s voice on the intercepts attributed to him.
(b) Swaine Simpson
[49] Simpson identifies his own voice on intercepts played for him during his police interview.[^28] Counsel argued that I should interpret his answers – frequently “mm-hmm” as acknowledgments of what was said by interviewing officers, and not as agreement with what was said. There are times in the interview when Simpson uses “mm-hmm” in this way, and others where he is indicating his agreement with what was said: the difference is evident in the tone of voice used and the context.
[50] I have watched the interview three times and it is clear to me that Simpson acknowledges that the person on the phone is him. He also acknowledges that the other voice belongs to Weeden, but as the Crown agreed during oral argument, that evidence is not admissible against Weeden. But it is admissible against Simpson, and I know the other voice to be Llamall Weeden, for the reasons I have given. Simpson purports not to recall the telephone conversations and hypothesizes at one point that the discussion may have been about prostitution rather than guns (in reference to a “handy”). That explanation made no sense – given that the price being discussed was between $2000 and $3500. Simpson frequently “issued no comment” when asked what the conversation was about, and never agreed that it was about guns, but in the process of issuing those denials, he clearly acknowledged that it was his voice on the calls.
Kadeem Forrester
(i) The Evidence Against Forrester
[51] Three calls were tendered by the Crown to prove identification of Forrester.[^29] In these calls, the speaker answers to the name “Kadeem” and to the nickname “FK”.
[52] The Crown argued that one of the persons to whom the speaker answered to the name of “Kadeem” was his own mother. I reject that argument. “Kadeem” calls the person “Mumsy”. But so does Weeden when he speaks to her. It is not suggested that Weeden and Forrester have the same mother. It is clear from the calls involving “Mumsy” that she is a drug dealer, higher on the distribution ladder than Weeden, and either associated in some way with the person who answers to “Kadeem” or higher than that person in the distribution hierarchy. It seems clear that “Mumsy” is a street name for this woman and that she is not “Kadeem’s” mother.
[53] The Crown argued that the name “Kadeem” and the nickname “FK” (Forrester’s initials in reverse), are distinctive enough that I can identify the voice as belonging to Forrester. I do not agree. While “Kadeem” may not be the most common of first names, certainly it is not unique. “FK” may be initials in reverse – or it may not be. The two pieces of identification, taken together, are stronger than just the self-identification by the name “Kadeem”. But this is the linchpin of the Crown’s case against Forrester and it must be proved beyond a reasonable doubt. It falls far short of that. The voice may be someone actually called Kadeem. It may not be. It may be someone with initials “FK” with the “K” referencing “Kadeem”. It may not be. I cannot be satisfied beyond a reasonable doubt, solely on the basis of this evidence, that the voice belongs to the accused, Kadeem Forrester.
(ii) The Fourth Intercept
[54] The Crown sought to rely on a fourth intercept to identify Forrester. The defence objected because it had not been given notice of the Crown’s intention to rely upon this intercept until the second week of trial, in breach of s.189(5) of the Criminal Code of Canada.
[55] Subsection 189(5) provides:
The contents of a private communication that is obtained from an interception of the private communication pursuant to… an authorization given under… this Part shall not be received in evidence unless the party intending to adduce it has given to the accused reasonable notice of the intention together with
(a) a transcript of the private communication, where it will be adduced in the form of a recording…; and
(b) a statement respecting the time, place and date of the private communication and the parties thereto, if known.
[56] As held by the Ontario Court of Appeal:
What is “reasonable notice”, of course, depends on the circumstances. The language of s. 178.16(4)[^30] is forward-looking – “notice of his intention” – and the clear purpose of the provision is to give the party against whom the evidence of intercepts is to be adduced reasonable time to prepare his case for trial with regard to such evidence.[^31]
[57] The Crown relied on its Stinchcombe production of Project Sizzle intercepts to establish that it had met its disclosure obligations.[^32] However this disclosure was not in accordance with s.189(5). Many thousands of intercepts were provided to the defence electronically. The impugned intercept was among them. However, it would not be reasonable to expect the defence to vet all of the intercepts, and even if counsel had done so, it would not be reasonable to expect him to find this particular intercept and to recognize it as involving the case against Forrester: it was not identified in the indexes as attributed to Forrester[^33] and the transcript and particulars required by subparagraphs 189(5)(a) and (b) were not provided.
[58] Separate notices pursuant to s.189(5) were provided to the defence for the three calls put into evidence by the Crown (and for all the intercepts put into evidence against the accuseds), but the impugned intercept was not included in these notices. From these notices, the defence would reasonably infer that these intercepts for which notice was given were the only ones upon which the Crown would rely at trial.
[59] I am satisfied that this was just a slip by the Crown. The goal of a trial, of course, is to get to the truth of the case, and not to decide the case because of a minor slip. Surveillance and intercept cases often involve – as this one did – a substantial amount of evidence. This was one short intercept among thousands, and it is easy to understand how it was missed. The cases frequently note the “unlimited resources of the state” arrayed against the individual – but when assessing a minor oversight by the Crown, it should also not be forgotten that individual Crown counsel and individual officers-in-charge do not, themselves, have infinite resources, energy and time, and slips are bound to happen sometimes.
[60] The trial started on September 17, 2018. Notice was given to the defence by email on September 26, 2018. A summary of the call was provided on September 30, 2018. A transcript was provided on Friday, October 2, 2018.[^34] The Crown’s application to adduce the impugned intercept was dismissed on October 5, 2018, the start of the fourth week of this four-week trial.
[61] The case law shows that there is no one moment beyond which non-compliance with s. 189(5) is fatal. When disclosure is made after the preliminary inquiry, the Crown is generally permitted to lead the evidence so long as there is some reasonable opportunity for the defence to deal with it.[^35] Even commencement of trial is not, by itself, a bar to admissibility.[^36]
[62] For example, in one case the trial judge, Ewaschuk J., ruled that the notice had to be given prior to a voir dire at which that evidence was to be tendered, but that this could be done after the trial had commenced:
In a previous ruling in this case, I had decided that a wiretap notice under… [s.189(5)] must be reasonable from the date of service to the start of the Parson’s voir dire…. In the circumstances, the notice is unquestionably reasonable in relation to the start of the voir dire and all other statutory preconditions have been met. The question, however, remains whether… [s.189(5)] notice may be legally served after a trial has commenced.[^37]
Justice Ewaschuk then noted that in cases based primarily on wiretap evidence, late notice may be unreasonable:
In certain cases where the Crown case is based almost entirely on intercepted private communications, it may indeed be unreasonable to serve the notice after the start of trial. To do so may constitute a denial of the accused’s right to full answer and defence. In particular, the accused’s line of cross-examination may have to be changed by late revelation of the contents of the intercepted private communication.[^38]
Ewaschuk J. went on to decide the point on the basis that the accused was not prejudiced by the late notice, given what had taken place, and the fact that it would be a period of months before the accused was called upon to present a defence.[^39]
[63] The Alberta Court of Appeal has upheld a trial ruling permitting notice after commencement of trial. In so doing, the Court of Appeal stated:
It is a serious matter for the Crown to give late notice, after the trial process has begun, of its intention to rely upon intercepts, or indeed to make any form of disclosure after a trial has begun. The judge was alive to that, but pointed to the special circumstances of this case. First, the evidence in question was not of a sort that would affect any decision about a plea. Second, although the trial might have begun in some technical sense, no evidence had been called before the jury and indeed none was scheduled until several months hence. The notice was given at a time when the Court was in the midst of the many “pre-trial” applications, and the accused had yet to be put in charge of the jury.[^40]
[64] In this case, the issue comes down to prejudice to the accused. Counsel for Forrester has persuaded me that he cannot respond appropriately to this evidence mid-trial without a lengthy adjournment (which would not have been practical or fair). First, he argued that his client was relying on the identification case disclosed by the Crown. That case, in his estimation, is very weak, and led him to take a “quiet” approach to other issues in the case. His primary line of defence is that the Crown has not proved it was his client on the impugned calls, and the entire defence strategy was organized around this theory of the case. Second, he argued that he would need to re-review the complete package of intercepts to identify additional items he would require disclosed in order to establish issues respecting the impugned intercept.
[65] Since I did not have all this evidence in front of me, my assessment of this argument was based on a sketch of this disclosure – there were multiple calls said to have been made from the same phone in the hours before and after the impugned intercept. If required, the defence would seek to investigate to try to establish that the phone used to make those calls was not at the location where Forrester is known to have been at the time of the impugned intercept.
[66] The work required to re-cast Forrester’s defence, mid-trial, could transform his defence. It is reasonable to expect that considerable preparation could be needed to develop evidence about the location of the cellphone at the time of the various calls. The defence should not be required to rebuild its core defence mid-trial, all the more so after it had completed its material cross examinations. I am satisfied that there would have been real prejudice to Forrester’s defence if he had been required to do so, and that this prejudice could not be remedied by an adjournment.[^41]
[67] I concluded that there was material non-compliance with s.189(5) of the Criminal Code, that the Crown’s oversight could not be rectified without prejudice to the defence, that this prejudice could not be overcome by an adjournment, and thus that the impugned intercept should not be admitted into evidence.
Conclusion
[68] The Crown cited R. v. Chan[^42] for the proposition that voice identification need only be proved on a balance of probabilities. With respect, the reference to Chan is misplaced. In Chan the voice identification evidence was only part of the evidence tending to establish the identity of the accused. As the trial judge noted in that case, the Crown does not have to prove each piece of evidence beyond a reasonable doubt. Indeed, this very principle supports the Crown case for identifying McGregor, which is not established on voice identification evidence alone, but which is established on the totality of evidence, as explained below. In respect to Forrester, where the only evidence to establish identity is voice identification evidence, it must be proved beyond a reasonable doubt to satisfy the Crown’s burden to prove its case.
[69] On the basis of the three intercepts in evidence to identify Forrester’s voice, I was not satisfied beyond a reasonable doubt that the voice alleged to be Forrester is that of Kadeem Forrester. Without voice identification, the other intercepts attributed to Forrester do not weigh against him and there is no evidence against him. For these reasons, I granted Forrester’s request for a directed verdict of not guilty on all charges against him at the close of the Crown’s case.
(c) Text Messages
[70] The intercepts include text messages which cannot be verified by voice identification. These messages were sent and/or received on phones with numbers associated with the accuseds or persons with whom they were communicating. There was no evidence that the text messages were sent by persons other than persons intercepted using the same phone numbers for voice communications and the text messages fit within conversational narratives that include identified voice conversations. I attribute the text messages to the persons for whom phone numbers are established by voice identification.
2. Drug Trafficking Charges Against Weeden (Counts 2, 3, 5 and 7)
[71] The case against Weeden for drug trafficking is based on intercepts between Weeden and four of his customers and evidence (both intercepts and surveillance) of Weeden buying drugs to sell to his customers. This evidence shows that Weeden was trafficking in drugs on an ongoing basis. This section of these reasons is structured as follows:
(a) Substance of the intercepts.
(b) Surveillance of Weeden buying drugs from his supplier.
(c) Evidence identifying the kind of drugs sold by Weeden.
(a) The substance of the intercepts
[72] The intercepts include the following communications[^43] between Weeden and his customers:
a. Rob Markotic[^44] (once on Feb 23, 2016[^45], 7 times on March 17, 2016[^46], 7 times on March 18, 2016[^47], 3 times on March 24, 2016[^48], once on March 25, 2016[^49], two times on March 31, 2016[^50], three times on April 1, 2016[^51], once on Apr. 7, 2016[^52], 3 times on Apr. 8, 2016[^53], once on Apr. 21, 2016[^54]).
b. Vjekoslav Luburic (once on Feb. 25, 2016[^55], once on March 30, 2016[^56], six times on April 1, 2016[^57], once on Apr. 2, 2016[^58]).
c. Randolph David (once on Feb. 22, 2016[^59]).
d. Unknown male (once on May 1, 2016[^60], 2 times on May 2, 2016[^61], once on May 3, 2016[^62]).
[73] As described below, Weeden bought cocaine for resale on February 22, 2016, at about 11:30 am. He speaks with Randolph David immediately after this purchase, at 11:40 am. He tells David that “if he gets a two-as” he could “deal with him for fourteen”. If he is “getting a one-as”, then “he has to deal with him fifteen”. By this, Weeden was saying that if David buys two ounces, the price will be $1400 per ounce; if David buys one ounce, the price will be $1500. This fits with the price Weeden paid for the cocaine: $1250 per ounce. David is unhappy with the price, but Weeden tells him not to worry, the price will come down “with time”, meaning that he expects to be able to charge less in future. Weeden says to “holler at him” whenever he is “ready”.[^63]
[74] On March 17th, Weeden tells Markotic that he has a “ball for him” (3.5 grams or 1/8 ounce of cocaine). Weeden delivers the drugs to Markotic. On March 18, Markotic asks Weeden if he “has a B”. Weeden says yes and they make arrangements to meet. On March 24, Markotic asks Weeden, “you got a ball for me?” On March 25, Markotic asks for “a half B”. On March 31, Markotic calls and asks Weeden “if he has a B for him right now.” Weeden says yes and arranges to deliver the drugs. Again on April 1, Markotic arranges to buy “half a B”. This time, Markotic shorts Weeden $10 on the price (he pays $130 instead of $140), and Weeden returns for the missing $10. On April 8th, Markotic buys another “half B”. On April 21, Markotic calls again to buy “a B”. Based on the drugs Weeden bought for resale (described below), the language used to describe the drugs in these phone calls, and the prices charged, I am satisfied that the drug in question was cocaine.
[75] On March 30, Luburic is looking for “anything good”. He says that “last time it was garbage” (he wants to buy good cocaine; the last purchase was cut too much). Weeden says he has “something better, something new.” Luburic asks if it “is in one piece”. Weeden responds that it is “nice one chunk”. Luburic wants uncut cocaine, not powdered cocaine, to be sure it is good and not “garbage”. Luburic says he wants a “fat 6” because “that’s all I got.” On April 1st Luburic wants to buy another “fat 6”. The delivery apparently does not happen that night because, Weeden says, he “was too fucked up last night.” On April 2nd Luburic reiterates his request to buy “a fat 6”. I am satisfied that a “fat 6” refers to .6 gram of cocaine, and that Luburic is buying small personal use amounts of cocaine from Weeden.
[76] The conversations with the unknown male on May 1 to 3 concern marijuana trafficking. Weeden is saying that his “papers are tight” (his money is tight), and so he needs the male to pay him for his “loud” (pay for marijuana Weeden sold to him). Weeden says that people “have three racks” for him “out there”, meaning that his customers owe him $3,000, and Weeden “kinda needs that to play around with right now”: he needs to be paid so that he can buy more drugs. Someone named “Miles” owes Weeden $1500, and he needs to be paid so he can buy “better loud” (higher quality marijuana). The male says that he has $1500 for Weeden, which he owes him “for the Q-P” (the quarter-pound). I am satisfied by the language used in these calls and the prices involved that the unknown male bought a quarter-pound of marijuana from Weeden, still owed him the money for it, and arranged to pay this debt.
[77] On the basis of this evidence, in the context of the other intercepts establishing Weeden arranging to buy cocaine and marijuana, and in the absence of any evidence to the contrary of the nature of the drugs sold, I am satisfied beyond a reasonable doubt that Weeden sold marijuana and cocaine to the persons identified on the intercepts as Markotic, Luburic, David and the unknown male.
(b) Intercepts and surveillance of Weeden buying drugs from a supplier
[78] I conclude that on February 21, 2016, Weeden agreed with a drug supplier, identified by police as Yvonne Rose-Hall[^64] but called “Mumsy” or “Duke” or “Dukesy” by Weeden, to purchase a quantity of cocaine for re-sale. This agreement led to a purchase transaction between Weeden and a female representative of “Mumsy” in a parking lot near the Walmart at the Square One Shopping Centre on Feb. 22, 2016.
[79] This finding is based on intercepts of Weeden’s communications and direct surveillance by undercover officers. I set out this evidence in chronological order, which makes it clear that the intercepts relate to a drug transaction and police observations are consistent with that transaction. Based on the intercepts and Weeden’s use of language in the other intercepts, I am satisfied beyond a reasonable doubt that the subject-matter of the transaction was cocaine.
[80] On February 19, 2016, Weeden calls Mumsy. Mumsy does not answer and Weeden speaks to an “unknown female”. He says that he has been trying to get in touch with Mumsy and with FK but that their numbers have been “down”. He says he will be “ready” the next morning and that he will “link” (try to get in touch with Mumsy) then.[^65]
[81] On February 21, 2016, Mumsy calls Weeden. He tells her that he wants “six”. Mumsy says that she “has four right now”. He says that he will take the four. He will call her in the morning, after he drops his child off, between 10 am and 12 noon. She says that is fine. I am satisfied that “six” and “four” refer to 6 ounces and 4 ounces of cocaine.[^66] Weeden and Mumsy speak again shortly thereafter. Mumsy tells Weeden “it is 12 dollars and 50 cents”. I am satisfied that she is telling him that she will charge him $1250 per ounce of cocaine – a price in the high end of the range for cocaine at the multi-ounce level. Weeden complains about the price. They discuss some communications problems they have had.[^67]
[82] On February 22, 2016, at 10:02 am, Weeden receives a call from the same unidentified female he spoke to on February 19th. She is calling from the same telephone number that Weeden called on February 19th, and from which Mumsy called Weeden twice on February 21st. The female asks Weeden “if he still wants to do that” for 10:30 am. By this she is asking if Weeden wishes to proceed with the drug transaction at 10:30 am. Weeden asks if she can meet him in the next 30-45 minutes around Square One. She agrees.[^68]
[83] On February 22, 2016, at 10:55 am, the same female calls Weeden, from the same phone number, and asks Weeden “if he is there”. He says no, that he “just ran into the bank quick” but that he is right across the street. She says that she is 10 minutes away “so that’s fine”.[^69] At 11:23 am, the same unknown female calls Weeden and asks if he is finished. He says that he is “here at the Walmart”. She says that she will be there “in a second”.[^70] At 11:27 am, the same unknown female calls Weeden and asks “where here are you?” He says he is “in the third row”. They discuss further and then Weeden says that “he is right beside the carts” near the Walmart. She asks him if he “is in a Camry”. He says yes; she says that she is right beside him.[^71]
[84] Surveillance was conducted of Weeden on February 22, 2016, by a team consisting of Detective Brent Johnston, Detective Constable (“D.C.”) Younger, D.C. Ross, D.C. Holland and D.C. Lourenco. The evidence of the surveillance team was consistent in all material respects. The team was provided with a “person of interest” package that included Llamall Weeden’s name, an associated address (72 Delport Close, Brampton), a description and license plate for an associated car (a grey-coloured, 4-door, 2007 Toyota Camry, Ontario license BRKR 094), and information that it was suspected that he was about to participate in a drug transaction in the area of the Square One shopping mall.
[85] The team drove in separate cars towards Square One, arriving around 10:40 am. At 10:55 am, they received information from the “wire room”[^72] that Weeden was in the area of Dundas and Hurontario Streets. Det. Johnston sought to find Weeden’s vehicle and spotted it at 11:05 am on Hurontario Street. Det. Johnston then followed the car to the parking area near the Walmart store at Square One. The vehicle parked in one spot briefly, and then moved to near some shopping carts, where it backed into a parking spot at 11:09 am. No one got out of the vehicle, and the vehicle remained in this spot for 16 minutes, until 11:25 am. At that time the car moved to another parking spot, beside a shopping cart return area near the Walmart.
[86] Shortly afterwards, at 11:26 am, a grey Ford Focus bearing Ontario license BSZT 334, occupied by an unknown female driver (wearing sunglasses and a dark grey hooded sweater), parked on the other side of the shopping cart return. At 11:28 am, Weeden got out of his car, walked over to the Ford Focus (a distance of 30-40 feet), and entered through the front passenger-side door of the Focus. He was empty-handed when he went over to the Focus, and he appeared to be “scanning” the parking lot (ie looking around) as he walked to the Focus.
[87] At 11:31 am, Weeden left the Ford Focus. He was carrying a brown shopping bag. As he was getting into the Camry, the Ford Focus pulled out of its parking spot and drove towards the exit onto Hurontario Street. Weeden pulled out of his parking spot and drove out the same exit. The surveillance team followed the cars out of the parking lot. They were instructed to follow the Ford Focus; no further observations are made of Weeden on this day.[^73] The team followed the Focus and its female driver for several hours, but did not stop the car or speak to the driver. The officers’ account of their observations is supported by a brief video showing Weeden leaving the Focus and entering his Camry carrying a brown shopping bag.[^74]
[88] I accept the evidence of the surveillance officers as to what they saw. It matches up with the intercepts summarized above. The officers saw what looked like a drug transaction; the intercepts make it clear that this is, in fact, what happened.
[89] Later that same day, February 22, 2016, 3:16 pm, Weeden calls FK. They both know Mumsy, and FK knows more about Mumsy and her operation than does Weeden. Weeden complains that Mumsy “switched up” and “got him”, by which he means that his purchase price was raised at the last minute. FK sympathizes. Weeden explains that he has regular rates for his customers – ranging between $1300 and $1500 an ounce, and he cannot just tell them that all of a sudden the price is higher. FK tells Weeden that Mumsy had left town “she went to handle more business and to come back up here” by which is meant that she has gone down south to arrange for more drugs. FK says that it must have been “Mumsy’s workers” who jumped the price at the last minute: “that is how they are, they are greedy.” FK assures Weeden that when Mumsy returns “its regular price for you”.[^75]
[90] On February 22, 2016, 6:44 pm, FK called Weeden. FK had spoken with Mumsy’s people. Mumsy’s courier “was saying that when she left there [Square One], there were people trailing her.” As described above, the courier was right: the surveillance team did follow her after she left Square One. FK tells Weeden, “you’re hot you know”, meaning that police had been trailing Weeden, and that is how police came to follow the courier. Weeden responds “because of me or because of her?” suggesting that he questioned that he was the person originally of interest to police. FK replied that the courier had said “as soon as he hopped in her vehicle, boom, trailing started.” Again, the courier’s observation was correct; police surveillance was on to her immediately after she dealt with Weeden. FK and Weeden then discuss police interest in their activities, and Weeden complained that the courier took so long to count the money: “shorty took forever to count the skrillas… We don’t really do business like that; it’s just pop and go… its two cars running… its hot fam.” By this Weeden meant that he is used to doing business without pausing to count money – the cars are still running, the exchange is fast, because the situation is risky. FK responded that he “is going to let them know not to count anything”. Weeden asked if police had said anything to the courier, to which FK responded “no, they just trailed her.” This corresponds to police evidence of what they did: they surveilled the courier for several hours but did not stop her or speak to her. Weeden asked if one of the surveillance vehicles was a pick-up truck and FK said that he would ask and get back to him.[^76]
[91] On February 22, 2016, at 6:53 pm, FK texted Weeden “Pick-up Honda’s and shit”, by which he was relaying what he had been told by the courier about the surveillance vehicles.[^77] Weeden texted back at 7:03 pm saying “that’s crazy” and that “ima keep my eyes open”, that is, he would be on the lookout for police surveillance in future.[^78]
(c) Evidence identifying the drugs sold by Weeden
[92] As set out above, I am satisfied that Weeden was selling cocaine and marijuana to his customers. The intercepts on February 22, 2016 satisfy me beyond a reasonable doubt that the drugs he purchased that day were cocaine. This is further supported by Weeden’s discussions with FK about quality problems with the drugs: in future he wants the drugs “chunky” rather than in powdered form, so he can have some confidence that the drugs have not been cut so much that he is not getting what he pays for.
[93] The defence suggested during cross examination that there are other drugs that sell for comparable prices for comparable quantities to the transactions alleged to be cocaine, and that there may be ambiguities in the street language used. I do not accept these arguments. First, there is no evidence that these other drugs are referred to using the same street language – just suggestions put to Sgt. Duffus, which he rejected. The questions are not evidence; Sgt. Duffus’ answers are the evidence, and the defence did not tender expert evidence to contradict Sgt. Duffus’ testimony on these points. Second, the discussions about drug quality and the preference for “chunky” rather than powdered drugs are consistent with cocaine. There is no evidence that it is consistent with any other street drugs sold in the Toronto area at this time. No challenge was made to the identification of marijuana as a drug bought and sold by Weeden. I am satisfied that the Crown has established beyond a reasonable doubt that it was cocaine and marijuana in which Weeden was trading.
3. Charges of Conspiracy to Traffic in Drugs Against Weeden (Counts 1, 4, 6 and 8)
[94] These charges relate to the conversations between Weeden and the person alleged to be Kadeem Forrester. For the reasons given above, I am not satisfied beyond a reasonable doubt that it was Forrester to whom Weeden was speaking, but I am satisfied that Weeden was speaking in these calls.
[95] This portion of these reasons is organized as follows:
(a) The law of conspiracy.
(b) The substance of the intercepts.
(c) Whether counts 1, 4, 6 and 8 of the indictment should be amended to allege a conspiracy between Weeden and “Kadeem Forrester and/or another unknown person”.
a. The law of conspiracy
[96] For there to be a conspiracy, there must be:
a. an intention to agree between two or more persons;
b. completion of the agreement; and
c. a common unlawful design and a common intention to put this design into effect.[^79]
To quote the Ontario Court of Appeal:
Conspiracy, like attempt, is a crime of intention. Its factual element or actus reus is established upon proof of the agreement to commit the predicate offence….[^80]
[97] The agreement need not be sufficient in contract law in the sense that all details of its terms need not have been agreed. A price disagreement, for example, is not fatal to finding a conspiracy so long as it is established that the accused agreed to the common unlawful design.[^81]
b. The substance of the intercepts
[98] I have already reviewed the evidence that leads me to conclude that Weeden agreed to buy cocaine from Mumsy on February 21, 2016, and completed that transaction with an unknown female in the Square One parking lot on February 22, 2016. I have already explained why I am satisfied that the drugs purchased were cocaine.
[99] I have also reviewed the evidence of Weeden speaking with FK immediately after the transaction at Square One. Weeden complained that the price had been raised on him at the last minute. FK then got back to Weeden to say that there had been police surveillance of the courier that started immediately after the Square One transaction. The courier and Mumsy’s people believed that Weeden was “hot” and that he had led police to them.
[100] It is clear from all these conversations that FK has a closer relationship to Mumsy and her people than did Weeden. FK provided Weeden with information about Mumsy’s activities, Mumsy’s “greedy people”, and price arrangements for Weeden after Mumsy returned from a “business trip”. And FK was the go-between to exchange information about the police surveillance that happened after the Square One transaction. I bear these findings in mind when considering the other communications intercepted between Weeden and FK.
[101] In conversations intercepted in March 2016, Weeden and FK discuss drug transactions between them. It starts with a call from FK to Weeden on March 2, 2016. FK says that Weeden “sent him the wrong number on the gram”, meaning that he had paid the wrong amount.[^82] Weeden apologizes and asks where Mumsy is, complaining that he had been trying to reach her for a week. Weeden complains that “they (Mumsy and her people) were short on all of the last ones: almost half a B on each of them” and he was overcharged “a fifth”. By this, Weeden means he was charged $50 too much per ounce (a repetition of a prior complaint about this transaction), and each ounce was short “half an 8 ball” or about 1.75 grams. Weeden is looking to buy more cocaine but he does not want to be shortchanged and overcharged; FK says that he will intercede.[^83]
[102] On March 12, 2016, Weeden calls FK, who apologizes about having been slow responding to him. FK says “for sure tomorrow”. Weeden responds, “please man”. It is clear that Weeden has been trying to buy more drugs for a while and that he needs them. They talk more. FK says that he talked to “him” and “he could knock five bills off”. Weeden asks if it is off each one or the total. FK says off the total, so “basically 250 off each one”.[^84] They are negotiating price here.
[103] Soon after they finish this conversation, Weeden calls FK back. He tells FK “that he has been trying to call Mumsy for three weeks… that is ridiculous.” FK replies that Mumsy is “still in her yard (back in Jamaica) because she has her business down there too”. FK says all will be well when Mumsy gets back. Weeden says that he “keeps trying to go for the nisky” from Mumsy, and FK tells him to go through him to get it. A “nisky” is a “nine-pack” of cocaine, or a quarter of a kilo. Weeden then complains that the quality of the cocaine is inconsistent: “it will be bless and then it won’t be bless”. FK says that’s why he is suggesting Weeden “buy something large”. FK again says to wait for Mumsy, that she will deal. Weeden then suggests that when they call each other they will “chop it up” (pay together for a larger amount than one of them could buy, and then divide it).[^85]
[104] On April 29, 2016, FK calls Weeden and tells him that he could get him some “loud” (marijuana). Weeden asks how much “for the full thing – the peezy” (pound). FK says “thirty-four, thirty-five.” Weeden wants to pay less; he suggests “twenty-eight at the most”. FK says he will call his supplier and get back to Weeden.[^86] Shortly after, FK calls Weeden again. He apologizes “for the dumb-ass price” he had offered. He could give it to Weeden for “twenty-eight”. Weeden wants to see the drugs. He doesn’t usually pay that much – that is usually what he is trying to sell it for. Weeden says that he “makes three bills” in a day or two with “young ones moving Q-P’s [quarter-pounds].” Weeden says that he sells the “Q-P’s” for seven hundred. FK replies that he should be selling them for “eight or eight-five”. Weeden says no, that is what his buyers can re-sell the drugs for at the “half-o” level. The two are dickering over price. Weeden wants to buy for twenty-three or twenty-four. He will sell for twenty-eight (4 x quarter pound), and his purchasers will break the drug up and sell it for $800 - $850 by the half-ounce. They arrange for Weeden to come to see the drugs in about an hour and a half.
[105] On May 13, 2016, Weeden calls FK and asks him what he is “dealing with”. FK says that he has some “wizzies still”. Weeden asks if it is the “same number”. FK asks “what number he had given” and says that he “would do it twelve-five”. Weeden then asks about a “four-as”. FK asks him if “he want him to leave it aside”. Weeden says yes – he will come that night or the next day “100%”. FK says that “he is just going to leave that aside and call other people and say F—off.” This is a price negotiation for the purchase of cocaine, concluding with Weeden saying he will definitely come to buy, and FK saying that he will set some aside for Weeden and tell other possible customers that the cocaine has been sold to someone else.[^87]
[106] May 21, 2016, 4:07 pm: FK calls Weeden and asks if Weeden “is just getting the three”. Weeden says that he is. They then discuss arrangements to meet up without coming to a clear understanding.[^88] At 4:09 pm Weeden texts that “by 6 pm im flying to you”.[^89] FK acknowledges back at 4:10 pm.[^90] At 7:13 pm Weeden calls to say he “is near” and FK gives him driving directions.[^91]
[107] On May 22, 2016, Weeden calls FK. They discuss the drugs Weeden had bought the day before. Weeden says it is “on point” but “it’s not a gainer”. They go on to discuss Weeden’s concern. Weeden says, in effect, the cocaine had been cut to the point that there was little profit in it for Weeden. FK blames his supplier and Weeden responds “you guys ought to run some checks going on over there”, meaning that if the problem is with the supplier, then FK ought to be checking out the quality of the drugs before passing them on. FK says that the “next one is going to be better than this one – 100%” and offers that next time “before you even buy it you cook it in front of me – if you don’t like it, you don’t like it….”[^92]
[108] On May 24, 2016, Weeden calls FK. He says that “the truth is” that “he is losing”. He means that the cocaine had been cut so much that Weeden will lose money when he re-sells it: he “whipped up 10 grizzlies” and he is “getting back seven-as”: when he removed the cutting agent from 10 ounces he had bought, he was left with seven ounces of cocaine. Weeden says that “next time it needs to be chunked up”, that is, still in chunky form, not powder, so that Weeden knows it has not been diluted with a cutting agent. He repeats, “if it’s not chunky” he “really doesn’t want it” – he “doesn’t want it like that”. FK says that the “prices will be different because he is not getting it from his source”. Weeden responds that he “is trying to work with” FK, but that if he “doesn’t have it then he’ll have to go back to his people”. Weeden says he “has been doing this too long to be dealing with that right now”. In sum, Weeden is complaining that he is not getting what he pays for, that he wants the cocaine in a form where he can be sure it has not been overly diluted, and he’s experienced enough in the business that he does not want to be dealing with this sort of thing from a supplier. FK is placing the blame on his supplier and trying to persuade Weeden to continue dealing with him.[^93]
[109] These intercepts clearly establish conspiracy between Weeden and FK to traffic in cocaine and marijuana as alleged.
c. Whether the indictment should be amended to allege a conspiracy with “Kadeem Forrester and/or another unknown person”
[110] Counts 1, 4, 6 and 8 of the indictment allege that Weeden conspired with Kadeem Forrester. In light of this court’s ruling that the Crown did not prove Kadeem Forrester’s voice identity beyond a reasonable doubt, the Crown sought to amend these counts to allege that Weeden conspired “with Kadeem Forrester and/or unknown persons to traffic in cocaine and marijuana.”
[111] I granted the amendment. The substance of the allegations against Weeden is that he conspired with the person heard in the relevant intercepts to traffic in drugs. It is not material to Weeden’s criminal culpability that the person with whom he conspired was Kadeem Forrester. Weeden’s defence of the charges was unaffected by the proposed amendment to the indictment. There being no prejudice to Weeden in this amendment, in light of the court’s ruling, I granted it.
4. Llamall Weeden Trafficking a Firearm to Dylon McGregor and Dylon McGregor Trafficking Marijuana to Llamall Weeden (Counts 10, 11, 12, 13 and 14 against Weeden; Counts 15, 16 and 17 against McGregor)
[112] For the reasons that follow, I am satisfied beyond a reasonable doubt that Weeden sold a semi-automatic handgun, ammunition and oversized magazine to McGregor, and that McGregor transferred[^94] marijuana, in the form of shatter, to Weeden, as alleged by the Crown.
[113] The evidence establishing these offences is as follows:
a. Intercepts between Weeden and McGregor.
b. Intercepts between Weeden and a person identified by police as Kemal Guthrie, from whom Weeden purchased the gun for re-sale to McGregor.
c. Police surveillance evidence tracking Weeden to McGregor’s apartment, leaving, returning briefly to the apartment building, and then leaving for good.
d. The arrest and search of McGregor outside the door to his apartment.
e. Evidence from the search and seizure of items in McGregor’s apartment, including the gun, ammunition and magazine, evidence linking McGregor to the apartment, and the absence of evidence linking another male to the apartment.
f. Other evidence (including expert evidence) respecting the gun, ammunition and magazine, and firearms registry affidavits.
Aside from item f. (other evidence), I set out this evidence chronologically (rather than by category of evidence) to show that the intercepts correspond with police observations, establishing that it was Weeden who drove to and entered McGregor’s apartment, and it was McGregor who was dealing with Weeden in respect to the gun transaction. The “other evidence” is summarized at the end of this section of the reasons.
[114] On March 2, 2016, 10:07 am, Weeden texts McGregor that it is his birthday the following day and he “wanted some loud n shatter”.[^95] “Loud” is marijuana and “shatter” is a toffee-like cannabis resin. At 11:03 am, McGregor texts back “waiting ona fresh pack ri now” meaning that he is out of supply but expecting to buy more.[^96] At 11:24 am Weeden calls McGregor. They talk about what Weeden is planning to do for his birthday the following day. About two minutes into the call, Weeden tells McGregor that he was trying to “link him the other day” (get in touch with him), “to see if he was ready for that piece”. “Piece” here means “gun”.[^97] McGregor responds that he “wanted to see it still, but that he is probably obviously going to take it.” Weeden says that “Easy” wants it too “but he does not have the paper” (someone nicknamed Easy wants the gun too but does not have enough money [“paper”]). Weeden tells McGregor that “if he wants it, it’s his.” He says to McGregor that he (Weeden) “is going to take it out by the weekend and show it to McGregor tomorrow [Thursday] or Friday at the latest.” McGregor responds, “do that and then we can talk”. The two make plans for the next day, and McGregor says he will “work on getting that kush” (marijuana).[^98]
[115] The next day, March 3, 2016, 11:08 am, McGregor calls Weeden and explains that his phone was not turned off, but Weeden probably had tried to call him when he was speaking with someone else. McGregor asks if, when he comes to see Weeden, he could “cop a ting” off him. Weeden says yes and McGregor confirms a time of 1:00 pm.[^99] Later that day, at 2:25 pm, McGregor calls Weeden to let him know that he has arrived at Weeden’s house. Weeden says he is coming.
[116] Surveillance officers observed the car associated with McGregor (blue Honda Civic, Ontario license BSPK 386) arrive at and park near Weeden’s house at 72 Delport Close. A man identified as McGregor is seen leaving the car and entering 72 Delport Close at 2:21 pm.[^100] There is a video of the man crossing the street and entering the house. The video is not good enough for the court to positively identify McGregor, but it certainly looks like him.[^101]
[117] The following day, March 4, 2016, Weeden and McGregor speak by phone. McGregor tells Weeden that he has just returned from Parkdale where he got “a bit of shatter and a bit of loud”. Weeden asks if McGregor got him his “ting”[^102] too; McGregor says he got some of what Weeden wanted “but not everything he wanted” – he says he is “going back down there in a couple of day” so he will “get it then” if Weeden wants something more. They then discuss the gun purchase: McGregor refers to “that thing” Weeden was talking about “for the three-five”. Here, “thing” refers to a gun, and “three-five” is a price of $3500.[^103]
[118] On April 7, 2016, Weeden receives a text message from Kemal Guthrie asking him “you know anyone interested in a 20 gauge”? This is a reference to a 20 gauge shotgun. Guthrie immediately sends two more texts stating “long one and short one” and “a stack” Guthrie is saying that he has two 20 gauge shotguns, one with a long barrel and one with a short barrel. He wants to know if Weeden has a buyer for either.[^104] Weeden responds within about five minutes, “ima see wha gwon” meaning “I’m going to see what’s going on”, or, in other words, he would check around and get back to Guthrie.[^105]
[119] Five days later, on April 12, 2016, Guthrie sends a text stating “He said brand new from 2-25” followed immediately by a further text stating “Those was two pumps I told him niggas don’t really want pumps.”[^106] I infer that the two men had further communications after April 7th, and Weeden wanted to know if the guns were “clean” (ie not fired in prior criminal activity). Guthrie says they are “brand new”, meaning they have not been used before and thus are “clean”. He quotes a price of $2,250 for each gun. He then says the guns are pump-action (semi-automatic) shotguns, and acknowledges that a lot of buyers don’t want shotguns.
[120] Weeden responds “2 bills or racks”? Guthrie replies, “racks for hand tings”. Here, “hand tings” refers to handguns (as distinct from shotguns).[^107] And then Weeden responds “ye I want da pumps”, and immediately afterwards, “ye I want both”.[^108] Guthrie responds, “U want pumps bredda”, meaning “do you want two shotguns, brother?” Weeden responds “I want hand ting my yung boy want da pump. I told him it dere and he said send on.” By this, Weeden says that he wants the hand gun, and he was a buyer, his “young boy”, for a shotgun.[^109]
[121] Guthrie responds “K hold on I text dude.” Guthrie says that he does not have the guns himself. He says that he is texting the person with the guns to confirm a deal. Weeden responds “He good? Who dis make sure they ain’t playing no games.” Weeden wants to know that the person selling the guns is legitimate – he wants to know who he is. Guthrie responds “They not playing games. I was in da bin wid him and he went to New Brunswick and tings cheap over there so he showed me two pumps and some hand tings and a MR-1.” Then he sends another text: “He pulled up on me with the pumps he wanted to flip them and go and get more.”[^110] By this, Guthrie is saying the seller is legitimate. Guthrie was in prison (“da bin”) with the seller. He went down to New Brunswick where guns are inexpensive. He came back to Ontario with two shotguns, some handguns, and an MR-1 rifle. He wants to sell them quickly and go back to New Brunswick to get more.[^111]
[122] Weeden calls Guthrie the next day, April 13, 2016, 8:46 am, and Guthrie says “the pumps are gone but the hand ones around. Price 2 to 2-5”. Then he says “2-5” and “it is clean”. Weeden asks him to try to “talk down the price”.[^112]
[123] On April 16, 2016, Weeden texts McGregor as follows: “yea I have that if u still want it, g19, 15 in da handle, 4 bands. I put up 35, let me know my yg want it, just ain’t tryna leave you hanging.” This text means: Yes I still have the gun, if you still want to buy it. G19 (Glock handgun, model 19), 15 in the handle (an ammunition magazine in the handle of the gun with a capacity of fifteen bullets), 4 bands. I paid $3500 for it. Let me know if you want to buy it. Someone else wants to buy it (“my young (boy)”), but I want to offer it to you since we had been talking about it before.[^113]
[124] McGregor responds by text asking if “dat was the smaller one ye?” and “of course brudda dats me.” I infer that there were two guns (and this is consistent with the discussions Weeden had with Guthrie) and that McGregor thinks the one being offered to him is the smaller of the two. He assures Weeden that he wants to buy it.[^114] They go back and forth by text between shortly after 9 am until McGregor calls Weeden that same day (April 16th) at 10:12 am.[^115] About a minute into the call Weeden asks McGregor if he wants to meet with Weeden “and see both of them” or Weeden “can just bring” the “one we talked about”. McGregor responds: “whatever, I’m cool with the one, but I could come through.” Weeden says that if McGregor “goes the other route” (buys the other gun) that “it’s only a ten” (the ammunition magazine only holds ten bullets). “One is fifteen, one is ten” (one of the guns has a 15-bullet magazine, the other has a 10-bullet magazine). McGregor then says he is going to “get some proper shatter” and that when he does, he “will deal” with Weeden. Weeden says he wants to get some marijuana and shatter from McGregor: a “half bounce” (half an ounce) and “a gram or two”. McGregor says they will “work it out” and they plan to meet the next day.
[125] McGregor texts Weeden later that same day (April 16th) at 2:17 pm. He reports that he “got da real shatter link”, meaning that he was able to acquire the shatter they had been talking about.[^116] Weeden responds saying that is “bless” (good) and “we gon link tm” (we’re going to get together tomorrow). McGregor texts twice more about the shatter, saying he “coped a proper ting” (got some good shatter). “Its like a nicee amber shit tastes and looks nuts”, meaning the shatter is a nice amber colour and tastes and looks great.[^117] Weeden responds “that’s proper” meaning that’s great, “ima see wha gwon tomorrow” meaning maybe we can connect tomorrow.[^118]
[126] On April 17, 2016, 9:34 am, Weeden texts to McGregor “jus got up fam u good? What times good 4 u?” Weeden is saying that he just got up and would like to know what would be a good time for him to come to see McGregor.[^119] McGregor responds by text “asap” and “soon tha better for me bro” meaning as soon as possible, the sooner the better.[^120] Weeden responds at 10:07 am: “ok ima make my way in like 45 b up there by noon.” This means that Weeden plans to leave in about 45 minutes and will be to McGregor by about noon.[^121] McGregor does not respond, so at 10:16 am Weeden calls him and confirms that he is coming over.[^122]
[127] At 11:57 am, Weeden texts McGregor “soon exit brudda”.[^123] We know from the police surveillance that at this time that Weeden was on Highway 407 near central Hamilton.[^124] Five minutes later, at 12:02 pm, Weeden texts to McGregor: just exit u got blunts”: this corresponds to the time the surveillance team saw Weeden exit from the highway into Hamilton.[^125] At 12:04 pm Weeden texts McGregor “im down here”, meaning he has arrived at the building. This corresponds with his arrival at McGregor’s apartment building, as noted by surveillance officers.[^126] McGregor responds “Comm”, which I find means “come in”: police rode the elevator up with Weeden, and so saw that he went to the apartment unaccompanied, from which I infer that McGregor “buzzed” Weeden into the building.[^127]
[128] Weeden is in the apartment, and I find that he was in there with McGregor from the time he entered (shortly after noon) until police see Weeden leave alone, shortly before 3:00 pm. Weeden is seen getting into his car and driving away, and he is let to “run free” by the surveillance team. Then there is an intercept at 2:59 pm. McGregor calls Weeden to tell him that he has forgotten the shatter, which is still in the freezer. Weeden asks McGregor to come downstairs and meet him, that he was “coming back right away”.[^128] Police then see Weeden drive back into the parking lot at the rear of McGregor’s building, re-enter the building, and then exit shortly afterwards and drive away again, this time for good.
[129] The intercepts fit perfectly with police surveillance conducted on April 17, 2016.
[130] The surveillance team was “tasked” with surveillance on two persons of interest who, it was suspected, were about to traffic in a firearm: Llamall Weeden and Dylon McGregor. Observations began at what was thought to be Weeden’s home, at 72 Delport Close, at 11 am. At 11:18 am, D.C. Winter observed the car associated with Weeden back out of the garage at 72 Delport Close. D.C. Winter observed Weeden get out of the car, close the garage door, re-enter the car, back out of the driveway, and drive away in his car. Weeden was wearing grey hoody and khaki-coloured pants.
[131] The defence challenged this identification evidence on the basis of the distance from which the observation was made and the short period the officer had to make the observation. I accept the officer’s evidence. I accept that the officer believed that he had seen enough to make a positive identification. D.C. Winter is an experienced surveillance officer, and if he had been in doubt about his identification, he would have alerted his team so that efforts could be made to confirm the identification. He did not raise this concern and instead told the team that it was Weeden driving the car.
[132] I do not have to decide whether this identification, by itself, would satisfy me beyond a reasonable doubt that D.C. Winter had correctly identified Weeden. I am satisfied by a wealth of other evidence that the identification was correct. The point here is that D.C. Winter was confident in his identification, told the rest of his team that Weeden was the driver, and the rest of the team had no reason to doubt the accuracy of D.C. Winter’s identification.
[133] I also accept D.C. Tan’s evidence of general practice for surveillance identification. If an officer says that he has positively identified someone, that information is trusted. If an officer is not sure in his identification, he will say that an observed person is “possibly” the target. I accept that members of the team would not have questioned D.C. Winter’s identification of Weeden, and thus would not have been focused on confirmatory identification evidence.
[134] The surveillance team followed Weeden as he drove away and took the following route to Hamilton:
a. southbound Clarkway;
b. to eastbound Cottrell;
c. to southbound Highway 50;
d. to eastbound Highway 7;
e. to southbound Highway 427;
f. to westbound Highway 401;
g. to westbound Highway 403;
h. to westbound QEW/Highway 403;
i. to continuing westbound Highway 403 after the two highways branched;
j. to eastbound Main St., Hamilton;
k. to southbound Queen St.;
l. turning left into a parking lot at the rear of an apartment building at 205 Hunter Street, Hamilton (south side of Hunter St.).
Different officers observed Weeden’s car at different points in the journey. Weeden did not stop anywhere en route from 72 Delport Close and 205 Hunter Street.
[135] Three officers testified that they were able to identify Weeden driving the car during the trip from Delport Close, Mississauga to Hunter Street, Hamilton.[^129] The defence challenged this evidence on the basis that the officers would have had little opportunity to see Weeden during the drive, given that they were alone in their vehicles and had to keep their eyes on the road, and given that the Camry had tinted windows (other than the front windshield).
[136] I accept the police identification evidence during this portion of the surveillance. It was midday, in mid-April, and there is no evidence that visibility was impaired by weather. The officers did not recall how they had been able to identify Weeden but they would have had no reason to fabricate this evidence. Identification was not, so far as the officers knew, an issue: they had all heard D.C. Winter positively identify Weeden outside his car, lowering the garage door. The officers all expected that they would have further observations of Weeden (otherwise the surveillance would likely come to naught). There would be no reason for the officers to invent, let alone concoct, the identifications they made during the trip to Hamilton.
[137] Weeden parked his car at the rear of 205 Hunter Street. Det. Rosete observed him sitting in his parked car behind 205 Hunter St.[^130] Weeden then got out of his car and went into 205 Hunter Street through a back door. This was seen by Det. Sukumaran. Considerable time was spent in cross-examination of Det. Sukumaran about his evidence on this point. There is no doubt that Weeden entered the rear of 205 Hunter Street, as reported. However, the cross-examination did raise credibility concerns about Det. Sukumaran’s evidence.
[138] Det. Sukumaran testified that he saw the door to the building open and Weeden enter the building. As is evident from photographs put to Det. Sukumaran, there is a large overhang at the rear of the building. That overhang covers a tunnel – enclosed in what appears to be cement blocks – that runs from the parking area for a distance of what appears to be roughly 25 feet to the rear door of the building. Det. Sukumaran testified that he was sitting in his car, on Queen Street, across the street from 205 Hunter Street, when he saw Weeden enter the building.
[139] It is evident from the photographs that Det. Sukumaran could not have seen the door open and Weeden enter – his view would have been blocked by the walls of the tunnel leading to the back door. Det. Sukumaran explained that he got out of his car and went over to where he had a view of the tunnel to the back door. This may be how the Detective recalls matters, but I doubt that this is what happened. First, Weeden was clearly heading into the building – a building in Hamilton – which was consistent with expectations given the information the officers were given that morning. Second, from Det. Sukumaran’s vantage point, it would have looked like Weeden was entering the building, conduct that was, again, consistent with expectations. Third, Det. Sukumaran would have had to move very quickly to get in position to see Weeden go through the door into the building. This would have been possible, I think, but would have risked alerting Weeden that, perhaps, someone was watching him. I think it unlikely that the experienced detective would have acted in a way that might have disclosed the ongoing police surveillance to confirm that Weeden had entered the building when that was what he was expected to do and that was what it appeared he had done.
[140] I accept that Det. Sukumaran saw Weeden leave his car and enter the tunnel to the entry door. I also accept that Det. Sukumaran did not know there was a 25 foot tunnel to the entry door, and he thought he had just seen Weeden enter the building. I do not know why he thought he saw the door open: there is no door to the tunnel. There would also be no reason for Det. Sukumaran to make up this evidence intentionally: it adds nothing to the case. We know that Weeden entered the building because he was seen, a short time later, on an elevator and then entering unit 1406 on the fourteenth floor.
[141] D.C. Chant testified that when he heard that Weeden had turned into the parking lot at 205 Hunter St., he made for the front door of the building, gained access when someone else entered or left the building, and ran upstairs to get on the elevator. He was trying to get on the same elevator as Weeden. He succeeded; Weeden was the only other occupant. Weeden had pressed the 14th floor. D.C. Chant pressed a lower floor, got off, and then ran up the stairs in time to see Weeden knock on the door of unit 1406 and then go into that unit at 12:08 pm.
[142] Counsel spent considerable time trying to impeach this evidence, unsuccessfully. First, following this observation, the surveillance officers maintained surveillance on unit 1406 until Weeden emerged from it at 2:57 pm. The officers did not have prior information about the unit number occupied by McGregor, and so they would only have known to keep surveillance on unit 1406 because they saw Weeden enter it. It was not suggested to the officers that they had prior knowledge of the unit number, or that they gained it after getting to 205 Hunter Street. There is no evidence that the officers knew the unit number from prior involvement in the case or from briefing notes, and there is no evidence that they could have obtained the unit number from a list of tenants in the building (indeed, there is no evidence that the apartment is rented in McGregor’s name). I conclude that D.C. Chant’s evidence on this point is corroborated by the continuing surveillance which established that Weeden had entered unit 1406 because police maintained surveillance on the unit and Weeden exited from it.
[143] I also conclude that D.C. Chant would have had no reason to make this evidence up. The defence implication seemed to be that this evidence was fabricated because police needed stronger identification evidence for their case against Weeden. That is not so, and more significantly, D.C. Chant would have had no reason to believe that this was so.
[144] Finally, I find that D.C. Chant gave his evidence in a completely forthright manner, with precision and detail. He did not embellish his evidence. He did not speculate. He did not fill in gaps. He presented as a competent, reliable and honest witness. I accept that he rode the elevator with Weeden, standing right next to him for the trip to the floor below the 14th floor, and that he recognized Weeden as the accused, Llamall Weeden.
[145] From the time that Weeden entered the apartment, police did not see anyone enter or leave unit 1406 until 2:57 pm, when D.C. Pala saw Weeden leave the unit and get on the elevator. At 2:59 pm, D.C. Tan saw Weeden get into his Camry and drive “away westbound on Hunter” Street. D.C. Tan identified Weeden on the basis of the description of his clothing given earlier by D.C. Winter, the picture of Weeden he had been given, and his observations of Weeden when he had surveilled him previously. He was using binoculars at the time, and testified that he saw enough of Weeden’s face to make a positive identification.
[146] On instructions to D.C. Chant from the “wire room”, Weeden is “let run”, that is, officers do not continue surveillance on him after he drives away from 205 Hunter Street; the surveillance team continues to watch unit 1406.
[147] At 3:02 pm, D.C. Tan sees Weeden return to the parking lot at the rear of 205 Hunter Street. Weeden enters the building at the rear. He re-emerges and is seen by D.C. Tan getting back into his car and leaving the parking lot at 205 Hunter Street at 3:05 pm. Again, D.C. Tan was using binoculars and is confident that it was Weeden that he saw. Again, Weeden is “let run”. This time he does not return.
[148] The intercepts match the surveillance. They show Weeden agreeing to drive to McGregor’s apartment in Hamilton. Police observed Weeden make this drive. The texts show Weeden reaching Hamilton shortly before noon, and going into McGregor’s apartment a few minutes after noon. That is what police saw happen. The texts fall silent for the nearly three hours that Weeden and McGregor are inside the apartment together, as I find they were. And almost immediately after Weeden leaves the apartment, there is another text – Weeden has forgotten his shatter – which prompts Weeden to return to the building. Police see Weeden leave, then return, and then leave again, events explained by the intercepts.
[149] To this point – Weeden’s final departure from 205 Hunter Street – I am satisfied that the following facts are established:
a. Weeden has agreed to sell a Glock 19 semi-automatic handgun, with “15 in the barrel” and has agreed to acquire some shatter from the gun buyer.
b. Weeden has agreed to deliver the gun to the buyer at the apartment building at 205 Hunter St., Hamilton.
c. Weeden has driven to 205 Hunter St., Hamilton, has spent three hours there inside apartment 1406, the gun buyer’s apartment, after which he left.
d. Weeden forgot his shatter, which was in the freezer in the apartment. He returned to the apartment building, where he met the gun buyer, who gave him the shatter.
e. Weeden took the shatter, left the apartment building, and drove away.
f. The gun buyer is the person we hear on the intercepts. He is male, lives at or is associated with unit 1406, 205 Hunter Street, Hamilton. He knows and is friends with Weeden; this is not their first dealing with each other.
[150] At 3:07 pm, D.C. Pala sees McGregor get off the elevator on the 14th floor and enter unit 1406, using keys. Shortly afterwards, D.C. Chant received word from the “wire room” that McGregor “was arrestable” for possession for the purposes of trafficking of a controlled substance and possession of a firearm.
[151] At 3:10 pm, D.C. Chant saw an unknown female exit unit 1406 and get on the elevator with a small dog. He relays this information to the surveillance team together with a description of the woman.
[152] At 3:14 pm, D.C. Tan sees the car associated with McGregor, a blue Honda Civic, Ontario license BSPK 386, exit the underground parking at 205 Hunter and drive away southbound on Main Street. It was being driven by a woman consistent with the description that had been provided by D.C. Chant.[^131] The vehicle was “let run”.
[153] Police maintained their surveillance for the next two hours. Then, at 5:15 pm, D.C. Tan sees McGregor leave unit 1406, lock unit 1406, and head to the stairwell at the east end of the building. McGregor is next seen by D.C. Tan and Det. Rosete, five minutes later (5:20 pm), walking down from the 15th floor. McGregor was holding a Tim Horton’s coffee and bag, and he walked by the officers and on to the 14th floor. McGregor turned towards unit 1406 with his keys in hand. He was then arrested by D.C. Tan and Det. Rosete, who told him that they were police officers and that he was under arrest.[^132] McGregor tried to run. He did not get far. There was a struggle. Det. Rosete and McGregor went to the floor. They wrestled, with McGregor continuing to resist, punching or flailing with his arms and kicking out with his legs. Det. Rosete threatened to use a taser to subdue McGregor if he would not calm down. He showed McGregor the taser, and still McGregor would not comply with requests to submit. He was tasered once, with no apparent effect on his behavior. He was tasered a second time, after which he calmed down, the arrest was effected, and McGregor was handcuffed to the rear,[^133]
[154] D.C. Tan informed the surveillance team of the arrest at 5:21 pm, and the rest of the team then came up to the 14th floor. D.C. Tan sounded breathless when he provided this information to the surveillance team, and D.C. Chant, D.C. Pala and Det. Sukumaran “moved up to the 14th floor promptly” by elevator in case there was some sort of trouble related to the arrest.
[155] McGregor’s keys fell to the floor in the struggle when he was arrested. D.C. Tan retrieved the keys after the arrest and turned them over to Det. Sukumaran when he arrived on the 14th floor. Det. Sukumaran used the keys to open the door to unit 1406. The keys worked.[^134] Then Det. Sukumaran, D.C. Chant and D.C. Pala entered the apartment to “clear” it (to make sure that no one was in the apartment, to ensure officer safety and to prevent destruction of evidence). Once the apartment was cleared (there was no one in it), the surveillance team waited in the apartment until they received a warrant permitting them to search it.
[156] At 5:35 pm D.C. Chant learned from the “wire room” that the warrant had been signed, but that the warrant did not authorize search until 6:00 pm. The team waited until 6:01 pm and then D.C. Pala and Det. Sukumaran executed the search warrant.
[157] Police found the following items linking McGregor to unit 1406:
a. Prescription bottle in McGregor’s name found in the kitchen.[^135]
b. Keys to unit 1406 and fob for 205 Hunter Street on McGregor’s person.[^136]
c. 2 items of prescription medication in Dylon McGregor’s name found in the top bureau drawer of the master bedroom.[^137]
d. Current Canadian passport of Dylon McGregor found in the top bureau drawer in the master bedroom.[^138]
e. Service Ontario document for Dylon McGregor, addressed to him at unit 1406-205 Hunter St., showing a home address of 80 Speers Rd., Oakville, found in the top bureau drawer of the master bedroom.[^139]
f. Men’s and women’s clothing in the closet of the master bedroom.[^140]
g. Blue folder of personal papers found in the desk drawer in the main living area[^141] in which was found:
i. Service Canada document for McGregor, showing an address of 80 Speers Rd., Oakville;
ii. Order confirmation from the cellphone company “Chatr” for the contact number 905-454-1670, in the name “Josh Adams”, showing an address of 470 King St. W., Hamilton;
iii. Small piece of paper with handwritten notations saying “Josh Adams 01/01/90” then “joshadams10” and “470 King St. W. Hamilton”; and
iv. Birth certificate for McGregor.
[158] Police seized a Glock Model 19, 9 mm luger caliber semi-automatic handgun, cartridges of 9mm luger caliber ammunition, and a magazine capable of holding 15 cartridges of 9 mm luger caliber ammunition, which loads into the handle of the gun.[^142] This gun matches exactly the gun that had been discussed in the intercepts between Weeden and McGregor: a “G-19” with “15 in the handle”. Police also seized a white powdered substance which they believed to be cocaine.[^143]
[159] The defence cross examined about a cellphone that appeared to be on the kitchen counter but was not seized.[^144] The defence also established that there were many shoes in a front hall cupboard, and police agreed that they did not check the sizes of the shoes. The defence argued that I can see in the pictures that the men’s shoes are different sizes. That is not evident to me from reviewing the photographs.[^145]
[160] The Crown argues that two people lived in the apartment: McGregor and his girlfriend. It is clear from the intercepts that the gun buyer was male. The defence did not suggest that I should have a reasonable doubt that it was the girlfriend on the phone or that the girlfriend bought the gun.
[161] The telephone number used by the person identified by police as McGregor is associated with the name “Josh Adams”. That is, the account with the telephone company, Chatr, is in the name of “Josh Adams”. There is no evidence that personal identification is required to open a telephone account such as the one attributed to “Josh Adams”. There is a handwritten note attached to the Chatr order confirmation. It is on a notepad in the name of “WOW! Mobile Boutique”, the store at Square One that apparently sold the account to “Josh Adams”. On this note is handwritten as follows:
Josh Adams
01/01/90
joshadams10
470 King Street West
This is a curious note. If there is a “Josh Adams”, and if he opened this Chatr account, he might have wanted to write down his password and to keep it somewhere safe in case he forgot it. It seems strange that he would write down his own name and address – one would expect that a real “Josh Adams” would not need an aide-memoire for his own name and address without a note. And then there is the birthday (01-01-90): it is the sort of generic false date given by someone who wants to remember it later.[^146] And again, a real “Josh Adams” would not need an aide-memoire to remember his own birthday. Of course, some people are born on January 1st. However, this birth date, in the context of the entire note, the location of the note with Dylon McGregor’s personal papers, in the apartment where Dylon McGregor lived with his girlfriend, leads me to infer that McGregor used the name “Josh Adams” to obtain the Chatr cellular account for his own use.
[162] The evidence points overwhelmingly to McGregor being the male who occupied 1406-205 Hunter Street, Hamilton. The Chatr account document does not give rise to a reasonable doubt that a different man, named “Josh Adams”, also occupied the apartment. I find that McGregor was the sole male occupant of the apartment, and that he was the person who arranged to buy a gun from Weeden in the intercepts, and then did so at his apartment on April 7, 2016. I find that the gun, ammunition and magazine found in the apartment were bought by McGregor from Weeden, and were in McGregor’s possession when they were found by police during the search of the apartment.
[163] The case against McGregor is circumstantial. The court can reach a verdict of guilty only if it is “satisfied that the accused’s guilt [is] the only reasonable conclusion available on the totality of the evidence.”[^147] It is “for the trier of fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a reasonable doubt”.[^148]
[164] In circumstantial cases of possession, the court considers, in the words of S.C. Hill J., the “cumulative effect of relevant circumstances”.[^149] In Anderson-Wilson, Hill J. identifies five factors often taken into account in such cases, three of which are pertinent in this case: proximity, communal use, and nature of items located in proximity to the item possessed.[^150] There is “no firm rule for inferring knowledge from occupancy.”[^151] However, in this case there is considerable evidence establishing McGregor as the sole male occupant of the apartment. The “Josh Adams” theory does not raise a reasonable doubt, and no other conclusion is reasonably available on the totality of the evidence other than that McGregor is the person who bought the gun and placed it into a pocket of his hoody in a closet in his apartment.
Other Evidence: Expert Evidence and Firearms Registry Certificates
[165] The Crown filed affidavits (a) from Firearms Officer Elbers[^152] and Senior Registration Analyst Sharan[^153] to establish that Llamall Weeden did not have a firearms acquisition certificate, license or registration certificate for firearms, and (b) affidavits from Firearms Officer Charbonneau[^154] and Senior Registration Analyst Mcklusky[^155] to establish that Dylon McGregor did not have a firearms acquisition certificate, license or registration certificate for firearms. Officer Hoffman testified that the gun, the ammunition, and the magazine all met the pertinent definitions in the Criminal Code for the alleged offences.
[166] I accept all of this evidence.
Conclusion
[167] On the totality of the evidence I am satisfied beyond a reasonable doubt that Weeden sold the gun to McGregor, and that McGregor transferred shatter to Weeden, as alleged by the Crown. There shall be findings of guilt against Weeden and McGregor for all of these charges.
5. Conspiracy to Traffic a Firearm with Swaine Simpson (Count 9)
[168] These charges turn on the intercepts and the voice identification of Weeden and Simpson.
[169] I have reviewed above Weeden’s dealings with the person identified by police as Kemal Guthrie to purchase firearms for resale. One exchange of texts between Guthrie and Weeden took place on April 12, 2016. On the morning of April 13, 2016, Simpson calls Weeden without success. Weeden texts him back about the missed call and Simpson texts Weeden at 8:45 am: “seeing if you got word.”[^156]
[170] As reflected in my review of Weeden’s communications with Guthrie, Weeden called Guthrie at 8:46 am on April 13th, immediately after having received the text from Simpson asking him if he “got word”. As stated above, Guthrie quoted a price of “2 to 2-5” and then “2-5”, and Weeden asked him to try to “talk the price down”. At 8:46 am, right after he speaks to Guthrie, Weeden texts Simpson: “he sayin us one handsy 3 but I can probably talk him down if u on it.” Guthrie had left the sale price to Weeden at $2500. Weeden is quoting $3000 as the sale price to Simpson, but telling him that he may be able to talk the price down.[^157]
[171] Simpson is not happy with the price. In response to Weeden asking him “u on it?” (meaning do you want to buy the gun?), Simpson responds “depends on da#”, meaning it depends on the price.[^158] Weeden responds “he sayin 3 mite can talk it down to 25-27” meaning the seller is saying $3,000, but Weeden might be able to talk him down to $2500-$2700.[^159] Simpson responds, “that’s steep styll”, meaning he thinks the price is still too high.[^160] They exchange further texts in which Weeden acknowledges that the price is high but says he will sort it out: “I won’t let dem 1s slide again”.[^161]
[172] Still on April 13, 2016, Weeden texts to Simpson “holla at fam, 25 maybe 27 if teet dehbout”. This means that he spoke to the guy he is dealing with on the gun, and the price is $2500, maybe $2700.[^162]
[173] I am satisfied that Weeden conspired with Guthrie to traffic a firearm to Simpson. The common unlawful design was the unlawful sale of the gun to Simpson. While I do not have evidence of the final price arrived at between Guthrie and Weeden, this is not essential to their unlawful agreement. I appreciate that the case is close to the situation in R. v. Kelly, cited recently by the Ontario Court of Appeal as the kind of bilateral crime that does not attract liability for conspiracy: where
‘S’ offered to sell a narcotic to “k”, knowing that “K” intended to sell the drugs… [t]he conduct of “S” constituted trafficking… [and] “K” intended to engage in an act of trafficking as well.” This constituted “two separate, albeit inter-dependent, acts of trafficking. There was not a single object.[^163]
In this case, there was a “single object”: to traffic a gun to Simpson. In my view, this specific common design is sufficient to distinguish this case from the general “supply chain” cases that do not give rise to liability for conspiracy.[^164]
[174] I am not satisfied that Simpson is guilty of conspiracy. I am satisfied that he had an agreement with Weeden to buy a firearm – but this is the unlawful agreement that is the very trafficking offence Weeden intended to commit – his common design with Guthrie. The Crown did not rely on the purchase transaction between Simpson and Weeden as the common design at which their alleged conspiracy was directed. Rather, she argued that in agreeing to buy a gun from Weeden, Simpson conspired with Weeden for the purchase of the gun by Weeden from Guthrie.
[175] The Crown argued that Simpson is liable as a party to the transaction between Guthrie and Weeden, on the basis of the Supreme Court of Canada’s decision in R. v. J.F.[^165] I reject this argument. In J.F., the Supreme Court of Canada adopted the “narrower” view of party liability, for aiding and abetting a conspiracy, as reflected in the Alberta Court of Appeal decision in R. v. Trieu.[^166] J.F. did not concern an unlawful bilateral transaction, like trafficking: it found liability for conspiracy to commit murder by the advice and help given by the accused to the murderers. The Crown argued that Simpson “is the catalyst for the conspiracy” and thereby aided and abetted the formation of the agreement between Guthrie and Weeden. She argued, by analogy, that this case is similar to cases where something is “stolen to order”. I do not agree. The guns had already been acquired and brought to Ontario before Simpson was involved. Simpson was not the “catalyst” that saw these guns offered for sale illegally. Moldaver J. commented in J.F. that the principle involved is narrow and “that a review of the jurisprudence in Canada and elsewhere reveals that there are few reported cases where the facts have come within the Trieu paradigm”: this observation is inconsistent with applying party liability to conspiracy to the end-purchaser in a series of trafficking transactions.[^167]
[176] In my view, a street-level drug user is not guilty of conspiracy just because he knows his supplier buys the drugs from somewhere higher in the supply chain. That same street-level user is not guilty of conspiracy[^168] even if he asks about the supplier and encourages his dealer to obtain new supplies, or if he asks when the next shipment will arrive. The same principle applies to the bilateral crime of gun trafficking. Accordingly, I find Simpson not guilty of conspiracy to traffic a firearm.[^169]
6. Other Issues
(a) Surveillance Equipment
[177] Considerable time was spent in cross-examination on the equipment carried by and used by surveillance teams. I did not find this line of inquiry useful. The officers had with them the equipment they had with them. Often surveillance teams work together on an ongoing basis. But teams do change over time, and many of the officers have been with the police force for a great many years. I never did understand how it could matter whether each officer had binoculars, whether or when they used them (except at the moment they made an observation), how many video recorders they had with them, or who wielded them (except when proving a particular video clip).
[178] Officers were asked if they had cellphones capable of taking video recordings. Many did. None used their personal cellphones to take videos in connection with their investigations. It emerged clearly in cross-examination that officers would not use their personal devices because that could create privacy concerns for them, and potential other issues when it came time to try to use videos recorded on their personal cellphones as evidence. This all struck me as rather obvious points of good police practice. Of course, it is possible that an officer might use a personal device such as a cellphone to take a video, in exigent circumstances, but the court would not draw an adverse inference because an officer did not do so. Belabouring the point with virtually every officer who testified did not advance the fact-finding inquiry in this case, and I drew no inferences from the officers not using personal devices to gather surveillance evidence.
[179] Finally, on this topic, it must be noted that surveillance is conducted in a clandestine manner. This limits the use of visible objects, like video cameras and binoculars: obviously police do not want the targets of their surveillance to see something that causes them to suspect that they are being watched by police.
(b) Surveillance of Kadeem Forrester on May 29, 2016
[180] I heard evidence about police surveillance of Kadeem Forrester conducted on May 29, 2016. Once I excluded the impugned intercept, as explained above, this evidence was not relevant. Thus I do not summarize it in these reasons.
(c) “Characteristics of an Armed Person”
[181] In cross-examination, officers were asked if Weeden exhibited signs of carrying a gun when he was observed. D.C. Winter did not see this in the few seconds Weeden was out of his car closing his garage door when he left 72 Delport Close to drive. Other sightings of Weeden were similarly brief. No inference can be drawn that Weeden did not have a gun with him by police not observing something significant about his gait or posture.
(d) Central Notes and Officer Notes
[182] Considerable time was spent on differences between the central notes and officer notes. Most of these differences related to details in individual officer notes that were not in the central notes. I did not find this line of inquiry helpful: it was based on a false premise about the nature of these notes.
[183] Central notes are to preserve details observed that officers may not be able to write down themselves, to record times (so there is a common timeframe for the team) and sequence. Central notes do not include everything said by every officer over the shortwave radio. Nor is it expected that officers will share every detail over the radio of everything that they see. One example can illustrate this point.
[184] D.C. Chant testified that he rode the elevator up with Weeden before Weeden entered unit 1406. This was not in the central notes. Counsel felt this was a very significant event, which would surely have been said aloud and placed in the central notes.
[185] D.C. Chant testified that he had climbed stairs from the lobby a floor or two to try to get on the elevator carrying Weeden. The goal, of course, was to find out where Weeden was going, because the surveillance team did not have an address for McGregor.[^170] An elevator bearing only Weeden opened and D.C. Chant got on. He pressed the button for the floor below the 14th floor.[^171] He then ran up the stairs to the 14th floor in time to see Weeden enter unit 1406.
[186] D.C. Chant did call out to his colleagues that he had seen Weeden enter unit 1406. This was important information to share: the team needed to maintain surveillance on this unit. Obtaining this information was the reason D.C. Chant tried to get on the elevator with Weeden in the first place.
[187] D.C. Chant did not say anything over the radio when the elevator door opened and Weeden was on the elevator. Nor did he say anything in the few seconds he was riding the elevator with Weeden, all for obvious reasons. Once the elevator trip was completed, it ceased to be important: finding the unit on the 14th floor was what was important, and it was this information D.C. Chant sent out on the radio.
[188] The defence considered the elevator ride important because, if it happened as described by D.C. Chant, then there would be a positive identification of Weeden by an officer standing right next to him for several seconds. But to assess the officer’s conduct, and his evidence, it is necessary to look at the case through the lens of the officers conducting the surveillance, not the defence theory of the case after-the-fact. D.C. Chant had no reason to believe that identification was in issue. Weeden had been positively identified by D.C. Winter. He was seen by Det. Sukumaran outside the building. D.C. Chant saw him go into unit 1406. And Weeden came from the address associated with him, driving the car associated with him, going about a transaction which the “wire room” had told the team to expect. In hindsight, with the benefit of the intercepts recording Weeden speaking about this transaction – as he arranged to go to Hamilton to sell the gun, including intercepts stating where he was on his journey to Hamilton, at times that corresponded to the times recorded by police for the trip to Hamilton, to the detail about returning briefly to the building to pick up the “shatter”, there is no doubt that it was Weeden who was at 205 Hunter that day.
[189] There is no reason for D.C. Chant to concoct a story about being on the elevator with Weeden. He would not need to do so to give identification evidence, and he would not have thought identification would be in serious issue.
[190] So why was the elevator ride not in the common notes? Because it was not important to the ongoing investigation once D.C. Chant saw Weeden into unit 1406. The other officers did not need to know about it, after the fact, but they were told the observation they did need to know – where Weeden had gone.
(e) Absence of Evidence
[191] The defence raised issues about evidence that was not provided at the trial. I deal with these issues briefly, as follows:
a. Building security video: there is no evidence that police tried to obtain video taken by building security cameras. Some cameras can be seen in some of the photos tendered at trial, and it would be no surprise that such video might exist. Police do not have to look under every rock and stone. Whether it was decided that it was not necessary to obtain this evidence, given the nature of the case, or whether no one put their mind to this, there is no reason to draw an adverse inference from the failure to seek out this evidence.
b. Cellphones associated with McGregor: cellphones found in unit 1406 and on McGregor were seized but not analysed. Counsel for McGregor argued that I should draw a negative inference on the basis that it was not established that one of the cellphones was used in the intercepts with Weeden. I decline to do this; in my view the “inference” would be nothing more than speculation. This evidence was not lost or destroyed and there is no evidence that the defence sought to have the phones analysed. The decision not to analyse the cellphones results in no more than an absence of evidence and I draw no inference from it.
c. Alternative address for McGregor: McGregor’s ID included references to an address for him on Speers Rd. The defence argued that I should have a reasonable doubt that McGregor lived at Speers Rd., not Hunter St., on the basis of these references. It is possible for a person to have more than one residence. It is possible for people to change their address without changing their personal ID. The references to Speers Rd. do not undermine the affirmative evidence of McGregor occupying 1406-205 Hunter St., Hamilton. I reject this argument.
d. Address for “Josh Adams”: the defence argued that I should reason that “Josh Adams” could exist and live at an address on King Street West on the basis of the information set out on the Chatr account documents. For the reasons I have given above, I conclude that Josh Adams is fictitious and the information provided about him is fictitious. This conclusion is not called into question because police have not demonstrated the falsity of every detail emerging from the evidence: the absence of evidence that no Josh Adams lives on King Street West establishes nothing, and does not give rise to a reasonable doubt that “Josh Adams” exists.
(f) Tasering and Medical Treatment of McGregor
[192] All of this evidence was for narrative purposes. There was no charge of resisting arrest. There is no evidence that McGregor suffered serious medical consequences as a result of the arrest. Inordinate time was spent examining on this area when it did not bear on an issue requiring decision (the Crown did not ask the court to view McGregor’s conduct as after-the-fact conduct). I am sure that McGregor did not appreciate being tasered. I am just as sure that the officers did not appreciate his punches and kicks. But since none of that bears on the charges before the court, I decline to review the evidence in detail.
(g) Dogs
[193] I heard evidence that the woman living at 205 Hunter Street with McGregor left with a dog and then drove away. I also heard that some officers saw a small dog caged at 205 Hunter St. I heard evidence that two or three dogs were seen during the search of 72 Delport Close. A series of questions was asked in chief and in cross about these dogs. Aside from providing the court with a complete narrative, I never understood what was thought to be significant about the dogs, aside from the fact that pictures on the walls at 205 Hunter Street showed McGregor with his girlfriend and their dog.
7. Verdicts
[194] For these reasons I found Kadeem Forrester not guilty of the four charges against him, I found Swaine Simpson not guilty of the charge against him, I found Llamall Weeden guilty of the 14 charges against him, and I found Dylon McGregor guilty of the three charges against him.
D.L. Corbett J.
Released: April 26, 2019
COURT FILE NO.: CRIM 18/5-525
DATE: 20190426
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Crown
- and -
Llamall Weeden, Kadeem Forrester,
Swaine Simpson and Dylon McGregor
Accused
JUDGMENT
D.L. Corbett J.
Released: April 26, 2019
[^1]: By orders dated February 5, 2016 and March 31, 2016.
[^2]: R. v. Manette, 2018 ONSC 4586, a copy of which was filed as Exhibit 43. By agreement among the parties, the ruling by B. O’Marra J. binds the parties to this prosecution. The intercepts are collected together in Exhibit 4. Session numbers and associated tab numbers identified in footnotes are all references to Exhibit 4.
[^3]: Exhibit 45.
[^4]: I ruled Simpson’s statement admissible in an oral decision on September 19, 2018.
[^5]: The intercepts are compiled in a binder marked as Exhibit 4. A chart cross-referencing the intercepts to the charges was marked as Exhibit “G” as an aid to argument.
[^6]: I gave oral reasons for this ruling on October 5, 2018.
[^7]: Intercepts played for Simpson are not clear enough to be understood on the video of Simpson’s police interview. However, I have compared the intercepts with the videos: they correspond and thereby establish voice identification for all intercepts between Simpson and Weeden.
[^8]: Sessions 1250, 1263, 1274, tabs 67-69.
[^9]: Session 1490, 1540, tabs 70 and 71.
[^10]: The identification of McGregor arises through the substance of intercepts, police surveillance, and voice identification of McGregor: I explain my finding that it is the voice of the accused Dylon McGregor on the intercepts attributed to him after reviewing all of this evidence, near the end of this judgment.
[^11]: The defense did not object to Officer Hoffman being qualified as an expert, and I gave an oral ruling on October 2, 2018, permitting him to testify as such. Officer Hoffman’s curriculum vitae (Exhibit 18) establishes his expertise, and he has been qualified as an expert witness four times previously in the Ontario Superior Court and several other times in the Ontario Court of Justice.
[^12]: “Pumpers” could refer to shotguns or rifles. These “pumpers” were referred to as “40 gauge”, which is a measure of shotguns, not rifles. There was also mention of an “MR-1”, a .223 caliber Binelli semi-automatic rifle.
[^13]: Photographs taken by Officer Hoffman showing the gun are marked as Exhibit 19A. The gun and magazine are marked as Exhibits 32 and 33.
[^14]: As reflected in Sgt. Duffus’ curriculum vitae (Exhibit 20).
[^15]: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9; R. v. Abbey (2009), 97 OR (3d) 330, 2009 ONCA 624.
[^16]: Oral trial ruling, October 2, 2018.
[^17]: Exhibit 21.
[^18]: Sgt. Duffus testified that to his knowledge there is no standard glossary or lexicon authorized by the Toronto Police Service.
[^19]: The intercepts relied upon by the Crown to establish voice identification are collected together in Exhibit 42 and are also found in Exhibit 4.
[^20]: The intercepts relied upon by the Crown to establish Weeden’s voice identification are summarized in Exhibit “E”, and include Session 38, 191, 192, 193, 194, 196, 389, 849, 8818 and 57, Exhibit 42, tabs 4-13 (misstated in Exhibit “E” to be Exhibit 42, tabs 1-10). These intercepts are also all found in Exhibit 4.
[^21]: Exhibit 10.
[^22]: Exhibit 11.
[^23]: Exhibit 16.
[^24]: The second and third calls were made from 437-999-5696, on February 17, 2016 and May 13, 2016. The first call, on May 19, 2016, was made from 416-272-6674.
[^25]: Someone might use a false name when ordering food, but not a false address. There would be no discernible motive to use false information in the voluntary call to the School Board, and the call to police was one that had to be made on behalf of Weeden and there is no reason why anyone else would have made the call for him using his name.
[^26]: See, for example, his text to Dylon McGregor on March 2, 2016, where he writes “my bd tm” – meaning “my birthday tomorrow” (Session 1250, tab 67).
[^27]: Exhibit 16 includes ID for Weeden seized from the car with which he is associated. The driver’s license shows his birthday as March 3rd.
[^28]: The videotape of the statement, viewed on the statement voir dire, was agreed to be in evidence at the trial without further proof: Exhibit 1. The transcript of the statement was marked Exhibit 3 on the trial.
[^29]: Sessions 425, 156 and 465, Exhibit 42, tabs 1, 2 and 3. These calls are summarized in Exhibit “F” and are also found in Exhibit 4.
[^30]: This is a predecessor provision with identical material language.
[^31]: R. v. Pleich (1980), 1980 CanLII 2852 (ON CA), 55 CCC (2d) 13 at 21, per Morden J.A.
[^32]: Disclosure of all of the intercepts in Project “Sizzle” was made pursuant to R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, two years before trial, on September 26, 2016: Exhibit 1, tab 1 on the admissibility voir dire.
[^33]: Crown Disclosure #4, provided to the defence on September 23, 2016, described as “non-relevant”, in respect to “unknown person 5”, included thousands of pages of intercepts relating to three phone numbers – one of which – 647-863-4723 – for which there were 1876 pages of disclosure – contained the impugned fourth intercept.
[^34]: Exhibit 1 on the admissibility voir dire, tab 5, first three pages.
[^35]: See R. v. Filby (1981), 1981 CanLII 3140 (ON SC), 63 CCC (2d) 250 (Ont. Co. Ct.)
[^36]: R. v. Rowbotham, 1985 CarswellOnt 4215 (SCJ), per Ewaschuk J.
[^37]: ibid., para. 15.
[^38]: ibid., para. 16.
[^39]: ibid., paras. 17-18.
[^40]: R. v. Steel (1995), 1995 ABCA 409, 102 CCC (3d) 260 (Alta. CA), para. 17. See also R. v. Welsh, [2007] OJ No. 2433 (SCJ), per T.P. O’Connor J., where notice during pre-trial motions before the trial judge, after which there would be a period of months before evidence was called, was reasonable notice.
[^41]: The defence also argued that late disclosure undercut his client’s “informed decision to go to trial”. Since I am satisfied that there is prejudice to Forrester’s defence of the case, I need not decide whether prejudice to an “informed decision to go to trial”, by itself, would be a proper basis to find late notice to be “unreasonable” within the meaning of s. s.189(5).
[^42]: R. v. Chan, 2001 BCSC 1180, para. 26, per Dorgan J.
[^43]: Some intercepts are telephone calls and some are text messages.
[^44]: The names of customers (Markotic, Luburic and David) have been attributed by police. The basis for these attributions is not in evidence. I use the names attributed by police to identify distinct callers – they are distinguished by the unique telephone numbers they use and their voices. Thus I find that there were four separate customers identified in these calls, but I do not make a finding as to the true identity of any of them.
[^45]: Session 489, tab 36.
[^46]: Sessions 2619, 2628, 2629, 2630, 2632, 2633, 2634, tabs 16-22.
[^47]: Sessions 2649, 2664, 2665, 2781, 2788, 2789, 2798, tabs 24-29.
[^48]: Sessions 3346, 3349, 3350, tabs 30-32.
[^49]: Session 3518, tab 33.
[^50]: Session 3910, 4137, tab 37, 45.
[^51]: Sessions 4126, 4150, 4151, tabs 40, 46, 47.
[^52]: Session 4617, tab 49.
[^53]: Sessions 4804, 4840, 4860, tabs 50-52.
[^54]: Session 6206, tab 53.
[^55]: Session 556, tab 34.
[^56]: Session 3958, tab 35.
[^57]: Session 4117, 4118, 4131, 4132, 4133, 4136, tabs 38, 39, 41, 42, 43, 44.
[^58]: Session 4196, tab 48.
[^59]: Session 440, tab 8.
[^60]: Session 7516, tab 56.
[^61]: Sessions 7530, 7557, tabs 57-58.
[^62]: Session 7627, tab 59.
[^63]: Session 440, tab 8.
[^64]: The basis for this police attribution is not in evidence. I refer to the female voice identified by police as Rose-Hall as “Mumsy” in my reasons, a name used for this person by both Weeden and by the person identified by police as Kadeem Forrester.
[^65]: Session 334, tab 1. Police show this call was made to an “unidentified female”. However, the call is made to the same number as other calls made to Mumsy. It is not “Mumsy’s” voice.
[^66]: Session 411, tab 2.
[^67]: Session 413, tab 3.
[^68]: Session 427, tab 4.
[^69]: Session 432, tab 5.
[^70]: Session 434, tab 6.
[^71]: Session 436, tab 7.
[^72]: The room in which electronic intercepts were monitored by other police officers.
[^73]: The officers were cross-examined on what they did not do at some length. They did not stop either vehicle. They did not search the brown shopping bag. They discontinued surveillance on Weeden to continue surveillance on the Ford Focus. No inference can be drawn from these investigative decisions not to take certain steps: the absence of evidence is just that, an absence. In the context of this case, where the investigation was being directed from the “wire room”, with a view to the larger goals of Project Sizzle, I found the extensive cross-examination on these points to be misplaced: the Crown would not have been permitted to lead evidence about the total strategy and goals of Project Sizzle (since that would have been both irrelevant and possibly prejudicial to the accuseds). The Crown properly limited her examination in chief to the things the officers did and the observations they made, rather than asking them to explain why they did not take steps they had not been instructed to take by investigators in the wire room.
[^74]: Still photographs or “captures” from the video are found at tab 1 of Exhibit 5. The video is Exhibit 6.
[^75]: Session 452, tab 9.
[^76]: Session 472, tab 10.
[^77]: Session 474, tab 11.
[^78]: Session 475, tab 12.
[^79]: R. v. Root (2008), 241 CCC (3d) 125, 2008 ONCA 869, para. 66, per Watt J.A.; R. v. Cotroni, 1979 CanLII 38 (SCC), [1979] 2 SCR 256 at 276; R. v. Alexander and Blake (2005), 2005 CanLII 32566 (ON CA), 206 CCC (3d) 233, para. 46 (Ont. CA), per Doherty J.A. (leave to appeal to the SCC denied March 2, 2006).
[^80]: R. v. Root, ibid., para. 71, per Watt J.A.
[^81]: ibid., para. 78, per Watt J.A.
[^82]: As described above, Weeden had complained previously about time taken to count the money. It seems his objection was noted. A problem with not counting the money is that it may not all be there, as apparently happened here.
[^83]: Session 1357, tab 13.
[^84]: Session 2259, tab 14.
[^85]: Session 2264, tab 15.
[^86]: Session 7285, tab 54.
[^87]: Session 8759, tab 60.
[^88]: Session 402, tab 61.
[^89]: Session 404, tab 62.
[^90]: Session 405, tab 63.
[^91]: Session 431, tab 64.
[^92]: Session 473, tab 65.
[^93]: Session 660, tab 66.
[^94]: It is not clear whether the shatter was given for free, was part of the consideration for the gun, or was sold for a specific price.
[^95]: Session 1250, tab 67.
[^96]: Session 1263, tab 68.
[^97]: It is true, as argued by the defence, that although “piece” is a term used for “gun”, it can be used for other things, depending on context. In the context of these calls, it is clear the men are talking about a gun.
[^98]: Session 1274, tab 69.
[^99]: Session 1490, tab 70.
[^100]: The times recorded for intercepts and surveillance was not synchronized. I am satisfied that the time of the call (2:25 pm) and the time of the observation (2:21 pm) relate to the same person: only two persons entered Weeden’s house at around this time, and only one of them was white – the person who appears to be McGregor.
[^101]: Exhibit 7. Just because the video, by itself, is not sufficient to establish identification does not mean that it has no weight in deciding the issue of identification. There is considerable evidence in addition to the video: this is not a case, like R. v. Nikoloviki, 1996 CanLII 158 (SCC), [1996] 3 SCR 1197, where the identification is made by the court solely on the basis of the court’s view of the video.
[^102]: Here, “ting” or “thing” is obviously referring to something other than a gun – based on the rest of their dealings, Weeden wanted McGregor to pick him up some shatter when he was getting some for himself.
[^103]: Session 1678, tab 72.
[^104]: Sessions 4647, 4652, 4653, tab 74.
[^105]: Session 4657, tab 77.
[^106]: Sessions 5196, 5197, tabs 78-79.
[^107]: Sessions 5198, 5199, tabs 80-81.
[^108]: Sessions 5200, 5201, tabs 82-83.
[^109]: Sessions 5202, 5203, tabs 84-85.
[^110]: Sessions 5206, 5207, tabs 88-89.
[^111]: There are 14 texts over the course of 10 minutes related to purchase of guns by Weeden from Guthrie, sourced from Guthrie’s jailhouse contact who bought his guns in New Brunswick.
[^112]: Session 5293, tab 94. There were other intercepts which, on their own, in the context of the other intercepts relied upon by the Crown, could have led the court to infer that Weeden paid Guthrie for the guns by deposit into Guthrie’s bank account: Sessions 5300, 5301, 5302, 5304, 5307, tabs 101, 102, 103, 104, and 105. No bank account records were placed in evidence. The defence tendered evidence showing that Guthrie asked Weeden to do him a favour and put $20 in his account: Exhibit 46. In light of these other intercepts, I am not satisfied that the evidence relating to the bank deposit is in respect to the gun transaction.
[^113]: Session 5673, tab 107.
[^114]: Sessions 5674, 5677, tabs 108, 109.
[^115]: Session 5701, tab 115.
[^116]: Session 5715, tab 116.
[^117]: Sessions 5717, 5725, tabs 118-119.
[^118]: Session 5726, tab 120.
[^119]: Session 122, tab 122.
[^120]: Session 5791, tab 123.
[^121]: Session 5803, tab 124.
[^122]: Session 5818, tab 125.
[^123]: Session 5836, tab 126.
[^124]: Times do not always correspond to police surveillance notes to the minute, but this does not signify: police surveillance times and intercepts times were not co-ordinated, and police surveillance times are close approximations only, in any event.
[^125]: Session 5839, tab 127.
[^126]: Session 5842, tab 128.
[^127]: Session 5844, tab 129.
[^128]: Session 5863, tab 130.
[^129]: Det. Rosete, D.C. Chant, Det. Sukumaran.
[^130]: Counsel sought to impeach this evidence on the basis that it was not stated in the officer’s notes that he had seen Weeden sitting in the car. I did not find this compelling: as I explain elsewhere, identification was not controversial for the officers and so it would not have presented as an important detail to note.
[^131]: D.C. Tan could only see the head and shoulders of the woman.
[^132]: The lawfulness of the arrest was not challenged at this trial.
[^133]: McGregor was not charged with resisting arrest. All members of the surveillance team were in “street” clothes, for obvious reasons, not looking like police officers.
[^134]: There was also a “fob” on the key ring. D.C. Pala tested the fob and found that it worked to open the front doors to 205 Hunter Street. Police did not check to see if it also worked on the back door or the underground parking garage.
[^135]: Found by D.C. Tan.
[^136]: Found by D.C. Tan
[^137]: Found by D.C. Chant.
[^138]: Found by D.C. Chant.
[^139]: Found by D.C. Chant.
[^140]: Seen by D.C. Chant.
[^141]: Found by D.C. Chant.
[^142]: As confirmed by the Certificate of Analysis certified by weapons Examiner Kristine McLane, Exhibit 41.
[^143]: Photographs were filed as Exhibits 31 and 33. The substance subsequently tested negative for cocaine.
[^144]: Right foreground of photo 602, page 2 of Exhibit 36, Exhibit 44.
[^145]: Photo 716, page 3 of Exhibit 36.
[^146]: Order confirmation and handwritten note, Exhibit 9.
[^147]: R. v. Biggs, 2016 ONCA 910, 34 CR (7th) 147, para. 17.
[^148]: R. v. Villaroman, 2016 SCC 33, para. 55, per Cromwell J., citing with approval R. v. Dipnarine, 2014 ABCA 328, para. 22.
[^149]: R. v. Anderson-Wilson, 2010 ONSC 489, per S.C. Hill J., para. 74.
[^150]: R. v. Anderson-Wilson, 2010 ONSC 489, per S.C. Hill J., para. 74: factors 1, 3 and 5 of Justice Hill’s list. See also R. v. Mars (2006), OJ No. 427 (CA) and R. v. Ellis, 2016 ONCA 358, para. 30.
[^151]: R. v. Grey (1996), 1996 CanLII 35 (ON CA), 28 OR (3d) 417, para. 22. See also R. v. LePage, 1995 CanLII 123 (SCC), [1995] 1 SCR 654; R. v. Turner, 2012 ONCA 570, 292 CCC (3d) 69; R. v. Douglas (1974), 1974 CanLII 1514 (ON CA), 18 CCC (2d) 189 (Ont. CA); R. v. Haggarty (1946), 1946 CanLII 367 (BC CA), 88 CCC 255 (BCCA).
[^152]: Exhibit 37.
[^153]: Exhibit 38.
[^154]: Exhibit 39.
[^155]: Exhibit 40.
[^156]: Sessions 5289, 5292, tabs 92, 93.
[^157]: Session 5294, tab 95.
[^158]: Session 5295, tab 96.
[^159]: Session 5296, tab 97.
[^160]: Session 5297, tab 98.
[^161]: Sessions 5298, 5299, tabs 99-100.
[^162]: Session 5315, tab 106. The Crown chart (Exhibit 4) says that “teet dehbout” is patois for “thereabouts” or “nearby”, but I did not hear any evidence to this effect and the explanation on the chart is inadmissible hearsay.
[^163]: Justice David Doherty, “Conspiracies and Attempts”, Substantive Criminal Law (National Criminal Law Program, 1990, vol. 1, pp. 24-26, quoted with approval in R. v. Nguyen, 2016 ONCA 182, para. 22.
[^164]: R. v. Tran, 2014 BCCA 343, para.70; R. v. Styles, [1979] BCJ No. 253, para. 46 (BCCA).
[^165]: R. v. J.F., 2013 SCC 12.
[^166]: R. v. Trieu, 2008 ABCA 143. See R. v. J.F., 2013 SCC 12, paras. 39-43.
[^167]: See also R. v. Khiar, 2015 ONSC 352, paras. 32, 48, per E.M. Morgan J.; R. v. Robinson, 2016 ONCJ 442, per Nakatsuru J. (as he then was).
[^168]: R. v. Longworth and Wolfe (1982), 1982 CanLII 2262 (ON CA), 38 OR (2d) 367, para. 48 (Ont. CA), per Martin J.A.
[^169]: R. v. Nguyen, 2016 ONCA 182.
[^170]: Several officers gave this evidence. When asked how he knew the license for the blue Honda was associated with McGregor, D.C. Tan said he supposed that his “safe guess” was that he had seen a person-of-interest package at some point during the day, but he did not actually recall that he had. He also said that such a package would ordinarily contain information such as an address. It was clear that D.C. Tan was speculating as to how he might have learned about the license plate, and in cross examination he was clear that he did not recall a person of interest package for McGregor.
[^171]: D.C. Chant could not recall if this floor was numbered 12 or 13; subsequent photographs, said to be of the elevator bank, showed that the building had no floor labelled 13.