Court File and Parties
COURT FILE NO.: CR-18-40000590-0000
DATE: 20190123
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DEMAR DWYER
Accused
Sophina James and Susan Kim
Kurt Wildman, for the Accused
HEARD: November 19-30, 2018
REASONS FOR JUDGMENT
DUNNET J.: (Orally)
Overview
[1] The accused is charged with offering to transfer a firearm, contrary to s. 99(1) of the Criminal Code and offering to traffic in cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act (CDA).
[2] The police obtained two judicial authorizations to intercept the private conversations of a number of individuals, including Timothy White. Although the accused was not a named party in the authorizations, he was intercepted communicating with Mr. White’s telephone line 289-928-8699 using the telephone number 647-239-1851.
[3] The parties agree that the telephone calls and text messages were accurately intercepted. The telephone line numbers, dates, times, duration and direction (incoming and outgoing) of the calls and the content of the text messages are accurately captured and noted in the session related information reports. Translations of Jamaican Patios into English embedded in the transcripts of the audio interceptions are accurate.
[4] The Crown proffered six telephone conversations and 25 text messages. The position of the Crown is that the circumstantial evidence arising from the telephone conversations and text messages proves beyond a reasonable doubt that the offer to transfer a firearm and the offer to traffic in cocaine were put forward by the accused in a serious manner and that he intended the offers to be taken as genuine.
[5] The position of the defence is that the Crown has failed to prove the jurisdictional averment beyond a reasonable doubt.
[6] The defence also challenges the Crown’s interpretation of the words used in the intercepted communications and submits that there is a lack of evidence and gaps in the inferential chain arising from the communications. Moreover, the police failed to take any steps to investigate the content of the communications in order to provide support for the inferences relied on by the Crown.
Offer to Transfer a Firearm
[7] Section 99(1) of the Criminal Code provides in part that every person commits an offence who offers to transfer a firearm, whether or not for consideration, knowing that the person is unauthorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament. The parties agree that the accused did not possess an authorization, registration certificate or licence to possess, own or handle a firearm.
[8] In s. 2 of the Criminal Code, “firearm” means a barreled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barreled weapon and anything that can be adapted for use as a firearm.
[9] In s. 84(1) of the Criminal Code, “transfer” means sell, provide, barter, give, lend, rent, send, transport, ship, distribute or deliver.
[10] The ordinary meaning of “offer” in the Merriam-Webster Dictionary is “to present for acceptance or rejection.”
[11] In R. v. Duncan at paras. 92-94, the Ontario Court of Appeal held:
Trafficking by offer requires that the offer be put forward in a serious manner and that the accused intends for the offer to be taken as genuine: R. v. Ralph, 2011 ONSC 3558, [2011] O.J. No. 3156, at para. 48, citing R. v. Murdock (2003), 2003 CanLII 4306 (ON CA), 176 C.C.C. (3d) 232 (Ont. C.A.). This is a crucial element of the offence.
The jury should have been alerted to this important question and directed to evidence within the calls relevant to this determination, including the number of calls, the guarded manner of speaking, and the use of coded language. They should also have been directed to consider whether the calls clearly established one party to be the “offeror.” It should have been noted that no firearm was ever located, as this bears on the question of the seriousness of the offer, despite that the existence of a firearm is not an element of the offence.
The jury could very well reason that, as a matter of common sense, the men were discussing a firearm, but the seriousness of the offer to transfer the firearm was a separate question for the jury to decide. The jury should also have been instructed to consider whether the calls showed more than a discussion of something that might take place in the future.
[12] Police Officer Gavin Horner testified as an expert in street slang and coded or guarded language regarding firearms and ammunition. Based on his experience as a wire room investigator, he has learned that parties often use a combination of slang and coded terms in an attempt to disguise the content of their conversations. Although he has become familiar with many of the terms used, where the term is not familiar to him, he is often able to determine its meaning by reviewing other intercepts which can provide context to the term in question.
[13] After listening to the intercepted audiotapes and reading the text messages in this case, he prepared a lexicon of terms used by the parties that, in his opinion, have a different meaning than the literal word or for which no dictionary meaning exists.
[14] With respect to the weapons trafficking offence, the Crown relies in particular on three telephone conversations and one text message.
[15] On May 15, 2015 at 9:35 p.m. the accused telephoned Mr. White and asked him what he needed. The accused used the terms “g-thing” and “machines.” Officer Horner testified that “g-thing” may refer to a firearm that is manufactured by Glock. “Things” are illegal drugs or firearms and “machines” are firearms.
[16] The accused told Mr. White that his boy just went to the United States and he was supposed to bring back a couple of things. The accused said that he would let Mr. White know if there was anything left over. He said, “I’ll let you know still, because it’s mostly for the guys, ‘cause he jus’ sent me a video the other day with a bunch o’ things that he got, so he’s gonna try to bring them.”
[17] Mr. White told the accused that he was going to a video shoot and needed something to walk with. The accused replied that he was going to try to “link” the person, but that it was the long weekend. Officer Horner testified that “link” means “call or contact.”
[18] The accused said, “I know he told me he has a thing for three-five, but it’s sweet. It got the… the… beam and everything on it.” Mr. White replied, “…that’s steep, but if it’s sweet then, you know.” Officer Horner testified that “sweet” means of high quality. It was his opinion that the discussion is about a real firearm with an attachment that emits a ray of light and the cost of the firearm is $3,500.
[19] The two men had a discussion about drugs and the accused told Mr. White that he would make some calls and would let him know by Monday or Tuesday. He told Mr. White not to say a word.
[20] The men continued to talk about the video shoot and Mr. White said, “Yeah, even if I’m jus’ er… using one and swing it back but whatever, I’ll cop one, still. But I just have to hear the prices, you know.” Officer Horner testified that “cop” means “purchase or obtain.”
[21] The accused told Mr. White not to say a word. He said, “… my nigger went to the States and I know for a fact, a hundred per cent that’s what he went to deal with.” He said, “[W]e have a man” who used to live here and moved to Philadelphia. He “gets the things and put them away. …and we jus’ try to get them across.”
[22] The accused told Mr. White that if he had a link on “Molly,” he should send to “him over there” and “he’ll send you back… for it.”
[23] Police Officer Margetson testified as an expert in the modus operandi of traffickers, distribution, paraphernalia, including indicia of trafficking, packaging, pricing, drug sub-culture, drug terminology, drug slang, and quantities consistent with personal and commercial use of heroin, MDMA, marijuana, cocaine, crack cocaine and their derivatives.
[24] He testified that drug dealers will often use common drug slang and guarded and coded language when discussing the drug trade. After listening to the intercepted audiotapes and reading the text messages, he prepared a lexicon of terms used by the parties which, in his opinion, are common terms employed by members of the drug trade.
[25] Officer Margetson testified that “Molly” means MDMA or Ecstasy. Mr. White replied that he had a link on Molly that is not even “touched.” The officer testified that this refers to drugs that are not diluted with a cutting agent.
[26] The accused said that he was going to talk to his “brethren” and “we’re gonna figure out a way to get it [MDMA or Ecstasy] to him. All they needed was “just somebody who is brave enough to… to make the drive for them.” The accused explained that they rent a car and take it to a mechanic who removes the dashboard. They stash “couple o’ them” and “bring it back in.” Mr. White told the accused to “ring me back on those things,” and the accused said, “Yeah man, don’t say a word.”
[27] The position of the Crown is that the accused offered to transport a firearm in a serious manner, intending the offer to be taken by Mr. White as genuine. The parties used coded language to evade the police because they were talking about a real firearm. The accused warned Mr. White not to say anything because of the risk involved in discussing something illicit.
[28] The Crown asserts that the accused was building up the credibility of his source by telling him that his boy sent a video of his “things,” thereby suggesting to Mr. White that others had placed their trust in the source. Further, the accused enticed Mr. White by describing the attributes of the firearm, which had an attachment with everything on it.
[29] The Crown contends that the accused maintained that he was one hundred per cent sure that “our man” went to the United States to deal with the “things.” It is the Crown’s contention that the accused was bartering with Mr. White by asking him if he had any MDMA and by trying to find a way to get the MDMA to his source in the United States. The accused provided specifics about how they bring contraband into Canada from the United States.
[30] It is asserted that the accused was managing the timing of the transaction as well as Mr. White’s expectation by stating that there may be a delay because of the long weekend.
[31] On May 16, 2015 at 1:27 a.m. Mr. White sent a text message to the accused which read: “If u dnt like that baby father I can touch him u know?jus send on a sumin.” Officer Horner testified that “touch” means “shoot or contact.” The position of the Crown is that the text message is a piece of circumstantial evidence from which to draw the reasonable inference that Mr. White will shoot the baby father if the accused sends him a real firearm.
[32] On May 16, 2015 at 5:07 p.m. the accused telephoned Mr. White. They discussed drugs and then the accused said, “Yow, concerning the other thing, my brethren said none… whatever is around isn’t for sale right now.” Mr. White asked the accused to give him something and said, “I’d even give you a collateral to hold onto wh… till I bring it back.” The accused replied, “All right then. I can do that.”
[33] The Crown submits that this conversation is a piece of circumstantial evidence that the accused and Mr. White are talking about a firearm. It is submitted that Mr. White took the previous day’s conversation seriously because he offered collateral to rent a firearm and the accused said, “I can to that.” It is submitted that the accused was offering to transfer the firearm.
[34] On June 1, 2015 at 7:36 p.m. the accused telephoned Mr. White and told him that he wanted some “teeth.” Officer Horner testified that teeth means “ammunition.” When Mr. White asked the accused, “what kind,” he said, “forty” and “fifth.” Officer Horner testified that this refers to two types of ammunition – 40 caliber and 45 caliber. The Crown submits that this is a further piece of circumstantial evidence that the parties are dealing in real firearms.
[35] Therefore, it is the Crown’s position that the inferences to be drawn from the circumstantial evidence proves beyond a reasonable doubt that the accused offered to transfer a firearm to Mr. White. The offer was put forward in a serious manner and the accused intended the offer to be taken as genuine.
Offer to Traffic in Cocaine
[36] Subsection 2(1)(a) of the Controlled Drugs and Substances Act (CDA) provides in part that “traffic” means “to sell, administer, give, transfer, transport, send or deliver.” Subsection 2(1) (c) of the CDA provides in part that “traffic” means to offer to do anything mentioned in paragraph (a).
[37] The ordinary meaning of “offer” in the Merriam-Webster Dictionary is “to present for acceptance or rejection.”
[38] In s. 5(1) of the CDA, the essential elements of the office of trafficking are: that the accused trafficked in a substance; that the substance was cocaine; that the accused knew that the substance was cocaine, and that the accused intentionally trafficked in cocaine.
[39] The offence of trafficking by offer is made out if the accused offers to traffic in a narcotic (the actus reus), and intends to make an offer that will be taken as a genuine offer by the recipient (the mens rea). The Crown is not required to prove that the accused actually intended to go through with the offer and sell or otherwise provide the offered narcotic. R. v. Murdock, at paras. 9, 13. See also R. v. Duncan, at paras. 92-94.
[40] For the offence of trafficking by offer, the Crown relies in particular on two intercepted conversations. On May 15, 2015 at 9:35 p.m. the accused telephoned Mr. White and asked him what he needed. Mr. White said that he was looking for “the work thing, the sof’ thing.” Officer Margetson testified that “work” means cocaine and “sof” means powder cocaine.
[41] The accused told Mr. White that he had to “link that youth. You know my… my… my… my boy was back from Jamaica and he was fucking up the place for a minute, dog, but… …so I was just building up but he flew out again. But I’m gonna call my next nigger and ask him what he’s up to, but it’s some ridiculous prices out there.”
[42] The accused and Mr. White discussed firearms and then the accused said that he would call the other man to see what was going on. Mr. White replied, “I have a link… . I just thought you had somethin’, I would’ve just move it for you, cause I have… my phone is ringing, fast. The past two days I’ve been getting rid of a lot, you know. … Even two bounce and stuff I get rid of in like two days, you know.” Officer Margetson testified that “two bounce” means two ounces of cocaine.
[43] When Mr. White told the accused that roofers are buying his drugs, the accused laughed and said, “I think I have to go jump on that too during the day with you.” Then the accused said, “I can get my own thing right now, cause it’s… it’s there, it’s jus’… I… I send somebody for it.” Mr. White asked the accused to find out what is going on and to let him know. The accused said that he was going to make some calls.
[44] The Crown submits that the conversation is a piece of circumstantial evidence that Mr. White deals in cocaine and is offering to sell drugs for the accused. The accused told him that he could get his own drugs. Mr. White asked the accused to find out what is going on and the accused was going to make some calls.
[45] On May 16, 2015 at 5:07 p.m. the accused telephoned Mr. White and told him that two of his “brethren” said they have the soft. He said, “So, you already know what the price is: sixteen … platinum.” Officer Margetson testified the accused is informing Mr. White that his brothers have high quality powder cocaine for a price of $16,000.
[46] Mr. White replied, “That’s crazy.” He asked the accused if it was “cut,” meaning diluted with an adulterant. When the accused told him that it was not cut and Mr. White replied that he wanted to see it for that price. The accused said that he would try to see if he could get it for “fifteen.” Mr. White maintained that he could get it for “even thirteen” and he moved it for “about fourteen, fifteen.”
[47] The accused said, “…right now everybody is off on vacation, you know how it is in the summer. They know it’s clean up time so the big men are all gone.”
[48] The accused told Mr. White that even if he bought it for fifteen, he would show him a way to cut it. Mr. White said that if it was “fire,” he did not like to give them anything that is touched up. Officer Margetson testified that “fire” means of high quality. The accused assured Mr. White that it was fire. When Mr. White asked what colour it was, the accused said, “It’s all brown.”
[49] The Crown submits that the accused was offering to sell powder cocaine to Mr. White and that they are bargaining about the price. The accused told Mr. White that even if he bought it for $15,000, he would show him how to cut it in order to make a profit.
[50] Officer Margetson’s evidence was that in the drug sub-culture, people have hidden agendas. It is not uncommon for the potential purchaser to assess whether the person with whom they are dealing is trustworthy and able to provide a good product, nor is it uncommon for the seller to misrepresent the quality of the product. He said, “Everyone talks a game.”
[51] The officer’s opinion was that in the Greater Toronto Area and in areas in and around major population centres in Ontario, the price of powder cocaine at the ounce level in 2015 was between $1200 and $1800.
[52] He testified that powder cocaine is always a white colour and crack cocaine is light beige. It can be a darker shade of beige if a cutting agent is used to dilute the product in order to increase the profit margin of the drug dealer. Heroin is brown or mocha, similar to the colour of instant coffee.
[53] It was Officer Margetson’s opinion that taking into account the price, weight and language used by the parties, they were talking about cocaine and not heroin.
[54] Therefore, Crown submits that the inferences to be drawn from the circumstantial evidence prove beyond a reasonable doubt that the accused offered to traffic in cocaine to Mr. White. He offer was put forward by the accused in a serious manner and he intended that the offer be taken as genuine.
The Jurisdictional Averment
[55] The accused is charged with committing the offences “during the period from and including 15th day of May in the year 2015 to and including the 16th day of May in the year 2015, in the City of Toronto in the Toronto Region and elsewhere in the Province of Ontario.”
[56] The Crown submits that pursuant to s. 470 of the Criminal Code, this court has jurisdiction to try the accused because the accused was charged with indictable offences within the offence jurisdiction of the court. Further, he was arrested, ordered to stand trial, appeared and entered a plea in the City of Toronto in the Toronto Region.
[57] It is submitted that s. 47(2) of the CDA similarly gives this court jurisdiction to try the accused “in the place where the offence was committed or where the subject matter of the proceedings arose or in any place where the accused is apprehended or happens to be located.”
[58] The Crown asserts that there is ample evidence to tie the accused to Ontario at the time of the offences. He was bound by a recognizance of bail which stipulated that he reside in Toronto. He was using a telephone line commencing with 647, a Toronto telephone area code, which was registered in his name with an address in Toronto. The Ministry of Transportation lists an address for the accused in Trenton, Ontario on his driver’s licence history.
[59] The Crown relies in particular on three intercepted telephone communications to assert that at the time of these offences, the accused was in Toronto and elsewhere in Ontario and in close proximity to Mr. White who resided in Oshawa. On May 15, 2015 at 9:35 p.m. Mr. White told the accused that he had been getting rid of a lot of drugs by selling them to roofers and the accused said, “I think I have to go jump on that too during the day with you.”
[60] On June 1, 2015 at 7:24 p.m. the accused telephoned Mr. White and said, “Yow, I’m here. Yow, yow, me and my brethren want to come there to see what’s going on, eh.” Two minutes later, the accused telephoned Mr. White and said, “I’m right down the street from… from there.” He told Mr. White that he would come “up there tomorrow to see you.”
[61] The position of the Crown is that although the accused had information from the charges on the indictment to identify the times and locations of the acts to be proved against him, he did not ask for particulars and since his arrest on November 7, 2015, he has made no complaint about the jurisdictional component of the charges. It is submitted that in the absence of evidence to the contrary, this court has the jurisdiction to try the case.
[62] The defence submits that the Crown mischaracterizes the issue. The defence accepts that the court has the jurisdiction to try the case. The position of the defence is that the indictment particularizes the locations where the crimes are alleged to have been committed in the City of Toronto and elsewhere in the Province of Ontario. It is submitted that these essential averments are conjunctive and must be proven beyond a reasonable doubt.
[63] The defence agrees that the evidence proffered by the Crown provides some circumstantial evidence that the accused may have been in Ontario in May and June of 2015. However, it is submitted that there is a lack of evidence and gaps in the inference chain in the intercepted communications to reasonably infer that the location of the accused when he is alleged to have made the offer to transfer a firearm and the offer to traffic in cocaine was in Toronto and elsewhere in Ontario. For the Crown to suggest otherwise is mere speculation.
The Police Response
[64] Officer Horner’s evidence was when the police are listening to intercepted communications and they hear about a potential future criminal transaction, they may conduct surveillance on the person communicating with the target in order to determine whether the transaction is ultimately carried out. If there is mention of a source in the United States or the Caribbean, the police may investigate and try to disrupt the transnational behavior. He agreed that if real evidence is discovered, it would tend to support the police theory as to the meaning of the language used in the intercepts.
[65] Officer Horner also agreed that if one party to the interception is known and the other is unknown, the police would likely take steps to gather intelligence on the unknown person. He testified that in 2015, social media evidence was a feature used in these types of investigations because individuals may use social media accounts to broadcast where they are and the police may be able to conclude from background images where the individual is located.
[66] The officer testified that in order to maintain secrecy, an individual may use a telephone line registered in a fictitious name or registered to someone else. He agreed that if a person was using a telephone registered in his own name, it could be problematic for the individual if the aim of his conversation was an attempt to keep secret who they are and what they are colluding about.
[67] Officer Margetson testified that if there is a discussion on the intercepts about contacts or sources in the United States bringing drugs and firearms into Canada, the information would be relevant to the police in the investigation. He agreed that it could assist the investigation if surveillance was conducted to determine whether the acts of the person communicating with the target are consistent with the intercepted communications.
Analysis
[68] The communications between the accused and Mr. White were intercepted between April 20, 2015 and June 4, 2105. Officer Horner testified that a small number of intercepted conversations may limit an assessment and understanding of their contents.
[69] The first communication proffered by the Crown is a text message sent by Mr. White to the accused on Friday May 15, 2015 at 3:49 p.m. which states, “Wa gwan?dnt got nothing for me?” The communication is initiated by Mr. White who appears to be looking to buy something.
[70] The second communication relied on by the Crown is a text message from the accused to Mr. White on May 15, 2015 at 4:56 p.m. which states that and the accused is at work and will link him. The accused did not follow up. At 8:10 p.m. Mr. White sent a text message which stated, “Wag wan?”
[71] One and one-half hours later, the accused telephoned Mr. White and they spoke about the accused’s work life. The accused said that he was “trying to do something legit” because he had an upcoming trial in September and an appeal.
[72] The accused asked Mr. White what he needed and he said that he needed a firearm for a video shoot. The accused was going to try to contact someone who had a firearm for $3500 and would let him know by Monday or Tuesday. At that point, there does not appear to be any urgency for the accused to want to do anything for Mr. White.
[73] Contrary to the Crown’s assertion that when he told Mr. White not to say a word, the accused was warning him to keep their conversation a secret, the defence submits that the accused was telling Mr. White that he did not have to tell him anything else. Nothing more needed to be said. The accused would get the information for him. For example, when Mr. White said that he had to hear the prices for the firearms, the accused said, “Yeah, don’t say a word, dog, ah… I’m gonna make a… make the… make the talk.”
[74] I accept that in the text message sent on May 16, 2015 at 1:27 a.m. Mr. White is offering to shoot someone for the accused, thereby demonstrating his interest in acquiring a firearm. In the text message sent four minutes later, the accused writes: “I’m going to talk to my nigga.” In the message sent five minutes after that, the accused writes: “I have go and see him.” Twelve minutes later, the accused writes: “But I will talk to my nigga for you.”
[75] On May 16, 2015 at 5:07 p.m. the accused telephoned Mr. White and told him that two of his brothers had powder cocaine. Mr. White told him that the price of $16,000 was crazy and he wanted to see the drugs. The accused said that Mr. White would have to come during the day because he was at work. He also said that he would try to see if he could get the cocaine for “fifteen, the lowest” and offered to assist Mr. White to earn a profit by diluting the product. The accused ended the conversation about drugs by saying, “[W]henever you’re ready.”
[76] During the same call, the accused informed Mr. White that “concerning the other thing [the firearm] …whatever is around isn’t for sale right now.” In other words, there is nothing for sale.
[77] When Mr. White offered to give the accused collateral for a firearm, he said, “All right, I’ll sort that out.” Mr. White repeated his offer to give the accused “something for something” and the accused replied, “I can do that.” The defence submits that the accused is doing nothing more than making inquiries and conveying information to others on behalf of the purchaser.
[78] Contrary to the Crown’s assertion that Mr. White offered collateral because he took the accused’s offer seriously, the defence contends that Mr. White was independently interested in obtaining the contraband and was making his own offer to try to do so.
[79] The defence also submits that when the accused telephoned Mr. White on June 1, 2015 at 7:24 p.m. telling him that he wanted to come there to see what was going on, the discussions between the two men that had occurred sixteen days earlier were not revisited.
[80] The accused was arrested six months after the communications between the two men were intercepted. The documentary evidence proffered by the Crown suggests that at some point during the relevant time period, the accused may have been living in Toronto and Trenton.
[81] There is no evidence that the police sought a production order for the accused’s telephone records or conducted checks on known telephone numbers to ascertain the location of the intercepted communications. There is no evidence that the police accessed the email address of the accused or his social media accounts.
[82] There is no evidence of surveillance conducted on the accused, or any efforts to obtain a search warrant for his residence or his automobile.
[83] Although there was a residency requirement in his bail documents, there was no evidence that the police attended at the residence. There was no curfew imposed or house arrest provision or evidence requiring the accused to remain in Ontario, which may have assisted in particularizing the jurisdictional requirement in the indictment.
[84] There is also no evidence that the police made efforts to ascertain the accused’s source or contact in Philadelphia or in Jamaica, or anywhere, or attempted to seize the video of contraband that was discussed during the intercepted call on May 15, 2015 at 9:35 p.m.
[85] Such efforts by the police may have bolstered the inferences that the Crown is asking the court to draw from the intercepted communications.
[86] I find, therefore, that there is no reasonable inference to assist in identifying or localizing the locations of the offences in the City of Toronto and elsewhere in Ontario as pleaded in the indictment. The evidence falls short in establishing the jurisdictional averment and the Crown has failed to meet its onus beyond a reasonable doubt.
[87] In R. v. Villaroman at paras. 35-37, the Supreme Court of Canada held that in assessing circumstantial evidence, if there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. A gap in the evidence may result in inferences other than guilt. Those inferences, however, must be reasonable, given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.
[88] The Court in Villaroman stated that the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. The Crown may need to negate these reasonable possibilities, but does not need to disprove every possible conjecture which might be consistent with innocence. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
[89] In this case, no firearm or cocaine were located. As stated in Duncan at para. 93, this bears on the seriousness of the offer, despite the fact that the existence of a firearm or cocaine is not an element of the offences.
[90] There is no evidence that the police took any action to investigate the accused based on information they heard in the intercepted communications.
[91] Having listened to the intercepted calls, along with the transcripts provided, and having examined the contents of the text messages, I find that the accused acknowledges what Mr. White is saying and attempts to assist him by repeatedly telling him that he will contact someone else and seek out information from other parties. He is sharing information. He is a conduit of information and shares the information with Mr. White. The inference to be drawn from the interceptions is that the accused was not in a position to supply a firearm or cocaine.
[92] Mr. White seems intent on purchasing or renting a firearm, but the accused does not appear to be the person to transfer or deliver it. There was no information in the communications that there was a firearm available to transfer. The accused was only in a position to make inquiries, not a means of transferring or delivering a firearm or selling cocaine.
[93] There is no clear offer on the part of the accused. There are no words suggesting that the accused is offering to transport or deliver anything to Mr. White.
[94] Moreover, there is no great urgency or interest in pursuing an offer to do anything for Mr. White. After May 16, 2015, there is a 15 or 16 days gap where there is no communication. When the accused telephones Mr. White on June 1, 2015, their earlier discussions are not revisted.
[95] In my view, the Crown’s submission that the accused offered to transport a firearm and sell cocaine to Mr. White is pure speculation. At most, there is a preliminary discussion about a firearm and cocaine to be continued at some point in the future.
Disposition
[96] For these reasons, I conclude that there is a lack of evidence and gaps in the inferential chain to meet the standard of proof beyond a reasonable doubt with respect to the jurisdictional averment, the offer to transfer a firearm and the offer to traffic in cocaine.
[97] Accordingly, the accused is acquitted of the charges against him.
Dunnet J.
Date: January 23, 2019
COURT FILE NO.: CR-18-40000590-0000
DATE: 20190123
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DEMAR DWYER
Accused
REASONS FOR JUDGMENT
Dunnet J.
Released: January 23, 2019