COURT FILE NO.: CR-20-50000270-0000
DATE: 20201127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
bill allison and kamar cunningham
reasons for judgment
table of contents
Page No.
Overview of this Proceeding. 2
MR. ALLISON.. 3
Mr. Allison: The Charges. 3
General Legal Principles. 3
The Evidence of Mr. Allison Generally. 5
a. Personal Background. 5
b. Relationship with Biggs. 5
c. The Narcotics Business. 5
d. The Firearms Business. 6
Count 1: Commit firearms trafficking for the benefit of, at the direction of, or in association with a criminal organization. 6
The Charge. 6
The Legal Framework. 7
Analysis. 7
i. Did a criminal organization exist?. 7
ii. Was the indictable offence committed for the benefit of, at the direction of, or in association with the criminal organization?. 7
a. Was the Offence of Firearms Trafficking Committed by Mr. Allison?. 8
The Legal Framework of Trafficking Firearms. 8
Analysis. .. 8
The First Firearm: April 6, 2018. 9
The Evidence of the Intercepted Calls: Pre-Delivery of April 6, 2018. 9
The Delivery of the Firearm: April 6, 2018. 12
Evidence of the Intercepted Calls: Post Delivery of April 6, 2018. 12
The Second and Third Firearms: April 20, 2018. 17
Evidence of the Intercepted Calls: Pre-Delivery of April 20, 2018. 17
The Delivery of the Firearm: April 20, 2018. 18
Evidence of the Intercepted Calls: Post Delivery. 18
b. Did Mr. Allison commit the offence of trafficking in firearms for the benefit of, at the direction of or in association with a criminal organization?. 26
iii..... Did Mr. Allison commit the offences knowing that they were committed for the benefit of, at the direction of, or in association with the criminal organization?............................................................................................... 26
Count 3: Offer to Transfer a Firearm.. 27
The Charge 27
The Legal Framework. 27
Analysis... ... 27
Count 4: Conspiracy to Traffic in Firearms. 28
The Charge 28
The Legal Framework. 28
Analysis. . 29
i. Was there an agreement between Mr. Allison and Biggs?........................................ 30
ii. Was the agreement to commit the offence of firearms trafficking?. 30
iii. Was Mr. Allison a member of the conspiracy?. 31
MR. CUNNINGHAM......................................................................................................... 31
Overview of the Case Against Mr. Cunningham.. 31
Mr. Cunningham: The Charges. 31
General Legal Principles. 32
Count 5: Conspiracy to Traffic Firearms. 32
The Charge 32
The Legal Framework: Co-Conspirator’s Exception to the Hearsay Rule. 33
i. Has it been established beyond a reasonable doubt that a conspiracy existed?......... 33
ii. Does the evidence directly admissible against Mr. Cunningham establish, on a balance of probabilities, that Mr. Cunningham was a probable member of the conspiracy?........................................................................................................... 33
iii. Were the statements made by the co-conspirators made in furtherance of the conspiracy (or joint enterprise)?. 40
The Legal Framework of the Conspiracy Offence. 40
Analysis 41
i. Was there a conspiracy between at least two people to commit a crime?. 41
ii. Was the agreement to commit the offence of firearms trafficking?. 41
iii. Was Mr. Cunningham a member of the conspiracy?. 41
Count 1: Commit firearms trafficking for the benefit of, at the direction of or in association with a criminal organization. 45
The Charge 45
The Legal Framework. 45
Analysis. . 45
i. Did a criminal organization exist?............................................................................. 45
ii. Was the indictable offence committed for the benefit of, at the direction of, or in association with the criminal organization?. 46
a. Was the offence of firearms trafficking committed by Mr. Cunningham?. 46
i. Were the items firearms?. 46
ii. Did Mr. Cunningham transfer or offer the firearms?. 47
b. Was the offence of firearms trafficking committed for the benefit of, at the direction of or in association with a criminal organization?. 52
iii. Did Mr. Cunningham commit the offence knowing that it was committed for the benefit of, at the direction of, or in association with the criminal organization?. 53
Count 2: Participate in the activities of a criminal organization for the purpose of enhancing it to import firearms. 54
The Charge 54
The Legal Framework. 54
i. Does a criminal organization exist?. 55
ii. Has it been proven that Mr. Cunningham committed an act or omission which constitutes “active” participation in the activities of a criminal organization?. 55
iii. Did Mr. Cunningham participate in the activity of a criminal organization for the purpose of enhancing its ability to commit the offence of importing firearms?. 56
Count 6: Possession of Firearms for the Purpose of Transferring. 57
The Charge 57
The Legal Framework......................................................................................................... 57
Analysis. . 57
Conclusion 58
Appendix “A”. i-vii
Appendix “B”. i-xxvii
COURT FILE NO.: CR-20-50000270-0000
DATE: 20201127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
bill allison and kamar cunningham
S. Scratch and C. Otter, for the Crown
R. Rusonik, for Mr. Allison
J. Struthers, for Mr. Cunningham
HEARD: July 13, 14, 15, 16, 20, 21, 22; September 9,10 & October 30, 2020
KELLY J.
reasons for judgment
[1] Mr. Bill Allison and Mr. Kamar Cunningham are charged with several criminal offences arising from an investigation of organized crime in the City of Toronto and surrounding areas. The investigation was focused on the Five Point Generals and their associated groups. It was code-named “Project Patton”.
[2] A judge authorized the Toronto Police Service (“TPS”) to intercept and record the telephone calls and communications of several individuals between March 6, 2018 and June 21, 2018. As a result of this authorization, police intercepted calls and texts involving Mr. Allison and Mr. Harris Poyser. The intercepted communications also captured discussions with Mr. Ernest Wilson (“Biggs”), Mr. Kareem Lewis and Mr. Cunningham.
[3] Messrs. Allison and Cunningham agree that there was a criminal organization that included Mr. Poyser, Mr. Lewis, “Biggs” and “Apache”. Mr. Poyser has pleaded guilty to several offences arising from these incidents and is awaiting sentence.[^1] Mr. Lewis and Biggs are now deceased.
[4] The criminal organization imported firearms (and narcotics) into Canada from the United States (“U.S.A.”). They were transported to Toronto. It is alleged that the firearms ended up in the possession of Messrs. Allison and Cunningham to sell.
[5] At issue in this case are firearms that were brought into Toronto as follows:
i. April 6, 2018: 5 firearms (one of which was given to Mr. Allison);
ii. April 20, 2018: A shipment of firearms (one of which Mr. Allison testified was given to him to replace the one he received on April 6, 2018 as opposed to the two firearms the Crown alleged were provided to him);
iii. May 7, 2018: 29 firearms (which are alleged to have been distributed to Messrs. Cunningham and Lewis to sell); and
iv. May 23, 2018: 60 firearms (seized upon the arrest of Mr. Poyser).[^2]
[6] The Crown alleges there is evidence of several offers made by Mr. Allison to sell the three firearms they say, he received. Mr. Allison testified and said that he received two firearms, neither of which were offered for sale. Both were given to him for his personal use. As such, he submits the offences have not been proven against him beyond a reasonable doubt.
[7] Mr. Cunningham did not testify. He submits that Crown Counsel has failed to prove these offences beyond a reasonable doubt.
[8] For the reasons set out below, I find Mr. Allison guilty of all three Counts as charged. I find Mr. Cunningham guilty of all Counts but for the Count of conspiracy. What follows are my reasons.
Overview of this Proceeding
[9] With the consent of all counsel and both defendants, this matter proceeded by way of a Zoom hearing.[^3]
[10] There was an Agreed Statement of Facts filed. Numerous intercepted communications and surveillance videos were played and filed. Various members of the TPS testified, including Mr. Kurt Eccleston (a part-time monitor/translator/typist qualified as an expert in Patois translation) as well as Officer Ryan Smith (a firearm coded language expert). The voluntariness of a statement provided by Mr. Allison to members of the TPS was conceded. It was introduced as part of the Crown’s case. As stated above, Mr. Allison testified in his own defence. Mr. Cunningham did not.
[11] At the outset of this proceeding, Counsel for Mr. Allison submitted that Messrs. Allison and Cunningham were being tried together as a “matter of convenience” because the cases against both defendants are distinct. I agree and will deal with my analysis regarding each defendant separately.
MR. ALLISON
Mr. Allison: The Charges
[12] The charges against Mr. Allison are as follows:
| Count | Offence | Criminal Code Offence |
|---|---|---|
| 1 | Firearms trafficking, pursuant to s. 99(1) of the Criminal Code[^4] for the benefit of, or at the direction of, or in association with a criminal organization between March 25 and May 24, 2018. | 462.12 |
| 3 | Offer to transfer a prohibited or restricted firearm knowing that he was not authorized to do so between April 6 and 22, 2018. | 99(1)(b) |
| 4 | Conspiracy with another person or persons to traffic in firearms contrary to s. 99(1) of the Criminal Code between March 25 and May 24, 2018. | 465(1)(c) |
General Legal Principles
[13] As I have stated above, Mr. Allison testified. Accordingly, when examining the evidence, I will consider the principles set out in R. v. W.(D.).[^5] I remind myself of those principles, which are as follows:
i. If I believe the evidence of the Mr. Allison, I must acquit.
ii. If I do not believe the evidence of Mr. Allison but it raises a reasonable doubt as to Mr. Allison’s guilt, I must acquit.
iii. Even if I am not left in doubt by the evidence of Mr. Allison, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of Mr. Allison’s guilt.
When considering the evidence of Mr. Allison, I have done so in the context of the evidence as a whole. I have not isolated his evidence in a vacuum.
[14] In assessing the evidence in this case, I also remind myself of the principles set out in R. v. Griffin[^6] and R. v. Villaroman[^7] regarding circumstantial evidence. In Villaroman, the Supreme Court of Canada reviewed how the trier of fact should consider and assess circumstantial evidence at paras. 37 and 38:
[37] When assessing circumstantial evidence, the trier of fact should consider ‘other plausible theor[ies]’ and ‘other reasonable possibilities’ which are inconsistent with guilt: … ‘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.
[38] Of course, the line between a ‘plausible theory’ and ‘speculation’ is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. [Citations omitted]
[15] Because circumstantial evidence requires inferential reasoning, it is important that I consider the reasonable alternative inferences in assessing the strength of the circumstantial evidence. In doing so, I remind myself of the following principle: am I satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty?[^8]
[16] When considering the circumstantial evidence, I also bear in mind the following principles, amongst others: that circumstantial evidence is not to be evaluated piece by piece but rather it is to be considered cumulatively and that a trier of fact’s application of logic, common sense and experience to the evidence engages consideration of both inherent probabilities and inherent improbabilities and, not infrequently, eliminating the likelihood of coincidence.[^9]
[17] With these legal principles in mind, I will now turn to the case against Mr. Allison.
The Evidence of Mr. Allison Generally
a. Personal Background
[18] Mr. Allison is currently 48 years of age with no criminal record. He was born in Jamaica and came to Canada in his early twenties. He is married and he has five children. He has been employed in an appliance business and a computer business in the past. Most recently, Mr. Allison has operated a lounge on King Street in the City of Toronto. It is the lounge business, Mr. Allison testified, that led him to believe that he required a firearm for his own protection. He has a license that would permit him to lawfully possess a firearm.
b. Relationship with Biggs
[19] Mr. Allison has known Biggs since he was a child through a business relationship with Biggs’ mother, Ms. Barbara Boothe (hereinafter referred to as “Mumsie”).[^10] Mr. Allison had known Mumsie for approximately 15 to 16 years. Together, they were involved in the appliance business.
[20] Approximately 10 years ago (2009-2010), Mr. Allison acted as a courier for Biggs. Biggs had been charged criminally and was under house arrest. Biggs asked Mr. Allison to retrieve firearms for him. Mr. Allison did so. Biggs compensated Mr. Allison for his role as a courier by giving him some of the firearms delivered. Mr. Allison described the firearms as “junk”. He testified that he destroyed them.
c. The Narcotics Business
[21] More recently, Mr. Allison was in the marijuana and Ecstasy business with Biggs. Mr. Allison was operating in Canada. Biggs was in the U.S.A. Mr. Allison explained the operation as follows:
i. Mr. Allison would send British Columbia hydroponic marijuana (hereinafter referred to as “hydro”)[^11] to Biggs in Miami, Florida. Biggs would send Jamaican marijuana (hereinafter referred to as “yardisha”)[^12] to Mr. Allison in Toronto.[^13]
ii. Mr. Allison was also purchasing Ecstasy from Biggs. Biggs would connect with “Geego”[^14] in Ontario. Geego would supply the Ecstasy pills to him. The Ecstasy pills would then be delivered to customers of Mr. Allison in Miami. The money from those sales would go back to Mr. Allison.
iii. Mr. Allison and Biggs were in the narcotics business for four or five years. If money was to be paid to Biggs, Mr. Allison delivered the money to Sharika. That eventually changed and Mr. Allison delivered the money to Mumsie.
[22] I accept and believe the evidence of Mr. Allison with respect to his personal history and his involvement with Biggs. In particular, I accept that together, they were involved in the distribution and sale of both marijuana and Ecstasy.
d. The Firearms Business
[23] Mr. Allison testified that he wanted his business dealings with Biggs to grow to include firearms. Mr. Allison testified that Biggs was to send firearms from the U.S.A. When delivered to Toronto, Mr. Allison would receive and sell them so that both he and Biggs could profit from this business. This too, I believe.
[24] The problem, Mr. Allison says, is that Biggs never provided the firearms to him for purposes of sale and was “merely stringing Mr. Allison along” so that he would continue to send Biggs hydro and sell his yardisha. He testified that he did receive a firearm from Biggs via Mr. Poyser on April 6, 2018 but that it was for his personal use. That firearm was deemed inoperable because Mr. Allison could not find ammunition for it.
[25] To make things right, Mr. Allison testified that he obtained a second firearm from the April 20, 2018 shipment. That firearm was to replace the inoperable one he had received previously.
[26] Mr. Allison testified that at no time did Biggs send him the firearms he was hoping to sell. He believes that Biggs never intended to supply any to him. Instead, Biggs supplied Mr. Poyser with the firearms. Mr. Allison received only two for his personal use and did not offer to sell either of those firearms.
[27] I do not believe Mr. Allison’s evidence, that he only received two firearms for his personal use. Nor does his evidence raise a reasonable doubt. On the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt that Mr. Allison offered to traffic the three firearms he received. When I consider his evidence in the context of the evidence as a whole, including the chronology and the intercepted communications, his evidence is not credible nor reliable. I will deal with each count in order.
Count 1: Commit firearms trafficking for the benefit of, at the direction of, or in association with a criminal organization
The Charge
[28] Mr. Allison is charged that between March 25 and May 24, 2018, he did commit the indicatable offence of firearms trafficking, contrary to s. 99(1) of the Criminal Code. It is alleged that he did so for the “benefit of, at the direction of, or in association with a criminal organization”, thereby committing an offence contrary to section 467.12 of the Criminal Code.
The Legal Framework
[29] The relevant portion of s. 467.12 provides as follows:
467.12(1) Every person who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
[30] To secure a conviction with respect to Count 1, Crown Counsel must prove the following essential elements:
i. That a criminal organization existed; and
ii. That the indictable offence (firearms trafficking) was committed for the benefit of, at the direction of, or in association with the criminal organization; and
iii. That Mr. Allison committed the offence knowing that it was committed for the benefit of, at the direction of, or in association with the criminal organization.
[31] I will deal with these essential elements in order.
Analysis
i. Did a criminal organization exist?
[32] The existence of the criminal organization is conceded by Mr. Allison. Its membership, he says, included Biggs, Apache, Messrs. Poyser and Lewis. The criminal organization was involved in importing yardisha and firearms from the U.S.A. and exporting hydro and Ecstasy to the U.S.A.
[33] The business of the criminal organization evolved from narcotics to firearms. It was Mr. Allison who suggested this evolution as the sale of firearms was easy and would create profits.
ii. Was the indictable offence committed for the benefit of, at the direction of, or in association with the criminal organization?
[34] There are two considerations with respect to the second essential element of this offence. The first is, did Mr. Allison commit an indictable offence (i.e., firearms trafficking) and if so, was it for the benefit of, at the direction of, or in association with the criminal organization? I will deal with each issue separately.
a. Was the Offence of Firearms Trafficking Committed by Mr. Allison?
The Legal Framework of Trafficking Firearms
[35] The indictable offence alleged to have been committed by Mr. Allison is firearms trafficking by offer. The legal framework for the offence of firearms trafficking is set out in s. 99(1)(b) of the Criminal Code which provides as follows:
- (1) Every person commits an offence who
(a) manufactures or transfers, whether or not for consideration, or
(b) offers to do anything referred to in paragraph (a) in respect of
a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or any prohibited ammunition knowing that the person is not authorized to do so under the Firearms Act or any other Act of Parliament or any regulations made under any Act of Parliament. [Emphasis added]
[36] The Ontario Court of Appeal, in the case of R. v. Murdock,[^15] discussed trafficking by offer in the context of drug offences. Doherty J.A. found that the offence of trafficking by offer is proven if the defendant intends to make an offer that will be perceived as a genuine offer by the recipient. He further stated:
Provincial appellate courts have repeatedly held that where an accused is charged with trafficking by offer, the Crown is not required to prove that the accused actually intended to go through with the offer and sell or otherwise provide the thing that is offered.[^16]
The principles set out by Doherty J.A. in Murdock are equally applicable to offences alleging the trafficking of firearms.[^17]
Analysis
[37] Crown Counsel alleges that Mr. Allison trafficked by offer. Mr. Allison denies that he did so. As I have stated above, he says that he received two firearms for his own personal use. Mr. Allison asserts that at no time did he offer the firearms to others and as such, he committed no offence contrary to s. 99(1) of the Criminal Code. I do not agree.
[38] I find that Mr. Allison received three firearms in the two shipments from Biggs on April 6 and April 20, 2018. Further, I find that Mr. Allison made offers to traffic all three firearms. (I have set out the entire chronology of events involving Mr. Allison in Appendix “A” attached hereto.)
The First Firearm: April 6, 2018
[39] Prior to the first shipment of firearms on April 6, 2018, Mr. Allison testified that he had told Biggs that he needed a firearm for protection at his lounge.[^18] That said, he testified that he also wanted their business to expand from narcotics to firearms and thought that Biggs did as well. Mr. Allison believed that as part of that agreement, Biggs would send firearms from the U.S.A. to Toronto where they would be sold. Monies would be sent back to Biggs so that he could purchase more firearms and the cycle could continue.
[40] Just prior to the first shipment of firearms on April 6, 2018, Biggs sent photos to Mr. Allison by text. The photos were of two firearms. Mr. Allison assumed they were “9’s”. He believed that that is what he would be receiving as part of the shipment.[^19]
The Evidence of the Intercepted Calls: Pre-Delivery of April 6, 2018
[41] Although Mr. Allison testified that he received the firearm in the April 6, 2018 shipment for his personal protection at his lounge, a review of all intercepted communications between Biggs and Mr. Allison does not support this claim. Not one of the intercepted communications makes a reference to Mr. Allison’s lounge business and/or the fact that he required a firearm for his personal protection (although in one call, Biggs refers to his “personal thing”).
[42] Further, the content of the call on April 6, 2018 at 14:22 (Tab 2)[^20] is inconsistent with Mr. Allison’s evidence that he was receiving one firearm from this shipment for his personal use. At no point is there a distinction between the five firearms being sent by Biggs and one being for Mr. Allison’s personal use:
i. During this call with Biggs, Biggs advises Mr. Allison that there will be five firearms in the shipment but that not all of them will be going to Mr. Allison. Mr. Allison responds saying, “Let them get to where they’re supposed to go”.
If Mr. Allison was expecting a firearm in this shipment for his personal use, he would not be asking to let “them” (i.e., more than one firearm) go to “where they’re supposed to go” (i.e., to him). While this comment may be consistent with Mr. Allison’s desire to traffic firearms, neither Mr. Allison nor Biggs distinguish that one of these firearms is for Mr. Allison’s personal use.
ii. During this call, as well, Biggs suggests allowing “one”’ to drop into Mr. Allison’s hands. Mr. Allison responds, saying, “Brethren, I want all of them dog, to deal with brethren”.
Mr. Allison’s request for wanting all five firearms to “deal with” does not suggest that one of them is for his personal use. The inference to be drawn from this passage is that he wants all five in order to sell them.
Mr. Allison testified the reference, by Biggs, to allowing one to drop into his hands is an acknowledgement that this firearm was for his personal use. However, the entirety of this call is about the sale of the firearms shipped and not that this firearm was for his personal use as he asserted.
iii. Later in this call, Mr. Allison complained about the involvement of too many people in the shipment and distribution of the firearms. He suggests that the “left right man” (i.e., the courier, Mr. Poyser) is “supposed to left-right it and let me get it”.
If it was intended that he was to receive only one firearm in this shipment for his own use, why does Mr. Allison care about the role of the courier? The inference to be drawn is that Mr. Allison is annoyed that the “left-right” man is not doing what he is supposed to do: deliver all of the firearms to him.
iv. During the call, Biggs says, “And then I thought about it and I said fuck, I can’t allow that five to reach without Uncle B getting at least one out of it.” And then he says, “I just said to myself, fuck it, man. Let Uncle B get at least two or one out of it”.
If it were the intention that Mr. Allison was to receive one firearm from this shipment for his personal use, why would Biggs suggest that he should get “at least two”? There is never any distinction between one firearm being for personal use and the others being for sale or any reference to Mr. Allison requiring a firearm for his protection at the lounge.
v. Biggs then asks Mr. Allison if he would like the “one-isha” and if he does, “I’d just take the loss and say yow, just give me … just give me two cents for the thing and just do whatever you’re doing man”. In response to the offer to take one of the firearms from this shipment, Mr. Allison replies: “I hear you, star, but I had already talked to some people. So …”.[^21]
Mr. Allison testified that he could not have offered the firearms for sale prior to delivery because he did not know the type or calibre of the firearms available to sell. I do not accept that evidence.
Mr. Allison could have offered the firearms for sale as he did have an idea of what he expected to receive. He testified that he got a text on the WhatsApp? platform from Biggs before the first shipment. It was a picture of two “9’s” and that was what he was expecting. As such, he could have represented to prospective buyers that he was expecting “9”’s in the shipment and could have offered them upon their arrival.
Mr. Allison testified about the reference, “I had already talked to some people”. He says that he merely represented to Biggs that he had customers lined up to try and convince Biggs to send the entire shipment of firearms to him. That inference is reasonable.
There are competing inferences to draw from this portion of the call, all of which are reasonable. As such, I find that Mr. Allison’s evidence does raise a reasonable doubt about any offers made prior the delivery of the firearms on April 6, 2018.
vi. This intercepted call ends with the following exchange: Biggs says that “if” a “one-isha” gets into Mr. Allison’s hands “you do what you’re doing” and then he would go see “mommy” tomorrow and “give that to her as well”. Mr. Allison appears to agree, saying “All right”.
The inference to be drawn from this part of the conversation is that Mr. Allison was going to accept delivery of the one firearm, that he would sell it (i.e., “do what you’re doing”) and then he would deliver the money from that sale to Mumsie “as well” (i.e., in addition to the money from the yardisha sales). This is supported by the content of the next calls.
[43] I find that the call nine minutes later at 14:31 (Tab 3) contradicts the evidence of Mr. Allison, that he was receiving the firearm in the shipment of April 6, 2018 for his personal use:
i. During this intercepted call, Mr. Allison is, again, talking to Biggs. Biggs explains that he had a person who could “move everything” but that he wanted Mr. Allison to get “one out of it”. Mr. Allison suggests that Biggs does not know how to do business saying, “a driver is a driver” and that Biggs should “just drop it off to [his] people and they do what they’re supposed to do”. Then they discuss rearranging the plan to meet Mr. Poyser (the driver) at Kennedy Road and the 401.
ii. Again, if the firearm was for Mr. Allison’s personal use, why would he be concerned about the method of delivery and the fact that Mr. Poyser is taking on an expanded role with regard to this shipment? He is complaining that Mr. Poyser is doing more than driving and acting as a courier because Mr. Poyser is now part of the program: controlling the distribution of firearms (i.e., he is able to “move everything”), in addition to transporting them to Toronto. This complaint and the fact that Mr. Allison suggests that the courier should deliver them to Biggs’ people so “they can do what they’re supposed to do” (i.e., sell the firearms), is inconsistent with Mr. Allison’s position that the firearm, in this shipment, was provided to him for his personal use.
The Delivery of the Firearm: April 6, 2018
[44] Following the two calls referred to above, there was a meeting wherein Messrs. Poyser and Allison meet for less than two minutes at 85 The Donway West. Mr. Allison concedes that he received a firearm from Mr. Poyser during this meeting: a .380 caliber that he says was for his personal use.
[45] Again, the calls following the delivery of this firearm contradict Mr. Allison’s evidence that the firearm was for his personal use.
Evidence of the Intercepted Calls: Post Delivery of April 6, 2018
[46] After Mr. Allison received the firearm and the following day, Mr. Allison testified that he had a conversation with a business associate, “Plum”. Mr. Allison explained that the calls between he and Plum at this time were about a transaction involving a “pound of weed” and not about the firearm that he had received the day prior.[^22] The plan was that Mr. Allison was going to sell the weed to Plum who was going to resell it. Again, I find that the content of the intercepted communications contradicts Mr. Allison’s evidence on this transaction.
[47] During the call of April 7, 2018 at 12:01 p.m. (Tab 7), Plum tells Mr. Allison that he has a man coming from London to see him. He talked to the man from London “about that from yesterday but it’s something different”. The following exchange then occurs:
Mr. Allison: How do you mean something different? Which one?
Plum: No, the same thing you’re telling me about. Yeah, that’s what I’m saying.
Mr. Allison: Which one was I telling you about? It’s the thing I got from you the other day, you know.
Plum: Yeah, that’s what I’m talking about.
Mr. Allison asks if the man from London is “ready” or “just coming to look at it”. Plum says that the man is ready and asks, “what are your numbers”? Mr. Allison chuckles and says “four”. Plum suggests that Mr. Allison is “crazy”.
[48] The call at Tab 7 is not consistent with selling a “pound of weed”, especially when read in the context of the next call that Mr. Allison has with Biggs. I will deal with the call at Tab 7 first, and the inferences I draw from it:
i. It is odd that a customer from London would be coming to “look” at marijuana rather than obtain a sample to test it. It is more likely that the customer from London was coming to “look” at a firearm.
ii. The fact that Plum talked to the man from London about “that from yesterday” is consistent with Mr. Allison having received the firearm the day prior.
iii. Mr. Allison’s comment to Plum, “It’s the thing I got from you the other day, you know” is curious and a lot of emphasis was placed on this sentence during submissions. Counsel for Mr. Allison suggests that this sentence should be interpreted literally and that if it is, it cannot be about a firearm because Mr. Allison did not get the firearm from Plum the day prior.
Mr. Allison explained that this reference is to the type of marijuana that he received from Plum – hydro. Mr. Allison says he is simply clarifying that Plum wants weed similar to what he got from Plum on another day.[^23] This is certainly an inference that can be drawn because he did not get the firearm from Plum, he got it from Mr. Poyser. However, there are others that are more consistent with the chronology.
A review of the entirety of the transcripts of the intercepted communications, demonstrates that the words used by any participant are not always grammatically correct. The participants are talking in a coded manner and as such, not every sentence makes sense, unless you are one of the participants and understand the context. This was explained by Mr. Allison, himself, during cross-examination, albeit on a different issue.
When asked, in cross-examination, about the term “bill”, it was suggested to Mr. Allison that it was never used to describe $1,000 and that it likely meant $100.[^24] Mr. Allison responded, “It’s, it’s not me use a term like you know some people refer to certain things and you understand what they’re saying.” This was pursued by Crown Counsel (Mr. Scratch), who asked, “But isn’t it more prominent to, to when somebody uses the slang ‘bill’ they mean 100 bucks? Like I’m short two bills usually means I’m short $200? So that when somebody uses the slang ‘bill’, they mean $100?” Mr. Allison responded, “Mr. Scratch, in our world we never talk straight down. I, he would say something, and I have to read between what he’s saying”. The reference to “the thing I got from you the other day” may be one of those sentences: only the participants know what they are talking about.[^25]
Although it is curious that Mr. Allison remarks that “it’s the thing I got from you the other day, you know”, I find that such a comment, when considered in the context of other calls, was about a firearm.
iv. Mr. Allison testified that when Plum asked him, “what are your numbers”, Plum was asking how much money Mr. Allison wishes to make out of the deal. Mr. Allison advises “400” because he wanted Plum to have some “wiggle room” and earn a profit as well.[^26]
I do not believe that Mr. Allison was content to make only $400 off the sale of marijuana. Mr. Allison testified that this was a sale of hydro. Mr. Allison testified that he could earn a profit of $1,000 on the sale of a pound of hydro.[^27] It makes no sense that Mr. Allison would want to earn less money because this transaction was happening at a time he was in financial distress. For example, Mr. Allison testified that in March 2018 he was falling behind on some of his mortgage payments and was “stretched thin”. He agreed that this was a time when he needed cash.[^28]
Further, if it was intended that Plum would earn a significant profit from the sale of marijuana, it is unlikely he would be suggesting that Mr. Allison’s numbers are “crazy” and would be thanking him instead.
v. Lastly, the inference to be drawn from the chuckle when Mr. Allison says that he wants “4” for the item being sold is that he knows that the firearm that is for sale is not worth $4,000 because the “seeds” (i.e., ammunition)[^29] are not easy to find, making the firearm less desirable to a potential purchaser. This inference, too, is supported by the content of the call set out immediately below.
[49] As I have stated, the content of the call with Plum, set out immediately above, must be put into context with the call that Mr. Allison had with Biggs 90 minutes later. It took place on April 7, 2018 at 13:42 (Tab 8).
i. In this call Biggs asks Mr. Allison what he has to say. Mr. Allison replies, “… I am moving to an angle right now. So, I’ll call you soon and … and let you know that thing is freed up”. Biggs asks, “It’s going to get done?” to which Mr. Allison says, “Yeah man”.
The inference to be drawn from this portion of the call is that Mr. Allison is going to the meeting at 3:00 p.m., previously arranged with Plum and that he will let Biggs know when “that thing” (i.e., the firearm) is sold.
This inference is further supported by the evidence of Mr. Allison regarding his business with Plum. Mr. Allison testified that Biggs had no interest in any business between he and Plum. As such, it makes no sense that Biggs is asking if the marijuana purchase is going to get done and there was no need for Mr. Allison to report to Biggs when “the thing is freed up”, if it was indeed marijuana. Put simply, it was none of his business.
ii. When told that the transaction is going to get done, Biggs then says “… Oh, because I’m laughin’ at you. I am saying yow, look how the dog … he is saying a hundred in one day, yet he can’t do one in one day. I am laughing at you in my head.”
The inference to be drawn from this portion of the call is that Biggs is inquiring about the sale of the firearm given to Mr. Allison the day prior. He is mocking Mr. Allison because he wanted all five firearms from this shipment yet is unable to sell the one that he received “in one day”.
iii. There is then a discussion about which “one” was given to Mr. Allison. Biggs asked if he got the “chrome one”. Mr. Allison replies, “I got ahm, no man. I only got the one for which the … the teeth are hard to find.[^30] I got the little three-eights, you know”. Mr. Allison tells Biggs that he wants the “general one” that the “seed is easy to find”. Mr. Allison explains that “even yesterday, a youth came to see me and he was saying yow, he couldn’t find any seed for the one that I have. You understand? It would have been gone from him immediately, because I called a … a youth and he said, ‘Fuck Bill, you have seed?’ And I said no. He said he couldn’t find any seed for it. I have the other seeds. You understand?” Mr. Allison repeats that the “general seeds” are “easy to find”.
The inference to be drawn from this portion of the call is that Mr. Allison is explaining why he is having difficulty getting rid of the firearm that was provided to him the day before – it is difficult because the ammunition (i.e., the “seeds”) are hard to find (.380 calibre ammunition is smaller than 9 mm ammunition and is more difficult to find).[^31] If he had the “general” with the “seeds” that are easy to find, the firearm would have been sold immediately.
In this call, Mr. Allison further explains that he showed a “youth” a firearm the day before and that that firearm would have been “gone from him” if it had ammunition to discharge. The inference to be drawn is that Mr. Allison offered the firearm the day before but that the offer was not accepted because there was no ammunition to make the firearm operable. If the “youth” was not interested in acquiring the firearm offered from Mr. Allison, why ask, “Fuck Bill, you have seed?”
When asked why Biggs was saying things such as “…I’m laughing at you … he can’t do one in one day”, Mr. Allison testified that it is because Biggs believed that Mr. Allison was going to sell the firearm at 3:00 p.m.[^32] Even Mr. Allison believes the inference to be drawn from this call is that he was going to sell the firearm at 3:00 p.m. That is because it is the logical inference to draw from the content of this call.
iv. Later in the call, Mr. Allison tells Biggs that he will call Biggs back “soon” because he is moving on an “angle” at 3:00 p.m. Biggs replies, “Yeah man, deal with it man. Let me feel good inside.”[^33]
The inference to be drawn from this portion of the call is that Mr. Allison is meeting with Plum and his customer from London to sell the firearm. Biggs wants the firearm to be dealt with and is interested in the outcome. If the transaction was for hydro in the business enterprise of Mr. Allison and Plum, Biggs would have had no interest in the outcome of this “angle” at 3:00 p.m. and there would have been no need for Mr. Allison to call Biggs back “soon”, after the “angle”.
v. Before the call ends, Biggs tells Mr. Allison, “you probably can pick up another two, you know” to which Mr. Allison responds, “let me do what I am doing first”. Mr. Allison then asks, “what type is the other two” to which Biggs says, “a much prettier thing than that, man … those chrome ones”.
The inference to be drawn from this portion of the call is that Mr. Allison wishes to deal with the one firearm that he received “first” (i.e., sell it) before he contemplates obtaining another two.
[50] The bulk of this conversation is all about firearms as they talk about the “teeth”, the “chrome ones”, the “seed”, the “general one”, the fact that the general seeds “are easy to find” and the fact that Mr. Allison is going to do what he is doing “first” before he contemplates picking up others that are “much prettier”. In my view, the entirety of this evidence supports the inference that the “angle” at 3:00 p.m. is for the purpose of selling the firearm that Mr. Allison received the day before. Plum is Mr. Allison’s agent for this purpose. As such, I find that there was an offer, made by Mr. Allison, to sell the firearm on April 7, 2018.
[51] I have read (and re-read) this chronology in light of Mr. Allison’s evidence that his discussions with Plum were about a sale of marijuana. After doing so, I have concluded that I do not believe his evidence. When I consider all of the evidence, I find that the only reasonable inference to draw is that they were talking about the sale of the firearm received by Mr. Allison on April 6, 2018. As such, the firearm was offered for sale by Mr. Allison.
[52] For these reasons, I do not believe that Mr. Allison received one firearm in this shipment for his personal use and did not offer it for sale. Nor does his evidence raise a reasonable doubt. I find that the chronology and the content of the abovementioned calls leads to the reasonable inference that Mr. Allison offered the firearm for the purpose of trafficking it on April 6, 2018 when there was an attempt to sell it, but he could not because it was inoperable and then again, on April 7, 2018, when Plum was meeting with his customer from London.
The Second and Third Firearms: April 20, 2018
[53] I also find that Mr. Allison received two firearms in the shipment of April 20, 2018 and that he offered them both for sale thereafter. He denies that he did. He testified, as follows, about the firearms received on April 20, 2018:
i. that he only received one firearm from this shipment and that the firearm that he did receive (a Ruger) was a replacement for the inoperable firearm he received on April 6, 2018;
ii. that his discussions with Plum, set out below, are about the sale of two kilos of cocaine and not two firearms. As such, no firearms were offered for sale; and
iii. that the monies paid to Mumsie (two days after he received the firearms) were for a future order of Ecstasy and not monies received from the sale of the firearm(s).
I do not believe Mr. Allison’s evidence in respect of these two firearms, nor does it raise a reasonable doubt. I find that the only reasonable inference to draw from the evidence is that Mr. Allison offered to traffic the two firearms he received on April 20, 2018.
Evidence of the Intercepted Calls: Pre-Delivery of April 20, 2018
[54] During the calls that pre-date (and post-date) the delivery of the firearms on April 20, 2018, there is no discussion about the firearm being a replacement for the one delivered on April 6, 2018. Further, there is no mention of a firearm being required by Mr. Allison for personal protection at his lounge.
[55] During a call on April 14, 2018 at 20:41 (Tab 10) and six days before the shipment, Mr. Allison is complaining to Biggs that they have not made any money together in four years. He suggests that they set goals. Biggs tells Mr. Allison that the “rrr’s are pretty” but that he knows Mr. Allison is going to call and complain. Mr. Allison suggests that he will not complain “as long as I don’t have to call any mechanic, I am good”. Biggs ends the call suggesting, “I have some more I am going to grab right now.”
[56] The inference to be drawn from this call is that Mr. Allison was dissatisfied with the firearm that he received in the prior shipment. (It is agreed that a “mechanic” is a person who repairs firearms in the context of this trial.) Biggs reports that the “rrr’s are pretty” suggesting that firearms of better quality are being sent in this shipment.[^34] All references to the firearms are plural and no reference is made about any of the firearms being a replacement for the one delivered to Mr. Allison on April 6, 2018.
The Delivery of the Firearm: April 20, 2018
[57] Six says later, during the call on April 20, 2018 at 11:02 a.m. (Tab 11), there is a three-way call between Messrs. Allison, Poyser and Biggs. Mr. Allison tells Mr. Poyser he is at the gym. Mr. Poyser tells him to walk to the shoe store. They eventually meet.
[58] Mr. Allison testified that Mr. Poyser showed him two firearms during this meeting and that he could choose one. They were both “junk”.[^35] He testified that he did receive a firearm (a very old Ruger) during this meeting, but that it was a replacement firearm for his personal use. I do not accept the evidence that Mr. Allison received only one firearm during this meeting.
Evidence of the Intercepted Calls: Post Delivery
[59] The calls that follow the meeting with Mr. Poyser lead to the conclusion that Mr. Allison received more than one firearm in the April 20, 2018 shipment and that both were offered for sale:
i. On April 21, 2018 at 18:48 (Tab 13) (the day after he received the firearm(s) from Mr. Poyser), Mr. Allison is speaking to Plum who says, “Seriously, one of my big man brethren linked me, you know, but he would grab two of them but he is asking … if I couldn’t give him a better number.” Mr. Allison responds that he has “already called the people” and they were saying that that is what “they have given it to me for …”. Mr. Allison says he was told that, “I could make some money off the other ones.”
The content of this portion of the call leads to the inference that Plum has a customer who would grab “two of them” (i.e., the two firearms received by Mr. Allison the day prior) but wants a better price. Mr. Allison was not in a position to change the price of the items, but he expected to make money on shipments in the future.
ii. In the same call, Plum suggests that his customer would be a repeat customer. Plum says, “I know he will come back to me, you understand what I am saying.” Mr. Allison replies, “Yeah, but it’s not like you are … it’s brand new … it’s brand new … these things are brand new, you know, dog. It’s not like you’re giving them fuckery, brethren.” Plum says that he told his customers that they were “thirty-three”, but his clients were asking for “something better” because “they wanted both of them”. Mr. Allison told Plum that it is not thirty-three but thirty-five. Mr. Allison suggests that “it doesn’t make any sense we are doing these things and we can’t get something out of it”. Mr. Allison then says, “It’s only because he is telling me that he has the other ones and that’s why or else I just wouldn’t bother with anything, brethren. … Because I know the other ones … I know I can get four for them, understand? … I can get that, but I don’t know why they bloodclaat brought those two to give me dog.” When asked by Plum, “How much should I say for the two of them”, Mr. Allison replies, “Brethren, see how close you can go to that … that same thing, dog …. Understand? If he’s … he’s taking off a bill off it or something…”.
The inference to be drawn from this portion of the call is that Plum is suggesting that his customers will be repeat customers and pursues a better price because they want “both” firearms.
During the call, Mr. Allison refers to the things being transacted as “brand new”. Mr. Allison testified that when he refers to the items as being “brand new”, he is referring to the fact that the cocaine is in the “original package, the quality, the price, they are uncut … They come from the islands where they’re pure quality” and that “it’s uncut, untouched”, “100 per cent coke”.[^36] However, the description of the items being “brand new” and in the “original package” is also consistent with firearms. Both the expert and Mr. Allison agreed that new firearms that are in their original packaging are of greater value than old, used firearms.
Further, if Mr. Allison’s explanation for his description of cocaine as “brand new” means the cocaine is in its original packaging and so pure, why would he suggest that he is disappointed with his distributors because “they bloodclat brought those two to give me dog”? This comment suggests he got product of lesser value and is not happy with the quality. If the cocaine was in its original packaging, how would he know that the two kilos of cocaine that he received were of lesser value and quality?
Further, Mr. Allison suggests that because of the poor quality of the “two” he was given, he would not bother with them anymore and that he knows there are other ones that will fetch a price of “four”. It is logical to infer that the firearms that he received are of lesser quality than the higher quality firearms he expects to receive in the future (i.e., the 60 or 70 firearms that Biggs refers to below that are “pretty” and may attract a price of $4,000).
Mr. Allison testified that the prices referred to in this call are in the thousands (i.e., $33,000 and $35,000 for a kilo of cocaine).[^37] When Mr. Allison says that he knows that he can get “four for them”, he is telling Plum that he could get $40,000 for each kilo of cocaine if he sold them himself.[^38] Again, it makes no sense that Mr. Allison would take a loss of $5,000 to $7,000 on the sale of the cocaine in light of the financial difficulties he explained.
Further, it makes sense that Mr. Allison is talking about $3,300 or $3,500 for each of the firearms. In his expert testimony, D.C. Smith stated that a .22 calibre firearm had a street value of approximately $2,200. A good quality Glock handgun could fetch a price of up to $4,000. As such, these lesser quality firearms are priced at less than $4,000 ($3,300 to $3,500).
Lastly, Mr. Allison encourages Plum to do the best he can to get a sale of the firearms for $3,500. He says he’s taking a bill off, which is what happened. Plum reported that he “dealt with it” (i.e., the sale of the firearms) and that the purchaser owed him “two bills” (i.e., $200) as set out immediately below.
iii. A few hours later and on April 21, 2018 at 22:19 (Tab 14), Mr. Allison is, again, talking to Plum. Plum advises that “he dealt with it, man” and that “the man owes me two bills, eh. He said tomorrow”. Plum suggested Mr. Allison check with him tomorrow because he is a “tired man”.
The inference to be drawn from this call is that Plum sold the two items referred to previously, but the buyer was “two bills” (i.e., $200) short on the purchase price.
[60] There is a call between Mr. Allison and Biggs which is of significance on April 22, 2018. It is two days after Mr. Allison received the delivery of firearms from Mr. Poyser. It is found at Tab 15 and it commences at 10:00 a.m. This call is very long so I have divided it into sections. It, in my view, permits the inference that three firearms were delivered to Mr. Allison and that they were offered, by him, for sale:
i. In this call, Mr. Allison asks, “what happened to the general”. There is a pause and then Biggs responded, asking what Mr. Allison is talking about and that he has the next “batch” to send over. Mr. Allison says that he is not talking about the next batch but “the ones over here that I am to get”. Biggs responded that he had an “order for it” and “then I went bam, because I have … remember I have about sixty, seventy so I have the next ten in New York to send”. Mr. Allison asks again, “so what happened to the …. general that I am to get?”. Biggs asks, “Do you … you mean your personal thing?”. Mr. Allison responds “no”. Biggs then says that “Those weren’t even generals. Hey family, the camouflage things, are they the Ruge-sha? Because I thought they were the generals until you pointed them out. … it’s just that they are compact. It’s how they look”. Biggs suggests, “it’s one general and it’s the … nine, nine, …”. Mr. Allison says, “Every time that you show me something brother … I get the ones eh … eh… he…you…you think …you think that brother doesn’t know what he is doing? He gives me the ones that are harder to get rid of. He knows what he is doing. Do you think he is an idiot?” Then Mr. Allison suggests that he wants nothing more to do with “those bloodclaat things” and to “fuck off”. He feels “bloodclaat disrespect”.
The reasonable inference to be drawn from this part of the conversation is that Mr. Allison is complaining to Biggs about the quality of firearms he received. Mr. Allison says, “Every time that you show me something brother [i.e., in the Whattsapp? Platform] …. He gives me the ones that are harder to get rid of.” In my view, this evidence is not consistent with acquiring one firearm for personal use but is about being annoyed that Mr. Poyser is giving him the firearms that are more difficult to sell. If the firearm was meant for his personal use, as Mr. Allison suggests, there would be no need to refer to the fact that the “ones” he received are “harder to get rid of”. This suggests that he got rid of the firearms, but it was harder to do than if he had received the “generals” he was looking for.
ii. Later in the call, Mr. Allison tells Biggs to listen and says, “… you see when a man comes up with an idea, everybody wants to make money, but everybody wants to bomb rush. You guys just do your thing and leave me out of it, man. I am done with it, dog. Cause, … you understand? The first … the first one, he … he gave me something that wasn’t good. I called in a mechanic and fixed it, and still you don’t appreciate that. You understand? You … you think that … you think that brother who is carrying them doesn’t know what he is doing? All of the … the … the little things … that are proper and pretty, that all the men are going to rush for … .” Biggs interrupts and says, “The ones that are coming, that I hand-picked … let him bring it to you and you can pick what you want to give to him.” Mr. Allison declines and says that he is “done with it”.
In this part of the conversation, Mr. Allison is complaining about the quality of the first firearm he received: it was not good, he called in a mechanic and the mechanic fixed it. If it were for personal use, there was no need to add that he is annoyed because he did not get the ones that are “proper and pretty, that all the men are going for”. This, in my view, is a complaint that what he received was not desirable for those wanting to purchase firearms.
iii. In the next portion of the call, Mr. Allison explains how it works “here”. He said, “When a man contacted me [presumably Mr. Poyser], he couldn’t even say, I am going to give him one of this, and give him one of this. No. He took out two of the same thing. You hear what I am saying to you? And I told you how it works here. Everybody wants small, neat and … and blah, blah, blah. You understand? But guess what happened? Remember you know, these things are hot bread, you know. So when you go to people and you ask what they want. You have the general, and you have small and neat or whatsoever. Everybody is running after them …”. Biggs suggests that there is “yardisha” on this shipment and that Mr. Allison should “take some of the yardisha”. Biggs also says that he has to fix things because “we work as business man to fix it, because the main program is supposed to be you”. Biggs then explains that it is a “style thing” he was not “calling them to say, do this, give him … that is what I should have done, because I can do that. … so, as he got there, he said, all right listen, I have the paper for such and such and whatever. … I expect you to say, dog, how is it you said it was four and it’s only two”.
In this part of the conversation, Mr. Allison is complaining about the meeting with Mr. Poyser. Mr. Poyser gave him no choice of what he was going to receive and “he took out two of the same thing”. This is consistent with Mr. Allison having received two firearms on April 20, 2018.
Further, Biggs adds, there is an onus on Mr. Allison at the point he receives the firearms: he expects Mr. Allison to bring to his attention that four firearms were promised but that he only received “two”. Again, this is not consistent with Mr. Allison’s evidence that he only received one firearm from the prior shipment when in fact, he had received two instead of the four promised.
Mr. Allison testified that the problem they were discussing, with respect to being given two firearms instead of four, was in reference to an incident that had happened approximately 10 years prior, when Biggs was under house arrest and sent Mr. Allison to pick up firearms. Mr. Allison was expecting to receive four firearms for his role as courier, but he only received two. This makes no sense. The complaint in this call is in the context of not receiving “generals”, exactly the complaint that Mr. Allison made to Biggs after receipt of the first firearm on April 6, 2018. It would make no sense that he was complaining about receiving firearms other than “generals” 10 years earlier as there is no evidence that he was in the firearms sales business then. In his evidence, Mr. Allison agreed that “the issue of generals isn’t something that was in issue years before when Biggs was still in Canada and under house arrest”. [^39]
iv. Later, Mr. Allison explains, “I look at you and I said listen to me, brother. This is a fast way. Get some generals and let me and you just do like this, blup, blup, blup, blup. You understand where I am coming from? And that is a fast turn over because I know that the generals are easy, easy, easy things, or anything neat and … and… and… and … . small are easy, easy things, because that is …”. Mr. Allison says that what he did [Mr. Poyser], “he took out the most … the two most difficult ones that you are going to get less for”. Biggs eventually explained, “… the first one fucked up, the second one, fucked up. But initially, the fuck-up is the situation of, I should’ve hand-picked and given you. The fuck-up is not in the quantity”. Mr. Allison suggests that he has people waiting with paper “but when we bring those ones, I … I also have to find other people to take them”.
In this portion of the call, Mr. Allison is complaining about the failed promises for delivery of firearms like generals that can be sold in a “fast turn over” because they are “easy”. Then he explains what Mr. Poyser has done: “he took out the most … the two most difficult ones that you are going to get less for”. He then explained that he had customers waiting with “the paper” (i.e., cash) but they did not want these firearms that are of inferior quality compared to the “generals” and the “neat” and “small” ones. This dialogue is not consistent with Mr. Allison having received a firearm for his own personal use. He is expressing frustration about the quality of the firearms received and the difficulty he is having in selling them.
v. During this part of the call, Biggs suggests that Mr. Allison should not tell him to “forget this” when Mr. Allison is “the one who made me start this thing, initiate the whole thing, and the whole whatever the case is, and you are getting so emotional”. Mr. Allison responds, “… Hold on, you and I are there, and I said, yow, I am going to that place, and you say, yow, go and pick up those. Four are there for you. I said, all right, boom, boom, boom. At least I am going to get two of the generals and something else. All right, I said, all right, no problem. When … when I went and came back, came back down there and … I come to my office and looked at them, that’s why I said, kiss my fucking teeth because guess what, it’s only two.”
Mr. Allison testified that the abovementioned discussion was about the time he went to Biggs’ home (i.e., 9 or 10 years prior). Biggs was on house arrest and he asked Mr. Allison to pick up a shipment “from a girl in Brampton”. Biggs advised that he would give Mr. Allison four firearms if he did that for him. When he received the four firearms, there were only two in the shipment and “both were old guns”. Biggs explained that it was the “girl” who “screwed up” and that he “would make it right”.[^40]
I accept that there may have been a prior deal wherein Mr. Allison was upset about the product he received, as he was in this particular time frame. However, another inference to be drawn from this portion of the call in the context of the entirety of it is that Mr. Allison was expecting four firearms in this shipment (at least two “generals”) and that he only got two. This inference makes sense in light of the prior comment by Biggs, who put the onus on Mr. Allison to bring to his attention that he only got two firearms out of the shipment when he was supposed to get four.
vi. In this part of the call as well, Mr. Allison complains that he has been dropped out of the “bloodclaat puzzle”. Biggs replies, “How the fuck, did I drop you? … because you got one and two I drop you out?” Mr. Allison replies, “What do you mean, get one and two ah … you dropped me out of the bloodclaat puzzle, because the thing is to know that yow … boy, whatever I send you know, … I send … if I send five you know, at least let Bill get two. All right, I sent ten, let Bill get five out of it so he can… so he can do something … I am not saying, yow, when you come, let me get all of them, you know, but let me get something that I can do something and have a sweet, so I can start something, but you are cutting me out of getting the fucking sweet. … that is where my problem comes from.”
Biggs explains that he did not “drop” Mr. Allison because Mr. Allison got “one” and “two” (i.e., one in the April 6, 2018 shipment and two in the April 20, 2018 shipment). The inference to be drawn from this part of the call is that Mr. Allison is complaining that he is not getting product from which he can earn a profit (i.e., “a sweet”). This appears to be a complaint about the quality of the product, not the quantity. Again, there is no mention of the firearm being for his personal use.
[61] After this call, there is a meeting between Mr. Allison and Biggs’ mother, Mumsie. Mr. Allison is to deliver money to Mumsie. The chronology of the calls and meeting are as follows:
i. The Call, April 22, 2018 at 13:06 (Tab 17): Biggs and Mr. Allison talk aboutmeeting “Mumsie” and then Biggs asks Mr. Allison to listen. He says, “I need your pape-isha right, and all of the pape-isha in one place so I can put in a ord-isha from my boy here”. There is talk about Mr. Allison getting his “five-thing” and “as soon as possible”.
ii. The Meeting: The ASF, para. 29, states that Mr. Allison arrived at the Food Basics in Brampton and met with “Mumsie”.
iii. The Call, April 22, 2018 at 14:41 (Tab 19): Shortly after the meeting, Biggs and Mr. Allison are talking. Biggs asks, “Family, why did you give her forty-six?” Mr. Allison responded, “you told me two, then you came back and said twenty-five: and I said no, and you said twenty-three. I have to give you two three”. Biggs says that he told Mr. Allison three times, twenty-five. Biggs now says that he is going to be short “four bills” and says, “can’t you put it on for me so I can buy some paper”. Mr. Allison says that he is “trying to figure out if I can get the paper”. He asks for some time to “make it up”. Mr. Allison responds that he is “going to see if I can even get that five” and complains about paying bills. They then talk about Mr. Allison’s “link” in Hartford. He says it has been a while since he contacted them. Mr. Allison then says, “… hold on. Me and you talk and you say yow B, I’m going to make you get something so you can buy something … sell something and get some money and buy something. Now look, I only got bumboclaat two things, Understand …?”. Biggs tells Mr. Allison to deal with it, stop acting like a “pussy” and give “me the four”. Mr. Allison says, “I want to get in, I want a five thing, dog. That’s why I’m here …”. Biggs says, they’ve covered enough for four and a little bit and I’ll deal with the difference …”. Mr. Allison says, “I don’t know, brother, I’m trying … I’m going to link him and hear what’s going on”.
Mr. Allison testified that in this call, Biggs is complaining that he only gave his mother “46” which meant “46,000” dollars and that it was for a payment of Ecstasy. Biggs was expecting $50,000. When Biggs explains that he will be short “four bills” he means “4,000”. The shortage was going to affect the payment to Geego for the Ecstasy. It is suggested that the reasonable inference is that they would not be arguing about being short $400 in light of the significant business they were conducting.
I agree that both Mr. Allison and Biggs appear to be talking about things other than firearms which might include Ecstasy; however, Biggs complained that the price to be paid was $25 and not $23. It appears that he is talking about the price per item. The fact that Mr. Allison gave Mumsie $46 is consistent with paying $23 per item. If they were arguing about monies for a shipment of Ecstasy, they would not be arguing over the price collected “per item”.
In the context of the chronology and content of this call, I find that the reasonable inference to draw is that Mr. Allison and Biggs are talking about Mr. Allison giving Biggs $4,600 for the sale of the two firearms he received (the “bumboclaat two things”). Biggs complains that he is short “four bills” ($400). Mr. Allison says, again, “I only got two things” in the context of providing money to Biggs. In my view, the reasonable inference from this call is that he received two firearms and that out of the monies he received from that sale, he provided Biggs with $4,600 ($2,300 for each firearm), not the $5,000 (or $2,500 for each firearm) that Biggs was expecting.
[62] I do not believe the evidence of Mr. Allison, that he only received one firearm in the shipment of April 20, 2018 and that it was not offered for sale because it was for his personal use. Nor does his evidence raise a reasonable doubt. The chronology of the second delivery of firearms to Mr. Allison satisfies me beyond a reasonable doubt that the only reasonable conclusion to be drawn from the whole of the evidence is that both firearms were offered for sale. Mr. Allison knew that he was not authorized to do so.
[63] The chronology demonstrates that the day after Mr. Allison received the firearms, he was in touch (again) with Plum. The inference to be drawn is that Mr. Allison advised Plum that the firearms should be sold for $3,500 (or at a price close to it). Plum wanted a reduction of the sale price because his buyers wanted both and would be repeat customers. Mr. Allison reminded him that the items were brand new and if sold at a reduced price, they would earn little profit because he could not pay the supplier less money. Following this conversation, Plum confirmed that the firearms were sold. Monies were paid to Biggs thereafter. As such, they were offered by Mr. Allison who, in doing so, committed the offence of firearms trafficking.
[64] Again, I have read and re-read this chronology in light of Mr. Allison’s evidence, that his discussions with Plum were about a sale of two kilos of cocaine. After doing so, I have concluded that his evidence is not believable. When I consider the evidence, the only reasonable inference to draw is that they were talking about the sale of two firearms received by Mr. Allison on April 20, 2018.
[65] For the abovementioned reasons, I have concluded that Mr. Allison offered the firearms for sale on April 21, 2018. I do not believe the evidence of Mr. Allison, that he only received two firearms for his personal use. When I consider his evidence, with all of the other evidence that I do accept, it does not raise a reasonable doubt. I am satisfied beyond a reasonable doubt that Mr. Allison’s guilt in trafficking firearms is the only reasonable inference to be drawn from the whole of the evidence. As such, he committed the indictable offence of trafficking in firearms.
b. Did Mr. Allison commit the offence of trafficking in firearms for the benefit of, at the direction of or in association with a criminal organization?
[66] The next issue to be determined is whether Mr. Allison committed the offence of trafficking in firearms for the benefit of, at the direction of or in association with a criminal organization. Guidance regarding this essential element has been provided by our Court of Appeal in R. v. Drecic at para. 3:[^41]
If membership in the organization is part of the reason why the offence was undertaken or if membership in the organization assists in the commission of the offence, then it can be fairly concluded the offence was undertaken in association with the organization.
[67] Counsel for Mr. Allison conceded that Mr. Allison was a member of the criminal organization for purposes of facilitating the sale of narcotics (yardisha, hydro and Ecstasy). However, counsel for Mr. Allison also asserts that he was not a member of the criminal organization for the purpose of trafficking firearms. I do not agree.
[68] For the reasons set out above, I find that the business of criminal enterprise evolved to include trafficking firearms at the suggestion of Mr. Allison. I have found that Mr. Allison trafficked firearms. I further find that he did so in association with the criminal organization.
[69] Biggs, a member of the criminal organization, sent the firearms from the U.S.A. Mr. Poyser, also a member of the criminal organization, delivered them to Mr. Allison. When they were sold by Mr. Allison with the assistance of Plum, monies were returned so that the cycle could continue. But for the criminal organization, the offence of firearms trafficking would not have occurred.
[70] For these reasons, I find that Mr. Allison committed the offence of trafficking in firearms for the benefit of and in association with a criminal organization. This essential element is proven beyond a reasonable doubt.
iii. Did Mr. Allison commit the offences knowing that they were committed for the benefit of, at the direction of, or in association with the criminal organization?
[71] The third essential element of this offence is whether Mr. Allison committed the offences (of firearms trafficking) knowing that the offences were committed for the benefit of, at the direction of, or in association with the criminal organization.[^42] I find that he did.
[72] The inference to be drawn from the intercepted communications between Mr. Allison and Biggs was that despite being in the narcotics business for four to five years, they thought that their business would “build up” due to the lucrative nature of firearms sales in Toronto. Such profits would be a benefit to their business as they would make more money and the cycle continue.
[73] As I have stated, the monies from the sale of the firearms were sent to Biggs so that the criminal organization could expand its business and buy more and better quality firearms. Mr. Allison knew that. As such, I find that he committed the offence of firearms trafficking knowing it was committed for the benefit of or in association with the criminal organization.
[74] For the abovementioned reasons, Mr. Allison is convicted of Count 1.
Count 3: Offer to Transfer a Firearm
The Charge
[75] Mr. Allison is charged as follows in Count 3:
… that he, during the period from and including the 6th day of April in the year 2018, to and including the 22nd. day of April in the year, 2018, in the City of Toronto, in the Toronto Region, and elsewhere in the Province of Ontario, did offer to transfer a prohibited or restricted firearm, knowing that he was not authorized to do so, contrary to section 99(1)(b) of the Criminal Code. [Emphasis added]
The Legal Framework
[76] The legal framework for this offence is set out in paras. [35] to [36] above.
Analysis
[77] For the reasons set out in paras. [37] to [65] above, I find that Mr. Allison offered to traffic in firearms. He knew that he was not authorized to do so. That said, I find that the offers were made only after he received the first firearm on April 6, 2018.
[78] I accept Mr. Allison’s evidence, that he advised Biggs that he had spoken to people in advance of the firearms landing in Toronto on April 6, 2018. This was an effort, by Mr. Allison, to convince Biggs to send him all five in the shipment as opposed to having made such offers in advance of their arrival. Such an inference is reasonable. However, I find that he made other offers as follows:
i. That after Mr. Allison received the .380 on April 8, 2018, a potential purchaser rejected it because neither he nor Mr. Allison had the ammunition to make the firearm operable. Mr. Allison must have offered the firearm for it to have been rejected.
ii. On April 7, 2018, the .380 firearm was made available to Plum for sale. During the call between Plum and Mr. Allison, Plum confirmed that he had a buyer for the firearm that was offered by Mr. Allison.
iii. The last offer came following the delivery of the two firearms to Mr. Allison on April 20, 2018. Plum had a buyer from London and was trying to negotiate a lower price for the firearms that Mr. Allison was offering. After the discussion about price, Mr. Allison confirmed with Plum that the transaction was complete so that he could make the payment to Biggs. The firearms had been offered and sold.
[79] As I have stated above, I have concluded that Mr. Allison offered the firearms for sale. I do not believe the evidence of Mr. Allison, that he only received two firearms for his personal use. When I consider his evidence with all of the other evidence, it does not raise a reasonable doubt. I am satisfied beyond a reasonable doubt of Mr. Allison’s guilt and that trafficking firearms is the only reasonable inference to be drawn from the whole of the evidence. He knew that he was not authorized to do so.
[80] As such, I am satisfied beyond a reasonable doubt that Mr. Allison committed the indictable offence of trafficking in firearms. For these reasons, I find Mr. Allison guilty of Count 3.
Count 4: Conspiracy to Traffic in Firearms
The Charge
[81] Count 4 alleges that Mr. Allison did “conspire with another person or persons to traffic firearms, contrary to section 99(1) of the Criminal Code, thereby committing an offence contrary to s. 465(1)(c) of the Criminal Code.
The Legal Framework
[82] The essential elements of the offence of s. 465(1)(c) of the Criminal Code are as follows:
i. An intention to agree (i.e., that there was an agreement between two or more persons);
ii. Completion of the agreement (i.e., that the agreement was to commit the offence of firearms trafficking); and
iii. A common design (i.e., that Mr. Allison was a member of that conspiracy).[^43]
[83] In the case of R. v. Cotroni,[^44] Dickson J. (as he then was) stated as follows:
To conspire is to agree. The essence of criminal conspiracy is proof of agreement. On a charge of conspiracy the agreement is the gist of the offence…The agreement reached by the co-conspirators may contemplate a number of acts or offences. Any number of persons may be privy to it. Additional persons may join the on-going scheme while others may drop out.”
So long as there is a continuing overall, dominant plan there may be changes in methods of operation, personnel, or victims, without bringing the conspiracy to the end. …
[84] In R. v. Papalia,[^45] Dickson J. (as he then was) held, “The important inquiry is not as to the acts done in pursuance of the agreement, but whether there was, in fact, a common agreement to which the acts are referable and to which all of the alleged offenders were privy.” [Emphasis added] He then referred to R. v. Meyrick and Ribuffi,[^46] at p. 44, “It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose.”
[85] I find that there was a conspiracy between Mr. Allison and Biggs to traffic in firearms. What follows are my reasons.
Analysis
i. Was there an agreement between Mr. Allison and Biggs?
[86] An agreement is a meeting of the minds. In this case, it is the meeting of the minds of Mr. Allison and Biggs who have a common purpose (to traffic firearms) and agree to act in furtherance of that common purpose.
[87] Mr. Allison testified that there was never an intention to agree to traffic firearms with Biggs, although he wanted it so. He testified, “I don’t think that he [Biggs] intended to do that business with me.”[^47] As such, he asserts that Biggs did not agree to traffic firearms with him. I do not agree.
[88] In the call of April 22, 2018[^48] (Tab 15), between Biggs and Mr. Allison, the agreement is spelled out:
i. During the call, Mr. Allison reminded Biggs that he had suggested that importing “generals” from the U.S.A. for sale in Canada was a “fast way” (presumably to earn money). He said “Get me some generals and let me and you just like do this … And that is a fast turn over because I know that the generals are easy, easy, easy things, or anything neat and … small are easy …”.[^49]
ii. When Mr. Allison explained that he wanted nothing more to do with the firearms program, Biggs explained that he started the “main program” for Mr. Allison and that he never expected Mr. Allison to say, “forget about it”,[^50] showing an intention that an agreement had been reached.
iii. Biggs reiterated that the did not wish Mr. Allison to leave the program, saying, “…I don’t want you to tell me things like, dog, forget this and that when you are the one who made me start this thing, initiate the whole thing, and the whole whatever the case is, and you are getting so emotional.”[^51]
iv. Biggs suggests that he has to fix things because it is a “style thing” because he was not properly directing Mr. Poyser. He later suggests to Mr. Allison that the “fuck up” is not in the quantity delivered to Mr. Allison but the fact that he did not “hand pick” the firearms that should have been given to Mr. Allison. The inference to draw is that Biggs acted in accordance with their agreement (he sent the firearms) but that the right ones did not find their way into the hands of Mr. Allison as he expected.
[89] In my view, this dialogue shows that there was an agreement between Mr. Allison and Biggs. As such, the first essential element of the offence of conspiracy is proven.
ii. Was the agreement to commit the offence of firearms trafficking?
[90] In my view, this dialogue set out immediately above also demonstrates that both parties intended to agree to the common unlawful purpose of trafficking in firearms. The evidence set out above demonstrates, as well, that there was an agreement to commit the offence of firearms trafficking.
[91] The evidence shows that Biggs acted in compliance with their agreement, he delivered three firearms to Mr. Allison, they were sold for a profit and both benefitted. This occurred because Mr. Allison and Biggs had agreed to expand their business from narcotics to firearms. What changed is that the plan evolved to include Mr. Poyser who acted as both courier and distributor rather than just delivering all of the firearms to Mr. Allison. This change resulted in Mr. Allison not getting what he wanted, leading to his dissatisfaction and eventual withdrawal from the conspiracy on April 22, 2018.
[92] Biggs understood that Mr. Allison was selling the firearms. After each delivery, he checked on the status of their sale and arranged for the monies to be delivered to Mumsie. It was Biggs who exercised control over the delivery of the firearms to Mr. Allison and payment of the profits to him.
[93] As such, I find that the second element of this offence has been proven beyond a reasonable doubt.
iii. Was Mr. Allison a member of the conspiracy?
[94] Further, I am satisfied that Mr. Allison and Biggs were members of the conspiracy. Both had an understanding of the unlawful nature of the plan. Both voluntarily and intentionally joined in it. As stated, the agreement was discussed in the call of April 22, 2018. Mr. Allison seems to have suggested that their business evolve to include firearms. Biggs agreed, sent them over, and three were placed in the hands of Mr. Allison. He sold them and both he and Biggs benefitted from those sales.
[95] For these reasons, I find that Mr. Allison is guilty of Count 4 on the indictment: conspiracy to traffic firearms.
[96] I will now turn to the case involving Mr. Cunningham.
MR. CUNNINGHAM
[97] As stated above, the case against Mr. Cunningham is distinct from that of Mr. Allison. As such, this portion of the reasons deals solely with Mr. Cunningham, although some of the legal principles set out above, are also applicable to Mr. Cunningham.
Overview of the Case Against Mr. Cunningham
[98] Mr. Cunningham was not a named party in the Part VI judicial authorizations during this investigation. However, communications between Messrs. Poyser and Cunningham were intercepted, beginning on May 4, 2018. It is alleged that Mr. Cunningham was a member of the conspiracy to traffic firearms as of that time.
[99] On May 7, 2018, Mr. Cunningham travelled to and from Cornwall at the direction of Mr. Poyser and in the company of Mr. Lewis. It is conceded that Mr. Cunningham delivered various items to Cornwall and it is alleged that he brought back 29 firearms that were imported from the U.S.A. Upon their arrival in Toronto, it is alleged that the firearms were distributed by Mr. Poyser to Messrs. Cunningham and Lewis for sale in the Toronto area.
[100] Thereafter, it is alleged that there was an agreement to import a further 100 firearms. The first 60 were picked up by Mr. Poyser in Cornwall on May 23, 2018, but they did not make it to Toronto for distribution and sale. On his return from Cornwall, Mr. Poyser was arrested. Seized from the trunk of the car he was driving were 60 firearms and 108 magazines of ammunition. Mr. Lewis was arrested in Cornwall within an hour of Mr. Poyser’s arrest. Thereafter, Mr. Cunningham was arrested.
Mr. Cunningham: The Charges
[101] As a result of these allegations, Mr. Cunningham has been charged with the following offences:
| Count | Offence | Criminal Code Offence |
|---|---|---|
| 1 | Firearms trafficking, pursuant to s. 99(1) of the Criminal Code for the benefit of, or at the direction of, or in association with a criminal organization. | 462.12 |
| 2 | Participation in the activities of a criminal organization for the purpose of enhancing the ability of the organization to commit the offence of importing firearms, contrary to s. 103(1) of the Criminal Code. | 467.11 |
| 5 | Conspiracy with another person or persons to traffic in firearms, contrary to s. 99(1) of the Criminal Code. | 465(1)(c) |
| 6 | Possession of prohibited or restricted firearms (handguns) for the purpose of transferring them knowing that he was not authorized to do so. | 100(1) |
[102] For the reasons set out below, I find Mr. Cunningham guilty of Counts 1, 2 and 6. I find him not guilty of Count 5.
General Legal Principles
[103] As stated above, Mr. Cunningham did not testify at trial. The case against him is purely circumstantial. As such, in coming to my conclusion on each of the charges, I have reminded myself that to find guilt based on circumstantial evidence, I must be satisfied beyond a reasonable doubt that Mr. Cunningham’s guilt is the only reasonable inference that can be drawn from the evidence.[^52] I have considered the legal principles that I have set out in paras. [14] to [16] above.
[104] Crown Counsel also relies on the co-conspirator’s exception to the hearsay rule as part of their case against Mr. Cunningham. For the reasons set out immediately below, I have found that the statements made, and acts done by the co-conspirators (Messrs. Poyser and Lewis as well as Biggs and Apache) are admissible against Mr. Cunningham. I will deal with the conspiracy charge first.
Count 5: Conspiracy to Traffic Firearms
The Charge
[105] Count 5 alleges that Mr. Cunningham did “conspire with another or others to traffic firearms, contrary to section 99(1) of the Criminal Code, thereby committing an offence contrary to s. 465(1)(c) of the Criminal Code”.
The Legal Framework: Co-Conspirator’s Exception to the Hearsay Rule
[106] In proving the offence of conspiracy (and the other substantive Counts), Crown Counsel seeks to rely on the statements made by Messrs. Poyser and Lewis as well as Biggs and Apache, pursuant to the co-conspirator’s exception to the hearsay rule.
[107] In R. v. Carter,[^53] the Supreme Court of Canada stated the test for admitting a hearsay statement of a conspirator against a co-conspirator. Hearsay statements of co-conspirators are admissible where:
i. It has been established beyond a reasonable doubt that a conspiracy existed;
ii. The evidence directly admissible against the defendant establishes, on a balance of probabilities, that the defendant was a probable member of the conspiracy; and
iii. The statements made by the co-conspirators were made in furtherance of the conspiracy.
[108] I have concluded that the hearsay statements of the co-conspirators are admissible against Mr. Cunningham. I will now explain why.
i. Has it been established beyond a reasonable doubt that a conspiracy existed?
[109] As stated above, a conspiracy is an agreement between at least two people to commit a crime. The essence of the conspiracy is the agreement. Counsel for Mr. Cunningham concedes that a conspiracy to traffic firearms existed between Messrs. Poyser, Lewis as well as Biggs and Apache. I agree.
ii. Does the evidence directly admissible against Mr. Cunningham establish, on a balance of probabilities, that Mr. Cunningham was a probable member of the conspiracy?
[110] Based on the evidence of Mr. Cunningham’s own acts and declarations and without regard to communications where Mr. Cunningham was not party to same, I find that Mr. Cunningham was probably a member of the conspiracy to traffic firearms. I come to this conclusion based on the following evidence:[^54]
| Date/Time/Event | Reference |
|---|---|
| May 3, 2018 12:10 a.m. Mr. Poyser was stopped in his car after he was observed driving to Oliver Lane in Cornwall and thereafter heading west to Toronto. Nothing relevant to this investigation was found.[^56] |
(ASF, para. 30)[^55] |
| May 4, 2018 9:43 a.m. One day later, there was a discussion between Messrs. Poyser and Cunningham. Mr. Cunningham said that he wanted to know when they could “boom bam” because his “people” are on him. Mr. Poyser replied that he did not know and is required to wait for the “okay”. |
(Tab 21)[^57] |
| May 6, 2018 11:44 a.m. During this call, Mr. Poyser advised Mr. Cunningham that “we” just want to have a “quick little meeting with you, my other partner and I”. Mr. Poyser says, “That means that, you know, when it is work time you don’t know, you know exactly what is going on.” Mr. Poyser advised Mr. Cunningham that it was “imperative” that he “come up” and that “we talk, and we nail it down”. Mr. Cunningham said, “Yeah man, just let me know man.” |
(Tab 22)[^58] |
| May 7, 2018 10:01 a.m. One day later and during this call, Mr. Poyser talked to Mr. Cunningham about introducing him to the “other person” to “figure it out”. He advised that “about 30 are on the way right now”. Mr. Poyser said that he is busy “but I’ve already arranged it because we have to get busy again. We can’t wait for long”. Mr. Cunningham replied, “Yeah, that’s what I’m saying.” Mr. Poyser then said, “No, man. We have it now, man. We have it now, man. It’s just a matter of organizing” to which Mr. Cunningham responded, “okay”. They agreed to meet at “twelve-one”. |
(Tab 25) |
| 11:31 a.m. to 2:13 p.m. Subsequently, there were calls between Messrs. Poyser and Cunningham regarding a meeting with Mr. Lewis. All three met in the parking lot of the plaza at 1455 McCowan Road at Mr. Poyser’s Dodge Caravan. They entered it to talk. While in the van, there was an intercepted communication wherein Mr. Poyser was trying to rent two cars. Eventually, Mr. Lewis left the parking lot. Messrs. Cunningham and Poyser went to the Malvern Town Centre and then departed. Eventually they separated. |
(Tabs 27, 31) and ASF paras. 31 and 33) |
| 15:22 (3:22 p.m.) Mr. Poyser told Mr. Cunningham that when he gets on the 401 going east, Mr. Poyser would tell him where they will meet. Mr. Cunningham was driving his own car (a silver Honda Accord), because Mr. Poyser could not secure two rental cars, only one. |
(Tab 39) |
| 4:50 p.m. At the instruction of Mr. Poyser, Mr. Cunningham got off the 401 at Waverley Road and entered a gas station. Messrs. Lewis and Poyser were observed at the same gas station in Bowmanville. All three cars left the gas station. Messrs. Lewis and Cunningham travelled, in tandem, on the 401 Eastbound. Mr. Poyser was not with them. |
(ASF, para. 35) |
| 8:05 p.m. Messrs. Lewis and Cunningham eventually drove south on McConnell Avenue and then west on Oliver Lane. (Police did not follow them into the lane.) |
(ASF, para. 36) |
| 8:08 p.m. Three minutes later, Messrs. Lewis and Cunningham parked their cars at a parking lot on the southeast corner of Oliver Lane and Marlborough Street North in Cornwall. The driver’s side doors of both cars were adjacent to each other. |
(ASF, para. 37) |
| 8:11 p.m. to 11:38 p.m. Messrs. Lewis and Cunningham drove their cars back to Toronto and to Whispering Willow Pathway. (The residence of Mr. Poyser.) |
(ASF, para. 38) |
| 23:42 (11:42 p.m.) to 11:44 p.m. Mr. Cunningham advised Mr. Poyser that he was “out front”. Mr. Poyser tells Mr. Cunningham that he is going to put on his pajamas and come out. He tells Mr. Cunningham where to park. |
(Tab 53) |
| 12:08 a.m. Mr. Cunningham is seen driving away from Whispering Willow Pathway. |
(ASF, para. 39) |
| 11:07 a.m. Eleven hours later, Mr. Cunningham advises Mr. Poyser that he is at Mr. Poyser’s door. Mr. Poyser advises he is on his way. |
(Tab 56) |
| 15:27 (3:27 p.m.) A little more than four hours later, there was a call between Messrs. Poyser and Cunningham. Mr. Cunningham tells Mr. Poyser, “listen to me”. Then he says, “do you see the old schools? … the old school sneakers?”[^59] When Mr. Poyser says, “yes”, Mr. Cunningham says, “Yeah, you have to talk to your boy and let him know that he will not be getting those top dollars for them, you know my lord”. He then adds, “So you have to let him know that … so those have to be reduced … and he’s supposed to know that too. You’re supposed to know that too. … Those are not the same”. He adds that everybody is saying “that’s ridiculous”. When asked how many there are, Mr. Cunningham responds, “Well, I took two pairs of them this morning and I think you have two left back there.” Mr. Cunningham says, “Yeah man, because remember that … remember that old school aren’t really worn that often like that too, you know.” Mr. Poyser advises that he will “share the information” and that as soon as he stops, he will “touch him”. |
(Tab 57) |
| 16:53 (4:53 p.m.) A little less than 1.5 hours later and after having spoken to Biggs, Mr. Poyser speaks again to Mr. Cunningham. The following was said during this call: i. Mr. Poyser advised that he had called the “man” (presumably Biggs) and that he expected to be paid the same amount for the “mixture” of things. When Mr. Cunningham suggests, “I mean come on, like he expected to get the same for those?”, Mr. Poyser responded, “yeah”. Mr. Cunningham responds, “He’s crazy man. He’s crazy, man. Before I do that, I bring those back then, man, because I’m not taking on that kind of stress”. ii. Mr. Poyser asked Mr. Cunningham, “what kind o’ best offer are you getting?”. Mr. Cunningham replied, “Right now nobody is paying more than twenty-five for them.” iii. Mr. Poyser suggests to Mr. Cunningham, “you doing better on the other though” and suggests that “we could balance it back out with the others” to which Mr. Cunningham responds, “What’s the point? It doesn’t make any sense then … because if I have to raise those up and give myself more problems to … let those go, just to balance that back, if he can’t understand that, I’ll bring those back, man”. Mr. Cunningham says, “So it’s really your call still, because I’m telling you what’s going on. I’m here … I’m out here so I’m telling you all …what’s going on out here”. iv. When asked how many he had, Mr. Cunningham responded, “Well, I took two of those old-schools this morning. You know, they won’t … the old schools will go for the same price as the Jays.[^60] … You know the Jordan[^61] price is different from the old-school price. … You understand? A man can’t go into Footlocker and expect to pay the same price for a Jordan as he pays for an old-school or vice-versa. You understand what I’m saying? It’s two different … things.” v. Mr. Poyser responded that “he’s expecting twenty-five right across the board for the new one year-old…” to which Mr. Cunningham responds, “He’s crazy. … The thing doesn’t work like that, you know Elder. You have to let him know that, you know.” vi. Mr. Poyser advises that Mr. Cunningham should have told Biggs that morning (that he cannot expect such a price) because Mr. Cunningham is “on the road” and that is not Mr. Poyser’s “strength”. vii. Mr. Cunningham says that he will come to meet Mr. Poyser later and says, “you just need to know what to do to go forward, you understand what I’m saying?” viii. Mr. Poyser then asks, “Hold on, so … so if you get rid of those could we still make some money on the others? …. Because I don’t want you to hold up the thing either, … I’d want to get rid of them”. Mr. Cunningham responds, “yeah, but he’s the one who would be holding it up you know … He has to be willing to negotiate too … He can’t just be standing firm over there and not know what’s going on …”. ix. When Mr. Cunningham suggests that he does not know what “your youth” took the other night, Mr. Poyser suggested “we don’t care about him”. He says that the mistake they made will not happen again because “next time … everything will come there and every man will take equally what he should take”. Mr. Cunningham agrees and says he (presumably Mr. Lewis) did not want them (presumably the old schools) because he doesn’t want the stress and that he was “leaving the stress to us”. x. Mr. Poyser suggests that when Mr. Cunningham comes “we’ll talk to him [Biggs], saying moving forward, don’t bring any more of that … unless he can accept a lesser thing”. Mr. Cunningham says, “yeah, but … he’s being a trickster too because they are ... less over there too, right across the board”. Mr. Poyser replies saying, “and that’s why I want you to let him know that you, you know, that’s where you lived once you know. You used to come … and buy them for those prices, you understand”. Mr. Cunningham agrees and says, “You see what I’m saying? Because we’re not rookies in this thing, General … you understand?” xi. Close to the end of the discussion, Mr. Cunningham follows this up saying, “Okay. Just like what you said, you know, it’s a team thing and he says it’s a team thing, but he has to understand he can’t keep on every time saying, next time, next time, next time. … It doesn’t work. …Because he has to understand … this is serious …”. |
(Tab 59) |
| 18:19 (6:19 p.m.) Less than two hours later, Mr. Poyser is speaking with Mr. Cunningham and reports that Biggs suggests they will lose money off the remaining firearms, but they can make it up through the sale of “accessories” (i.e., firearm accessories such as laser sights or holsters that can increase the value and desirability of illicit firearms)[^62]. Mr. Cunningham responds, “… those little Jay’s I told you about, right, … the old schools … he won’t get top dollar for those”. Mr. Cunningham listens to Mr. Poyser and concludes that Biggs “wants the twenty-five” for them and that “we wouldn’t make anything from that”. Mr. Cunningham says, “… we’ll have to find a way to hustle those and everybody may not [unintelligible] them”. |
(Tab 60) |
| 19:52 (7:52 p.m.) A meeting is set up for later that evening during this call. Mr. Cunningham tells Mr. Poyser to “bring the rest of the sneakers” (i.e., firearms) as well as the “laces” (i.e., ammunition)[^63] to their meeting. |
(Tab 61) |
| 8:55 p.m. Mr. Poyser arrived at the parking lot. He parked his Dodge Caravan beside Mr. Cunningham’s silver Honda Accord. Messrs. Cunningham and Poyser got out of their cars and spoke to each other for approximately two minutes. They both entered the Dodge Caravan. Approximately 15 minutes later, Mr. Cunningham got out of the Dodge Caravan. He transferred an item from the Dodge Caravan to his silver Honda Accord. |
(ASF, para. 40) |
| 9:14 p.m. Messrs. Poyser and Cunningham drove out of the parking lot in their respective cars. |
(ASF, para. 40) |
| 9:45 p.m. After having driven from the parking lot at 1455 McCowan Road, Mr. Cunningham arrived at the condominium at 360 Square One Drive in Mississauga. He parked his silver Honda Accord in the underground parking garage. He then moved a black gym bag from inside his silver Honda Accord to the car’s trunk. He locked his car and walked to the elevator bay. He immediately went back to his car and drove out of the underground garage. He parked on the west side of the building. |
(ASF, paras. 41-42) |
| 21:51 (9:51 p.m.) Mr. Poyser made a call to Mr. Cunningham. There was a discussion about money given to Mr. Poyser by Mr. Cunningham. Mr. Poyser asked if he had given him “24-5”. Mr. Cunningham suggested that Mr. Poyser was “crazy” and advised Mr. Poyser to check the one with the “hundreds”. One of them has “three”. Mr. Poyser advised that he was just going by the “rubbers” and that he would check it later. Mr. Cunningham tells him to look at the ones with the “hundreds” and if Mr. Poyser counts that one, he will “get the difference”. |
(Tab 62) |
| 10:05 p.m. to 10:53 p.m. Mr. Cunningham met with three unknown males in various locations for short periods of time. |
(ASF, paras. 43-46) |
| May 11, 2018 14:26 (2:26 p.m.) Three days later, Mr. Poyser advised Mr. Cunningham that he was “short some funds” because “the other three are still around” and “not gone yet”. Mr. Cunningham suggests that “truly, it’s only two because that other …sneaker … that’s no good”. Mr. Cunningham says to Mr. Poyser that “he has to understand that our clientele … has a certain standard”. Mr. Poyser tells Mr. Cunningham that “60” are coming and advises that the other “youth” is “trying to work on the other three now” so that they are ready for the “construction” the following week. They “have some of the papers to pick up the material … to start … the building”. Mr. Poyser commends Mr. Cunningham for what he has done and tells Mr. Cunningham that he has his “back”. |
(Tab 69) |
| May 18, 2018 17:44 (5:44 p.m.) Seven days later, Mr. Cunningham asked if Mr. Poyser had gotten rid of the “other two sneakers”. Mr. Poyser advised Mr. Cunningham that he gave one of his friends the “other two sneakers” and that he did not ask about them again. Mr. Cunningham advised that “somebody contacted him” and he said he would “check” because “somebody wants them still”. Mr. Poyser advises he will check on their availability. |
(Tab 70) |
| 17:46 (5:46 p.m.) Two minutes later, Mr. Poyser asked Mr. Cunningham “what kind of numbers they had in mind”. Mr. Cunningham advised that he could probably get “two seven”. Mr. Poyser said he will tell “him” and try to “organize”. Mr. Poyser advises that at that price, “no room will be on it for you and me basically”. Mr. Cunningham says, “yeah, yeah”. |
(Tab 71) |
| May 22, 2018 11:23 a.m. Four days later, and after a lengthy conversation with Biggs and Mr. Lewis, Mr. Poyser had a phone conversation with Mr. Cunningham. Mr. Poyser refers to “back in the day when you and I used to work” and says, “I have to make a decision and I want you to be a part of it.” They arrange to meet at the gym at approximately 1:00 p.m. Messrs. Cunningham and Lewis met in the parking lot at 1455 McCowan Road for approximately seven minutes. |
(Tab 77) |
| May 23, 2018 3:28 p.m. to 10:14 p.m. A day later, Mr. Poyser rented a car and drove to Cornwall. He pulled into the driveway of 515 Oliver Lane. A male loaded two large bags into his car. Mr. Poyser was arrested at 9:26 p.m. in Trenton, Ontario. Police seized 60 firearms and 108 magazines. Mr. Lewis was arrested at a gas station in Cornwall shortly thereafter. |
[111] Based on this evidence, I am satisfied by Mr. Cunningham’s own words and conduct that he was probably a member of the conspiracy to traffic firearms. He was involved in meetings with Messrs. Lewis and Poyser before he went to Cornwall. He delivered items and retrieved firearms. He was provided with a portion of the shipment. He provided information about the quality of firearms being sought by customers and the prices at which they could be sold. He sold them and returned for more. He provided money to Mr. Poyser. He spoke with the supplier, Biggs, and appears to have been advised of the plan for the next shipment.
iii. Were the statements made by the co-conspirators made in furtherance of the conspiracy (or joint enterprise)?
[112] Because I am satisfied that there was a conspiracy and that Mr. Cunningham was probably a member of it, in determining whether his guilt has been proven beyond a reasonable doubt, I may consider the acts or declarations of Messrs. Poyser and Lewis as well as Biggs and Apache in furtherance of the common unlawful design. I will do so when I consider the issue of Mr. Cunningham’s membership in the conspiracy and with respect to the criminal enterprise offences.
The Legal Framework of the Conspiracy Offence
[113] The essential elements of the offence of s. 465(1)(c) of the Criminal Code are as follows:[^64]
i. An intention to agree (i.e., that there was an agreement between two or more persons);
ii. Completion of the agreement (i.e., that the agreement was to commit the offence of firearms trafficking); and
iii. A common design (i.e., that Mr. Cunningham was a member of that conspiracy).[^65]
[114] I will deal with these essential elements in order.
Analysis
i. Was there a conspiracy between at least two people to commit a crime?
[115] As stated above, Counsel for Mr. Cunningham concedes that it has been established beyond a reasonable doubt that a conspiracy to traffic firearms existed. The members were Messrs. Poyser and Lewis as well as Biggs and Apache.
ii. Was the agreement to commit the offence of firearms trafficking?
[116] I find that the agreement was to traffic firearms. As per the agreement, Biggs shipped firearms from the U.S.A. to Mr. Poyser for distribution to Messrs. Lewis and Cunningham to sell in Toronto. This essential element has been proven.
iii. Was Mr. Cunningham a member of the conspiracy?
[117] The last essential element is to determine whether Mr. Cunningham was a member of the conspiracy. While I continue to believe that Mr. Cunningham was probably a member of the conspiracy, I am not satisfied beyond a reasonable doubt that he was.
[118] I have come to that conclusion after having considered the evidence outlined above at paras. [110] to [111] and the evidence of the out-of-court acts and declarations of the other members of the conspiracy made in furtherance of it. Having done so, I am left with a reasonable doubt regarding Mr. Cunningham’s membership.[^66]
[119] There is no doubt that Mr. Cunningham was involved in meetings prior to his retrieval of the firearms in Cornwall and that he knew he was transferring firearms to Toronto. As stated below, I have concluded that he received several firearms from Mr. Poyser immediately thereafter and more 11 hours later. He was an exceptional salesman, getting rid of most of the firearms but, like Mr. Lewis, he had difficulty selling the “old school” firearms that were not as attractive as the “Jordans”.
[120] There is no doubt that Mr. Cunningham was giving advice to Mr. Poyser about how to deal with Biggs and his unrealistic demands regarding the price he expected to receive for both the “Jordans” and the “old schools”. Mr. Cunningham was on the street and was giving Mr. Poyser feedback so that he understood the market for firearms. Mr. Cunningham knew of the involvement of Mr. Lewis and Biggs. He knew that firearms were coming from the U.S.A. He referred to them as a “team” and referred to “our clientele”.
[121] It is clear, Mr. Cunningham had one communication with Biggs on the morning of May 8, 2018 and that Biggs was aware of his involvement. It is also reasonable to conclude that he was going to be involved, somehow, in the sale of the 60 firearms that were being brought to Toronto thereafter on May 23, 2018.
[122] Despite the abovementioned evidence, I am not satisfied beyond a reasonable doubt that Mr. Cunningham was a member of the conspiracy for the following reasons:
i. May 7, 2018 at 3:12 p.m. (Tab 38): During this call and prior to the trip to Cornwall, Mr. Poyser tells Mr. Lewis that he has to wait for Mr. Cunningham because “you don’t want to give him too much” information.
This communication suggests that Mr. Poyser does not want Mr. Cunningham to be privy to too much information about the operation.
ii. May 7, 2018 at 7:53 p.m. (Tab 47): Mr. Poyser advises Mr. Lewis that only one car can go into the yard and that Mr. Cunningham is to go because he has the “cargo”. Mr. Poyser advises that “you can switch back later when it gets dark”.
This suggests that Mr. Lewis should control possession of the firearms retrieved and not Mr. Cunningham.
iii. May 7, 2018 at 9:39 p.m. (Tab 49): Mr. Poyser speaks with Mr. Lewis on his way back to Toronto. Mr. Lewis asks if they can “sort it out tonight?” Mr. Poyser says that they can do so. Mr. Lewis says, “what I’ll do is, I’ll have him ′round the corner or something. … I’ll bring him in …. I’ll send him away. He can go”. Mr. Poyser says that “he can come too because I’ll just give him something at the same time because … we just want to get working right away and finish the project”.
This call demonstrates that Mr. Lewis wants to send Mr. Cunningham away and deal with Mr. Poyser on his own. This shows that Mr. Lewis was uncertain about Mr. Cunningham’s role in the sales until clarified by Mr. Poyser.
iv. On May 11, 2018 at 9:30 a.m. (Tab 68): Messrs. Lewis and Poyser have a call with Biggs regarding the difficulty in getting rid of the three firearms that remain unsold, the prices being sought, etc.
Mr. Cunningham is not privy to this conversation. He is never part of any conversation with Messrs. Poyser and Lewis or Biggs (together) about strategy or the implementation of the strategy to import, distribute or sell the firearms. Essentially, he is directed by Mr. Poyser and gives him feedback about what is going on in the street.
During this call as well, Biggs suggests getting rid of the firearms at a price: “two-two-two and we just make it two five?” (i.e., that Messrs. Poyser and Cunningham would make up the difference). Mr. Poyser responds to this suggestion saying, “… I could never go back to him again for nothing, you understand? Yeah, I have two options. If anything comes I can either use him or don’t use him for the next time around … at which time I am gonna need him, because he is not supposed to touch these things period, you know, because he is on the list, you know … you understand? … So, he went out of his way for them. He carried them down, you know … You understand? So, I … couldn’t be mean to … he … carried them in his own ride”. Mr. Poyser suggests that “we couldn’t even go back to him with that”.[^67]
This discussion leads me to the conclusion that Mr. Cunningham is not part of the conspiracy. He was brought in to action days after Mr. Poyser was stopped and searched on his way back from Cornwall. He transferred the firearms to Toronto in his own car (i.e. “his own ride” as opposed to a rental) and then sold them. Mr. Poyser’s option for the next time is: “I can use him or don’t use him the next time around …”. This, in my view, suggests that Mr. Poyser uses Mr. Cunningham only when he needs him and that he is not a member of the conspiracy at this point.
v. May 22, 2018 at 11:23 a.m. (Tab 77): After a lengthy call with Biggs and Mr. Lewis, Mr. Poyser calls Mr. Cunningham. Mr. Poyser says he wants to talk about “right now” and says, “I have to make a decision and I want you to be a part of it”. They arrange to meet at the gym at approximately 1:00 p.m. They do meet.
The inference I draw from this call is that Mr. Poyser may want Mr. Cunningham to take on a greater role and become a member of the conspiracy. This is borne out by the content of a call with Biggs the next day and referred to immediately below.
vi. May 23, 2018 at 6:30 p.m. (Tab 85): While on his way to Cornwall, Mr. Poyser and Biggs have a call about distribution of the 60 firearms. It appears that Mr. Lewis wants more than one-third of the shipment. Mr. Poyser replied, “… the three of us are working together and the three of us know that 60 is coming, so every man is going to get the profit off twenty”. Biggs says, “… so everybody should get twenty, twenty, twenty”. Biggs says that he is going to tell Mr. Lewis that he is going to get his twenty and that if he needs more after that, he can come for more. However, he changes his mind and says, “yeah, you don’t have to tell him that … because I know that he’s not … probably even thinking that my boy should make twenty like you. He’s probably thinking between you and him. You understand? … He’s probably looking at it that way, So I’m not even going to tell him … that every man … is to make their twenty”. Biggs adds, “… what he’s probably thinking, though, is just because when we went in … into the deal together, it was me and you, and him. So, he … he’s probably looking at it that way but …”. [^68]
This portion of the call leads to the inference that the original members of the conspiracy were Biggs and Messrs. Poyser and Lewis. Mr. Lewis didn’t know it at this point, but it appears they intended that Mr. Cunningham take on a greater role and join the conspiracy.
Later in the call, Mr. Poyser says that they cannot be selfish in this “thing” because he is going to Jamaica. He adds that if he is going to Jamaica, “I want the two men … and say yow, it’s just the two of you, you guys run the road. You all … you all take care … of each other …” Biggs responds that he might stop working and wait for his return because he can’t “bother with their style … their greed … and stuff”.
The content of this call leads to the suspicion that Mr. Cunningham was to become a member of the conspiracy, but there is no evidence that he did because Mr. Poyser was arrested shortly after this call. Mr. Cunningham is not seen or heard from after his last meeting with Mr. Poyser.
[123] I find that when I review the entirety of the evidence, I am suspicious that Mr. Cunningham was a member of the conspiracy or, was about to become a member of it. In coming to this conclusion, I recognize that Mr. Cunningham’s own statements demonstrate potential involvement in the conspiracy. I also accept that different parties to the conspiracy can play different roles and there is no requirement that a member of the conspiracy have contact with more than one other member. Mr. Cunningham need not be in continuous communication with the members to be a member of the conspiracy.[^69]
[124] While I believe that Mr. Cunningham had knowledge of the existence of a scheme to commit the offence of trafficking firearms and did acts in furtherance of that scheme, I am not satisfied that there was a meeting of the minds to achieve the mutual criminal objective. As stated by Doherty J.A. in R. v. H.A.,[^70] the meeting of the minds is the offence:
The actus reus of the crime emphasizes the need to establish a meeting of the minds to achieve a mutual criminal objective. This emphasis on the need for a consensus reflects the rationale justifying the existence of a separate inchoate crime of conspiracy. Confederacies bent upon the commission of criminal acts pose a powerful threat to the security of the community. The threat posed by a true agreement to jointly bring about a criminal end justifies a preemptive strike by the criminal law as soon as the agreement exists, even if it is far from fruition. However, absent a true consensus to achieve a mutual criminal objective, the rationale for the crime of conspiracy cannot justify criminalizing joint conduct that falls short of an attempt to commit the substantive crime[.] [Authorities omitted]
[125] I believe that after his solid performance in meeting with Messrs. Poyser and Lewis, travelling to and from Cornwall, receiving firearms and selling them quickly, etc., that Mr. Cunningham was about to become a member of the conspiracy. However, Mr. Poyser’s arrest curtailed that eventuality and there is no evidence that he agreed to do anything more than assist Mr. Poyser and the criminal enterprise.
[126] For these reasons, I find Mr. Cunningham not guilty of Count 5, conspiracy to traffic in firearms. I have not come to the same conclusion regarding the other offences.
Count 1: Commit firearms trafficking for the benefit of, at the direction of or in association with a criminal organization
The Charge
[127] Mr. Cunningham is charged that between March 25 and May 24, 2018, he did commit the indicatable offence of firearms trafficking contrary to s. 99(1) of the Criminal Code. It is alleged that he did so for the “benefit of, at the direction of, or in association with a criminal organization” thereby committing an offence contrary to section 467.12 of the Criminal Code.
The Legal Framework
[128] I have set out the legal framework in paragraphs [29], [30], [35] and [36] above. As stated, to secure a conviction with respect to Count 1 regarding Mr. Cunningham, Crown Counsel must prove the following essential elements:
i. That a criminal organization existed; and
ii. That the indictable offence (firearms trafficking) was committed for the benefit of, at the direction of, or in association with the criminal organization; and
iii. That Mr. Cunningham committed the offence knowing that it was committed for the benefit of, at the direction of, or in association with the criminal organization.
I find that each of these essential elements have been proven beyond a reasonable doubt. I will deal with each of them in order.
Analysis
i. Did a criminal organization exist?
[129] The existence of the criminal organization is conceded by Mr. Cunningham. As such, the first essential element is proven beyond a reasonable doubt.
ii. Was the indictable offence committed for the benefit of, at the direction of, or in association with the criminal organization?
[130] As stated above, there are two considerations with respect to the second essential element of this offence. The first is: did Mr. Cunningham commit an indictable offence (i.e., firearms trafficking)? If so, was it for the benefit of, at the direction of, or in association with the criminal organization? I will deal with each issue separately.
a. Was the offence of firearms trafficking committed by Mr. Cunningham?
[131] Counsel for Mr. Cunningham submits that Crown counsel has not proven beyond a reasonable doubt that Mr. Cunningham trafficked firearms pursuant to s. 99(1) of the Criminal Code. Firstly, they suggest that it has not been proven, that the objects in question were firearms as defined by s. 2 of the Criminal Code. Secondly, Counsel submits that there is no proof that Mr. Cunningham transferred a firearm or offered to do so. I do not agree.
i. Were the items firearms?
[132] Section 2 of the Criminal Code defines a firearm as follows:
[A] barrelled weapon from which any shot, bullet, or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and that includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm.
[133] The firearms that are alleged to have been trafficked by Mr. Cunningham, were not seized during this investigation so there is no certificate of analysis to support the finding that the items trafficked were “firearms” as defined by s. 2. As such, I have to consider the circumstantial evidence to determine whether it is a reasonable inference that the objects discussed in the intercepted communications are firearms.
[134] To be expected, the objects are never referred to as firearms in the intercepted communications between Messrs. Poyser and Cunningham. They talked in coded language. For example, Mr. Cunningham referred to items as “Jordans”, “Jays/J.s” and “sneakers”. Those are the terms he used when comparing those objects to the “old schools”.
[135] D.C. Ryan Smith testified about the use of coded language for firearms arising from his review of the intercepted communications. He testified that he was familiar with the terms: “Jordans”, “Jays/J.’s” and “sneakers”. These are terms used to describe firearms.
[136] D.C. Smith testified that he had not heard the term “old schools” as coded language for firearms. However, through his review of various intercepted communications in this case, he came to believe that “old schools” was a reference to an “older firearm that’s not worth as much money”. He conceded, however, that he could not come to any conclusion about the operability of the “old schools” (or any of the other items referred to in this proceeding). As such, he agreed that the term “old school” could refer to an inoperable firearm.
[137] After having reviewed the intercepted communications between Messrs. Poyser and Cunningham and the other evidence, I have concluded that the only reasonable conclusion that can be drawn from the whole of the evidence is that Mr. Cunningham was discussing operable firearms when he referred to the items as “Jordans”, etc. For example, after meeting Mr. Poyser upon his return from Cornwall and being given “something” at the same time as Mr. Lewis so that “we” can “get working and finish the project”, Mr. Cunningham returned approximately 11 hours later. Hours after that, Mr. Cunningham had a lengthy conversation with Mr. Poyser and said:
Well, I took two of those old-schools this morning. You know, they won’t … the old schools will go for the same price as the Jays. … You know the Jordan price is different from the old-school price. … You understand? A man can’t go into Footlocker and expect to pay the same price for a Jordan as he pays for an old school or vice-versa. You understand what I’m saying? It’s two different … things.[^71]
[138] The reasonable inference to draw from this call is that the “Jordans” are better quality firearms that will attract a better sale price than the “old schools” which are more difficult to sell because they are of lesser quality. I draw this inference from the abovementioned conversation in the context of the chronology set out below and in Appendix “B”. I am satisfied that Crown counsel has proven beyond a reasonable doubt that the objects referred to by Mr. Cunningham, are firearms as defined by s. 2 of the Criminal Code. However, there is a second consideration at this point in the analysis.
[139] Even if the firearms are inoperable, proving that they are is not an essential element of the offence of trafficking firearms. As stated above, a defendant can be found guilty of trafficking by offer even if he or she did not have access to the firearm being offered. What is relevant is that the offer, when made, was meant to be taken by the recipient as a genuine offer. The Ontario Court of Appeal held in R. v. Hersi, at para. 8 that, “actual access to a firearm is not an element of the offence under s. 99”.[^72] For the reasons set out below, I find that Mr. Cunningham made offers to traffic firearms and that those offers were meant to be taken as genuine offers.
[140] I will now turn to Counsel’s second argument.
ii. Did Mr. Cunningham transfer or offer the firearms?
[141] Counsel for Mr. Cunningham submits that Crown counsel has failed to prove beyond a reasonable doubt that Mr. Cunningham transferred or offered the firearms as required by s. 99(1) of the Criminal Code. Counsel submits that Mr. Cunningham is, “at best” a customer of Mr. Poyser’s or his agent. I do not agree.
[142] I accept that if Mr. Cunningham is simply a purchaser, he could not, by reason of purchase alone, be found guilty of trafficking. Section 99 of the Criminal Code provides that an unauthorized transfer is an offence. Purchasing a firearm does not constitute a transfer of the firearm pursuant to s. 99.[^73] If firearms were only purchased, Mr. Cunningham would simply be in possession of the firearms and may be subject to legal consequences for that offence, not trafficking.[^74]
[143] To succeed on an “agent for the purchaser” defence, the evidence must show that Mr. Cunningham’s assistance to complete the sale “reveal no more than incidental assistance of the sale through rendering aid to the purchaser”.[^75] After having reviewed the evidence, I have concluded that Mr. Cunningham’s acts were designed to do more than provide incidental assistance of the sale by aiding Mr. Poyser.[^76]
[144] I find that after he received the firearms on May 7, 2018, Mr. Cunningham made offers to sell the firearms to various customers and that he intended others to take those offers seriously. Further, I find that he transferred firearms by selling them. Thereafter, he provided monies from those sales to Mr. Poyser so that they could purchase more firearms. He gave advice to Mr. Poyser on how to manage the expectations of his supplier (Biggs) and reported to him about the street value of different firearms for future consideration.
[145] I come to this conclusion for the following reasons:
i. Mr. Cunningham was recruited by Mr. Poyser to travel to Cornwall with Mr. Lewis in order to retrieve the firearms that were delivered there from the U.S.A. This occurred after a meeting with Mr. Lewis to “nail” down the plans.
ii. On May 7, 2018, Mr. Cunningham travelled to Cornwall with Mr. Lewis after having met with both in the parking lot of the gym earlier in the day, stopping to regroup in Bowmanville and ultimately arriving at their destination in Cornwall. He travelled back to Toronto and to the street where Mr. Poyser lived, with the firearms.[^77] Mr. Lewis did as well. Both received firearms to sell. I accept that there is a reasonable inference to draw, that Mr. Cunningham was used by Mr. Poyser to drive to Cornwall to drop off items, pick up merchandise and return with it to Toronto. However, it appears from the subsequent intercepted communications that Mr. Cunningham does much more than simply act as a courier for Mr. Poyser or as a purchaser of his firearms.
iii. Less than 12 hours after having travelled from Cornwall, on May 8, 2018 at 11:07 a.m., Mr. Cunningham phoned Mr. Posyer to let him know that he was at his home. Mr. Poyser met him there approximately five minutes later. Based on the content of the next conversation, it appears that Mr. Cunningham showed up to get more firearms from the shipment.
iv. Approximately 4.5 hours later, at 3:27 p.m., Mr. Cunningham called Mr. Poyser. Mr. Cunningham refers Mr. Poyser to the “old school … sneakers” and tells Mr. Poyser to advise his “boy” (presumably Biggs) that he will not be getting top dollar for them. He described that the price being sought was described by “everybody” as “ridiculous”. The reasonable inference to be drawn from this call is that Mr. Cunningham received firearms of a lesser value than those he had received hours before, following his trip to Cornwall. The price, at which he was offering the “old school” firearms for sale, would have to be reduced. If the potential purchasers described the price as “ridiculous”, he must have offered them for sale at a particular price that was rejected. Further, this call demonstrates that Mr. Cunningham is now involved in advising the price at which he can sell the firearms (i.e., at a reduced price) as opposed to simply purchasing them from Mr. Poyser.
v. Later that same day, at 4:53 p.m., Mr. Poyser speaks to Mr. Cunningham again. There are several things said during this call which lead to the conclusion that Mr. Cunningham was more than a one-time purchaser or agent for Mr. Poyser and that he was trafficking the firearms:
• During this call, Mr. Poyser asks, “what kind of best offer are you getting” to which Mr. Cunningham responds, “nobody is paying more than twenty-five for them”. There is no suggestion that Mr. Cunningham is speculating about the sale price. The only way that Mr. Cunningham could know this is the maximum price being paid for the “old school” firearms is if he offered them for sale.
• Mr. Cunningham explains that the “old school” will not go for the same price as a “Jordan”. Again, he would know this if both the “Jordans” and the “old schools” were offered, by him, for sale.
• When told that Biggs expects to get the same price for “those” (presumably the “old schools”), Mr. Cunningham suggests that he is going to bring them back as he is not “taking on that kind of stress”. This demonstrates that he is not simply answering to Mr. Poyser, he is answering to Biggs (the supplier) as well.
• There are several references to Mr. Cunningham having spoken to Biggs that morning. This demonstrates, again, that he is dealing with the supplier and not simply acting as a purchaser or agent for Mr. Poyser.
• There is a discussion about the necessity of selling the remaining firearms from the shipment of May 7, 2018 so that it does not hold up their future business ventures. Mr. Cunningham says that it is Biggs who is holding it up and that he must be willing to negotiate in order to keep the cycle moving. This demonstrates that he is more than a one-time customer.
• Mr. Poyser suggests that in the future, everything will come to “us” and that “moving forward” Biggs should not bring anymore “old schools” unless he can accept a lesser price. This demonstrates that they are selling firearms, but cannot meet the expectations of Biggs on the price for the “old schools”. They agree Biggs must be told this for their future shipments. Mr. Cunningham is now participating in the quality control decisions of the firearms being shipped for sale in Toronto.
• After Mr. Cunningham suggests that Biggs is a trickster because the prices for the firearms are less “right across the board”, Mr. Poyser urges him to speak with Biggs, suggesting Mr. Cunningham is more than simply a purchaser or his agent and can assist Mr. Poyser when negotiating to reduce the prices sought for the “old schools”.
• Mr. Cunningham suggests that they are not “rookies” and that it is a “team thing”. He further suggests that Biggs cannot keep on saying “next, time, next time, next time” because it does not work that way. This shows that Mr. Cunningham is part of the team, is not a one-time purchaser and there will be a “next time”.
vi. Later, at 6:19 p.m. that day, Mr. Cunningham concludes that if Biggs wants the “twenty-five” for the remaining firearms (i.e., “old schools”), “we” (he and Mr. Poyser) would not “make anything from that” (i.e., profits). He suggests that they will have to find a way to “hustle those”. The inference to be drawn from this part of the conversation is that the firearms would have to be sold (i.e., hustled) at what Mr. Cunningham hoped would be at a profit. If he was simply a purchaser or agent for Mr. Poyser, he would pay the price he thought was worthy or reject the opportunity to purchase.
vii. Mr. Cunningham met with Mr. Poyser at the gym after telling him to bring the “sneakers” and the “laces too” (i.e., the firearms and the ammunition). He asks for both as he is going to try to sell both. (This also demonstrates that the firearms were operable, otherwise why would he suggest that Mr. Poyser bring the ammunition as well?)
viii. Later that evening (May 8, 2018), the surveillance shows that Mr. Cunningham transferred something from Mr. Poyser’s van to his own vehicle after having met in Mr. Poyser’s van. Thereafter, Mr. Cunningham travelled to Mississauga where he transferred a bag from inside his car to his trunk. During this trip, he met with three unknown men which could be consistent with trafficking. While I agree that trafficking is not the only available inference to be drawn from Mr. Cunningham’s activities during this period of surveillance and that it is reasonable that these meetings could be with respect to the sale of legal items, this is but one incident in the chronology of events upon which I base my conclusion that Mr. Cunningham was trafficking firearms.
ix. Thereafter, Mr. Poyser called Mr. Cunningham. Mr. Poyser asked if Mr. Cunningham had given him “24-5”. Mr. Cunningham advised him to check the “one with the hundreds”, suggesting that Mr. Poyser has miscounted the money given to him. Since there is a reference to counting the “one” with the “hundreds”, the reasonable inference to draw is that they are discussing monies delivered in excess of $245. This leads to the inference that Mr. Cunningham took the firearms, sold them and paid Mr. Poyser when he was finished doing so.
x. On May 11, 2018 and during the call at 2:26 p.m., Mr. Cunningham refers to the fact that “our clientele … has standards” when discussing the “old school” firearms that are difficult to sell. The inference to be drawn is that he is referring to the potential purchasers of his firearms who have standards for better quality firearms than the “old schools” delivered in this shipment and offered to them for a “ridiculous” price.
xi. Seven days later and on May 18, 2018, Mr. Cunningham called Mr. Poyser. He asked if the “other two sneakers” are still available because he was contacted about them (presumably from potential purchasers). He said that he could “probably” get “two-seven” for them. The reasonable inference to draw is that Mr. Cunningham was working with Mr. Poyser in the business of selling firearms, had offered them for sale, and that is why he was being called about two still being available.
xii. Two minutes later, Mr. Poyser called Mr. Cunningham to ask how much he could get for the two remaining firearms. Mr. Cunningham replied, that he could probably get “two seven” (i.e., $2,700). He would only know that price if they had been offered for sale and was generally aware of the market price. Further, he is not simply offering to purchase them from Mr. Poyser, he is suggesting that is the price they could get on the street if they were sold.
[146] I agree that Mr. Poyser may have used Mr. Cunningham as his agent to retrieve the firearms from Cornwall on May 7, 2018, but Mr. Cunningham did much more after having received them. I find that he took firearms from Mr. Poyser, sold them, attempted to sell others and when he could not, he participated in discussions as to how those could be sold for lower prices in an effort to ensure that he and Mr. Poyser earned profits for their work. Such profits would generate the possibility of buying more firearms and the cycle would continue.
[147] Counsel for Mr. Cunningham rightly concedes that if I am satisfied beyond a reasonable doubt that the objects discussed in the intercepted communications were firearms (which I do) and that Mr. Cunningham transferred or offered to transfer them (which I do), then it is conceded that Mr. Cunningham would have known that he was not authorized to do so.
[148] For the abovementioned reasons, I am satisfied beyond a reasonable doubt that Mr. Cunningham committed the offence of trafficking firearms contrary to s. 99(1) of the Criminal Code.
b. Was the offence of firearms trafficking committed for the benefit of, at the direction of or in association with a criminal organization?
[149] I find that the predicate offence (trafficking firearms) was committed for the benefit of or in association with a criminal organization.
[150] The fact that Mr. Cunningham may not have been a member of the criminal organization does not preclude a finding that the predicate offence (firearms trafficking) was done “in association with” a criminal organization.[^78] As stated by Fuerst J. in R. v. Lindsay[^79] at para. 59, “The phrase is intended to apply to those persons who commit criminal offences in linkage with a criminal organization, even though they are not formal members of the group.”
[151] In R. v. Venneri,[^80] the Supreme Court of Canada held that the phrase “in association with” captures “offences that advance, at least to some degree, the interests of the criminal organization –even if they are neither directed by the organization nor committed primarily for its benefit” [Emphasis in original].[^81]
[152] The evidence that supports my conclusion, that Mr. Cunningham committed the predicate offence “in association with” or “for the benefit of” the criminal organization may be summarized as follows:
i. Mr. Cunningham was aware that Mr. Poyser was not operating alone. On May 4, 2018 when he asks Mr. Poyser when they can “boom bam”, Mr. Poyser advises that he has to wait for the “okay”. The “okay” had to come from somebody else.
ii. On May 6, 2018, Mr. Poyser advises Mr. Cunningham that he wants him to meet his partner. Together they meet with Mr. Lewis, a member of the criminal organization.
iii. The next day, Mr. Poyser advises Mr. Cunningham that “about 30 are on their way right now”. Those 30 were coming from somebody other than Mr. Poyser: Biggs in the U.S.A.
iv. Mr. Cunningham appears to understand that Biggs is in the U.S.A., referring to the fact that he had lived there himself and understood the purchase price for firearms there.
v. After meeting with Messrs. Poyser and Lewis in Toronto, he met them again in Bowmanville before he and Mr. Lewis travel to Cornwall in tandem. Goods are in Mr. Cunningham’s car. They are delivered and other goods