COURT FILE NO.: 21-28

DATE: 2022/04/27

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BAROU MBUYAMBA AND JEVON ANDERSON

Accused

Barb Glendinning and Paul Syrduk, for the Crown

Daniel Howard and Mellington Godoy, for the Accused

HEARD: March 18, 21 - 23, and 25, 2022

REASONS FOR decision

Roger J.

[1] The accused are charged with weapons related offences. More particularly, the indictment charges each with:

• nine counts of import a firearm, relating to nine various handguns, contrary to s. 103(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46, at counts one to nine;

• fourteen counts of import a prohibited device, relating to fourteen high-capacity detachable cartridge magazines, contrary to s. 103(1)(a) of the Criminal Code, at counts ten to twenty-three;

• nine counts of possess a firearm, relating to the same nine various handguns, contrary to s. 92(1) of the Criminal Code, at counts twenty-four to thirty-two;

• fourteen counts of possession of a prohibited device, relating to the same fourteen high-capacity detachable cartridge magazines, contrary to s. 92(2) of the Criminal Code, at counts thirty-three to forty-six;

• nine counts of unauthorized possession a firearm in a motor vehicle, relating to the same nine various handguns, contrary to s. 94 of the Criminal Code, at counts forty-seven to fifty-five;

• fourteen counts of unauthorized possession of a prohibited device in a motor vehicle, relating to the same fourteen high-capacity detachable cartridge magazines, contrary to s. 94 of the Criminal Code, at counts fifty-six to sixty-nine;

• nine counts of possession of goods unlawfully imported into Canada, relating to the same nine various handguns, contrary to ss. 155 and 160 of the Customs Act, R.S.C., 1985, c. 1 (2nd Supp), at counts seventy to seventy-eight; and

• fourteen counts of possession of goods unlawfully imported into Canada, relating to the same fourteen high-capacity detachable cartridge magazines, contrary to ss. 155 and 160 of the Customs Act, at counts seventy-nine to ninety-two of the indictment.

[2] The Crown’s case is entirely circumstantial, and the accused did not testify.

Background

[3] The alleged offences occurred in the area near Cornwall, Ontario, on June 10, 2020.

[4] An officer with the Canada Border Services Agency (“CBSA”), testified that they received intelligence from their American counterpart about possible smuggling activities on June 10, 2020. He explained that consequently, the CBSA and border integrity officers with the Royal Canadian Mounted Police (“RCMP”), located in Cornwall, were particularly active that day.

[5] The CBSA and RCMP were on the lookout for suspicious activities on the St. Lawrence River. The CBSA officer was positioned in an unmarked vehicle near a local restaurant fronting on the river, trying not to be noticed, and watching the river. Three RCMP officers were posted at other locations in separate marked vehicles, also surveilling the river. In addition, an RCMP marine team was patrolling the river.

[6] These events occurred during the first summer of the Covid-19 pandemic. International travel was prohibited. Also, because of Covid restrictions, the local restaurant where the CBSA officer was positioned was closed.

[7] At about 20:27, the CBSA officer noticed an approaching motorboat. He saw three people onboard and thought that the boat seemed suspicious when it stopped and hovered near the dock of the restaurant, seemingly waiting. He testified that he could see the occupants using their cellular phone. He surreptitiously took pictures of a small runabout boat, light in colour, with some red markings, a light grey or light blue Johnson outboard motor, and registered in New York State.

[8] Shortly after, at about 20:44, the CBSA officer observed the boat land at the restaurant’s dock and one male exit the boat carrying a duffel bag. The bag appeared to be heavy. The boat left and the person with the duffel bag seemed to be waiting for someone, while trying to conceal the bag and to look inconspicuous by leaning against the wall of the restaurant. Shortly after, a dark Honda CR-V SUV pulled up and the man with the bag put the bag in the rear hatch and boarded the back seat of the car, which then left.

[9] The license plate of the CR-V and relevant descriptions of the man with the bag, of the duffle bag, and of the vehicle were relayed by the CBSA officer to the RCMP, who proceeded to locate and intercept the vehicle. At 20:57, the CR-V was located and stopped by the RCMP a short distance away, driving north on Boundary Road.

[10] The vehicle stopped by the RCMP had four occupants. The accused, Barou Mbuyamba, born July 2000, was the driver. His friend, the accused, Jevon Anderson, was the front seat passenger. The backseat passenger-side passenger matched the description of the man seen disembarking the small boat with a duffel bag and embarking in a dark coloured vehicle matching the description and licence plate of this vehicle; he was identified as Tony N’Zoigba. The backseat driver-side passenger was a Mr. Kwadwo Danso-Manu.

[11] Earlier that evening, at about 20:08 p.m., this same CR-V had been recorded by a video camera travelling south on the Cornwall Bridge. According to the cellphone records of Mr. Anderson, they most likely attended a gas station on Cornwall Island. On their way back, they had to stop and clear the border services agency, which they did at about 20:40 p.m. The border officer then observed only three occupants in the car. She noted the licence plate, which is the same as that of the vehicle described above and found that it was registered to a woman living in Rockland, Ontario. The border officer allowed the car to proceed without identifying the occupants.

[12] As well, the same runabout boat was spotted earlier that day, and its occupants identified by RCMP officers. At that time, foreign vessels were not expected in Canadian waters because the Quarantine Act, S.C. 2005, c. 20, restricted foreign travel. At about 14:30 on June 10, 2020, officers with the RCMP marine unit stopped a boat with a New York registration at a marina in Cornwall. The evidence establishes that it is the same boat as the one described above. The officers spoke to the occupants of the boat, explaining the new rules, and noticed that the boat lacked any safety equipment. At that time, the boat only had two occupants. They were identified as Mr. Jessee Gorrow from the Saint Regis Mohawk Tribe in Akwesasne, New York, and Mr. Andrea Costanzi from Ontario. The officers offered to escort them back because the boat lacked any of the required safety equipment, but on the occupants’ undertaking to purchase this equipment the officers gave them a warning. Interestingly, in the pictures taken of the same boat later that evening by the CBSA officer, we see that two of the three occupants are wearing what appears to be a new life jacket.

[13] A former friend of the accused testified that she loaned her mother’s Honda CR-V to the accused, Mr. Mbuyamba, on July 10, 2020. She was uncertain of the time but believed that it was later in the day; she was mistaken about this as the evidence indicates that the accused left earlier than she remembered. She understood that the two accused and Mr. Danso-Manu were going to pick up one of their friends, Tony N’Zoigba, although she had never previously heard of this person. She understood that Mr. N’Zoigba was not too far away and that the accused would therefore not be gone too long, or at least not leave the city, but she also seemed uncertain about this. She explained that she was more than friends with Mr. Mbuyamba at the time. She said that she had spent time with the three of them that day, and that she might have travelled with them to pick up Tony, and possibly also stay somewhere overnight, had she felt better and had there been enough room in the car. However, she was not feeling well, did not wish to go, and made this clear to Mr. Mbuyamba; she did not go. She testified that Mr. Mbuyamba told her that it was urgent, that Tony had no other ride. Her conversations about this were mostly with Mr. Mbuyamba. She confirmed that the two accused were good friends of one another since at least high school.

[14] When they were stopped by the police, all occupants of the vehicle appeared nervous, although the officer who testified about this indicated that it is not uncommon for people to be nervous in such circumstances.

[15] Mr. Mbuyamba told the officer that he did not know why they were being stopped. It was explained that it was because they were observed in proximity to the border, and that their vehicle would be searched under s. 99 of the Customs Act.

[16] A duffel bag matching the description relayed over the radio by the CBSA officer was found in the rear hatch of the vehicle. It contained the nine handguns and fourteen high-capacity detachable cartridge magazines listed on the indictment. Other duffel bags were also found in the rear hatch, but they contained clothing and products typically associated with overnight travel.

[17] When the vehicle was stopped, Mr. Anderson was observed to be busy gathering and counting $20 dollar bills; he told the officer that it was his money. He also asked the officer, upon being informed that he was under arrest for the guns and magazines found in the car, “is that what you guys found?”.

[18] All occupants were searched. Mr. Mbuyamba had $240 cash and one cellphone. Mr. Anderson had $2,700 cash loose in his pockets and one cellphone. Mr. N’Zoigba had one cellphone and otherwise did not have anything of significance on him, and Mr. Danso-Manu had $570 and two cellphones. The five cellphones were seized and sent for analysis, but extraction of information was only possible on the cellphones belonging to Mr. Anderson and Mr. N’Zoigba.

[19] The cellphone of Mr. Anderson was not password protected (he told the police that it was his phone and that it was not password protected), and the police were able to extract text and call information from his phone. The police were only able to extract videos from the phone of Mr. N’Zoigba.

[20] When observing the still images made from the videos taken from the phone of Mr. N’Zoigba, it is apparent that the nine handguns shown on those images are the same as the nine handguns seized in the accused’s CR-V. Although we cannot see their serial number, we nonetheless see that the shape and contour of the guns are the same. We can also see, on those images, that the person holding each of the nine handguns wore a purple sweater (as we see his hand and sleeve on the images), which matches the observations made of the sweater worn by Mr. N’Zoigba when he disembarked from the boat and when he was arrested. It is apparent from the evidence that Mr. N’Zoigba used his phone to make videos of the nine handguns which were later found in his duffel bag in the rear hatch of the accused’s CR-V.

[21] Mr. N’Zoigba pleaded guilty to importation and possession of nine handguns and fourteen high-capacity detachable cartridge magazines, contrary to s. 103(1)(a) of the Criminal Code and ss. 155 and 160 of the Customs Act. He was sentenced on September 10, 2021, to four years less time served: see R. v. N’Zoigba, 2021 ONSC 6023. Charges laid against Mr. Danso-Manu, the other backseat passenger, were stayed by the Crown.

[22] The text messages and telephone records show that Mr. Anderson and Mr. N’Zoigba communicated by text and phone from June 7 to June 10, 2020. It also appears as if the battery of Mr. N’Zoigba’s phone ran out of power at about 20:30 on June 10, because at 20:31, Mr. Costanzi (who was earlier observed by the marine unit of the RCMP to be a passenger in the boat) texted Mr. Anderson, and thereafter communications recorded on Mr. Anderson’s phone were with him rather than Mr. N’Zoigba.

[23] The Crown prepared a table showing relevant texts and telephone calls, which I attach below:

Timeline of Cellphone Communications on Mr. Anderson’s phone, June 7 to June 9, 2020:

Date

From

Time

Text

Chat

Page

June 7 2020

Anderson

N’Zoigba

12:54 pm

Yo, call me

006

June 8 2020

Anderson

N’Zoigba

8:46:15 pm

What time we meeting you Wednesday

006

June 8, 2020

N’Zoigba

Anderson

8:46:37 pm

I’ll keep you posted

006

June 8 2020

N’Zoigba

Anderson

8:46:41 pm

Should be around noon

007

June 8, 2020

N’Zoigba

Anderson

10:24 pm

Tony011697@yahoo.com

014

June 8, 2020

N’Zoigba

Anderson

12:14 pm

Did he call back?

014

June 8

N’Zoigba

Anderson

12:24 pm

Sayless respect broski

014

June 9, 2020

N’Zoigba

Anderson

12:05 pm

Yo did Kevin call

007

June 9, 2020

N’zoigba

Anderson