Court File and Parties
COURT FILE NO.: CR-22-40000178-0000 CR-23-40000218-0000 DATE: 20230404
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – TROY MORRISON Defendant
Counsel: Zachary Kerbel, for the Crown Anthony De Marco, for the Defendant
HEARD: March 27-31, 2023
JUSTICE S. NAKATSURU
[1] Mr. Troy Morrison is charged with possession of a restricted handgun knowing he was not a holder of a licence and a registration certificate contrary to s. 92(1) of the Criminal Code. During Project Sunder, a police investigation based upon wiretap and surveillance, Mr. Morrison was stopped by the police on May 26, 2020, driving a black BMW. He was arrested. A search incident to arrest revealed a handgun in a black backpack located in the trunk of the BMW.
[2] I have heard a blended Charter application and trial. I will first deal with the Charter issues. Then I will consider the properly admissible trial evidence and decide whether the Crown has proven the essential elements of the offence beyond a reasonable doubt.
[3] Mr. Morrison alleges two Charter violations: (1) a s. 9 violation because the police did not have reasonable and probable grounds to arrest him; and (2) a s. 8 violation because the search incident to arrest was unreasonable since the arrest was unlawful.
[4] For the following reasons, I find no Charter violations.
A. SECTION 9: REASONABLE AND PROBABLE GROUNDS FOR THE ARREST
[5] Mr. Morrison submits that the police lacked the reasonable and probable grounds to arrest him for possession of a firearm. For a lawful arrest, the police officer must have both subjective and objective reasonable and probable grounds that a person has committed or is about to commit an indictable offence. The grounds must be subjectively held in the sense of an honestly held belief. Additionally, that belief must be reasonable, determined on the objective standard of a reasonable person standing in the shoes of the officer: R. v. Storrey, [1990] 1 S.C.R. 241, at para. 17; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at paras. 62-63.
[6] Reasonable and probable grounds is more than a mere suspicion or possibility; the test is met when credibly based probability replaces suspicion: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 37; R. v. Muller, 2014 ONCA 780, 122 O.R. (3d) 721, at para. 33.
[7] All the circumstances must be considered when assessing whether objective reasonable and probable grounds for the arrest existed, including the training, knowledge, and experience of the officer and the dynamics of the situation in which the officer acted: see R. v. Latimer, [1997] 1 S.C.R. 217, at para. 26; R. v. Desilva, 2022 ONCA 879, at para. 60. Facts known to the officer should be considered as a whole in the assessment: see R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 29. Determining whether sufficient grounds exist to justify the arrest calls for the application of common sense, flexibility, and practical everyday experience: see MacKenzie, at para. 73.
[8] In this case, reasonable and probable grounds for Mr. Morrison’s arrest depends upon my assessment of the evidence of Detective Tanabe. He is the Project Sunder officer who instructed the surveillance team to arrest Mr. Morrison. His reasonable and probable grounds are what matters.
[9] To set the context for those grounds, under the authority of a Part VI authorization, the investigators in Project Sunder had been intercepting the private communications of a primary target of the authorization, one Daveion Brown. Based on the intercepts, the police believed him to be a trafficker in illegal guns and drugs. In May of 2020, Mr. Brown had telephone and text communications with an unknown male that the police later came to believe to be Mr. Morrison. They only identified Mr. Morrison when he was arrested. Until then, the police did not know who this male speaking with Mr. Brown was.
[10] I find that Detective Tanabe subjectively had reasonable and probable grounds for the arrest. He testified that after he listened to the wiretaps leading up to May 26, 2020, he formed the belief that Mr. Brown was going to provide a firearm to the unknown male who was using the telephone number 647-223-4160 to communicate with Mr. Brown. There were several calls leading the officer to believe this. As a result of this belief, Detective Tanabe advised the surveillance team to arrest the person Mr. Brown had arranged to meet on May 26. I find that Detective Tanabe was a credible and reliable witness. His testimony about his subjective belief was unshaken in cross-examination.
[11] Moving on to the objective part of the test, the starting point is Detective Tanabe’s great depth of experience in police investigations generally, in confidential source information regarding drug and gun offences, in other wiretap investigations, and in the wireroom in Project Sunder. He was one of the detectives in charge of the wireroom of Project Sunder. As a part of his duties, the officer was briefed on the material intercepts as they occurred and he himself listened to some of the intercepts. In plain speak, he knew what was going on in the Project Sunder.
[12] Detective Tanabe was familiar with the intercepted private communications of Mr. Brown. A series of intercepts revealed Mr. Brown’s involvement in a prior gun trafficking transaction using a middleman named Stewart. Other intercepts had Mr. Brown dealing in drugs. Said differently, the police had credible information about Mr. Brown’s recent involvement in these illegal activities.
[13] Detective Tanabe was also aware of more specific intercepts involving Mr. Brown and a particular male unknown to the police at the time who was using the telephone number 647-223-4160 on May 20 and May 25, 2020. These interceptions of private communications formed part of the officer’s grounds for the arrest of Mr. Morrison. The interceptions can reasonably be interpreted as involving drug transactions between Mr. Brown and this unknown male. While no one directly speaks of drugs (unsurprising in the circumstances), the terminology used and the context of the calls, viewed through the experience of the officer, readily lends itself to this interpretation. Just as an example, the unknown male refers to “22 zip”; “zip” being a term Detective Tanabe was familiar with meaning an ounce and the number being referable to $2200. Given the prevailing price of cocaine at the time, Detective Tanabe inferred the male was talking about an ounce of cocaine. Another example is when they talk about it being “good shit” or “decent”, referring to the quality of the drugs. They also talk about a “brick” which the officer interpreted as a kilogram of cocaine. At one point, they talk about Mr. Brown looking to get some “cut”, openly referring to a cutting agent. The unknown male was willing to sell that to Mr. Brown for $30 a half “zip”. Assessed objectively, a reasonable inference from these wiretaps was that Mr. Brown and the unknown male were involved in the drug trade.
[14] In this context, there are then the other intercepts of May 25 and 26, 2020. In these calls, Mr. Brown and the unknown male are talking about meeting with each other. In session 1368, as they discussed this meeting, Mr. Brown appeared to want to talk about something, but then suddenly stops, saying he would talk to the unknown male about it in person. In other subsequent calls, there are references to the unknown male waiting for his “cousin”. At one point, Mr. Brown states his car is “hot” and he does not want to drive it. Again, looking at these calls viewed through the considerable experience of the detective, it is reasonable to interpret these conversations as the two men trying to arrange a meeting for a purpose that Mr. Brown was concerned about talking over the phone, and concerned about using his car as it might be at risk of being detected by the police. Detective Tanabe also testified from other intercepts that Mr. Brown was quite willing to drive around in his own car while in possession of drugs.
[15] In these calls, the unknown male makes a reference to “draw for it” which Detective Tanabe, given his past familiarity with the term, interpreted as the unknown male wanting to pick something up from Mr. Brown. However, the unknown male seems reluctant to have “it” when his “cousin” was not around. Standing in the shoes of Detective Tanabe, it is reasonable to conclude from these calls that whatever the unknown male was going to pick up, it was something different from the drugs which previously had been discussed more openly. “It” was something that the unknown male seemed reluctant to possess for any length of time. Moreover, in light of Mr. Brown’s prior gun trafficking, using Stewart as a middleman so that he would not have to deal with an unfamiliar person, Detective Tanabe saw a parallel to this developing situation with the unknown male because Mr. Brown did not seem to want to meet the “cousin”.
[16] In my opinion, these interpretations are objectively reasonable and justified.
[17] The defence submits that these interpretations are unreasonable. Specifically, Mr. Morrison focuses on session 1368, where Mr. Brown stops talking about something and says he wants to talk in person. The defence argues that it is a leap of inference, without any evidence, to suggest it was a gun. I disagree. That call has to be viewed in the context of all the calls. When one does so, from an objective perspective, Detective Tanabe’s belief that it was a gun was reasonable. This includes the following significant call.
[18] In session 1430 at 21:08 on May 25, about thirty minutes after Mr. Brown and the unknown male are talking about the latter picking “it” up once his “cousin” was in Brampton (where Mr. Brown lived), the unknown male calls back and asks Mr. Brown about something he had forgotten to ask. The unknown male asks, “…it’s clean and all that shit?”. Mr. Brown says it is and laughs. The unknown male said he had to ask and Mr. Brown said he understood. The unknown male then said he was going to “link” Mr. Brown first thing tomorrow morning and they were going to deal with it.
[19] Detective Tanabe testified that he is familiar with the term “clean” in reference to firearms. “Clean” meant that the firearm had not been used in a criminal offence or used to shoot someone. In his years of experience, especially dealing with confidential informants, he has heard the word “clean” used in this way. He has never heard that term used in reference to an illegal drug. Moreover, in prior calls between the unknown male and Mr. Brown, other words were used to describe the drug and its quality such as “bling”, “decent”, and “HH”. Never “clean”.
[20] After this specific call, Detective Tanabe testified he formed reasonable and probable grounds that Mr. Brown and the unknown male were going to be involved in a firearm transaction the next day. He based these grounds on all of the material information he had, including: the nature of the prior gun transaction Mr. Brown was involved in, where he refused to meet with a stranger and used a known acquaintance as a middleman; Mr. Brown’s willingness to speak more openly about drugs and drug transactions and then his sudden reticence when he wanted to speak about something only in person; his willingness to use his car for drug transactions and then his refusal to use his car because it was “hot” when it came to picking it up; the unknown male willing only to have it for a short time; the arrangement for the unknown male to pick it up the next day; and the call back by the unknown male to ensure it was “clean”, a reference used in describing firearms.
[21] Detective Tanabe authorized a take down on May 26, 2020, if Mr. Brown met with this unknown male. The intercepted text messages and phone calls on May 26 provided ample reasonable grounds that the unknown male using this telephone number was going to meet with Mr. Brown. While Detective Tanabe had formed his reasonable and probable grounds before the meeting took place, the circumstances of that meeting where Mr. Brown exchanged a black backpack with the unknown male further supported those grounds.
[22] When the totality of the circumstances is considered, objectively, Detective Tanabe had reasonable and probable grounds to believe that the unknown male was in possession of a firearm. The intercepts provided credibly based probability that the unknown male was going to obtain a firearm from Mr. Brown. Mr. Brown’s recent history having done the same offence with another person, his reluctance to speak openly about this transaction with the unknown male despite the relative transparence of their drug related conversations, the use of a potential middleman to compete the transaction like in the previous gun exchange incident, and the inquiry made by the unknown male whether what was being obtained was “clean”, provided the grounds for Mr. Morrison’s arrest.
[23] Thus, there was no s. 9 violation.
B. SECTION 8: SEARCH INCIDENT TO ARREST
[24] The trunk of the BMW and the black backpack was searched purportedly under the police authority to search incident to arrest. Therefore, the Crown must prove the lawfulness of this search.
[25] Search incident to arrest must be truly incidental to a valid arrest. It must be done for the purpose of ensuring the safety of the police and public, the protection of evidence from destruction, or the discovery of evidence: see R. v. Caslake, [1998] 1 S.C.R. 51, at para. 19.
[26] I accept the unchallenged testimony of Sgt. Doyle who conducted the search. I am satisfied that these searches were incident to a lawful arrest and for proper purposes. While Sgt. Doyle only testified that he searched the trunk incident to arrest and did not specifically expand on the reasons why, I find as a fact that his purpose was to look for the backpack that he had reasonable grounds to believe had a gun in it. The surveillance team was there that day to observe a potential firearm pickup and to arrest the person who picked it up. As a part of the surveillance team, Sgt. Doyle was advised over the air by Detective Balint that Mr. Brown exited his residence with a backpack, got into the BMW, and exited without the backpack. Detective Balint further advised that the driver then put the backpack into the trunk. The takedown was called shortly thereafter. Given these circumstances, no specific elaboration is needed that when Sgt. Doyle testified that he was searching the trunk incident to arrest, he was looking for the backpack with potentially the firearm inside. In other words, he was searching for specific evidence.
[27] This search did not result in any s. 8 violation.
C. JUDGMENT ON TRIAL
[28] The essential elements the Crown must prove beyond a reasonable doubt are that Mr. Morrison, on May 26, 2020, (1) possessed (2) a restricted firearm (3) knowing that he is not a holder of a licence and a registration certificate. Before analyzing the evidence to decide guilt or innocence, I will address a preliminary issue regarding the continuity of the firearm.
1. Continuity of the Firearm
[29] The Crown must prove beyond a reasonable doubt that the item seized from the trunk of the BMW is a restricted firearm. To support that finding, the Crown relies upon the certificate and the testimony of D.C. Christine McLane, a verifier for the firearms investigation and analysis unit. She tested the firearm on June 17, 2020.
[30] I am satisfied from the evidence establishing the chain of continuity that the firearm seized by D.C. Doyle on May 26, 2020, from the trunk of the BMW was the firearm tested by D.C. McLane on June 17, 2020. The defence submits that the evidence is “murky” regarding this. I find that it is not. I accept the testimony of the witnesses called by the Crown to establish continuity. Their credibility and reliability were not undermined.
[31] The evidence establishes the following.
[32] D.C. Doyle seized the firearm from the trunk and kept it in his possession in a box. At 22 Division of the Peel Regional Police Force, at 15:19 on May 26, he turned it over, along with other items seized, to D.C. Ivkovic. D.C. Morgan also testified that he turned over a cellphone found in the BMW to D.C. Ivkovic at 15:19. D.C. Ivkovic testified that on May 26, at 15:19, he received the firearm and other items from D.C. Doyle and D.C. Morgan. D.C. Ivkovic took photos of the firearm and the other items. While D.C. Ivkovic could not recall whether the firearm came in a firearm box used by the Toronto Police Service or whether he put it in a Peel Police firearm box, he placed the firearm in a box, unsealed, with the firearm untagged, and gave the firearm in its box to D.C. Pandolfi. While the defence points to D.C. Ivkovic’s lack of a specific recollection about the box, I find it immaterial to the issue of continuity. What exact box was used to put the firearm in has no relevance to establishing that the gun from the BMW was the gun moving along the chain of continuity.
[33] D.C. Pandolfi testified that at 15:55, D.C. Ivkovic turned over the gun in the firearm box to him along with other items from the seizure and he then transported them to Intelligence and turned over the items to D.C. Belza at 16:50. D.C. Belza testified that 16:50, he received the firearm in a box from D.C. Pandolfi. He proved the firearm safe, placed it in a box, sealed it with seal 1916694, and entered the firearm in the sealed box into the divisional locker management system.
[34] On June 4, 2020, Jaclyn Slaney, a civilian working for the Forensic Identification Services of the Toronto Police Service, examined the firearm for fingerprints and DNA. The firearm arrived in a sealed box in the divisional locker management system. She broke the seal 1916694 (placed on by D.C. Belza) and conducted her investigations. She replaced the gun in the same box and sealed it with seal 2400197. The sealed box was put back into the divisional locker management system.
[35] On June 17, 2020, D.C. McLane received the firearm box sealed by Ms. Slaney with seal 2400197. It was the only intact seal on the box. D.C. McLane cut the seal and conducted her examination. D.C. McLane took photos during her examination, including of the box before she cut the seal. After conducting the examination, she replaced the firearm into the box and resealed it.
[36] I have examined the box, which was made an exhibit along with the firearm and magazine at this trial. The seals on the box are all consistent with the testimony of the witnesses.
[37] Perhaps it is unnecessary to say this, but the firearm has been consistently described by all the witnesses who came into contact with it, and D.C. Doyle further identified the firearm put into evidence, along with its firearm box, as the one that he seized. This evidence further supports my finding that the firearm seized and tested are one and the same.
[38] I find as a fact that D.C. McLane tested the same firearm that was seized from the black backpack in the trunk of the BMW that Mr. Morrison was driving when he was arrested.
2. The Decision on the Merits
[39] To prove possession, the Crown must prove beyond a reasonable doubt both knowledge and control. I am satisfied beyond a reasonable doubt that Mr. Morrison had physical control over the firearm as he retrieved it from back area of the BMW and placed it in the trunk of the car. I accept Detective Balint’s observations of this when he conducted surreptitious observations of the meeting between Mr. Brown and Mr. Morrison outside 18 Morning Dew Crescent on May 26, 2020.
[40] The critical issue in this case is whether Mr. Morrison knew there was a firearm in the black backpack. There is no direct evidence that he saw the firearm or looked inside the bag. No forensic evidence like fingerprints or DNA connects him to the firearm. Given the Crown’s proof of his knowledge is based upon circumstantial evidence, Mr. Morrison’s guilt must be the only rational or reasonable conclusion to be drawn from the whole of the evidence.
[41] The defence submits that no evidence has been led identifying that the person Mr. Brown was speaking to on the calls is Mr. Morrison. There is no voice identification. Nothing in the substance of the conversations identifies the unknown male as Mr. Morrison. There is no evidence that Mr. Morrison is the subscriber of the phone used by this male.
[42] Additionally, the defence submits that it makes no sense that Mr. Morrison was the unknown male speaking to Mr. Brown on May 25. The session where the unknown male says that he did not want to have it just to have it is the same session Mr. Brown says that his car is hot, out of concern he was being surveilled by the police. It is submitted that it would not make sense for the unknown male to go and pick up the gun himself, knowing Mr. Brown was being surveilled. The defence submits that it is a reasonable and plausible theory that Mr. Morrison is simply the unwitting stooge sent by the unknown male to pick up the gun.
[43] I reject the defence submissions.
[44] Let me first turn to the intercepts. I am certain that Mr. Morrison is the person speaking with Mr. Brown on the material intercepts. The totality of the evidence leads to no other reasonable inference.
[45] Before I explain in detail, I will state this for Mr. Morrison’s benefit. I ignore the evidence relevant and admitted only to the Charter issues in deciding Mr. Morrison’s guilt or innocence; in particular, any opinion evidence or belief of the police officers about who was on the calls.
[46] To start the analysis, it is admitted that Mr. Morrison was arrested by the police on May 26, by members of the surveillance team at about 13:49 when the BMW was boxed in by the police. I make the following findings of fact. They really are not controversial. Detective Balint saw Mr. Morrison in front of Mr. Brown’s residence at 18 Morning Dew Crescent at 13:27 that day in the black BMW. He saw Mr. Brown exit the residence with a black backpack, get into the passenger side of the BMW, and remain within for several minutes. The video taken by Detective Balint confirms this. The officer then sees Mr. Brown exit the BMW without the backpack. Mr. Morrison gets out of the driver’s side door, opens the rear door of his car, retrieves the backpack, and puts it into the trunk of the car and drives away. A short distance away in front of a paramedic station, Mr. Morrison is stopped and arrested while driving the BMW. He is alone in the BMW. When the car was searched incident to arrest, no other backpack was found in the car, and the black backpack containing the handgun and magazine was found in the trunk.
[47] It is in the context of this event that the intercepts of May 25 and May 26, 2020, must be considered. I have reviewed them carefully.
[48] As noted above, the intercepts on May 25 shows a meeting being set up between Mr. Brown and the unknown male using the telephone number 647-223-4160. The meeting was set up for May 26. On May 26, there were a number of text messages and phone calls between Mr. Brown and the unknown male. They start with the unknown male texting Mr. Brown to “link” him when Mr. Brown is up. Based on the texts and calls, I find that the two arranged a meeting at Mr. Brown’s “crib”, which I find given the context and content of the call including directions to it, to be Mr. Brown’s residence. In a call at 12:01, the unknown male arranges to meet Mr. Brown in an hour. An hour later at 13:07, the unknown male says he is going to pull up and Mr. Brown reminds him his place is past Dixie and he was to make his first left at Fernforest. Fernforest is in the vicinity of 18 Morning Dew Crescent. The directions given by Mr. Brown are consistent with the unknown male being told to go to Mr. Brown’s residence. Then at 13:27, the following call is made by the unknown male to Mr. Brown:
Brown: Yo. Unknown Male: Come outside. Brown: You want me bring it out there? Unknown Male: Yeah. Brown: All right… Unknown Male: ...Or am I come get it? Brown: Ahm, do you have a bag or somethin’? Unknown Male: You can’t…No, I don’t have one still. Brown: All right, I’ll bring it out there still. Unknown Male: All right.
[49] This call is made as Mr. Morrison is pulled up to 18 Morning Dew Crescent in his BMW and is waiting outside. Shortly thereafter, Mr. Brown exits carrying a black backpack with the gun and magazine inside. Given the timing of the call, the context of Mr. Morrison being outside, and the content of the conversation, there can be no other rational conclusion than that it was Mr. Morrison who made this call. Indeed, the defence does not submit that this was anyone other than Mr. Morrison.
[50] Given that on May 26, this unknown male caller made all the arrangements and found his way there, I am certain Mr. Morrison made the other calls and texts that day. The context and the substance of the communications are consistent with that conclusion.
[51] Despite this irresistible conclusion, the defence still submits that it could have been a different person who spoke with Mr. Brown the previous day, May 25, and who set up the arrangements. Mr. De Marco submits that Mr. Morrison may well have made the calls on May 26 but he was an unknowing and unwitting dupe who was sent by this unknown male to pick up the gun. It is submitted that the Crown has not disproven this reasonable theory which is inconsistent with guilt as they are required to do when proof is circumstantial.
[52] I find this submission most unpersuasive.
[53] I am equally sure that Mr. Morrison made the calls on May 25. On these calls that day, the same topic is raised and the content of the communication is consistent with a discussion between Mr. Brown and the same man who came to 18 Morning Dew Crescent on May 26. Indeed, in the last call on May 25 in setting up the meeting, the unknown male says:
So what I’m gonna do is like I’m gonna ahm… I’m gonna link you first thing in the morning, tomorrow. And then we’re gonna deal with it. [Emphasis added.]
[54] Then at 11:40 the next morning, the unknown male sends Mr. Brown a text, “link me when u up fam.”
[55] Also supportive of my finding that Mr. Morrison is the same unknown male on May 25 is the call found in session 1456, intercepted on May 26 at 11:59 between Mr. Brown and Mr. Morrison as Mr. Morrison is making his way to Mr. Brown’s residence. In that call, Mr. Brown asks about whether “he” was going to be there too. Mr. Morrison says “he” was going to “check” him. When asked by Mr. Brown why “he” doesn’t “check” Mr. Morrison at Mr. Morrison’s “crib”, Mr. Morrison answers that “he” doesn’t drive. In my opinion, this call references the earlier calls on May 25 when the unknown male was referring to the “cousin” as being the ultimate destination of the firearm. This also supports the proof that Mr. Morrison is the same unknown male in the calls of May 25.
[56] Moreover, though this factor should not be given too much weight, the voice of the unknown male sounds the same throughout the calls on May 25 and 26.
[57] Lastly, the Samsung cellphone seized from the BMW after Mr. Morrison’s arrest, through data extraction and analysis, revealed its telephone number to be 647-223-4160; the number used by the unknown male to make all of the calls to Mr. Brown. In addition, contained within the phone are several photographs of a man and a child. Based upon my own observations of Mr. Morrison in the courtroom and exercising due caution in making a comparison, I conclude that this man in the photographs shares similarities to Mr. Morrison, including his facial features and the general nature of his hair. I find that this phone, regardless of who the subscriber was, was used by Mr. Morrison to call Mr. Brown throughout. No reasonable inference other than that can be drawn from the totality of the evidence.
[58] Still, regardless of my finding that it is Mr. Morrison speaking on all the material intercepts, the Crown must prove beyond a reasonable doubt that Mr. Morrison knew that what was contained in the bag was a firearm.
[59] I am satisfied beyond a reasonable doubt that he did. Putting aside for a moment the wiretaps, the Crown’s circumstantial case is strong. Mr. Morrison meets with Mr. Brown, who leaves a black backpack in his car. It is an exchange. Mr. Brown did not just forget about this backpack. Mr. Morrison removes the backpack from the rear of the car and puts it into the trunk. This is consistent with a man trying to better conceal or protect the contents of the backpack. There was nothing other than the gun, a sock, and the magazine in the backpack. It is not as if the gun was found hidden amidst many other innocent things. Finally, using just common sense, an illegal handgun and a gun magazine is not something that people leave behind for unwitting persons, nor do people typically receive backpacks from others without knowing or at least making some inquiry about what might be inside.
[60] When the contents of the wiretaps are added to the totality of the Crown’s evidence, the evidence is overwhelming that Mr. Morrison knew he was in possession of a firearm. Seldom in cases involving the charge of possession of a firearm does a court receive such probative evidence.
[61] I have already outlined the nature of these wiretaps. I am certain, looking at the content and the context of the calls, when considered along with the whole of the evidence, that Mr. Morrison is referring to a gun when he asks if it is “clean.” To be clear, I disregard Detective Tanabe’s opinion that “clean” was referable to a gun. That was only admissible on the Charter application. However, using common sense and common experience, and when I assess the case-specific evidence led at this trial, it supports the conclusion that “clean” refers to a gun. In other wiretaps where the two speak of other things like drugs, no such term is used. Moreover, the context of the calls, where Mr. Brown is secretive and reluctant to speak about “it”, supports this conclusion. Finally, to top it off, a gun was actually exchanged and seized. All of this is proof of knowledge beyond a reasonable doubt that Mr Morrison knew that what he had in his control and physical possession was a gun. It is the only reasonable inference to draw from the totality of the evidence.
[62] If I can characterize the Crown’s proof in this case as a puzzle, all the pieces fit and none are missing.
[63] I am satisfied that the Crown has proven beyond a reasonable doubt the other essential elements of the offence based on the evidence presented, including the certificate and affidavits. The defence does not contend otherwise.
[64] Mr. Morrison is therefore found guilty as charged.
Justice S. Nakatsuru Released: April 4, 2023
COURT FILE NO.: CR-22-40000178-0000 CR-23-40000218-0000 DATE: 20230404 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING – and – TROY MORRISON Defendant
REASONS FOR JUDGMENT NAKATSURU J. Released: April 4, 2023