COURT FILE NO.: CR-19-2802 DATE: 20230111

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – MYLES ROBINSON Defendant

COUNSEL: L. Pasquino, for the Crown M. MacGregor, for the Defendant

HEARD: November 14, 15, 17 and 19, 2022

REASONS FOR DECISION

DE SA J.:

Overview

[1] The accused, Myles Robinson, is charged with possession of a loaded and prohibited firearm contrary to ss. 91(3) and 95(2) of the Criminal Code, R.S.C. 1985, c. C-46. He is also charged with various breach of recognizance charges related to his alleged possession of a firearm.

[2] The firearm charges relate to an attempted sale of a firearm by a male named Marwan Awdi. Mr. Robinson is alleged to have been the potential purchaser of the firearm.

[3] The trial proceeded before me in November and after submissions I reserved my decision.

[4] These are the reasons for my decision.

Summary of Facts

The Investigation

[5] On October 18, 2018, Marwan Awdi (“Awdi”) was under investigation as part of Project Camden. Awdi is now deceased. Police were conducting surveillance of Awdi and intercepting his private communications pursuant to a Criminal Code Part VI judicial authorization. Between the dates of October 11 and 18, 2018, police heard Awdi in what they believed were various calls relating to trafficking of controlled substances and firearms. Various intercepted calls tendered by the Crown make it clear that Awdi was looking to sell a Taurus firearm (Taurus Model PT140 Millennium G2 pistol).

[6] On October 18, 2018, Awdi was intercepted on his 437 238 6675 line, communicating with an unknown male who was using line number 437 223 5199. That unknown male was later identified to be the accused, Mr. Robinson.

[7] Awdi and Mr. Robinson negotiated a price for the Taurus firearm and ammunition. Arrangements were made for the firearm to be delivered to Mr. Robinson’s address in Newmarket the same day.

[8] Mr. Robinson provided Awdi with directions to his home address and officers followed Awdi to 1016 Wilbur Pipher Circle in Newmarket, a detached house with two garages. Mr. Robinson lived in the detached house at 1016 Wilbur Pipher Circle with his father and his sister.

[9] Emergency Response Unit (“ERU”) officers were called in to assist with what was contemplated to be a high-risk takedown given the presence of a firearm.

[10] Officer Anthony Sardinha, Badge #1874, was one of the six-person surveillance team that had been following Awdi. In the course of surveillance, Sardinha observed Awdi’s white Hyundai Santa Fe CABW 450 pull into the driveway of 1016 Wilbur Pipher Circle. Awdi parked and exited the driver’s side of the vehicle. As he made his observations, Sardinha did not notice a passenger in the vehicle.

[11] After exiting the vehicle, Awdi met an unknown male in the west side garage of the property. This male was later identified to be Mr. Robinson. It was dark outside, but Sardinha could observe the two males with the basic lighting from the garage and surrounding streetlights. Awdi and Mr. Robinson appeared to be talking. Sardinha could not hear the conversation.

The Takedown

[12] The ERU arrived shortly after Awdi met up with Mr. Robinson. As the ERU arrived, Awdi popped out of the garage onto the driveway to see what was happening. After observing the males, Sergeant Matt Ready, Badge #2061, of the ERU immediately called the take down at 22:06.

[13] Ready exited his vehicle and deployed a diversionary device to distract the males. After the device was deployed, Ready observed the males run into the garage of the address. Officer Ricky Ho, Badge #1438, gave chase to Mr. Robinson into the garage. As Ho followed Mr. Robinson into the garage, Ready ran to the back of the house to make sure no one exited the rear of the address.

[14] Ho chased Mr. Robinson through the open garage door. From inside the garage, Mr. Robinson ran through a side entrance which entered a mudroom leading into the house. Ho was approximately 6 feet behind as Mr. Robinson entered that side door. The door was on a spring and started closing as Mr. Robinson went through. Ho kicked open the door calling for Robinson to stop as Mr. Robinson was traversing the stairs to enter the house. Ho observed Mr. Robinson stop about 3 feet in front of him. The interior door to the house was already opened. Mr. Robinson stopped just beside the open door.

[15] Ho directed Mr. Robinson not to move. Ho had a clear view of Mr. Robinson’s hands. Ho directed Mr. Robinson to put his hands up. Mr. Robinson was compliant. Mr. Robinson was arrested and turned over to investigators.

[16] During the chase, Ho did not observe Mr. Robinson throwing anything or hear anything hitting the floor. Ho testified that he did not observe Mr. Robinson to be in possession of a firearm at any point during the chase.

[17] Ho remained at the garage door for 10-15 minutes to assist with containment as Awdi had yet to be located. Police were still uncertain whether Awdi had exited the rear of the address or whether he was still inside the house. Ready had made observations of the backyard of the house from the neighbour’s yard. He observed that the rear patio door of 1016 Wilbur Pipher Circle was open.

The Search for Awdi

[18] At 22:23, K-9 units arrived on scene and were assisting with the search of the yards and surrounding areas. Between 23:22 and 00:41 police made ongoing efforts to look for Awdi and any other suspects in the area.

[19] Officer McGuigen, Badge #1164, was a police services dog handler on scene who attended to assist. They were told by Ready that there was a concern that someone escaped from the rear of the address. The patio door at the rear of the house was open. Dishes were broken at the rear of the house, and a chair was turned over on the patio.

[20] Using a service dog, McGuigen and Officer Mulick did a 4x4 search of the surrounding yards (4 houses to left, and 4 houses to right) including the row of houses to the rear. They focussed on decks and sheds. According to McGuigen, there was no indication that the fence surrounding the rear yard of 1016 Wilbur Pipher Circle had been scaled. The fences were higher than average (7-7½ feet). The service dogs did not detect any skin rafts or skin transfers on the fence.

[21] Police initially tried to enter 1016 Wilbur Pipher Circle through the garage entrance, but it was determined that the access was not adequate to ensure a safe entry with K-9. Police made the decision to enter through the front door to get a better vantage of the house. A robotic unit was used to do an initial inspection prior to the use of the K-9.

[22] At approximately 23:08, police deployed the dog at the front entrance to search the house for Awdi and other occupants. They called out to occupants to exit and informed them that a K-9 was being deployed.

[23] As police entered the house, officers located a black and silver handgun on the ground. The handgun was observed next to the side entry door from the garage/mudroom. Mr. Robinson had been arrested on the other side of that same door. The firearm stayed in place until photographs were taken and a valid search warrant was obtained.

[24] As police continued searching the house for occupants, Awdi was observed trying to escape from a basement window. Awdi was arrested by Sergeant Aaron Busby, Badge #1336, who was the duty officer on the evening of October 18, 2018. Awdi had climbed out of a basement window of 1016 Wilbur Pipher Circle right in front of Busby. Ready assisted Busby with Awdi’s arrest. When Awdi was arrested he was found in possession of $1,560.

[25] After Awdi was arrested, the house was searched floor by floor by numerous officers, including a canine officer and his dog, to see if anyone else was in the home. No one else was located. The surrounding area was also searched, roads to and from the subdivision were blocked and the ramps to the 404 Highway were blocked. The York Region Police Air 2 helicopter also assisted in containing and searching the area. No-one else was located.

Items located on Robinson

[26] After his arrest, Mr. Robinson was searched by Officers Elford, Badge #1596, and Legacy, Badge #1690, and found to be in possession of various items including:

a. $590 dollars Canadian b. An iPhone 6 c. Keys to a Mercedes motor vehicle

[27] The iPhone 6 cell phone seized from Mr. Robinson was examined and an extraction report was prepared by DC Mike Morrison, Badge #1279. The following information was included in the report:

a. Device information: the SIM card in the iPhone was for phone number 437 223 5199. b. The iMessage number on the device was 437 223 5199. c. Of the 2000 images stored, nearly all are of Myles Robinson. d. Some of the images are of firearms, including a downloaded photo of a black and silver Taurus Millennium G2 PT140 noted as modified October 18, 2018 at 9:19:06 p.m. e. One image was of a profile page with a photograph of Myles Robinson and the profile name millszlowkey. f. Of the 379 videos stored on the device, nearly all are of Myles Robinson rapping along to music. The videos also include: i. Two intimate videos, IMG 1749 and 1750, showing Robinson in a bedroom that matches the bedroom shown in photographs taken during execution of the search warrant on October 19, 2018. ii. Recordings of Robinson speaking in his regular speaking voice. iii. The e-mail account is shown as mylesrobinson2323@gmail.com. iv. The Web History records include a YouTube search re: Taurus millennium 40 cal. The YouTube video shows a handgun that matches the make, model and appearance of the handgun seized at 1016 Wilbur Pipher Circle. The time and date for the search are noted as October 19, 2018, 1:18:45 AM (UTC+0), however the time zone setting for the phone is set to Abidjan (Africa) which is four hours ahead, meaning the search would have been done at 9:18 p.m. on October 18, 2018.

The Firearm

[28] A search warrant was executed and the firearm was seized on October 19, 2018. Despite forensic examination, no DNA or fingerprints were recovered from the firearm.

[29] The firearm was determined to be a Taurus Model PT140 Millennium G2 pistol, serial number SKS59239 (a prohibited firearm). The firearm had a single cartridge of .40 Smith & Wesson pistol ammunition in the chamber. When the firearm was analyzed and test fired, five rounds of .40 Smith & Wesson ammunition were loaded into, and fired from, the Taurus firearm.

[30] Mr. Robinson was not legally permitted to possess a firearm or ammunition.

The Negotiation for the Firearm between Awdi and Mr. Robinson

[31] On October 18, 2018, Awdi was intercepted on his 437 238 6675 line, communicating with Mr. Robinson on line number 437 223 5199.

[32] Prior to meeting up at 1016 Wilbur Pipher Circle in Newmarket on October 18, 2018, Mr. Robinson and Awdi had the following discussion regarding the Taurus firearm.

Myles Robinson Ah.

Marwan Awdi Ah… what you dealing with?

Myles Robinson (Unintelligible) I’m here brother

Marwan Awdi Yeah yeah yeah yeah yo fucking my boy show you the wrong number the number alia (ph)

Myles Robinson Yeah but he showed me where I’m coming from too right

Marwan Awdi Yeah but he said he said yeah but if…if it was…it was the next ting right it would have been that price eh but it’s this one right and I also put a forty five on it ‘cause the man (unintelligible) too right but… (Voices overlap)

Myles Robinson …oh. (Voices overlap)

Marwan Awdi …so my boy is like don’t worry just do you right so I’m like alright so just give me for four to my boy and that’s the lowest I can go ‘cause there is a small come back ting right. And so everybody wants it’s not like no no big ting and shit you know what I mean

Myles Robinson No thirty eight fam

Marwan Awdi Huh?

Myles Robinson No thirty eight?

Marwan Awdi No

Myles Robinson Fam (laughs)

Marwan Awdi No…I can’t even do that yo my word fam I can’t even do that like that’s how sticky it is. (Voices overlap)

Myles Robinson Oh…

Marwan Awdi You know what I’m saying.

Myles Robinson Okay so well like do do you have something for (unintelligible)

Marwan Awdi Bro its only fucking two two fucking bills bro difference you saying you want a thirty… (Voices overlap)

Myles Robinson Okay

Marwan Awdi eight like you know what I’m saying like fuck (Voices overlap)

Myles Robinson Nah ‘cause…’cause like home boy home boy wanted a…you already know so like… (Voices overlap)

Marwan Awdi Yeah yeah yeah but that’s that’s hard to get around fam and even if you get it it’s going to be expensive right mans are getting it for forty five and then you have to get rid of it to make you wanna make the change too right what’s the point of fucking risking it for fucking what? For free? You know when you get it for four you’re going to have to sell it for five right

Myles Robinson Yeah

Marwan Awdi So you know and if you get it for four you’re gonna have to sell it for forty five right you know what I’m trying to say somebody (unintelligible) somebody has to make change for just the (unintelligible) nobody’s gonna go and fucking do nothing for free bro… (Voices overlap)

Myles Robinson Mmhm.

Marwan Awdi …that’s how that’s how you know what I mean everybody’s like this you know what I’m trying to say… (Voices overlap)

Myles Robinson Mmhm…(unintelligible)

Marwan Awdi …but that’s the lowest right now you can get but that’s a proper price too you know for a small ting like that and…and it’s a compact too. It holds more than its supposed to hold you know what I mean? (Voices overlap)

Myles Robinson No…I I looked it up fucking uhm… (Voices overlap)

Marwan Awdi Yeah

Myles Robinson Uhm…fucking…d…d…it doesn’t have nothing like you don’t have nothing to come with it like a beam (ph)

Marwan Awdi Not really but it has the rail though.

Myles Robinson I know it has the rail.

Marwan Awdi Mmhm

Myles Robinson Mmm…okay

Marwan Awdi No no no I don’t it doesn’t come with that no still

Myles Robinson Okay…

Marwan Awdi But you could get it though that’s like fav(ph) bro like two hundred bucks (Voices overlap)

Myles Robinson I know…I know… it’s fav (ph) (Voices overlap)

Marwan Awdi three hundred bucks for the fucking rail… (Voices overlap)

Myles Robinson (Unintelligible) I know… (Voices overlap)

Marwan Awdi …you know what I’m saying for beam (ph)or for whatever you know but this one holds eleven though

Myles Robinson Okay so and it and it comes with extra teeth obviously

Marwan Awdi Yeah you want you want you want T with it too that’s what you want

Myles Robinson (Unintelligible) bro it’s me bro like (unintelligible) (Voices overlap)

Marwan Awdi Okay okay okay so how much…alright alright…I’m…I’m gonna try I’m gonna try…I’m gonna try to fill you up then trying to fill that up for you. ‘Cause I usually I usually give it all just like that right but I I I have a box already so I’ll just fill you up…

Myles Robinson Okay

Marwan Awdi …I have I have the red clips for you don’t worry I have the forty red clips

Myles Robinson Okay uhm would you be able to drop it?

Marwan Awdi When?

Myles Robinson Today.

Marwan Awdi Yes where are you though?

Myles Robinson Im in flipping like he he he would come to my yard like my actual yard…and… (Voices Overlap)

Myles Robinson Okay so where… (Voices overlap)

Myles Robinson …I’m in I’m in Newmarket

Marwan Awdi Holy fuck you’re all the way there bro… holy fuck

Myles Robinson Unless…unless your you wanna go to flipping Scarborough

Marwan Awdi What your you’re going to meet me there but where where where exactly uh fuck bud I don’t even want to up there those guys right now. Newmarket and you have to make a right or left do you have to make a right or left when you…when you…

Myles Robinson You make the left when you get off

Marwan Awdi Oh like towards Orangeville

Myles Robinson Like like you get off at fucking Mulock then after you get like you go towards Leslie

Marwan Awdi What about the Scarborough one?

Myles Robinson Scarborough one that’s Vern bro.

Marwan Awdi Vern eh fuck boy that’s even more hot. (Voices overlap)

Myles Robinson (Unintelligible) fuckin’ ‘cause he he said he’ll meet meet me over here like he’ll come over here and we’ll just cool out smoke like you know

Marwan Awdi Yeah fuck bro. (Voices Overlap)

Myles Robinson He even he even said like yeah like if your pe…people are already like you know ‘cause he already knows like you know my situation so he’s just like… (unintelligible) (Voices overlap)

Marwan Awdi Yeah yeah yeah yeah yeah yeah yeah yeah yeah yeah.

Myles Robinson Mmhm

Marwan Awdi Fuck man uhm…let me see what I can do I’m going to link you

Myles Robinson Alright (unintelligible)

Marwan Awdi Alright

Analysis

[33] Mr. Robinson is charged with the following offences in relation to the firearm:

THAT on or about the 18th day of October in the year 2018 at the Town of Newmarket in the Regional Municipality of York did, without lawful excuse, possess a prohibited firearm, without being the holder of a licence permitting such possession and the holder of registration certificate for the said firearm, contrary to Section 91, subsection (3) of the Criminal Code.

AND FURTHER THAT on or about the 18th day of October in the year 2018 at the Town of Newmarket in the Regional Municipality of York and elsewhere in the Province of Ontario did, without lawful excuse, possess a loaded prohibited firearm, without being the holder of an authorization or licence permitting such possession at that place and the holder of a registration certificate for the said firearm, contrary to Section 95, subsection (2) of the Criminal Code.

[34] The definition of “possession” in s. 4(3) of the Criminal Code reads:

4(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or another person; and

(b) where one of two or more persons with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[35] Section 4(3) of the Code recognizes three forms of possession:

(i) personal possession as outlined in s. 4(3)(a);

(ii) constructive possession as set out in s. 4(3)(a)(i) and s. 4(3)(a)(ii); and

(iii) joint possession as defined in s. 4(3)(b).

[36] In this case, it is clear from Awdi’s intercepted conversation with Mr. Robinson that Awdi was attending Mr. Robinson’s address at 1016 Wilbur Pipher Circle to deliver the Taurus Millennium firearm (a loaded prohibited firearm).

[37] There is no evidence confirming any exchange of the firearm took place while the males were in the driveway or while in the garage. The garage was somewhat lit, and there was surrounding light from the street/surrounding houses. Awdi and Mr. Robinson were not observed to be engaged in any type of hand-to-hand transaction.

[38] Both Awdi and Mr. Robinson fled from police through the garage access to the home. The Crown concedes that given the location of the firearm (beside the door of the garage access), either Mr. Robinson or Awdi could have been responsible for discarding the firearm as they ran inside the house. On the evidence before me, I am not satisfied that Robinson ever had the firearm in his personal possession.

[39] The evidence clearly demonstrates that Mr. Robinson made arrangements to have the firearm brought to his home. In so doing, the Crown argues that Mr. Robinson exercised the requisite control over the firearm to make out either constructive or joint possession. The Crown essentially takes the position that Mr. Robinson’s level of control should be informed by his intention to possess the gun.

[40] The defence maintains that a proper review of the evidence suggests Mr. Robinson was merely assisting Mr. Awdi in the sale of the firearm to another person. Mr. MacGregor points to the various references in Mr. Robinson’s conversation with Awdi to another male coming over to Mr. Robinson’s house to purchase the firearm. He also points to the fact that when police entered the house, the back door of the home was left open indicating someone else (the potential purchaser) had been present and fled the scene.

[41] The defence argues that given that Mr. Robinson was simply a middleman in the potential transaction, he never exercised any control over the firearm and accordingly must be acquitted. Had the Crown proceeded with a charge of trafficking a firearm, the defence submits that Mr. Robinson would have acknowledged his guilt. Mr. MacGregor argues, however, that the Crown proceeded with the wrong charge.

[42] To establish possession, the Crown must prove that the accused had the requisite knowledge and a measure of control over the item in issue. Control refers to power or authority over the item, whether exercised or not: R. v. Mohamad (2004), 69 O.R. (3d) 481 (C.A.), at paras. 60-61; R. v. Chalk, 2007 ONCA 815, 88 O.R. (3d) 448.

[43] This is true whether dealing with actual possession, constructive possession or joint possession. In order to constitute constructive possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed: see R. v. Caldwell, 1972 ALTASCAD 33, [1972] 5 W.W.R. 150 (Alta. S.C. (A.D.)).

[44] In order to constitute joint possession pursuant to s. 4(3)(b) of the Code there must be knowledge, consent and, again, a measure of control on the part of the person deemed to be in possession: see R. v. Terrence, [1983] 1 S.C.R. 357; R. v. Williams (1998), 40 O.R. (3d) 301 (C.A.); R. v. Barreau; R. v. Chambers, 20 C.C.C. (3d) 440 (Ont. C.A.); R. v. Colvin and Gladue, [1943] 1 D.L.R. 20 (B.C.C.A.), at p. 25.

[45] On the evidence before me, I am satisfied beyond a reasonable doubt that Mr. Robinson was looking to purchase a loaded prohibited firearm. I am also satisfied beyond a reasonable doubt that Mr. Robinson made the requisite arrangements to have the firearm delivered to his home.

[46] That said, in my view, there is no evidence before me that Mr. Robinson exercised any actual control over the firearm. There is nothing indicating Mr. Robinson had any authority to direct Mr. Awdi to deliver the firearm to his address. While an agreement to purchase the firearm had been made, no money had been exchanged and Mr. Awdi could have still chosen to sell the firearm to someone else on the trip over to see Mr. Robinson.

[47] Had Mr. Awdi and Mr. Robinson possessed the firearm in common, with the intention to sell it to a third party, this would be sufficient for Mr. Robinson to have possession of the firearm. But those are not the facts here. Rather, Mr. Robinson was clearly seeking to purchase the firearm in a transaction which was yet to be completed. Mr. Robinson providing directions to his address and requesting that Mr. Awdi deliver the firearm does not establish any authority over Awdi or the firearm. It amounts to an invitation, not a direction in my view.

[48] While Mr. Robinson is not guilty of possession of a loaded prohibited firearm, I am satisfied beyond a reasonable doubt that he is guilty of the offence of attempted possession of a loaded and prohibited firearm.

[49] Section 24(1) of the Criminal Code provides that everyone who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence, whether or not it was possible under the circumstances to commit the offence.

[50] To be convicted of an attempt, the Crown must prove the mens rea and actus reus of the attempted offence. With respect to mens rea, the evidence must establish that the accused intended to perpetrate the specific offence in question, whether committing the offence was possible or not.

[51] With respect to the actus reus, the accused’s actions must go beyond mere preparation to commit the crime. In R. v. Root, 2008 ONCA 869, 241 C.C.C. (3d) 125, at para. 100, Watt J.A. described the difference between mere preparation and an attempt to commit an offence:

This requirement of proximity, expressed in the divide between preparation and attempt, has to do with the sequence of events leading to the crime that an accused has in mind to commit. To be guilty of an attempt, an accused must have progressed a sufficient distance (beyond mere preparation) down the intended path. An act is proximate if it is the first of a series of similar or related acts intended to result cumulatively in a substantive crime. [Citation omitted.]

See also R. v. Ellis, 2016 ONCA 358, at paras. 31-41.

[52] In this case, I am satisfied that the accused’s actions progressed sufficiently beyond mere preparation. In fact, Mr. Robinson was simply moments from the completion of the substantive crime.

[53] Even if another potential purchaser may have been involved in the transaction (as the defence advanced), Mr. Robinson would still be guilty of attempting to possess or aiding and abetting the attempted possession of a loaded and prohibited firearm. [1]

[54] Accordingly, I find Mr. Robinson guilty of attempt to possess a loaded prohibited firearm.

[55] Given that the remaining breach charges relate to Mr. Robinson’s actual possession of a firearm, I find him not guilty of the remaining charges.

Justice C.F. de Sa

Released: January 11, 2023

ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – MYLES ROBINSON Defendant REASONS FOR DECISION Justice C.F. de Sa

Released: January 11, 2023

[1] See R. v. Greyeyes, [1997] 2 SCR 825.