Her Majesty The Queen v. Kyle Cater TRIAL DECISION Editorial Notice Two telephone numbers have been removed from this electronic version of the judgment. JUDGE: The Honourable Anne S. Derrick, 2012 NSPC 18

IN THE PROVINCIAL COURT OF NOVA SCOTIA R. v. Cater 2012 NSPC 18 Date: March 14, 2012 Docket: 1997518 to 1997550; 2035773 to 2035784 Registry: Halifax BETWEEN: Her Majesty The Queen v. Kyle Cater TRIAL DECISION Editorial Notice Two telephone numbers have been removed from this electronic version of the judgment. JUDGE: The Honourable Anne S.

Derrick HEARD: February 13, 14, 15, 16, 17, 21, 22, 23, 24, 27, March 1, 5, 6, 7, and 8, 2012 DECISION: March 14, 2012 CHARGES: Sections 86(1) x3; 88(1) x3; 95(1) x 2; 92(1) x 2; 92(2) x 1; 100(2) x 6; 99(2) x 6; of the Criminal Code COUNSEL: Richard Hartlen and Marian Fortune-Stone, for the Crown DEFENCE: Elizabeth Cooper, for Kyle Cater By the Court: Introduction [ 1 ] January 15, 2009 began eventfully for Kyle Cater. His stepmother, Torina Lewis, called him early in the morning with the news that there had been a police raid on the home she shared with Kyle’s father.

In a series of calls that morning, she told Kyle what had happened. The police had made apparent what they were looking for: they were looking for guns. [ 2 ] Kyle Cater’s father, Paul Cater, and Torina Lewis lived at 80 Cavendish Road in Spryfield, a neighbourhood in Halifax. Kyle did not live there. He lived with his mother, Barbara Cater, on Purcells Cove Road, also in Spryfield.

The search warrant for 80 Cavendish Road was primarily based on intercepted telephone conversations from December 2008 that led the police to believe there were guns at the residence. [ 3 ] The search of 80 Cavendish Road occurred in the context of a much wider police investigation, Operation Intrude. Operation Intrude was investigating suspected criminal activity involving drugs and guns. On November 18, 2008, police investigators had obtained a

Part VI Criminal Code authorization to intercept the private communications of named targets believed to be involved in the drug trade. One of the named targets was Kyle Cater. [ 4 ] Operation Intrude’s

Part VI authorization was still up and running on January 15, 2009. Monitors were listening to calls to and from Kyle Cater’s cell phone as well as the land line where he was living. Calls between Torina Lewis and Kyle Cater on January 15 after the police began their search of 80 Cavendish led investigators to believe Kyle Cater knew about and had some control over the guns located at his father’s residence. [ 5 ] Paul Cater, Torina Lewis, and Kyle Cater were all charged on January 15 with charges relating to firearms and ammunition that were found by police at 80 Cavendish. Also as a result of the

Part VI authorized intercepts, on April 29, 2009, Kyle Cater was charged with trafficking firearms. Intercepted private communications constitute the primary evidence offered against Kyle Cater on all the charges. [ 6 ] I will note here that, without any disrespect intended, on occasion in these reasons I refer to Kyle Cater as Kyle and Paul Cater as

Paul so as to avoid any confusion. For symmetry I will also be referring to Ms. Lewis by her first name. The Charges [7] The joint information against Kyle Cater, Paul Cater and Torina Lewis lists eleven charges.

They are: the unlawful storage of asawed off Cooey 84 shotgun, a Lakefield Mark II rifle, and an AA Arms Model AP 9 handgun, and ammunition, in a careless manner(contrary to Criminal Code section 86(1) x 3), unlawful possession of the sawed off Cooey 84 shotgun, the Lakefield Mark II rifle andthe AA Arms Model AP 9 handgun (contrary to Criminal Code section 88(1) x 3), unlawful possession of a loaded prohibited weapon –the AA Arms Model AP 9 handgun, and unlawful possession of a loaded prohibited firearm – the sawed off Cooey 84 shotgun (contraryto Criminal Code section 95(1) x 2), unlawful possession of the sawed off Cooey and the AP 9 handgun, knowing that possession isunauthorized (contrary to Criminal Code section 92(1) x 2), and unlawful possession of two over capacity magazines, a prohibited device(contrary to Criminal Code section 92(2)). [8] Kyle Cater is also solely charged with twelve (12) firearms trafficking charges pursuant to sections 100(2) and 99(2) of theCriminal Code, for the between dates of November 18, 2008 and January 16, 2009. [9] On February 24 at the close of the Crown’s case against Kyle, I granted an amendment to Count #8 of the January 15, 2009Information to allege, pursuant to section 95(1) of the Criminal Code, unlawful possession by Kyle Cater of an unloaded prohibitedfirearm - the AA Arms Model AP 9 handgun together with readily accessible ammunition that was capable of being discharged in thefirearm.

The Crown had provided notice of its intention to seek this amendment at the start of Kyle’s trial on February 13, prior to thecalling of evidence. The Burden of Proof and Reasonable Doubt [10] As I have noted many times during these proceedings, Kyle Cater is presumed to be innocent until the Crown proves he is guiltybeyond a reasonable doubt. The function of the reasonable doubt standard is not to weigh individual items of evidence. It is the whole ofthe evidence that must be assessed in the determination of whether the Crown has made out its case. (R. v. Morin, (SCC),[1988] S.C.J.

No. 80) [11] The burden of proof rests on the prosecution throughout the case and never shifts to the accused. An assessment that an accused isprobably guilty is insufficient. Reasonable doubt is based on reason and common sense and is logically connected to the evidence or lackthereof. (R. v. Lifchus, [1977] S.C.J. No. 77) Trial Management and Paul Cater’s and Torina Lewis’ Change of Plea [12] Five substantive case management conferences were held in this matter, primarily to deal with issues raised in relation to KyleCater. Trial dates were set, a number of which were used for voir dires.

Kyle Cater agreed that the firearms possession and his firearmstrafficking charges could be heard together and the case proceeded on this basis. [13] On December 20, 2011, Paul Cater and Torina Lewis pleaded guilty to various charges relating to the guns seized at 80 CavendishRoad. These pleas were entered following my decision on the validity of the search of 80 Cavendish. (R. v. Cater, [2011] N.S.J. No. 691)Sentencing is scheduled for April 18, 2012. I have heard no facts, evidence, or submissions relating to these pleas. This decision is inrelation to the charges against Kyle Cater. [14] Ms.

Cooper has asserted that the guilty pleas of Paul Cater are relevant to the issue of Kyle’s criminal liability on the firearmspossession charges. I do not agree. The Crown’s case against Kyle Cater rests on his having constructive and/or joint possession of thefirearms at 80 Cavendish. Kyle Cater can still be guilty even if his father was also in possession. [15] The key evidence on the firearms possession charges are the intercepts. The intercepts are also of pivotal importance to thefirearms trafficking charges.

Voir Dires [16] I conducted eight voir dires in advance of the evidentiary phase of the trial commencing on February 13, 2012. All but two of thesevoir dires were for Defence applications. The Crown made two applications for the

summary dismissal of Defence motions. Mydecisions on the voir dires are reported as follows: R. v. Cater, 2011 NSPC 75 , [2011] N.S.J. No. 561 (plea negotiationprivilege); R. v. Cater, 2011 NSPC 80 , [2011] N.S.J. No. 610 (delay); R. v. Cater, [2011] N.S.J. No. 624 (disclosure); R. v.Cater, [2011] N.S.J. No. 708 (Crown application for

summary dismissal of Garofoli application/Defence application for leave to cross-examine Affiant); R. v. Cater, [2011] N.S.J. No. 626 (Garofoli application); R. v. Cater, [2011] N.S.J. No. 627 (Crown motion forsummary dismissal of abuse of process and arbitrary detention applications); R. v. Cater, [2011] N.S.J. No. 691 (section 8 challenge tothe validity of the search warrant for 80 Cavendish Road); and R. v. Cater, 2012 NSPC 2 , [2012] N.S.J.

No. 22 (section 8challenge to the search of Kyle Cater’s cell phone). [17] As a result of certain of the decisions mentioned above, I admitted into evidence the firearms seized from 80 Cavendish Road,intercepted private communications obtained pursuant to the

Part VI authorization, and the contents of the cellular phone seized fromKyle Cater on his arrest. In the course of the trial I also heard submissions and ruled on the admissibility of hearsay evidence containedin the intercepts and the text messages from the cell phone. (R. v. Cater,[2012] N.S.J. No. 111) I admitted into evidence thecommunications of the

Part VI authorized intercepts for the truth of their content. [18] Almost nothing was conceded by Defence for Kyle Cater. As a consequence, these reasons will address the continuity and integrity

of exhibits, including the intercepts, and voice identification. Operation Intrude [ 19 ] Operation Intrude, a joint operation of the RCMP and Halifax Regional obtained a

Part VI authorization that targeted a number of individuals believed to be associated including Kyle Cater, Jeremy LeBlanc, Shawn Shea and Aaron Marriott. The sixty-day authorization netted 64,000 intercepts. According to Det/Cst. Nick Pepler, the lead investigator for Operation Intrude, approximately 5000 of these intercepts captured conversations involving Kyle. [ 20 ] January 15, 2009 was take-down day for Operation Intrude.

Although Kyle had not been on the arrest list for January 15, following the intercepted telephone calls with Torina Lewis, he was arrested for possession of the firearms found at 80 Cavendish. I will have more to say about these, and other intercepted telephone conversations later in these reasons. The Firearms Seized at 80 Cavendish Road [ 21 ] Cpl. Mark Cameron was the Exhibit Officer for the search of 80 Cavendish Road. Police officers searching the residence brought to his attention a number of items which he then seized.

These items were: a .22 calibre Mark II rifle, serial number 68355 with a loaded magazine and a catridge in the chamber; a box of ammunition (50 rounds of .38 special ammunition); 2 loose rounds; a box of shotgun shells; a 30-30 Winchester bullet; a 20 gauge Cooey sawed off shotgun, serial number 82867, loaded with one shell; three 20 gauge shotgun shells; an unloaded AP 9 Luger fully automatic, serial number 049948; a fully loaded magazine and a single shotgun shell. [ 22 ] The Mark II rifle was located, propped up, to the right of the headboard in the master bedroom on the third level of 80 Cavendish.

The AP 9 Luger was in the second (bottom) drawer of the night table next to where the rifle was found. The loaded magazine for the AP 9 was in a television stand behind a set of ceramic hands which had two little roses decorating their wrists. Cpl. Cameron estimated the distance between the location of the AP 9 and the magazine to be a little more than six feet, close enough to be readily accessible. A single 20 calibre shotgun shell was found sitting on top of the dresser in the bedroom. Three 20 gauge shotgun shells were found in the first (top) drawer of the night table which held the AP 9.

The Cooey shotgun was seized from the kitchen, in Cpl. Cameron’s estimation, about eight feet from the main entrance into the home. The boxes of ammunition – the .38 special rounds and the shot gun shells were found high up in a kitchen cupboard, about 7.5 feet off the floor. The two loose rounds of .38 special ammunition were also found in this location as was the 30-30 Winchester bullet. In a drawer in the kitchen table police found, and Cpl. Cameron seized, four 20 gauge shotgun shells. [ 23 ] The three guns and the ammunition were tendered into evidence as were Cpl.

Cameron’s photographs of them (Exhibit 5) in their original locations at 80 Cavendish. [ 24 ] Cst. Andre Habib of the HRPS IDENT unit was dispatched to 80 Cavendish where he took possession of the exhibits collected by Cpl. Cameron. He returned to HRPS headquarters with the exhibits, photographed them and swabbed them for fingerprints and DNA. They were kept locked in his personal exhibit locker in the locked police lab until he turned them over to Cst. Christian Moreau in March 2009. Cst.

Habib’s 39 photographs of the seized items were tendered into evidence as Exhibit 6. [ 25 ] The firearms seized from 80 Cavendish were forwarded to Martin Champion, a firearms analyst with the RCMP. Mr. Champion was qualified without objection by the Defence as a firearms analyst/technologist able to give opinion evidence as to the identification, classification and functionality of firearms and related devices, ammunition, or any part or component of such items.

In the course of his testimony he examined Exhibit 14 (the Mark II Lakefield rifle, Exhibit 20 (the Cooey shotgun), Exhibit 23 (the AA Arms AP 9), Exhibit 24 (the Luger magazine and the seventeen Winchester brand 9 mm Luger catridges), and Exhibit 15 (the six .22 calibre cartridges and related magazine.) He confirmed that these Exhibits were the items provided to him for analysis as to their mechanical condition and legal classification. [ 26 ] Mr. Champion adopted the contents of his report (Exhibit 31) and the firearms certificates of analysis he prepared. (Exhibit 8) Previously Cpl.

Allan Rogers had testified that he served Kyle Cater with the firearms certificates (Exhibit 8) on July 8, 2009 at the door of Mr. Cater’s apartment. Cpl. Rogers’ Affidavit of Service is attached to, and forms part of, Exhibit 8 [ 27 ] Mr. Champion testified as follows: • The Mark II Lakefield rifle fired properly when tested. Mr. Champion used the magazine that had been seized with the rifle and one of the rounds from that magazine in testing the mechanical condition of the rifle. The rifle is a non-restricted firearm. • Mr.

Champion certified in Exhibit 8, “Certificate of Analysis” for the Lakefield Mark II rifle that the rifle “is a firearm within the meaning of

Section 2 of the Criminal Code of Canada , in that it is a barreled weapon from which a projectile can be discharged and that is capable of causing serious bodily injury or death to a person.” • The Cooey shotgun is in a modified condition having had its stock and barrel cut. In this condition it is a prohibited firearm. The Cooey fired properly with a .20 calibre shotgun shell. Mr. Champion used a shell from the RCMP Forensic Lab stock of ammunition to test the Cooey. • Mr. Champion certified in Exhibit 8, “Certificate of Analysis” for the Cooey, model 84, 20 gauge single shot shotgun that the shotgun “is a firearm within the meaning of

Section 2 of the Criminal Code of Canada , in that it is a barreled weapon from which a projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and furthermore, that said shotgun is a prohibited weapon within the meaning of Section 84(1) of the Criminal Code of Canada, in that it is adapted by cutting and as so adapted is less than 660 mm in length.” • The AP 9 Luger fired properly when tested using the magazine and one of the catridges seized from 80 Cavendish.

The AP 9’s disconnector had been cut off converting the gun from its manufactured semi-automatic mode to a fully automatic weapon. When Mr. Champion tested the AP 9 it fired in full automatic mode. In this condition it is a prohibited firearm.

• Mr. Champion certified in Exhibit 8, “Certificate of Analysis” for the AA Arms, model AP 9, 9 mm Luger calibre full-automatic pistol that it “is a firearm within the meaning of

Section 2 of the Criminal Code of Canada , in that it is a barreled weapon from which a projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and furthermore, [it] is an automatic firearm and a prohibited firearm within the meaning of Section 84(1) of the Criminal Code of Canada, in that it is a firearm that is designed and manufactured with the capability of discharging projectiles in rapid succession during one pressure of the trigger.” • Mr.

Champion certified in Exhibit 8, “Certificate of Analysis” for the cartridge magazine that was found in the master bedroom at 80 Cavendish Road that it is “a prohibited device within the meaning of Section 84(1) of the Criminal Code of Canada and

Section 3 of

Part 4 of the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles and Prohibited or Restricted, in that it is capable of containing more than ten cartridges of the type for which it was originally designed and that it is designed for use in a semi-automatic handgun.” • Mr. Champion also examined Exhibit 21, a shotgun shell seized at 80 Cavendish. He testified that all its components were present so that it was in a fire-able condition. • Mr.

Champion was not provided with Exhibit 17, a box of shotgun shells seized at 80 Cavendish. He examined them in the witness box and confirmed that the head stamps for these shells indicated they were .20 gauge shotgun shells. Mr. Champion testified that these shotgun shells were designed to be fired in the Cooey sawed-off shotgun. [ 28 ] Mr. Champion received the exhibits in the condition they were in when he re-examined them in court. He testified that when he had finished with the firearms and ammunition he taped up all the boxes and returned the exhibits to the police.

He indicated that no one tampered with any of the exhibits. Canada Firearms Centre Evidence [ 29 ] Exhibit 7 includes a “Notice of Documents

Section 28 Canada Evidence Act” and Det/Cst. Nick Pepler’s certification that on April 29, 2009 he personally served Kyle Cater with Affidavits of Firearms Checks. These documents included the Affidavit dated January 21, 2009 of Maarten Kramers, Chief Firearms Officer, Provincial Firearms Office for Nova Scotia in which he confirms that the Canadian Firearms Registry has been searched and Kyle Cater does not possess a Firearms Acquisition Certificate, issued under the former

Part III of the Criminal Code of Canada , or a Possession Only License or a Possession and Acquisition License issued under the Firearms Act, S.C. 1995, C-39 , and furthermore, no application for a firearms license of firearm registration in the name Kyle Cater has been found in the Canadian Firearms Information System. Affidavits sworn on January 27, 2009 by Denis Deveau, Police Line Operator with the Canada Firearms Centre indicate that Kyle Cater has not been issued a valid registration certificate under the authority of the Firearms Act .

Nor is there any record of a valid registration certificate for the Lakefield Mark II rifle, serial number 68355 or the AA Arms AP9 9 millimeter handgun, serial number 049948 or the Cooey model 84 20 gauge shotgun, serial number 82867. Continuity [ 30 ] The testimony of Cpl. Cameron, Mr. Champion and Cst. Christian Moreau, and the documentary exhibits entered through, or referred to by them, left me with no doubt about the continuity and integrity of the exhibits being relied on by the Crown which were seized from 80 Cavendish Road. I will further note that Ms.

Cooper did not even cross-examine the lead exhibit officer for Operation Intrude, Cst. Moreau. Her cross-examination of Cpl. Cameron did not challenge his handling or transfer of the exhibits seized from 80 Cavendish. Although the Defence did not concede continuity, there was nothing in the evidence to support any suggestion of a continuity problem. Continuity of the Seized Firearms, Their Identification and Classification [ 31 ] There is nothing to the continuity/integrity of the exhibits issue. Indeed I have been unable to see why it was even made an issue at all.

There is nothing to suggest that the guns and ammunition introduced as evidence in this trial are not the ones that were located in Paul Cater’s and Torina Lewis’ home. I am also fully satisfied that all three guns - the Mark II Lakefield rifle, the Cooey shotgun, and the AP 9 nine millimeter handgun - are “firearms” within the definition under

section 2 of the Criminal Code , that is to say they are each “a barreled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person…” There is no evidence to refute the opinion of Martin Champion in this regard. [ 32 ] There is also no evidence that refutes Mr. Champion’s opinion as to the classification of the 80 Cavendish firearms and ammunition in accordance with section 84(1) of the Criminal Code .

I accept that the Mark II Lakefield rifle is a non-restricted firearm, the sawed-off Cooey shotgun is a prohibited firearm, the fully automatic AP 9 is a prohibited firearm, the cartridge magazine found in the master bedroom of 80 Cavendish is a prohibited device within the meaning of section 84(1) of the Criminal Code and

section 4 of

Part 4 of the Regulations. [ 33 ] I also note that in Martin Champion’s report (Exhibit 31), he indicated that the cartridge magazine to the Mark II Lakefield rifle “has a capacity of up to thirty (30) 7.62 x 39 mm Russian calibre cartridges.” (Exhibit 31, page 2, #9 under Results) As Mr. Champion concluded in his report, this makes that rifle magazine a prohibited device within the meaning of section 84(1) of the Criminal Code and

section 4 of

Part 4 of the Regulations. (Exhibit 31, page 3, #9 under Conclusions) The Relevance of the Identification and Classification Evidence and the Canada Firearms Centre Evidence to the Charges Relating to the 80 Cavendish Guns [ 34 ] I am wholly satisfied that the guns seized from 80 Cavendish are firearms within the meaning of the Criminal Code and that they and the two magazines have been correctly identified and classified in the charges against Kyle Cater, Paul Cater and Torina Lewis.

I am also wholly satisfied that Kyle Cater did not have, at any time material to the charges, a Firearms Acquisition Certificate or any other kind of license for possessing firearms nor did he have a valid registration certificate for any of the 80 Cavendish firearms or any firearms.

[35] Therefore, the essential issue on the charges against Kyle Cater in relation to the 80 Cavendish Road firearms and ammunition iswhether Kyle had constructive and/or joint possession of the loaded Mark II Lakefield rifle, the loaded Cooey sawed-off shotgun, theunloaded fully automatic AP 9 nine millimeter pistol, and the two over-capacity magazines.

In due course I will address the law andevidence relating to the possession issue. [36] Before I embark upon a discussion of the rest of the Crown’s evidence, I want to note that the possession issue does not decideeverything on the charges relating to the 80 Cavendish firearms. Kyle Cater is also charged with careless storage of the 80 Cavendishfirearms and ammunition. He cannot of course be found guilty of careless storage if he is not guilty of possession. But even if he is guiltyof possession that does not determine that he is therefore guilty of careless storage.

These charges have to be decided on their own merits. [37] I will now move on to discuss Kyle Cater’s cell phone, the technical evidence relating to the interceptions, and voice identification. Kyle Cater’s Cell Phone [38] One of the phones monitored pursuant to the

Part VI authorization was a cell phone used by Kyle Cater. Barbara Chase confirmedthat she was the subscriber to the phone which had the number 229-4400 but that it was Kyle who used it. She was shown Exhibit 9 oncross-examination and agreed that it looked like the phone her son had used. [39] Exhibit 9 is the phone seized from Kyle on his arrest. Det/Cst. Donald Buell testified that on January 15, 2009 he oversaw theprocessing of prisoners who had been arrested in the Operation Intrude take-down. Personal effects were seized from Kyle when he wasarrested. Included in these personal effects was a cell phone.

Det/Cst. Buell confirmed that Exhibit 9 is that cell phone, in the exact samecondition as when he seized it from Kyle’s personal effects and removed the battery. The battery removal was in accordance withinstructions the investigators had received from the RCMP Technological Crime Unit on how to handle seized cell phones. Det/Cst.Buell did not examine or use the phone. After removing the battery, he stored the phone and the battery in an exhibit bag in a drug locker.He turned the phone over to Cst. Christian Moreau on January 22. Det/Cst.

Buell confirmed that no one had, in the meantime, accessedor manipulated any of the seized phones, including the one taken from Kyle Cater. [40] Cst. Moreau forwarded the seized phone to Cst. (now Cpl.) Aaron Gallagher of the RCMP Technological Crime Unit inFredericton. Exhibit 33, the exhibit control document for the Samsung cell phone confirms the continuity of the cell phone which hasbeen maintained in police custody since being returned by Cpl. Gallagher, until it was provided by Cpl. Moreau to the Crown onDecember 21, 2011 for this trial.

Since February 13, 2012, the phone has been in the custody of the court as an exhibit in the trial. The Admissibility of the Cell Phone [41] In R. v. Cater, 2012 NSPC 2 , [2012] N.S.J. No. 22, I determined that the contents of Mr. Cater’s cell phone wereadmissible as evidence in this trial. [42] Before I move on to discuss what was found on the phone, I will address an issue that, in Ms. Cooper’s view, has not beendispensed with.

She continues to insist that Kyle’s Charter application in relation to the cell phone does not associate him with thephone, and entitles him at trial to demand that the Crown prove the phone is his. I cannot agree. I addressed this issue in R. v. Cater,2012 NSPC 2 , [2012] N.S.J. No. 22 at paragraphs 5 – 7. As I said there, in part: 5… Mr. Cater has chosen to advance a challenge to the search of a cell phone seized from him at the time of his arrest. To advance sucha challenge he must establish that he has standing to do so. He has standing only if he can claim a reasonable expectation of privacy inthe phone.

He cannot subsequently claim to have no interest in the phone. Engaging

section 8 rights in a Charter voir dire and then attrial claiming no connection to the phone would be, to put it mildly, disingenuous. [43] I am unable to accept that Kyle Cater can assert a privacy interest in order to obtain the protection of

section 8 of the Charter andthen, when that application goes badly and the evidence is admitted, turn around and claim to be a stranger to the item in which theprivacy interest resided. [44] In any event I have not resorted to Kyle’s assertion of a reasonable expectation of privacy in the Samsung cell phone indetermining that the phone is his. I am satisfied the evidence led by the Crown has established that the phone with the number 229-4400was Kyle Cater’s cell phone. His mother testified that she subscribed to a cell phone for his use that had this number. The phone containscontact information that Ms.

Chase, the subscriber (under the name she was using at the time - Barbara Cater), did not enter. It hasphotographs on it of Kyle’s girlfriend, Katie Mills, and himself. Det/Cst. Pepler gave evidence that he found no evidence in the interceptsthat anyone else was using this phone. I find there is ample evidence of the phone being Kyle Cater’s, independent of the fact that heasserted a reasonable expectation of privacy in the phone when he advanced his

section 8 Charter challenge to its seizure. The Cell Phone – The Forensic Analysis [45] Cpl. Aaron Gallagher, a computer forensic analyst, who is now the supervisor of the RCMP Integrated Technological Crime Unit,was qualified by me to give opinion evidence in “computer forensic analysis and the recovery and

interpretation of electronic data anddata stored electronically.” His qualifications to provide expert opinion evidence were not contested by Defence. [46] Cpl. Gallagher identified contact information and images (photographs) and used ZRT (Zippy Reporting Tool), a camera, tocapture images of the phone’s display screen and its record of outgoing and incoming calls, missed calls, and text messages. He accessedthe metadata of the phone which included the date when images were created by the phone, i.e. dates when photographs were taken. His“Mobile Device Analysis Report” was completed on March 31, 2009.

In his report, Cpl. Gallagher described the procedures and softwarehe used on the Samsung: “The electronic data stored on [the phone] was extracted using a combination of the CellBrite and XRYforensic tools as well as the ZRT capture device.”

[ 47 ] Cpl. Gallagher confirmed in his testimony that he had not manipulated or changed any of the information or images extracted from the cell phone nor had any other law enforcement personnel done so. I accept his evidence, which was not challenged, that his forensic analysis was done in accordance with strictly observed protocols to protect the integrity of the data stored in the phone. The Contents of the Cell Phone - Contacts [ 48 ] Cpl.

Gallagher’s forensic analysis of Kyle Cater’s Samsung phone enabled him to access the 156 contacts listed in the phone, some of which I will make specific reference to when I discuss the intercepts. The Contents of the Cell Phone - Photographs [ 49 ] The phone also contained 28 still images (photographs), including images of a young woman Det/Cst. Pepler and Barbara Chase identified as Katie Mills, Mr. Cater’s girlfriend during the relevant period. Also obtained from the cell phone were images of a brown pitbull, stacks of money, and three photographs that depict handguns.

There is a single image of a young man lying on a sofa with the brown pitbull. When shown the photograph blown up, Mr. Cater’s mother, Barbara Chase, testified that it was a photograph of Kyle with Paul’s and Torina’s pitbull, Kyla. [ 50 ] Cpl. Gallagher was able to determine from the metadata in the Samsung that the images of the handguns were created on October 9 and October 13, 2008. The Contents of the Cell Phone – Text Messages [ 51 ] Also retrieved from the Samsung by Cpl. Gallagher were screen shots of outgoing (20/20) and incoming (20/20) calls and text messages.

The Samsung’s capacity was 20 calls in each category (outgoing and incoming) and 20 texts. [ 52 ] The 20 outgoing calls spanned the period of January 14, 2009 at 2:04 p.m. to January 15, 2009 at 8:32 a.m. The incoming calls were received between January 14, 2009 at 4:25 p.m. and January 15, 2009 at 8:21 a.m. Twenty missed calls were also recorded, between January 13, 2009 at 8:28 p.m. and January 15, 2009 at 9:08 a.m. In addition, the forensic analysis retrieved 11 text messages that were received and 10 that were sent. Many of the calls and texts went to or came from the listed contacts that Mr.

Cater had stored in his phone. I will refer to certain texts in due course. The Intercepts – Technical Evidence [ 53 ] Evidence was led by the Crown about the monitoring and oversight processes for the interception of private communications in Operation Intrude pursuant to the

Part VI authorization. I have previously concluded that the authorization was valid. ( R. v. Cater, [2011] N.S.J. No. 626 ) The Crown has shown that Kyle was either personally served or served through Ms. Cooper copies of the digital audio recordings of the intercepts and the corresponding transcripts as well as Session Lists, and Statements of Time, Date and Place pursuant to section 189(5) of the Criminal Code .

It has also been established that there is no evidence whatsoever of any tampering with or manipulation of either the audio recordings of the intercepted communications, the transcripts prepared from those audio recordings or the text messages that were reviewed and recorded in a transcription form. [ 54 ] Holly Good, an experienced intercept monitor, described this as “quite an easy file” with an “easy dialect” and “very easy transcriptions.” She confirmed that Exhibit 13 contains the original transcripts that she prepared of the intercepts.

She further confirmed that Exhibits 1, 2, 3 and 4 are copies of the transcripts in Exhibit 13 and that everything in Exhibits 1, 2, 3 and 4, are found in Exhibit 13. Ms. Good also testified that the transcripts she prepared and verified are, to the best of her ability, accurate representations of the intercepts. [ 55 ] On cross-examination, Ms. Good confirmed that the police investigators could not alter a document that she was working on, that there is no way to change the audio recording of the intercepts and that the entire call is transcribed, never just a portion.

She testified that there is no way for anyone to access the software program used for the intercept and delete a portion of a call. [ 56 ] Glennis Sullivan, Ms. Good’s supervisor and the manager of all the intercept monitors, testified that the intercepts entered into evidence were obtained pursuant to a

Part VI authorization (Exhibit 29) with which she was familiar, as was Ms. Good. The recording equipment was functioning as was the software program used by the monitors. Ms. Sullivan burned the CD’s that were requested for this trial and created the CD’s that are included in Exhibits 1, 2, 3 and 4. Exhibit 4 is a compilation of intercept sessions, 57 in total. She had no trouble preparing the burned CD’s. She maintained continuity of the CD’s by locking them in her exhibit locker once they were created and then bringing them to court. [ 57 ] Ms.

Sullivan also burned CD’s as requested for voice identification purposes. [ 58 ] Ms. Sullivan testified that there is no possible way to tamper with the audio recordings of the intercepts. She also confirmed that it is not possible to burn only a portion of a call to a CD: the entire call is burned when a CD is created. [ 59 ] Notwithstanding evidence led by Ms.

Cooper from Kyle Cater’s mother, Barbara Chase, that she reviewed what was only a partial transcript of an intercept of a call she had had with a friend on January 15, 2009, I am satisfied that the intercepts introduced into evidence before me, which were played in evidence, are unexpurgated and have not been modified, changed, edited or abbreviated in any way. I want to note that Ms. Chase received the partial transcript from Kyle’s first lawyer, Geoff Newton. She confirmed in her testimony that prior to this trial she was given the complete transcript of this particular call by Ms. Cooper.

There is nothing to indicate that the complete transcript of the Barbara Cater call was not available when Geoff Newton was acting for Kyle. Indeed, Gloria Sullivan’s testimony, which I accept, satisfies me it would have been. Why Barbara Cater was originally provided with only part of the transcript for the call is unexplained but it does not remotely suggest to me that there has been any tampering with any of the interceptions or their transcripts.

[ 60 ] I will further note that the continuity and integrity of intercept recordings and the related transcripts goes not to the admissibility of the intercepts but to their weight. (R. v. Meer, [2010] A.J. No. 1123 (Q.B.) , paragraph 16 ) No evidence has been produced by Ms. Cooper, either directly or through cross-examination, that causes me to conclude the intercepts should be accorded a diminished weight. I am satisfied to accept them as accurate recordings of the conversations that were intercepted. [ 61 ] Ms. Cooper raised

section 31.2 of the Canada Evidence Act which provides for proof of the “integrity of the electronics document system” as the best evidence rule in respect of an electronic document. I find this to have no application whatsoever to the recordings of

Part VI intercepted private communications. I have never seen any case authority for such a proposition and Ms. Cooper provided me with none. Furthermore,

section 31.3 of the Canada Evidence Act sets out a presumption of integrity on the basis of evidence such as that elicited in this case from Ms. Sullivan and Ms. Good. Even as I make note of that, I reiterate my firm view that these provisions of the Canada Evidence Act have nothing to do with

Part VI intercepts. Voice Identification [ 62 ] The Crown tendered 60

Part VI intercepts in total for voice identification purposes and a 911 call from December 26, 2008. 57 intercepts are found in Exhibit 4, and have been tendered also as evidence of Mr. Cater’s guilt. Only two of these intercepts do not involve a speaker who has been identified as Kyle Cater: Intercept 6 (session #869) is a conversation that involved third parties and Intercept 8 (session #2589) is a text. This means 55 of the substantive intercepts (Exhibit 4) involve a speaker that has been identified as Kyle Cater. In addition the Crown tendered three intercepts for voice identification purposes only.

Therefore, 58 intercepts played at this trial are said to contain Kyle Cater’s voice. [ 63 ] Det/Cst. Pepler has had considerable exposure to Kyle Cater’s voice, a voice he identified on intercepts obtained by the investigation. He testified that he personally listened to the 64,000 intercepts captured pursuant to the

Part VI authorization. Approximately 5000 intercepts involved Kyle Cater. He has listened to each of the 57 intercepts selected for the Crown’s case approximately a dozen times. In a number of these calls, Kyle either identifies himself or is identified during the call. Det/Cst. Pepler has also listened to another 11 intercepts “at least” where speakers identify Kyle Cater or he self-identifies. Det/Cst. Pepler referred to the 911 call placed by Kyle Cater and to a video/audio interrogation of Kyle by police. (That police interview was not introduced into evidence by the Crown and only referenced by Det/Cst.

Pepler for the purpose of describing what sources he had used for developing his familiarity with Kyle Cater’s voice.) [ 64 ] Det/Cst. Pepler had also spoken to Kyle in person. He spent an hour with Kyle following his arrest on the weapons trafficking charges on April 29, 2009. He spoke to Kyle during a traffic stop in 2008. Det/Cst. Pepler first met Kyle and his family when Kyle was eleven years old. [ 65 ] Det/Cst. Pepler testified that, in addition to becoming familiar with Kyle Cater’s voice, features of the actual intercepts satisfied him that he was listening to him speaking.

These features included commonly repeated phrases and context. In some instances, Det/Cst. Pepler heard discussion about an event that Kyle Cater had been involved in with police, such as the December 2008 traffic stop. Furthermore, Kyle used a cell phone to make and receive calls that no one else used during the course of the operation. It was a cell phone registered to Mr. Cater’s mother, Barbara Cater. [ 66 ] Det/Cst. Pepler testified to being sufficiently familiar with the voices of other individuals captured on the intercepts to confidently identify the speakers.

Individuals such as Shawn Shea and Jeremy LeBlanc were targets of Operation Intrude and featured in thousands of calls. They would, on occasion, identify themselves or be identified in the calls. Det/Cst. Pepler also got to know some of the idiomatic turns of phrase and expressions employed by various speakers. In the cases of Mr. Shea and Mr. LeBlanc, Det/Cst. Pepler also had had direct personal experience, through arrests, service of documents and appearances in court. In Jeremy LeBlanc’s case, Det/Cst. Pepler listened to a six hour police interview. [ 67 ] Other voices Det/Cst.

Pepler became familiar with were those of Paul Cater, L.S., M.C. and J.M. In Paul Cater’s case, Det/Cst. Pepler had spoken with him at court several times. He listened to approximately 200 intercepts involving Paul Cater. The phone numbers used by Paul Cater were registered in Kyle Cater’s cell phone under “Dad”. Det/Cst. Pepler testified to knowing J.M. from Spryfield and having spoken to him several times at court. He describe J.M. as a “regular, everyday caller” to Kyle Cater.

Phone numbers linked to these individuals helped to confirm who was using the phones. [ 68 ] Clues as to who was speaking were also available to Det/Cst. Pepler in the calls themselves where for example, M.C. can be identified by his referring to himself as Kyle Cater’s brother. Det/Cst. Pepler noted that M.C. is Kyle’s only brother. Police knowledge about nicknames and relationships also informed Det/Cst. Pepler’s voice identification. [ 69 ] Simply put, as Det/Cst. Pepler explained it, describing his ability to identify who was speaking on the intercepts: “You get to know these people.” [ 70 ] Det/Cst.

Johnny Mansvelt also gave evidence about voice identification.He assisted in Operation Intrude and listened to some of the intercepted calls. In all he listened to over a thousand calls. He testified that he listened to all of the calls in Exhibit 4 (56 calls as noted above) at a minimum of 6 – 10 times each. [ 71 ] Like Det/Cst. Pepler, Det/Cst. Mansvelt used familiarity, self-identification and context to identify voices in the intercepts. He testified that voices he was familiar with from personal interaction were Paul Cater’s, Torina Lewis’, Kyle Cater’s, M.C.’s, and Aaron Marriott’s.

Self-identification, extensive exposure through the intercepts and contextualized references cemented Det/Cst. Mansvelt’s confidence in the identity of the speakers. [ 72 ] Det/Cst. Mansvelt’s voice identifications of Kyle Cater, Paul Cater and Torina Lewis were the same in every instance as Det/Cst. Pepler’s. He was also able to identify Aaron Marriott’s voice as Voice 2 in Intercept 6 (session #869), a call that occurred on November 30, 2008. [ 73 ] I find that the voices throughout the calls are consistent. By that I mean the voices identified by Det/Cst’s Pepler and Mansvelt

show the same characteristics throughout the calls and are recognizable as the same voice throughout. Given Det/Cst. Pepler’s experience with Kyle Cater in person and his exposure to his voice where he either self-identifies (as occurs on some of the intercepts and the 911 call) or is identified (as he is on some of the intercepts and would have been in the police interview Det/Cst. Pepler listened to), I am satisfied that he would know Kyle’s voice both by its intonation and the content of its speech and has correctly identified his voice on the intercepts. I also accept that Cst.

Pepler's experience with Shawn Shea, Jeremy LeBlanc and Paul Cater equipped him to reliably identify those voices. I am further satisfied that there is ample self-identification in calls in which L.S. is speaking and two involving M.C. for me to accept Det/Cst. Pepler’s opinion identifying their voices in these calls. He has also identified to my satisfaction on a similar basis the voice of D.S. [ 74 ] Det/Cst.

Mansvelt is similarly well suited to identify the voices of Paul Cater, Torina Lewis, Kyle Cater, and Aaron Marriott. [ 75 ] In the 55 substantive intercepts, that is intercepts the Crown submits contain proof beyond a reasonable doubt of the offences with which Kyle is charged, a voice I accept to be Kyle Cater’s voice can be heard speaking. This is the same voice that makes the 911 call on December 26, 2008 identifying himself as Kyle Cater. I found listening to the intercepts was an experience that mirrored that of Det/Cst. Pepler: you get to know these people.

After listening to 58 intercepts (55 substantive intercepts and the three intercepts tendered for voice identification purposes only) I am satisfied that I have got to know Kyle Cater’s voice and recognize it as the voice Det/Cst. Pepler identified as belonging to him. I acquired the same sense of familiarity with respect to the voices of Paul Cater and Torina Lewis. [ 76 ] Returning to Kyle Cater’s voice, I find that the voice I heard on the 58 intercepts is the identical voice heard on a 911 call, also intercepted by police during the investigation. A dispatcher answers a call.

The caller identifies himself as Kyle Cater, spelling his last name and giving his address at 116A Purcells Cove Road. The evidence (that being, the evidence of Barbara Cater Chase) has confirmed that was Kyle’s address at the time. [ 77 ] Barbara Chase gave what I will call “icing on the cake” confirmatory evidence on cross-examination that the 911 caller is Kyle Cater.

Not only did she identify his voice when the Crown started to play the intercept, she indicated she was standing right beside him when he made the call. [ 78 ] In identifying Kyle’s and other voices on the intercepts I also find that identity can be inferred from the context of the discussion, what happened immediately prior to a particular call, and the interconnection of subject matter and personnel amongst the calls. Furthermore, there is ample self-identification in the intercepts. [ 79 ] For example, in Intercept 3, Kyle is referred to by his caller as “Cater.” In Intercept 17, he is referred to as “Kyle”.

In Intercept 24, Kyle is called “Peanut” which Barbara Chase confirmed in her testimony was Kyle’s nickname. In Intercept 26, Kyle gets called “Ky”, another nickname according to Ms. Chase. And Kyle is identified by name in the January 15, 2009 calls that followed the police raid on 80 Cavendish Road.

But the context alone is enough to identify the callers on the January 15 calls: there is no question that they are Torina Lewis, fresh from being arrested and detained, and Kyle Cater, learning the news of what had happened early that morning when the police descended on 80 Cavendish to execute a search warrant. [ 80 ] In one of the three voice identification only calls, a call on January 8, 2009, Kyle identifies himself as “Cater.” [ 81 ] In other calls, Kyle’s voice is identifiable not only by its recognizable features – expressions and intonation – but by the context.

The January 15 calls are an example of this as are the calls (Intercepts 48, 49, 50 and 52) where Kyle talks first to his girlfriend Katie Mills about her being pulled over on December 28, 2008 by the police and then to others about the traffic stop. In the calls made by Kyle later on December 28 he references the traffic stop with some hilarity in view of the police narrowly missing him. [ 82 ] Det/Cst. Mansvelt testified about the December 28 traffic stop and the events leading up to it. He was involved in the surveillance that day and the Quick Response Team take down.

I will have more to say about these events later in these reasons. The point of mentioning them now is simply because what Det/Cst. Mansvelt described is incontrovertible evidence of Kyle Cater’s identity on the intercepts for December 28. [ 83 ] For the purpose of the firearms possession charges, the other key speakers on the intercepts - Paul Cater and Torina Lewis - are also readily identifiable by self-identification, being named, and context. Both Paul Cater and Torina Lewis have distinctive voices that become familiar to the ear through listening to the intercepts.

They are also identified in various calls, for example on December 25 when Aaron Marriott calls from jail and speaks to both of them after asking for them by name. Torina Lewis identifies herself in the January 15 calls with Kyle. [ 84 ] Kyle Cater is tied into the intercepts as well by the phone numbers that are used. He consistently receives and makes calls on a cell phone with the number 229-4400. His mother, Barbara Chase confirmed that she subscribed to this phone for Kyle Cater’s use. She did not program the phone with any of the contact numbers found in it. I also accept Det/Cst.

Pepler’s evidence that he did not find any indication in all the intercepts he listened to of anyone else using the phone with this number. And many of the numbers that 229-4400 called to or was called from were numbers that Kyle Cater had listed as contacts in his cell phone (Exhibit 10). This includes: his father, Paul Cater (“Dad”), D.M. (“D”), R. S. (“R”), I. E. (“I”), and Katie Mills (“My Baby”). [ 85 ] I am wholly satisfied with the accuracy of Det/Cst’s Pepler’s and Mansvelt’s identification of the voices on the intercepts.

Furthermore I find there is overwhelming evidence in the intercepts themselves to identify the relevant speakers. Of Barbara Chase’s evidence that she relies on caller ID and stock phrases used by her sons to identify their voices, I will simply say that this evidence changes nothing in my assessment of the voice identification on the intercepts. In fact, Ms.

Chase remarked on Kyle Cater’s tendency to open his calls to her with, “Yeah, what’s going on?” I found a number of instances in the intercepts where the voice identified as Kyle Cater’s opened conversations with the same or a very similar inquiry such as “Yeah, what are you doin’?” or “What’s up?” [ 86 ] I am left with no doubt as to who was speaking on these intercepted calls. After listening to the intercepts, I can identify the voices of Kyle Cater, Paul Cater, and Torina Lewis which I find to be readily recognizable. I accept the opinions of Det/Csts.

Pepler and Mansvelt on the identity of all the voices on the intercepts, although I have to say that self-identification, identification by others, and context permitted me to draw my own firm conclusions on who was speaking, particularly in the cases of Kyle Cater, Paul Cater, Torina

Lewis, Aaron Marriott, and Shawn Shea, such that I have not simply relied on the police officers’ opinions. As for other voices, such asD. “D.” S., L.S, I.E., J.M., and others, I accept Det/Csts. Pepler’s and Mansvelt’s opinions but find that proof of the identity of thesevoices is not essential to the Crown’s case. [87] My review of the evidence to this point has brought me to the critical part of the case: what was being discussed in the intercepts. Iwill now embark upon a detailed examination of the intercepted conversations and the inferences I have drawn from them.

The Intercepted Calls: An Introduction [88] In the period of November 18, 2008 to January 15, 2009, as Ms. Cooper has repeatedly told me, Kyle Cater was “a boy in school.”He was eighteen years old which explains the use of “boy” to describe him. According to his mother, he was an excellent student. That isonly a partial picture. Over these same months, Kyle Cater was also having guarded telephone conversations using coded language. It isthese conversations that lie at the heart of the Crown’s case.

They are the Crown’s case. [89] I will repeat what I indicated earlier in these reasons: the substantive intercepts, the intercepts tendered as proof of Kyle Cater’sguilt, total 57 and are contained in Exhibit 4. Mr. Cater can be heard speaking on 55 of these intercepts. The other two intercepts are acall in which he is not involved as a speaker and a text message. [90] The conversations eddy around Kyle with inquiries about and requests associated to items that are described, routinely but notalways, using coded language.

The fact that coded language is a common feature of the intercepts is not in dispute in this case. TheCrown says the coded language refers to firearms and ammunition: Ms. Cooper argues that it is impossible to interpret what the codedreferences mean and that other explanations are equally plausible. She suggests the speakers on the intercepts may have been talkingabout jewelry or clothing or even drugs, but it is not reasonable to infer that they are talking about guns. [91] There are several points to be made about the

interpretation of the intercepts in this case. They have to be examined in acontextualized way. Not every conversation is coded and in some cases, very specific or technical references are made to the items underdiscussion. And, finally, the Crown called expert evidence to assist my understanding of what the conversations are about. I will nowdiscuss that expert evidence. The Intercepted Calls: Qualifications of Crown Expert Michael Press [92] The expert called by the Crown was Special Firearms Officer Michael Press. After a qualifications voir dire, I qualified Mr.

Pressto give opinion evidence in firearm identification, classification, test firing, firearms and ammunition trafficking, illegal movement offirearms including crime guns sources, firearm concealment, street and coded language relating to firearms including illegal street pricesof firearms and ammunition. The Defence conceded his qualifications in all categories proposed by the Crown except street and codedlanguage relating to firearms and the illegal street prices of firearms and ammunition.

Following submissions on the issue, I qualified Mr.Press as I have indicated. [93] As I will discuss in more detail shortly, Mr. Press was asked by the Crown to indicate what in his opinion was coded, guarded orslang language in the intercepts tendered in this trial. In offering his opinion on certain intercepts, Mr. Press referenced the contextprovided by listening to a cluster of intercepts and following the thread of what was apparently being discussed. He indicated ininterpreting the intercepts who he had been given to understand were the speakers.

As will be evident from these reasons, I have notrelied on Mr. Press’ evidence in this regard for any voice identification. The fact is that the voices Mr. Press believed he was listening toon certain intercepts, for example, Kyle Cater’s, have been found by me to be those voices. Voice identification is therefore not an issuein my assessment of the weight to be accorded to Mr. Press’ opinions. [94] I can say that I have accorded substantial weight to Mr. Press’ opinions, including on the possible meanings to be given the codedlanguage on the intercepts. I heard extensive evidence about Mr.

Press’ experience and training. His 32 page curriculum vitae indicatesthat he has been qualified on numerous occasions before the courts of Ontario as an expert in the areas proposed by the Crown in thiscase. In seeking to have Mr. Press qualified, the Crown very thoroughly explored his expertise and how he has developed and continuesto develop it. In endeavouring to acquire and maintain expertise in coded and street language relating to firearms and illegal firearmstrafficking, Mr.

Press has listened extensively to intercepts, accesses source debriefing information, and networks with a broad range oflaw enforcement personnel involved in firearms interdiction. [95] Mr. Press’ significant experience and training satisfied me that he possesses the "special knowledge and experience going beyondthat of the trier of fact." (R. v. Marquard, (SCC), [1993] 4 S.C.R. 223 at paragraph 35) I found that his expert opinionevidence was admissible under the Mohan requirements. (R. v.

Mohan, (SCC), [1994] 2 S.C.R. 9) I concluded that Mr.Press’ evidence was necessary to my understanding of the types and classification of firearms and the coded language, illegal street tradeand pricing relating to them, all of which are areas outside of my knowledge and experience. Having said that, logic, common sense andcontext assisted me in my

interpretation of the intercepts and this is all that was necessary to understand some of the conversations. Michael Press’ Opinion Evidence [96] Michael Press listened to all 56 intercepts before me (Exhibit 4), viewed the text message in Exhibit 4 and the photographs of gunsobtained from Kyle Cater’s cell phone. He was also shown the firearms seized from 80 Cavendish Road. Besides observing the physicalcondition of the seized firearms, their manufacturers, make and calibre or gauge, Mr.

Press indicated that the AP 9, manufactured by AAArms is very similar in appearance and function to a Tec 9, manufactured by Intratec. The AP 9 and Tec 9 barrels have a similarlymenacing and distinctive look, very similar handgrips, and can function with high capacity magazines. Although manufactured to besemi-automatic, the AP 9 and the Tec 9 can be modified to be fully automatic. The AP 9 has a street value according to Mr. Press of$4500 - $5500. Full automatic machine pistols are designed to kill people. [97] The other guns found at 80 Cavendish are significantly less valuable.

A sawed off Cooey shotgun will fetch $400 - $900 and theMark II Lakefield rifle no more than a couple of hundred dollars. Mr. Press contrasted the rifle to the AP 9: “A single shot very smallcalibre compared to a fully automatic machine gun with a high capacity magazine.” He went on to say that if a person is in “a fire fight”

they will want “more shooting ability.” [ 98 ] Mr. Press’ expertise includes being able to describe the terminology commonly used to describe and discuss illegal firearms and ammunition, including where the speakers want to obscure what they are talking about.

When asked if he had identified in the intercepts any language he regarded as relating to firearms, he noted the following usages: A “strap” is a term for a firearm; A “forty cal” is terminology for a 40 calibre firearm; “Thing” and “things” are common terms for a firearm: the reference to a “thang, thang” in Intercept 2 (Session #253) may be an adaptation of “thing”; A “3-0-8” could be terminology for a .308 calibre firearm; “Full” in context can refer to ammunition; “Clip” is a slang word for magazine; “Naked” can be used to indicate the person is unarmed; “Bop bop” can be used to describe the discharging of a firearm.

Slang can be developed from the perceived sounds made when a firearm is discharged; A “shottie” is a term for a shotgun; “10 after 4” may be terminology referring to a .410 gauge shotgun. Time references and the mismatching of numbers are used as a way to describe calibre; “Locking up” is terminology that can describe a gun malfunctioning. The slide mechanism can get stuck on a semi-automatic firearm and even a break-action shotgun can “lock up”; A “9” is a term for a 9 mm handgun; “Derringer” is a technical term for a firearm. It may refer to a particular model but, it was Mr.

Press’ evidence that “in many ways, it’s a description.” A derringer is a small firearm, usually with two short barrels. A “two shot”, it is a “pocket gun” that can be easily concealed. A derringer will fetch about $1300 on the street; “Girl”, “girls”, “bitch” and “she” can be coded terms for firearms. Mr. Press testified that “many times” he has heard “girls” used in reference to firearms.

He noted that context is an important factor in the analysis of what the terms are being used in reference to; “Ninja” may be a term that refers to a 9 mm firearm; “Cannon” is a coded term for a firearm; “7-45” may be a reference to a .45 calibre firearm which is usually going to be a semi-automatic hand gun; “Twenty-five” may refer to a price, subject to context; “Fresh” is a term used to describe a new firearm, one that hasn’t been used; “Grime” is a term used to indicate crime; References to something not being “too loud” and “not the black one” may be terms used to identify a smaller calibre firearm (Intercept 24, session #1327 – “don’t want anything too loud”) and the finish of the firearm, which may be “black” or otherwise stainless steel or nickel-plated (Intercept 28, session #1826); A “Smith and Wesson” is a technical term for an actual make of firearm and could indicate a handgun or a rifle.

On cross-examination, Mr. Press indicated that it is easy to buy a Smith and Wesson gun in Canada “at a gun store”; “John Wayne” may refer to a firearm, using the association of John Wayne who starred in movies where a variety of firearms were used; A “heater” is a slang term used for a firearm; A “Tec” is a term that references the design of a firearm, the most common being a Tec 9; [ 99 ] Mr.

Press noted that there are intercepts that refer to a Tec 9 and said of the speakers: “They either thought it was a Tec 9 or they called it that.” [ 100 ] I am now going to discuss the intercepts and the inferences I have drawn from them. In doing so I have left out many of the variants of “fuck” that pepper the conversations. They have generally lent nothing to my understanding of the conversations. Where the use of “fuck” or “fuckin” is relevant to include, I have done so.

The Intercepts – Reasonable Inferences of Firearms Talk [ 101 ] I have concluded that the only reasonable inference to be drawn from the intercepts is that the speakers are talking about guns.

This is apparent from the first intercept in the collection introduced into evidence, the telephone conversation on November 19, 2008 between Kyle and his brother, M. (Intercept 1, session #5) Kyle makes a reference to “a forty cal” that he is trying to get. Mr. Press testified that this is how a person familiar with firearms would refer to a forty calibre firearm.

M.C. urges his brother that if the person who has the firearm is saying “he’s gonna sell it, just go take it from him, cuz.” M.C. also seems to know someone who has “a forty” and tells his brother if he can get his hands on it he should take it. [ 102 ] There is simply no other reasonable inference to be drawn from Intercept #1 than Kyle wants to get his hands on a .40 calibre firearm. [ 103 ] The following day, November 20, (Intercept 2, session #253) Kyle is talking to Shawn Shea about having “got a new thang thang” which I interpret to mean he has “a new thing.” It was suggested, despite Mr.

Press’ testimony about “thing” often being used to describe a firearm, that Kyle could be talking about anything. This suggestion could only be made without consideration of context in this call specifically and the other intercepts I will go on to discuss.

Kyle tells Shea the thing is “big” which elicits Shea’s approval, “Nice one.” According to Kyle it is also “bad though” and he is eager to show it to him: “I really wanna show you too cuz.” I find the “big, bad thing” that Kyle was so enthusiastic about showing Shawn Shea had to have been a gun. [ 104 ] On November 21, (Intercept 3, session #119) Kyle gets a call from a friend whom Det/Cst. Pepler believes to have been S.G. As I have said, it doesn’t matter who the call was from.

Kyle tells G. he can meet him “wherever” and talk to him “about that” but he “can’t really do it over this” presumably meaning the phone.

He refers to the “heat” and “all those police out.” G. tells him he’s “gotta do Christmas shoppin” and is “just tryin’ to see if buddy can get a clip for it…” Kyle reassures him about this, telling G. he doesn’t “really need to worry about that” because he can “get those myself…I got people that live out Edmonton and they send them down like it’s nothing, cuz.” Money is mentioned by Kyle, “It’s only a couple of dollars though, right?” He goes on to talk about people who owe him money, “I got some people that owe me money that won’t even say ‘what’s up’ to me now…” [ 105 ] G. and Kyle make plans to keep in touch.

G. expects to hear from Kyle “on the computer” and says “the computer’s safer”, an obvious reference to the risks posed by talking on the phones. [ 106 ] Kyle’s people in Edmonton are unidentified. The November 19 call from M.C. to Kyle came from a 708 area code. Ms. Chase confirmed that this is an Alberta area code. [ 107 ] There is no ready explanation outside of the intercepts for the reason that Kyle Cater would be owed money.

I did hear evidence from his mother that he was selling clothing but she testified this enterprise did not get underway until after his arrest in 2009. [ 108 ] On November 30, Kyle had two anxious calls with D. “D.” S. (Intercept 4, session #831 and Intercept 5, session #835) D. is “naked” because he had to “dump” his “thing”. He needs something to “bop-bop” and he needs it badly, telling Kyle: “Hey, seriously if you got somethin’ like, I need it…’cause it’s real out here right now.” Kyle tells him to call him back in ten or fifteen minutes. [ 109 ] D. calls Kyle back, nearly fourteen minutes later.

Kyle wants to know if he got hold of “AR” because “AR” has “all three of mine, right” he tells D. It becomes apparent later in the call that “AR” is Aaron Marriott. D. asks for the number, emphasizing that he needs “this” as soon as possible.

He tells Kyle again that he is “naked” and is “waitin for something now” because he knows “shits about to pop off…” Kyle confirms again that AR has “all three of mine” but if D. can get hold of him, “he’ll come check you out…” D. asks for “Aaron’s number” and Kyle tells him [ editorial note- telephone number removed ]. [ 110 ] In the two November 30 calls with Kyle, D.’s tone is stressed and urgent. He’s looking for a firearm, having had to jettison his. He anticipates trouble coming his way.

It is apparent he views Kyle as a potential source for what he needs. [ 111 ] D. connects with Aaron Marriott (Intercept 6, session #869) shortly after getting the number from Kyle. He tells Marriott that he was shot at the night before (“one of them guys come buckin’ at me last night”) He shot back but didn’t hit anything. He had to ditch his firearm (“just had to dump my shit”) He underscores the urgency of getting a replacement gun: “I just dumped my shit, cuz. I’m out here naked. I need something bad, cuz.” Marriott apparently has nothing available, not even “a shottie”.

D. would have settled for a “shottie”: “…it’s real out here cuz. Do you even got a fuckin’ shottie?” Marriott tells him he’ll “check somethin’ out”, which throws a crumb to anxious D. who says: “Seriously cuz, when like? It’s bad out here cuz. When can I come get it? “Cause I can get a drive right now?” [ 112 ] There a number of inferences I draw from these calls. They are the only reasonable inferences to be made. Kyle Cater is viewed as someone who can supply a firearm. He is stashing his guns elsewhere, reducing the risk of having them found in his possession. D. turns to him when in a jam.

Kyle doesn’t have his three firearms on hand; he indicates they are in Aaron Marriott’s custody. He connects D. to Marriott although Marriott either really doesn’t have the guns with him or at least makes it appear that way. D. is out of luck but not because he tapped the wrong sources. Neither Kyle nor Marriott told D. they didn’t know what he was talking about or that he was barking up the wrong tree. They were a source for what he wanted, it just so happened at that time, the well was dry. [ 113 ] There are other intercepted calls that indicate Kyle Cater was a “go-to” person for firearms.

D.M. calls Kyle on December 2 (Intercept 7, session #981) to ask if he remembers “that thing” they were talking about, which he refers to as the “ten after four”. Three days later, on December 5 (Intercept 16, session 1219), D.M. asks Kyle if he remembers “that thing you gave me?” Kyle does and D.M. wants to know if he has anything like it, “Like anything smaller…” Kyle does not. “No”, he says.

D.M. tells him he is going to go and “try that thing out and if it locks up, I don’t even want it.” This doesn’t seem to impress Kyle who says: “…do your thing, buddy, do your thing, I don’t really care.” Kyle ends the call quite abruptly at this point. [ 114 ] The day before this testy exchange with D.M., on December 4 (Intercept 9, session 1103) C.M. calls Kyle looking for something for a friend. The initial exchange leaves no doubt that the call is about a business transaction. Kyle asks: “Black, Indian, Asian, Caucasian.

What you need player?” C.M. tells him: “you know what I need.” Kyle wants to know if he wants “a shottie or somethin’?” but C.M. explains “…he needs somethin’ small.” Although Kyle observes “they’re crazy expensive”, according to C.M., this doesn’t seem likely to be a problem for the prospective purchaser. [ 115 ] C.M. tells Kyle in this call that the friend’s speeding ticket - “And I guess they’re gonna take his license and shit.” - will be

forgiven in exchange for “a little girlfriend” which, according to Michael Press, is a practice employed by police to get illegal firearms, referred to as “patch” guns, off the street. [ 116 ] In the C.M. “little Derringer” call on December 4, 2008 (Intercept 9) Kyle indicates, when asked how much the “little Derringer” might cost, that he doesn’t know, he’ll “have to go check that out with my…partner.” As I mentioned earlier, Ms. Chase confirmed on cross-examination that although J.M. had been Kyle’s partner in a clothing business, that business did not start up until after Kyle’s arrest in January 2009.

The reference in Intercept 9 by Kyle Cater to “my partner” cannot therefore have been a reference to J.M. and a clothing business although it is hardly necessary to make this point as the content of the call does not lend itself to an

interpretation that clothing was the subject of the discussion. [ 117 ] The need to “patch” a gun over to the police is still outstanding as of December 12, 2008. On December 12, Kyle gets a call from “C.”. (Intercept 27, session #1564) “C.” wants to know if Kyle has figured “anything out with that?” “C.” tells him he “can come grab it from ya” but Kyle advises “I just don’t really got it all in my possession right now, right?

I need to wait for the call.” “C.” tells Kyle “the cop” is telling him to “take it or leave it” which I infer is a reference to the offer to cancel the speeding ticket in exchange for “a girlfriend” that C.M. was explaining to Kyle on December 4 in the “little Derringer” conversation. [ 118 ] Kyle’s status as a gun source is further confirmed in intercepted calls on December 4 that start with Shawn Shea’s call at 5:20 p.m. (Intercept 11, session #2261) Shea wants to know if Kyle has “got the ninja.” Kyle does not but will see if “he” does and if so, will call Shea “back in a second ‘kay?” Shea is impatient.

He calls two minutes later to be told that Kyle is waiting as “he’s just gonna call me back.” Kyle is told to “hurry man.” (Intercept 12, session #2262) [ 119 ] The “he” is Paul Cater. At 5:28 p.m. on December 4 (Intercept 13, session #1117) Paul tells Kyle that “she won’t be around ‘til tomorrow.” Kyle is dismayed. Paul apologizes, “Sorry, man” but says to his son: “Like I told ya before.

I need to get hold of her days in advance, right?” He is told by Kyle: “Well get it and keep it around.” In this 26 second call, the “she” becomes an “it.” [ 120 ] The net result of these calls between 5:20 p.m. and 5:28 p.m. on December 4 is that Kyle is unable to produce “the ninja” for Shea. Again, Kyle is regarded as a source for supplying a firearm and again, he does not have it in his actual possession. It is being kept somewhere else. It is clear Kyle wants it to be more accessible.

He tells his father to “get it and keep it around.” [ 121 ] Michael Press testified to his opinion that a reasonable inference to be drawn from the word “ninja” was that it was a code word for a nine millimeter gun. He noted the resemblance between “ninja” and “nine”. It was his opinion based on listening to the series of intercepts on December 4 (Intercepts 12, 13 and 14) that a specific firearm was being referred to. I am left with no doubt that Shea, Kyle and Paul Cater were all talking about a firearm.

It is a reasonable inference that the gun they all understood each other to be referring to was a nine millimeter. A “9” was on Kyle’s radar. The day before, on December 3, Kyle had received a text (Intercept 8, session #2589) from Jeremy LeBlanc: “sup big guy got that 9” which I infer to have been a reference to a nine millimeter. [ 122 ] After Kyle learns that Paul cannot produce “the ninja” Shea is looking for, he calls Shea back. (Intercept 14, session #1118) Shea does not disguise his disappointment. “Fuck”, he says to Kyle and Kyle commiserates, “I know bud.

I know.” Shea then asks: “Nothin’ at all? which animates a discussion about alternatives. Kyle has “that poopy one that you don’t even want. That you always turn down.” Shea asks about the “three o’clock” a reference which Kyle doesn’t seem to grasp. After some stumbling around in the exchanges with Kyle, Shea resorts to asking: “What’s the time, the 3-0-8?” He thinks it doesn’t “work” but Kyle assures him it does. Kyle notes that Shea hasn’t wanted it when he’s brought it to him before.

Shea wants to know if it is “full” but Kyle advises, “No…Only half…” [ 123 ] The reference to 3-0-8 cannot have been a true inquiry about the time. The call is taking place at 5:30 p.m. “308” in Mr. Press’ opinion is a calibre. That is the most reasonable inference. According to Mr. Press, a .308 calibre firearm is a long barrel hunting rifle very like a .22 but with a larger calibre. I also infer that the full/half full references relate to ammunition. That is the only logical inference considering context and it is supported by Mr.

Press’ opinion that the parties were discussing ammunition. [ 124 ] Still trying to settle on another option in light of “the ninja’s” unavailability, Kyle wants to know what is “rockin’ with them other ones…are they out of town?” Shea tells him “no, they’re…just…it’s a good time.” Shea emphasizes that he “don’t really want nothin’ small.” Kyle gets this, “I hear ya. I hear ya” and tells Shea he is “tryin’ to think of something man.” He tells Shea to call him back in five minutes. Kyle tells him he has to run up the street.

Shea doesn’t like the sound of this, “Fuck” he says, and Kyle reassures him “it’s like right by there though.” [ 125 ] Mr. Shea’s wish not to have something that was “small” could have been satisfied by a .308 rifle. Mr. Press testified that a .308 is “an extremely powerful hunting rifle.” [ 126 ] As with D.S. on November 30, on December 4, Kyle does not have a sought-after firearm in his actual possession. To get it he will have to “run up the street.” Mr. Press noted that it is very common for firearms traffickers not to have guns on hand.

He observed that depending on the police presence, traffickers may stash guns other than where they reside to avoid being caught with the guns if the police are able to obtain a search warrant. It’s perfectly logical: firearms traffickers do not want to get caught in actual possession of their illegal firearms. [ 127 ] Firearms-related talk continues through December 2008. A caller on December 7 (Intercept 24, session #1327) asks Kyle if he has “a little thing” they could use. The caller has plans: “We’re goin’ down to do something on Barrington in a little bit.” Kyle thinks he can “probably” help.

The caller wants something “that’s not loud, though…” [ 128 ] On December 9 (Intercept 26, session #385) Kyle talks to his brother, M.C. A friend, “H.”, takes the phone later in the call. M.C. is thinking of getting “a little chunk.

You know what I mean?” H. wants to know if Kyle has “a bitch” for him to “hang on” when he gets home, “you know what I’m sayin’?” When H. tells him: “You got a girl for me ‘cause I got a couple of people I wanna go hang out with, with that girl”, Kyle replies: “Yeah, I can do somethin’ for ya.” H. seems to be contemplating a crime when he says “comin’ home on a grimy tip” – “grimy” being a term for crime according to Mr. Press – and doesn’t want it known that he is back.

He again emphasizes the importance of accessing a firearm: “As long as you got me covered on that whore…I’ll even pay for one, right?” Kyle says in response to this: “All right, cool, man….you got my number, ‘kay?”

[ 129 ] I find that the references to “a girl”, “a bitch” and “that whore” are all references to guns, using various descriptors for women. In reaching this conclusion, I not only have Mr. Press’ opinion about the use of female references as code for firearms but the context of the discussion makes this the only reasonable inference. [ 130 ] Intercept 26 on December 9 confirms again that Kyle is a known source for guns. The acquisition for H. may involve consideration.

Kyle indicates he is open for business. [ 131 ] Kyle’s ability to provide a firearm is in demand again on December 15. (Intercept 28, session #1826) He is asked: “Think you can get me that girl tomorrow?” What is being sought is “Not the black one, the other one.” Kyle seems to feel confident about being able to fulfill the request: “All right…Yeah, yeah. For sure bud.” [ 132 ] Near the end of December 2008, Kyle is tapped again as a reliable source for a gun. L.S. calls Kyle on December 27 at 7:56 a.m. (Intercept 31, session # 2681) He sounds stressed. “…gimme a call back.

I need your help” is the message he leaves. L.S. doesn’t let up. He has a problem. He wants to meet with Kyle urgently. (Intercepts 32 and 33, sessions #2682 and #2683) Kyle wants to know if L.S. needs “a heater”, which he does. Kyle breaks the bad news: “…they ain’t even around right now.” L.S. wants to know when Kyle can get one for him.

Kyle tells him he doesn’t know because “…my buddies where I got them at.” L.S. does not lose hope, asking if Kyle can get it for him “today”, to which Kyle responds: “Most likely.” L.S. is appreciative and tells Kyle: “Cause this is serious.” (Intercept 34, session #2684) That call ends around 8:40 a.m. [ 133 ] By noon on December 27, Kyle has not produced any results. L.S. calls him in a state of agitation. (Intercept 35, session #2693) He says there is “a beef” and that “they” are getting closer and know where he lives.

He is explicit: “Cause there’s been a lot of threats and shit, so I need somethin.” L.S. wants to meet Kyle and urges him: “Don’t forget none of them things.” He tells Kyle he is counting on him, “…you’re the only person in my corner, bud.” [ 134 ] L.S. finds it necessary to call Kyle back at 3:24 p.m. (Intercept 36, session #2713) Kyle says he is looking for “a legit drive” because he “can’t really drive around with that, you know?” The concern is the “heat”, “it’s hot, cuz” he tells L.S.

L.S. starts looking into getting a drive himself to meet Kyle. (Intercept 37, session #2716) Kyle is in Purcell’s Cove and tells L.S.: “…that thing…like it’s not right on me, right? Like, it’s heat out right now, right?” [ 135 ] It seems that L.S.’ worries are not much of a concern to Kyle. He goes to the mall which is where he is when L.S. calls him next at 4:09 p.m. to advise that he has a drive. (Intercept 38, session #2720) By 4:21 p.m., Kyle has gone to Walmart in Bayer’s Lake. L.S. has a drive but Kyle tells him: “I don’t got it on me, man.

I don’t fuckin’ run around with that, bud, that’s crazy.” (Intercept 39, session #2721) Kyle promises to call L.S. when he gets “back to town.” He reiterates: “…I just don’t have it on me, man, I don’t.” [ 136 ] The L.S.’ calls reveal a number of truths. Kyle is once again called upon to help out an associate who has found himself in danger. What he is being asked to supply is “a heater” and although I hardly need an expert to tell me that means a gun, Mr. Press indicated this is a common coded term for a firearm.

Kyle is aware of the police presence in the neighbourhood and the risks of driving around with a gun. Maybe the situation is too fraught or maybe he just doesn’t care that much for L.S.’ difficulties. Whichever it is doesn’t matter, just as it doesn’t matter that he isn’t any use to L.S. in the end. These intercepts further establish Kyle Cater’s involvement in the illicit firearms trade. Do The Intercepts Disclose Discussions About Specific Firearms? [ 137 ] I have already noted some intercepted conversations where I find specific firearms were discussed.

The ones I have mentioned are: Intercept 7 on December 2, 2008 where D.M. tells Kyle: “I just need to get that thing. You know what we were talkin’ about?” Kyle responds with, “Yeah, the, the….” And D.M. confirms: “Yeah, ten after four. [ 138 ] A “thing” that is a “ten after four” is not a reference to time. Mr. Press testified about how time references are used as code to describe calibre. I find this conversation referred to a .410 shotgun. D.M. is looking for a gun. He is anticipating trouble. “Lang and fuckin’ Marcel and Hatcher just tried to run

[…]