R. v. Gardner et al., 2013 ONCJ 351

Citation: R. v. Gardner et al., 2013 ONCJ 351 ONTARIO COURT OF JUSTICE Toronto Region B E T W E E N: HER MAJESTY THE QUEEN - AND - Chermar GARDNER, Abshir ABDIRASHID, M.A., Kevin DURO, M.H., Guled MAHADALE, Ginelle McLEAN, A.Y. and Turrell TOMLINSON Before Justice D. Oleskiw Heard on: January 7 - 11, 14 - 16, 18, 21 - 25, 28, 29, February 1, 4 - 7, 19 - 22, 25 – 28, and March 1, 5, 6, 8, 18, 21, 22, 25, 26, 2013 Judgment: April 24, 2013 Reasons for Judgment released on: April 30, 2013 Counsel: Ms. C. Rhinelander, Ms. S. James and Mr. R.Wilson for the Crown Mr. G. Cudjoe for Chermar GARDNER Mr. C.

Bottomley and Mr. C. Sewrattan for Abshir ABDIRASHID Mr. A. Boni and Mr. J. Tong for M.A. Mr. J. Hershberg and Ms. A. Kwan for Kevin DURO Mr. A. Abby for M.H. Mr. E. Schofield for Guled MAHADALE Mr. D. Goodman and Ms. A. Mehta for Ginelle McLEAN Mr. D. Geller (of the B.C. Bar) for A.Y. Mr. G. Leslie for Turrell TOMLINSON

PART I: INTRODUCTION 1 . This is a ruling on committal for trial for the nine named defendants following a three month preliminary inquiry that commenced on January 7, 2013. 2 . There are sixty-four counts before me, all arising out of a police investigation named “Project Marvel”. The charges include trafficking and possession of cocaine and other drugs and conspiracies to do the same; trafficking and possession of firearms and conspiracies to do the same.

The Crown alleges that all but two of the defendants committed these criminal activities for the benefit of, at the direction of or in association with a criminal organization referred to as the “YBK”, (also known as the “Young Buck Killers”). The defendants, Gardner and Abdirashid are the only defendants for whom the Crown seeks committal on the most serious criminal organization charges of instructing a person to commit an offence for the benefit of, at the direction of or in association with a criminal organization pursuant to s. 467.13 of the Criminal Code . 3 .

The specific charges and issues to be addressed are set out in Parts II and III below.

PART II: SPECIFIC CHARGES, CONCEDED COUNTS and THE COUNTS IN ISSUE 4 . The preliminary inquiry commenced with two additional accused who, subsequent to arraignment, plead guilty to certain charges. Their charges were disposed of before a different Justice as indicated in Appendix I. 5 . A.Y. conceded committal on the charges he faces on this Information, and, accordingly, he is committed for trial on counts 11 and 12. 6 .

Ginelle McLEAN conceded committal for trial on the charges she faces on this Information, and accordingly, she is committed to stand trial on counts 51, 52, 53, the alternatives to counts 54 and 55 as outlined in Appendix I, and count 56. 7 . Guled MAHADALE conceded committal for trial on the charges he faces on this Information, and, accordingly, he is committed to stand trial on count 1 and the alternative to count 2 as outlined in Appendix I. 8 . M.H. conceded committal for trial on some charges and the Crown withdrew others.

According to the agreement of counsel M.H. is committed to stand trial on count 1, the alternative to count 2 as outlined in Appendix I, and counts 3, 4, 7, 8, 15. M.H. is discharged on count 23. Counts 37, 38, 39, 40, 43 and 44 are withdrawn against Mr. M.H..

i) The Charges against Chermar Gardner : 9 . Chermar GARDNER concedes committal for trial on the following counts and accordingly there will be an order for him to stand trial on those counts as outlined in Appendix I: counts 16, 18, 19, 20, 24, 26, 27, 29, 31, 32, 33, 47. The Crown invited a discharge on Count 23 for Mr. Gardner and a discharge is ordered on count 23.

The counts in issue following the evidence called at the preliminary inquiry are: Count 1 – Sept 1 – Dec. 13, 2011 - Criminal Organization – Commission – transfer or offer to transfer firearm – s. 99(1) / s. 467.12 Count 2 –Sept 1 – Dec. 13, 2011 - Criminal Organization – Commission – possess firearm – s. 92(1) / s. 467.12 Count 3 – Sept 1-Dec. 13, 2011 - Criminal Organization – Commission - trafficking controlled substance- s. 5(1) CDSA / s. 467.12 Count 4 – Sept 1-Dec. 13, 2011 - Criminal Organization – Commission – conspiracy to traffic controlled substance- s. 465(1)(c) / s. 467.12 Count 9 – October 16, 2011 – Possess Firearm – s. 92(1) Count 15 – November 3 – 5, 2011 –Possess Firearm – s. 92(1) Count 17 – November 4 - 6, 2011- Criminal Organization – Instruct – Trafficking cocaine – s.5(1) CDSA / s. 467.13 Count 21 – November 6, 2011 - Criminal Organization – Instruct – Trafficking cocaine – s.5(1) CDSA / s. 467.13 Count 28 – November 22, 2011 – Possess Firearm – s. 92(1)

Count 30 – November 25, 2011 – Trafficking Cocaine (Toronto) – s. 5(1) CDSA Count 45 – December 7, 2011 - Criminal Organization – Commission - production of cocaine – s. 7 CDSA / s. 467.12 Count 46 –December 7, 2011 - Criminal Organization – Commission - possession cocaine for purpose of trafficking – s. 5(2) CDSA / s. 467.12 ii) The Charges against Abshir Abdirashid: 10 . Abshir Abdirashid concedes committal for trial on the following counts and accordingly there will be an order for him to stand trial on those counts as outlined in Appendix I: Counts 10, 11, 12.

The Crown invited a discharge on Counts 3 and 4 for Mr. Abdirashid and a discharge is ordered on Counts 3 and 4.

The counts in issue following the evidence called at the preliminary inquiry are: Count 1 – Sept 1 – Dec. 13, 2011 - Criminal Organization – Commission – transfer or offer to transfer firearm – s. 99(1) / s. 467.12 Count 2 –Sept 1 – Dec. 13, 2011 - Criminal Organization – Commission – Conspiracy to possess firearm – s. 465(1)(c) / s. 467.12 Added Count – Sept 1 – Dec. 13, 2011- Criminal Organization – Instruct – transfer or offer to transfer firearm – s. 99(1) / s. 467.13 . iii) The Charges against M.A.M.A.: 11 . The Crown invited a discharge on counts 3 and 4 for Mr.

M.A.M.A. and a discharge is ordered on counts 3 and 4.

The counts in issue following the evidence called at the preliminary inquiry are: Count 1 – Sept 1 – Dec. 13, 2011 - Criminal Organization – Commission – transfer or offer to transfer firearm – s. 99(1) / s. 467.12 Count 2 –Sept 1 – Dec. 13, 2011 - Criminal Organization – Commission – possess firearm – s. 92(1) / s. 467.12 Count 34 – Nov. 24, 2011 – Offer to transfer firearm – s. 99(1) Count 35 – Nov. 24, 2011 – Possession of firearm for purpose of offering to a person – s. 100 Count 36 – Nov. 24, 2011- Possession of Prohibited or Restricted Firearm –s. 92 iv) The Charges against Kevin Duro: 12 .

Kevin Duro concedes committal for trial on the following counts and accordingly there will be an order for him to stand trial on those counts as outlined in Appendix I: Counts 1, 2, 5 and 57.

The counts in issue following the evidence called at the preliminary inquiry are: Count 6 – Oct. 15, 2011 – Possess Firearm – s. 92(1) Count 51 – Dec. 13, 2011 - Possession of loaded restricted firearm – s. 95(1) Count 52 – Dec. 13, 2011 - Possession of restricted firearm – s. 92(1) Count 53 – Dec. 13, 2011 – Possession of prohibited device – s. 92(2) Count 54 –Dec. 13, 2011 – Careless handling of firearm – s. 86(1) (alternative) Count 55 – Dec. 13, 2011 – Careless storage of ammunition – s. 86(1) (alternative)

Count 56 – Dec. 13, 2011 – Careless storage of firearm – s. 86(1)

v) The Charges against Turell Tomlinson: 13 .

On Information #164811, Tomlinson is charged with the following offences for all of which committal is in issue: Count 1 – Sept 1 – Dec. 13, 2011 - Criminal Organization – Commission – transfer or offer to transfer firearm – s. 99(1) / s. 467.12 Count 2 –Sept 1 – Dec. 13, 2011 - Criminal Organization – Commission – possess firearm – s. 92(1) / s. 467.12 Count 3 – Sept 1-Dec. 13, 2011 - Criminal Organization – Commission - trafficking controlled substance- s. 5(1) CDSA / s. 467.12 Count 4 – Sept 1-Dec. 13, 2011 - Criminal Organization – Commission – conspiracy to traffic controlled substance- s. 465(1)(c) / s. 467.12 Count 12 – December 13, 2011 – Possession of Cocaine – s. 4(3) CDSA

PART III: OUTLINE OF REASONS 14 . My reasons for the judgment on the live issues will be set out as follows:

Part IV: Overview of the Case

Part V: Legal Principles

i) The Test for Committal ii) Criminal Organization

Part VI: Analysis of YBK and Individual Defendants YBK is a Criminal Organization and Membership Generally

i) Chermar Gardner

a) Is there evidence that Gardner is a member of the YBK?

b) Criminal Organization Counts-Commission

c) Criminal Organization Counts-Instruct

d) Stand Alone Counts ii) Abshir Abdirashid

a) Is there evidence that Abdirashid is a member of the YBK?

b) Criminal Organization Count-Instruct

c) Criminal Organization Counts-Commission iii) M.A.M.A.

a) Is there evidence that M.A. is a member of the YBK?

b) M.A.’s Call to G.L.

c) Counts 34 and 1

d) Counts 35 and 36

e) Offences Committed for the benefit of or in association with the YBK iv) Kevin Duro

a) Count 6

b) Counts 51 - 56

v) Turell Tomlinson

a) Counts 1 – 4

b) Count 12

PART IV: OVERVIEW OF THE CASE 15 . The “Project Marvel” investigation commenced after shootings in the northwest area of Toronto in May 2011. During the course of the investigation, the police obtained two wiretap authorizations, such that between September 1 and December 14, 2011 they intercepted volumes of telephone conversations and text messages. The intercepts indicate that members and associates of the YBK were involved in illegal drug and firearm trafficking and possession. The YBK identifies as part of the Crip nation and had its roots in the Jane and Finch area of northwest Toronto.

The wiretaps disclosed that drug trafficking and firearm sharing systems were being set up in areas outside of Toronto, notably in Hamilton, Ontario, Calgary and Fort McMurray, Alberta and out to British Columbia. 16 . “Take down day” was December 13, 2011, when several warrants were executed. Upon the arrest of several individuals that day, including some of the defendants before me, the police seized drugs, guns and cell phones containing evidence relied upon in this proceeding. 17 .

The evidence called at this preliminary inquiry was comprised of: (1) documentary and other evidence that was agreed to be sufficiently reliable and trustworthy to be admitted into evidence for the purpose of the preliminary inquiry only, pursuant to s. 540(7) of the Code , including , inter alia, the guilty pleas of four individuals who admit to being members of the YBK, photographs and videos from cell phones seized from co-accused, YouTube videos, firearm and drug reports, property reports, notes and photos relating to surveillance and arrests; (2) intercepted telephone conversations and text messages, most of which were transcribed and translated.

The audio (Wav) files were entered as the original exhibits with the transcripts of same, being aids only, except that the “Tombstone Data” shown on those transcripts went in for its truth; (3) police and civilian viva voce evidence; (4) expert evidence in the form of reports filed and viva voce testimony, for which I qualified Staff Sergeant Babiar as an expert in drug trafficking, including coded and slang language relating to drug trafficking; Officer Michael Press as an expert in firearms, including coded and slang language relating to firearms; and Detective Constable Matt Oliver as an expert in the nature, culture, customs, characteristics, identifiers, symbols, terminology, behaviour and activities of urban street gangs in the Toronto Region. 18 .

Although, at the outset, many of the defendants challenged voice identification in the intercepts, determinations were made throughout the preliminary inquiry, some on consent, that voice identification was proved for the purposes of the preliminary inquiry. 19 . By way of general overview of the issues to be decided in this case: All of the defendants concede that there is some evidence sufficient for committal that the YBK is a criminal organization within the meaning of s. 467.1 of the Criminal Code .

The most significant challenge to committal on behalf of most defendants is that the predicate offences for which there is some evidence, are not shown to have been committed by the particular accused “for the benefit of, at the direction of, or in association with” a criminal organization as required for a prosecution pursuant to s. 467.12 of the Code . The other significant issue, particularly for Duro and Tomlinson, is whether there is sufficient evidence of constructive possession of firearms or drugs.

PART V: LEGAL PRINCIPLES

i) Test for Committal 20 . My function, as a preliminary inquiry judge, is to determine whether there is evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty on each of the charges at issue: U.S.A. v. Sheppard (1976), 30 C.C.C . (2d) 424 (S.C.C.). A concise

summary of the governing principles this Court must apply in making that determination was recently set out by Fuerst, J. in R. v Brown , 2012 ONSC 6565 at paras. 17 - 18 : 17 The Supreme Court of Canada confirmed in R. v. Arcuri, 2001 SCC 54 at para. 21 , that a preliminary inquiry judge must commit an accused to stand trial where there is "admissible evidence which could, if it were believed, result in a conviction". The test is the same whether the evidence is direct or circumstantial.

If there is direct evidence as to every element of the offence charged, the preliminary inquiry judge must commit the accused to stand trial. Where the evidence is circumstantial, however, there is an inferential gap between the evidence and the matter to be established. The judge must therefore weigh the whole of the evidence in the limited sense "of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw": Arcuri , at para 23 .

The court emphasized that the preliminary inquiry judge does not draw factual inferences, or assess credibility, or ask whether he or she would conclude that the accused is guilty. The judge asks only "whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt": Arcuri , at para. 30 . The task of limited weighing is an assessment of "the reasonableness of the inferences to be drawn from the circumstantial evidence": Arcuri , at para. 30 .

In other words, the preliminary inquiry judge "must engage in a limited weighing exercise in order to determine whether a properly instructed jury could reasonably draw the suggested inferences": R. v. Slessor, 2007 ONCA 336 . 18 Where there are competing inferences to be drawn from circumstantial evidence, the preliminary inquiry judge does not choose among them. Only the inferences that favour the Crown are to be considered: R. v. Sazant, 2004 SCC 77 . As long as there is available a reasonable inference in favour of the Crown, then the preliminary inquiry judge must draw it, regardless of its strength: R. v.

Sheardown, 2010 ONSC 4235 . However, "[s]uch inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused depends on an inference or inferences that cannot be reasonably drawn from the evidence then the accused must be discharged as there would be an absence of evidence on an essential element" of the offence: Sheardown , at para. 19 .

ii) Criminal Organization 21. The definition of a criminal organization is set out in s. 467.1(1) of the Criminal Code. In

summary it states that: “criminalorganization" means a group, however organized, that

i) is composed of three or more persons; ii) has as one of its main purposes or main activities iii) the facilitation or commission of one or more serious offences, iv) that if committed, would likely result in the direct or indirect receipt of a material benefit by the group, or any of the personsconstituting the group 22. The Supreme Court of Canada recently held in R. v. Venneri, 2012 SCC 33 , [2012] S.C.J. No. 33 that in order to engagethe exceptional regime of the organized crime provisions of the Criminal Code, the definition of a “criminal organization” requires thatthe group has some form of structure and degree of continuity. The phrase “however organized” in the

section is intended to capture“differently structured criminal organizations”, but is not meant to strip the definition of its requirements of continuity and structure.(paras. 29, 31, 35). 23. The Court emphasized articulated the rationale as follows: 36 Working collectively rather than alone carries with it advantages to criminals who form or join organized groups of like-mindedfelons.

Organized criminal entities thrive and expand their reach by developing specializations and dividing labour accordingly; fosteringtrust and loyalty within the organization; sharing customers, financial resources, and insider knowledge; and, in some circumstances,developing a reputation for violence. A group that operates with even a minimal degree of organization over a period of time is bound tocapitalize on these advantages and acquire a level of sophistication and expertise that poses an enhanced threat to the surroundingcommunity. (para. 36) 24.

Accordingly, rather than looking to a checklist of attributes of a criminal organization to see if the group at issue fits thedefinition, the Court adopted a different approach: 40 It is preferable by far to focus on the goal of the legislation, which is to identify and undermine groups of three or morepersons that pose an elevated threat to society due to the ongoing and organized association of their members. All evidencerelevant to this determination must be considered in applying the definition of "criminal organization" adopted by Parliament.

Groups ofindividuals that operate on an ad hoc basis with little or no organization cannot be said to pose the type of increased risk contemplated bythe regime. 41 Courts must not limit the scope of the provision to the stereotypical model of organized crime -- that is, to the highly sophisticated,hierarchical and monopolistic model. Some criminal entities that do not fit the conventional paradigm of organized crime maynonetheless, on account of their cohesiveness and endurance, pose the type of heightened threat contemplated by the legislative scheme.(paras. 40-41)

Section 467.12

Section 467.12 creates an offence more serious than the “participating” offence set out in s. 467.11. The "commission” offencein s. 467.12 is punishable by a term not exceeding 14 years and requires the Crown to prove that the accused:

i) committed an indictable offence; ii) for the benefit of, at the direction of, or in association with iii) a criminal organization s. 467(2) provides that:

(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that the accused knew the identityof any of the persons who constitute the criminal organization. 26. In R. v. Venneri , 2012 SCC 33 , [2012] S.C.J. No. 33 the Supreme Court clarified the test to determine when a crime incommitted “in association” with a criminal organization, as follows at paras. 53-57: 53 The phrase "in association with" should be interpreted in accordance with its plain meaning and statutory context. It isaccompanied here by the terms "at the direction of" and "for the benefit of".

These phrases are not mutually exclusive. On the contrary,they have a shared purpose and will often overlap in their application. Their common objective is to suppress organized crime. To thisend, they especially target offences that are connected to the activities of criminal organizations and advance their interests. 54 Considered in this light, the phrase "in association with" captures offences that advance, at least to some degree, the interestsof a criminal organization -- even if they are neither directed by the organization nor committed primarily for its benefit.

As noted byMiles Hastie: The phrase "in association with" should capture, like its siblings, an interest of the criminal organization in the predicateoffence. The accused need not carry out the predicate offence exclusively for the criminal organization: the accused may (and, as

an organization member, will usually) entertain other selfish motives. But offences committed for wholly selfish purposes should notgenerate liability. On some level, the offence must only capture actions with and for the criminal organization. [Emphasis added;emphasis in original deleted; footnote omitted.] ("The Separate Offence of Committing a Crime 'In Association with' a Criminal Organization: Gang Symbols and Signs of ConstitutionalProblems" (2010), 14 Can. Crim. L.

Rev. 79, at p. 91) 55 The phrase "in association with" requires a connection between the predicate offence and the organization, as opposed tosimply an association between the accused and the organization: see R. v. Drecic, 2011 ONCA 118, 276 O.A.C. 198, at para. 3. In R.v. Lindsay (2004), (ON SC), 70 O.R. (3d) 131 (S.C.J.), aff'd 2009 ONCA 532, 245 C.C.C. (3d) 301, the [page229]trial judge, correctly in my view, interpreted the phrase "in association with" as follows: The phrase "in association with" is not impermissibly vague.

The phrase is intended to apply to those persons who commit criminaloffences in linkage with a criminal organization, even though they are not formal members of the group. The Oxford English Dictionary(10th ed.) defines the phrase "associate oneself with" to mean, "allow oneself to be connected with or seen to be supportive of". Thephrase "in association with" requires that the accused commit a criminal offence in connection with the criminal organization.

Whetherthe particular connection is sufficient to satisfy the "in association with" requirement will be for a court to determine, based on the factsof the case. [Emphasis added; para. 59.] 56 As mentioned earlier, an offender may commit an offence "in association with" a criminal organization of which the offender is nota member. Membership in an organization, however, remains a relevant factor in determining whether the required nexus between theoffence and the organization has been made out (see Drecic, at para. 3). 57 The Crown must also demonstrate that an accused knowingly dealt with a criminal organization.

The stigma associated with theoffence requires that the accused have a subjective mens rea with respect to his or her association with the organization (see Lindsay(2004 S.C.J.), at para. 64). [Emphasis added] 27. The mens rea requirement approved by the Supreme Court in Venneri was described by Justice Fuerst in R. v. Lindsay, (ON SC), [2004] O.J.

No. 845 as follows at para. 64: [T]here is an implicit requirement that the accused committed the predicate offence with the intent to do so for the benefit of, at thedirection of, or in association with a group he/she knew had the composition of a criminal organization, although the accused need nothave known the identities of those in the group.(para. 64) 28. Further, the Ontario Court of Appeal’s comment on the relevance of proved “membership” as approved by the Supreme Court inVenneri was stated in R. v. Drecic, 2011 ONCA 118 , [2011] O.J.

No. 620 as follows at para. 3: [T]he criminal organization does not have to be ‘directly involved’ in the underlying offence or play a ‘direct and integral role in it’....The following observation made by Justice Nordheimer in R. v. Bodenstein (unreported, July 13, 2010, Ont.SC) is an accuratestatement of the law: In other words, if membership in the organization is part of the reason why the offence is undertaken or if membership in theorganization assists in the commission of the offence, then it can be fairly concluded the offence was undertaken in association with theorganization.

Section 467.13

Section 467.13 contains the most serious of the criminal organization offences. The "instruction” offence carries a potentialsentence of life imprisonment. In order to prove this charge the Crown must prove that the accused:

i) is one of the persons who constituted the criminal organization; ii) knowingly instructed, directly or indirectly, any person to commit an offence; and iii) that it was for the benefit of, at the direction of, or in association with the criminal organization. 30.

Section 467.13(2) provides that:

(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that: (

a) an offence other than the offence under subsection (1) was actually committed; (

b) the accused instructed a particular person to commit an offence; or (

c) the accused knew the identity of all of the persons who constitute the criminal organization. 31. The “instruction” offence specifically requires that the accused be a member of the organization and that s/he gave the instructionknowingly. The ability to give instructions connotes authority, but there is nothing in the

section that requires the Crown to prove thataccused is actually a leader in the organization. Rather, the objective of s. 467.13 is to prevent members of criminal organizations fromusing their ability to give instructions to support the objectives and activities of the criminal organization; R. v. Terezakis, 2007 BCCA384 , [2007] B.C.J. No. 1592 at paras. 73 - 77 per Chiasson and Newbury JJ.A..

Further, as Mackenzie J.A. noted in aconcurring judgment in Terezakis at para. 15, “It is the instruction that is the offence rather than the predicate offence instructed, whichmay be any federal offence and need not be actually committed.” In other words, the focus of the offence in s. 467.13 is on the

instruction. 32. The British Columbia Court of Appeal outlined the essential elements of the offence under s. 467.13 in R. v. Terezakis and,particularly as stated by Chiasson J. A. (joined by Newbury J.A.) at paragraphs 61 - 62: The core elements of the actus reus under s. 467.13 are: being a member of a criminal organization and instructing the commission of anoffence linked to the criminal organization.

The requisite mens rea for a conviction under s. 467.13 is knowledge that the group, of which the accused is part, has a criminal mainpurpose or activity and knowledge that the instructing offence is likely to benefit that group or at the direction of, or in association withthe group....The ingredients are: *membership in the group, however organized; *knowledge that a main purpose or activity of the group is the facilitation or commission of serious crime; *knowledge that the crime likely would result in direct or indirect benefit to the group or any person in the group; *as a member of the group, knowingly instructing another to commit a crime for the benefit of the group, at its direction or inassociation with the group. (Terezakis at paras. 61 - 62; see also paras. 41 and 68)

part VI : Analysis of ybk and individual defendants YBK is a Criminal Organization and Membership Generally 33. All defendants concede that there is some evidence that YBK is a criminal organization in this case. This concession reflects thatthere is an abundance of evidence before this Court that YBK consisted three or more members, and had as one of its main purposes oractivities, the facilitation or commission of serious offences that would likely result in the receipt of a benefit, by the group or by any ofthe persons who constitute the group. The evidence establishing that YBK is a criminal organization is found in (

i) the interceptedcommunications that show the core business of YBK members is drug dealing and firearms sharing; (ii) photographs and videos found inthe cell phones of YBK members and alleged members featuring audacious displays of material wealth associated with the name YBK(i.e. “YBK” spelled out in $100 bills is but one example) together with images of illegal drugs and guns; (iii) a particular series of videosfeaturing many YBK members “play-fighting” in an apartment and concluding with Mahadale, a member, declaring, “This is not amuscle thing. YBK shoots niggers B. We only fist fight our bros.

Everyone else gets shot”. YBK also has a YouTube presence. 34. None of the defendants took issue with the guilty pleas of G.L., S.W., K.D. and Nigel Joseph-Palmer being admitted at thispreliminary inquiry pursuant to s. 540(7) of the Code. In light of this concession, and adopting the decision of Justice Wong in R. vFrancis, [2005] O.J. No. 6375 at para. 26, (admissibility on the basis of 540(7) approved in R. v. Riley, (ON SC),[2009] O.J. No. 1375 at para. 21), I find those transcripts of guilty pleas admissible at this preliminary inquiry as proof of thoseindividuals’ membership in the YBK. 35.

Further, a jury could find, that all of the following defendants were members of the YBK at the relevant time: Chermar Gardner,Abshir Abdirashid, M.A.M.A., Kevin Duro, M.H., Guled Mahadale and Turrell Tomlinson. I make this finding based on the evidenceoutlined in relation to the individual defendants below, and also in light of D.C. Oliver’s considered opinion that each of them is involvedin conversations and/or videos and photographs that are indicative of their membership in the YBK. 36.

I am fully satisfied that a jury could reasonably conclude that the YBK was a group of three or more persons having one of itsmain purposes or activities the facilitation or commission of serious criminal offences which, if committed, would result in the receipt ofmaterial benefits by the group or any of the persons in the group. I am also satisfied that the jury could find that Gardner, Abdirashid,M.A., Duro, M.H., Mahadale and Tomlinson were members of the YBK during the timeframe of the intercepts. I. Chermar Gardner 37.

The counts in issue for Gardner are: Criminal Organization- Commit, Counts 1, 2, 3, 4, 45 and 46; Criminal Organization -Instruct, Counts 17 and 21; and stand alone Counts 9, 15, 28 and 30.

(

A) Criminal Organization Counts against Chermar Gardner The Defence Position 38 . Mr. Cudjoe does not contest that there is sufficient evidence of the predicate offences in Counts 1, alternative to 2, 3, 4, 17, 21, 45 and 46. Rather, he submits that with regard to all of these counts, the Crown has not met the onus with regard to the nexus between the predicate offences and the criminal organization. In other words, the Crown has not established that the offences were committed or instructed to be committed “for the benefit of, at the direction of, or in association with a criminal organization.” 39 .

With regard to Count 21 (Session 559 and 561) Mr. Cudjoe also submits that there is no evidence that Gardner actually “instructed”. Mr. Cudjoe argues that Gardner did not “instruct” G.L. to commit the offence of trafficking cocaine on November 6, 2011. Rather, he simply told G.L. what location to attend at in order to complete a drug sale.

a) Is there evidence that Chermar Gardner is a member of the YBK? 40 . There is an abundance of evidence that Gardner was a member of the YBK and that he knew that the group had a main purpose or activity to facilitate or commit a serious crime. It is not necessary to catalogue every item of evidence that proves this. The cumulative effect of some of the evidence, clearly passes the threshold for a preliminary inquiry. It includes:

i) Gardner’s use of the name or symbol “YBK” numerous times, including displays of his association with “YBK” and financial benefit in photos from S.W.’s cell phone seized on October 2, 1012, showing (

a) each of Gardner, Mahadale and S.W. sitting next to the letters “YBK” spelled out in one hundred dollar bills spread out on the floor. It appears that approximately $8,000.00 is used in the photo; (

b) From the same phone, images of firearms, bullets, hashish and cannabis in paste form. ii) Gardner’s association with other people who constitute the YBK including (

a) multiple intercepts establishing association with S.W. and G.L., who are both established members of the YBK; (

b) Video-recordings from S.W.’s cell phone, with Gardner filming and providing some commentary, capturing “play fighting” in a small apartment amongst Abdirashid, M.H., M.A., S.W., and Mahadale. (A jury could reasonably conclude, based on the video and intercepts, that this is the occasion when Gardner broke Mahadale’s ribs) The finale of these video clips has Guled Mahadale approaching the camera and declaring: “This is not a muscle thing. YBK shoots niggers B. We only fist fight our bros. Everyone else gets shot”; iii) Videos showing (

a) Gardner and S.W. counting large quantities of cash (over $13,000.00 in one video); (

b) Gardner, M.A. and S.W. in an apartment with someone holding up a clear bag that appears to contain a white powdery substance and Gardner holding up keys saying “This is how I get into my condo”, counting large sums of cash, then saying, “I make my bitch sell her pussy here cuz, this is what we do”; (

c) Gardner and S.W. entering a washroom in which there appears to be a digital scale and tied plastic containing white powder and Gardner saying, “We selling bitches, we really do this”, then S.W. counting a large amount of cash into the camera. iv) Gardner’s discussion with Tomlinson and Osemwengie in Session 2005 on October 2, 2011 (when Gardner is in British Columbia) where they discuss territory, robberies and participation of YBK members in drug and firearm trafficking, including:

a) Gardner speaks of how he wants to get money to get all the dogs shining, “Where everybody gets their ones, everybody’s shining, dog”. (Line 1256-1263) and how the Young Bucks are getting “sweetied up” (Press gave evidence that this is coded language for “armed with guns”) when he says “Don’t worry the young bucks are on it B, young bucks and my nigger, ah...fresh out. (Sniffles) I’m telling you yow, *the men* need all those young bucks sweetied up. If you guys don’t have them sweetied up there’s no point B.”(Line 2136-2140).

b) When Osemwengie comes on the line (from the Hood) and says that he is broke, Gardner tells him he has to start robbing people. When Gardner asks Osemwengie about the young bucks, Osemwengie informs him that they are all still good, but “they’re waiting for you bro’ to tell them yow...give them the go ahead bro’”. Gardner responds, “All my niggers, PTG shotty..they’re trained to go man.

I don’t know what you guys are doing, but these guys are hungry.” Gardner goes on to say that the young guys look up to them and it is their time, but they have to feed the younger dogs before they turn on them.(Lines 1478-1838). Gardner and Tomlinson continue to talk about their “camp” and the recruitment of new members. (Lines 3300-4500). During this talk about bringing young kids they knew in

their past back to their “camp” Gardner notes that he brought Maury (S.W.) “back around”. (Lines 4300-4309)

c) Gardner talks about being out west, building “programs”. He tells Tomlinson that he is “just building a program right now, once I build this program and leave it, its a rap. I’m coming back and build that program back. Just make sure *the men* have money to fuck with and programs to fuck with...Cause when I come back, I’m gonna try to be on a program thing again, you know, have everybody...checking in and shit”( Lines 2775-2791).

He talks about Cheens (allegedly Austin) running a program and that he will make him continue to run it for a year or two and “soon he’s gonna draw for us”. (Lines 4626-4671) Gardner also talks about how his “first nip was a rack” (drug deal was for $1,000) and how H (probably M.H.) is out in Fort McMurray now and is “racking up like twenty -thirty racks”. Gardner talks about how when he builds out a city, it will be his city and then, “the dogs could even come through like a...Dot shift” (lines 5002 - 5057).

He also talks about linking up and meeting up with the dogs out West, although H (M.H.), PI (Abdirashid), JB (Kamal Hassan) and L. (M.A.) are variously several hours away from him (Lines 5065- 5129).

d) Gardner states his philosophy about gang life: “Look at Buck...it doesn’t matter where you’re from ...its where you are at. ...are you loyal? Are you worshipping the name? Are you riding?..Are you being loyal to the squad?” (Lines 3876-3896)

e) Gardner says he doesn’t want to come back to Toronto until he can rack up enough (make enough money) to give his homeys some untoe (drugs), piff or fucking sweeties (guns) or something they could continue to hold, for him to homage (Lines 4796 - 4851).

v) Gardner’s repeated references throughout the timeframe of the intercepts to drug trafficking “programs” in different cities involving different members and associates including those found in Sessions 2005, 6514, 2181, 4014, 66. vi) The individual drug and gun counts which have been conceded and for which I have found enough evidence to commit for trial, well establish that Gardner was committing serious criminal offences. 41 . The totality of the evidence raises a compelling inference that Gardner was a well integrated member of the YBK, a criminal organization.

b) Criminal Organization - Commission - Counts 1, 2, 3, 4, 45 and 46: Is there evidence Gardner was committing these offences for the benefit of, at the direction of, or in association with the YBK? 42 . Mr.

Cudjoe does not dispute that there is some evidence that Gardner committed the predicate offences of producing cocaine and possessing cocaine for the purpose of trafficking on December 7, 2011 (Counts 45 and 46) as well as the predicate offences of transferring or offering to transfer a firearm, possessing a firearm, trafficking in a controlled substance and conspiracy to traffic in a controlled substance (Counts 1 - 4).

The issue is whether there is sufficient evidence linking the predicate offences to the YBK such that a jury could find that Gardner committed the offences for the benefit of, at the direction of or in association with the YBK. 43 . The criminal activity of the YBK members most prevalent during the timeframe of the wiretaps, as disclosed in the evidence at this preliminary inquiry is drug and firearm trafficking. The experts, particularly Staff Sergeant Babiar and Detective Constable Oliver, gave evidence that drug trafficking and firearms are inextricably linked.

Not only are weapons used to protect against robbery in drug deals, they are part of the modus operandi of drug dealing and are used to build the reputation of the group and protect its turf. As Babiar says “Carrying a firearm, association or membership in a gang may carry a certain amount of currency on the street”. D.C. Oliver testified that the control of a gang’s turf is very important in protecting and controlling their drug business within that turf.

Gangs control their turf by instilling fear, through intimidation by identifying as a gang and by that gang showing strength through violence, displays of wealth and loyalty. Gang members protect themselves and the interests of the gang by sharing guns and drugs, often in stash spots that are within the turf. 44 . Based on the totality of the evidence admissible against Gardner, a reasonable jury could easily conclude that all of the predicate offences were committed “in association with” the YBK.

All of the predicate offences are connected to the activities of the YBK and advance its interests, at least to some degree within the meaning of Venneri . Further, the offences benefited the group and persons constituting the group. On all of the evidence here, it is clear that by possessing, transferring or offering to transfer firearms, Gardner, as a member of the YBK, was “advancing the interests of the YBK” by, at a minimum, protecting fellow members, himself and the group’s drug business. Similarly, by trafficking cocaine and other controlled substances, and sharing customers with members of the YBK, the

members were rewarded. There is no question that Gardner’s actions were connected to the YBK, as he was highly integrated in the gang. Membership in the gang assisted in the commission of the offences. A jury could find Gardner, and the members he dealt with in relation to the firearms and drugs, had as their goals, support for each other in the business of trafficking drugs, to protect their business and each other under the auspices of the YBK.

There are clearly reasonable inferences to be drawn from the whole of the evidence that Gardner had knowledge that the group he associated with had as a main criminal purpose the facilitation or commission of the offences of drug and firearm trafficking and knowledge that this criminal activity would likely result in the direct or indirect benefit to the group or any person in the group. 45 .

In addition to the evidence outlined in paragraph 40(i)-(iii) above, the evidence going directly to the production and possession counts (45 and 46) is a powerful illustration of Gardner’s display of wealth together with another member of the YBK.

This includes the “Cooking Dance” videos “Hardaz” in which Gardner and S.W. audaciously count large sums of money while cooking what appears to be crack cocaine; the series of photographs dated December 7, 2011 from S.W.’s cell phone, showing S.W. with large amounts of cash and what appears to be drugs and trafficking paraphernalia spread out on the table along with a hat and chain Gardner was wearing in the cooking dance video; then the seizure of items found in the apartment in which Gardner was arrested on December 13, 2011, including a wallet that looks strikingly similar to the one shown in the December 7, 2011 photos and a quantity of cocaine.

Additionally, the photos dated August 22, 2011, in which each of Gardner, S.W. and Mahadale appear next to approximately $8,000.00 with “YBK” spelled out in $100.00 bills, show the association and link to the criminal organization. Not only did Gardner commit the offences in association with the YBK, the evidence reveals that members of the group, in fact, received financial benefits from the criminal activity.

c) Criminal Organization - Instruct - Counts 17 and 21: Is there evidence that Gardner instructed the offences in association with or for the benefit of the YBK? Count 17 46 . Count 17, (like Counts 16 and 18, which have been conceded), is based on a series of intercepts on November 4 and 5, 2011 (Sessions186, 316, 317, 319, 323, 324, 326, 342, 437, 581, and 596). I accept as reasonable, Staff Sergeant Babiar’s evidence with regard to the drug references in these calls. At 8:57 p.m. Gardner talks to S.W. who tells him his “food” (crack) is gone.

Gardner tells S.W. to go back to the stash and directs him to “take out like three grams out of the good bag” and continues with more details. Gardner tells S.W. that he is sending them a lot of deals and wants to know if S.W. is doing them. S.W. answers that he is “crushing a lot of nips” (doing a lot of deals). 47 . At 6:22 a.m. on November 5, 2011, Gardner receives a call from a female who asks Gardner to bring her a hundred dollars of crack cocaine. When she asks if he is too tired, he says that he is going to call his buddy and do it right now. At 6:30 a.m.

Gardner receives another call from a male who wants 1/8 oz of cocaine. At 6:32 a.m. Gardner calls S.W. and S.W. gives Gardner details of deals he has been working on. Gardner tells S.W. that he has two deals lined up and they discuss how S.W. does not have enough supply. Gardner directs S.W. to bag up some crack. At 6:38 a.m. Gardner calls S.W. and directs him to take the drugs to the customers. At 6:54 a.m. Gardner calls S.W. again, asking if he is close to his destination. When S.W. arrives, the customer is upset and says to tell Gardner that next time he needs to let her know that someone else is coming.

S.W. tells Gardner that he received the $100.00 from the customer and confirms that everything is bless. At 1:37 p.m. on November 5, 2011, S.W. tells Gardner that he wants to go to Toronto because it is boring over here. Gardner responds that he is on “the trap thing” (phone used for deals) and there is more food (crack) in the SB (storage box) if S.W. needs it. Gardner says why you say its boring? Why you leaving? You don’t wanna make money, kid? Gardner then directs S.W. to get more drug supply in an SB (storage box), which S.W. cannot locate. 48 .

This series of calls clearly establishes some evidence that Gardner is knowingly “instructing”, in the sense of “directing” or “commanding” S.W. to carry out his detailed instructions on how to act as Gardner’s agent in the drug deals. He even goes so far as to supervise S.W. by remaining on the phone while a deal is being done and demanding updates as the situation develops. Mr. Cudjoe, on behalf of Gardner, fairly concedes that there is some evidence of the “instructing” aspect of this count. 49 .

I also find that there is evidence upon which a jury could find that the instruction was given to commit the crime for the benefit of or in association with the YBK for the same reasons outlined above. Further, there is a clear financial benefit from sharing customers and it is open to the jury to find that this was part of one of the “programs” being run by Gardner as a YBK member. Gardner advises that he has more drugs at SK’s place (allegedly Wallace) and directs S.W. to get more drug supply from an “S-B” (storage box).

S.W. is collecting money on Gardner’s behalf and, clearly there is a financial benefit to Gardner, at least, as a person who constitutes the group.

Count 21: 50. Unlike the detailed instructions given in the calls grounding count 17, this count is based on two extremely brief calls to G.L.(Sessions 559 and 561). Mr. Cujoe concedes that there is sufficient evidence for Trafficking and Conspiracy to Traffic cocaine (counts19 and 20) as the predicate offences, but argues that Gardner is not “instructing” G.L. to commit an offence and that there is notsufficient evidence that it is for benefit of or in association with a criminal organization. 51. The evidence is that on November 6, 2011, at 1:18 a.m.

Gardner calls G.L. and leaves a message saying “I’m gonna call you backright now, I might have a forty whop.*okay?* (forty dollar deal for crack cocaine). Two minutes later Gardner talks to G.L. and thewhole conversation is as follows: G.L.: Yow. GARDNER: Yow, go to 1801 and par in the trap. There’s...yow there is a twenty whop... G.L.: Yeah GARDNER: ...and then after that I’m supposed to call this catty and she’s supposed to come for like a forty. G.L.: All right. GARDNER: So she’s gonna come to the 1801.

But I don’t know she’s not answering her phone but the twenty is there; but I’m gonnasend up the forty. *Okay?* G.L.: Yeah GARDNER: They might be both there by the time you’re there. G.L.: All right. GARDNER: Umm. 52. The allegation of “instruct” appears to be premised on Gardner’s words, “Yow, go to 1801 and par in the trap”. Mr. Cudjoeargues that this is not an instruction, it is giving directions to a particular location. 53.

There is no question that the jury can find that Gardner is an integral part of the YBK, that he runs drug programs, participates inco-operative drug dealing with members of the YBK and even that he is one of the leaders of the YBK. However, like Justice Pringle inR. v. Willis, 2007 ONCJ 605 , [2007] O.J. No. 5691 at para. 118, I find that it would be unreasonable to find that everyarrangement made by Gardner to facilitate or complete a drug deal “is converted to an ‘instruction’ within the meaning of s. 467.13simply by virtue of his position in the organization.

In other words, an arrangement or suggestion cannot be converted into an“instruction” simply because of the status of the accused.” 54. In my view, when deciding what “instructs” means for the purpose of s. 467.13, the legislative intent of the

section must be bornein mind. A conviction under s. 467.13 exposes the accused to life imprisonment. As Chiasson J.A. noted in Terezakis at para. 80: Parliament imposed escalating maximum sentences. It considered that committing a crime to benefit a criminal organization is moreserious than enhancing the ability of the organization to commit crime and that it is very serious for a member of a criminal organizationto instruct another to commit an offence for the benefit of, at the direction of, or in association with the organization. 55.

As Justice Pringle noted in Willis, the Oxford Dictionary defines “instruct” as: “to direct” or “to command”. The word “instruct”connotes the exercise of authority, even if specific authority within the criminal organization need not be proved; Willis at para. 117; Terezakis at paras. 75 and 77. 56. Taking the Crown’s case at its highest, a jury could not reasonably find that Gardner was directing or commanding G.L. to do adrug deal. Rather, Gardner is telling G.L. which location to go to and making arrangements to complete the deal. The evidence on this

count does not allow for a reasonable inference that Gardner is exercising any kind of authority over G.L. or that he is commanding him in the way he commanded S.W. in Count 17. Gardner will not be ordered to stand trial on Count 21 for the offence of instruction. 57 . Based on the same evidence of this transaction, Gardner can, however, be committed to stand trial for the offence of committing the indictable offence of either trafficking in cocaine or conspiring to traffic in cocaine for the benefit of, at the direction of, or in association with a criminal organization contrary to s. 467.12.

Like the situation with S.W. above, there is evidence that both Gardner and G.L. are members of the YBK and clear financial benefits ensue to them and other benefits are felt by the larger group. There will be a committal on to stand trial on the offence pursuant to s. 467.12, although this is duplicative of Counts 3 and 4.

d) S tand Alone Counts Count 9- October 16, 2011 - Possess Firearm with Austin 58 . This charge is based on a conversation between Gardner and Austin on October 16, 2011 at approximately 3:45 p.m. (Session 2423). Mr. Cudjoe submits that, although Officer Press opined that depending on context, the word “one” can refer to a firearm, Gardner’s use of the word “ones” in Session 2423 does not lead to a reasonable inference that he is in possession of a firearm. 59 . I have listened to this call several times. Austin says he is trying to come to meet Gardner and others but he is not mobile.

Gardner is insistent that Austin bring a “whip” (expert evidence supports that this means a vehicle). Austin responds that he is trying to get a whip, but he does have a “girl” (Officer Press opined that this is likely a reference to a firearm given the subsequent references in the same call to calibres of firearms). I accept that this reference to a “girl”, and subsequent references in the same call, constitute some evidence that Austin possesses a firearm .

Austin then asks Gardner where he is and confirms that he is trying to get there, at which point Gardner tells him to make sure he has a whip (vehicle) because “we don’t have no whips”. When Austin says he is trying to get a vehicle right now, Gardner comments “we have our ones but no whips and like...bro just like...like this is ridiculous, all the men. (unintelligible).” Austin keeps saying he is trying to get a whip and Gardner tells him again to make sure he comes with a whip. Gardner then says “I’m just out here. Two up situation (unintelligible) two up.

Or do you just have one?” , to which Austin replies “One Dog” - and goes on to explain that four are gone basically, “we had to get rid of them dog, out here is hot bro.” Gardner asks what are you perking, to which Austin responds, that he has his same blue-ers. Officer Press testified that this could be a reference to a firearm and the expression relates to a refinished gun. Austin then goes on to say that “ They have fucking four” and goes on to describe what Officer Press says are guns according to calibre. The conversation then goes back to Austin not knowing where a vehicle is and problems with vehicles.

It ends with Austin saying that he is coming down right now, and he is trying to get “a whip right now with SB”. Expert evidence was called that SB could refer to a storage box used to conceal drugs or guns in a vehicle. 60 . In my view, even if the word “one” is used by Gardner to mean a firearm, a reasonable inference cannot be drawn that he is in actual possession of a firearm from this. A reasonable

interpretation is that he is declaring at line 121, after Austin tells him he has a gun, that it is ridiculous that they have guns, but no vehicles. His question to Austin immediately afterwards, saying “two up situation” but asking for clarification, “or do you just have one?” confirms that it is Austin who has actual possession of one gun. 61 . I find that it would not be reasonable to infer that Gardner had actual possession of a firearm based on this call.

Further, it cannot be reasonably inferred that he had constructive or joint possession of the gun in Austin’ s possession, which would require a measure of control on the part of Gardner. Instead, this call amounts to Gardner asking Austin, (an individual who is not proved to be a YBK member before me), about guns and directing Austin to find a vehicle. There is no evidence before this court that any meeting between Gardner and Austin actually took place.

There is no evidence upon which a jury could conclude that Gardner had power or authority over a gun that Austin had in his possession, whether exercised or not. 62 . I have taken into account that this call takes place the day after Rookwood was murdered and that there is some evidence that members of the YBK were trying to “arm up” and expressed needs to be armed, including Gardner who has just arrived from British Columbia and texted M.H. that he is going into the Hood without a “sweetie”(gun). 63 . Gardner will be discharged on Count 9. Count 15 - November 3- 5,2011 - Possession of firearm with M.H. 64 .

This charge is based on a conversation between Gardner and M.H. on November 5, 2011(Session 367), with Session 27 as support. On November 3, 2011 Gardner tells an unknown male about associates who got arrested and how it could have been worse

because usually “we’re in that house like mad straps, everything like ten..ten, eight straps”. Officer Press’s evidence is that “straps” is acommon coded term for firearms. Gardner says that the man was lucky because he could have gone to jail for years. Starting at line 638,Gardner also tells the male about how his “real good homey died” at the house Gardner would have been at if he hadn’t missed his flight(from British Columbia). Gardner tells the male that “my niggers” were present and the shooters used an A-K-47.

Officer Press testifiedthat this is a technical reference to a specific model/design of firearm. 65. Two days later, (Session 367) Gardner calls M.H. and asks him about the location of various guns. I have listened to and reviewedthis call several times to assess Mr. Cudjoe’s submission that Gardner and M.H. are talking about one gun only and neither of them knowwhere that gun is located. Given that coded language is being used, it is not a straight forward matter. However, the intonation of thesentences and the use of different terms supports a reasonable

interpretation that Gardner is referring to at least two, if not three, differentguns in this call: a “deuce deuce” (coded language for a .22 calibre firearm); a “two fif” (coded term for a .25 calibre firearm) andpossibly two of these .25 calibre guns; and a “pan” or a “pound” (I agree with Officer Press that this term appears to be used as areference to a specific firearm that cannot be located and one about which M.H. and Gardner surmise that Duro has more information).

M.H. tells Gardner that one gun is in Gardner’s little bag and that Weeji (Abdirashid’s brother) has Gardner’s “one” (a jury could findthat this is a firearm). Althought M.H. initially says he will not ride dirty (coded language for illegally transporting a firearm), he doestell Gardner (line 215) that he is going to figure something out, implying that he will find a way to deliver one of the guns to Gardner. One reasonable

interpretation of the call, the benefit of which the Crown is entitled to at this stage, is that there is at least one gun overwhich M.H. and Gardner have control and that M.H. will arrange delivery of it to Gardner. 66. I find that a jury could reasonably find that Gardner had the requisite knowledge and control for constructive possession of afirearm, being a gun in the bag or a gun being held by Abdirashid’s brother, Weegi; R.v. Morelli, 2010 SCC 8 , [2010] S.C.J.No. 8 at para. 17. As the Ontario Court of Appeal reminded us in R. v. Savory, (ON CA), [1996] O.J.

No. 3811,“Control for the purpose of constructive possession does not require that the accused did in fact exercise control over the object inquestion. ...control means the power or authority over the object in question.,,,[control means that the accused] was able to exercise adirecting, guiding or restraining power” over the object. (at paras. 7 and 8).

Gardner’s direction to M.H. to arrange delivery of the gun inthe bag, and M.H.’s acknowledgment that he will “figure out somethin’ right now”, particularly since they are both gang members,constitutes some evidence of Gardner’s knowledge and control over a firearm. 67. Gardner will be committed to stand trial on count 15. Count 28 -November 22, 2011 - Possession of Firearm 68.

This count is based on a conversation on November 22, 2011 (Session 4144) in which Gardner is asking Wallace for ammunition.Officer Press testified that the reference to “teeth” in this call is a common coded term for ammunition and I accept that evidence. Mr.Cudjoe argues that although Gardner is asking Wallace if he has “teeth for the small one”, it is only speculation to conclude that Gardnerhas a firearm in his possession. This is so, especially since Gardner starting at line 140 says that “I don’t have nothin’... I’m waiting onbro.

Bro said he’s gonna...’cause I just gave him the last smaller (translated into ‘small one’). You know, I got both of them? ..Gave it ...Igave it to him. He said he’s supposed to swap me a three.” 69. It is possible for the jury to interpret the call in manner suggested by Mr. Cudjoe, i.e., that Gardner is saying that he doesn’t havea gun. However, it is also possible for the jury to reasonably conclude that when Gardner says that he “doesn’t have anything” he meansthat he does not have any ammunition that fits the gun that is in his possession. The reasonableness of this

interpretation is supported byGardner’s words beginning at line 163. When he explains about “having nothing” he says, “That’s what I’m saying...I need teeth for thatone there”. Wallace says “And we have the small one twerking with no...no fucking...” Gardner responds “N...yeah. Nothing. That’s theonly thing I could perk in my S-bizzle. Nothing else fits. That’s what I’m saying...Ah, ah, probably like a small ones will fit. Get me?” 70. It will be for the jury to decide exactly how this call will be interpreted.

However, there is a reasonable inference available andthe jury could find that Gardner was in possession of a firearm on November 22, 2011. There will be a committal to stand trial on thiscount. Count 30- November 25, 2011 - Trafficking Cocaine 71. This charge is based on Sessions 4929, 4997 and 4998. At 12:43 a.m. on November 25, 2011, a male who self identifies as ‘Trev’calls Gardner’s telephone line (289) 775-0798 (determined during the voice identification voir dire to be Gardner’s line under the nameof Q.T.). T. asks Gardner if he can help him out with another “two”.

Gardner says he can and T. tells him that he is on his way. At 5:17a.m. T. calls Gardner’s line (289) 775-0798 again at which time G.L. answers the phone. T. says “Hey Q, it’s T.”. G.L. responds saying

“What’s up? ..It’s Q’s little bro’”. T. then asks if G.L. can do him “a two”. Staff Sergeant Babiar’s opinion that they are talking abouttwo ounces of cocaine is not disputed. Mr. Cudjoe, however, submits that it would be unreasonable to find Gardner is trafficking basedon a deal that G.L. is completing four and a half hours later. 72. I find that there is some evidence upon which a jury could find Gardner was at least a party to the trafficking based upon thecumulative effect of the following evidence:

i) T. is calling Gardner’s telephone number and Gardner, in fact, answers and acknowledges an intended drug transaction four and a halfhours earlier; ii) G.L. identifies himself as Q’s little brother. There is evidence that one of Gardner’s alias is Q.T..

By identifying himself as Q’s littlebrother, it is open to the jury to infer that G.L. is communicating that he is working with Gardner and that he will provide T. with thedrug; iii) G.L. tells T. to come to the side staircase at 221 Melvin in Hamilton, which is the same address Gardner gives his direct drugcustomers on November 27 and 28 (telling them to meet him in the stairwell) from the same telephone line; iv) Unit #1801 at 221 Melvin is the apartment Gardner allows other customers to buzz in other drug deals he is conducting in November2011(i.e. Sessions 6270, 6239, 6189, 6167).

In an another drug deal, count 21, in which G.L. and Gardner participate on November 6,2011 (Sessions 559, 561), Gardner tells G.L. to go to “1801” where a female customer is expected;

v) G.L., in his guilty plea, admits to being a member of the YBK; and vi) Staff Sgt. Babiar and D.C. Oliver gave evidence that “trap phones” --that is a phone used for drug deals-- are often shared amongstgang members. Customer contact lists are built on one particular phone for reliable customer contact and then the phone is shared withother gang members so that customers are not lost by another member’s unavailability. 73. Gardner will be committed to stand trial on Count 30. II) Abshir Abdirashid 74. Abdirsahid concedes that there is sufficient evidence to commit on charges of

(1) Conspiracy to traffic cocaine (from Oct. 14 toNov. 3, 2011) - Count 10;

(2) Conspiracy to traffic a firearm (Oct. 21 - 22, 2011) - Count 11; and

(3) Conspiracy to possess a firearm(Oct. 21- 22, 2011) -Count 12.

The remaining charges to be dealt with are: Count 1- Between September 1 to December 13, 2011, committed the indictable offence of transferring or offering to transfer a firearmknowing they were not authorized to do so contrary to s. 99(1), for the benefit of, at the direction or in association with a criminalorganization contrary to s. 467.12: Added Count -that he, being one of the persons constituting a criminal organization, did on or about the 21st day of October, 2011,knowingly directly or indirectly instruct a person to commit the indictable offence of transferring or offering to transfer a firearmknowing that they were not authorized to do so contrary to s. 99(1) for the benefit of, at the direction of, or in association with a criminalorganization contrary to s. 467.13.

Count 2 - Between September 1 to December 13, 2011, committed the indictable offence of conspiracy to possess a firearm contrary to s.465(1)(c), for the benefit of, at the direction or in association with a criminal organization contrary to s. 467.12 75. Although the defence attempted to argue to that the

interpretation of firearm trafficking provisions must be distinguished fromdrug trafficking law, I have been given no reason whatsoever to depart from the approach taken by Belobaba J. in R. v. Ralph, 2011ONSC 3558 at paras. 39 - 50. In that case Belobaba J., held that “trafficking drugs by offer” as defined in R. v. Murdock, (ON CA), [2003] O.J. No. 2470 (C.A.), applies to the offence of “offering to transfer a firearm” pursuant to s. 99(1). 76.

I find that sessions 1542, 1548, 1550, 1674, 1682 and 1495 constitute sufficient evidence that Abdirasid was transferring oroffering to transfer a firearm to another person by doing far more than providing “incidental assistance of the sale through rendering aidto the purchaser” as recognized by the majority in Greyeyes, (SCC), [1997] 2 S.C.R. 825 . There is evidence uponwhich a jury could find that Abdirashid made a concerted effort to effect the transfer of one or more firearms to one or more persons. Based on the analysis in R. v. Leclerc, (QC CQ), [2001] J.Q. 426 at paras. 128-143, I agree with the Crown

submission that the series of calls establishes that there is some evidence of Abdirashid “providing, giving, lending, transporting, and/or delivery” or offering to do any of these things by Abdirashid taking steps for a person other than himself to take possession of the firearm. A

summary of these intercepted calls is as follows:

i) First, on October 21 at 1:39 (Session 1495) Abdirashid directs G.L. to have a firearm ready for J.B. who will have the money to purchase it when he gets to Ontario. ii) Then, later on October 21 at 5:24 p.m (Session 1542) Abdirashid calls A.Y. and tells him that his “homey” Ello just dropped out not too long ago (referring to the Rookwood murder on October 15). He says that J.B. (Hassan) is on his way to Toronto and he wants “a one” (gun) there . When A.Y. says that he is not trying to let go o’ none now, Abdirashid says that his brother in law has a “25” (25 calibre gun) ready right now .

Abdirashid then says that he needs his “habid” (gun), that he is trying not to be “naked out there” (unarmed). Officer Press confirmed that the references to “one, habid, 25 , 9, baby nine” are gun references in this call. He then says that J.B. left on the bus today, implying that he should be (in Toronto) by Sunday. Abdirashid says he will fly out after he completes his court and probation officer commitments. Abdirashid refers to S-man being “naked out there” (line 244).

When A.Y. says that he is sure that there is a “baby Nine” (compact concealable or smaller frame 9 mm calibre firearm) lying around, Abdirashid says that is perfect, how much for that right now? A.Y. says that he will ask how much he is letting it go for, he won’t take a cut as a middle man, and will get back to Abdirashid. iii) October 21 at 6:57 p.m. (Session 1548) Abdirashid calls A.Y. again and says that Bucky (Buckeridge) is with his brother in law and that it is an ASAP thing. Abdirashid says: “my boy is mobile..SB..everything’s grooving. You know?

This is the only day he can get it you know? (Expert evidence included that “SB” could refer to a storage box used to conceal guns and drugs in a motor vehicle). A.Y. tells Abdirashid to tell him to meet him in his Hood. A few minutes later on Oct. 21 at 7:01 p.m. (Session 1550)Abidrashid calls back again and A.Y. tells Abdirashid that tonight is not a good night because they are going to run into issues with “the pigs” (police) and that Finch Street is hot. He says the vibe is not good, tomorrow morning is best. A.Y. confirms that the deal is still good, but it is just a timing thing.

Abdirashid says he will give him his brother-in-law, S-man’s number. The next day, October 22 at 4:58 p.m. (Session 1674) A.Y. tells Abdirashid that Abdirashid’s family did not connect with him yet. He said he was going to call around 5:00. Abdirashid notes that it is 3:00 his time (and 5:00 with you guys) and that he would find his family and see what is going on. iv) At 6:39 p.m. the same day, October 22, (Session 1682) A.Y. tells Abdirashid that A.Y.’s associate tried to up the price of the gun to “two two” ($2,200.00).

A.Y. says he is not going to disrespect his associate over a gun and Abdirashid agrees and notes that “ fam is like a sticky situation. S-man has been in the Dot for a couple of days. The man said he want a “one” Bam..Man had like three Bam. My boy dropped out, and everything is gone.” A reasonable

interpretation of this is that the guns are gone since Rookwood’s murder and the gun to be purchased is important. When A.Y. acknowledges this and says, but, still, he is not going to make the man pay two- two, Abdirashid says that is the proper price of a baby nine. S-man has fifteen ($1,500.00) right now and Abdirashid will put seven bills ($700.00) on it because “That’s my bro, that my fam”. When A.Y. asks if he should call his associate back, Abdirashid says “my homey, S-man, has fifteen right now” and “I can make seven bills tonight..just tell your homey to hold it down for tomorrow morning. ASAP I’m gonna send my boy seven bills.”

v) In this same call Session 1682, Abdirashid and A.Y. talk about OLOW and Abdirashid notes that he does not switch on his homeys and that OLOW is his bro.. Abdirashid also talks about how he is “going back to the Dot” (Toronto) and will fly out after his court. He says S is coming back out here (to Calgary) and they are taking shifts. “So bam, I want..a one there waiting for me...I’ll put up dollars, you know, it’s all a team effort you understand me cuz?” (Line 324) When A.Y. says he is going to come check out Abdirashid’s crib, Abdirashid says everyone (except OLOW and he) are in the Dot (Toronto).

Abdirashid talks about how L. (M.A.) is out there together with your bro and “it is always a team effort thing” (Line 419). vi) Abdirashid says he has been “grooving” since he got out there in the C-town (Calgary). He bought a car and crashed it within one week. He says that he just “ fucks with certain people that make dollars. I know H make dollars, J.B. has a little program perking, I have my program, everybody ... at the end of the day we’re all family. I’ll help you to the full. Gully too he’s the biggest waste youth bro..” (Lines 492-500).

Abdirashid goes on to talk about how Dog (Gardner), L. (M.A.) and Gully (Mahadale) went to B.C. “doing their B.C. thing”, J.B.’s in the Leth. Abdirashid talks about how H dropped Gully on him and went to the Mac (Fort McMurray).

Abdirashid talks about how his one bedroom house was destroyed when the six guys were there (supported by video footage of “play fighting”) and how his landlord is freaking on him. vii) In this same call, Session 1682, Abdirashid talks about how when he comes down, he will take S-man’s rentals including “one” (gun) in SB (storage box). (Lines 753-767) A.Y. replies that TAVIS is crazy here and that all they are looking for are “ones” (guns) and says “They’ll draw you down...if you’re speeding, they don’t even give you a ticket. They draw you down and look for a one.”(Lines 774-784).

Abdirashid tells A.Y. about how he left the Dot (Toronto) four months ago and the police are still bugging him in Calgary. (Lines 1006-1142) viii) Abdirashid says he is going to call S right now and he’s going to send the dollars. He tells A.Y. that he (

S) said that he had fifteen. That Abdirashid told him ‘just bring twenty five’ and that it better be the top of the line or two racks. (Lines 1199-1220) Abdirashid confirms that he is good with “youths in the crib working for him” and that OLOW is a goof but a “little good youth”.(Lines 1385-1404). Abdirashid finishes the conversation by telling A.Y. to try to work his associate down to two but if not, say he can give him two racks tomorrow and score him two bills. Abdirashid says he will get back to A.Y. tomorrow by “ping” because the phone thing is fire. (Lines 1468-1492) The Defence Position 77 .

The argument on Counts 1, 2 and the added count of instructing focuses on whether there is sufficient evidence to find the following:

a) that Abdirashid was a member of the YBK during the relevant time-period ;

b) that he “instructed” a person to commit an offence, including an argument that the Crown must prove that G.L. was not authorized to receive a firearm and that Abdirashid had knowledge of this; and

c) that the trafficking, conspiracy to possess, and instruction were for the benefit of, at the direction of, or in association with a criminal organization. (

a) Is there Evidence that Abdirashid is a member of the YBK? 78 . Intercepts as early as September 27, 2011 (Session 56) show that Abdirashid is highly associated with other members and associates of YBK and that he has indepth knowledge of and control over various criminal activities engaged in by “the team”.

The intercepts, taken together, including Sessions 56, 1280, 1542, 1548, 1550,1682, 1495, 1952, 2322, 2181, 77; the photographs of Abdirashid found in S.W.’s and Kevin Duro’s cell phones, the “playfighting” video footage of YBK members in what a reasonable jury could conclude on all of the evidence was Abdirashid’s apartment, which places him together with Gardner, Mahadale, M.A. and S.W. - - provide overwhelming evidence that Abdirashid is a member of the YBK.

By his own admissions on the intercepts, Abdirashid operated primarily out of Calgary during the time of the wiretaps and was trafficking illegal drugs and firearms. Abdirashid’s direct participation in the calls demonstrate his intimate knowledge of the YBK’s programs and the people who were operating them. He is intertwined with a network of individuals, not just as a gossip, but as a participating member of actual criminal dealings. (

b) The Instruct Count 79 . The basis for this count is an intercept on October 21, 2011 at 1:39 EDT (Session 1495) where the call can reasonably be interpreted as Abdirashid directing G.L. to obtain a firearm for “J.B.” for when he gets to Toronto. Abdirashid tells G.L. to “have “one” ready for him (referring to “J.B”) and he’s gonna have the money (for the gun), everything ready”.(Lines 87-105) 80 . Mr. Sewrattan’s first argument is that there is no evidence that Abdirashid had knowledge that G.L. was not authorized to transfer a gun as required by s. 99(1).

The parties agree that G.L., in fact, was not authorized because he was under 18 years old the time. However, the defence still argues that there is no evidence that Abdirashid had any knowledge that G.L. was a youth or that he was not authorized to transfer a firearm. 81 . Assuming that the Crown does have to establish that the accused had knowledge that person he instructed to transfer a firearm was not authorized to do so, I find that knowledge can be inferred from all of the evidence in this case, whether because of G.L.’s age or otherwise.

In particular, in session 1495, G.L. introduces the topic by speaking in coded language: “you were telling me ..how you’re gonna gimme some change to buy habid (translation is “one” which is coded language for a gun) for you.” Abdirashid continues the conversation using coded language for guns, individuals and transactions. Abdirashid knows that G.L. is a member of the YBK and Abdirashid is obtaining information from G.L. about where the “trenches” are located in Toronto and the details of Ello’s (Rookwood’

s) shooting death, among other things -- all in coded language. I find that the use of coded language in this call constitutes some evidence that Abdirashid had knowledge that G.L. was not authorized to transfer a firearm. 82 . There is a wealth of evidence that Abdirashid was a member of the YBK and that he knew that its main purpose or activity was the facilitation or commission of serious crimes including drug and firearm trafficking.

Session 1495 makes it clear that Abdirashid knows G.L. is a fellow gang member and the contents of the call supports a finding that the instruction to G.L. to obtain a firearm for JB is linked to the YBK for its benefit or in association with it and that Abdirashid had knowledge that likely the transfer would result in a benefit to the group or a person in the group. 83 . The instruction to transfer in Session 1495 was directed for immediate receipt by J.B.

While there is an allegation that J.B. is Hassan, it is not necessary to determine J.B.’s actual identity to establish some evidence that he is either a member or an associate of the YBK. In several calls, Abdirashid refers to J.B. and describes him as being involved in drug sales in Lethbridge. In one call Abdirashid talks about going to Lethbridge and working with J.B., as J. B. has his phone out there. Abdirashid refers to him as “family” along with Gardner, Mahadale and H (M.H.): (e.g. Sessions 56, 1682 ; lines 492-500, 1495) .

Gardner refers to J.B. as being 13 hours away when he is talking about meeting up with the “dogs”, J.B., L. (M.A.), PI (Abdirashid), Gully (Mahadale), and H (M.H.) - showing that JB is part of the network (Session 2005, lines 5062-5108). 84 . The intercepts make it clear that, after Rookwood’s murder, members of the YBK believed that they benefited from acquiring more firearms, at a minimum, to protect themselves.

The YBK benefited from members acquiring firearms, additionally, because, according to Officers Press, Babiar and Oliver, firearms assist in the gang’s pursuits of drug dealing, protecting their drugs and territory and committing other offences. There is some evidence from which a jury could find that Abdirashid knowingly instructed G.L. to get a gun for J.B. for the benefit of or in association with the YBK.

(

c) Counts 1 and 2 85 . Mr. Sewrattan argues that to the extent that a firearm was intended to come into the hands of “S-man”, there is no evidence that the crime was committed for the benefit of or in association with a criminal organization because, he says, there is not sufficient evidence connecting “S-man” to the YBK. Although a jury might find that this gun too, was intended for J.B. (lines 88-220), it is also possible for a jury to conclude based on the words found in Sessions 1542, 1548, 1550, 1674 and 1682 that “S-man” was to receive the gun in Toronto. Mr.

Sewrattan essentially submits that the arrangements to acquire a gun cannot be in association with or for the benefit of the YBK because “S-man” is not proved to be a member and we simply do not know why S-man needs a gun. I disagree. 86 . First, while there is not sufficient evidence to find that S-man is a member of the YBK, there is some evidence of his association with various members of the YBK. I accept the connections as set out in detail in the Crown’s written submissions on committal with respect to count 1 in paragraphs 19 through 22. 87 .

More importantly, however, I find that a jury could reasonably conclude that the arrangement to get a firearm into S-man’s hands was for the benefit of or in association with the YBK, because they could reasonably conclude that the gun would be shared, and make its way into Abdirashid’s hands. This conclusion could be found on Abdirashid’s own words at the following references: Session1542: Lines118-120-“I need my one right now. I’m not trying to be naked out there” Line 244 - “S-Man is fucking naked out there” Session 1682 : Line 88-96- “S-Man has been in the Dot for a couple of days. The man said he want a one.

Bam....Man had like three Bam. My boy dropped out, and everything is gone you know Cuz.” Lines 131-147 - “my homey has fifteen right now right. S-man has fifteen...I’m gonna send seven bills right now ....I’m gonna send my boy seven bills. Line 305 - 326 ..I’m gonna come back to the Dot and S is coming back out here, you know? Taking shifts, you know the ones? A.Y.: yeah. “So bam. I want..a one there waiting for me, you know the ones? A.Y.: oh yeah, for sure. I hear that.. Abdirashid: you know, that’s what I am trying to say right now. I’ll put up dollars. You know, it’s all a team effort you understand

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