R. v. Plamondon, 2021 MBPC 21

CITATION: R. v. Plamondon, 2021 MBPC 21 IN THE PROVINCIAL COURT OF MANITOBA Brandon Centre BETWEEN: Her Majesty the Queen ) A. Millo and A. Gingera ) for the Crown - and - ) ) Mathieu Plamondon ) T. Walker ) for the Accused Accused ) ) ) Reasons for Decision ) Delivered May 10, 2021 at ) the City of Brandon, ) in the Province of Manitoba Hewitt-Michta, P.J. INTRODUCTION [ 1 ] This case concerns allegations of interprovincial firearms trafficking.

Mathieu Plamondon [Plamondon] stands accused of conspiring to commit the offences of weapons trafficking; possessing firearms for purposes of transfer without authorization; and trafficking. [ 2 ] The crown premises its case upon several evidentiary sources: • an agreed statement of facts; • the cautioned video statement of Plamondon; • testimony of Plamondon’s former girlfriend; • closed circuit television [CCTV] recordings and police surveillance; • pictures, video, and text messages extracted from Plamondon’s cell phone; • expert opinion evidence with respect to coded language and firearms. [ 3 ] There are two broad issues.

Does the evidence establish Plamondon’s guilt beyond a reasonable doubt? If so, does this court have jurisdiction?

OVERVIEW [ 4 ] This trial proceeded over the course of 10 days and the Court heard from 25 witnesses. Following a blended voir dire that included a Garofoli review, I dismissed challenges to a search warrant and seizure of evidence from a cell phone ( R. v. Plamondon , 2020 MBPC 67 ) and I admitted Plamondon’s statement to police ( R. v. Plamondon , 2020 MBPC 68 ). [ 5 ] A detailed review of the voluminous evidence presented over the course of the trial is impractical. A

summary overview of the evidence frames the analysis that follows. All dates are in 2018 unless otherwise indicated. [ 6 ] The discovery of a Norinco handgun in a hotel room ignited an investigation tracing back from Edmonton, Alberta to Brandon, Manitoba. Police investigation determined the Coast Hotel room was reserved in the name of Chris Flamant [Flamant] but Sheena Jones [Jones] checked in and paid the deposit on May 16. She checked out on May 17 following which housekeeping staff shook the loaded handgun from a pillow.

Police traced the gun to registered owner Grant Hooke in Brandon who suspected his son, Chad Hooke [Hooke], stole it. He reported loaning his green Ford F-150 truck to Hooke to travel to Edmonton and identified Jones as Hooke’s domestic partner. [ 7 ] The parties agree Hooke stole the restricted Norinco 9mm handgun recovered at the hotel as well as fifteen other restricted firearms and two non-restricted firearms from his father’s gun collection in Brandon. [Appendix A - list of stolen firearms] [ 8 ] Nicole Harkness [Harkness] was Plamondon’s girlfriend.

She met Plamondon in February when he was resident at a halfway house in Brandon. Both were attempting to stay off drugs and out of trouble. She testified that by April, Plamondon absconded from the halfway house and they were selling drugs, living together in a condominium in Brandon. [ 9 ] Harkness described two encounters with Hooke and Jones during which Plamondon and Hooke ultimately hatched a scheme wherein Plamondon would find buyers for firearms supplied by Hooke. Following this, she and Plamondon went “ on the run ”, staying with Plamondon’s father at a rural property in Saskatchewan.

She found some guns hidden in their suitcase that she believed came from Hooke. Plamondon told her Hooke was bringing guns for them to sell in Edmonton. She testified Hooke and Jones picked them up at the farm and they travelled together to Edmonton. [ 10 ] Harkness said the four shared a room for one night at the Coast Hotel where she witnessed men, Middle Eastern in appearance, attend to the room to discuss buying firearms with Hooke and Plamondon. Plamondon and Hooke were excited on May 17 about a meeting to finalize the gun deal. After checking out of the hotel, they went to a restaurant.

Jones was irritable and erratic from not being high for several hours and departed the restaurant on foot. Hooke followed her. Plamondon and Harkness left without them and ultimately moved with the duffle bag of guns to the Fantasyland Hotel at West Edmonton Mall along with Flamant. [ 11 ] Harkness said they became aware police recovered a handgun left behind in the hotel room. The crown played a recording extracted from Hooke’s cell phone, which Harkness identified as an argument between Jones, Plamondon, and herself following their separation.

The argument included references to guns and gun deals. [ 12 ] Harkness said Plamondon finally sold the guns at the Fantasyland Hotel for substantially less profit than anticipated. The same men, Middle Eastern in appearance, attended to the hotel room where Plamondon displayed 16 firearms on the bed. Plamondon walked the men out of the room carrying the duffle bag of guns. [ 13 ] After a week at the Fantasyland Hotel, Harkness testified she and Plamondon moved into Flamant’s apartment. She recalled seeing three firearms in the apartment but did not know what became of those guns.

Police arrested Harkness and Plamondon about a week later on their way to deliver drugs to Flamant’s previous apartment building. She was pregnant and had recently shared that news with Plamondon. [ 14 ] The crown in Alberta subsequently dropped charges against Harkness related to this matter. There is no evidence of a quid pro quo in that regard. [ 15 ] Police seized CCTV security recordings from the Coast Hotel for May 16 and 17.

The crown played five segments of video from the hotel and Constable Veasey of Edmonton Police Service [EPS] identified Flamant, Plamondon, Harkness, Hooke, and Jones in those video segments. [ 16 ] In the days just before their arrest, EPS officers conducted surveillance with respect to Plamondon, Flamant, and Harkness. Officers noted their association with two apartments connected to Flamant. Of particular note, officers witnessed Plamondon and a female meeting on May 24 at a McDonald’s restaurant with two men of Middle Eastern descent. Plamondon appeared to be showing the men something on his cell phone.

They travelled together in a vehicle to Flamant’s residence and sometime later Plamondon drove away with one of the men. [ 17 ] Police obtained search warrants for the two apartments associated with Flamant, as well as a storage locker leased in Flamant’s name. None of the stolen firearms were recovered save for pieces of one gun. [ 18 ] Police seized two cell phones from Plamondon upon arrest – an iPhone and a Blackberry. Digital forensic examination of the iPhone resulted in the extraction of data deemed relevant. Police extracted several photographs of guns as well as a video of someone discharging a handgun.

Grant Hooke and his daughter Sheena recognized several firearms depicted in the photos as resembling guns Grant Hooke owned. Hooke’s sister and landlord recognized the location of some pictures as the countertop in Hooke and Jones’ kitchen. Harkness recognized the location in two pictures as the condominium she shared with Plamondon. Forensic examination of the Blackberry was impossible. [ 19 ] Police interviewed Plamondon after his arrest.

While he denied participating in or profiting from any gun transactions, he admitted sending pictures of Hooke’s guns to a potential buyer, receiving an order for specific guns from that individual, and introducing Hooke to other potential buyers.

[20] Detective Bombier testified as an expert witness in the

interpretation of coded language and street vernacular generally andspecifically in the areas of firearms and the illegal drug trade. In his expert opinion, the data extracted from the accused’s iPhoneincluded coded language and street vernacular related to drugs and guns. He offered his opinion on the

interpretation of certain wordsand phrases in the larger context of the data extracted from Plamondon’s iPhone. [21] Corporal Helyer testified as an expert witness in the examination, identification, classification, and use of firearms. He viewedphotos and video extracted from Plamondon’s phone. He identified the firearms and ammunition; classified them as restricted or non-restricted; and opined they were real firearms not imitations. Obliteration of serial numbers on the guns was one important factorcontributing to this opinion. Corporal Helyer had no other involvement in or knowledge of this investigation.

Each of the firearms heidentified from the video and photos he reviewed corresponded to a firearm stolen by Hooke from his father’s collection. I am satisfied,based on Corporal Helyer’s evidence, the crown proved beyond a reasonable doubt the guns he analyzed from photos and videoextracted from Plamondon’s iPhone were firearms pursuant to the Criminal Code. [22] Police recovered one of the stolen firearms in August in Prince Albert, Saskatchewan during an unrelated investigation.

ANALYSIS Does the evidence establish Plamondon’s guilt beyond a reasonable doubt? [23] The crown’s case relies markedly on the accused’s cautioned admissions and the evidence of Harkness. Concerns arise withrespect to the reliability of both Plamondon and Harkness. As such, the Court must carefully assess the extent to which Harkness’evidence confirmed or contradicted Plamondon’s version of events and the degree to which other available evidence corroborated orrefuted the versions presented by Harkness and Plamondon.

Accused Statement [24] Plamondon did not testify but the crown tendered his warned statement to police. The Court assesses that statement in the contextof all of the evidence (see R. v. Menow, 2013 MBCA 72) and in accordance with the framework famously articulated by the SupremeCourt of Canada in R. v. W.(D.), 1 S.C.R. 742. If Plamondon’s statement results in belief as to his innocence or doubt about his guilt, anacquittal must follow.

If not, the Court must assess all of the evidence to determine whether the crown’s case meets the onerous requisiteof proof beyond a reasonable doubt. [25] The Court can accept all, some, or none of Plamondon’s version.

His incriminating admissions are compelling statements againsthis own interest but there are several reasons to question the ultimate reliability of his statement, particularly the denial he participated inor benefitted from actual transactions related to the stolen firearms. [26] First, Plamondon was an admitted drug dealer and his commitment to a criminal lifestyle at the relevant time is borne out by thecontents of his own police statement, the evidence of Harkness, his criminal peer associations noted during police surveillance, as well asthe data extracted from his cell phone. (This is not propensity evidence used to assess whether Plamondon is more likely to havecommitted the offences charged; merely cautionary in terms of the reliability of information he provided to police when interviewed.) [27] Second, Plamondon’s focus on protecting pregnant Harkness as well as himself during the statement was apparent as were hisefforts to persuade police he had valuable information to provide in exchange for consideration. [28] Third, the crown presented other evidence that contradicts Mr.

Plamondon’s denials. [29] To assess the credibility and reliability of Plamondon’s statement, one must consider his version alongside the balance of theevidence. Accomplice Evidence – Harkness [30] The crown necessarily urged the Court to place substantial weight on the evidence of Harkness. As Plamondon’s girlfriend duringthe pertinent time, Harkness had unique opportunities to make observations from which to offer information, narrative, and perspectiveon critical events and interactions.

However, by her own admission, she was partner to Plamondon in the drug trade and at least party tosome interactions related to the stolen firearms. [31] Courts have long recognized the evidence of some witnesses requires particularly cautious consideration. There is no special rulefor accomplices as a unique category of witness. However, when the crown relies on evidence from potentially unreliable sources, thetrier of fact must be mindful of the risks of accepting, without confirmatory evidence, the word of such a witness.

Whether a witness(accomplice or otherwise) requires this added layer of scrutiny must be assessed on the facts of each individual case. (see R. v. Vetrovec (SCC), [1982] 1 S.C.R. 811) [32] Cross-examination illuminated several concerns about Harkness’ credibility and the reliability of her evidence including her owncriminality; her abuse of illicit drugs and intoxication at material times; internal and external inconsistencies in her evidence; dishonestywith police; and possible animus towards the accused. [33] Harkness admitted she was engaged in the illegal drug trade as a dealer prior to meeting the accused.

She first knew of Hooke andJones because she sold them drugs. [34] In 2018, Harkness was abusing drugs and alcohol regularly and this escalated from marijuana and cocaine to heroin. She wasintoxicated the night she first heard Plamondon talking with Hooke and Jones about selling guns. She was under the influence of drugsand alcohol at the residence of Hooke and Jones when the plan to sell guns allegedly crystallized. She was abusing alcohol while at thefarm in Saskatchewan culminating in an impaired driving charge.

She was using drugs during the road trip to Edmonton when she saysthere was a discussion about whether Plamondon had a buyer for the guns. She drank and used drugs at Flamant’s residence when they

first arrived in Edmonton. She was sick and hallucinating at the Coast Hotel for hours after ingesting a drug at Flamant’s residence. She used drugs including heroin while staying at the Fantasyland Hotel. She was high on heroin and drunk when police arrested her. [ 35 ] Cross-examination revealed inconsistencies between what Harkness told the crown during pre-trial meetings and her evidence in court. Pre-court, she told the crown she saw two guns at Hooke’s residence. In direct, she testified she saw three to five guns. During cross-examination, she said three guns.

Pre-trial, she told the crown she saw one gun in the suitcase at the farm and it was not one Hooke showed them previously. In direct, she testified she saw more guns in the suitcase. When confronted in cross-examination, she said she remembered after her meeting with the crown attorneys there were more guns in the suitcase including one she recognized from Hooke’s residence. She did not tell the crown during pre-court meetings about stopping in Saskatoon on the way to Edmonton to buy cocaine.

For the first time in court, she revealed she could see into the bedroom at Flamant’s apartment where Hooke, Plamondon, and Flamant removed guns from the bag and discharged one accidentally. [ 36 ] Harkness’ testimony was not always forthright or reliable. In direct-examination, she testified she was unhappy on the farm because Plamondon’s father was mean to her. In cross-examination, she conceded she drank his liquor and crashed a jeep he purchased for her. In direct, she said Plamondon collected $2,000.00 for selling guns at Fantasyland Hotel.

In cross, she conceded the $2,000.00 might have been VLT money. [ 37 ] Harkness admitted she intentionally lied to police under caution and persisted in her lies when challenged by police. She lied to police to protect herself and Plamondon. She further conceded she intentionally lied to the crown in pre-court meetings about her aunt giving her money to get home from Edmonton. [ 38 ] Harkness admitted she was violent with Plamondon previously including biting and choking him in a vehicle. Harkness confirmed she met with crown attorneys about five times for one to two hours on each occasion to prepare to testify.

She admitted that she was angry with Plamondon when she first met with the crown. The anger appeared to stem from the accused’s romantic involvement with a new woman. [ 39 ] Because of these concerns, it is important to assess not only the extent to which Harkness’ evidence confirmed and contradicted Plamondon’s version but whether Harkness’ testimony was itself confirmed by other evidentiary sources.

Generally, Harkness’ evidence corroborated Plamondon’s admissions; contradicted all but one of his denials; and provided substantially more information than Plamondon disclosed. [ 40 ] Plamondon told police he met Hooke when he attended to collect a drug debt and Harkness affirmed Hooke and Jones were her customers. Plamondon said Hooke introduced the subject of firearms and showed him some guns. Harkness confirmed an incident where she and Plamondon went to Hooke’s residence and he showed them some firearms from under the kitchen sink.

Harkness further corroborated Plamondon’s assertions about travelling to Edmonton with Hooke; the plan for Plamondon to introduce Hooke to potential buyers; that they stopped answering calls from Hooke and Jones; that a gun deal took place at or near West Edmonton Mall; and that she was pregnant when arrested by EPS. [ 41 ] Plamondon denied involvement in the theft of the firearms and Harkness’ version seemed to corroborate this denial. [ 42 ] Plamondon denied participating in any actual transactions related to the firearms and implicated Hooke. He further denied profiting from any sale(

s) of the firearms. Harkness’ evidence contradicted these aspects of Plamondon’s statement. She described conversations between Hooke and Plamondon in Brandon during which they talked about selling guns as a profitable business venture and arrived at a plan wherein Plamondon would find one or two buyers for guns supplied by Hooke. She said she expressed concern to Plamondon about getting involved in selling guns and he assured her it would be profitable.

Before they left Saskatchewan, Harkness described a conversation with Plamondon in which he told her Hooke and Jones were picking them up, bringing guns with them to sell, and assured her their financial problems would be over. [ 43 ] Harkness confirmed that Plamondon kept possession of the firearms following their split from Hooke and Jones.

Following the departure of Hooke and Jones, the Middle Eastern men she first saw at the Coast Hotel later attended the Fantasyland Hotel at West Edmonton Mall where she saw 16 firearms displayed on the bed and witnessed Plamondon walk the men out carrying the duffle bag of guns for them. Her evidence directly contradicted Plamondon’s suggestion that he introduced Hooke to a potential buyer at Fantasyland Hotel and had no other involvement. [ 44 ] Plamondon’s statement matched many features of Harkness’ evidence.

More importantly, information from the agreed statement of fact, other witnesses, the CCTV evidence, cell phone data, and EPS surveillance evidence corroborated Plamondon’s admissions as well as material aspects of Harkness’ version.

Corroboration – Agreed Statement of Fact and “Other Witnesses” • Hooke’s landlord corroborated Harkness’ description of Hooke and Jones’ suite where Harkness said the plan to sell guns together solidified. • Hooke’s father and sister confirmed photos of guns extracted from Plamondon’s iPhone match firearms stolen by Hooke. • Hooke’s sister, his landlord, and a Brandon Police Service [BPS] officer testified pictures of guns extracted from Plamondon’s iPhone appear to have been taken at the residence of Hooke and Jones. • A gun stolen by Hooke, depicted in a photo sent from Plamondon’s phone, surfaced in August in Prince Albert, Saskatchewan confirmatory of an unauthorized transfer.

Corroboration – CCTV and Surveillance Evidence – Recognition Evidence [ 45 ] Typically, the trier of fact alone draws inferences and forms opinions based on the evidence or absence of evidence. Where a lay

witness has a prior acquaintance with an individual and is in a better position than the trier of fact to identify the individual, it may bepermissible for the witness to testify to their recognition of that individual in a photograph or video. Courts have distinguished betweenthreshold admissibility and ultimate reliability. (see R. v. Leaney, (SCC), [1989] 2 S.C.R. 393; R. v. Brown (2006), (ON CA), 215 C.C.C. (3d) 330; R. v. Berhe, 2012 ONCA 716) [46] The Court assesses ultimate reliability of recognition opinion evidence and determines the appropriate weight, if any, that shouldattach.

That assessment includes consideration of the trustworthiness of the witness as well as the accuracy of the identification. TheCourt should examine the quality of the photograph or video upon which the witness makes their identification; the witness’ familiaritywith the person identified; the uniqueness of the identifiable features; other evidence corroborating the witness’ opinion; and any otherindicia of reliability apparent from the evidence.

The determiner of ultimate reliability must bear in mind that recognition evidence isidentification evidence and eyewitness identification is intrinsically unreliable. (see R. v. Hudson, 2020 ONCA 507; R. v. Panghali, 2010BCSC 1710) [47] With respect to the CCTV footage, defence conceded threshold admissibility of Constable Veasey’s recognition evidence.

Hisidentification of Hooke and Jones relied on physical descriptions provided by BPS, his own meaningful interactions with the two, hisreview of the video-recorded interviews he conducted with them as well as those provided to him by BPS, and Facebook profile pictures.Jones has a distinctive walk, which also informed his opinion. [48] The officer’s identification of Plamondon rested on his personal interactions with the accused, review of Plamondon’s video-recorded statement, as well as parole, surveillance, and EPS identification photographs.

He noted as distinguishing Plamondon walkedwith his chest “puffed out”. Constable Veasey familiarized himself with Harkness when he interacted with her personally after her arrestas well as from reviewing surveillance photographs and watching her video-recorded police interview.

Both are easily identifiable on theCCTV recordings. [49] The officer had a working familiarity with Flamant prior to this investigation owing to his criminal notoriety amongst EPS,intelligence briefings as well as photographs and in-person contact following his arrest. [50] The CCTV video was of sufficient quality to enable identification by a person, like Constable Veasey, familiar with the subjects.Of note, the officer said the images he viewed outside of court were of better quality than that displayed during the trial.

Strengtheningthe ultimate reliability of the recognition evidence was the extensive corroboration from other evidentiary sources in terms of thepresence of these individuals at the Coast Hotel on May 16 and 17. [51] With respect to the EPS surveillance evidence, between May 23 and May 25, members of EPS conducted surveillance targeting individuals believed to be Plamondon and Flamant at addresses on St Albert Trail and 107th Street associated to Flamant.

None of theofficers involved in the surveillance had prior dealings with Plamondon and they relied on “Target Roadsheets” to identify the suspects.Target Roadsheets include a photograph(

s) of the individual as well as physical descriptors including distinctive features and tattoos,associated addresses and vehicles, and a synopsis of suspected criminal activity. The photographs in the “Roadsheets” are of good qualityand the surveillance photograph (Exhibit 22) is easily identifiable as Plamondon.

Other evidence corroborated Plamondon’s associationwith the addresses where police took the photograph and made other observations. [52] The CCTV and surveillance evidence corroborated Plamondon’s admissions and Harkness’ version in several respects: • CCTV evidence depicted the arrival and presence of Hooke, Jones, Plamondon, Harkness, Flamant, and his girlfriend at the CoastHotel in Edmonton on May 16 and 17 along with numerous bags including a large black duffle bag. • CCTV footage does not show Harkness moving through the hotel lobby with the others during the evening or early morning hoursof May 16 to 17 consistent with the indication she was sick in bed. • CCTV evidence depicted a meeting between Hooke, Plamondon, and two unidentified males the evening of May 16. • CCTV evidence confirmed Plamondon and Hooke’s return to the Coast Hotel the morning of May 17 consistent with Harkness’version. • EPS surveillance substantiated Harkness’ indication she and Plamondon moved in with Flamant after leaving Fantasyland Hotel. • EPS surveillance confirmed a meeting in Edmonton with two males, Middle Eastern in appearance, and discussion seeminglyrelated to information on Plamondon’s phone.

Corroboration – Cell Phone Extraction Evidence • Data extracted from Plamondon’s iPhone captured messages including overt offers to transfer guns to “G Bomb” (Gursumeet Brar)accompanied by several pictures of guns matching those stolen by Hooke, a list of guns requested by Gursumeet Brar [Brar], andreference to “Chad” as person supplying the guns to Plamondon. • A text message extracted from Plamondon’s iPhone indicating he was “bringing 17 in total” as well as the photos depicting severaldifferent types of guns confirmed the approximate volume of guns possessed and intended for transfer • Data extracted from the iPhone corroborated loss of contact with Brar prior to any transfer of firearms in correlation with otherevidence about Brar’s arrest and incarceration creating the need to find alternate buyer(s) • Text messages sent between Plamondon and Flamant corroborated Harkness’ evidence that they attended Flamant’s residence upon

arrival in Edmonton. • Text messages sent between Plamondon and “Mikey” corroborated Plamondon’s efforts to sell firearms. • A video extracted from Hooke’s phone confirmed the phone last connected to Coast Hotel Wi-Fi on the afternoon of May 17 andportrayed an argument between Jones, Plamondon, and Harkness on May 19 with references confirming Plamondon saw guns at Hookeand Jones’ residence in Brandon and sent photos of those guns to a “buddy”.

The recording referenced possession of guns and a gun deal. • Text messages between Plamondon and Flamant (Smokey) on May 18 corroborated Harkness’ indication that they moved toFantasyland Hotel with Flamont and his girlfriend.

Corroboration – Execution of Search Warrants • Police did not locate the cache of stolen firearms during the execution of search warrants at residences or the storage lockerassociated to Flamant, consistent with prior sale of the guns. [53] Careful scrutiny of Harkness’ testimony in the context of all of the available evidence persuades me there is substantialcorroboration for the material aspects of her evidence.

Her version of events was not contradicted in a meaningful way by other evidence.While concerns persist in respect of her ability to accurately recall dates, times, and other less material details I accept her evidence asgenerally reliable and ultimately worthy of significant weight. [54] Considering Plamondon’s statement in the context of all the evidence, his incriminating admissions are compelling, corroboratedby the testimony of Harkness, and confirmed by other available evidence including cell phone data, CCTV recordings, surveillanceevidence, and other witnesses.

I do not believe Plamondon’s exculpatory denials. Considered in the context of all the evidence, they donot raise a reasonable doubt about his guilt. As previously discussed, the corroborated evidence of Harkness contradicted his denials.Additionally, his statement is internally inconsistent and the conversations and images extracted from his iPhone convincingly refutedhis denials. [55] Plamondon’s statement is internally inconsistent.

The interview began with discussion about charges related to a single stolenfirearm but Plamondon quickly shifted to talking about multiple guns without prompting from the interviewer. Plamondon initially saidhe thought Hooke was buying and registering the guns but soon after acknowledged Hooke was “skimming” the guns from his dad’scollection, again without prompting from the officer about the source of the guns. Plamondon denied participating in or profiting fromgun deals but then admitted sending pictures of guns to a potential buyer who placed an order with him for specific guns.

He admittedintroducing Hooke to other potential buyers after Brar’s arrest and demonstrated knowledge of who subsequently bought the guns. [56] The conversations and images extracted from Plamondon’s iPhone stand in stark contrast to the assertion he did not participate intransactions related to the guns. He sent photos of several guns to potential buyers, descriptions of firearms he could access, and video ofsomeone firing a handgun. Even without the assistance of a coded language expert, the messages clearly depicted explicit offers totransfer.

The cell phone data disclosed a role well beyond that of merely making introductions. [57] Having determined Plamondon’s statement does not inspire belief about his innocence or doubt about his guilt, the Court must stilldetermine whether the totality of the evidence establishes his guilt beyond a reasonable doubt. Circumstantial Evidence [58] While there is some direct evidence, the crown’s case is, in part, circumstantial. When assessing circumstantial evidence, the Courtconsiders whether there are other conceivable theories or realistic possibilities inconsistent with guilt.

The Court anchors that assessmentin experience and logic, not speculation. If sensible inferences other than guilt are available on the evidence or lack thereof, the crownfails to achieve the standard of proof beyond a reasonable doubt. The accused’s guilt must be the only reasonable conclusion available onthe whole of the evidence. (see R. v. Villaroman, 2016 SCC 33) Conspiracy [59] Conspiracy allegations typically rest on circumstantial evidence. Essential to conspiracy is an agreement between the parties.

Here,the crown must prove an agreement between Plamondon and Hooke to commit the indictable offence of weapons trafficking (actus reus)and an intention to actually commit that offence (mens rea). The precise acts performed in pursuit of the common objective are lessimportant than the requirement that those actions refer back to the common aim. (see R. v. Douglas, (SCC), [1991] 1S.C.R. 301; R. v. Cotroni, (SCC), [1979] 2 S.C.R. 256; R. v.

Paradis, (SCC), [1934] S.C.R. 165). [60] The Court must be satisfied the only reasonable conclusion available on the whole of the evidence is Plamondon and Hooke “actedin concert in pursuit of a common goal” (R. v.

Cotroni at para 3). [61] There is convincing evidence of an agreement between Plamondon and Hooke to engage in the unlawful objective of traffickingguns. • Plamondon told police in his statement he took pictures of guns shown to him by Hooke; sent the pictures to Brar who placed anorder for a list of guns; travelled to Edmonton with Hooke to introduce him to potential buyers; and introduced Hooke to potential buyersin Edmonton.

• Harkness described two meetings in Brandon, one at the condominium she shared with Plamondon and the other at the home of Hooke and Jones, wherein Hooke and Plamondon discussed guns and a plan whereby Plamondon would find buyers for guns supplied by Hooke. Plamondon assured Harkness this venture would be profitable. • Data extracted from Plamondon’s iPhone evidenced pictures of guns and text messages sent depicting explicit and implicit offers to transfer. Harkness identified one photo of a gun taken on the bed in their condominium. Several witnesses identified other pictures of guns taken in Hooke’s residence.

Corporal Helyer identified the firearms depicted, which matched guns stolen by Hooke from his father’s collection. • There were messages sent from Plamondon’s phone related to transferring guns, which referenced the person supplying the guns including mention of “ Chad ”. • The video extracted from Hooke’s phone depicting the argument between Jones, Plamondon, and Harkness referenced guns shown to Plamondon at Hooke’s apartment and gun deals. [ 62 ] There is persuasive evidence of acts committed in furtherance of the agreement to traffic guns. • Plamondon admitted to police he took pictures of the guns and sent them to a potential buyer.

The extraction of data from Plamondon’s iPhone confirmed this admission and proved Plamondon sent pictures and communicated offers to at least one additional potential buyer. • There is evidence Hooke transferred some guns to Plamondon in Brandon. Harkness testified one of the pictures sent from Plamondon’s phone depicted a gun in the bedroom of their condominium.

She said she found guns in their suitcase at the farm in Saskatchewan that she recognized from Hooke’s residence. • A text message sent to Flamant on May 15, after Brar lost contact, asking if Flamant could help Plamondon with the firearms. • Plamondon’s statement and Harkness’ evidence confirmed Hooke picked them up on route to Edmonton for Plamondon to connect Hooke to buyer(s). Messages extracted from Plamondon’s cell phone evidenced a plan to transport a load of guns.

Harkness testified they took a duffle bag full of guns and CCTV evidence depicted them enter the hotel with a black duffle bag. • Harkness testified men, Middle Eastern in appearance, attended the Coast Hotel to discuss buying guns. CCTV evidence confirmed Hooke and Plamondon met with unidentified males at the hotel.

She testified a follow up meeting was in the works to finalize the sale of the guns. • The video extracted from Hooke’s phone depicting the argument referenced Hooke nearly “ blowing ” a “ gun deal ” in a Superstore parking lot. • Text messages from Plamondon to “ Mikey ” on May 17 referenced an offer to transfer firearms for consideration. • Harkness testified to the sale by Plamondon of a duffle bag of guns at the Fantasyland Hotel to the same Middle Eastern men she saw at the Coast Hotel. [ 63 ] The totality of this evidence demonstrated beyond a reasonable doubt a meeting of the minds between Hooke and Plamondon to commit the offence of weapons trafficking, an ongoing intention to give effect to that agreement, and consequential actions taken in furtherance of that unlawful objective.

Possession of Firearms for the Purpose of Unauthorized Transfer [ 64 ] To prove possession, the crown must establish Plamondon had knowledge and control of the firearms. Control need not be exclusive; shared control is sufficient.

The crown must further prove Plamondon possessed the firearms for purposes of transferring them, knowing he was not authorized to do so. [ 65 ] There is substantial evidence Plamondon possessed the firearms, much of which I have already reviewed. • Harkness identified the bedroom in the Brandon condominium she shared with Plamondon as the location of a photograph of a restricted firearm taken by and sent from Plamondon’s iPhone to potential buyer Brar ( G Bomb ) on May 4 at 1:18AM.

Cpl Helyer identified the firearm and Grant Hooke confirmed it matched one stolen by Hooke from his collection. • A video sent from Plamondon’s iPhone to Brar ( G Bomb ) on May 8 at 7:14PM depicted Plamondon firing a restricted handgun matching one stolen by Hooke from his father’s collection. While Plamondon’s face is not visible, he is identifiable by the text message sent two minutes earlier; by a tattoo; by voice (compared to his voice and manner of speech apparent from his video statement); and by the words spoken.

He now has finger tattoos that were visible in court and not in the video but they are also not apparent in the May surveillance photo marked as exhibit 22. • Messages extracted from Plamondon’s phone referenced firearms in his possession. • Harkness testified she found firearms in the suitcase she shared with Plamondon at the farm in Saskatchewan. She recognized the guns as ones she saw previously at Hooke’s residence in Brandon. • Plamondon’s statement and Harkness’ evidence confirmed they travelled to Edmonton with Hooke and Jones. Plamondon’s

admission he travelled to Edmonton with Hooke to introduce him to potential buyers established knowledge and shared control over thefirearms in the vehicle. Harkness said the guns were in a black duffle bag and CCTV evidence depicted the bag. Harkness testified thefour shared a hotel room. • Harkness testified she and Plamondon took the firearms and separated from Hooke and Jones on May 17.

Data extracted fromPlamondon’s iPhone depicting messages exchanged with Jones on May 18 and 19 is confirmatory. • Harkness testified Plamondon took the duffle bag of firearms to Fantasyland Hotel at West Edmonton Mall where he sold them. [66] There is persuasive evidence Plamondon’s possession was for purposes of unauthorized transfer. I have already reviewed much ofthis supporting evidence with respect to the conspiracy charge and will endeavor not to be repetitive.

One need only look to the statementof Plamondon, the evidence of Harkness, as well as the text exchanges with Brar (G Bomb) between May 3 and 15 and with Mikey onMay 17 for clear and convincing proof of Plamondon’s purpose. That he knew any transfer was unauthorized is implicit in theclandestine nature of the entire venture. [67] On the whole of the evidence, there is proof beyond any reasonable doubt Plamondon had possession of restricted and non-restricted firearms and did so for purposes of transferring them without authorization.

Trafficking [68] Weapons trafficking can refer to manufacturing or transferring (see

Section 99 Criminal Code). Transferring includes, but is notlimited to, selling, providing, transporting, distributing, or delivering (see

Section 84 Criminal Code). [69] The crown says Plamondon is guilty of trafficking “by offer”; that his culpability arises from offers to transfer (by transporting)firearms without authorization. Trafficking by offer requires proof Plamondon communicated an offer in a serious manner and intendedthe receiver view that offer as sincere (see R. v. Duncan (2015), 2015 ONCA 928 , 332 C.C.C. (3d) 347). Transporting in thecontext of a trafficking allegation is transactional in nature which is to say it requires more than merely moving weapons from onelocation to another (see R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353). The crown does not have to prove a completedtransaction and need not demonstrate the offer included any consideration (see R. v. Murdock (2003), (ON CA), 176C.C.C. (3d) 232). [70] The crown presented compelling evidence in support of the allegation of weapons trafficking, the majority of which was containedin the data extracted from Plamondon’s iPhone.

The expert evidence of Constable Bombier in respect of coded language and streetvernacular assisted me as to the meaning of particular words and phrases in the messages mined from the iPhone from which I am able todraw inferences about what was going on between the parties at the time. [71] Police recovered a series of electronic communications including hundreds of text messages, several pictures of firearms, and avideo, exchanged between Plamondon and Brar between April 13 and May 15. Based on other available evidence, it is clear Brar residedin Alberta where police eventually arrested him.

Of particular significance were the communications between May 3 and May 14. [72] The evidence of Constable Klimosko, who performed the cell phone extraction, persuades me Plamondon took a photo of twofirearms on May 3 with his iPhone and sent that photograph to Brar. Harkness testified the location of the photo was the kitchen in theirBrandon condominium. Plamondon sent an accompanying text message indicating “I got ten of each” and Brar responded, “Give them tome”.

Plamondon replied, “I will bring 8 to u plus a Mach 10”, which I am satisfied from other evidence referred to a submachine guncolloquially called a MAC 10. Later in the exchange Plamondon texted “U want a Mac 10.” [73] In the early morning hours of May 4, Plamondon took a photo of a firearm with his iPhone and sent it to Brar. Harkness identifiedthe location of the photo as the bedroom in their Brandon condominium. On the evening of May 4, Plamondon messaged Brar “Yo callme let’s make a deal”. [74] On May 5 and 6, Plamondon sent messages to Brar again referencing firearms.

He said, “U want two ar 15” on May 5 and on May6 “as well I can get two ar 15s...If u interested I need to know before ten tonight”. The evidence persuaded me “ar 15” is a firearmreference. He informed Brar he was bringing seven firearms. [75] On May 7, Plamondon sent Brar two photos taken in Hooke’s apartment in Brandon depicting firearms identified as ones stolenfrom Hooke’s father. An exchange of messages about firearms followed.

Plamondon indicated he was now planning to bring 17 firearms.Brar provided a list of requested firearms to Plamondon and said “give it to the guy it’s all I really want for smalls ones for next time”.The exchange included a discussion about Brar getting money to pay for the requested firearms, his willingness to pay “tax” (i.e. extra)for a specific type of gun, and an offer to help Plamondon “flip the rest”.

While there did not appear to be agreement on a specific pricefor the firearms, Brar texted “I can only guarantee u the 9 and the 2gz on my end rn cod like me giving u something rest we got to figureout won’t bs u”. Constable Bombier explained the 9 likely referred to 9 ounces of an illegal street drug and 2 gz likely meant $2,000.00cash on delivery. Those

interpretations make sense in the context of the larger exchange. Plamondon further texted “we need to findpeople who want 50 straps time”. Brar asked Plamondon to get him “teeth” for the guns he requested. I am convinced based onConstable Bombier’s evidence that “straps” meant guns and “teeth” meant ammunition. [76] On May 8, Plamondon sent Brar the video of Plamondon firing a Norinco NP22 handgun.

Plamondon texted, “Bro straight up Ican get any piece in the world through this g” and “That one in the video feels good dawg”. [77] On May 11, Plamondon communicated a price to Brar, “Okay bro I’m be straight I need 1350 and the rest in side for the firstload”. I am satisfied, with the assistance of Constable Bombier, that text referred to currency plus “side” which is street vernacular formethamphetamine.

It is apparent from the text exchange on May 11 and the texts and pictures sent on May 12 in combination with otherevidence that while some of the firearms referenced were with Plamondon in Saskatchewan, Hooke was bringing others from Brandon. [78] On May 14, Plamondon and Brar exchanged texts about Plamondon’s difficulty getting a ride to Edmonton and his need for a cash

advance. Plamondon asked Brar to tell an individual referred to as “Smoke” that Plamondon would sell him a Smith and Wesson handgun for $1,800.00, which he said was cost. [ 79 ] Constable Bombier testified he arrested Brar on May 16, which is consistent with the abrupt end in communication between Plamondon and Brar the day prior. [ 80 ] Police recovered a series of electronic communications between Plamondon and Flamant (a.k.a. Smokey). On May 15, Plamondon asked Flamant if he could help deal with the firearms if Brar did not turn up.

Plamondon sent messages to Flamant on May 16 confirming he was on his way to Edmonton and again when he arrived outside Flamant’s residence. Later that afternoon Plamondon texted Flamant “ Hey I left those at your place all three ” and Flamant responded “ What. Fuck bro they need to get out a here ”.

Considered in the context of Harkness’ evidence, these messages referred to firearms Plamondon received from Hooke and took with him to Saskatchewan and then on to Edmonton. [ 81 ] Harkness testified Plamondon and Hooke met with males, Middle Eastern in appearance, at the Coast Hotel the evening of May 16 where they discussed but did not finalize sale of the firearms in the duffle bag. Harkness testified a further meeting was planned for the following day. CCTV recordings captured the attendance of two males matching Harkness’ description.

A text exchange between Plamondon and “ Unc Lil G ”, wherein Plamondon provided the hotel name and address, correlated. [ 82 ] There was evidence of a planned meeting at a Superstore parking lot on May 17. Messages exchanged between Plamondon’s iPhone and “ Unc Lil G ” referenced the meeting. The video extracted from Hooke’s iPhone depicting the argument between Jones, Plamondon, and Harkness portrayed Jones demanding some of the money she believed Plamondon received and an angry Plamondon accusing Hooke of almost blowing the gun deal when “ Uncle saw him smoking crack in the parking lot of the…Superstore ”.

Jones suggested the gun deal failed because Plamondon was too greedy. [ 83 ] There was evidence of a further offer to sell firearms within text messages extracted from Plamondon’s iPhone. On May 17 at 1:49PM a contact called “ Mikey ” messaged Plamondon: “ Can u do 4500 for the 3 ?” Plamondon agreed and indicated, “ I dumped them at my bros place for now ”. Later the same day, “ Mikey ” sent a text: “ One looks good. The other 2 r no good. Not new ” to which Plamondon responded, “ Okay Chad said he can part with his 40 cal ”.

In the context of all the evidence, it is clear the “ 3 ” referred to the firearms Plamondon brought from Brandon and stored at Flamant’s residence; “ Chad ” was a reference to Hooke; and “ 40 cal ” was a reference to another firearm. [ 84 ] That Plamondon still had firearms to sell was apparent from another text message to “ Unc Lil G ” on the afternoon of May 18: “ Is there a chance u know some cats for the other tools I have ”.

Relying on the expertise of Constable Bombier and considering context I am satisfied “ cats ” is vernacular for people and “ tools ” is coded language meaning firearms. [ 85 ] Reviewing the text messages exchanged between Plamondon and Jones on May 19 affirmed Hooke and Jones were not in possession of any firearms or proceeds from their sale. [ 86 ] Harkness testified Plamondon sold the duffle bag of 16 firearms to a buyer at the Fantasyland Hotel. [ 87 ] When police executed search warrants at the residences and storage locker associated with Flamant, the cache of firearms was not located, consistent with them having been trafficked, an inference further supported by data extracted from the cell phones of Hooke and Plamondon and the evidence of Harkness. [ 88 ] There is compelling evidence Plamondon communicated multiple serious offers to transfer restricted and non-restricted firearms beginning in Brandon and continuing once he and Hooke moved the firearms to Edmonton.

That he intended the offers be taken as genuine is apparent from: • pictures and video he sent Brar demonstrating access to firearms; • electronic conversations extracted by police, including discussion of specific types of firearms and their features as well as negotiation of price; • transportation of firearms from Brandon, Manitoba to Edmonton, Alberta; • efforts to find replacement buyers after Brar’s arrest and the failed deal at Superstore; • the actual sale of firearms by Plamondon. [ 89 ] The totality of the evidence proved beyond any reasonable doubt Plamondon engaged in weapons trafficking in May when he communicated serious offers to transfer firearms, transported them to Alberta for purposes of peddling them, and did in fact sell both restricted and non-restricted firearms without authorization.

Proof Beyond a Reasonable Doubt – Conclusion [ 90 ] Plamondon’s incriminating admissions alongside the corroborated testimony of Harkness presented compelling evidence of his guilt. However, the strength of the crown’s case against Plamondon arose less from the persuasiveness of any one evidentiary source and more from the cumulative impact of all the evidence viewed in its entirety.

Defence counsel effectively flagged shortcomings in Harkness’ reliability; highlighted gaps in the CCTV recordings; emphasized possibilities with respect to shared cell phones and moveable SIM cards; and underlined limitations of the proffered expert opinions. Assessing each piece of evidence in a vacuum opens a door to inferences inconsistent with guilt.

However, the only reasonable conclusions and inferences available to the Court on the totality of the evidence are Plamondon conspired with Hooke to traffic restricted and non-restricted firearms; possessed such firearms for purposes of transferring them without authorization; and did traffic restricted and non-restricted firearms.

Does This Court have Jurisdiction? [91] Jurisdiction is an essential element and the crown must prove it beyond a reasonable doubt. The interprovincial nature of Hookeand Plamondon’s foray into weapons trafficking prompted debate about this court’s jurisdiction. [92] Pursuant to

section 476(

b) of the Criminal Code, this court has jurisdiction over any offences commenced in Manitoba butcompleted in another province. [93] In R. v. Libman, (SCC), [1985] 2 S.C.R. 178, the Supreme Court of Canada held that jurisdiction subsists where a“real and substantial link” exists between the offence and the territory in which the matter is tried. As such, to prove jurisdiction in thismatter, the crown must prove a real and substantial link between Mr.

Plamondon’s offences and the province of Manitoba. [94] The crown proved beyond a reasonable doubt that the following occurred in Brandon, Manitoba: • Hooke stole firearms, the illegal sale of which was the subject of the conspiracy, from his father Grant Hooke. • Hooke and Plamondon hatched a conspiracy to traffic firearms, agreeing Plamondon would find buyers for firearms supplied byHooke. • Plamondon took photos of firearms and sent those photos to Brar in the context of an offer to transfer. • Plamondon took possession of some firearms from Hooke. • Plamondon transported the stolen firearms in his exclusive possession from Brandon out of province. [95] The evidence establishes beyond a reasonable doubt the commission of overt acts in Manitoba committed in furtherance of theoffences charged and a continuity of operations from Manitoba into Saskatchewan then on to Alberta.

The offences made an impact inManitoba, particularly in respect of Grant Hooke as victim of the theft that underlay the conspiracy. A real and substantial link existsbetween each of the three offences and the province of Manitoba. This court has jurisdiction. CONCLUSION [96] The crown proved beyond a reasonable doubt Mr. Plamondon conspired with Chad Hooke to commit the indictable offence ofweapons trafficking; that he possessed restricted and non-restricted firearms for the purposes of unauthorized transfer; and that hetrafficked restricted and non-restricted firearms knowing he was not authorized to do so.

I convict him of those offences. “original signed by Judge Hewitt-Michta” Judge S.

Hewitt-Michta APPENDIX A Enfield .38 No 2 Tanker MK2 (restricted) Enfield .38 No 2 MK2 (restricted) Hipoint .45 JHP (restricted) Norinco 9mm NP22 (restricted) Norinco 9mm NP34 (restricted) - recovered by EPS at Coast Hotel Ruger 9mm SR-9 (restricted) Ruger .22 Mark III STD (restricted) Sig Sauer .22 Mosquito (restricted) Sig Sauer .22 1911-22 (restricted) Tokarev 7.62X25 TT-33 (restricted) Tokarev .22 Sportowy TT-33 (restricted) Tokarev .22 Sportowy TT-33 (restricted) Zastava .9mm M70 A (restricted) Zastava .380 SAVC61 Combat (restricted)

Zastava .22 Skorpion (restricted) Ruger .22LR 22 Charger (restricted) Mossberg .22 715T – Rifle (non-restricted) Hatsen 12 gauge Optima-Shotgun (non-restricted)