HER MAJESTY THE QUEEN — v. —, 2013 ONCJ 839

CITATION : R. v. Jones, 2013 ONCJ 839 DATE : September 25, 2013 Information No : 11-2179 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — TRISTIN JONES/JERMAINE SMITH /JAFARI WALDRON Before Justice Jacqueline V. Loignon Reasons for Judgment released on September 25, 2013 M. J. Neubauer.......................................................................... for the Provincial Crown Ms. D. Hayton................................................................................ for the Federal Crown M.P.

McCann................................................................................................. for Mr. Jones M.K. Kilongozi.............................................................................................. for Mr. Smith R. Carew.................................................................................................... for Mr. Waldron LOIGNON J.: Introduction [ 1 ] Tristin Jones, Jermaine Smith and Jafari Waldron are charged on a 42 count Information with various firearms, drug and drug related offenses between January 2009 and March 2011.

The Crown alleges that all 3 were involved in firearms trafficking to various degrees. The investigation into these allegations began sometime 2009 and covered a two-year time span. This investigation was known as project Lancaster. While the main focus of the project was the trafficking of firearms, the investigation revealed that the 3 accused also may have been involved in the trafficking of marihuana. [ 2 ] In the course of the investigation, detectives sought and were granted various Production Orders,

Part 6 wiretap authorizations, and warrants to search. In addition, investigators conducted extensive surveillance of all 3 accused as well as of many of their associates. Various undercover operations were also conducted involving different targets. The investigation came to an end on March 9, 2011 upon the arrest of all 3 accused and the execution of search warrants at their residences. [ 3 ] The trial of this matter was held over 12 days in November, December 2012 and April 2013.

The bulk of the evidence called consisted of conversations alleged to have taken place between the accused and others, placed before the Court through the wiretaps and collected text messages. In addition, the court also heard of police surveillance of the accused and others, two undercover operations and the fruits of various search warrants executed throughout the investigation. Finally, the court heard from various experts in the fields of firearms and drugs. This evidence was not only to assist in satisfying various technical

definitions relevant to the charges, but also to better understand the often coded conversations taking place between the accused themselves as well as with others. The Law A - Firearm offences “Transfer” and “Offer to transfer” ( s. 99 of the Criminal Code ) [ 4 ] The Crown must prove beyond a reasonable doubt that the accused:

(1) Transferred or offered to transfer;

(2) a firearm, prohibited weapon, a restricted weapon, a prohibited device, any ammunition or prohibited ammunition; (3) knowing that he was not authorized to do so under the Firearms Act or other act of Parliament. [5] Section 99(1)(

a) specifies that consideration for the transfer is not a necessary element of the offence. [6]

Section 84 of the Criminal Code defines transfer in the following manner: “transfer” means sell, provide, barter, give, lend,rent, send, transport, ship, distribute or deliver. [7] In understanding a transfer as defined in s. 84 of the Code, the common element is the notion of a transaction. In committingthe offence by way of offer, the accused must offer to transact in a firearm knowing that they are not authorized to do so. (R. v. Grant,2009 SCC 32 , [2009] SCJ No 32 at para. 145) [8] The offence of offering to transfer a firearm requires proof that the accused made a genuine offer to transfer a firearm.

TheCrown need not prove that the accused had the ability or intention to actually follow through with the transaction. Rather, it need onlyprove a genuine offer, intended to be taken seriously. Indeed, the Ontario Court of Appeal in R. v. Murdock decided that a “traffickingby offer” offence is proven where there was an offer to traffic and the offer was intended to be taken seriously. (R. v. Murdock, (2003) (ON CA), OJ No. 2470 (CA), paras 9-14; see also R. v. Farhat, [2011] OJ No 5399 (SCJ) at par 38) [9] More recently, in R. v.

Ralph, (2011) 2011 ONSC 3558 , OJ No. 3156 (OCJ), the Court stated the following: 40 The wording and legislative intent as set out in s. 99(1)(b), however, is clear. Section 99(1)(

b) does not require a showing that theofferor could actually obtain a functioning firearm to sell to the offeree; it is sufficient that the offer is made. In other words, traffickingby offer is enough. … 47 As deadly as drug-dealing can be, trafficking in firearms is, by any measure, even more deadly. If one rereads the above paragraphfrom Murdock, replacing the words “narcotics” or “drugs” with “firearms” or “guns”, one has an immediate understanding andjustification for s.99(1)(

b) of the Criminal Code. 48 This is why, in my view, the Court of Appeal’s decision in Murdock, which dealt with trafficking by offer in drugs, also applies totrafficking by offer in the context of firearms. To track the Court’s language as quoted above in para. 45 and apply it to the facts herein:“…the offence of trafficking by offer is made out if the accused offers to traffic in a firearm (the actus reus); and intends to make anoffer that will be taken as a genuine offer by the recipient (the mens rea).” 49 I therefore conclude that Murdock is dispositive of the trafficking by offer issue herein.

The Crown is not required to show that, inmaking a serious offer to sell a 9 mm. semi-automatic to DC Tracy, the accused had actual access to such a weapon. [10] This approach has been applied in subsequent cases including in R. v. Lewis

(2012) OJ No. 3286 (OCJ) where the accusedtestified that he did not intend to follow through with the proposed firearm transaction. Notwithstanding this evidence, and relying onthe reasoning in R. v. Murdock, supra, the Court held that it was not a defence to the charge and found the accused guilty of offering totransfer a firearm. [11] In sum, the offer need not involved consideration (s. 99); need not be completed (R. v. Murdoch, supra); need not be intended tobe completed (R. v. Lewis, supra); the key as aspect is that the offer be intended to be taken seriously (R. v.

Murdoch, Ibid; see also R. v.Farhat, infra). In understanding the offer, it is necessary to consider more than just the words. Indeed, in some instances thecircumstances of the offer will amount to nothing more than boasting or puffery. (R. v. Farhat, [2011] OJ No 5339 (SCJ) par 39, 42-44)The overall context must be assessed to ascertain the offer and whether it was intended to be taken seriously.

Factors to be consideredmay include: the understanding of or overall purpose for the firearm, access to the firearms; negotiations, not only as to price and typebut also with respect to who is conducting them and how; use of coded language. This is obviously a non-exhaustive list and will varyaccording to the individual circumstances, some factors taking on added importance in different circumstances.

Proving a “firearm” [12] A firearm need not be recovered and forensically examined in order to meet the Criminal Code definition of “firearm.” Whethera gun is a “firearm” is a question of fact for the tier of fact to resolve, and absent forensic examination this determination can be made onthe basis of circumstantial evidence surrounding the alleged firearm. (R. v. Ranieri, (2009) 2009 ONCA 6 , OJ No. 25 (CA); R.v. Charbonneau, (2004) (ON CA), OJ No. 1503 (CA); R. v. Carlson,

(2002) OJ No. 1884 (CA); R. v. Richards,(2001) (ON CA), OJ No. 2286 (CA).)

[13] In R. v. Grizzle the Court considered the absence of forensic examination and undertook a review of the Court of Appeal’sdecisions on that topic. The Court stated: 19 The Court of Appeal in at least three cases has upheld convictions where the gun was not located and (sic) complainant was equivocalon whether it was real or an imitation: - In R. v. Charbonneau, (2004) (ON CA), O.J. No. 1503, the evidence was the complainant’s clear belief that itwas a gun, her description of it, the accused’s conduct, his threat to shoot while holding it and a complete absence of evidence to thecontrary. - In R. v. Carlson,

(2002) O.J. No. 1884, the evidence was the conduct of the accused in brandishing the gun, waving it around andpointing at it while screaming, “this is a hold up.” The witnesses’ description of it as “small” and “black” and having 6-8 inch muzzle. Irecognize that in this case there was the distinguishing feature (not present here) that the accused has ready access to guns according totestimony of others. - In R. v. Richards, (2001) (ON CA), O.J.

No. 2286, the evidence was the description of the gun given by thewitnesses, the circumstances surrounding the use of the gun, namely that people were threatened with it and that the accused had readyaccess to guns. (Again, not in evidence here.) 20 It will be up to the jury to determine based on the totality of the evidence whether the gun was real or fake. They will consider thecircumstances of the event, the words and conduct of the accused, the reaction of the witnesses in the context of the event.

Here, the jurywill consider the evidence about: - The nature of the argument, including the fact that it was unplanned; - The conduct of the accused including the description of his use of the gun; - His threat to shoot; - The reaction and belief of the witnesses. 21 Depending upon the evidence believed and relied upon by the jury, they could be satisfied beyond a reasonable doubt that the firearmwas real. It will, however, be up to the jury to make that determination. (R. v.

Grizzle, (2012) 2012 ONSC 2478 , OJ No. 1795(SCJ) paras 19-21) [14] As is obvious from the above citation, this decision was at a Preliminary Inquiry and was prompted by an Application for adirected verdict which was ultimately denied. [15] In R. v. Wills, 2007 ONCJ 605 , [2007] OJ No. 5691 (OCJ), the accused were charged with, amongst other offences,possession and trafficking of illegal firearms. A rap music video released by the accused where they appear to be holding firearms causedpolice to commence their investigation.

The police intercepted communications between the accused in which they discuss theirpossession and trafficking of firearms. [16] The accused argued at the end of their Preliminary Inquiry that there was insufficient, or no, evidence that the guns shown invideo were in fact firearms, nor was there evidence that the guns they were discussing in the intercepted communications met thedefinition of ‘firearms.” At paragraphs 31-32 the Court stated the following with respect to circumstances where a firearm is notrecovered: 31 I agree with Mr.

Genua’s submission that where a firearm is not recovered, the case law requires more than just a reference inconversation to a gun, or a mere depiction of one in an image, in order to come to a reasonable conclusion that the gun is an operablefirearm. Other factors such as the circumstances of its use, its description, the conversation or images surrounding its possession, or anyexpert evidence tendered must permit a jury to conclude beyond a reasonable doubt that it was a real firearm. In short, the totality of thecircumstances and evidence must be taken into account.

In this regard, I have considered the following cases provided by the Crown anddefence: R. v. Charbonneau, (2004) (ON CA), O.J. No. 1503 (C.A.); R. v. Richards, (2001) (ONCA), O.J. No. 2286 (C.A.); R. v. Abdullah, (2006), O.J. No. 3936 (C.A.); R. v. Carlson,

(2002) O.J. No. 1884 (C.A.); R. v. Fakomi et al.(unreported decision of Hackett J., Ontario Court of Justice, released February 28, 2007) and upheld on review by Trafford J. in R. v.Campbell,

(2007) O.J. No. 2578 (S.C.J.); R. v. Wilson,

(2006) O.J. No. 3065 (O.C.J., Lipson J.); R. v. Mills,

(2001) O.J. No. 3675(S.C.J.); R. v. Guzzo, (2007) (ON SC), O.J. No. 3306 (S.C.J.); R. v. Sibbeston, (1991) (NWTSC), N.W.T.J. No. 85 (S.C.); and R. v. Osiowy,

(1997) A.J. No. 98 (C.A.). 32 I agree that Lipson J. in the Wilson case that the principle which emerges from the case law was succinctly stated by Eberhard J. in R.v. Mills when he said: Where all the circumstances lead to an inference that the item looking like a firearm is a firearm, it is open to the trier of fact to drawsuch an inference.

[17] At paragraphs 36-37, the Court had the following to say with respect to its analysis of the evidence and permissible inferences: 36 In relation to counts 12 and 13, Mr. Wilson’s own communications support the fact that he possessed a real firearm during the time ofthe wiretap authorization, with the strongest evidence of this being his admission that he moved his gun so that the police wouldn’t findit if they raided his house. Indeed, in tab 18, EX 1C, pp. 4-5, Mr. Wilson doesn’t even use the slang term “burner” or “thing” that Sgt.Bobbis testified was frequently used as slang for a gun: in this call Mr.

Wilson specifically says that his grandmother told him to “takethe gun out.” In a conversation the next day, he continues the story of his grandmother’s dream about the gun with Leighton Bonnick,who asks him, “and you had the machine in the house too?”, and Mr. Wilson responds, “I had it there the other day.” They go on to talkabout the fact that Mr. Wilson had the “little teeth,” but he moved out everything, even his “food.” Bonnick agrees, saying “anything thatcan incriminate you king man” and Wilson responded “yeah”: see tab 22, EX 1C at pp. 60-62. 37 Sgt.

Bobbis testified that “machine” was a reference to the gun, and the “little teeth” were the bullets. He noted that “food” wasguarded contextual language for drugs, testifying that in his opinion the conversation was about Mr. Wilson moving his gun,ammunition and drugs so that the police would not find anything incriminating if they came to his house. In light of Mr. Wilson’s ownreference to a gun, a jury could find this

interpretation a very reasonable one. [18] Ultimately the Court in Willis concluded that there was indeed evidence that would permit a jury to find beyond a reasonabledoubt that the accused Wilson was in possession of a firearm.

This evidence included, and I paraphrase: - An expert who viewed the video opined that the accused was holding a large calibre revolver and that he was holding it in amanner consistent with it being operable; - The accused were seen in the video apparently revealing ammunition loaded in the gun; - The lyrics surrounding the display of guns in the video suggested a gang lifestyle involving the sale of drugs, with guns to protectdrug territory; and - The intercepted communications that indicate the accused was committing real crimes in relation to drugs and guns. - R. v.

Willis, (2007) 2007 ONCJ 605 , OJ No. 5691 (OCJ), at para 33 [19] From a review of the above cases, it appears that in determining whether a firearm satisfies the Code definition the trier of factmay consider the following evidence: - Witness of accused description of the firearm; - A witness’ belief as to the firearm; - The accused’s handling of the firearm; - The context or circumstances of the accused’s handling such as threats to shoot, argument; - The accused’s access to ammunition; - The accused’s conversations in relation to the possession or use of the firearm; - Expert evidence; - Evidence to the contrary B- Drug offences Conspiracy [20] The elements of conspiracy are (

i) an intention to agree, (ii) the completion of the agreement and (iii) a common unlawfulobject. In a conspiracy case, the offence is complete upon the agreement being made – no acts in furtherance of the conspiracy need beproven. Obviously, acts in furtherance may provide circumstantial evidence of the agreement at the center of the conspiracy. (R. v. Root,

2008 ONCA 869 , [2008] O.J. No. 5214 (C.A.) at para. 65-67; leave refused 2009 Carswell​Ont 6604 (S.C.C.)) “The essence of criminal conspiracy is proof of agreement. On a charge of conspiracy the agreement itself is the gist of the offence:Paradis v R. [ (SCC), [1934] S.C.R. 165], at p.168. The actus reus is the fact of agreement: D.D.P. v. Nock [[1978] 3W.L.R. 57 (H.L.)], at p. 66 ... There must be evidence beyond a reasonable doubt that the alleged conspirators acted in concert in pursuitof a common goal.” R. v. Papalia and Cotroni, (SCC), [1979] S.C.J. No. 47 at p. 16. [21] In R. v.

Sokoloski, the Supreme Court of Canada held that the agreement of one Mr. Davis to obtain, transport and deliver to thepurchaser, the accused Sokoloski, a significant amount of methamphetamine for resale constituted a conspiracy to sell that drug. The keycomponent to the buy/sell conspiracy agreement is the purchaser’s intention to resell and the supplier’s knowledge of and agreement tothis plan. The court reversed the lower court decision, which would have required joint participation by both parties in the transportationor delivery of the methamphetamine.

The Court said: In my opinion it was an error in law to hold that in order to establish a conspiracy, as charged, it was necessary to prove an agreementbetween the parties jointly to manufacture, sell, transport or deliver a controlled drug, without the requisite authority. The evidenceestablishes that Davis agreed with the appellant, at the appellant’s request, to obtain for him, and to transport and deliver to him asubstantial quantity of prohibited drugs. The appellant agreed to pay Davis for these services. This was a deal for the sale of drugs with a resale value of $9,000.

The purchase by the appellant was not for his own consumption, but,as found by the trial Judge, for the purpose of resale, i.e. for trafficking. Had the deal been consummated and the drugs received by theappellant, in the light of the trial Judge’s finding, the appellant would have been in breach of s. 32(2) of the Food and Drugs Act bybeing in possession of prohibited drugs for the purpose of trafficking within the meaning of the Food and Drugs Act. In my opinion, that agreement constituted a conspiracy to traffic. R. v. Sokoloski, 1977 CarswellOnt 472 (S.C.C.), at para. 26-28 [22] In R. v.

Longworth, Freeman, Newton and Wolfe the Ontario Court of Appeal held that where a trier of fact concludes that thereis an agreement between a buyer and seller where the purchaser agrees to acquire a large amount of marihuana not for personal use, butintended for resale, and that the supplier was aware of the intention to resell, then this agreement would constitute a conspiracy to trafficin marihuana: The jury would also be warranted in finding that the quantity of marihuana intended to be purchased by Newton was so large that it wasnot purchased for his personal use, but was intended for resale, and that Wolfe was aware that Newton was purchasing the marihuana forresale.

If the jury had made those findings the agreement between Wolfe and Newton for the resale of marihuana would have constituteda conspiracy to traffic in marihuana: See Sokoloski v. The Queen (SCC), [1977] 2 S.C.R. 523. R. v. Longworth, Freeman, Newton and Wolfe, 1982 CarswellOnt 1318 (C.A.) at para. 36 [23] In R. v. Sohrabian the Court of Appeal considered charges of conspiracy in the context of a buy/sell transaction. Court adoptedthe reasoning in R. v. Sokoloski and R. v.

Longworth and ultimately found that there it was sufficient to prove a conspiracy in a buy/selltransaction where there is proof that the seller knew that the purchaser intended to resell the drugs in question: The appellant also submits that even if it is proven that the appellant provided or sold the dreys to Mirshakan who in turn sold to theundercover agent the transaction is a “buy-sell” transaction & conspiracy to traffic is not made out. The quantity of heroin involved in this case is so large that it was obviously intended for resale & not for [sic] personal use, to theknowledge of the appellant.

The agreement between the appellant & Mirshaken accordingly [illegible text] an agreement to traffic inheroin: Rolosk [sic] v. The Queen (1977) (SCC), 33 C.C.C. (2d) 496 (SCC); R. v. Longworth (1982) (NL CA), 69 C.C.C. (2d) 554 (Ont. C.A.). In any event, the evidence indicates that the appellant & Mirshaken, were in partnership withrespect to distribution of the drug. R. v. Sohrabian 1993 CarswellOnt 2599 (O.C.A.) para. 2-3

Types of possession [24] Section 4(3) of the Code identifies three forms of possession: personal, joint and constructive. Under each form of possessionthe key elements of knowledge and some act or measure of control must be established. (R. v. Terrence, (SCC), 1983CarswellOnt 67 (S.C.C.)) [25] Knowledge and control need not be proven by direct evidence but may be inferred from surrounding circumstances. In order toestablish constructive possession, the Crown must demonstrate not only that the accused knew of the existence of the item, but also thatthe accused exercised some measure of control over it.

More specifically: “In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge whichextends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed.” (R. v. Pham 2005CarswellOnt 6940 (O.C.A.) at par 15; aff’d 2006 CarswellOnt 3765 (S.C.C.)) [26] The key elements to establish joint possession are knowledge, consent and some measure of control on the part of the persondeemed to be in control. More specifically: (R. v.

Pham, 2005 CarswellOnt 6940 (O.C.A.) at par 16; aff’d 2006 CarswellOnt 3765(S.C.C.)) The Evidence [27] As already noted, the bulk of the evidence to be considered by the Court is in the form of intercepted communications and textmessages. These will be considered in a count-by- count review of the Information. In addition to that, the Court also heard of twoundercover operations and various instances of surveillance. These will also be considered within the individual counts.

Counsel for theaccused admitted that none of the accused had legal authority to possess or transfer firearms or other restricted or prohibited weapons. Expert evidence Mr. Michael Press [28] In a previous ruling, Mr. Press was qualified as an expert in the following areas: 1) Firearms, classification, identification, testing and street pricing; 2)

Interpretation of street and coded language as it relates to firearms. [29] In the course of the project Lancaster investigation Mr. Press was approached by the Ottawa police service and given 120 textsto review and analyze. Those texts are found amongst those filed as Exhibit 4 on the trial. M. Press produced a report explaining whenand why, in his view some of the exchanges related to firearms. Mr. Press has been involved in investigations of this nature for manyyears. He is highly familiar with the terminology used to conceal conversations where firearms are discussed.

He emphasized thatunderstanding the messages requires some familiarity with firearms and street language but that the overall context of the messages willalso inform any

interpretation of the words. In addition, just as one line may inform another, a series of texts may inform another. [30] I have not reproduced Mr. Press’ evidence but rather have referred to it within the counts to which it applies. Overall I foundMr. Press’ evidence to be very helpful and balanced. Detective Chris O’Brien [31] Detective O’Brien from the Ottawa police service was qualified as an expert with respect to gun classification, identification,testing and street pricing as well as coded language in relation to firearms.

Detective O’Brien reviewed the wiretap conversations thathave been filed as Exhibit 8 in order to arrive at an opinion with respect to whether the activities described in those conversations amountto firearms trafficking. As with Mr. Press, Detective O’Brien considered more than just the individual conversations but also the broadercontext of the investigation in order to arrive at his opinion. Detective O’Brien’s opinions are referred to within the review of theindividual counts. [32] Detective O’Brien gave evidence with respect to the street value of various calibers of firearms.

He indicated that a semi-automatic firearm of mid to high quality would have a street value of $2,000 to $3,000. In his view the seized Rigami .25 would perhapshave a value lower than that. He noted that a part was missing but this was easily overcome. A .9mm would have a mid-range street

value of $3,000. Two thousand dollars would be at the low end while four thousand would be at the high end of the range. In his view $5000 was a very high price, even for a good .45 firearm, such as a colt .45. He gave an example of a Desert Eagle, a .50 calibre weapon as being at the upper end of the price range because it is a large “tv” gun. He advised that on the black market price is often based on size (conceal ability), capability, desirability, looks and prior use in a crime.

Detective Jamie Foley [ 33 ] Following a qualifications voir dire , Detective Foley was qualified as an expert in the following areas: - The use, distribution, pricing, packaging and trafficking of cannabis marihuana; - Jargon, coded language and terminology related to cannabis marihuana; and - Details of production and distribution, paraphernalia, practices, habits and consumption patterns of drug users and traffickers. [ 34 ] Detective Foley considered the intercepted conversations as well as the fruits of the various searches in giving his opinions.

His evidence follows within the relevant counts as well as a consideration of the arguments raised by counsel for the accused as to the strength of the opinions expressed. Searches [ 35 ] On November 20th 2010 a search warrant was executed at 2046 Camrose Street in Ottawa, residence of Devin Mayers. In the basement of the residence police found a 9mm Ruger semi-automatic pistol with ammunition. The serial number had been removed from the firearm. The firearm was classified as a prohibited firearm because it had a barrel length of less than 105mm.

The magazine containing the ammunition was found to be a prohibited device due to its capacity being greater than 10 rounds. The firearm was found by Detective O’Brien to be in firing condition. [ 36 ] On February 10th 2010 a .38 calibre Hopkins and Allen revolver was seized from Shridev Café’s residence at 8-106 Woodridge Crescent in Ottawa. The firearm was classified as a prohibited weapon, was tested by Detective O’Brien and found to be in firing condition. [ 37 ] On February 10th 2011 the residence Alexander Lacroix at 97 Rideau Street in Ottawa was searched by police.

Police seized a Kimber custom II .45 calibre semi-automatic handgun, loaded with seven rounds of ammunition.

This is a restricted firearm and was found by Detective O’Brien to be in firing condition. [ 38 ] On March 9th 2011 the following items were located at 967 Eifel Avenue, the residence of Tristan Jones and Natasha Duckworth: - 9 cell phones, 2 in their original boxes; - 3 baggies of marihuana (total of 10 grams); - 2 sandwich bags of marihuana (total of 77 grams); - 2 boxes of Ziploc bags; - 1 bag containing 6 individual bags of marihuana (total 24.5 grams); - 1 baggie with 7 grams of marihuana; - 2595$ in Canadian currency; - 1160$ of American currency; - 30 ml of hash oil and 2 ml bottle of oil; - Various SIM cards; - Digital scale; - Various cell phone chargers. [ 39 ] On the same date police executed a search warrant at 312-1365 Bank Street, the residence of Jermaine Smith and Lovely Javier.

The following was seized: - 5 cell phones;

- 315$ in Canadian currency; - 3 rolled marihuana cigarettes (2.5 grams); - A steel butterfly knife; - Ziploc baggie of marihuana (8.3 grams); - Digital scale. [ 40 ] Jafari Waldron’s residence at 94 Lebreton St. was searched on March 9, 2011. Amongst the items seized was a gun cleaning kit and several phones, including one with a screensaver reading Karina Almeida Waldron. Detective O’Brien examined the gun cleaning kit advising that he was familiar with such kits and that this particular was very nice.

He indicated it could clean firearms from a .22 caliber up to a 12 gauge shotgun. [ 41 ] On March 9th 2011 Ottawa police searched the residence of Ibrahim Iman at 217 Price Albert Street in Ottawa. Police seized the following amongst other items: - Browning 9mm semi-automatic handgun, being a restricted firearm. It was later tested by Detective O’Brien and found to be in working order; - 9mm ammunition; - Rigarms .25 calibre handgun. This firearm is classified as a prohibited on due to its barrel length of less than 105 mm.

It was found to be in firing condition; - .25 calibre ammunition; - .38 Special ammunition box - Mason jars containing marihuana (26.3grams); - Black backpack containing 2 plastic bags with marihuana (189.4 grams); - Digital scales; - Cell phones; - $2205 Canadian currency. [ 42 ] Still on March 9th 2011, Bert Dionne was arrested and his residence at 1811-1365 Bank Street was searched.

The following was located: - 5 sandwich size bags of marihuana (214.9 grams); - Scale and baggies; - Large blue Rubbermaid bin and lid containing 12 large freezer bags of marihuana (2668.7 grams); - 1 large freezer bag of marihuana (215.7 grams); - Cell phones. [ 43 ] Also on March 9th 2011 a search warrant was executed at 549 Foxview Place, residence of Christian Farhat.

The following was located: - Debt lists; - 975$ in Canadian currency; - A cooler containing Ziploc bags of marihuana (1346.7 grams); - 16 large Ziploc bags of marihuana and 3 small bags (1627.7 grams); - A digital scale. [ 44 ] On March 9th 2011 a search warrant was executed at 2233 Route 309, Notre-Dame-de-la Salette, Quebec, a residence associated with Robert Meyer. The search of the residence yielded the following: - Fertilizer, bone meal, jiffy pellets; - Green moisture meter, 2 dehumidifiers; - A Melnor device; - Sealing machine with plastic;

- Electronic scale; - 336 mature marihuana plants; - 95 marihuana clones; - Electric wires and panels; - 12 lamp shades; - Fans, capacitors, filters; - Calendar and harvest instructions; - Drying shelves. Background information regarding December 4 2010 shooting [ 45 ] On December 4th 2010 at approximately 4am, a person or persons fired gunshots at 1079 Barwell Avenue in Ottawa. Shots were fired through the front door of the residence. Several rounds were logged in drywall inside the home.

At least two rounds were logged in the sofa inside the home, one intact 9mm projectile was found in the front hall floor, and one round went through the back door and struck the residence behind 1079 Barwell Avenue. There were 9 bullet holes through the front door, and 10 spent 9mm firearm casings were found on the front lawn of the residence. Car tire track were observed on the front lawn. This is the residence of Uma Thomas, who is Jensen Thomas’s mother.

Jenson Thomas is also known as “J-Dawg.” [ 46 ] The shooting on December 4, 2010 prompted a flurry of calls between Waldron and Smith as well between Smith and others, including Jensen Thomas. There was speculation as to the motive for the shooting, any response or retaliation to the shooting and efforts to obtain firearms. Smith and Waldron were the go-to men for those firearms: - Jensen asks Smith to lend him a “ting” 1 hour following the shooting.

Smith directs Jensen to his cousin Waldo. (Exhibit 8, Tab 79 sessions 813) - Smith tells Waldron of the shooting and of Jensen’s need for a “thing” (Tab 80, session 835) - On December 5 th , 2010 Smith speaks to an unidentified person suggesting that those who had done the shooting would get dealt with and that he himself was just waiting for the call. (Exhibit 8, Tab 82, session 941) - Later that night, at 10:29 Smith and Waldron speak and Smith tells him of people at “Smooth’s” house with “tings” looking for him. (Exhibit 8, Tab 84, session 1018) - Within a minute, at 10:30 Smith receives a call from a male who indicates: “these niggas are lookin for my crib and tings”.

Smith responds with: “so you need Jaf’s number”. The answer is “I need a ting”. (Exhibit 8, Tab 85, session 1018) - At 10:32 Smith again speaks with Waldron and advises him: “the nigga wants to get a ting you know”. He clarifies that this relates to Thomas and Smooth and their common situation. (Exhibit 8, Tab 86, session 1022) - At 10:36 the two speak again and this time Waldron suggests that “if the man wants a thing just tell him yo there’s a thing for five.” Smith appears taken aback by the number.

Ultimately Waldron tells Smith to tell the caller the “digits”. (Exhibit 8, Tab 87, session 1024) - On December 6, at 1:39 pm, Smith is speaking with an unidentified caller and tells him of the price for a “ting”. He tells the caller that “he’s pushing it for too much dawg”. Smith puts the person off, explaining why the price is too high. (Exhibit 8, Tab 89, session 1064) - At 10:52 pm that same day, Smith speaks with an unidentified male who tells him of the people responsible for the J-Dawg shooting.

The male tries to borrow and then asks Smith to assist in getting a “ting”: - U.M.: Yeah but me I just need a ting in case I’m with niggas ‘cause they’s my niggas you know - Smith: Yeah - U.M.: Just in case they gonna pop at me too you know I’mma have to pop back like you know I’m not just gonna sit there - Smith: Too much talking on the phone - U.M.: Yeah yeah yeah real talk - Smith: But if anything if anything nigga ‘round I’ll holl’at you - ( Exhibit 8, Tab 91, session 1118 ) - On Dec. 7, 2010 at 3:11pm: Mr. Smith calls someone named “Miami.” They discuss the person who called Mr.

Smith to say he was in danger. Miami responds “I got my own things to deal with—enough problems of my own to be worrying about fucking niggas

blazing at each other ah left right and centre over fucking stupidness you know.” There is some further conversation where Smith asks Miami if he can “line them ting up”. ( Exhibit 8, Tab 92, session 1152 ) - A few days later, on December 10, 2010 at 3:02 in the morning, Smith discusses the Thomas shooting with a “Mike”, especially the lack of reaction to it. ( Exhibit 8, Tab 97, session 1380 ) [ 47 ] While the accused are not charged with any offences arising out of the above exchanges, they are nonetheless significant in highlighting Smith and Waldron’s repeated discussions of a ‘ting’ which, taken within the context of these calls clearly refers to a firearm.

This is relevant in considering that term in other conversations where the references may be more veiled. In addition, the reaction to the $5000 price also shows Smith is knowledgeable about firearm pricing. Overall, the conversations are part of the entire context to be considered by the Court in determining the various elements to be proven on the different firearm counts, especially as it may relate to “proving” the firearm and the seriousness of any offer to transfer.

Count by Count analysis Preliminary Issue A - Voice identification [ 48 ] At the beginning of trial, counsel for all accused indicated that voice identification of their clients on wiretaps was not admitted. Ultimately, on December 20th 2012, it was conceded by all accused.

While it may not be disputed for the wiretaps, because authorship of the text messages is disputed by Jones and Waldron, I will briefly outline the basis of the voice identification. [ 49 ] Two volumes of transcripts of the wiretaps were filed (Federal Exhibit 7; Provincial Exhibit 8 and 8B) along with a USB with all of the recordings. (Exhibit 8C) Jafari Waldron 613-700-0133 Subscriber information: Paul Morris, 300 Cambridge North suite 101, Ottawa, Ontario. [ 50 ] On February 16, 2011 a phone call is placed to Jafari Waldron at the above telephone number. (Exhibit 8 session 595 ) In that phone call, Waldron self-identifies as the user on that phone.

Given that the substance of that conversation deals with Mr. Waldron’s children it leaves little doubt that Mr. Waldron is indeed the person being dealt with. Furthermore, at session 6780 on March 2, 2011 Mr. Waldron again self-identifies on the 613-700-0133 phone number. The context of the conversation, namely dealings with Canada Revenue Agency, makes it clear that the caller is indeed Mr. Waldron. 613-237-2095 Subscriber information: Jafari Waldron, 94 Lebreton St North, unit 2, Ottawa, ON. [ 51 ] On March 2, 2011(Session 1096) Mr.

Waldron self-identifies for a company he is attempting to contact using this number. At the time of the police searches on March 9, 2011, police seized mail addressed to Jafari Waldron at 94 Lebreton Street in Ottawa. Also seized at the time was a banking statement in the name of Almeda Karina at the same address. [ 52 ] I do note that throughout the intercepted telephone conversations there is a consistent use of nicknames including, Jaf and Waldo. I am certainly satisfied that it is Mr. Waldron who is captured on the intercepted communications.

Tristin Jones [ 53 ] Detective Benson gave evidence that he listened to the intercepted conversations and recognized Mr. Jones’ voice. I myself have listened to a number of the intercepts and am satisfied that Mr. Jones is speaking for the following reasons: distinctive accented voice, an occasional stutter; and identification in some instances of his own residence as well as his children in various activities.

[ 54 ] Mr. Jones is heard and identifiable on telephone lines: 613-723-0597; 613-799-9331; 613-818-5306; 613-899-5403. The subscriber information for 613-723-0597 is Natasha Duckworth, 967 Eiffel Av. Ottawa, ON. Jermaine Smith 613-315-3345 Subscriber information: Perry Wayne 2269 Riverside Drive, Ottawa, ON [ 55 ] At session 4804 on March 8, 2011, Jermaine Smith has a conversation with an unidentified male and ultimately self-identifies as Jermaine Smith. The conversation pertains to a company listed as Aero Inc, attempting to collect an outstanding amount from Mr. Smith.

Having listened to the intercepts where Mr. Smith is alleged to be involved in the phone calls, I also note a frequent distinctive high pitch laugh. Mr. Smith is also heard and identifiable on telephone line: 613-315-6334. Mr. Smith is not alleged to have sent any of the text messages at issue.

B - Text message authorship [ 56 ] With respect to the text messaging, while there is not the advantage of voice recognition by the investigating officer or the ability to listen and recognize the voices, it is not impossible for the Crown to demonstrate beyond a reasonable doubt that the alleged individuals are indeed the authors of the text messages. The Crown must demonstrate through an accumulation of circumstantial evidence the individuals the messages are attributed to are indeed their authors.

In that regard, the information as it pertains to the voice identification is certainly a relevant factor with respect to the text messaging.

Accordingly, I believe the following factors to be persuasive in establishing a link between the number and the authorship of the messages: - The phone number itself, whether it was used by the individual in the voice identified communications or any admissions concerning the number; - Billing information and again consistency with voice identification; - The number of messages and consistency in the nature of communication; - Any surveillance or other physical interaction linking the number to the user; and - Self-identification or signature type information.

Jafari Waldron 613-806-6582 The subscriber information: Kurt Gilles of 401-300 Cambridge St., Ottawa, ON. [ 57 ] This information is not verified by Telus but is rather self-disclosed information. As noted with respect to phone number 613- 700-0133 above, the address is once again at 300 Cambridge St., an address. Detective Benson testified that Mr. Waldron lived there at some point. [ 58 ] Number 613-806-6582 is used consistently in communication with 780-278-7592. It is clear from the 700 text messages and 200 telephone conversations that there is some sort of relationship ongoing between the two parties.

Throughout, the author of the messages indicates “call me, it’s Jaf” or simply “call me.” In some instances there is daily communication and in many of those communications the author of the message from 613-806-6582 refers to himself or the author of the message from 780-278-7592 calls him “Jaf“ or “Staks”. It is significant to note that the time period of these communications is between August 5th, 2009 and June 30thth 2010. [ 59 ] On the 23rd and 24th of November 2009 there are extensive communications with 780-278-7592 both to and from the numbers consistent with the prior conversations where Mr.

Waldron self-identified. In addition, on November 25th 2009 at 16:19:06 a text message is sent from 613-806-6582 to 613-552-9450. The extent of the text is “It’s Waldo.” [ 60 ] On the 23rd of December 2009 the user of 613-806-6582 texted 780-278-7592 and advised that his father had just been stopped by police in the course of a traffic stop and to stop texting him. Evidence was adduced by way of an admission with respect to a traffic stop by police of Mr.

Waldron Sr. on the date in question. [ 61 ] Beyond the communications with the caller at 780-278-7592, the user of 613-806-6582 also refers to himself as Jafari Waldron, Waldo, Stacks, Jaf or Jaff on numerous other occasions. On one such occasion he not only advises “its Jaff” but confirms that the 613- 806-6582 is his number. In addition there are numerous communications with individuals where the user is called Stacks or Jaff or Waldron. There is an especially high volume of such texts with the user of 780-278-7592, but also with 613-897-7462 with whom there is also a relationship and children.

These texts also run from August 2009 to June 2010. [ 62 ] Finally, the investigating officer, Detective Benson testified that in April of 2010 he noted a decline in activity with number 613-806-6502. As a result, he telephoned that number. He was able to confirm a voice mail indicating a new number of 613-282-6452.

613-282-6452 [ 63 ] Subscriber information obtained from Telus and found at Exhibit 24 indicates that the above number is registered to a Christian Wallace at 301-300 Cambridge Street, Ottawa. As noted earlier, Telus does not verify subscriber information. That having been said, as with the prior numbers, there is some consistency in that address and its appearance on the subscriber information. As with number 613-806-6582, there are many instances of texting with the users of 780-278-7592 and 613-897-7462. [ 64 ] The circumstantial evidence associating Mr.

Waldron to phone numbers 613-806-6582 and 613-282-6452 demonstrates the following: - a pattern of use of those lines with other users including 780-278-7592 and 613-897-7462 suggesting un-interrupted use; - a pattern of conversations, including instances of self-identification similar to those found on the intercepted communications; - the traffic stop on December 23 rd 2009 where Waldron is a passenger in the vehicle and texts 780-278-7592 confirming the event and his use of 613-806-6582; and - a consistent association with 300 Cambridge St.. [ 65 ] I have not been directed to any texts in the hundreds filed at Exhibit 4 that would support a theory that someone else, even occasionally used the phones or that Mr.

Waldron was not the exclusive user of the two phones. In view of the overwhelming evidence, that soundly belies coincidence, I am satisfied that the Crown has proven beyond a reasonable doubt that the user of both 613-806-6582 and 613-282-6452 is Jafari Waldron and that he sent the texts from those numbers. Tristin Jones 613-799-7529 Subscriber information: Natasha Duckworth, 967 Eiffel Ave., Ottawa, ON. Contact number: 613-723-0597 (same subscriber information as 799-7529) User address 670 Chapel St., Ottawa, ON. [ 66 ] I have reviewed the call logs obtained through a Production Order and filed as Exhibit 23.

The Production Order covers from August 5, 2009 to January 5, 2010. The logs for 613-799-7529 show regular contact between that number and 613-806-6582. In this case, regular contact means contact on almost a daily basis, sometimes multiple times a day. On November 25, 2009 only there are approximately 18 contacts between the two numbers [ 67 ] On January 29, 2010 Constable Lafleur of the Ottawa Police Service met Mr. Jones at a Canada Border Service Agency Office in Ottawa. Mr. Jones ultimately gave the officer a piece of paper with the name “Jason” and number 613-799-7529. When asked by the officer, Mr.

Jones confirmed that the number was his. Later on, the officer exchanged text messages with Mr. Jones using that number. In addition, Detective Shabbaz testified that when he encountered the accused at Le Spot clothing store in Ottawa in January 2011, he gave his name as “Jason”. He also heard him called “Dreads” by staff at the store. [ 68 ] On November 25, 2010, (Exhibit 8, tab 3 session 175) Mr. Jones confirms his home phone number as 613-723-0597. The home phone number is registered to his spouse at their home address where police conducted surveillance and confirmed Jones’ association with it.

Number 613-799-7529 is registered to the same person at the same address. Counsel for Mr. Jones admitted that Mr. Jones used the phone despite it being registered to his spouse. [ 69 ] The circumstantial evidence associating Mr.

Jones to phone number 613-799-7529 demonstrates the following: - a pattern of use with Waldron suggesting un-interrupted use; - the undercover police operation confirming Jones’ number, his use of it and subsequent texts sent to that number; - an admission as to use; - consistent subscriber information including secondary telephone number; and - a consistent residency at 967 Eiffle Ave. [ 70 ] In view of the evidence I am satisfied that the Crown has proven beyond a reasonable doubt that the user of 613-799-7529 is Tristin Jones and that he sent the texts from that number.

Counts #1- #8 That Tristin Jones did transfer a firearm between January 1, 2009 and January 27, 2011. [ 71 ] The Crown alleges that Tristin Jones transferred 8 firearms to unknown persons between January 1, 2009 and January 29th 2011. The Crown does not seek convictions on all eight counts but rather concedes that the gravamen of the offence is captured with one conviction only. [ 72 ] The evidence in support of this count came from an undercover officer named Umer Shabazz. Det. Shabazz was made aware of the investigating team’s belief that Jones was trafficking in firearms in Ottawa.

Detective Shabazz’s objective was to get close to Tristin Jones and buy a weapon from him. [ 73 ] On December 21st, 2010 Det. Shabazz attended at the Spot Clothing Store on Rideau Street. Prior to attending that location, the officer had been shown a photograph of Jones in order to identify him. The officer attended the store and stuck up a conversation with a worker there. Approximately 15 minutes later, Mr. Jones entered. There was initial conversation with respect to their countries of origin. During their conversation, Mr.

Jones indicated that he had been in Canada for 10 years and ran a small business selling macaroni pie and flying fish. In response, Detective Shabazz indicated that he had a small business including shipping items to Haiti and Nigeria. No specifics were given with respect to the type of items. Shabazz gave his cell phone number to Jones who indicated that he would call. In the course of the conversation, Mr. Jones advised that he went by the name Jason. However, while in the store, he was referred to as ‘Rasta’ by one of the other workers. [ 74 ] The conversation with Mr.

Jones lasted some 40-45 minutes concluding when the officer indicated to Mr. Jones that he would be back in town in the New Year. Following this meeting with Mr. Jones, the Detective returned to the Ottawa police station where a debriefing took place. Within the next 2½ hours the detective completed notes with respect to the encounter. [ 75 ] On January 6th 2011 Detective Shabazz attended Ottawa and went to the Spot Store. On that date, he had no direct interaction with Mr. Jones. He did go into the store however and asked for Mr. Jones’s home phone number. It was not given to him.

Detective Shabazz left his phone number and asked that it be given to ‘Rasta’. [ 76 ] A second meeting with Mr. Jones took place on January 27th 2011. Detective Shabazz was back in Ottawa to try and meet with Jones and show him various pictures of firearms. Detective Shabazz attended the Spot Clothing Store at 7:53 pm. At approximately 8:00 pm Mr. Jones entered the store. Some discussion took place with respect to Barbados and a few minutes later the two left the store and went for tea at the Tim Hortons next door. [ 77 ] Once the two men were seated, Detective Shabazz asked Mr.

Jones if he was “solid” to which Jones replied, “yes.” Detective Shabazz then took his cell phone from his pocket and showed Jones various pictures of handguns. In all, 8 photos were shown to Mr. Jones. Mr. Jones looked at them while the officer held the phone. Nothing was said by either man. Following the display, the officer explained to Jones that he and a partner buy guns off the street and ship them to Haiti and Nigeria. He then asked if he knew anyone in Ottawa who could connect them so they could purchase guns. Mr. Jones said that he had a good friend from Montreal he could connect them to. Mr.

Jones asked what kind of money would be paid for the firearms to which the officer responded between 2500$ and 3000$ each. Mr. Jones asked if the guns needed to be “clean.” The officer responded that it did not matter as the guns were leaving the country. [ 78 ] Detective Shabazz testified that Mr. Jones went on to say that the friend from Montreal brought him 6 guns last year and that he got rid of them very fast. He then stated that he had had two this year and that they were now gone. He said that he had a few shells at home. He said that whenever he gets something like that, he gets rid of it right away.

He said that people in Ottawa are always asking for stuff but when it’s time to pay, you can’t find them. He said he would make calls to his friend in Montreal. [ 79 ] Mr. Jones then digressed from the topic of the firearms per say and went on to discuss the trouble he had been having with the police and harassment which he reported to a Jamaican Sergeant in the OPS. He also spoke of a Lebanese Sergeant in charge of the DART unit, describing him as a big man. [ 80 ] Officer Shabazz also reported the following from Mr. Jones: that a man from Edmonton was selling guns in Ottawa and that he dealt with his cousin.

This male had been arrested in Edmonton with 8-10 guns and 2 silencers. The guns were shipped on Greyhound busses in old bags. The male would accompany the guns from Edmonton to Ottawa. When asked how much time the male got, Mr. Jones indicated that his cousin hadn’t mentioned that. [ 81 ] Mr. Jones stated that he also had another contact from Cornwall but had not seen him for a while. He furthermore advised that this contact would require that the items be picked up in Cornwall. Shabazz indicated that he need only set up a meeting. The officer further reported that Mr.

Jones stated that he would contact him very shortly and would make the required phone calls. Both individuals left the Tim Hortons at approximately 8:53 pm having spent 40-45 minutes there. The officer had no clear recollection as to the environment immediately surrounding them. The officer advised that the conversation was a very soft one but one where the tone was of two buddies carrying on a conversation. [ 82 ] As with the prior meeting, this was debriefed at the Ottawa police station.

By 9:30 the debriefing was over and the officer made his notes 45 minutes later. [ 83 ] Between January 27th and February 16th 2011 there was no communication by Jones to Detective Shabazz. The final meeting between Mr. Jones and Detective Shabazz was on February 16th 2011. This was not a prearranged meeting. [ 84 ] The officer arrived at the Spot Clothing Store at 7:45 pm and asked for Mr. Jones. The officer also asked for a phone number for Jones. The officer, was told that it was unlikely that Mr. Jones would attend given that was his daughter’s birthday.

He and another officer who was present, indicated they would hang out for a few minutes in case Jones attended. At 8:16 the officer received a phone

call from his police handler that Mr. Jones was coming to the store. [ 85 ] Five minutes later, while they were on the sidewalk Mr. Jones came up to Detective Shabazz. He was very agitated and asked why he had been in the store asking for him. Detective Shabazz introduced his partner and said that they wanted to talk and that they were just there for the night. Mr. Jones said that the people in the store were getting pissed off about people going in looking for him. He said that when he heard from Montreal he would phone but had not heard as of yet. Detective Shabazz stated to Mr.

Jones that he had some serious money and was looking for a piece to buy. He asked whether there was anyone he could put him in touch with. Mr. Jones said no. This was the end of the interaction with Mr. Jones. Again a debriefing took place at the Ottawa police station and subsequently Detective Shabazz went to his hotel and made his notes there. [ 86 ] Nothing further was received from Mr. Jones, nor did the officer see him again. Detective Shabazz had no further involvement with the project. [ 87 ] Throughout his dealings with Mr. Jones, drugs were never mentioned.

The conversations with respect to firearms however were quite nonchalant according to Detective Shabazz. When the firearms were discussed, there was no detail provided by Mr. Jones concerning the nature of those he had disposed of quickly. It was simply to the effect that he had gotten rid of 6. The officer conceded that despite it being a 45 minute meeting, many details were missing from his notes of the various conversations with Jones.

Analysis [ 88 ] Do the words uttered amount to an admission to having transferred 8 firearms and furthermore, is there sufficient circumstantial evidence to support a finding that a firearm as defined in the Criminal Code was transferred? [ 89 ] The evidence in relation to these counts is the words attributed to the accused himself. This having been said, a 45-minute conversation was reduced to approximately 5 minutes of notes. In terms of what is reduced to notes these do appear to be accurate. For example, the information about a larger Lebanese Sergeant in the Dart team was confirmed by Detective Benson.

In addition, the acronym DART (Direct Action Response Team) was also confirmed by Benson as being a

section within the Ottawa Police. Detective Shabazz did concede however that much of the conversation was not within his notes. This is of concern when the entirety of the evidence is words to be attributed to the accused. [ 90 ] The conversation between the undercover and the accused is about guns. The accused describes a process by which guns are transported to Ottawa from Edmonton. He speaks of having a contact in Montreal and getting rid of 6 and then 2 firearms very fast. The argument from the Crown is that “getting rid” within the context of the discussion is a transfer.

Defence suggests that “getting rid” could be a disposal and that there's no real way of being satisfied that the accused did indeed transfer within the meaning of the Code . [ 91 ] Given the factors present here: the early showing of the photos; the question about being solid; the information from Edmonton; the information about suppliers all suggest an active involvement beyond an innocuous

interpretation of "get rid". That having been said, there is only vague information as to when the transfers took place; no information as to what precisely was transferred or to whom. Furthermore, there is no circumstantial evidence of the “firearms” transferred: no acknowledgement when looking at the pictures of types of firearms transferred; no discussion about caliber, make, ammunition, no description at all of an intended or actual use. In my view, the evidence on these counts amounts to what the Court in R. v.

Willis , supra cautioned against: “ [w]here a firearm is not recovered, the case law requires more than just a reference in conversation to a gun, or a mere depiction of one in an image, in order to come to a reasonable conclusion that the gun is an operable firearm.” [ 92 ] While there may have been a general discussion about the transfer of firearms, it does not contain sufficient particulars to allow the court to conclude beyond a reasonable doubt that a transfer of a firearm took place between the dates in question. [ 93 ] I acquit Mr. Jones of these counts.

Count #9: That the accused Jones and Waldron offered to transfer a firearm on November 25, 2009. [ 94 ] The Crown alleges that a series of text messages on November 25th 2009 between Waldron and Jones demonstrate a concerted effort to work together to offer to transfer firearms to an individual at 613-864-3673, namely Shridev Café. I note that an admission was made that the above phone number was registered to Mr. Café. [ 95 ] Was there an offer to transfer, was it meant to be taken seriously and did it involve a firearm as defined in the Code ? [ 96 ] The expert evidence of Mr. Press assists with the

interpretation of the text messages. In his opinion the references to numbers 45, 357, 380, 38 and 9 are references to calibers of firearms, handguns more specifically. In his view the various lines that followed concerned pricing for the firearms and that the sums listed were consistent with medium to high calibre firearms, such as those listed earlier. Mr. Press further indicated that “ting” is a relatively common term that can mean several different things. However, it is also a term that he has often seen associated with firearms.

It was his opinion that given the accompanying information that “ting” did indeed refer to firearms. I also note that beyond simply this particular exchange of text messages, “ting” is a term that appears frequently in both the intercepts and texts messages, often used within a context of a discussion of what appears to firearms.

It is also important to recall that on February 10th 2010 a .38 calibre Hopkins and Allen revolver was seized from Shridev Café’s residence. [ 97 ] I am satisfied that the references are to firearms based on the technical information, the price haggling consistent with the calibers, the expert evidence, the broader evidence including the firearm seizure and the absence of evidence to the contrary.

[ 98 ] It is clear that Mr. Waldron offered a firearm to Mr. Café; “Yo dog, you still want one of those tings you asked for yesterday?” This is followed by a positive response, an inquiry as to the nature of the firearm and price. Mr. Waldron obtains that information from Mr. Jones and then communicates it back to Mr. Café at 613-864-3673.

In the communication between Waldron and Jones on the pricing it is clear they are working together given the language used namely “So dog we give em 3 how we gonna eat?” The price is then communicated to Café and there are arrangements made between Waldron and Café to arrange a time to meet. [ 99 ] Based on the communications between Café and Waldron, it is clear that the offer made was meant to be genuine given the arrangements made to meet. I am satisfied that all the elements of the offence have been made out with respect to an offer to traffic in firearms by Jaffari Waldron. With respect to Mr.

Jones, his actions while not directly with Mr. Café demonstrate direct participation in the offence. Indeed, irrespective of their respective roles, Waldron and Jones worked together in order to ensure that a product was available to be offered to Mr. Café. [ 100 ] As a result, I find both Mr. Jones and Waldron guilty of count 9. Count #10 : Mr. Waldron is charged that he offered to transfer a firearm on November 25 th 2009 to an unidentified individual at 613-325-0545. [ 101 ] At the same time that Mr. Waldron was offering to provide a firearm to Mr.

Café, he was also involved in text conversations with an unknown individual at 613-325-0545. The text messages take place between 13:22:01 and 13:51:48. Mr. Waldron contacts the above number and begins the exchange with: “Remember tha bitch that flipped out in ur crib? Anymans want a twin” The response is: “Ye my bredrons single styll. How much bread does she got?” The response to that is: “2800” followed by a comment “she’s rich. How old is she, mid 40s? 45?” Waldron responds with “5 more she’s 50.” [ 102 ] The technical firearms information is the reference to 45, namely a .45 calibre firearm.

The coded language includes “bitch” in reference to a firearm, “bread” in reference to money and then the price of 2800$. Mr. Press testified that he has seen “bitch” used before with respect to firearms, in particular a shotgun. He also testified that 2800$ is a price consistent with a .45 calibre handgun on the black market. In his view, the overall context was consistent with the previous texts and he was of the view that this referred to a firearm transaction. [ 103 ] Nestled within the exchanges as between Waldron and Shridev Café, the entire context strongly supports the inference that Mr.

Waldron is actively disposing of a number of firearms and offering them to the two individuals he is communicating with. While the conversation with the person at 613-325-0545 is quite brief, it is direct. It is irrelevant whether the transaction took place or not, what I must consider is whether it was meant to be taken seriously. Based on the entire context, including other on-going negotiations, as well as the exchange itself I am satisfied that it was intended to be taken seriously. Given the technical information and Mr.

Press’ evidence in addition to the other contextual information, I am satisfied that the item being discussed meets the definition of firearm. [ 104 ] Mr. Waldron will be found guilty of count 10. Count 11 : That Waldron offered to transfer a firearm on December 22 nd 2009. [ 105 ] The text conversation on the 22nd of December 2009 with phone number 647-206-5859 begins at 9:58:01 with general pleasantries. At 10:04:26 the caller to Mr. Waldron asks “Iz dat gurl stl gna b available?” The response from Mr. Waldron is “She should stil.” This is followed by a question “N hnw old iz she now?” The response from Mr.

Waldron is “Bout 9 to 45.” The response is “Can we nagotiate da papr wrk?” Mr.

Waldron responds “25 minimum.” 10:08:33 from 647-206-5859 to Waldron “Coz it iz knd of steep, no?” 10:09:30 from 647-206-5859 to Waldron “k does she have panties?” 10:09:36 from Waldron to 647-206-5859 “Dog wat man dem a pay over on ur side?” 10:11:42 from Waldron to 647-206-5859 “Dog cop on ur side cuz u sound like a u have d link” 10:13:22 from 647-206-5859 to Waldron “I depndz but i all gud stl i wna know how much da dresser draw cod hld” 10:13:52 from 647-206-5859 to 613-806-6582 “Lol” 10:17:12 from 647-206-5859 to 613-806-6582 “U no me. Always tryin 2 get a gud deal.

Bt da reasn i ask iz cos i jus wna mke sure i get a prpa bitch” 10:19:17 from 647-206-5859 to 613-806-6582 “Plus p has da mst of dem lockd sum were so im only wrkin wit 1 whre nw” 10:26:53 from 647-206-5859 to 613-806-6582 “Coz i need it 2 b reliable coz i hve a little prob n wen i strt i dnt wna stop lol datz da only reasn i even ask bt cream aint no prob”

10:27:49 from 613-806-6582 to 647-206-5859 “Dont worry everyting cris” 10:28:56 from 647-206-5859 to 613-8066582 “Dnt wrry i trst ya judgement” 10:29:19 from 613-806-6582 to 647-206-5859 “Niga lol” 10:31:03 from 647-206-5859 to 613-806-6582 “How much does da draw drssr draw hold” 10:32:20 from 613-806-6582 to 647-206-5859 “Varies if its a baby” 10:34:48 from 647-206-5859 to 613-806-6582 “No bbyz i wnt a adult wit da maxium r a spare” 10:35:28 from 613-806-6582 to 647-206-5859 “like 10 to 15” 10:38:08 from 647-206-5859 to 613-806-6582 “15 soundz like a start n a xtra wod b appreciated [ 106 ] In this particular instance, Mr.

Press believed that the reference to “girl” was to a gun; the reference to “age” (being 9-45) was in actual fact a reference to calibres and the mention of “paperwork” an inquiry as to cost. In this instance the parties mention the number 25 ($2500) which in the expert’s view, is consistent with the street value of a 9mm gun. The reference to “panties” was in his view a reference to ammunition while “dresser drawer” referred to magazine capacity. Mr. Press clarified that magazine capacity can vary.

The legal capacity in Canada is 4-10 but it is possible to obtain various magazines for a capacity of up to 28 cartridges. Mr. Press further testified that the reference to “baby” is a reference to a compact firearm but that these types of guns usually don’t have a very high magazine capacity. The reference to an “adult” suggests the desire for a greater magazine capacity. [ 107 ] Mr. Press indicated that reliability for a firearm is a significant issue. A poor quality gun or a firearm with the wrong type of ammunition can result in the firearm blowing up in the user’s hand.

A poor quality firearm will cause jamming such that the feeding path will not function. Mr. Press has often seen references to firearms to include references to “girls” or “females” such that overall, in his view, the discussion was in relation to the acquisition of the firearm. It is clear from the conversation itself and the overall context that the references are not to a female person. [ 108 ] Given the technical information, the street value, the coded language with respect to ammunition, magazine capacity and the overall context of the conversation, I am satisfied that Mr. Waldron is referring to a firearm.

Counsel for Mr. Waldron suggests that the exchange does not amount to an offer but is rather a general discussion and that ultimately Waldron does not agree to fill the order. I disagree with the characterization of the discussion being general. There is an inquiry as to a product being available, there is confirmation of availability of a 9 or 45 calibre firearm, the price is set at 2500$ minimum and then there is a further discussion with respect to ammunition and various magazines. The conversation between the two is beyond a general discussion and in my view amounts to an offer by Mr.

Waldron to supply the caller with a .9 or a .45 calibre firearm, ammunition and magazine. The fact that Mr. Waldron may not ultimately fill the order is irrelevant in my view. That would be akin to requiring the offeror to have access to firearms, when the law simply requires that an offer be made and that it be intended to be acted upon. Looking at the call as a whole, especially the comments about needing the gun to be reliable because of a problem as well as not wanting to stop once started, these certainly show that the caller was treating the discussion seriously. Mr.

Waldron’s reassurances demonstrate his intention that the offer be taken seriously. [ 109 ] I find Mr. Waldron guilty on count 11.

Counts #12 and #13: That Waldron offered to transfer a firearm on May 15 and May 19, 2010 to an individual at 613-252-9205. [ 110 ] On May 15, 2010 Waldron (613-282-6452) texts 613-252-9205 and has the following exchange: 23:02:11 613-282-6452 to 613-252-9205 Yo hala at me 23:07:47 613-282-6452 to 613-252-9205 380 girls 23:13:00 613-252-9205 to 613-282-6452 380 perfect 23:13:54 613-252-9205 to 613-282-6452 extra 23:14:49 613-252-9205 to 613-282-6452 extra teeth [ 111 ] Then on May 19, 2010: 12:22:56 613-282-6452 to 613-252-9205 U get ur ting dog 12:33:06 613-252-9205 to 613-282-6452 no bro neggae are joking I need some like 45 or 9 12:34:19 613-282-6452 to 613-252-9205 Got 9 12:40:59 613-252-9205 to 613-282-6452 Num

12:42:39 613-282-6452 to 613-252-9205 Im a get bak 2 after 3pm 15:22:03 613-282-6452 to 613-252-9205 Yo dog forget about it hes being a goof he wants 4 15:27:47 613-252-9205 to 613-282-6452 wow 15:30:07 613-282-6452 to 613-252-9205 ya he says its silver way different from smurf don’t wory im a wait till next one 15:30:28 613-252-9205 to 613-282-6452 k [112] Taken together, the Crown suggests that Waldron twice offered to transfer a firearm to the person at 613-252-9205.

Defencesuggests it is impossible to ascertain that there was indeed an offer but rather the exchange suggests a willingness to pursue furtherdiscussion. [113] Concerning the May 15th exchanges, Mr. Press opined that 380 referred to a 380 calibre of firearm and that “teeth” was acommon street term for ammunition. He further testified that the conversation on the 19th of May related to firearms based on the use of“ting” as well as the use of “45 or 9” which are firearm calibres. He suggested that the person at 613-252-9205 was looking for a 45 or9mm firearm. The response was “got 9”.

The prospective purchaser then requests the price (“num”). While Mr. Press suggested that thepurchaser indicates he has $2000, I cannot agree with that

interpretation as that particular response is from Mr. Waldron, the allegedofferor. I agree with the defence suggestion that Waldron is likely indicating that he will get back to the purchaser after three, which is infact the case when looking at the text times. Indeed, at 3:22 he responds “...forget about it hes being a goof…”. [114] Based on the use of technical firearm information (caliber and firearm finishes), the exchange on pricing, it is clear thediscussion on May 19th 2010 is about firearms.

Within that context, and following the request for a 45 or 9, I am of the view that thestatement “got 9” is an offer for a firearm. The further efforts to obtain a price show that the offer was meant to be taken seriously. Aswas previously stated, the transaction need not come to fruition, which in this case it did not. The offer need only be intended to be takenseriously. I am satisfied that Count 13 has been proven beyond a reasonable doubt. [115] Mr.

Waldron will be convicted of Count 13. [116] While the Crown suggests that the exchange of May 15th is better understood with that of the 19th, I note that those discussionson the 19th concern a 9 or 45, not a 380. While there may be some technical information indicative that the exchanges concern firearms,the exchanges themselves on the 15th remain cryptic. Indeed, if, as Mr. Press suggests, there is a request for extra ammunition, Waldrondoes not respond, which does not help the inference that these messages were an offer to traffic in firearms.

In addition, it would bepresumptive to conclude that Waldron is the offeror as opposed to the purchaser based only on the fact that on the 19th he is offering a9mm. Indeed, when looking at the texts, it may be 613-252-9205 offering “extra teeth”. As a result, I cannot find that the offence hasbeen proven beyond a reasonable doubt. [117] Mr. Waldron is acquitted of Count 12. Count #14 [118] Conviction not sought. Count #15 That Mr. Waldron did conspire with Mr. Jones to traffic in marihuana on November 15, 2010 by agreeing to traffic in marihuana. Count #16 That between November 15, 2010 and March 7, 2011 Mr.

Jones did conspire with Robert Meyer, Brian Cooks and Mr. Waldron totraffic in marihuana by agreeing to traffic in marihuana. [119] With respect to the conspiracy that Tristin Jones did conspire with Robert Meyer to traffic in marihuana, counsel for Mr. Joneshas conceded that based on the principle of comity that such a charge is made out beyond a reasonable doubt. [See R v. Meyer 2012ONCJ 791 , [2012] OJ No 6235] Crown concedes that there is no evidence that Jones conspired with Brian Crooks to committhe offence alleged.

The only issue remaining to be decided is whether the Crown has proven beyond a reasonable doubt the conspiracybetween Jones and Waldron to traffic in marihuana. [120] It is undisputed that Robert Meyer was supplying Jones with marihuana. The Federal wiretaps furthermore make it evident thatMeyer clearly understood that the marihuana he was supplying to Jones was being resold to other individuals. More specifically, thatJones was supplying other sellers. [See Exhibit 7 tab D5, D24, D46, D54] [121] With respect to Waldron’s involvement with Mr.

Jones, it is clear from various text messages between the two that theircollaboration dates back to a period prior to the events alleged. This evidence is relevant in order to inform the inferences that can bedrawn from the evidence specific to the time period at hand. In March of 2010, Waldron contacts Jones in order to obtain some “trees”but qualifies that with “Not too much, I have to build up clientele first”. The following day a similar conversation takes place between

Waldron and Jones where Waldron inquires as to the product that is available and Jones advises him. Mr. Waldron then delays any new product for a day or two explaining that the product is moving slowly and he is trying to build up sales. [Exhibit 23, folder 613-806- 6582, pages 20-29] Also part of that exchange is an indication by Mr. Jones that the marihuana product he has is going for $675. [ 122 ] Expert testimony called by the Federal Crown in relation to the drug transactions indicated that a reference to ‘trees’ as well as ‘white berry’ are terms for marihuana.

The expert, Detective Foley further indicated that a price of $675 was consistent with the price of a ¼ pound of marihuana. According to the Detective, a ¼ pound would sell for between $600 and $900. [ 123 ] Of significance as well within the time period pre-dating the conspiracy is the frequency of the contact. A review of the cell phone communications between Waldron and Jones indicates that between March and June 2010 Waldron and Jones were in telephone contact an average of 45 times per month.

In the various communications there are requests for information concerning the strain of marihuana available as well as pricing quotes and orders for various amounts. For example ‘675 for a ¼ pound of white berry’; a request for sour D or purple; skunk; request for a Q. [Exhibit 23; 613-282-6452 pp 6-26] [ 124 ] Detective Foley testified that ‘sour diesel’, ‘purple kush’, ‘sour kush’, ‘pplant’ and ‘skunk’ are all strains of marihuana and therefore references to the drug. Of significance within this time frame as well is the frequency of the requests for drugs.

Crown alleges that the reference to ‘Q” is a reference to a ¼ pound. The Crown then points to a subsequent conversation for a ¼ pound followed by another ¼ pound 4 days later. This latter order is increased to a ½ pound according to the Crown later on in the day. The Crown suggests that in view of the size of the orders being made by Waldron the marihuana was clearly not for personal consumption. [ 125 ] There are conversations between Waldron and Jones where the price and quality of the marihuana is discussed. More specifically on June 17th 2010 Waldron advises Jones that the “Q it short G”.

Several days later on the 30th of June 2010 Waldron texts Jones to see if he can get “the Q any cheaper”. In addition to the price of the marihuana being discussed, Jones and Waldron speak of financial arrangements including Jones requiring payment up front despite a request from Waldron that the drugs be fronted to him and paid for at a later date. [Exhibit 23, text May 26th to June 30th 2010, pages 17, 34, 20] [ 126 ] Amongst the intercepts filed by the Federal Crown were a number of conversations between Waldron and his other clients.

There are references to parties wishing to “grab like a 3 and a half off you”; request for “like 2 grams”; a request for “1/2 Q and 2 G”. [Exhibit 7, tab D25, D26] [ 127 ] With respect to the time frame covered in the information, namely November 15th 2010 to March 9, 2011, there is the same type of conversation as occurred earlier in the year as between Waldron and Jones. There is however only one which occurs on November 22nd 2010. On that date Waldron seeks to confirm whether Jones has received a new supply. He then seeks a ‘Q of the skunk’. Upon being told that Jones received an order of ‘½ sour and ½ skunk’.

Waldron wishes a ‘Q of the skunk’ but is advised by Jones that he currently only has a few ounces [Exhibit 7, tab D2]. I do agree with the Crown

interpretation that Mr. Waldron appeared to be frustrated that he could not obtain the amount of marihuana he wanted quickly. Waldron seemed to be requesting a ¼ pound of marihuana and Jones ultimately agrees to provide him with ‘2 ounces of sour and 2 ounces of skunk’. Interestingly enough, on the same day, but later on in the evening, Mr. Meyer attends Jones’s residence very briefly. It is also significant to note that following Mr. Meyer’s arrival at Jones’s residence, Waldron also arrives.

This may be suggestive of a certain level of cooperation and coordination between Jones and Waldron or it could be Waldron picking up the drugs Jones had agreed to provide him with. [ 128 ] I do agree with defence’s proposition that the reference in the wiretap to “This guy is freaking out” is not necessarily with respect to a customer, rather it appears to be a reference to the crying child that can be heard in the background of the call. In my view therefore, that statement has nothing sinister about it. [ 129 ] In the course of cross-examination of Detective Foley, counsel for Mr.

Waldron obtained various concessions from the expert that in some of the intercepts the reference to ‘Q ‘ and ‘½ Q’ could actually be to ounces. In addition, specific calls were confirmed as implicating gram level transactions. In at least three calls, namely those at tabs D-25, D-26, D-33 the references appear to be at the gram level.

That having been said, the call at D-2 is a reference to a quarter pound given the request for 2 ounces each of the strains of marihuana. [ 130 ] The expert also confirmed that while a purchase for 4 ounces could be for a purpose other than redistribution, given the product can last up to 2 months, this is not a usual practice. Detective Foley indicated that it is rare to see purchases for personal consumption at the ounce level. Detective Foley testified that where there is personal use it would be expected to find items such as pipes, bongs, tobacco, grinders and rolling papers.

I do also note that nothing was found in Waldron’s residence to support personal consumption. [ 131 ] In R. v. Meyer the factors considered by the Court in arriving at a conclusion that an agreement to traffic was born out included the following factors;

a) Meetings, private conversations, telephone discussions

b) the nature of the conversations

c) Repeated sales between the parties

d) Knowledge by the conspirator of the relevant criminal scheme including knowledge of resale.

e) The presence of personal ben

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