R. v. Cater, 2014 NSCA 74

Nova Scotia Court of Appeal Citation: R. v. Cater , 2014 NSCA 74 Date: 20140813 Docket: CAC 392039 Registry: Halifax Between: Kyle Joseph Cater Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Jamie W. S. Saunders Appeal Heard: June 10 and 11, 2014, in Halifax, Nova Scotia Subject: Gun trafficking. Gang violence. Criminal organization. Cell phones. Private communications. Telephone intercepts. Hearsay. Relevance. Admissibility. Definition of firearms. Constructive possession. Trafficking by offer to transfer. Reasonableness of verdicts. Search and seizure. Alleged violation of Charter rights. Whether to exclude evidence under s. 24(2).

Summary: A massive covert police operation was launched in 2007 to investigate the activities of a gang, the Spryfield Mob, for a variety of crimes, including attempted murder. The principal objective was to gather intelligence and evidence leading to the arrest and conviction of known or suspected drug and gun traffickers. As part of its investigation, the police obtained a

Part VI judicial authorization to intercept the private communications of named individuals. One of the targets was the appellant, then an 18 year old high school student. The authorization led to the interception of 64,000 telephone communications, which ultimately resulted in a series of raids, arrests and seizures of weapons and ammunition across the city. Among those arrested were the appellant, his father and his step-mother, all eventually charged with a multitude of firearms possession and trafficking offenses.

Following a lengthy trial, the appellant was convicted and sentenced to 8 years in a penitentiary. During the trial, the judge also filed a series of interlocutory decisions disposing of a variety of pre- trial and Charter motions. Mr. Cater appealed, challenging virtually every factual finding, inference, conclusion or ruling ever made by the trial judge.

Included among the appellant’s host of complaints were his allegations that: the convictions for possession and trafficking were unreasonable or not supported by the evidence; the judicial authorization to intercept private communications was invalid; the police search and seizure of his cell phone was unlawful and the evidence obtained in both the search and the intercepts ought to be have been excluded; the proceedings should have been stayed because of the Crown’s abuse of process; the content of the intercepted telephone communications was inadmissible hearsay; and the appellant was denied a fair trial when the judge refused to permit questioning of an important defense witness.

Result: Appeal dismissed. After restating the issues as a series of key questions so as to provide structure to its consideration of all of the trial judge’s rulings, the Court then undertook an extensive analysis of the entire record of these difficult and protracted proceedings. Having done so, the Court concluded that the trial judge’s

interpretation and application of the law was correct. Her findings and inferences find full support in the record. Her reasons serve as a model of scholarship and clarity. Each of the verdicts was reasonable, lawful and sound. There is nothing which would warrant this Court’s intervention. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 63 pages.

Nova Scotia Court of Appeal Citation: R. v. Cater , 2014 NSCA 74 Date: 20140813 Docket: CAC 392039 Registry: Halifax Between: Kyle Joseph Cater Appellant v. Her Majesty the Queen Respondent Judges: Saunders, Fichaud and Beveridge, JJ.A. Appeal Heard: June 10 and 11, 2014, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Saunders, J.A.; Fichaud and Beveridge, JJ.A. concurring. Counsel: Elizabeth Cooper, for the appellant Timothy S.

O’Leary, for the respondent Reasons for judgment: [ 1 ] A massive joint police operation, code named Operation Intrude was launched in 2007 to investigate the activities of a criminal organization known as the Spryfield Mob (“SMOB”) for a variety of crimes including attempted murder and other violent offences under the Criminal Code of Canada, R.S.C. 1985, c. C-46, as well as offences under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended.

Its principal objective was to gather intelligence and evidence which would lead to the arrest and conviction of known or suspected drug and gun traffickers. In November 2008, as part of its investigation, police obtained a

Part VI Criminal Code authorization to intercept the private communications of named individuals believed to be involved. One of those named targets was the appellant, Kyle Cater, then attending high school in Spryfield. [ 2 ] The authorization was still in force on January 15, 2009, when police intercepted a call from the appellant’s stepmother, Ms. Torina Lewis. She called him early that morning with the news that the police had raided the home she shared with Kyle’s father, Paul Cater. In a series of calls later that day she told the appellant that the police were obviously looking for guns.

Their search warrant was based primarily on intercepted telephone conversations which led police to believe that there were firearms inside the home. Subsequent intercepts satisfied the police that the appellant knew about and had some measure of control over the guns and ammunition in his father’s house. [ 3 ] On January 15, 2009, Paul Cater, Torina Lewis and Kyle Cater were all charged in a joint Information listing 11 offences relating to firearms and ammunition. Later, on April 29, 2009, as a result of the

Part VI authorized intercepts, Kyle Cater was solely charged with 12 firearms trafficking offences pursuant to ss. 100(2) and 99(2) of the Criminal Code , said to have occurred between the dates of November 18, 2008, and January 16, 2009. [ 4 ] In December 2011, Paul Cater and Torina Lewis pleaded guilty to various charges relating to the guns seized from their residence. On April 18, 2012, Paul Cater was sentenced to a term of imprisonment of five years.

For her part, Torina Lewis was sentenced to two years less a day to be served in the community. [ 5 ] All of the charges against the appellant set out in the two Informations were tried before Provincial Court Judge Anne S. Derrick. Broadly speaking, the alleged offences fell into three categories: storage and possession of firearms contrary to ss. 86(1), 88(1), 92 and 95(1); possession of firearms for the purpose of trafficking (by offering to transfer them) contrary to s. 100(2) ; and trafficking in

firearms (by offer to transfer) contrary to s. 99(2) of the Criminal Code . Before the actual evidentiary phase of the trial which began on February 13, 2012, Judge Derrick conducted a series of voir dire hearings and filed multiple written decisions disposing of a variety of pre-trial and Charter motions, most of which had been initiated at the behest of the defence. [ 6 ] After a 15-day trial, Judge Derrick filed a comprehensive written decision ( 2012 NSPC 18 ) in which she convicted the appellant on most of the charges, and entered acquittals or stays on the remainder.

On May 4, 2012, Judge Derrick sentenced the appellant to eight years in a federal penitentiary which, after a two- year credit for pre-sentence custody, resulted in a sentence of six years on a “go-forward” basis ( 2012 NSPC 38 ). [ 7 ] The appellant filed appeals against both his conviction and his sentence. The two appeals have been severed. This decision relates only to his appeal against conviction. The date for his sentence appeal has not yet been determined. [ 8 ] After carefully reviewing the record and counsels’ submissions, I am satisfied that there is no reason for us to intervene.

I would dismiss the appeal. Before addressing the numerous issues raised on appeal, I will summarize the background leading up to the appellant’s arrest and prosecution. Background [ 9 ] The best

summary of the facts comes from Judge Derrick’s own words which I will repeat here from her trial decision: [1] January 15, 2009 began eventfully for Kyle Cater. His stepmother, Torina Lewis, called him early in the morning with the news that there had been a police raid on the home she shared with Kyle’s father. In a series of calls that morning, she told Kyle what had happened. The police had made apparent what they were looking for: they were looking for guns. [2] Kyle Cater’s father, Paul Cater, and Torina Lewis lived at 80 Cavendish Road in Spryfield, a neighbourhood in Halifax. Kyle did not live there.

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

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

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

Part VI authorized intercepts, on April 29, 2009, Kyle Cater was charged with trafficking firearms. Intercepted private communications constitute the primary evidence offered against Kyle Cater on all the charges. [6] I will note here that, without any disrespect intended, on occasion in these reasons I refer to Kyle Cater as Kyle and Paul Cater as Paul so as to avoid any confusion. For symmetry I will also be referring to Ms. Lewis by her first name. The Charges [7] The joint information against Kyle Cater, Paul Cater and Torina Lewis lists eleven charges.

They are: the unlawful storage of a sawed off Cooey 84 shotgun, a Lakefield Mark II rifle, and an AA Arms Model AP 9 handgun, and ammunition, in a careless manner (contrary to Criminal Code section 86(1) x 3), unlawful possession of the sawed off Cooey 84 shotgun, the Lakefield Mark II rifle and the AA Arms Model AP 9 handgun (contrary to Criminal Code section 88(1) x 3), unlawful possession of a loaded prohibited weapon -- the AA Arms Model AP 9 handgun, and unlawful possession of a loaded prohibited firearm -- the sawed off Cooey 84 shotgun (contrary to Criminal Code section 95(1) x 2), unlawful possession of the sawed off Cooey and the AP 9 handgun, knowing that possession is unauthorized (contrary to Criminal Code section 92(1) x 2), and unlawful possession of two over capacity magazines, a prohibited device (contrary to Criminal Code section 92(2)). [8] Kyle Cater is also solely charged with twelve (12) firearms trafficking charges pursuant to sections 100(2) and 99(2) of the Criminal Code , for the between dates of November 18, 2008 and January 16, 2009. ... [12] Five substantive case management conferences were held in this matter, primarily to deal with issues raised in relation to Kyle Cater.

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

This decision is in relation to the charges against Kyle Cater. ...

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

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

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

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

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

Part VI authorized intercepts for the truth of their content. ... [21] Cpl. Mark Cameron was the Exhibit Officer for the search of 80 Cavendish Road. Police officers searching the residencebrought to his attention a number of items which he then seized.

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

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

The Cooey shotgun was seized from the kitchen, in Cpl. Cameron'sestimation, about eight feet from the main entrance into the home. The boxes of ammunition -- the .38 special rounds and the shot gunshells were found high up in a kitchen cupboard, about 7.5 feet off the floor. The two loose rounds of .38 special ammunition were alsofound in this location as was the 30-30 Winchester bullet. In a drawer in the kitchen table police found, and Cpl. Cameron seized, four 20gauge shotgun shells. ... [32] There is also no evidence that refutes Mr.

Champion's opinion as to the classification of the 80 Cavendish firearms andammunition in accordance with section 84(1) of the Criminal Code. I accept that the Mark II Lakefield rifle is a non-restricted firearm,the sawed-off Cooey shotgun is a prohibited firearm, the fully automatic AP 9 is a prohibited firearm, the cartridge magazine found inthe master bedroom of 80 Cavendish is a prohibited device within the meaning of section 84(1) of the Criminal Code and

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

Part 4 of the Regulations. (Exhibit 31, page 3, #9 under Conclusions) [34] I am wholly satisfied that the guns seized from 80 Cavendish are firearms within the meaning of the Criminal Code and that theyand the two magazines have been correctly identified and classified in the charges against Kyle Cater, Paul Cater and Torina Lewis.

I amalso wholly satisfied that Kyle Cater did not have, at any time material to the charges, a Firearms Acquisition Certificate or any otherkind of license for possessing firearms nor did he have a valid registration certificate for any of the 80 Cavendish firearms or anyfirearms. [35] Therefore, the essential issue on the charges against Kyle Cater in relation to the 80 Cavendish Road firearms and ammunition iswhether Kyle had constructive and/or joint possession of the loaded Mark II Lakefield rifle, the loaded Cooey sawed-off shotgun, theunloaded fully automatic AP 9 nine millimeter pistol, and the two over-capacity magazines.

In due course I will address the law andevidence relating to the possession issue. ... [62] The Crown tendered 60

Part VI intercepts in total for voice identification purposes and a 911 call from December 26, 2008. 57intercepts are found in Exhibit 4, and have been tendered also as evidence of Mr. Cater’s guilt. Only two of these intercepts do notinvolve a speaker who has been identified as Kyle Cater: Intercept 6 (session #869) is a conversation that involved third parties andIntercept 8 (session #2589) is a text. This means 55 of the substantive intercepts (Exhibit 4) involve a speaker that has been identified asKyle Cater. In addition the Crown tendered three intercepts for voice identification purposes only.

Therefore, 58 intercepts played at thistrial are said to contain Kyle Cater’s voice. ... [75] In the 55 substantive intercepts, that is intercepts the Crown submits contain proof beyond a reasonable doubt of the offenceswith which Kyle is charged, a voice I accept to be Kyle Cater's voice can be heard speaking. This is the same voice that makes the 911call on December 26, 2008 identifying himself as Kyle Cater. I found listening to the intercepts was an experience that mirrored that of

Det/Cst. Pepler: you get to know these people. After listening to 58 intercepts (55 substantive intercepts and the three intercepts tendered for voice identification purposes only) I am satisfied that I have got to know Kyle Cater’s voice and recognize it as the voice Det/Cst. Pepler identified as belonging to him. I acquired the same sense of familiarity with respect to the voices of Paul Cater and Torina Lewis. ... [92] The expert called by the Crown was Special Firearms Officer Michael Press. After a qualifications voir dire , I qualified Mr.

Press to give opinion evidence in firearm identification, classification, test firing, firearms and ammunition trafficking, illegal movement of firearms including crime guns sources, firearm concealment, street and coded language relating to firearms including illegal street prices of firearms and ammunition. The Defence conceded his qualifications in all categories proposed by the Crown except street and coded language relating to firearms and the illegal street prices of firearms and ammunition. Following submissions on the issue, I qualified Mr.

Press as I have indicated. ... [94] I can say that I have accorded substantial weight to Mr. Press’ opinions, including on the possible meanings to be given the coded language on the intercepts. ... [96] Michael Press listened to all 56 intercepts before me (Exhibit 4), viewed the text message in Exhibit 4 and the photographs of guns obtained from Kyle Cater’s cell phone. He was also shown the firearms seized from 80 Cavendish Road. Besides observing the physical condition of the seized firearms, their manufacturers, make and calibre or gauge, Mr.

Press indicated that the AP 9, manufactured by AA Arms is very similar in appearance and function to a Tec 9, manufactured by Intratec. The AP 9 and Tec 9 barrels have a similarly menacing and distinctive look, very similar handgrips, and can function with high capacity magazines. Although manufactured to be semi-automatic, the AP 9 and the Tec 9 can be modified to be fully automatic. The AP 9 has a street value according to Mr. Press of $4500-$5500.

Full automatic machine pistols are designed to kill people. [ 10 ] For greater clarity and to assist the reader, I will attach the Information which lists the 11 offences charged jointly against the appellant, his father, and his stepmother as Appendix “A” to this decision. These are the storage and possession of firearms charges in contravention of ss. 86 , 88 , 92 and 95 of the Criminal Code . I will refer to those 11 offences as being contained in the “joint Information” or the “January 15, 2009 Information”.

In terms of the 11 charges in that joint Information, Judge Derrick acquitted the appellant on Counts #1, 2 and 3; and convicted him on Counts #4 through 11. She later stayed the convictions on Counts #4, 6, 9 and 10. [ 11 ] I have also attached as Appendix “B” the Information which lists the 12 offences for which the appellant was solely charged. These charges relate to the weapons trafficking or possession for the purpose of trafficking offences pursuant to ss. 99 and 100 of the Criminal Code . I will refer to those 12 offences as being contained in the “sole Information” or the “April 29, 2009 Information”.

Having regard to that list of 12 charges, Judge Derrick convicted the appellant on Counts #1 through 8. She acquitted him on Counts #9 through 12. She entered a judicial stay of proceedings on Count #2. She found that the appellant’s possession of the .45 calibre handgun on December 28 satisfied Count #1 of this sole Information. [ 12 ] As will be apparent, the charges against Mr. Cater involve a variety of guns said to have been “stored”, “possessed” or “trafficked in” by him on specific dates, or during a specified period of time.

In the reasons that follow, I will provide further details of the firearms or the ammunition when I consider the charge or issue to which the particular firearm relates. Issues [ 13 ] The appellant challenges virtually every factual finding, conclusion or ruling of the trial judge. It would be pointless to address the substance of Mr. Cater’s appeal on that basis. Instead of responding to the appellant’s seemingly endless list of criticisms point by point, I prefer to follow the convenient list of issues identified by Mr. O’Leary in his factum on behalf of the Crown.

On questioning by the panel at the hearing, Ms. Cooper agreed that this list was accurate and complete. Besides the host of subjects identified in the Crown’s list of issues I must also deal with the separate written decisions filed by the trial judge in which she disposed of the appellant’s many pretrial and Charter motions. To provide structure and clarity to the discussion that follows, I will streamline the analysis by restating the issues and sub-issues as a series of key questions. In my reasons I will also link each of Judge Derrick’s impugned decisions to the particular question to which it relates. 1.

Are the verdicts with respect to the charges of possessing the firearms at 80 Cavendish Road unreasonable or not supported by the evidence? 2. Are the verdicts with respect to the charges of possessing firearms for the purpose of offering to transfer them under s. 100 of the Criminal Code unreasonable or not supported by the evidence? 3. Are the verdicts with respect to the charges of offering to transfer firearms under s. 99 of the Criminal Code unreasonable or not supported by the evidence? 4.

Did the judge err in ruling that details of plea negotiations were privileged and should be removed from the appellant’s October 21, 2011 Charter application? 5. Did the judge err in finding that there had not been an unreasonable delay pursuant to s. 11(

b) of the Charter ? 6. Did the judge err in refusing to order disclosure that had been requested by the appellant? 7. Did the judge err in refusing to permit the appellant to cross-examine the affiant of the affidavit filed in support of the authorization to intercept private communications? 8. Did the judge err in finding that the interception of the appellant’s private communications was not an unreasonable search

pursuant to s. 8 of the Charter ? 9. Did the judge err by summarily dismissing the appellant’s abuse of process argument which supported his application for a stay of proceedings? 10. Did the judge err in finding that the search of the appellant’s cell phone was not unreasonable under s. 8 and that the information found during the search would not be excluded under s. 24(2) of the Charter ? 11. Did the judge err by finding that the intercepts were not inadmissible hearsay? 12.

Did the judge err by not permitting the appellant’s counsel to question his high school teacher concerning his “potential” after ruling that such a line of questioning was irrelevant? [ 14 ] I am in substantial agreement with the thorough and persuasive arguments advanced by the Crown in its factum.

Accordingly, I will dispose of most of the appellant’s complaints by endorsing and repeating much of the Crown’s position which I find to be correct in law and fully supported in the record. [ 15 ] Before addressing the list of questions as I have framed them, let me state at the outset that all of Judge Derrick’s decisions which form the basis of Mr. Cater’s appeal against conviction stand as a model of scholarship and clarity. Each reflects a prodigious amount of work, a keen appreciation of the law, a meticulous attention to detail, and an admirable threshold for patience and reserve.

I agree with the Crown that Judge Derrick should be commended for the manner in which she presided and conducted herself during the numerous pre-trial conferences, voir dire hearings, and the trial itself over the course of these protracted, taxing, and difficult proceedings. Standard of Review [ 16 ] Many of the questions I have framed attract a distinct standard of review and so I propose to identify the proper standard as I consider each of the issues in the analysis that follows.

Analysis [ 17 ] Before addressing the list of rhetorical questions I have posed, I wish to dispense with two matters that permeate practically all of the submissions made by the appellant’s counsel on appeal (she having also served as Mr. Cater’s lawyer at trial). [ 18 ] The first point relates to a lack of clarity or ambivalence as to the appellant’s main ground of appeal and the standard of review to be applied to it.

As noted earlier, counsel has attacked practically every factual finding, ruling and conclusion of the trial judge on the basis that it was “unreasonable” and therefore the verdicts of guilty must themselves be unreasonable. As part and parcel of that argument, Mr. Cater’s counsel insisted that the judge erred “in law and in fact in making her findings or in drawing her inferences”. When pressed at the hearing, Ms. Cooper at times seemed to resile from that position and concede that her principal basis of appeal was that the judge had reached a verdict that was unreasonable and not supported by the evidence.

Yet, immediately after making such a “concession”, counsel would back away from that position and return to the argument that the verdicts could not stand because they were both unreasonable and because the trial judge had “erred in law by not applying the proper standard” when finding the facts, or drawing inferences from those facts. [ 19 ] I reject at the outset any argument that these convictions ought to be overturned because Judge Derrick “erred in law” by “failing to properly apply the correct legal standard” in arriving at those verdicts. There is absolutely no merit to such a submission.

In my respectful opinion, the trial judge’s decision reflects a sound appreciation and application of the law to the evidence and the issues before her. [ 20 ] Accordingly, I will confine my analysis to the appellant’s principal complaint that the verdicts are unreasonable or are not supported by the evidence. [ 21 ] The second point relates to how Ms. Cooper has chosen to characterize her client and his conduct throughout these proceedings. It is to be remembered that Mr. Cater elected not to testify.

His upbringing, his personality, and his character were never verified by admissible evidence – suitably tested in the crucible of cross-examination – but were solely presented through the words of his lawyer. Throughout the trial and the appeal, Mr. Cater has tried to portray himself as an innocent 18-year-old high school student who did nothing more than speak to other people on the telephone. He says he was only convicted and sentenced to prison because of where he lived and who his father happened to be. Judge Derrick was having none of that.

Nor would I. [ 22 ] Respectfully, such a characterization is illusory and frustrates any meaningful consideration of the many serious issues on appeal. It ignores virtually every factual finding, every inference, every ruling and every decision of the trial judge. It fails to acknowledge the very strong case mounted by the Crown. It urges this Court to adopt an

interpretation of the evidence which is fanciful and unrealistic. In her sentencing decision, Judge Derrick found that the appellant was a “player” in a prominent Halifax gang and that he could be counted on to supply firepower and ammunition to his many criminal cohorts who were involved in this city’s drug trade. Her rejection of Mr. Cater’s repeated attempts to self-identify as an “innocent kid from Spryfield” is made explicitly clear in Judge Derrick’s sentencing decision, 2012 NSPC 38 , where she said in part: [20] Kyle Cater was centrally involved in all the offences for which he has been convicted.

He was well aware of how illegal his activities were. The evidence at trial established how careful he was about having any firearms in his actual possession. ... [22] The evidence also revealed that Mr. Cater was a gun trafficker. . . . In relation to all the offences, Mr. Cater was not a naïve school boy merely caught up in the criminal conduct of others. He was a controlling force, a “player”, to borrow a term he used in one of the intercepts.

… [25] There is not much in the way of mitigating factors in this case. Mr. Cater is young, just 18 at the time of these offences, and only21 now. ... [30] ...letters have also been filed for my consideration. Mr. Cater is consistently described as kind, respectful, polite, honest,dependable, and selfless. ... [31] The young man depicted in the support letters, which I want to say I have no reason to question, is not the young man I wasintroduced to through the evidence in this case. At no time has Mr. Cater expressed any responsibility for what was starkly revealed inthe intercepts.

He continued to deny responsibility in his pre-sentence report interview, describing himself as “just a kid from Spryfield.”Kyle Cater, the Boy Scout, a persona also reflected in Ms. Cooper’s submissions, does not square with the intercepts. What, for example,does Mr. Cater suppose I should make of his statement on November 21, 2008 (Intercept 3, session #119) where he tells a friend lookingfor “a clip”, that he’s not to worry because he can “get those myself... I got people that live out Edmonton and they send them down likeit's nothing, cuz.”?

What does he think the people who wrote the support letters would say if they listened to the intercepts? They mightwell say that a person conducting themselves as Mr. Cater did is not a person they would want living in their neighbourhood. The personthey express such genuine fondness and respect for is not in evidence in the intercepts. ... [42] Mr. Cater will have noticed that certain individuals with whom he was involved during the period of the

Part VI interceptions arenow serving lengthy penitentiary sentences because of their use of handguns. (R. v. Jeremy LeBlanc, [2010] N.S.J. No. 490 (S.C.); R. v.Aaron Marriott, [2011] N.S.J. No. 602 (S.C.) Another target of the

Part VI investigation is also doing a long prison sentence for multiplefirearms offences. (R. v. Joseph Chan, 2011 NSSC 471 , [2011] N.S.J. No. 711 (S.C.)) [43] Anyone familiar with the LeBlanc, Marriott, and Chan cases will know their crimes involved intentionally shooting at theirvictims. Mr. Cater is not charged with ever using any of the guns referred to in the Informations nor has he been charged in relation toany of the shootings that have occurred in the Halifax Regional Municipality.

But what the intercepts make clear is that he was a sourcefor guns, valued as a potential supplier by individuals looking for working guns, guns that offered his confederates the opportunity toemploy deadly force. My point is this: Mr. Cater was not possessing and trafficking guns so that friends and associates could engage inrecreational target practice at a local gun club.

He fitted into a network of criminal associates whose interest in firearms included usingthem for violent purposes. [23] These are the findings of the trial judge, based upon the evidence, and expressed in clear, strong and unequivocal language.

That is the evidential context within which my analysis of the issues on appeal will be conducted. [24] I will incorporate, as part of this decision, the list set out by the Crown in its factum that conveniently itemizes the importantfindings of fact made by the trial judge, as well as the inferences she drew from those facts which explain her conclusions and anchor herverdicts.

The bracketed paragraph references track Judge Derrick’s reported decision (“the conviction decision”) 2012 NSPC 18. • The appellant was having guarded telephone conversations using coded language. (para. 88) • The only reasonable inference to be drawn from the intercepts is that the speakers are talking about guns. (para. 101) • The only reasonable inference to be made is that the appellant is viewed as someone who can supply a firearm.

He isstashing his guns elsewhere, reducing the risk of having them found in his possession. (para. 112) • The intercepts reveal the commercial nature of the appellant’s activities. During the material time, the appellant wasengaged in the illegal gun trade. (paras. 187-189) • Some of the intercepted conversations refer to specific firearms. They are the .410 shotgun, the little Derringer, the .308Cal rifle, and the .45 calibre gun. (paras. 137-142) • The December 7, 2008 intercepted calls between Paul Cater, Torina Lewis and the appellant make several references to“Tracey”.

The only reasonable inference is that Tracey is a gun. (para. 159) • There were a number of intercepts on January 15, 2009. The appellant and Torina Lewis refer to the “Tec” at 80 CavendishRoad. It was similar in appearance to a Tec 9. The gun that was seized was actually an AP-9 mm pistol.

It was obvious that theappellant knew there was a prohibited firearm, the AP-9, at 80 Cavendish Road. (paras. 162-166) • The “Tracey” calls and the January 15th calls indicate that the appellant had much more than merely a passive or quiescentknowledge of the firearms and ammunition at 80 Cavendish Road. (para. 168) • There were a number of indicators the appellant had a measure of control over the firearms at 80 Cavendish Road. (para.171) • The Crown had established beyond a reasonable doubt that the appellant was in possession of the firearms, magazines, andammunition at 80 Cavendish Road, both constructively and jointly. (para. 178) • The appellant had possession, likely constructive possession, of the .410 gauge shotgun.

The appellant offered to transfer itin a December 2, 2008 conversation. (paras. 193-194) • The appellant had possession, likely constructive possession, of a Derringer pistol. The appellant offered to transfer it in aDecember 4, 2008 conversation. (para. 195)

• The appellant had possession, constructive possession, of a .308 calibre rifle. The appellant offered to transfer it in a December 4, 2008 conversation. (para. 196) • The appellant obtained actual possession of a .45 calibre handgun on December 28, 2008. He gained possession of the .45 calibre handgun for the purpose of transferring it. (para. 197) [ 25 ] The numerous charges against the appellant all arose from the police intercepts of telephone communications.

Having thoroughly reviewed the record, I agree with the trial judge’s assessment that the intercepts provided clear and convincing circumstantial evidence that Mr. Cater possessed the firearms and ammunition in question.

The intercepts also provided direct evidence that the appellant trafficked in firearms by offering to transfer them. #1 Are the verdicts with respect to the charges of possessing the firearms at 80 Cavendish Road unreasonable or not supported by the evidence? [ 26 ] This question concerns the possession and storage charges relating to the weapons seized by the police when they raided the appellant’s father’s home at 80 Cavendish Road.

The guns seized were: an AA Arms model AP 9 handgun; a sawed off Cooey 84 shotgun; a Lakefield Mark II rifle; together with ammunition found in two overcapacity magazines. [ 27 ] On the facts of this case the operative parts of the provisions relating to these offences are: 86.

(1) Careless use of firearm, etc. – Every person commits an offence who, without lawful excuse .... stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition ... in a careless manner ...

(3) Punishment – Every person who commits an offence under subsection (1) ... (

a) is guilty of an indictable offence and liable to imprisonment; (

i) in the case of the first offence, for a term not exceeding two years, (ii) in the case of a second or subsequent offence, for a term not exceeding five years; ... … 88. Possession of weapon for dangerous purpose –

(1) Every person commits an offence who carries or possesses a weapon, ... or any ammunition ... for a purpose dangerous to the public peace or for the purpose of committing an offence. Punishment

(2) Every person who commits an offence under subsection (1) (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; … … 92.

(1) Possession of firearm knowing its possession is unauthorized – …every person commits an offence who possesses a firearm knowing that the person is not the holder of (

a) a licence… (

b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.

(2) Possession of prohibited weapon, device or ammunition knowing its possession is unauthorized – …every person commits an offence who possesses a prohibited weapon, a restricted weapon, a prohibited device . . . or any prohibited ammunition knowing that the person is not the holder of a licence under which the person may possess it.

(3) Punishment – Every person who commits an offence under subsection (1) or (2) is guilty of an indictable offence and liable (

a) in the case of a first offence, to imprisonment for a term not exceeding ten years; … … 95.

(1) Possession of prohibited or restricted firearm with ammunition –… every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm . . . together with readily accessible ammunition…

(2) Punishment – Every person who commits an offence under subsection (1) (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of (

i) in the case of a first offence, three years, … [ 28 ] Judge Derrick acquitted the appellant on all charges under s. 86 (Counts #1-3 of the joint Information). She convicted him of unlawful possession of the sawed-off Cooey shotgun, the Lakefield Mark II rifle, and the AA Arms model AP 9 handgun, contrary to s. 88(1) of the Criminal Code (Counts #4, 5 and 6 of the joint Information). She also found him guilty of unlawful possession of a loaded prohibited firearm, the sawed-off shotgun, contrary to s. 95(1) of the Criminal Code (Count #7) and of unlawful possession of an

unloaded prohibited firearm, the AA Arms AP 9 handgun, together with readily accessible ammunition capable of being discharged in the firearm, contrary to s. 95(1) of the Criminal Code (amended Count #8). The trial judge convicted the appellant of unlawfully possessing the sawed-off shotgun and the AP 9 handgun, knowing their possession was unauthorized, contrary to s. 92(1) of the Criminal Code (Counts #9 & 10). She found him guilty of unlawfully possessing a prohibited device (two overcapacity magazines), contrary to s. 92(2) of the Criminal Code (Count #11).

In light of his convictions on Counts #7 and 8, the trial judge stayed the convictions on Counts #4 and 6. [ 29 ] The appellant says the convictions should be set aside and acquittals entered because the verdicts are unreasonable or are not supported by the evidence. [ 30 ] In the context of such a complaint, the standard of review expressed by this Court in R. v. Izzard , 2013 NSCA 88 at ¶39 applies: [39] To test if a verdict is unreasonable or cannot be supported by the evidence, an appellate court must re-examine, and to some extent, re-weigh the evidence, and consider its effect.

The question to be answered is: whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. An appellate court may also find a verdict unreasonable if a trial judge has drawn an inference or made a finding of fact essential to the verdict that is plainly contradicted by the evidence relied upon by the judge in support of the inference or finding; or is shown to be incompatible with evidence that is not contradicted or rejected by the trial judge ( R. v R.P. , 2012 SCC 22 at para. 9 ). [ 31 ] So too does this Court’s direction in R. v.

Henderson , 2012 NSCA 53 at ¶17-18: [17] The standard of appellate review on a question of law is correctness. Factual issues are reviewed for any palpable and overriding error. A trial judge’s application of the law to the facts is reviewed as a question of fact unless an extricable error of law is identified. See for example, R. v.

C.J. , 2011 NSCA 77 . [18] The standard of review of verdicts based on circumstantial evidence is whether a properly instructed jury, acting judicially, could have reasonably concluded that the guilt of the accused is the only rational conclusion to be reached from the whole of the evidence. Within such an inquiry, the standard of review for error is correctness. The standard of review of possible inferences that may be drawn from the evidence is palpable and overriding error. See, for example, R. v.

Shea , 2011 NSCA 107 . [ 32 ] As explained earlier, the intercepted calls led to the host of charges against the appellant. Expert evidence was led at trial as to the meaning of certain code words used by the conversants, as well as the voice identification of the individuals whose conversations were being intercepted and later transcribed. Besides that expert evidence, Judge Derrick also listened carefully and repeatedly to the intercepts herself, prompting her to confirm in her decision: [86] I am left with no doubt as to who was speaking on these intercepted calls.

After listening to the intercepts, I can identify the voices of Kyle Cater, Paul Cater, and Torina Lewis which I find to be readily recognizable. I accept the opinions of Det/Csts.

Pepler and Mansvelt on the identity of all the voices on the intercepts, although I have to say that self-identification, identification by others, and context permitted me to draw my own firm conclusions ... [ 33 ] The appellant stresses the fact that his father Paul Cater pleaded guilty to possessing the firearms which were found inside his home and that therefore Judge Derrick ought to have found that his father possessed them and not the appellant. I reject that submission.

It was not necessary for the appellant to have had exclusive control over the firearms at 80 Cavendish Road in order to possess them under s. 4(3) of the Criminal Code . A measure of control over objects by one individual does not exclude the control required to establish possession of those same objects on the part of another individual. See R. v. Bremner , 2007 NSCA 114 . [ 34 ] Judge Derrick instructed herself properly as to the law of constructive possession.

Paul Cater’s guilty pleas did not preclude the Crown from proving that his son knew the location of the firearms in question and had some measure of control over them. [ 35 ] There was ample evidence to support Judge Derrick’s finding that the appellant had joint and constructive possession of the AP 9. At ¶177 of her reasons the judge said: [177] I also draw the inference that Kyle had exercised control over his father’s possession of the nine millimeter on a previous occasion. On December 4, Shawn Shea was looking for “the ninja.” Kyle follows up the request by talking to Paul.

Paul can't produce the gun because he needs more notice to get it back into his possession. Kyle issues a command: “Well get it and then keep it around.” I find that is a reference to the nine millimeter, called “Tracey” by Paul and Torina, that is subsequently seized by police on January 15. [ 36 ] In her reasons, Judge Derrick outlined the evidence which satisfied her as to the appellant’s knowledge and measures of control over this firearm.

She summarizes the series of intercepts from December 7, 2008 capturing the frantic exchanges among the appellant, his father, and stepmother concerning the AP 9 valued between $4500-$5500 which had “gone missing”. She explains her finding that the appellant was well aware of the hiding places for firearms and ammunition at his father’s residence. [ 37 ] In my view, the judge’s conclusion that the appellant had knowledge and some measure of control over the AP 9 was virtually irresistible.

While the evidence concerning the appellant’s joint or constructive possession over the Lakefield rifle, the Cooey sawed-off shotgun, and the magazine clips was perhaps not as clearly defined as it was for the AP 9, the only rational conclusion having regard to all of the evidence was that the appellant also had the requisite knowledge and measure of control over these other items. This becomes clear when one considers Judge Derrick’s reasons as a whole. [ 38 ] For example, as noted earlier, she found as a fact that the appellant was aware of the hiding places at his father’s home.

The magazine for the AP 9 was found on a shelf behind a pair of ceramic hands adorned with roses on the wrists. The appellant had referred to that location in a conversation with his father on December 28, 2008. He mentioned it just after his father had asked, using code, what

the appellant “Did with that”. As well, the Lakefield rifle and the Cooey sawed-off shotgun were found in plain view. They were not hidden inside the house.

Judge Derrick found as a fact from photographic as well as other evidence that the appellant was “obviously very much at home even though he was not a resident” at 80 Cavendish Road. [ 39 ] In addition, at ¶167 of her reasons, the judge stated: [167] Kyle’s knowledge of the firearms at 80 Cavendish is also confirmed by his exchange with Torina on January 15 when he calls her back after she has told him about the police raid. (Intercept 55, session #4058) Torina in a clear reference to Paul, tells Kyle: “... and the thing about it, I told him the other day.

Get rid of everything ’cause I got a feelin.” Kyle observes: “I said that too.” This exchange with Torina demonstrates Kyle’s knowledge of the guns at 80 Cavendish. He obviously also tried to exercise a measure of control, telling his father to get rid of what was there, to no avail. That Paul Cater apparently did not re-locate the guns at Torina’s and Kyle’s prompting does not offset the evidence that indicates a measure of control by Kyle over these firearms.

I will return to this issue shortly. [ 40 ] From these and the other facts found and inferred by Judge Derrick, it was undoubtedly reasonable and logical for her to conclude, as she did, that the appellant was in possession of the firearms, magazine and ammunition at 80 Cavendish Road, both constructively and jointly. [ 41 ] I am satisfied these verdicts were reasonable and fully supported by the evidence. #2 Are the verdicts with respect to the charges of possessing firearms for the purpose of offering to transfer them under s. 100 of the Criminal Code unreasonable or not supported by the evidence? [ 42 ] These are the firearms the appellant is alleged to have possessed for the purpose of trafficking (by offering to transfer) them contrary to s. 100(2) of the Criminal Code .

The weapons were: a .410 gauge shotgun; a Derringer pistol; a .308 cal. rifle; a .45 cal. handgun; and a Smith and Wesson. [ 43 ] The operative provisions relating to these charges state: 100.

(1) Possession for purpose of weapons trafficking - Every person commits an offence who possesses a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition . . . for the purpose of ... (

b) offering to transfer it, knowing that the person is not authorized to transfer it...

(2) Punishment – firearm - Every person who commits an offence under subsection (1) where the object in question is a firearm, a prohibited device, any ammunition or any prohibited ammunition is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of (

a) in the case of a first offence, three years ; and (

b) in the case of a second or subsequent offence, five years. ... [Underlining mine] [ 44 ] In order to obtain convictions on the s. 100(2) (

b) charges, the Crown was required to prove that the appellant possessed objects, that the objects were firearms as defined in s. 2 of the Criminal Code , that he possessed them for the purpose of offering to transfer them, and that he knew his offer was unauthorized. [ 45 ] Here the appellant challenges the convictions on two main fronts. First he says the Crown was “under a legal obligation” to produce evidence including “testing the firearms” in order to prove beyond a reasonable doubt that each of the firearms was a fully functioning gun.

Second, he says that the intercepts “prove nothing” other than that Kyle Cater was (at worst) trying to “facilitate things”, that any discussions were only “preliminary”, that he “never came through” and that there was never a definitive offer, let alone a consummated sale. I reject all of the appellant’s arguments. [ 46 ] It cannot be seriously suggested that it was incumbent upon the Crown to produce “testing scores” or “certificates” to “prove” that these guns could be fired, in order to convict the appellant.

The Crown is under no such obligation (or limitations) in marshalling its evidence and presenting its case. It is up to the trier of fact, based on the totality of the evidence, to determine if a gun is a firearm, as defined by s. 2 of the Criminal Code . The circumstances surrounding the transactions, the words used, and the conduct of the accused are obviously highly relevant. A judge is entitled to draw the inference that a gun is operable, and thus within the definition of “firearm”, provided sufficient evidence is presented to permit such a conclusion.

Obviously, the conclusion must be based on evidence and not speculation or conjecture. See for example R. v. Wills , 2014 ONCA 178 and R. v. Polley , 2014 NSCA 71 . [ 47 ] I agree with Mr. O’Leary in his submissions on behalf of the Crown that people do not use code to describe toy guns, or replicas. Neither do they spend their time searching for safe hiding places to “stash” guns that cannot be fired. The appellant and his cohorts were not bartering over fine wine, chocolates, flowers or tickets to the opera. Based on any reasonable

interpretation of the intercepts, the appellant could only have been talking about fully functioning firearms. [ 48 ] I am perfectly satisfied there was sufficient evidence offered in this case to allow Judge Derrick to infer that the guns in question were operable firearms and permit her to say as she did at ¶204 of her reasons: [204] The photographs do not decide the issue for me, the intercepts do. The intercepted communications provide me with all the evidence I need to be satisfied beyond a reasonable doubt that the guns being discussed in the intercepts, including the .410 gauge

shotgun, the Derringer pistol, the .308 calibre rifle, the .45 calibre handgun, and the Smith and Wesson, were “firearms” under the Criminal Code definition. Kyle Cater and his associates all talked about the guns in a manner that makes it clear these were operable, functioning firearms. The use of coded language, concerns about police detection, stashing, references to large amounts of money, and enthusiasm for something that is “fresh”, “clean”, and “beautiful”, lead me to the irresistible conclusion that it was firearms that were being discussed.

It is a ridiculous proposition that D.S, “C.”, D.M., or L.S. were looking to Kyle Cater for inoperable, broken or facsimile weapons. They wanted something that would go “bop-bop” or not be “loud” or clothe them with protection when they were “naked.” They knew, as did his other associates, that he dealt in real, working guns.

I have no hesitation in finding the Crown has proven beyond a reasonable doubt that the guns referred to in the intercepted conversations were “firearms” as defined in the Criminal Code . [ 49 ] Having found that the .410 gauge shotgun, the Derringer, the .308 calibre rifle, the 45 calibre handgun, and the Smith and Wesson were all firearms as defined in the Criminal Code , the judge then had to decide whether the appellant possessed them, and if so, for what purpose. [ 50 ] The intercepts provided a strong evidential basis to support the judge’s conclusion that there was a genuine offer to transfer the .410 gauge shotgun; the Derringer, and the .308 calibre rifle.

And, of course, finding that there had been a genuine offer with respect to those firearms was certainly relevant to whether the appellant possessed those firearms, and for what reason. Clearly, based on the intercepts, the appellant had knowledge of them. The intercepts also demonstrated that he had some measure of control over them.

Besides these important facts we also have the judge’s earlier findings that the appellant was risk adverse; was well aware of the police presence in his neighbourhood; that he stashed guns and ammunition in safe places to avoid having them in his personal possession if ever stopped by the police; and that the appellant was seen to be a “go to” guy, someone who could supply a firearm, when asked.

Given those findings, it was reasonable for the judge to conclude that the appellant, during the intercepts, was demonstrating power and authority over these firearms and was consenting to the potential buyers acquiring the specific firearms as the intended and direct result of his offer. [ 51 ] Mr. Cater’s knowledge, power and authority was not in any way diminished because these firearms were likely stashed outside of his physical possession.

The judge found that he had constructive possession of these firearms and that the genuine offers he made to transfer the .410 gauge shotgun, the Derringer, and the .308 calibre rifle established his purpose in possessing these guns. The judge’s careful scrutiny of the evidence and its conformity to the dates particularized in the counts is reflected in her finding that there was no offer to transfer the .45 calibre handgun in early December. That only happened later. As she observed at ¶197-98 of her decision: [197] Kyle Cater is charged that he had possession on or about December 7 of a .45 calibre handgun.

I infer from the intercepted communications with I.E. (Intercepts 23 and 24) that he and I.E. discussed a .45 calibre handgun on December 7, 2008. I find Kyle did not have possession of the handgun until December 28 when he rendezvoused with I.E., a rendezvous captured by the intercepts (Intercepts 41-46) and observed by the police surveillance team.

On December 28 I find that Kyle Cater had actual possession of the .45 calibre handgun for the purpose of offering to transfer it, in other words, his purpose in possessing the gun conforms to the Criminal Code definition of “transfer.” It was a firearms trafficking purpose. [198] As the Crown conceded in final submissions, there is no evidence that Kyle offered to transfer the .45 calibre handgun.

The only evidence is that he was interested in acquiring it and met with I.E. to examine the merchandise. [ 52 ] As the evidence reveals, the appellant and I.E. had agreed upon a price, $2,500, for the .45 calibre handgun. The appellant went to meet I.E. but once at the rendezvous site (which was observed by a police surveillance team) the appellant kept “jumpin’ in and out of cars” presumably to avoid police detection.

In these circumstances, the only rational inference was the one drawn by Judge Derrick, that the appellant obtained possession of the .45 calibre handgun on December 28, 2008, fully intending to complete the transaction he had negotiated and given the commercial nature of his illegal firearms operation, he had obtained the gun on that date for the purpose of transferring it. [ 53 ] I am satisfied these verdicts on charges brought pursuant to s. 100 of the Criminal Code were reasonable and fully supported by the evidence. #3 Are the verdicts with respect to the charges of offering to transfer firearms under s. 99 of the Criminal Code unreasonable or not supported by the evidence? [ 54 ] These trafficking charges relate to the same five firearms as enumerated in ¶42, supra , but this time they were said to have been weapons which the appellant offered to transfer contrary to s. 99(2) of the Criminal Code . [ 55 ] The operative provisions state: 99.

(1) Weapons trafficking - Every person commits an offence who (a) ...transfers, whether or not for consideration, or (

b) offers to do anything referred to in paragraph (

a) in respect of a firearm, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition . . . knowing that the person is not authorized to do so ...

(2) Punishment – firearm - Every person who commits an offence under subsection (1) where the object in question is a firearm, a prohibited device, any ammunition . . . is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of (

a) in the case of a first offence, three years ; and (

b) in the case of a second or subsequent offence, five years. [Underlining mine]

[56] Here again the appellant says the verdicts cannot be supported on the record. [57] I disagree. The intercepts do provide strong evidence of the offers. The appellant simply doesn’t like the trial judge’sinterpretation of those conversations. That of course is not the test. I see nothing wrong in the judge’s analysis or conclusions. [58] At trial and on appeal, Mr.

Cater’s counsel pressed the position that he could not be convicted because the Crown had failed toprove the existence of any firearm(s); or that he had ever possessed such prohibited weapons; or that the objects of the interceptedtelephone communications were functioning, operable firearms; or that the conversations amounted to a genuine offer; or that he wasever in a position to conclude the transaction by effecting the transfer. The appellant insists that all he ever did was “talk on thetelephone” and that his conversations were little more than exaggerated boasting and puffery.

As part of that submission, the appellantsaid cases such as R. v. Ralph, 2011 ONSC 3558, affirmed on other grounds, 2014 ONCA 3, leave to appeal to SCC requested [2014]SCCA No. 262; and R. v. Farhat, 2011 ONSC 6494, which were cited by the Crown in its books of authorities, had been “wronglydecided” because the trial judges in those cases had “erred” by adopting and applying the drug “offer” jurisprudence to the weapons“offer” scenario. We were urged not to apply those precedents in this case. [59] For its part, the Crown asks that we follow the approach taken in these two Ontario trial court decisions.

While I would agreethat the application of drug trafficking “by offer” jurisprudence to cases involving weapons trafficking (by offer to transfer) has someattraction and may appear sensible at first glance, I need not decide the question for the purposes of this appeal. Unlike the accused inthose cases, Mr. Cater was found to have been in possession of multiple prohibited weapons which he offered to sell knowing full wellwhat he was selling, as did the recipient of the offer. The appellant had the firearms. He hid them. He used code to describe them. They were fully operational.

His words showed a clear intent to sell them and went well beyond exaggerated boasting. He was shown tobe a reliable gun trafficker with ties to a criminal organization. Both he and his buyers were anxious to complete their transactions asquickly as possible. Their conversations were conclusive. No further steps were needed to advance the offer.

On the evidence beforeher, Judge Derrick was satisfied that both the act (by conduct in making the offer) and the requisite intent (to have that offer received asbeing serious and genuine) were established beyond a reasonable doubt, based on the context of the intercepted communications and allthe other surrounding circumstances, as she found them. I would add, of course, that Judge Derrick did not rely upon Ralph or Farhat inconvicting the appellant and did not refer to either case in her reasons. [60] Trafficking by offer is a conduct offence.

The crime as defined by Parliament in s. 99 does not require that any consequenceflow from the prohibited conduct. The crime is made out upon proof that the accused offered to traffic in a firearm and in doing sointended that his offer be taken to be a genuine offer by the recipient. Whether the offeror actually had the item in hand so as to be ableto complete the transfer is irrelevant. See for example, R. v. Murdock, (ON CA), [2003] O.J. No. 2470 (C.A.), at¶14; R. v.

Crain, 2012 SKCA 8, at ¶22-24. [61] Before leaving this point, I note the irony in the appellant’s assertion that Farhat and Ralph had been “wrongly decided” ascontrasted with his insistence that the “facts and the outcome” in Farhat “support his acquittal” because – so his counsel argued – Mr.Cater (like Mr. Farhat) was “incapable of carrying out his offer” and had engaged in nothing more than idle “boasting and exaggeratedpuffing”. I reject that submission.

A cursory review of the facts in Farhat shows that there is nothing in the circumstances of that casewhich would assist the appellant. [62] There, undercover police officers went to a barber shop where the accused worked and had a conversation with him about guns. The accused said he could sell the officer an illegal handgun. When the officer attempted to follow up, the accused referred him to hisemployer, later telling the officer that he could not help him. In acquitting the accused on a charge of offering to transfer contrary to s.99(2) of the Criminal Code, Justice C.D.A.

McKinnon said: 29 No evidence connecting the accused to firearms was found in either his parents' home, his apartment in Gatineau, his computer orhis cell phone. ... 42 Mr. Farhat’s conduct must be judged contextually in order to determine whether he in fact did make an offer that was meant to betaken as genuine. I find as a fact that the conversation with Corporal Miller occurred in circumstances that were influenced by the JamesBond movie that was being played while Corporal Miller was getting his haircut. The conversation occurred in a “hip-hop” environmentwhere boasting and exaggeration are commonplace.

The conversation was inconclusive because Mr. Farhat was required to take furthersteps to advance the offer. At no time did Mr. Farhat seek out any identification or contact information from the undercover officers. Itwas the other way around. Detective Sergeant Griffiths asked for his contact number so that he could purchase “free to air” signals for aBell satellite dish. Even then, he was provided with an incorrect number. Following the initial conversation it was Corporal Miller whocontinually attempted to contact Mr. Farhat. Mr. Farhat was brushing him off, and ultimately, Mr.

Farhat told him that there was amisunderstanding and apologized because he could not help Corporal Miller. 43 On these facts, I find that Mr. Farhat had no genuine intent to offer to transfer a firearm to Corporal Miller. I would conclude thatthe initial conversation would not give rise to a belief by Corporal Miller that the offer was genuine, as evidenced by his constantattempts to re-initiate contact with Mr. Farhat. Mr. Farhat’s lack of response would have suggested to Corporal Miller that no genuineoffer had been made. 44 In these circumstances, the most that can be said is Mr.

Farhat was “puffing” and personally incapable of carrying out his offer. ... 45 Given these findings, the Crown has failed to satisfy me beyond a reasonable doubt that the accused intended that his offer betaken as genuine, and he is acquitted of the charge. [Underlining mine] [63] Such findings have no application whatsoever to the circumstances of Mr.

Cater’s case where Judge Derrick was satisfied thatthe appellant was an experienced and committed gun trafficker who had strong ties to a criminal organization, knew exactly what he wasselling, and had the obvious authority and capacity to complete the transaction.

[64] Returning to the facts in this case, Judge Derrick convicted the appellant of offering to transfer three different firearms: a .410gauge shotgun; a Derringer handgun; and a .308 calibre rifle (Counts #4, #6 and #8 respectively as contained in the April 29, 2009Information).

Each conviction is fully supported by the evidence. [65] The December 2, 2008 intercept provided ample proof of the offer to transfer the .410 gauge shotgun. [66] The December 4, 2008 intercept provided ample proof of the offer to transfer the Derringer. [67] Another December 4, 2008 intercept provided ample proof of the offer to transfer the .308 calibre rifle. [68] In her reasons, Judge Derrick rejected the appellant’s reliance upon R. v.

Sinclair, 2006 ABQB 438, that being the second trialheard by Bielby, J. (as she then was) and its various antecedents (e.g., Sinclair’s first acquittal November 4, 2004, Docket No.021341474Q; and the decision of the Alberta Court of Appeal allowing the Crown’s appeal and directing a new trial 2005 ABCA 443). Judge Derrick, found that those decisions had no application to this case. I agree. [69] In Sinclair, during an undercover police operation, an officer purchased four de-activated handguns from the accused, a gunshop employee.

All four of the guns were inoperable at the time of sale, although the missing firing pins needed to make the gunsoperational, along with other work, were supplied for two of them. Each of the guns was subsequently made operational by an RCMPfirearms expert using tools, equipment and replacement parts from the RCMP firearms laboratory and the extensive RCMP firearmscollection in Edmonton. Thus, the question in Sinclair was what was required of the Crown in order to secure a conviction under s.99(1)(

a) in circumstances where, at the time of the transaction, the firearms were inoperable. In the retrial, Bielby, J. (as she then was)citing the Supreme Court of Canada’s decision in R. v. Hasselwander, (SCC), [1993] 2 S.C.R. 398, and her own Courtof Appeal’s decision in Sinclair, 2005 ABCA 443, explained in ¶47 of her decision: 47 Therefore, before an accused may be convicted of an offence under s. 99(1)(

a) of the Criminal Code for transferring a firearmwithout authorization to do so where the firearm in question has been rendered un-operational the Crown must show that it was “capableof conversion to an operating weapon in a relatively short time period with relative ease”. I will refer to this as “the required standard”.Both those qualities, relatively short time and relative ease must be established to make out the required standard. [Underlining mine] [70] None of this assists Mr. Cater. The firearms he was found to have possessed and trafficked were not “deactivated” nor“rendered un-operational”.

On the contrary, Judge Derrick upon the whole of the evidence was satisfied beyond a reasonable doubt thatthese guns were fully operational and were weapons that Mr. Cater intended to sell and his cohorts intended to buy. [71] Neither does the Supreme Court’s decision in R. v. Grant, 2009 SCC 32 assist the appellant. Obviously, on the facts of thiscase, Judge Derrick was well satisfied that Mr. Cater’s actions were a great deal more than the “simple movement of a firearm from oneplace to another”.

His intercepted calls proved a genuine offer to transfer a lethal weapon – precisely the kind of transaction Parliamentclearly meant to criminalize. [72] To recap, context is always important. The judge was satisfied that the offers were genuine. The context of these offers wasthat the appellant was an active player in the illegal firearms business. People do not pack Derringers, automatic assault pistols, orsawed-off shotguns for a weekend hunting trip. They are made to maim and kill people.

Listening to these intercepts as she did, it wasinconceivable to Judge Derrick that that the appellant was, as suggested by his lawyer, just playing games with his friends and engagedin nothing more than “innocent” banter or “typical boasting” by teenage boys. [73] The trial judge rejected any such characterization. I think she was right to do so. [74] In my opinion, these verdicts on charges brought pursuant to s. 99 of the Criminal Code were reasonable and fully supportedby the evidence. [75] In

summary, the trial judge acquitted Mr. Cater on the three counts of careless storage relating to the firearms seized from 80Cavendish Road, as she was not satisfied proof had been offered that he was responsible for how the guns were stored when they werefound during the raid. As for the other possession and trafficking charges, the Crown presented a strong case. It was one that cried outfor an explanation from the appellant. He chose not to testify.

It is a well-established principle that, when considering thereasonableness of verdicts, an appellate court is entitled to treat an appellant’s silence at trial as an indication that he could not provide aninnocent explanation for his conduct. See for example, R. v. Henderson, supra at ¶38-40. In argument the appellant suggested anumber of alternative

interpretations of the intercepts, which he says makes the verdicts unreasonable. The trial judge rejected thesealternative

interpretations as being fanciful at best. So do I. Having re-examined and, to some extent, re-weighed the evidence, I amsatisfied that there was a sound evidential basis to support all of the judge’s findings of fact and the inferences she drew from those facts. Based on those facts and inferences, the convictions are perfectly reasonable and unassailable.

A Procedural Issue Relating to the Conviction for Offering to Transfer the .45 cal. handgun under the generic Count #1 [76] Before undertaking a review of Judge Derrick’s interlocutory decisions, I wish to address a procedural matter which caused mesome initial concern but, upon reflection, I find it to be unobjectionable because it did not prejudice Mr. Cater in his defence. [77] In the discussion that follows it will be helpful to refer to Appendix B.

As previously explained, the appellant was charged withpossession of a .45 cal. handgun for the purpose of offering to transfer it on or about December 7, 2008, contrary to s. 100(2) of theCriminal Code (Count #9). Judge Derrick acquitted Mr. Cater on that charge and instead convicted him of possession of a firearm forthe purpose of offering to transfer it between November 18, 2008 and January 16, 2009 (Count #1).

In my view, considering thecircumstances of this case, there was nothing wrong with Judge Derrick’s approach where she saw fit to acquit the appellant for havingpossessed the specified handgun for the purpose of transferring it on a single day in December (December 7 ~ Count #9), but convicthim of possessing that handgun for such a purpose during the weeks particularized in the general charge (Count #1).

While it might havebeen preferable for the trial judge to have communicated more explicitly her intention to address the offence related to this particularhandgun in that way, it cannot be seriously suggested that Mr. Cater suffered any prejudice by the manner in which the judge chose to

deal with it. I will explain. [ 78 ] A thorough review of the transcript suggests to me that there were three different Crown “theories” presented at various points during the trial as to why Mr. Cater should be convicted on Count #1. Those theories were: 1. At the close of the Crown’s case, the Crown’s theory to secure a conviction on Count #1 appears to have rested on photographs found on Mr. Cater’s cellphone which were taken in October 2008.

The Crown proposed amending the Information to change the dates, but abandoned the idea after discovering that the amendment would result in the Crown alleging offences that took place when Mr. Cater was a youth as well as an adult. 2. Subsequently, during closing submissions, the Crown appears to change tack to allege that Count #1 of the sole Information actually referred to the guns found at 80 Cavendish Road. It subsequently abandoned this argument the following day (at p. 3153 of the Appeal Book) “in an effort to be as fair as [the Crown] can possibly be”. 3.

Finally, the Crown seems to indicate to the trial judge that she could use Count #1 if she found that any of the dates for the specific weapons trafficking offences were not proven. This is precisely what Judge Derrick did. [ 79 ] The Crown provided notice at the start of the trial (p. 1169 of the Appeal Book) that it intended to request the judge to amend the sole Information to change the beginning of the period to run from October 1, 2008 rather than November 18, 2008.

The Crown subsequently sought an amendment to three different Counts (#1, 5 and 6) of the sole Information at the close of its case (at pp. 2443- 45). The Crown states with reference to Count #1 (at p. 2445): …I would adopt the same representations I made on the other charges [Counts #5 and 6], Your Honour, most particularly in terms of the disclosure of the cell phone report and the metadata that’s been referred to variously throughout. It’s been well known to defence for some time that the Crown was alleging he was in possession of firearms that are pictured on his cell phone, from the Crown’s perspective.

And that forms the basis as well of the amendment application for count number 1 . [Emphasis added] [ 80 ] Therefore, it appears that when the Crown closed its case it sought to rely on the October 13, 2008 photographs on Mr. Cater’s cellphone for a conviction on Count #1, which is why they then voiced the intention to amend the Information to run from October 1, 2008 rather than November 18, 2008. Judge Derrick asks the defence for its submissions on the proposed amendment and her comments suggest that this is how she interprets the Crown’s position on this count (at p. 2447): THE COURT : Mr.

Hartlen has said that the Crown is relying on the cell phone photographic evidence which is contained in Corporal Gallagher’s report and the metadata in that report that accompanies those photographs that indicates dates when photographs were taken in this particular instance of October 2008. That’s what I understand the Crown is referencing as the trial evidence underpinning this requested amendment. Am I right, Mr. Hartlen? MR.

HARTLEN : Yes, Your Honour …. [ 81 ] However, after a short recess, the Crown later abandons this sought-after amendment (at p. 2450) when it realized that an amendment to October 1, 2008 would “potentially create jurisdictional issues . . . that would go past Mr. Cater’s date of birth [October 28, 1990] in terms of making the allegations span both youth allegations and adult allegations…”. [ 82 ] The Crown put forward its second theory once all the evidence had been presented.

The Crown interrupts the defence’s closing submissions to suggest (at p. 2954) that Count #1 in the sole Information actually refers to guns that Mr. Cater possessed at 80 Cavendish Road, which of course were the subject of the 11 charges in the joint Information. We see this exchange: THE COURT : I -- yes, I see. All right. Well, it would be fair to say I had not had the understanding that the Crown is seeking to prove that Kyle Cater’s possession of the 80 Cavendish guns was anything other than a possession. MR. HARTLEN : It’s the Crown’s position that any gun that Mr.

Cater possessed during the entire period which the charges are before the court, he possessed for the purpose of trafficking. THE COURT : Purpose of trafficking. Okay. MR. HARTLEN : The Crown’s -- I’ll be very clear, the Crown’s position is that during the time, all time periods relevant to this proceeding, Mr.

Cater was a gun trafficker. [ 83 ] As a result, Judge Derrick again summarizes her understanding of the Crown’s revised position (at pp. 2954-5): …in relation to the 80 Cavendish guns, I obviously have to determine if the Crown has proven beyond a reasonable doubt, first of all, whether Kyle Cater had possession of those guns, and if I were to determine that he did, then I would still have to determine whether the Crown’s proven beyond a reasonable doubt that his possession of those guns was for the purpose of trafficking. [ 84 ] At pp. 2955-8 and pp. 3005-6, Ms.

Cooper suggests that if this is the Crown’s position and Count #1 of the sole Information actually relates to the 80 Cavendish Road joint Information, this would be unfair because the Crown would be changing the position it had held throu

[…]