IN THE PROVINCIAL COURT OF NOVA SCOTIA R. v. Cater 2012 NSPC 18 Date: March 14, 2012 Docket: 1997518 to 1997550; 2035773 to 2035784 Registry: Halifax BETWEEN: Her Majesty The Queen Kyle Cater TRIAL DECISION Editorial Notice Two telephone numbers have been removed from this electronic version of the judgment. JUDGE: The Honourable Anne S. Derrick HEARD: February 13, 14, 15, 16, 17, 21, 22, 23, 24, 27, March 1, 5, 6, 7, and 8, 2012 DECISION: March 14, 2012 CHARGES: Sections 86(1) x3; 88(1) x3; 95(1) 2; 92(1) 2; 92(2) 1; 100(2) 6; 99(2) 6; of the Criminal Code COUNSEL: Richard Hartlen and Marian Fortune-Stone, for the Crown DEFENCE: Elizabeth Cooper, for Kyle Cater By the Court: Introduction [1] January 15, 2009 began eventfully for Kyle Cater. His stepmother, Torina Lewis, called him early in the morning with the news that there had been police raid on the home she shared with Kyle’s father. In 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, 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 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 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] will note here that, without any disrespect intended, on occasion in these reasons refer to Kyle Cater as Kyle and Paul Cater as Paul so as to avoid any confusion. For symmetry 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. [9] On February 24 at the close of the Crown’s case against Kyle, I granted an amendment to Count #8 of the January 15, 2009 Information to allege, pursuant to section 95(1) of the Criminal Code, unlawful possession by Kyle Cater of an unloaded prohibited firearm - the AA Arms Model AP 9 handgun together with readily accessible ammunition that was capable of being discharged in the firearm. The Crown had provided notice of its intention to seek this amendment at the start of Kyle’s trial on February 13, prior to the calling of evidence. The Burden of Proof and Reasonable Doubt [10] As have noted many times during these proceedings, Kyle Cater is presumed to be innocent until the Crown proves he is guilty beyond reasonable doubt. The function of the reasonable doubt standard is not to weigh individual items of evidence. It is the whole of the evidence that must be assessed in the determination of whether the Crown has made out its case. (R. v. Morin, 1988 CanLII (SCC), [1988] S.C.J. No. 80) [11] The burden of proof rests on the prosecution throughout the case and never shifts to the accused. An assessment that an accused is probably guilty is insufficient. Reasonable doubt is based on reason and common sense and is logically connected to the evidence or lack thereof. (R. v. Lifchus, [1977] S.C.J. No. 77) Trial Management and Paul Cater’s and Torina Lewis’ Change of Plea [12] Five substantive case management conferences were held in this matter, primarily to deal with issues raised in relation to Kyle Cater. Trial dates were set, 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. have heard no facts, evidence, or submissions relating to these pleas. This decision is in relation to the charges against Kyle Cater. [14] Ms. Cooper has asserted that the guilty pleas of Paul Cater are relevant to the issue of Kyle’s criminal liability on the firearms possession charges. do not agree. The Crown’s case against Kyle Cater rests on his having constructive and/or joint possession of the firearms at 80 Cavendish. Kyle Cater can still be guilty even if his father was also in possession. [15] The key evidence on the firearms possession charges are the intercepts. The intercepts are also of pivotal importance to the firearms trafficking charges. [16] conducted eight voir dires in advance of the evidentiary phase of the trial commencing on February 13, 2012. All but two of these voir dires were for Defence applications. The Crown made two applications for the summary dismissal of Defence motions. My decisions on the voir dires are reported as follows: R. v. Cater, 2011 NSPC 75 (CanLII), [2011] N.S.J. No. 561 (plea negotiation privilege); R. v. Cater, 2011 NSPC 80 (CanLII), [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 for summary dismissal of abuse of process and arbitrary detention applications); R. v. Cater, [2011] N.S.J. No. 691 (section challenge to the validity of the search warrant for 80 Cavendish Road); and R. v. Cater, 2012 NSPC (CanLII), [2012] N.S.J. No. 22 (section challenge to the search of Kyle Cater’s cell phone). [17] As result of certain of the decisions mentioned above, 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 from Kyle Cater on his arrest. In the course of the trial also heard submissions and ruled on the admissibility of hearsay evidence contained in the intercepts and the text messages from the cell phone. (R. v. Cater,[2012] N.S.J. No. 111) admitted into evidence the communications of the Part VI authorized intercepts for the truth of their content. [18] Almost nothing was conceded by Defence for Kyle Cater. As consequence, these reasons will address the continuity and integrity of exhibits, including the intercepts, and voice identification. Operation Intrude [19] Operation Intrude, joint operation of the RCMP and Halifax Regional obtained Part VI authorization that targeted number of individuals believed to be associated including Kyle Cater, Jeremy LeBlanc, Shawn Shea and Aaron Marriott. The sixty-day authorization netted 64,000 intercepts. According to Det/Cst. Nick Pepler, the lead investigator for Operation Intrude, approximately 5000 of these intercepts captured conversations involving Kyle. [20] January 15, 2009 was take-down day for Operation Intrude. Although Kyle had not been on the arrest list for January 15, following the intercepted telephone calls with Torina Lewis, he was arrested for possession of the firearms found at 80 Cavendish. will have more to say about these, and other intercepted telephone conversations later in these reasons. The Firearms Seized at 80 Cavendish Road [21] Cpl. Mark Cameron was the Exhibit Officer for the search of 80 Cavendish Road. Police officers searching the residence brought to his attention number of items which he then seized. These items were: .22 calibre Mark II rifle, serial number 68355 with loaded magazine and catridge in the chamber; box of ammunition (50 rounds of .38 special ammunition); loose rounds; box of shotgun shells; 30-30 Winchester bullet; 20 gauge Cooey sawed off shotgun, serial number 82867, loaded with one shell; three 20 gauge shotgun shells; an unloaded AP Luger fully automatic, serial number 049948; fully loaded magazine and single shotgun shell. [22] The Mark II rifle was located, propped up, to the right of the headboard in the master bedroom on the third level of 80 Cavendish. The AP Luger was in the second (bottom) drawer of the night table next to where the rifle was found. The loaded magazine for the AP was in television stand behind set of ceramic hands which had two little roses decorating their wrists. Cpl. Cameron estimated the distance between the location of the AP and the magazine to be little more than six feet, close enough to be readily accessible. single 20 calibre shotgun shell was found sitting on top of the dresser in the bedroom. Three 20 gauge shotgun shells were found in the first (top) drawer of the night table which held the AP 9. The Cooey shotgun was seized from the kitchen, in Cpl. Cameron’s estimation, about eight feet from the main entrance into the home. The boxes of ammunition the .38 special rounds and the shot gun shells were found high up in kitchen cupboard, about 7.5 feet off the floor. The two loose rounds of .38 special ammunition were also found in this location as was the 30-30 Winchester bullet. In drawer in the kitchen table police found, and Cpl. Cameron seized, four 20 gauge shotgun shells. [23] The three guns and the ammunition were tendered into evidence as were Cpl. Cameron’s photographs of them (Exhibit 5) in their original locations at 80 Cavendish. [24] Cst. Andre Habib of the HRPS IDENT unit was dispatched to 80 Cavendish where he took possession of the exhibits collected by Cpl. Cameron. He returned to HRPS headquarters with the exhibits, photographed them and swabbed them for fingerprints and DNA. They were kept locked in his personal exhibit locker in the locked police lab until he turned them over to Cst. Christian Moreau in March 2009. Cst. Habib’s 39 photographs of the seized items were tendered into evidence as Exhibit 6. [25] The firearms seized from 80 Cavendish were forwarded to Martin Champion, firearms analyst with the RCMP. Mr. Champion was qualified without objection by the Defence as firearms analyst/technologist able to give opinion evidence as to the identification, classification and functionality of firearms and related devices, ammunition, or any part or component of such items. In the course of his testimony he examined Exhibit 14 (the Mark II Lakefield rifle, Exhibit 20 (the Cooey shotgun), Exhibit 23 (the AA Arms AP 9), Exhibit 24 (the Luger magazine and the seventeen Winchester brand mm Luger catridges), and Exhibit 15 (the six .22 calibre cartridges and related magazine.) He confirmed that these Exhibits were the items provided to him for analysis as to their mechanical condition and legal classification. [26] Mr. Champion adopted the contents of his report (Exhibit 31) and the firearms certificates of analysis he prepared. (Exhibit 8) Previously Cpl. Allan Rogers had testified that he served Kyle Cater with the firearms certificates (Exhibit 8) on July 8, 2009 at the door of Mr. Cater’s apartment. Cpl. Rogers’ Affidavit of Service is attached to, and forms part of, Exhibit [27] Mr. Champion testified as follows: The Mark II Lakefield rifle fired properly when tested. Mr. Champion used the magazine that had been seized with the rifle and one of the rounds from that magazine in testing the mechanical condition of the rifle. The rifle is non-restricted firearm. Mr. Champion certified in Exhibit 8, “Certificate of Analysis” for the Lakefield Mark II rifle that the rifle “is firearm within the meaning of Section of the Criminal Code of Canada, in that it is barreled weapon from which projectile can be discharged and that is capable of causing serious bodily injury or death to person.” The Cooey shotgun is in modified condition having had its stock and barrel cut. In this condition it is prohibited firearm. The Cooey fired properly with .20 calibre shotgun shell. Mr. Champion used shell from the RCMP Forensic Lab stock of ammunition to test the Cooey. Mr. Champion certified in Exhibit 8, “Certificate of Analysis” for the Cooey, model 84, 20 gauge single shot shotgun that the shotgun “is firearm within the meaning of Section of the Criminal Code of Canada, in that it is barreled weapon from which projectile can be discharged and that is capable of causing serious bodily injury or death to person, and furthermore, that said shotgun is prohibited weapon within the meaning of Section 84(1) of the Criminal Code of Canada, in that it is adapted by cutting and as so adapted is less than 660 mm in length.” The AP Luger fired properly when tested using the magazine and one of the catridges seized from 80 Cavendish. The AP 9’s disconnector had been cut off converting the gun from its manufactured semi-automatic mode to fully automatic weapon. When Mr. Champion tested the AP it fired in full automatic mode. In this condition it is prohibited firearm. Mr. Champion certified in Exhibit 8, “Certificate of Analysis” for the AA Arms, model AP 9, mm Luger calibre full-automatic pistol that it “is firearm within the meaning of Section of the Criminal Code of Canada, in that it is barreled weapon from which projectile can be discharged and that is capable of causing serious bodily injury or death to person, and furthermore, [it] is an automatic firearm and prohibited firearm within the meaning of Section 84(1) of the Criminal Code of Canada, in that it is firearm that is designed and manufactured with the capability of discharging projectiles in rapid succession during one pressure of the trigger.” Mr. Champion certified in Exhibit 8, “Certificate of Analysis” for the cartridge magazine that was found in the master bedroom at 80 Cavendish Road that it is “a prohibited device within the meaning of Section 84(1) of the Criminal Code of Canada and Section of Part of the Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles and Prohibited or Restricted, in that it is capable of containing more than ten cartridges of the type for which it was originally designed and that it is designed for use in semi-automatic handgun.” Mr. Champion also examined Exhibit 21, shotgun shell seized at 80 Cavendish. He testified that all its components were present so that it was in fire-able condition. Mr. Champion was not provided with Exhibit 17, box of shotgun shells seized at 80 Cavendish. He examined them in the witness box and confirmed that the head stamps for these shells indicated they were .20 gauge shotgun shells. Mr. Champion testified that these shotgun shells were designed to be fired in the Cooey sawed-off shotgun. [28] Mr. Champion received the exhibits in the condition they were in when he re-examined them in court. He testified that when he had finished with the firearms and ammunition he taped up all the boxes and returned the exhibits to the police. He indicated that no one tampered with any of the exhibits. Canada Firearms Centre Evidence [29] Exhibit includes “Notice of Documents Section 28 Canada Evidence Act” and Det/Cst. Nick Pepler’s certification that on April 29, 2009 he personally served Kyle Cater with Affidavits of Firearms Checks. These documents included the Affidavit dated January 21, 2009 of Maarten Kramers, Chief Firearms Officer, Provincial Firearms Office for Nova Scotia in which he confirms that the Canadian Firearms Registry has been searched and Kyle Cater does not possess Firearms Acquisition Certificate, issued under the former Part III of the Criminal Code of Canada, or Possession Only License or Possession and Acquisition License issued under the Firearms Act, S.C. 1995, C-39, and furthermore, no application for firearms license of firearm registration in the name Kyle Cater has been found in the Canadian Firearms Information System. Affidavits sworn on January 27, 2009 by Denis Deveau, Police Line Operator with the Canada Firearms Centre indicate that Kyle Cater has not been issued valid registration certificate under the authority of the Firearms Act. Nor is there any record of valid registration certificate for the Lakefield Mark II rifle, serial number 68355 or the AA Arms AP9 millimeter handgun, serial number 049948 or the Cooey model 84 20 gauge shotgun, serial number 82867. [30] The testimony of Cpl. Cameron, Mr. Champion and Cst. Christian Moreau, and the documentary exhibits entered through, or referred to by them, left me with no doubt about the continuity and integrity of the exhibits being relied on by the Crown which were seized from 80 Cavendish Road. will further note that Ms. Cooper did not even cross-examine the lead exhibit officer for Operation Intrude, Cst. Moreau. Her cross-examination of Cpl. Cameron did not challenge his handling or transfer of the exhibits seized from 80 Cavendish. Although the Defence did not concede continuity, there was nothing in the evidence to support any suggestion of continuity problem. Continuity of the Seized Firearms, Their Identification and Classification [31] There is nothing to the continuity/integrity of the exhibits issue. Indeed have been unable to see why it was even made an issue at all. There is nothing to suggest that the guns and ammunition introduced as evidence in this trial are not the ones that were located in Paul Cater’s and Torina Lewis’ home. am also fully satisfied that all three guns the Mark II Lakefield rifle, the Cooey shotgun, and the AP nine millimeter handgun are “firearms” within the definition under section of the Criminal Code, that is to say they are each “a barreled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to person…” There is no evidence to refute the opinion of Martin Champion in this regard. [32] There is also no evidence that refutes Mr. Champion’s opinion as to the classification of the 80 Cavendish firearms and ammunition in accordance with section 84(1) of the Criminal Code. accept that the Mark II Lakefield rifle is non-restricted firearm, the sawed-off Cooey shotgun is prohibited firearm, the fully automatic AP is prohibited firearm, the cartridge magazine found in the master bedroom of 80 Cavendish is prohibited device within the meaning of section 84(1) of the Criminal Code and section of Part of the Regulations. [33] also note that in Martin Champion’s report (Exhibit 31), he indicated that the cartridge magazine to the Mark II Lakefield rifle “has capacity of up to thirty (30) 7.62 39 mm Russian calibre cartridges.” (Exhibit 31, page 2, #9 under Results) As Mr. Champion concluded in his report, this makes that rifle magazine prohibited device within the meaning of section 84(1) of the Criminal Code and section of Part of the Regulations. (Exhibit 31, page 3, #9 under Conclusions) The Relevance of the Identification and Classification Evidence and the Canada Firearms Centre Evidence to the Charges Relating to the 80 Cavendish Guns [34] am wholly satisfied that the guns seized from 80 Cavendish are firearms within the meaning of the Criminal Code and that they and the two magazines have been correctly identified and classified in the charges against Kyle Cater, Paul Cater and Torina Lewis. am also wholly satisfied that Kyle Cater did not have, at any time material to the charges, Firearms Acquisition Certificate or any other kind of license for possessing firearms nor did he have valid registration certificate for any of the 80 Cavendish firearms or any firearms. [35] Therefore, the essential issue on the charges against Kyle Cater in relation to the 80 Cavendish Road firearms and ammunition is whether Kyle had constructive and/or joint possession of the loaded Mark II Lakefield rifle, the loaded Cooey sawed-off shotgun, the unloaded fully automatic AP 9 nine millimeter pistol, and the two over-capacity magazines. In due course will address the law and evidence relating to the possession issue. [36] Before embark upon discussion of the rest of the Crown’s evidence, want to note that the possession issue does not decide everything on the charges relating to the 80 Cavendish firearms. Kyle Cater is also charged with careless storage of the 80 Cavendish firearms and ammunition. He cannot of course be found guilty of careless storage if he is not guilty of possession. But even if he is guilty of possession that does not determine that he is therefore guilty of careless storage. These charges have to be decided on their own merits. [37] will now move on to discuss Kyle Cater’s cell phone, the technical evidence relating to the interceptions, and voice identification. Kyle Cater’s Cell Phone [38] One of the phones monitored pursuant to the Part VI authorization was cell phone used by Kyle Cater. Barbara Chase confirmed that she was the subscriber to the phone which had the number 229-4400 but that it was Kyle who used it. She was shown Exhibit on cross-examination and agreed that it looked like the phone her son had used. [39] Exhibit is the phone seized from Kyle on his arrest. Det/Cst. Donald Buell testified that on January 15, 2009 he oversaw the processing of prisoners who had been arrested in the Operation Intrude take-down. Personal effects were seized from Kyle when he was arrested. Included in these personal effects was cell phone. Det/Cst. Buell confirmed that Exhibit is that cell phone, in the exact same condition as when he seized it from Kyle’s personal effects and removed the battery. The battery removal was in accordance with instructions the investigators had received from the RCMP Technological Crime Unit on how to handle seized cell phones. Det/Cst. Buell did not examine or use the phone. After removing the battery, he stored the phone and the battery in an exhibit bag in drug locker. He turned the phone over to Cst. Christian Moreau on January 22. Det/Cst. Buell confirmed that no one had, in the meantime, accessed or manipulated any of the seized phones, including the one taken from Kyle Cater. [40] Cst. Moreau forwarded the seized phone to Cst. (now Cpl.) Aaron Gallagher of the RCMP Technological Crime Unit in Fredericton. Exhibit 33, the exhibit control document for the Samsung cell phone confirms the continuity of the cell phone which has been maintained in police custody since being returned by Cpl. Gallagher, until it was provided by Cpl. Moreau to the Crown on December 21, 2011 for this trial. Since February 13, 2012, the phone has been in the custody of the court as an exhibit in the trial. The Admissibility of the Cell Phone [41] In R. v. Cater, 2012 NSPC (CanLII), [2012] N.S.J. No. 22, determined that the contents of Mr. Cater’s cell phone were admissible as evidence in this trial. [42] Before move on to discuss what was found on the phone, will address an issue that, in Ms. Cooper’s view, has not been dispensed with. She continues to insist that Kyle’s Charter application in relation to the cell phone does not associate him with the phone, and entitles him at trial to demand that the Crown prove the phone is his. cannot agree. addressed this issue in R. v. Cater, 2012 NSPC (CanLII), [2012] N.S.J. No. 22 at paragraphs 7. As said there, in part: 5… Mr. Cater has chosen to advance challenge to the search of cell phone seized from him at the time of his arrest. To advance such challenge he must establish that he has standing to do so. He has standing only if he can claim reasonable expectation of privacy in the phone. He cannot subsequently claim to have no interest in the phone. Engaging section rights in Charter voir dire and then at trial claiming no connection to the phone would be, to put it mildly, disingenuous. [43] I am unable to accept that Kyle Cater can assert a privacy interest in order to obtain the protection of section 8 of the Charter and then, when that application goes badly and the evidence is admitted, turn around and claim to be a stranger to the item in which the privacy interest resided. [44] In any event have not resorted to Kyle’s assertion of reasonable expectation of privacy in the Samsung cell phone in determining that the phone is his. am satisfied the evidence led by the Crown has established that the phone with the number 229-4400 was Kyle Cater’s cell phone. His mother testified that she subscribed to cell phone for his use that had this number. The phone contains contact information that Ms. Chase, the subscriber (under the name she was using at the time Barbara Cater), did not enter. It has photographs on it of Kyle’s girlfriend, Katie Mills, and himself. Det/Cst. Pepler gave evidence that he found no evidence in the intercepts that anyone else was using this phone. find there is ample evidence of the phone being Kyle Cater’s, independent of the fact that he asserted reasonable expectation of privacy in the phone when he advanced his section Charter challenge to its seizure. The Cell Phone The Forensic Analysis [45] Cpl. Aaron Gallagher, computer forensic analyst, who is now the supervisor of the RCMP Integrated Technological Crime Unit, was qualified by me to give opinion evidence in “computer forensic analysis and the recovery and interpretation of electronic data and data stored electronically.” His qualifications to provide expert opinion evidence were not contested by Defence. [46] Cpl. Gallagher identified contact information and images (photographs) and used ZRT (Zippy Reporting Tool), camera, to capture images of the phone’s display screen and its record of outgoing and incoming calls, missed calls, and text messages. He accessed the metadata of the phone which included the date when images were created by the phone, i.e. dates when photographs were taken. His “Mobile Device Analysis Report” was completed on March 31, 2009. In his report, Cpl. Gallagher described the procedures and software he used on the Samsung: “The electronic data stored on [the phone] was extracted using combination of the CellBrite and XRY forensic tools as well as the ZRT capture device.” [47] Cpl. Gallagher confirmed in his testimony that he had not manipulated or changed any of the information or images extracted from the cell phone nor had any other law enforcement personnel done so. accept his evidence, which was not challenged, that his forensic analysis was done in accordance with strictly observed protocols to protect the integrity of the data stored in the phone. The Contents of the Cell Phone Contacts [48] Cpl. Gallagher’s forensic analysis of Kyle Cater’s Samsung phone enabled him to access the 156 contacts listed in the phone, some of which will make specific reference to when discuss the intercepts. The Contents of the Cell Phone Photographs [49] The phone also contained 28 still images (photographs), including images of young woman Det/Cst. Pepler and Barbara Chase identified as Katie Mills, Mr. Cater’s girlfriend during the relevant period. Also obtained from the cell phone were images of brown pitbull, stacks of money, and three photographs that depict handguns. There is single image of young man lying on sofa with the brown pitbull. When shown the photograph blown up, Mr. Cater’s mother, Barbara Chase, testified that it was photograph of Kyle with Paul’s and Torina’s pitbull, Kyla. [50] Cpl. Gallagher was able to determine from the metadata in the Samsung that the images of the handguns were created on October and October 13, 2008. The Contents of the Cell Phone Text Messages [51] Also retrieved from the Samsung by Cpl. Gallagher were screen shots of outgoing (20/20) and incoming (20/20) calls and text messages. The Samsung’s capacity was 20 calls in each category (outgoing and incoming) and 20 texts. [52] The 20 outgoing calls spanned the period of January 14, 2009 at 2:04 p.m. to January 15, 2009 at 8:32 a.m. The incoming calls were received between January 14, 2009 at 4:25 p.m. and January 15, 2009 at 8:21 a.m. Twenty missed calls were also recorded, between January 13, 2009 at 8:28 p.m. and January 15, 2009 at 9:08 a.m. In addition, the forensic analysis retrieved 11 text messages that were received and 10 that were sent. Many of the calls and texts went to or came from the listed contacts that Mr. Cater had stored in his phone. will refer to certain texts in due course. The Intercepts Technical Evidence [53] Evidence was led by the Crown about the monitoring and oversight processes for the interception of private communications in Operation Intrude pursuant to the Part VI authorization. have previously concluded that the authorization was valid. (R. v. Cater, [2011] N.S.J. No. 626) The Crown has shown that Kyle was either personally served or served through Ms. Cooper copies of the digital audio recordings of the intercepts and the corresponding transcripts as well as Session Lists, and Statements of Time, Date and Place pursuant to section 189(5) of the Criminal Code. It has also been established that there is no evidence whatsoever of any tampering with or manipulation of either the audio recordings of the intercepted communications, the transcripts prepared from those audio recordings or the text messages that were reviewed and recorded in transcription form. [54] Holly Good, an experienced intercept monitor, described this as “quite an easy file” with an “easy dialect” and “very easy transcriptions.” She confirmed that Exhibit 13 contains the original transcripts that she prepared of the intercepts. She further confirmed that Exhibits 1, 2, and are copies of the transcripts in Exhibit 13 and that everything in Exhibits 1, 2, and 4, are found in Exhibit 13. Ms. Good also testified that the transcripts she prepared and verified are, to the best of her ability, accurate representations of the intercepts. [55] On cross-examination, Ms. Good confirmed that the police investigators could not alter document that she was working on, that there is no way to change the audio recording of the intercepts and that the entire call is transcribed, never just portion. She testified that there is no way for anyone to access the software program used for the intercept and delete portion of call. [56] Glennis Sullivan, Ms. Good’s supervisor and the manager of all the intercept monitors, testified that the intercepts entered into evidence were obtained pursuant to Part VI authorization (Exhibit 29) with which she was familiar, as was Ms. Good. The recording equipment was functioning as was the software program used by the monitors. Ms. Sullivan burned the CD’s that were requested for this trial and created the CD’s that are included in Exhibits 1, 2, and 4. Exhibit is compilation of intercept sessions, 57 in total. She had no trouble preparing the burned CD’s. She maintained continuity of the CD’s by locking them in her exhibit locker once they were created and then bringing them to court. [57] Ms. Sullivan also burned CD’s as requested for voice identification purposes. [58] Ms. Sullivan testified that there is no possible way to tamper with the audio recordings of the intercepts. She also confirmed that it is not possible to burn only portion of call to CD: the entire call is burned when CD is created. [59] Notwithstanding evidence led by Ms. Cooper from Kyle Cater’s mother, Barbara Chase, that she reviewed what was only partial transcript of an intercept of call she had had with friend on January 15, 2009, am satisfied that the intercepts introduced into evidence before me, which were played in evidence, are unexpurgated and have not been modified, changed, edited or abbreviated in any way. want to note that Ms. Chase received the partial transcript from Kyle’s first lawyer, Geoff Newton. She confirmed in her testimony that prior to this trial she was given the complete transcript of this particular call by Ms. Cooper. There is nothing to indicate that the complete transcript of the Barbara Cater call was not available when Geoff Newton was acting for Kyle. Indeed, Gloria Sullivan’s testimony, which accept, satisfies me it would have been. Why Barbara Cater was originally provided with only part of the transcript for the call is unexplained but it does not remotely suggest to me that there has been any tampering with any of the interceptions or their transcripts. [60] will further note that the continuity and integrity of intercept recordings and the related transcripts goes not to the admissibility of the intercepts but to their weight. (R. v. Meer, [2010] A.J. No. 1123 (Q.B.), paragraph 16) No evidence has been produced by Ms. Cooper, either directly or through cross-examination, that causes me to conclude the intercepts should be accorded diminished weight. am satisfied to accept them as accurate recordings of the conversations that were intercepted. [61] Ms. Cooper raised section 31.2 of the Canada Evidence Act which provides for proof of the “integrity of the electronics document system” as the best evidence rule in respect of an electronic document. find this to have no application whatsoever to the recordings of Part VI intercepted private communications. have never seen any case authority for such proposition and Ms. Cooper provided me with none. Furthermore, section 31.3 of the Canada Evidence Act sets out presumption of integrity on the basis of evidence such as that elicited in this case from Ms. Sullivan and Ms. Good. Even as make note of that, reiterate my firm view that these provisions of the Canada Evidence Act have nothing to do with Part VI intercepts. Voice Identification [62] The Crown tendered 60 Part VI intercepts in total for voice identification purposes and 911 call from December 26, 2008. 57 intercepts are found in Exhibit 4, and have been tendered also as evidence of Mr. Cater’s guilt. Only two of these intercepts do not involve speaker who has been identified as Kyle Cater: Intercept (session #869) is conversation that involved third parties and Intercept (session #2589) is text. This means 55 of the substantive intercepts (Exhibit 4) involve speaker that has been identified as Kyle Cater. In addition the Crown tendered three intercepts for voice identification purposes only. Therefore, 58 intercepts played at this trial are said to contain Kyle Cater’s voice. [63] Det/Cst. Pepler has had considerable exposure to Kyle Cater’s voice, voice he identified on intercepts obtained by the investigation. He testified that he personally listened to the 64,000 intercepts captured pursuant to the Part VI authorization. Approximately 5000 intercepts involved Kyle Cater. He has listened to each of the 57 intercepts selected for the Crown’s case approximately dozen times. In number of these calls, Kyle either identifies himself or is identified during the call. Det/Cst. Pepler has also listened to another 11 intercepts “at least” where speakers identify Kyle Cater or he self-identifies. Det/Cst. Pepler referred to the 911 call placed by Kyle Cater and to video/audio interrogation of Kyle by police. (That police interview was not introduced into evidence by the Crown and only referenced by Det/Cst. Pepler for the purpose of describing what sources he had used for developing his familiarity with Kyle Cater’s voice.) [64] Det/Cst. Pepler had also spoken to Kyle in person. He spent an hour with Kyle following his arrest on the weapons trafficking charges on April 29, 2009. He spoke to Kyle during traffic stop in 2008. Det/Cst. Pepler first met Kyle and his family when Kyle was eleven years old. [65] Det/Cst. Pepler testified that, in addition to becoming familiar with Kyle Cater’s voice, features of the actual intercepts satisfied him that he was listening to him speaking. These features included commonly repeated phrases and context. In some instances, Det/Cst. Pepler heard discussion about an event that Kyle Cater had been involved in with police, such as the December 2008 traffic stop. Furthermore, Kyle used cell phone to make and receive calls that no one else used during the course of the operation. It was cell phone registered to Mr. Cater’s mother, Barbara Cater. [66] Det/Cst. Pepler testified to being sufficiently familiar with the voices of other individuals captured on the intercepts to confidently identify the speakers. Individuals such as Shawn Shea and Jeremy LeBlanc were targets of Operation Intrude and featured in thousands of calls. They would, on occasion, identify themselves or be identified in the calls. Det/Cst. Pepler also got to know some of the idiomatic turns of phrase and expressions employed by various speakers. In the cases of Mr. Shea and Mr. LeBlanc, Det/Cst. Pepler also had had direct personal experience, through arrests, service of documents and appearances in court. In Jeremy LeBlanc’s case, Det/Cst. Pepler listened to six hour police interview. [67] Other voices Det/Cst. Pepler became familiar with were those of Paul Cater, L.S., M.C. and J.M. In Paul Cater’s case, Det/Cst. Pepler had spoken with him at court several times. He listened to approximately 200 intercepts involving Paul Cater. The phone numbers used by Paul Cater were registered in Kyle Cater’s cell phone under “Dad”. Det/Cst. Pepler testified to knowing J.M. from Spryfield and having spoken to him several times at court. He describe J.M. as “regular, everyday caller” to Kyle Cater. Phone numbers linked to these individuals helped to confirm who was using the phones. [68] Clues as to who was speaking were also available to Det/Cst. Pepler in the calls themselves where for example, M.C. can be identified by his referring to himself as Kyle Cater’s brother. Det/Cst. Pepler noted that M.C. is Kyle’s only brother. Police knowledge about nicknames and relationships also informed Det/Cst. Pepler’s voice identification. [69] Simply put, as Det/Cst. Pepler explained it, describing his ability to identify who was speaking on the intercepts: “You get to know these people.” [70] Det/Cst. Johnny Mansvelt also gave evidence about voice identification.He assisted in Operation Intrude and listened to some of the intercepted calls. In all he listened to over thousand calls. He testified that he listened to all of the calls in Exhibit (56 calls as noted above) at minimum of 10 times each. [71] Like Det/Cst. Pepler, Det/Cst. Mansvelt used familiarity, self-identification and context to identify voices in the intercepts. He testified that voices he was familiar with from personal interaction were Paul Cater’s, Torina Lewis’, Kyle Cater’s, M.C.’s, and Aaron Marriott’s. Self-identification, extensive exposure through the intercepts and contextualized references cemented Det/Cst. Mansvelt’s confidence in the identity of the speakers. [72] Det/Cst. Mansvelt’s voice identifications of Kyle Cater, Paul Cater and Torina Lewis were the same in every instance as Det/Cst. Pepler’s. He was also able to identify Aaron Marriott’s voice as Voice in Intercept (session #869), call that occurred on November 30, 2008. [73] find that the voices throughout the calls are consistent. By that mean the voices identified by Det/Cst’s Pepler and Mansvelt show the same characteristics throughout the calls and are recognizable as the same voice throughout. Given Det/Cst. Pepler’s experience with Kyle Cater in person and his exposure to his voice where he either self-identifies (as occurs on some of the intercepts and the 911 call) or is identified (as he is on some of the intercepts and would have been in the police interview Det/Cst. Pepler listened to), am satisfied that he would know Kyle’s voice both by its intonation and the content of its speech and has correctly identified his voice on the intercepts. also accept that Cst. Pepler's experience with Shawn Shea, Jeremy LeBlanc and Paul Cater equipped him to reliably identify those voices. am further satisfied that there is ample self-identification in calls in which L.S. is speaking and two involving M.C. for me to accept Det/Cst. Pepler’s opinion identifying their voices in these calls. He has also identified to my satisfaction on similar basis the voice of D.S. [74] Det/Cst. Mansvelt is similarly well suited to identify the voices of Paul Cater, Torina Lewis, Kyle Cater, and Aaron Marriott. [75] In the 55 substantive intercepts, that is intercepts the Crown submits contain proof beyond reasonable doubt of the offences with which Kyle is charged, voice accept to be Kyle Cater’s voice can be heard speaking. This is the same voice that makes the 911 call on December 26, 2008 identifying himself as Kyle Cater. 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) am satisfied that have got to know Kyle Cater’s voice and recognize it as the voice Det/Cst. Pepler identified as belonging to him. acquired the same sense of familiarity with respect to the voices of Paul Cater and Torina Lewis. [76] Returning to Kyle Cater’s voice, find that the voice heard on the 58 intercepts is the identical voice heard on 911 call, also intercepted by police during the investigation. dispatcher answers call. The caller identifies himself as Kyle Cater, spelling his last name and giving his address at 116A Purcells Cove Road. The evidence (that being, the evidence of Barbara Cater Chase) has confirmed that was Kyle’s address at the time. [77] Barbara Chase gave what will call “icing on the cake” confirmatory evidence on cross-examination that the 911 caller is Kyle Cater. Not only did she identify his voice when the Crown started to play the intercept, she indicated she was standing right beside him when he made the call. [78] In identifying Kyle’s and other voices on the intercepts also find that identity can be inferred from the context of the discussion, what happened immediately prior to particular call, and the interconnection of subject matter and personnel amongst the calls. Furthermore, there is ample self-identification in the intercepts. [79] For example, in Intercept 3, Kyle is referred to by his caller as “Cater.” In Intercept 17, he is referred to as “Kyle”. In Intercept 24, Kyle is called “Peanut” which Barbara Chase confirmed in her testimony was Kyle’s nickname. In Intercept 26, Kyle gets called “Ky”, another nickname according to Ms. Chase. And Kyle is identified by name in the January 15, 2009 calls that followed the police raid on 80 Cavendish Road. But the context alone is enough to identify the callers on the January 15 calls: there is no question that they are Torina Lewis, fresh from being arrested and detained, and Kyle Cater, learning the news of what had happened early that morning when the police descended on 80 Cavendish to execute search warrant. [80] In one of the three voice identification only calls, call on January 8, 2009, Kyle identifies himself as “Cater.” [81] In other calls, Kyle’s voice is identifiable not only by its recognizable features expressions and intonation but by the context. The January 15 calls are an example of this as are the calls (Intercepts 48, 49, 50 and 52) where Kyle talks first to his girlfriend Katie Mills about her being pulled over on December 28, 2008 by the police and then to others about the traffic stop. In the calls made by Kyle later on December 28 he references the traffic stop with some hilarity in view of the police narrowly missing him. [82] Det/Cst. Mansvelt testified about the December 28 traffic stop and the events leading up to it. He was involved in the surveillance that day and the Quick Response Team take down. will have more to say about these events later in these reasons. The point of mentioning them now is simply because what Det/Cst. Mansvelt described is incontrovertible evidence of Kyle Cater’s identity on the intercepts for December 28. [83] For the purpose of the firearms possession charges, the other key speakers on the intercepts Paul Cater and Torina Lewis are also readily identifiable by self-identification, being named, and context. Both Paul Cater and Torina Lewis have distinctive voices that become familiar to the ear through listening to the intercepts. They are also identified in various calls, for example on December 25 when Aaron Marriott calls from jail and speaks to both of them after asking for them by name. Torina Lewis identifies herself in the January 15 calls with Kyle. [84] Kyle Cater is tied into the intercepts as well by the phone numbers that are used. He consistently receives and makes calls on cell phone with the number 229-4400. His mother, Barbara Chase confirmed that she subscribed to this phone for Kyle Cater’s use. She did not program the phone with any of the contact numbers found in it. also accept Det/Cst. Pepler’s evidence that he did not find any indication in all the intercepts he listened to of anyone else using the phone with this number. And many of the numbers that 229-4400 called to or was called from were numbers that Kyle Cater had listed as contacts in his cell phone (Exhibit 10). This includes: his father, Paul Cater (“Dad”), D.M. (“D”), R. S. (“R”), I. E. (“I”), and Katie Mills (“My Baby”). [85] am wholly satisfied with the accuracy of Det/Cst’s Pepler’s and Mansvelt’s identification of the voices on the intercepts. Furthermore find there is overwhelming evidence in the intercepts themselves to identify the relevant speakers. Of Barbara Chase’s evidence that she relies on caller ID and stock phrases used by her sons to identify their voices, will simply say that this evidence changes nothing in my assessment of the voice identification on the intercepts. In fact, Ms. Chase remarked on Kyle Cater’s tendency to open his calls to her with, “Yeah, what’s going on?” found number of instances in the intercepts where the voice identified as Kyle Cater’s opened conversations with the same or very similar inquiry such as “Yeah, what are you doin’?” or “What’s up?” [86] am left with no doubt as to who was speaking on these intercepted calls. After listening to the intercepts, can identify the voices of Kyle Cater, Paul Cater, and Torina Lewis which find to be readily recognizable. accept the opinions of Det/Csts. Pepler and Mansvelt on the identity of all the voices on the intercepts, although have to say that self-identification, identification by others, and context permitted me to draw my own firm conclusions on who was speaking, particularly in the cases of Kyle Cater, Paul Cater, Torina Lewis, Aaron Marriott, and Shawn Shea, such that have not simply relied on the police officers’ opinions. As for other voices, such as D. “D.” S., L.S, I.E., J.M., and others, accept Det/Csts. Pepler’s and Mansvelt’s opinions but find that proof of the identity of these voices is not essential to the Crown’s case. [87] My review of the evidence to this point has brought me to the critical part of the case: what was being discussed in the intercepts. will now embark upon detailed examination of the intercepted conversations and the inferences have drawn from them. The Intercepted Calls: An Introduction [88] In the period of November 18, 2008 to January 15, 2009, as Ms. Cooper has repeatedly told me, Kyle Cater was “a boy in school.” He was eighteen years old which explains the use of “boy” to describe him. According to his mother, he was an excellent student. That is only partial picture. Over these same months, Kyle Cater was also having guarded telephone conversations using coded language. It is these conversations that lie at the heart of the Crown’s case. They are the Crown’s case. [89] will repeat what indicated earlier in these reasons: the substantive intercepts, the intercepts tendered as proof of Kyle Cater’s guilt, total 57 and are contained in Exhibit 4. Mr. Cater can be heard speaking on 55 of these intercepts. The other two intercepts are call in which he is not involved as speaker and text message. [90] The conversations eddy around Kyle with inquiries about and requests associated to items that are described, routinely but not always, using coded language. The fact that coded language is common feature of the intercepts is not in dispute in this case. The Crown says the coded language refers to firearms and ammunition: Ms. Cooper argues that it is impossible to interpret what the coded references mean and that other explanations are equally plausible. She suggests the speakers on the intercepts may have been talking about jewelry or clothing or even drugs, but it is not reasonable to infer that they are talking about guns. [91] There are several points to be made about the interpretation of the intercepts in this case. They have to be examined in contextualized way. Not every conversation is coded and in some cases, very specific or technical references are made to the items under discussion. And, finally, the Crown called expert evidence to assist my understanding of what the conversations are about. will now discuss that expert evidence. The Intercepted Calls: Qualifications of Crown Expert Michael Press [92] The expert called by the Crown was Special Firearms Officer Michael Press. After qualifications voir dire, 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, qualified Mr. Press as have indicated. [93] As will discuss in more detail shortly, Mr. Press was asked by the Crown to indicate what in his opinion was coded, guarded or slang language in the intercepts tendered in this trial. In offering his opinion on certain intercepts, Mr. Press referenced the context provided by listening to cluster of intercepts and following the thread of what was apparently being discussed. He indicated in interpreting the intercepts who he had been given to understand were the speakers. As will be evident from these reasons, have not relied on Mr. Press’ evidence in this regard for any voice identification. The fact is that the voices Mr. Press believed he was listening to on certain intercepts, for example, Kyle Cater’s, have been found by me to be those voices. Voice identification is therefore not an issue in my assessment of the weight to be accorded to Mr. Press’ opinions. [94] can say that have accorded substantial weight to Mr. Press’ opinions, including on the possible meanings to be given the coded language on the intercepts. heard extensive evidence about Mr. Press’ experience and training. His 32 page curriculum vitae indicates that he has been qualified on numerous occasions before the courts of Ontario as an expert in the areas proposed by the Crown in this case. In seeking to have Mr. Press qualified, the Crown very thoroughly explored his expertise and how he has developed and continues to develop it. In endeavouring to acquire and maintain expertise in coded and street language relating to firearms and illegal firearms trafficking, Mr. Press has listened extensively to intercepts, accesses source debriefing information, and networks with broad range of law enforcement personnel involved in firearms interdiction. [95] Mr. Press’ significant experience and training satisfied me that he possesses the "special knowledge and experience going beyond that of the trier of fact." (R. v. Marquard, 1993 CanLII 37 (SCC), [1993] S.C.R. 223 at paragraph 35) found that his expert opinion evidence was admissible under the Mohan requirements. (R. v. Mohan, 1994 CanLII 80 (SCC), [1994] S.C.R. 9) concluded that Mr. Press’ evidence was necessary to my understanding of the types and classification of firearms and the coded language, illegal street trade and pricing relating to them, all of which are areas outside of my knowledge and experience. Having said that, logic, common sense and context assisted me in my interpretation of the intercepts and this is all that was necessary to understand some of the conversations. Michael Press’ Opinion Evidence [96] Michael Press listened to all 56 intercepts before me (Exhibit 4), viewed the text message in Exhibit 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 Tec 9, manufactured by Intratec. The AP and Tec barrels have similarly menacing and distinctive look, very similar handgrips, and can function with high capacity magazines. Although manufactured to be semi-automatic, the AP and the Tec can be modified to be fully automatic. The AP has street value according to Mr. Press of $4500 $5500. Full automatic machine pistols are designed to kill people. [97] The other guns found at 80 Cavendish are significantly less valuable. sawed off Cooey shotgun will fetch $400 $900 and the Mark II Lakefield rifle no more than couple of hundred dollars. Mr. Press contrasted the rifle to the AP 9: “A single shot very small calibre compared to fully automatic machine gun with high capacity magazine.” He went on to say that if person is in “a fire fight” they will want “more shooting ability.” [98] Mr. Press’ expertise includes being able to describe the terminology commonly used to describe and discuss illegal firearms and ammunition, including where the speakers want to obscure what they are talking about. When asked if he had identified in the intercepts any language he regarded as relating to firearms, he noted the following usages: “strap” is term for firearm; “forty cal” is terminology for 40 calibre firearm; “Thing” and “things” are common terms for firearm: the reference to “thang, thang” in Intercept (Session #253) may be an adaptation of “thing”; “3-0-8” could be terminology for .308 calibre firearm; “Full” in context can refer to ammunition; “Clip” is slang word for magazine; “Naked” can be used to indicate the person is unarmed; “Bop bop” can be used to describe the discharging of firearm. Slang can be developed from the perceived sounds made when firearm is discharged; “shottie” is term for shotgun; “10 after 4” may be terminology referring to .410 gauge shotgun. Time references and the mismatching of numbers are used as way to describe calibre; “Locking up” is terminology that can describe gun malfunctioning. The slide mechanism can get stuck on semi-automatic firearm and even break-action shotgun can “lock up”; “9” is term for mm handgun; “Derringer” is technical term for firearm. It may refer to particular model but, it was Mr. Press’ evidence that “in many ways, it’s description.” derringer is small firearm, usually with two short barrels. “two shot”, it is “pocket gun” that can be easily concealed. derringer will fetch about $1300 on the street; “Girl”, “girls”, “bitch” and “she” can be coded terms for firearms. Mr. Press testified that “many times” he has heard “girls” used in reference to firearms. He noted that context is an important factor in the analysis of what the terms are being used in reference to; “Ninja” may be term that refers to mm firearm; “Cannon” is coded term for firearm; “7-45” may be reference to .45 calibre firearm which is usually going to be semi-automatic hand gun; “Twenty-five” may refer to price, subject to context; “Fresh” is term used to describe new firearm, one that hasn’t been used; “Grime” is term used to indicate crime; References to something not being “too loud” and “not the black one” may be terms used to identify smaller calibre firearm (Intercept 24, session #1327 “don’t want anything too loud”) and the finish of the firearm, which may be “black” or otherwise stainless steel or nickel-plated (Intercept 28, session #1826); “Smith and Wesson” is technical term for an actual make of firearm and could indicate handgun or rifle. On cross-examination, Mr. Press indicated that it is easy to buy Smith and Wesson gun in Canada “at gun store”; “John Wayne” may refer to firearm, using the association of John Wayne who starred in movies where variety of firearms were used; “heater” is slang term used for firearm; “Tec” is term that references the design of firearm, the most common being Tec 9; [99] Mr. Press noted that there are intercepts that refer to Tec and said of the speakers: “They either thought it was Tec or they called it that.” [100] am now going to discuss the intercepts and the inferences have drawn from them. In doing so have left out many of the variants of “fuck” that pepper the conversations. They have generally lent nothing to my understanding of the conversations. Where the use of “fuck” or “fuckin” is relevant to include, have done so. The Intercepts Reasonable Inferences of Firearms Talk [101] I have concluded that the only reasonable inference to be drawn from the intercepts is that the speakers are talking about guns. This is apparent from the first intercept in the collection introduced into evidence, the telephone conversation on November 19, 2008 between Kyle and his brother, M. (Intercept 1, session #5) Kyle makes reference to “a forty cal” that he is trying to get. Mr. Press testified that this is how person familiar with firearms would refer to forty calibre firearm. M.C. urges his brother that if the person who has the firearm is saying “he’s gonna sell it, just go take it from him, cuz.” M.C. also seems to know someone who has “a forty” and tells his brother if he can get his hands on it he should take it. [102] There is simply no other reasonable inference to be drawn from Intercept #1 than Kyle wants to get his hands on .40 calibre firearm. [103] The following day, November 20, (Intercept 2, session #253) Kyle is talking to Shawn Shea about having “got new thang thang” which interpret to mean he has “a new thing.” It was suggested, despite Mr. Press’ testimony about “thing” often being used to describe firearm, that Kyle could be talking about anything. This suggestion could only be made without consideration of context in this call specifically and the other intercepts will go on to discuss. Kyle tells Shea the thing is “big” which elicits Shea’s approval, “Nice one.” According to Kyle it is also “bad though” and he is eager to show it to him: “I really wanna show you too cuz.” find the “big, bad thing” that Kyle was so enthusiastic about showing Shawn Shea had to have been gun. [104] On November 21, (Intercept 3, session #119) Kyle gets call from friend whom Det/Cst. Pepler believes to have been S.G. As have said, it doesn’t matter who the call was from. Kyle tells G. he can meet him “wherever” and talk to him “about that” but he “can’t really do it over this” presumably meaning the phone. He refers to the “heat” and “all those police out.” G. tells him he’s “gotta do Christmas shoppin” and is “just tryin’ to see if buddy can get clip for it…” Kyle reassures him about this, telling G. he doesn’t “really need to worry about that” because he can “get those myself…I got people that live out Edmonton and they send them down like it’s nothing, cuz.” Money is mentioned by Kyle, “It’s only couple of dollars though, right?” He goes on to talk about people who owe him money, “I got some people that owe me money that won’t even say ‘what’s up’ to me now…” [105] G. and Kyle make plans to keep in touch. G. expects to hear from Kyle “on the computer” and says “the computer’s safer”, an obvious reference to the risks posed by talking on the phones. [106] Kyle’s people in Edmonton are unidentified. The November 19 call from M.C. to Kyle came from 708 area code. Ms. Chase confirmed that this is an Alberta area code. [107] There is no ready explanation outside of the intercepts for the reason that Kyle Cater would be owed money. did hear evidence from his mother that he was selling clothing but she testified this enterprise did not get underway until after his arrest in 2009. [108] On November 30, Kyle had two anxious calls with D. “D.” S. (Intercept 4, session #831 and Intercept 5, session #835) D. is “naked” because he had to “dump” his “thing”. He needs something to “bop-bop” and he needs it badly, telling Kyle: “Hey, seriously if you got somethin’ like, need it…’cause it’s real out here right now.” Kyle tells him to call him back in ten or fifteen minutes. [109] D. calls Kyle back, nearly fourteen minutes later. Kyle wants to know if he got hold of “AR” because “AR” has “all three of mine, right” he tells D. It becomes apparent later in the call that “AR” is Aaron Marriott. D. asks for the number, emphasizing that he needs “this” as soon as possible. He tells Kyle again that he is “naked” and is “waitin for something now” because he knows “shits about to pop off…” Kyle confirms again that AR has “all three of mine” but if D. can get hold of him, “he’ll come check you out…” D. asks for “Aaron’s number” and Kyle tells him [editorial note- telephone number removed]. [110] In the two November 30 calls with Kyle, D.’s tone is stressed and urgent. He’s looking for firearm, having had to jettison his. He anticipates trouble coming his way. It is apparent he views Kyle as potential source for what he needs. [111] D. connects with Aaron Marriott (Intercept 6, session #869) shortly after getting the number from Kyle. He tells Marriott that he was shot at the night before (“one of them guys come buckin’ at me last night”) He shot back but didn’t hit anything. He had to ditch his firearm (“just had to dump my shit”) He underscores the urgency of getting replacement gun: “I just dumped my shit, cuz. I’m out here naked. need something bad, cuz.” Marriott apparently has nothing available, not even “a shottie”. D. would have settled for “shottie”: “…it’s real out here cuz. Do you even got fuckin’ shottie?” Marriott tells him he’ll “check somethin’ out”, which throws crumb to anxious D. who says: “Seriously cuz, when like? It’s bad out here cuz. When can come get it? “Cause can get drive right now?” [112] There number of inferences draw from these calls. They are the only reasonable inferences to be made. Kyle Cater is viewed as someone who can supply firearm. He is stashing his guns elsewhere, reducing the risk of having them found in his possession. D. turns to him when in jam. Kyle doesn’t have his three firearms on hand; he indicates they are in Aaron Marriott’s custody. He connects D. to Marriott although Marriott either really doesn’t have the guns with him or at least makes it appear that way. D. is out of luck but not because he tapped the wrong sources. Neither Kyle nor Marriott told D. they didn’t know what he was talking about or that he was barking up the wrong tree. They were source for what he wanted, it just so happened at that time, the well was dry. [113] There are other intercepted calls that indicate Kyle Cater was “go-to” person for firearms. D.M. calls Kyle on December (Intercept 7, session #981) to ask if he remembers “that thing” they were talking about, which he refers to as the “ten after four”. Three days later, on December (Intercept 16, session 1219), D.M. asks Kyle if he remembers “that thing you gave me?” Kyle does and D.M. wants to know if he has anything like it, “Like anything smaller…” Kyle does not. “No”, he says. D.M. tells him he is going to go and “try that thing out and if it locks up, don’t even want it.” This doesn’t seem to impress Kyle who says: “…do your thing, buddy, do your thing, don’t really care.” Kyle ends the call quite abruptly at this point. [114] The day before this testy exchange with D.M., on December (Intercept 9, session 1103) C.M. calls Kyle looking for something for friend. The initial exchange leaves no doubt that the call is about business transaction. Kyle asks: “Black, Indian, Asian, Caucasian. What you need player?” C.M. tells him: “you know what need.” Kyle wants to know if he wants “a shottie or somethin’?” but C.M. explains “…he needs somethin’ small.” Although Kyle observes “they’re crazy expensive”, according to C.M., this doesn’t seem likely to be problem for the prospective purchaser. [115] C.M. tells Kyle in this call that the friend’s speeding ticket “And guess they’re gonna take his license and shit.” will be forgiven in exchange for “a little girlfriend” which, according to Michael Press, is practice employed by police to get illegal firearms, referred to as “patch” guns, off the street. [116] In the C.M. “little Derringer” call on December 4, 2008 (Intercept 9) Kyle indicates, when asked how much the “little Derringer” might cost, that he doesn’t know, he’ll “have to go check that out with my…partner.” As mentioned earlier, Ms. Chase confirmed on cross-examination that although J.M. had been Kyle’s partner in clothing business, that business did not start up until after Kyle’s arrest in January 2009. The reference in Intercept by Kyle Cater to “my partner” cannot therefore have been reference to J.M. and clothing business although it is hardly necessary to make this point as the content of the call does not lend itself to an interpretation that clothing was the subject of the discussion. [117] The need to “patch” gun over to the police is still outstanding as of December 12, 2008. On December 12, Kyle gets call from “C.”. (Intercept 27, session #1564) “C.” wants to know if Kyle has figured “anything out with that?” “C.” tells him he “can come grab it from ya” but Kyle advises “I just don’t really got it all in my possession right now, right? need to wait for the call.” “C.” tells Kyle “the cop” is telling him to “take it or leave it” which infer is reference to the offer to cancel the speeding ticket in exchange for “a girlfriend” that C.M. was explaining to Kyle on December in the “little Derringer” conversation. [118] Kyle’s status as gun source is further confirmed in intercepted calls on December that start with Shawn Shea’s call at 5:20 p.m. (Intercept 11, session #2261) Shea wants to know if Kyle has “got the ninja.” Kyle does not but will see if “he” does and if so, will call Shea “back in second ‘kay?” Shea is impatient. He calls two minutes later to be told that Kyle is waiting as “he’s just gonna call me back.” Kyle is told to “hurry man.” (Intercept 12, session #2262) [119] The “he” is Paul Cater. At 5:28 p.m. on December (Intercept 13, session #1117) Paul tells Kyle that “she won’t be around ‘til tomorrow.” Kyle is dismayed. Paul apologizes, “Sorry, man” but says to his son: “Like told ya before. need to get hold of her days in advance, right?” He is told by Kyle: “Well get it and keep it around.” In this 26 second call, the “she” becomes an “it.” [120] The net result of these calls between 5:20 p.m. and 5:28 p.m. on December is that Kyle is unable to produce “the ninja” for Shea. Again, Kyle is regarded as source for supplying firearm and again, he does not have it in his actual possession. It is being kept somewhere else. It is clear Kyle wants it to be more accessible. He tells his father to “get it and keep it around.” [121] Michael Press testified to his opinion that reasonable inference to be drawn from the word “ninja” was that it was code word for nine millimeter gun. He noted the resemblance between “ninja” and “nine”. It was his opinion based on listening to the series of intercepts on December (Intercepts 12, 13 and 14) that specific firearm was being referred to. am left with no doubt that Shea, Kyle and Paul Cater were all talking about firearm. It is reasonable inference that the gun they all understood each other to be referring to was nine millimeter. “9” was on Kyle’s radar. The day before, on December 3, Kyle had received text (Intercept 8, session #2589) from Jeremy LeBlanc: “sup big guy got that 9” which infer to have been reference to nine millimeter. [122] After Kyle learns that Paul cannot produce “the ninja” Shea is looking for, he calls Shea back. (Intercept 14, session #1118) Shea does not disguise his disappointment. “Fuck”, he says to Kyle and Kyle commiserates, “I know bud. know.” Shea then asks: “Nothin’ at all? which animates discussion about alternatives. Kyle has “that poopy one that you don’t even want. That you always turn down.” Shea asks about the “three o’clock” reference which Kyle doesn’t seem to grasp. After some stumbling around in the exchanges with Kyle, Shea resorts to asking: “What’s the time, the 3-0-8?” He thinks it doesn’t “work” but Kyle assures him it does. Kyle notes that Shea hasn’t wanted it when he’s brought it to him before. Shea wants to know if it is “full” but Kyle advises, “No…Only half…” [123] The reference to 3-0-8 cannot have been true inquiry about the time. The call is taking place at 5:30 p.m. “308” in Mr. Press’ opinion is calibre. That is the most reasonable inference. According to Mr. Press, .308 calibre firearm is long barrel hunting rifle very like .22 but with larger calibre. also infer that the full/half full references relate to ammunition. That is the only logical inference considering context and it is supported by Mr. Press’ opinion that the parties were discussing ammunition. [124] Still trying to settle on another option in light of “the ninja’s” unavailability, Kyle wants to know what is “rockin’ with them other ones…are they out of town?” Shea tells him “no, they’re…just…it’s good time.” Shea emphasizes that he “don’t really want nothin’ small.” Kyle gets this, “I hear ya. hear ya” and tells Shea he is “tryin’ to think of something man.” He tells Shea to call him back in five minutes. Kyle tells him he has to run up the street. Shea doesn’t like the sound of this, “Fuck” he says, and Kyle reassures him “it’s like right by there though.” [125] Mr. Shea’s wish not to have something that was “small” could have been satisfied by .308 rifle. Mr. Press testified that .308 is “an extremely powerful hunting rifle.” [126] As with D.S. on November 30, on December 4, Kyle does not have sought-after firearm in his actual possession. To get it he will have to “run up the street.” Mr. Press noted that it is very common for firearms traffickers not to have guns on hand. He observed that depending on the police presence, traffickers may stash guns other than where they reside to avoid being caught with the guns if the police are able to obtain search warrant. It’s perfectly logical: firearms traffickers do not want to get caught in actual possession of their illegal firearms. [127] Firearms-related talk continues through December 2008. caller on December (Intercept 24, session #1327) asks Kyle if he has “a little thing” they could use. The caller has plans: “We’re goin’ down to do something on Barrington in little bit.” Kyle thinks he can “probably” help. The caller wants something “that’s not loud, though…” [128] On December (Intercept 26, session #385) Kyle talks to his brother, M.C. friend, “H.”, takes the phone later in the call. M.C. is thinking of getting “a little chunk. You know what mean?” H. wants to know if Kyle has “a bitch” for him to “hang on” when he gets home, “you know what I’m sayin’?” When H. tells him: “You got girl for me ‘cause got couple of people wanna go hang out with, with that girl”, Kyle replies: “Yeah, can do somethin’ for ya.” H. seems to be contemplating crime when he says “comin’ home on grimy tip” “grimy” being term for crime according to Mr. Press and doesn’t want it known that he is back. He again emphasizes the importance of accessing firearm: “As long as you got me covered on that whore…I’ll even pay for one, right?” Kyle says in response to this: “All right, cool, man….you got my number, ‘kay?” [129] find that the references to “a girl”, “a bitch” and “that whore” are all references to guns, using various descriptors for women. In reaching this conclusion, not only have Mr. Press’ opinion about the use of female references as code for firearms but the context of the discussion makes this the only reasonable inference. [130] Intercept 26 on December confirms again that Kyle is known source for guns. The acquisition for H. may involve consideration. Kyle indicates he is open for business. [131] Kyle’s ability to provide firearm is in demand again on December 15. (Intercept 28, session #1826) He is asked: “Think you can get me that girl tomorrow?” What is being sought is “Not the black one, the other one.” Kyle seems to feel confident about being able to fulfill the request: “All right…Yeah, yeah. For sure bud.” [132] Near the end of December 2008, Kyle is tapped again as reliable source for gun. L.S. calls Kyle on December 27 at 7:56 a.m. (Intercept 31, session 2681) He sounds stressed. “…gimme call back. need your help” is the message he leaves. L.S. doesn’t let up. He has problem. He wants to meet with Kyle urgently. (Intercepts 32 and 33, sessions #2682 and #2683) Kyle wants to know if L.S. needs “a heater”, which he does. Kyle breaks the bad news: “…they ain’t even around right now.” L.S. wants to know when Kyle can get one for him. Kyle tells him he doesn’t know because “…my buddies where got them at.” L.S. does not lose hope, asking if Kyle can get it for him “today”, to which Kyle responds: “Most likely.” L.S. is appreciative and tells Kyle: “Cause this is serious.” (Intercept 34, session #2684) That call ends around 8:40 a.m. [133] By noon on December 27, Kyle has not produced any results. L.S. calls him in state of agitation. (Intercept 35, session #2693) He says there is “a beef” and that “they” are getting closer and know where he lives. He is explicit: “Cause there’s been lot of threats and shit, so need somethin.” L.S. wants to meet Kyle and urges him: “Don’t forget none of them things.” He tells Kyle he is counting on him, “…you’re the only person in my corner, bud.” [134] L.S. finds it necessary to call Kyle back at 3:24 p.m. (Intercept 36, session #2713) Kyle says he is looking for “a legit drive” because he “can’t really drive around with that, you know?” The concern is the “heat”, “it’s hot, cuz” he tells L.S. L.S. starts looking into getting drive himself to meet Kyle. (Intercept 37, session #2716) Kyle is in Purcell’s Cove and tells L.S.: “…that thing…like it’s not right on me, right? Like, it’s heat out right now, right?” [135] It seems that L.S.’ worries are not much of concern to Kyle. He goes to the mall which is where he is when L.S. calls him next at 4:09 p.m. to advise that he has drive. (Intercept 38, session #2720) By 4:21 p.m., Kyle has gone to Walmart in Bayer’s Lake. L.S. has drive but Kyle tells him: “I don’t got it on me, man. don’t fuckin’ run around with that, bud, that’s crazy.” (Intercept 39, session #2721) Kyle promises to call L.S. when he gets “back to town.” He reiterates: “…I just don’t have it on me, man, don’t.” [136] The L.S.’ calls reveal number of truths. Kyle is once again called upon to help out an associate who has found himself in danger. What he is being asked to supply is “a heater” and although hardly need an expert to tell me that means gun, Mr. Press indicated this is common coded term for firearm. Kyle is aware of the police presence in the neighbourhood and the risks of driving around with gun. Maybe the situation is too fraught or maybe he just doesn’t care that much for L.S.’ difficulties. Whichever it is doesn’t matter, just as it doesn’t matter that he isn’t any use to L.S. in the end. These intercepts further establish Kyle Cater’s involvement in the illicit firearms trade. Do The Intercepts Disclose Discussions About Specific Firearms? [137] have already noted some intercepted conversations where find specific firearms were discussed. The ones have mentioned are: Intercept on December 2, 2008 where D.M. tells Kyle: “I just need to get that thing. You know what we were talkin’ about?” Kyle responds with, “Yeah, the, the….” And D.M. confirms: “Yeah, ten after four. [138] “thing” that is “ten after four” is not reference to time. Mr. Press testified about how time references are used as code to describe calibre. find this conversation referred to .410 shotgun. D.M. is looking for gun. He is anticipating trouble. “Lang and fuckin’ Marcel and Hatcher just tried to run up and grab me.” [139] have also already discussed the “little Derringer” call. (Intercept on December 4, 2008) There is also the .308 that Kyle and Shawn Shea discuss on December in Intercept 14. [140] On December (Intercept 23, session #1324), an associate of Kyle’s, I.E. mentions “my buddy got one…his cell phone number’s just 7-45, right?” Kyle doesn’t seem to immediately grasp what I.E. means. He asks him: “What, one of those little things?” I.E. tells him “Well, it’s not little thing…I just said the number to it, right. The last digits to my cell phone 7-45?.. It’s 7-45, it’s the last digits.” The light goes on and Kyle asks what he wants “for that?” and is told, “Twenty-five.” [141] Kyle wants I.E. to “go grab it” and he’ll “take it.” I.E. describes it as “beautiful”, “clean” and “fresh.” He says he just wanted “to line up buyer” because he knows “for sure” his buddy is “gonna get it.” Kyle is keen: “Oh yeah, I’m down with that.” [142] The only reasonable inference to be drawn is that I.E. and Kyle are discussing .45 calibre gun, one that hasn’t been used in crime yet and so is “fresh” and “clean”, with price tag of $2500. Kyle wants to buy it. [143] By p.m. on December 7, about three hours after the intial “7-45” call, I.E. is expecting to have the gun in his possession “in about half an hour” and wants to show it to Kyle. He tells Kyle the seller wants “three” for it. “Three” is bit stiff for Kyle. He doesn’t know if he can “do it for three” and I.E. commits to trying “to talk him down for ya.” (Intercept 25, session #1338) [144] I.E. doesn’t get back on Kyle’s radar until December 28. In the meantime on December 16, Kyle talks to R.S. (Intercept 29, session 1851) R.S. wants to tell Kyle he has something he thinks Kyle may be interested in. He struggles with how to talk about it on the telephone. He asks someone in the background, “How would say it to him over the phone?” He is told to use the phrase, “John Wayne” which he does. When asked if he is interested, Kyle tries to make sense of the reference: “What like thing, thing?” The effort of trying to communicate in coded language is too much for R.S. He tells Kyle: “A Smith and Wesson or somethin?” Kyle perks up. He is “very interested” and wants R.S. to call him back. It appears there may be debt involved as R.S. asks: “Can we wipe the bill?” [145] Ms. Cooper tried to suggest this call could have been about one of the other products available from Smith and Wesson, well-known gun manufacturer, such as bullet proof vest. Mr. Press did not think that was reasonable inference. Neither do I. There is no other reasonable inference than this call is about R.S. proposing to transfer Smith and Wesson gun to Kyle Cater, apparently in exchange for forgiveness of debt. [146] On December 28, Kyle learns that I.E. is “stuck with somethin.” Kyle offers to take “it off your hands for two days.” I.E. just wants “thirteen, twelve, thirteen.” (Intercept 41, session #2808) Whatever I.E. has, it’s “the primo” and “it’s bomb.” He wants to know if Kyle knows “anybody that would take it?” Kyle responds with “Yeah” and says he wants to “come check her.” (Intercept 42, session #2809) [147] Kyle gets drive from Katie Mills. (Intercept 43, session #2814) On his way to meet with I.E. they talk again on the phone. I.E. informs him he sent text: “I told ya was gonna bring somethin’ else too, just on, on me, so you’d know what it looks like.” (Intercept 44, session #2816) [148] The intercepted calls alert the police to the potential for an arrest for possession of firearm. Det/Cst. Mansvelt, who was present, testified to the events that followed. Surveillance was initiated and observations made of Kyle Cater getting out of silver Pontiac Sunfire. He was observed in green Honda Accord examining something in his lap with the Accord’s front-seat passenger swiveled around to face him. In orchestrating their rendezvous, I.E. had told Kyle to look out for green car. Although the police Quick Response Team subsequently pulled over the Sunfire in high-risk take down anticipating firearm would be seized, none was found. The green Accord was never stopped. As Det/Cst. Mansvelt testified: “We pulled over the wrong car.” [149] The surveillance described by Det/Cst. Mansvelt was not challenged in cross-examination. find Det/Cst. Mansvelt’s evidence to be reliable eye-witness account of the Kyle Cater/I.E. rendezvous at the Bedford Sobey’s parking lot at approximately 3:30 p.m. on December 28, 2008. [150] By 4:04 p.m. on December 28, the take-down has occurred and Kyle is laughing in call with his father about how he slipped through the net. (Intercept 48, session #2821) Kyle tells Paul Cater “…luckily, wasn’t in the car.” The “Tracey” Calls [151] On December 7, 2008, in the small hours of the morning, Paul Cater called Kyle in panic. Paul makes an incendiary disclosure: “Somebody walked off with Tracy.” Kyle is told to get hold of J.J. and to tell him to “get his ass back down here, now.” Kyle’s response is to warn Paul, the escalating concern evident in his voice: “Don’t be fuckin’ with me”, to which Paul replies, with considerable heat: “I’m not fuckin with you. Would be calling you this late at night if was fuckin?” (Intercept 17, session #1308) [152] At 1:41 a.m. Kyle calls his father back and asks who else was there. Paul tells him that “the other two” are on their way back and “the only one missing is [J.J.]” Paul tells Kyle that “Chelsea’s friends” are there and then terminates the call because “Torina’s on my other line, hang on.” (Intercept 18, session #1310) [153] At 1:43 a.m., using the landline at his home, Kyle calls Torina on her landline. (Intercept 19, session 254) She tells him that two of them are back in the house; that she grabbed them and brought them back. Kyle asks: “It’s still not back?” Torina replies: “No, it’s not, bud, and just told one of them that they better use it on me if they did, and didn’t all the way here. I’m here, and they’re with me.” Sounding alarmed, Kyle asks: “Well, how is it gone, like, how is it gone? How would they even know that it was there?” Torina replies: “Cause, you know, you know where, you know how your father always like looks on the computer and Tracy likes lookin’ on the computer and stuff, on the side? You know how Tracy usually pretty much looks at the Internet with Paul?” Kyle responds with, “Yeah” and Torina continues: “Well, right beside there.” Kyle says: “Well, what in the fuck?” Torina tells him: “Yeah, there’s only three people in my house, bud. …the rest of them already here, were already, been patted down. There’s only three people that left my house. One, was [J.J.] The other two just picked up back on Leiblin Park and brought them back here.” Shortly after this, Kyle asks Torina if she is “…sure that it ain’t misplaced, or somethin’?” She tells him, “No, bud.” Kyle sounds agitated when he inquires: “…Like why, why was it out? Like, it shouldn’t have been out around any…”, to which Torina replies: “It was the place where it always…” [154] Three minutes later, at 1:46 a.m. on December 7, Paul Cater calls Kyle and tells him: “She just found, she made it home safe…she just called me up, she made it home safe.” Kyle is no longer worked up. He tells his father: “Yeah, that’s what thought. All right.” (Intercept 20, session #255) [155] It is mid-morning on December by the time Kyle speaks to Torina again and asks her: “Yeah, so, that’s back though, right?” “Oh yeah” says Torina and Kyle asks her where it was. She tells him: “Oh, don’t even, your father’s an idiot.” Kyle says he presumed it was misplaced, and Torina confirms it was. There is then discussion about how scared everyone was by these events. Kyle asks if Torina realizes how scared they had him last night. She replies by asking him if he understands how scared she had two other people last night. Kyle tells her that they had him so scared that he was saying, “…you know what don’t even give fuck…you know what, it’ll come back on itself.” Torina tells Kyle she cared and feels like goof; that those two boys she brought back to the house “were scared as fuck.” She explains that the boys “had things in their face, and then your father just said...there she is.” Kyle asks again: “So, it’s back though, right” and Torina tells him it is. (Intercept 21, session #1318) [156] In the call with Torina, Kyle tells her that “J.” just called him asking if Kyle had called him “last night.” Kyle explains to Torina that he told J.J. he had called him, that he just had to ask him something and would call him back “in second.” [157] Right after the call with Torina, at 11:39 a.m., Kyle calls male whom can reasonably infer is J.J. (Intercept 22, session #1319) The fact of Kyle telling Torina he had just spoken to J.J. and said he would call him back “in second” and the content of the call lead me to draw the inference that Intercept 22 was call to Mr. J. (I also note that the number called by Kyle was number subscribed to by A.J.) Kyle explains to J.J. that something had been misplaced last night “and they found it, though, don’t worry about it.” He goes on to indicate that he had called J.J. the night before about this but “they called me back right after that” to tell him they had found “it.” Kyle admits that he “…fuckin’ lost my fuckin’ cannon, and started calling ya”, statement that lends itself to the reasonable inference that Kyle is describing to J.J. that he called him in state of high agitation over the thing that went missing. [158] It is crystal clear to me from these “Tracey” calls that “Tracey” was thing, an object, not girl or woman, notwithstanding some feeble attempts by speakers to portray “Tracey” as person. Torina Lewis, Paul Cater and Kyle Cater failed to maintain the charade of talking about “Tracey” as female person when they lapsed into referring to “Tracey” as “it.” And although Mr. Press agreed with the suggestion put to him by Ms. Cooper that “Tracey” could have been reference to drugs, expensive jewelry or to “anything”, the context of the intercepts does not support alternative meanings. [159] The only reasonable inference is that “Tracey” is gun. Paul, Torina, and Kyle are all in state over the disappearance of this object. Torina leaves the house to go and find the boys that had left just before Tracey’s disappearance was noticed. Everyone was scared, including Kyle. People who had been under suspicion were patted down when they were returned to the house. These frantic efforts were for the purpose of locating missing gun. There is also the reference by Kyle in his call to J.J. that he lost his “fuckin’ cannon.” According to Mr. Press, “cannon” is code word for gun. [160] Having listened to Intercept 22 again, am not confident think Kyle is using “cannon” to mean “firearm.” think he could be referring to losing his grip, going off the deep end, in other words, what happens when person is in highly agitated state because of some event. If this was what Kyle was conveying it just as equally suggests he had vested interest in “Tracey” and, as his tone, manner and words indicate in the “Tracey” calls, was thrown into panic at the news that “Tracey” was missing. [161] Ms. Cooper has tried to suggest the missing item was drugs. She secured evidence from Ms. Chase that when she was married to Paul Cater he smoked lot of cannabis and would get very worked up if it was taken away. Even if that was still the case in December 2008, it does not support the reactions of Paul, Kyle, and Torina nor is it consistent with Paul calling Kyle to report on Tracey’s disappearance. This had nothing to do with drugs. Paul, Kyle, and Torina knew what was being discussed. It was gun, referred to by home-grown code word they all understood. It was Mr. Press’ evidence that in many cases, certain groups will create their own coded term or language. Was Kyle Cater in Constructive or Joint Possession of “Tracey”? [162] On January 15, 2009, Kyle Cater, in conversation with his close friend, J.M., was chewing over the search of 80 Cavendish Road. (Intercept 56, session #4060) He had already heard about the police raid from Torina who had called him at 6:48 a.m. once she was released from police custody. J.M. had called Kyle at 8:21 a.m. from [editorial note- telephone number removed], (a number listed in Kyle’s contacts as “JMac” whom Ms. Chase identified as J.M.) Almost immediately he asked Kyle, did “they get anything?” to which Kyle replied: “Yeah, think so…I don’t know, the Tec, think the Tec was there or somethin.” [163] Torina had told Kyle in their earlier conversations that the police knew what they were looking for, that it wasn’t drugs and that “we had nowhere to put that other one.” (Intercept 55, session #4058) Kyle plainly knew what was under discussion as he had just observed that “that’s gonna be like three years.” He subsequently told J.M. his dad is “probably gonna get like five years.” The recognition that possession of prohibited firearm attracts serious prison time is also mentioned by Kyle in one of his January 15 texts, obtained in the forensic analysis of his cell phone. He told Katie Mills, “I think he’s going to three to five.” She had just texted him: “Was there anything there.” [164] Kyle Cater knew the AP was at 80 Cavendish. He mentioned the potential prison terms to Torina (Intercept 55) and in the text to Katie Mills before Torina used the words “the Tec” on the intercepts. (Intercept 57) [165] Torina confirms how dire the situation really is when she talks to Kyle just after he finishes talking to J.M. She tells Kyle: “…I’m gonna say right over the phone, know they found the Tec…because it was right there.” Kyle is under no misapprehension about what this means: “That’s bad”, he says. (Intercept 57, session #4062) [166] From these January 15 intercepted calls it is obvious that Kyle knew there was prohibited firearm, that he and Torina referred to as “the Tec”, at 80 Cavendish. Very similar in appearance to Tec 9, the gun that was seized was actually an AP nine millimeter pistol. With value according to Michael Press of $4500 $5500, its temporary disappearance on December had created crisis. It was by far the most valuable firearm at 80 Cavendish. Kyle Cater’s comment to J.M. about “that never really ever got mentioned over the phone ever before” reveals his knowledge that they had been careful to talk about the nine millimeter pistol in code, avoiding any of the applicable technical terms up to that point. [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 clear reference to Paul, tells Kyle: “…and the thing about it, told him the other day. Get rid of everything ‘cause got 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 measure of control by Kyle over these firearms. will return to this issue shortly. [168] The “Tracey” calls on December 7 and the January 15 calls indicate that Kyle had much more than merely a passive or quiescent knowledge of the firearms and ammunition at 80 Cavendish. The nature and extent of his knowledge amply satisfies what is required by the knowledge component of constructive and joint possession. What remains to be assessed are the issues of control and consent. [169] Possession is defined in section 4(3) (a) and (b) of the Criminal Code as follows: (a) person has anything in possession when he had it in his personal possession or knowingly (i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and (b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. [170] am satisfied that the Crown has proven beyond reasonable doubt that Kyle Cater knew the firearms seized from 80 Cavendish were there in the actual possession of his father and stepmother. must now determine if there has been proof beyond reasonable doubt that Kyle had “some measure of control” over the firearms. (R. v. Bremner, [2007] N.S.J. No. 501 (C.A.), paragraph 61) This “measure of control” does not have to be exclusive. (R. v. Miller, [1984] B.C.J. No. 1491 (C.A.), paragraph 114) [171] There are a number of indicators of Kyle Cater having a measure of control over the firearms at 80 Cavendish. The December “Tracey” calls are indicative of control. Paul Cater calls Kyle to tell him Tracey has gone missing. Kyle presses Paul and then Torina to explain how this could happen. He wants to know how anyone would even know that “it” was there. Torina gives him description of usual place where “Tracey” is located. He isn’t impressed by what has happened: “Well, what in the fuck?” he says to Torina. (Intercept 19) [172] Kyle also had sufficient control that he was able to answer Paul on December 28 when he calls to ask: “I wanna know what you did with that?” Kyle tells him, “It’s in the same spot” which he explains is, “The rose, the rose on the side.” That is enough to tell Paul where to look, “All right, the rose”, he says. (Intercept 53, session #2846) [173] Although it is not immediately clear from this December 28 call what exactly Paul Cater is looking for, when 80 Cavendish is searched on January 15, the magazine for the nine millimeter pistol is found tucked behind pair of ceramic hands adorned with roses at the wrists. It is reasonable to infer that there were customary stashing places at 80 Cavendish for the firearms and ammunition, that Paul, Kyle and Torina all knew where these places were, and that Kyle had put either the nine millimeter (of the firearms, only the pistol would fit in this spot) or the ammunition magazine behind the hands with the roses. The fact that Kyle could move these items around at his father’s house is an indication that he had “a measure of control” over them. [174] Ms. Cooper sought through cross-examination, for example of Cpl. Mark Cameron, to establish that there were other roses or rose motifs at 80 Cavendish. The only other obvious representation of roses was on the cover of book in the nightstand of the master bedroom. think it is unlikely that this would have been described as “the rose” but even if it had been what Kyle Cater was referring to on December 28, it doesn’t change the fact that he had sufficient control that Paul had to call him to ask in guarded terms where he had put an item. infer from the use of guarded language by Paul and Kyle in this call, the context of the calls overall, and the location, that what was being discussed was either the nine millimeter pistol or its ammunition magazine. [175] have no doubt that Paul, Kyle and Torina were all the more vigilant about the pistol’s whereabouts following the panic of December 7. The December 28 call from Paul implies that. find that the AP was obviously moved from next to the computer, the location Torina described for it on December (Intercept 19), to where it was found in the police search of January 15. On January 15, the police located no firearms in or near the computer desk. [176] Ms. Cooper emphasized repeatedly that Kyle did not live at 80 Cavendish Road. That, and the fact that there is no evidence he had key to 80 Cavendish, are immaterial. Barbara Chase testified that Kyle Cater enjoyed very good and close relationship with his father and Torina Lewis. This is also borne out by the intercepts. He would visit with them regularly and photograph on his cell phone shows him reclining with the family dog on the sofa in the living room of 80 Cavendish with the grandfather clock in the background, furnishings that are evident in the police search photographs. He was obviously very much at home even though not resident. [177] also draw the inference that Kyle had exercised control over his father’s possession of the nine millimeter on 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 command: “Well get it and then keep it around.” find that is reference to the nine millimeter, called “Tracey” by Paul and Torina, that is subsequently seized by police on January 15. Conclusion on the Charges Relating to the Firearms Seized from 80 Cavendish [178] find the Crown has established beyond reasonable doubt that Kyle Cater was in possession of the firearms, magazines, and ammunition at 80 Cavendish, both constructively and jointly. Accordingly I find him guilty of Counts 4, 5 and 6 of the Information sworn January 15, 2009, unlawful possession of the sawed off Cooey shotgun, the Mark II Lakefield rifle, and the AA Arms AP 9 handgun, contrary to section 88(1) of the Criminal Code. I also find him guilty of Count 7, unlawful possession of a loaded prohibited firearm, a sawed off Cooey shotgun, contrary to section 95(1) of the Criminal Code, and of the amended Count 8, 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 section 95(1) of the Criminal Code. In light of the convictions on Counts and 8, unlawful possession of prohibited firearms, am staying the convictions on Counts and 6, the charges of unlawful possession of the Cooey and the AP 9. [179] I further find Kyle Cater guilty of Counts 9 and 10 of unlawfully possessing the Cooey and the AP 9 knowing their possession was unauthorized, contrary to section 92(1) of the Criminal Code. And I find him guilty of Count 11, unlawfully possessing a prohibited device, two over-capacity magazines, contrary to section 92(2) of the Criminal Code. Careless Storage [180] Kyle is also charged under section 86(1) of the Criminal Code with three counts of careless storage relating to the firearms seized from 80 Cavendish. I am acquitting him of those charges. am not satisfied there has been proof beyond reasonable doubt that Kyle was responsible for how the firearms were stored when they were found in the search. [181] The intercepts do indicate that Kyle had knowledge of the location of certain of the firearms at certain times. For example, he is able to tell his father on December 28 where to find either the nine millimeter or the ammunition magazine, in “the same spot…the rose on the side.” (Intercept 53) When “Tracey” went missing on December 7, Kyle indicated he understood what Torina was referring to when she described, in guarded language, where “Tracey” had been kept. However I am not able to find beyond a reasonable doubt that Kyle had stored the three firearms in the manner they were found on January 15. It is Torina who tells him on January 15 that she may lose her children because the firearms “weren’t kept in place where the kids couldn’t get them…”(Intercept 57) [182] Kyle knew the firearms were at 80 Cavendish, he exercised some control over them, and he consented to Paul and Torina housing them, but cannot infer from the evidence that he knew or consented to how they were stored when the police found them on January 15. am acquitting him of these charges. [183] Having dealt with all the charges relating to the firearms and ammunition seized at 80 Cavendish, will now address the firearms trafficking charges. Firearms Trafficking Indicia [184] Kyle Cater is charged with five (5) counts of possession of specific firearms for the purpose of offering to transfer, contrary to section 100(2) of the Criminal Code. He is charged with five (5) counts of offering to transfer, with or without consideration, specific firearms, while knowingly not being authorized to do so contrary to section 99(2) of the Criminal Code. The five firearms that are the subject of these charges are: .410 gauge shotgun, Derringer pistol, .308 calibre rifle, .45 calibre handgun, and Smith and Wesson. [185] He is also charged with two generalized counts, one of possessing firearm for the purpose of offering to transfer it, contrary to section 100(2), and one of offering to transfer firearm, contrary to section 99(2). have paraphrased these counts. The Business of Firearms Trafficking [186] have already discussed the intercepts that indicate Kyle Cater was in the business of acquiring and distributing guns. He was “go-to guy” for associates looking for guns. He operated in the context of network, reassuring S.G. that he had people in Edmonton who could supply an ammunition magazine and conferring with number of associates locally about guns. The evidence establishes that he was risk aversive: he did not carry the guns on him, “that would be crazy” he told L.S., he was keenly aware of the police presence in his neighbourhood “the heat”, and he stashed his guns with associates, such as Aaron Marriott. Money is discussed in the intercepted calls and he mentions having partner. When guns are on offer, he’s keen: he responds to I.E.’s enthusiasm about the “beautiful, clean, fresh 7-45” he is about to view by indicating, “It sounds good to me.” He is “very interested” in the Smith and Wesson R.S. tells him about. [187] The intercepted communications reveal the commercial nature of Kyle’s activities. Calls with R.S. provide an example. About an hour after the conversation with I.E. on December about the “7-45” that is “beautiful, clean, and fresh”, Kyle is talking to R.S. about debt. It is obvious he is trying to collect: “How much money you got on you down there?” he asks R.S. Not much, R.S. tells him, but he and an associate are planning something “tonight” and “I’ll probably just pay you the twelve-fifty all off at once, at the end of the night” he assures Kyle. On December 16, in discussion about the Smith and Wesson, R.S. asks Kyle, “…if can get it .. Can we wipe the bill?” This is acceptable to Kyle, “Yeah” he says. [188] And there are of course the guarded conversations using coded language. have already found there is no support for the suggestion that the discussions concerned activities not related to firearms. The use of guarded, coded talk to obscure illegality is unremarkable: observed this previously in drug conspiracy case and what said then is as applicable here: 77 Suggesting that the calls were of an innocuous nature and could have been about anything, including any number of innocent purposes does not square with the evidence. have no doubt about the nature of the calls, or the illegal nature of the enterprise that was being carefully skirted around by the deliberately vague references. (R. v. Shea, [2010] N.S.J. No. 632) [189] All of the indicators have just reviewed satisfy me that during the material time, Kyle Cater was engaged in the illegal gun trade. Coded Language Describing Specific Firearms [190] am also satisfied beyond reasonable doubt that the calls referring to “ten after four”, (Intercept 7) “little Derringer”, (Intercept 9) “3-0-8”, (Intercept 14) “7-45” (Intercept 23) and “Smith and Wesson” (Intercept 29) were calls about specific guns, .410 gauge shotgun, Derringer pistol, .308 calibre rifle, .45 calibre handgun, and Smith and Wesson. accept Michael Press’ opinion evidence about what these coded or identifying references mean in the context of the specific conversations and the intercepts as whole. The Meaning of “Transfer” under the Criminal Code [191] According to section 84 of the Criminal Code, “transfer” means: “sell, provide, barter, give, lend, rent, send, transport, ship, distribute or deliver.” do not find R. v. Grant, 2009 SCC 32 (CanLII), [2009] S.C.J. No. 32, referenced by Ms. Cooper to have any relevance to the charges and evidence against Kyle Cater. Possession under the Criminal Code [192] have already discussed the elements of possession and how constructive possession is made out. As have indicated, criminal liability for possession does not depend on the accused being in actual possession of the item, in this case, firearm or firearms. will encapsulate here brief but helpful summary on the law from the Ontario Superior Court of Justice in R. v. Bennett, [2008] O.J. No. 382: 17 The case law has interpreted the "knowledge and consent" requirement as it relates to the facts in this case as follows. Knowledge can be inferred from surrounding circumstances that show that the accused must have known about the subject matter in question or was willfully blind or reckless in this regard: R. v. Aiello (1978), 1978 CanLII 2374 (ON CA), 38 C.C.C. (2d) 485 (Ont. CA). To establish consent, the Crown has to show that the accused had some measure of control over the item in question: R. v. Terrence (1983), 1983 CanLII 51 (SCC), C.C.C. (3d) 193 (SCC). This can be established by showing that the accused had the right to grant or withhold his consent about where the item in question was stored: Re Chambers and the Queen (1985), 20 C.C.C. (3d) 445 (Ont. CA) and R. v. Savory, 1996 CanLII 2001 (ON CA), [1996] O.J. No. 3811 (Ont. CA). If the accused had such right to grant or withhold consent, then constructive possession can be established because there would be measure of control or at least right of control: R. v. Nixon, [2007] O.J. No. 741 (SCJ). “Ten After Four” [193] It is apparent to me from the intercepted conversations that Kyle Cater had possession, likely constructive possession, of .410 gauge shotgun on or about December 2, 2008. I infer this from Intercept 7, a conversation on December 2, 2008 with D.M. and from the evidence that establishes Kyle was stashing his guns at locations other than where he was living. I find that the purpose of Kyle’s possession was offering to transfer it, that is, his purpose conforms to the Criminal Code definition of “transfer.” It was a firearms trafficking purpose. further find that Kyle offered to transfer the .410 shotgun to D.M. who had told him: “I just need to get that thing. You know what we were talkin’ about.” [194] Not that it is required to establish guilt but also find that D.M. did obtain the .410 gauge shotgun from Kyle and was none too pleased about its features: “You know that thing you gave me…You got anything…smaller…I am gonna go out and try that thing out and if it fuckin’ locks up or whatever…I don’t even want it.” (Intercept 16) Mr. Press testified that .410 shotgun is usually used for hunting but that it can pack deadly punch. Ms. Cooper suggested it would not be used for self-defence. Mr. Press disagreed. Presumably it could be used offensively as well. The “Little Derringer” [195] am satisfied that Kyle Cater had possession, again likely constructive possession, of Derringer pistol, on or about December 4, 2008. find that the purpose of Kyle’s possession was offering to transfer it, that is, his purpose conforms to the Criminal Code definition of “transfer.” It was firearms trafficking purpose. infer his possession and its purpose from Intercept where Kyle responds to request from C.M. on behalf of friend for “a girlfriend” with suggestion that it might be “a little Derringer” and advises that he’ll have to decide if he wants to “get rid of any of mine…” As for price, Kyle will have to “check that out with [his] partner.” He offers to transfer it to C.M’s friend, “Tell him it might be like…thirteen, fourteen, cuz.” He is not “patching” gun over to the police: he is offering to sell Derringer for thirteen to fourteen hundred dollars which C.M.’s hapless friend intends to give the police to save his license. C.M. tells him his friend will pay cash. The “3-0-8” [196] find that Kyle Cater had possession, apparently constructive possession, of .308 calibre rifle on or about December 4, 2008. find that the purpose of Kyle’s possession was offering to transfer the .308, that is, his purpose conforms to the Criminal Code definition of “transfer.” It was firearms trafficking purpose. infer this from Intercept 14 where Kyle offers to deliver the rifle to Shawn Shea. Shea’s equivocation about whether it is what he wants is immaterial to the charge. [197] Kyle Cater is charged that he had possession on or about December of .45 calibre handgun. infer from the intercepted communications with I.E. (Intercepts 23 and 24) that he and I.E. discussed .45 calibre handgun on December 7, 2008. find Kyle did not have possession of the handgun until December 28 when he rendezvoused with I.E., rendezvous captured by the intercepts (Intercepts 41 46) and observed by the police surveillance team. On December 28 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 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. The “Smith and Wesson” [199] On December 16, R.S. had business proposition for Kyle Cater, Smith and Wesson to clear debt. Kyle was “very interested” in the gun. (Intercept 29) There is no evidence that satisfies me that Kyle had possession of the Smith and Wesson however. Intercept 29 indicates that it is R.S. who has possession of it. Furthermore, am not persuaded there is any evidence of Kyle offering to transfer the Smith and Wesson. The Crown points to call between Paul Cater and Kyle about Paul getting to keep something if he can get it fixed. (Intercept 40) am unable to find that this call is connected to the Smith and Wesson. There is nothing in Intercept 29, the December 16 call between R.S. and Kyle Cater, to suggest the Smith and Wesson is in need of repair. do not find that Intercept 30 between R.S. and Kyle advances my understanding of the condition of the Smith and Wesson nor is any link made with Paul Cater. Furthermore, the charge against Kyle of offering to transfer the Smith and Wesson alleges this to have occurred on December 7, 2008 whereas the call where Paul reminds Kyle he could have “it” if he can get it fixed occurred on December 27. Satisfying the Criminal Code Definition of Firearm [200] Notwithstanding the intercepts, Ms. Cooper has submitted that the Crown’s case on the firearms trafficking charges fails because none of the guns were recovered and without testing there is no proof they were operable. Operability is necessary component of finding that “barreled weapon” is in fact “firearm” as defined in section of the Criminal Code. recited this definition earlier in these reasons at paragraph 31. Ms. Cooper has suggested that even if find that guns were being discussed in the intercepts, which have found, there is no evidence to satisfy me that the guns were in an operable condition and not broken, deactivated or replicas. [201] Assessing whether the intercepted communications concerned “firearms” as this is defined by the Criminal Code requires me to take in account all the evidence. (R. v. Charbonneau, [2004] O.J. No. 1503 (C.A.), paragraph 3; R. v. Willis, 2007 ONCJ 605 (CanLII), [2007] O.J. No. 5691 (C.J.), paragraph 31) Inferences can be drawn from descriptions given of the gun and the circumstances surrounding its use. (R. v. Dunchie, [2006] O.J. No. 5455 (S.C.J.), paragraph 55) How people behave in relation to gun is relevant to determining whether it is firearm. (R. v. Abdullah, [2005] O.J. No. 6079 (S.C.J.), paragraph 29) Where all the circumstances lead to an inference that the item under discussion is firearm, then am entitled to draw such an inference. (Dunchie, paragraph 56) [202] There is photographic evidence that suggests real firearms were Kyle Cater’s trade. Three photographs of guns and ammunition were taken from Kyle’s cell phone. Michael Press identified the guns shown lying on blanket with ammunition scattered around them. He identified Derringer; top-break revolver, mostly silver in colour, manufactured by number of companies including Smith and Wesson; longer barreled firearm that appears to be semi-automatic firearm and is similar in appearance to .22 calibre handgun; smaller European-designed handgun with slide loading mechanism for “racking” the gun. He also identified .22 calibre long rifle ammunition which could be fired from the semi-automatic, and .38 special ammunition which could possibly be fired from the revolver or the Derringer. [203] Mr. Press had no difficulty identifying what is depicted in the cell phone photographs. However, he acknowledged he could not determine operability without testing the featured guns. [204] The photographs do not decide the issue for me, the intercepts do. The intercepted communications provide me with all the evidence need to be satisfied beyond 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 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 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. have no hesitation in finding the Crown has proven beyond reasonable doubt that the guns referred to in the intercepted conversations were “firearms” as defined in the Criminal Code. [205] It was suggested by Ms. Cooper that D.S.’s complaint about what Kyle had provided him (Intercept 16, discussed at paragraph 194 of these reasons) is an indication that the “thing” was broken. do not infer this from the intercepted conversation. Its meaning simply cannot be stretched that far. It is apparent to me on the evidence that Kyle was in possession of, and given the nature of his business, intended to transfer working firearm. [206] And to wrap up the “firearm” issue, find that R. v. Sinclair, [2006] A.J. No. 728 (Q.B.), relied on by Ms. Cooper, has no application to this case. Conclusion on the Firearms Trafficking Charges [207] My conclusions on the firearms trafficking charges can be summarized as follows: I find the Crown has proven beyond a reasonable doubt that Kyle Cater is guilty of Counts 3 and 4, relating to the .410 gauge shotgun; Counts 5 and 6, relating to the Derringer; Counts 7 and 8, relating to the .308 calibre rifle; and guilty of possession of the .45 calibre handgun for the purpose of offering to transfer it. also find that the intercept evidence establishes Kyle Cater’s guilt beyond reasonable doubt on Counts and in the firearms trafficking Information: that between the 18th day of November, 2008 and the 16th day of January 2009, he did possess firearm for the purpose of offering to transfer it, while knowing he was not authorized to do so, and that he did offer to transfer, with or without consideration, firearm, while knowingly not being authorized to do so. [208] I acquit Kyle Cater of Counts 9, 10, 11 and 12 on the firearms trafficking Information. I find Kyle to be guilty of the possession of the .45 calibre firearm on December 28, 2008, a finding I am making in relation to Count 1 of the Information, not as specifically charged under Count 9 of the Information as I find that on or about December 7, 2008, Kyle Cater did not have possession of the .45 calibre handgun he was discussing at that time with I.E. [209] This concludes my reasons on all twenty-three charges against Kyle Cater. For ease of reference, dealt with the charges relating to the firearms seized at 80 Cavendish in paragraphs 178 182. [210] These reasons have been particularly lengthy. This is due to the number of charges, my decision to go into the intercept evidence in considerable detail, and the way the case was defended. thank all counsel for their hard work and patience throughout what has been an unusually protracted case.
The accused was charged with numerous weapons-related offences, including possession and trafficking. The police had intercepted numerous ambiguous calls between the accused and others and had interpreted the coded language used as involving discussions about firearms. The defence had been unsuccessful in arguing that the inferences drawn were mere hunches and the conversations could not support a reasonable inference that the subjects under discussion were firearms. A search at his parents' residence had resulted in the seizure of several firearms but none were found in the accused's actual possession. One of the issues was whether the accused had constructive or joint possession of the firearms seized from his parents. Accused found guilty on all the weapons' possession charges and some of the trafficking charges, but not guilty of careless storage of a firearm. It was clear that the accused had much more than a passive or quiescent knowledge of the guns seized from his parents' home and there were a number of indicators that he had a measure of control over them, such as his telling his father on occasion to get rid of them, his being notified immediately when one of the firearms went missing, the way he pressed his parents to explain how that could happen and his ability on other occasions to tell his father where in the home a particular firearm was located. However, despite his knowledge of the location of some of the firearms at certain times, the court was unable to find that the accused had stored the firearms in the manner they were found when the search warrant was executed. The evidence also established that he was stashing guns at locations other than his residence and he possessed those guns for the purpose of transferring them to others. The only reasonable inference to be drawn from the intercepts was that the speakers were talking about guns and the communications revealed the commercial nature of the accused's activities. Given that the accused had asserted a privacy interest with respect to an application to exclude the evidence arising from the police search of the cell phone seized from him, he could not now deny that the phone was his.