Her Majesty the Queen v. Tyrell

[Indexed as: R. v. Tyrell]

Ontario Reports

Court of Appeal for Ontario,

Doherty, Rouleau and Epstein JJ.A.

September 3, 2014

123 O.R. (3d) 109 | 2014 ONCA 617

Case Summary

Criminal law — Firearms offences — Possession — Accused denying knowledge of loaded handgun found in closet — Accused convicted of possession of loaded prohibited firearm — Accused's appeal allowed — [page110] Trial judge erroneously leaving jury with impression that accused could be convicted of possession of firearm if he "ought to have known" that it was in closet — Jury should have been instructed that only actual knowledge sufficient subject to instruction on wilful blindness — Instruction on wilful blindness deficient as stating that could convict if accused wilfully blind as to presence of gun without also requiring proof that accused had control over gun — Curative proviso not applying as errors going to heart of elements of offence.

The accused was charged with possession of a loaded prohibited firearm after a loaded semi-automatic handgun was found in plain view in a closet in M's apartment. The accused was the father of M's two children and, while he was in the apartment when the police executed a search warrant, M insisted that he did not live there and only stayed overnight occasionally. The accused denied any knowledge of the existence of the gun. There were no fingerprints on the gun. The accused was convicted. He appealed.

Held, the appeal should be allowed.

The crime of possession of a loaded prohibited firearm is a mens rea offence requiring knowledge that one is in possession of a loaded firearm. In her charge to the jury, the trial judge stated on four separate occasions that it was the Crown's position that the accused knew "or ought to have known" about the presence of guns in the apartment without advising them that the Crown's position was based on an erroneous understanding of the elements of the offence. The jury should not have been concerned in any way with what the accused "ought to have known". The trial judge should have instructed the jury that, subject to a wilful blindness instruction, proof of knowledge required proof of what the accused actually knew. The trial judge also erred in leaving wilful blindness as to the presence of the gun as a basis for liability without also requiring proof that the accused had control over the gun. Both errors were serious and went to the heart of the definition of possession, the only issue in dispute at trial. The curative proviso could not be applied.

Cases referred to

R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531, [1957] S.C.J. No. 32, 118 C.C.C. 129, 26 C.R. 193; R. v. Chalk (2007), 88 O.R. (3d) 448, [2007] O.J. No. 4627, 2007 ONCA 815, 231 O.A.C. 107, 227 C.C.C. (3d) 141, 52 C.R. (6th) 371, 76 W.C.B. (2d) 264; R. v. F.W. Woolworth Co. (1974), 1974 CanLII 707 (ON CA), 3 O.R. (2d) 629, [1974] O.J. No. 1897, 46 D.L.R. (3d) 345, 18 C.C.C. (2d) 23, 16 C.P.R. (2d) 272 (C.A.); R. v. MacDonald, [2014] 1 S.C.R. 37, [2014] S.C.J. No. 3, 2014 SCC 3, 453 N.R. 1, 298 C.R.R. (2d) 190, 341 N.S.R. (2d) 353, 2014EXP-206, J.E. 2014-109, EYB 2014-231703, 366 D.L.R. (4th) 381, 7 C.R. (7th) 229, 303 C.C.C. (3d) 113, 111 W.C.B. (2d) 47; R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, 207 C.R.R. (2d) 153, 399 N.R. 200, EYB 2010-171050, 2010EXP-1068, J.E. 2010-576, 252 C.C.C. (3d) 273, 316 D.L.R. (4th) 1, [2010] 4 W.W.R. 193, 72 C.R. (6th) 208, 346 Sask. R. 1, 86 W.C.B. (2d) 949

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 11(b)

APPEAL by the accused from the convictions entered by Thorburn J. of the Superior Court of Justice, sitting with a jury, on September 20, 2013. [page111]

Levar Tyrell, in person.

Matthew Gourlay, duty counsel.

John Neander, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: —

I

Overview

1The appellant was convicted by a jury of possession of a loaded prohibited firearm. He appeals his convictions.¹ He was self-represented on the appeal, but fortunately, had the able assistance of Mr. Gourlay, who appeared as duty counsel. The appellant chose to rely on Mr. Gourlay's submissions.

2Mr. Gourlay advanced three arguments. In the first, he challenged the trial judge's ruling that despite the considerable delay in bringing the appellant to trial, there had been no infringement of the appellant's rights under s. 11(b) of the Canadian Charter of Rights and Freedoms. The second and third arguments alleged errors in the trial judge's instructions to the jury. Mr. Gourlay alleged that the trial judge wrongly told the jury that the knowledge component of constructive possession could be satisfied if the appellant "ought to have known" of the presence of the gun. He also argued that the trial judge erred in leaving wilful blindness as to the presence of the weapon as a basis for liability absent proof that the appellant also had control over the weapon.

3The court did not require Mr. Neander, Crown counsel, to respond to the s. 11(b) argument. I see no error in the trial judge's reasons and do not propose to address the s. 11(b) issue any further in these reasons.

4The court did require argument from the Crown on the alleged errors in trial judge's instructions. I think the trial judge made both errors alleged. The proviso cannot be applied. I would order a new trial. [page112]

II

Facts

5The police executed a search warrant at the residence of Tonisha McPhee in the early morning of May 4, 2010. When the police entered Ms. McPhee's residence, she and the appellant were asleep in the master bedroom. Omar Grizzle, the appellant's cousin and a close friend, was asleep on the couch in the living room. Two small children were sleeping in a second bedroom.

6The search of the residence turned up two identical, fully operational, loaded nine millimetre semi-automatic handguns. One handgun was found in a suitcase buried under some bedding in a corner of the children's bedroom. A wallet containing Mr. Grizzle's identification was found in the suitcase. The second gun was found on the shelf of a linen closet beside the bathroom near the master bedroom. According to the officer who found the gun, it was in plain view when he opened the closet door. There were no fingerprints on either gun.

7The appellant is the father of Ms. McPhee's two children. They had been involved in a relationship but, according to Ms. McPhee, that relationship had soured in the fall of 2009 because the appellant was seeing other women. Ms. McPhee testified that she moved into her apartment in December 2009. Her mother, who intensely disliked the appellant, insisted that he not be allowed to come and go freely at her daughter's apartment. Ms. McPhee was adamant that the appellant did not live at the apartment and, except for a few articles of clothing, did not leave any of his belongings there. She testified that he visited his children from time to time and on occasion would stay overnight. When he stayed overnight, he slept with Ms. McPhee.

8The appellant testified that he was not in a relationship with Ms. McPhee in May of 2010. He indicated that he did not live at her apartment, although he visited his children there occasionally. According to the appellant, he had stayed at Ms. McPhee's apartment overnight only once in the several months before the search. He acknowledged that he had stayed overnight and was sleeping in the master bedroom when the police arrived on May 4, 2010. The appellant denied any knowledge of the existence of either handgun found in the apartment.

9Ms. McPhee testified that she had no knowledge of the gun found in the suitcase in her children's bedroom. She did, however, know about the gun in the closet. She had found it about a week before the search was executed. Ms. McPhee placed it behind some articles on the shelf. She believed that the gun [page113] belonged to her cousin, Glenton Gibson. He had a key to her apartment and often stayed overnight. Ms. McPhee testified that she called her cousin and told him to "get his stuff" out of her house. She did not use the word "gun", but she believed that Mr. Gibson knew what she meant. Mr. Gibson died before the appellant's trial.

10Ms. McPhee pled guilty to possession of the gun found in the closet. At her sentencing, Ms. McPhee acknowledged that she and the appellant were involved in a relationship at the time of the search. In her testimony at the appellant's trial, she insisted they were not in a relationship at that time and were not getting along very well. She explained the apparent inconsistency by indicating that when she entered her plea she was concerned about securing her own release and not the details of what was said at her sentencing.

11Mr. Grizzle was charged only with the possession of the gun found in the suitcase (count 1). He was convicted on that charge. The appellant was charged with possession of both guns. He was acquitted on count 1, but convicted on the charge relating to the gun in the closet (count 2).

III

The Charge to the Jury

12Possession was the only live issue at trial. In the course of her instructions and before defining possession for the jury, the trial judge outlined the positions of the parties as they related to both weapons. On the charge relating to the gun in the suitcase (count 1), she described the Crown position as follows:

. . . the Crown position is that he [the appellant] knew or ought to have known, or was wilfully blind as to the existence of the gun in the suitcase.

(Emphasis added)

13On the charge relating to the gun in the closet (count 2), the Crown contended first that the appellant had personal possession of that firearm and had placed it in the closet. The trial judge went on to describe the Crown's alternative theory in these terms:

In the alternative, he knew or ought to have known that the firearm was in plain view in the apartment or was wilfully blind as to its existence and chose to do nothing to get rid of it.

(Emphasis added)

14After outlining the positions of the parties, the trial judge turned to the instruction on the meaning of possession. She first defined personal possession: [page114]

Proof of personal possession requires proof that the accused had physical custody of the object, knowing what it was, and intended to exercise control over it.

15She next defined constructive possession:

Constructive possession requires proof that the accused:

-- Knew what the object was.

Knew it was in the possession or custody of another person or in that place.

Consented to it being in the other person's possession or being in that place.

Intended to exercise control over it. Passive² acquiescence or indifference to that fact is not sufficient.

16After explaining the concepts of personal possession and constructive possession, the trial judge returned to the positions of the parties. In describing the Crown's case against the appellant on count 1, which involved the gun in the suitcase, the trial judge repeated her earlier instruction:

The Crown takes the position that Mr. Tyrell knew or ought to have known about the existence of the firearm found in the suitcase as Mr. Tyrell and Mr. Grizzle were close relatives and friends and they knew one another well.

(Emphasis added)

17In respect of count 2, the charge involving the gun in the closet, the trial judge said:

Crown counsel must prove that Levar Tyrell was in possession of the loaded firearm. Remember that possession requires a person to have knowledge of and control over the item, and that possession may be personal possession or constructive possession.

18The trial judge next introduced the concept of wilful blindness, which she expressly limited to the charge relating to the gun in the closet (count 2). She said the following:

. . . a person may be wilfully blind. In other words become aware of the need to find out more, but decides [sic] not to because he does not want to know the truth. In order to determine whether Levar Tyrell was wilfully blind, you must be satisfied beyond a reasonable doubt that he suspected there was a loaded firearm in the apartment, realized its probability, but chose not to make any inquiries because he did not want to know the truth. In other words, he deliberately failed to inquire even though he knew there was reason to do so. [page115]

19In reiterating the Crown's position on the charge involving the gun in the closet (count 2), the trial judge repeated her earlier instruction:

In the alternative he [the appellant] knew or ought to have known that the firearm in plain view in the apartment was there or was wilfully blind as to its existence and chose to do nothing to get rid of it.

(Emphasis added)

20The final instruction to the jury on the count involving the gun in the closet (count 2) presented two possible routes to conviction; the first, based on a finding of possession and, the second, on a finding of wilful blindness:

If you are satisfied beyond a reasonable doubt that Levar Tyrell possessed the loaded firearm found on the third shelf in the hall closet, or that Mr. Tyrell suspected there was a loaded firearm on the shelf in the hall closet in the apartment, realized its probability, but chose not to make [inquiries] because he did not want to know the truth, you must find him guilty of possession of a loaded firearm with magazine.

(Emphasis added)

21After completing her oral instructions and determining that counsel had no objections to them, the trial judge gave the jury a written copy of the instructions. Sometime later, the trial judge received a question from the jury. The question read:

Judge, in the paragraph on constructive possession after point "D" it is stated that "passive acquiescence or indifference to the fact is not sufficient" page 48 of your notes. Our question: Sufficient for what? And does this mean that if you do nothing about it you are guilty of constructive possession or is knowing but doing nothing about it not enough to convict?

22The paragraph from the trial judge's instructions referred to in the jury's question is set out above, at para. 15. Counsel and the trial judge agreed that the question was directed at the elements of constructive possession and, in particular, the distinction between the knowledge requirement and the control requirement. The trial judge proposed to reiterate the four-point definition provided in her initial instructions and emphasize that both knowledge and control were required for personal possession and constructive possession. Counsel agreed with the suggested approach.

23The trial judge recalled the jury and provided the following additional instruction:

Constructive possession just like personal possession requires elements of both knowledge and control and so the person has to have knowledge of what the object was. In other words, that it was a firearm; knowledge that it was in the possession of somebody else or some other place; consent to it [page116] being in that other person's possession or place; and fourth, intent to exercise some control over it. And it's this element of control that would be missing in a passive acquiescence or indifference.

IV

Arguments

24Mr. Gourlay submits that the instructions set out above reveal two fatal errors. First, he contends that the charge, read as a whole, would have led the jury to understand that it could convict based not only on a finding that the appellant knew that the gun was in the closet, but also on a finding that he "ought to have known". Mr. Gourlay submits that only actual knowledge will suffice to establish the knowledge component of possession.

25Second, Mr. Gourlay submits that the trial judge wrongly told the jury that it could convict the appellant if he was wilfully blind as to the presence of the loaded gun in the closet. Mr. Gourlay does not argue that the instruction misdescribes the wilful blindness doctrine. He submits, however, that the instruction left the jury free to convict the appellant on the charge relating to the gun in the closet (count 2) based exclusively on a finding that the appellant was wilfully blind as to the presence of the gun in the closet. He argues that even if the appellant was wilfully blind as to the presence of the gun in the closet, he could be convicted of possessing the gun only if the jury was satisfied that the appellant had some measure of control over the gun. Put simply, Mr. Gourlay submits that the trial judge's instruction effectively eliminated the control component of constructive possession should the jury conclude that the appellant was wilfully blind as to the presence of the gun in the closet.

26Mr. Neander responds that the trial judge correctly defined possession in her initial instructions. He refers to the extracts from the charge set out above in paras. 14, 15 and 17. He also points out that the trial judge reiterated and, to some extent, clarified those instructions in her response to the jury's question (supra, para. 23).

27Mr. Neander submits that the initial instructions on the legal elements of possession and the response to the jury's question were correct in law and made it clear to the jury that knowledge of the presence of the firearm was an essential element of both personal and constructive possession. Mr. Neander points out that the four references to what the appellant "ought to have known" all appear in the part of the trial judge's instructions outlining the position of the Crown. He submits that the jury would have taken the legal meaning of the knowledge [page117] requirement for possession from the part of the trial judge's instructions in which she specifically dealt with the applicable legal principles and not from the part of her instructions in which she summarized the positions of the parties, including the Crown.

28On the wilful blindness argument, Mr. Neander submits that, read as a whole, the charge made it clear that the concept of wilful blindness related to the knowledge component of constructive possession and did not diminish or replace the other requirements of constructive possession.

V

Analysis

(a) The knowledge instruction

29The crime of possession of a prohibited loaded firearm is a mens rea offence requiring knowledge that one is in possession of a loaded firearm: R. v. MacDonald, [2014] 1 S.C.R. 37, [2014] S.C.J. No. 3, 2014 SCC 3, at paras. 53-55. In this case, the Crown relied on both personal possession and constructive possession. Each requires knowledge of the thing said to be possessed. In R. v. Morelli, [2010] 1 S.C.R. 253, [2010] S.C.J. No. 8, 2010 SCC 8, at paras. 16-17, the court described knowledge as it relates to possession in these terms:

On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is.

Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or another person" . . . Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person.

(Emphasis omitted)

30Proof of knowledge, or of its close cousin, wilful blindness, demands a subjective inquiry. The question is "what did the accused know" and not "what ought he to have known": see R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531, [1957] S.C.J. No. 32, at pp. 538, 541-42 S.C.R. Generally speaking, the doctrine of constructive or imputed knowledge based on what a person "ought to have known" has no place in the criminal law: [page118] R. v. F.W. Woolworth Co. (1974), 1974 CanLII 707 (ON CA), 3 O.R. (2d) 629, [1974] O.J. No. 1897, 18 C.C.C. (2d) 23 (C.A.), at p. 30 C.C.C.

31The trial judge, when instructing on the legal elements of possession, both actual and constructive, referred to the appellant's knowledge of the thing possessed. Her language described an inquiry into the state of mind of the appellant. However, on four separate occasions the trial judge reminded the jury that it was the Crown's contention that the jury could convict based on what the appellant "ought to have known" about the presence of the guns in the apartment. I cannot accept the Crown's submission that the jury would, on its own initiative, perceive the difference between the Crown's position and the law as explained to them by the trial judge and disregard those parts of the Crown's position that were inconsistent with the instructions on the applicable legal principles. In the absence of any instruction, I do not think that a jury would necessary understand that a finding of knowledge based on what the appellant "ought to have known" in the circumstances was inconsistent with the legal concept of knowledge as explained to the jury by the trial judge.

32The jury should not have been concerned in any way with what the appellant "ought to have known" and references to that concept should not have found their way either into the position of the Crown or the trial judge's instructions. However, having repeated the Crown's argument four times in her instructions, the trial judge had to make it clear to the jury that it could not make a finding of knowledge based on an assessment of what the appellant "ought to have known" about the presence of either of the guns. The trial judge had to make it clear that, subject to a wilful blindness instruction, proof of knowledge required proof of what the appellant actually knew. Absent a correcting instruction, a jury would reasonably assume that the Crown's position repeatedly put to them by the trial judge was legally tenable and properly available for consideration by the jury.

33The repeated references to what the appellant "ought to have known", and the absence of any instruction that what the appellant "ought to have known" could not support a finding of knowledge, taken together constitute misdirection and an error in law.

(b) The wilful blindness instruction

34In her initial instructions as to the constituent elements of possession, the trial judge distinguished between knowledge of the thing said to be possessed and control over that thing. She [page119] repeated and, to some extent, emphasized that distinction in her response to the jury's question.

35Unfortunately, the distinction between the knowledge and control elements of possession disappeared when the trial judge introduced the concept of wilful blindness which she restricted to the charge relating to the gun in the closet (count 2), the count on which the appellant was convicted. In reference to the appellant's potential liability on that count, the trial judge expressly told the jury that it could convict based exclusively on a finding of wilful blindness. For convenience, I will repeat that instruction:

If you are satisfied beyond a reasonable doubt that Levar Tyrell possessed the loaded firearm found on the third shelf in the hall closet, or that Mr. Tyrell suspected there was a loaded firearm on the shelf in the hall closet in the apartment, realized its probability, but chose not to make inquiries because he did not want to know the truth, you must find him guilty of possession of a loaded firearm with magazine.

(Emphasis added)

36Neither knowledge nor wilful blindness alone can in law establish possession. The Crown must also prove a measure of control over the thing said to be possessed: R. v. Chalk (2007), 88 O.R. (3d) 448, [2007] O.J. No. 4627, 2007 ONCA 815, 227 C.C.C. (3d) 141, at para. 19. Absent proof of control, the appellant could not properly be found in possession of the weapon in the closet, even if he knew that the weapon was in the closet, much less if he was wilfully blind to that fact.

37The instruction set out above (para. 35) can only be read as a direction to the jury that it could convict the appellant of possession of the gun in the closet (count 2) either by virtue of his possession of the gun or because he was wilfully blind as to the presence of the firearm in the closet. Liability based exclusively on a finding of wilful blindness was wrongly left with the jury as a legal alternative to liability based on a finding of possession. The other prerequisites to a finding of possession, especially control of the thing said to be possessed, must be proved even if the knowledge requirement is satisfied by proof of wilful blindness.

38Although the trial judge considered providing a further instruction on wilful blindness in response to the jury's question, she concluded, correctly in my view, that the question did not involve wilful blindness. The trial judge's response, however, left uncorrected the erroneous instructions on wilful blindness in her initial charge.

39The wilful blindness instruction allowed for a conviction on the charge of possessing the gun in the closet (count 2) without any regard to whether the appellant had any control over that weapon. The instruction amounts to an error in law. [page120]

(c) Can the proviso be applied?

40In considering the application of the curative proviso, the court looks to the seriousness of the error and the strength of the Crown's case. Both legal errors are serious. They go to the heart of the definition of possession, the only issue in dispute at the trial. Furthermore, the jury acquitted on count 1 but convicted on count 2. The wilful blindness instruction related only to count 2. The verdicts lend some credence to the claim that the jury may have convicted the appellant on the charge of possessing the gun in the closet based on the erroneous wilful blindness instruction.

41The seriousness of the errors is enough to rule out the application of the proviso. I would add, however, that the case against the appellant was not overwhelming. I would not apply the proviso.

VI

Conclusion

42I would quash the convictions and order a new trial on the charges relating to the alleged possession of the gun found in the closet. The acquittals on the charges relating to the gun found in the suitcase stand.

Appeal allowed.

Notes

End of Document

Footnotes

1. 1The appellant appeals three convictions all arising out of his possession of the loaded prohibited firearm. It would appear from the endorsements on the indictments that the parties agreed that the jury would decide the possession charge and, depending on its verdict, the trial judge would convict or acquit on the related charges set out in a companion indictment.
2. 2The transcript contains the words "as of" and not the word "passive". However, based on the written copy of the instructions and the jury's question, it is clear that the word should be "passive".