Court Information
Between: Her Majesty the Queen
— AND —
S.E.
Before: Justice Sandra Bacchus
Heard: July 4 and 10, 2014; August 21, 2014; September 30, 2014; October 6 and 14, 2014; November 3, 12, and 17, 2014; December 17, 2014; January 20, 2015; March 4, 8, 12, 20, and 25, 2015; April 29, 2015; May 28, 2015; and June 8 and 9, 2015
Counsel:
- C. Lindo-Butler, for the Crown
- R. Robinson, for the Defendant
Judgment
INTRODUCTION
1The defendant faces seven charges in relation to his alleged possession of a firearm and ammunition located at his residence in the City of Toronto, during the execution of a search warrant on October 27, 2013.
2On October 27, 2013, members of the Toronto Police Service executed a Criminal Code search warrant authorized for that address. Officers were on scene in the area of the target address at approximately 8:15 a.m.
3At approximately 12:30 p.m., the defendant along with his common law partner D.C. and their two young children were observed exiting the target address and approaching a red Ford Explorer parked in the school parking lot across the street from their apartment.
4At 12:35 p.m., Detective Michael Balint called a takedown and the defendant was arrested; the defendant and D.C. were detained at the scene pending the search of the apartment.
5At 12:38 p.m., Detective Balint, Officer Kirk Blake and Officer Richard Haines entered the address and began searching.
6In a corner of the living room next to the couch, Officer Blake located two clear plastic storage containers sitting on top of two pieces of plywood supported by a blue bin.
7Officer Blake located the following items in these containers: a disassembled starter pistol with blank rounds and an instruction manual (exhibit 3J and 3K) and personal documents, baby photos, photos of the defendant and Ms. D.C., and some other personal income tax documents.
8In the blue bin, Officer Blake testified that he located fertilizer. Although the bin is depicted in exhibit 3F, there is no photograph of the fertilizer and no other evidence regarding the fertilizer in terms of brand or the amount in the bag.[1]
9Underneath the bin, Officer Blake located a grey speaker box. Officer Blake testified that when looking at this "stack" of items, the back of speaker box[2] was visible.
10Officer Blake testified that the speaker box was lying lengthwise; the back of the speaker where it would be hooked up to a sound system was facing the couch and the front of the speaker where there was an opening was facing the wall. Officer Blake testified that the speaker box was touching the couch.
11Officer Blake testified that he observed that the speaker box appeared to have been tampered with and that it was slightly pushed in. Initially, when he put his hand in the speaker box he detected nothing. However, after he shook the speaker box Officer Blake could hear that there was something inside.
12Officer Blake testified that he put his hand in the opening a second time and felt an object that felt like a firearm. Officer Blake testified that he pulled the item to the top from inside the bottom of the speaker and discovered a firearm fully wrapped in a white napkin.
13Exhibits 8H and 8I depict the firearm as it initially appeared when removed from the speaker box.
14The firearm seized is a 22 calibre Ruger model Mark 2 handgun (Exhibit 16). When located Officer Blake testified that the magazine had been inserted into the firearm; four rounds of 22 calibre ammunition were located inside the magazine (Exhibit 8K).
15An additional twenty rounds of 22 calibre ammunition and one round of 9 mm ammunition were located wrapped inside a napkin with the firearm. (Exhibit 8M). The napkin and cloth were submitted for forensic testing. There is no evidence that any results were obtained.
16At approximately 1:20 p.m. Sergeant Kim Harris, who had been part of the search team, attended the parking lot and advised officers Small and Tan that a gun had been located in the unit and that the defendant and Ms. D.C. were arrestable for possession of a firearm.
17At approximately 1:20 p.m., after speaking with Officer Harris, officers Small and Tan advised the defendant that a gun had been located in the apartment. Officer Harris arrested Ms. D.C. for possession of the firearm. Officer Small then rearrested the defendant for possession of a firearm and reread the defendant his rights to counsel.
18At approximately 1:29 p.m., the defendant was transported from the scene to 13 Division by officer Zold.
19A video interview was conducted at the station, but the videotaped statement has been lost. Following a voir dire, I ruled the utterances made by the defendant at the scene of the arrest were admissible and the content of the video statement of the defendant taken at 13 Division inadmissible.[3]
20At 1:35 p.m., Sergeant Harris took a statement from Ms. D.C. while still on scene in the parking lot. At 2:03 p.m., following consultation between Sergeant Harris and Detective Balint, Ms. D.C. was released from the scene without charges.
21The following are matters not in contention and I find as facts:[4]
- The defendant lived at the residence for at least 4 months prior to October 27, 2013;
- The only people with keys to the apartment were the defendant and D.C.;
- There is no issue that the firearm seized by the police, to wit a Ruger 22 calibre long rifle automatic pistol (identified on the certificate of analysis as a Ruger model Mark 2 handgun semi-automatic 45), is a "restricted firearm"; and the twenty cartridges of 22 calibre ammunition is ammunition as defined by section 84 of the Criminal Code (exhibit 16);
- The defendant has no firearms acquisition certificate permitting him to possess a firearm and/or ammunition (exhibits 17 and 18);
- On October 27, 2013, the defendant was bound by a prohibition order, prohibiting him from possessing firearms and ammunition (exhibit 14);
- There is no evidence as to when the gun and ammunition were placed in the speaker.
POSITION OF THE PARTIES
Crown
22The crown's position is that there is overwhelming evidence before the court that the defendant had knowledge, custody and control of the firearm and ammunition seized.
23The speaker box admittedly owned by the defendant was tucked away in the corner of the living room supporting a bin and plastic containers, one of which contained a starter's pistol, which the defendant admits belonged to him.
24Also, in the general area of the television console proximate to the speaker, police located a safe which contained documents identified as the defendant's.
25The crown submits that this evidence, in conjunction with the inculpatory nature of the utterance made by the defendant upon arrest, and the absence of any other credible or reliable evidence tying anyone to the apartment other than the defendant and Ms. D.C., amounts to overwhelming evidence of the defendant's knowledge and control of the firearm and ammunition.
26The crown submits that the introduction of M.E., the defendant's younger brother, as an alternate suspect, is a concocted fallacy, the product of the defendant, Ms. D.C., and M.E.
27The crown submits that the court need only look to the timing of this evidence introduced by Ms. D.C. at trial over a year and a half after the defendant was detained in relation to these offences, as evidence of its fabricated nature.
28In addition, the crown submits that the evidence of M.E. as an alternate suspect was delivered by the defendant, Ms. D.C., and M.E. in a contrived manner. The crown argues that the partial and partisan connection between these three witnesses, as well as evidence of the defendant's bad character which the court is entitled to rely upon in assessing the defendant's credibility, negates any finding that an air of reality exists to the defense assertion of M.E. as an alternate suspect.
29The crown submits in the alternative that even if the court were to find that the defense evidence in relation to actual or constructive possession raises a reasonable doubt, there is ample overwhelming evidence upon which this court can find that the defendant was wilfully blind in relation to M.E.'s possession of the gun in his home, and the defendant is therefore culpable on that basis.
Defense
30The defense submits that there is no direct evidence linking any particular individual to possessing the gun or placing it where it was ultimately discovered by the police during the search, save and except evidence an utterance made by the defendant to the police upon his arrest. The defense submits that this utterance is intentionally vague and was calculated by the defendant only to exculpate D.C. while not incriminating himself.
31The defense submits that there is evidence upon which the court can find an air of reality to the inference that M.E. is a viable alternate suspect in relation to possession of the firearm and ammunition. This evidence includes: direct evidence connecting M.E. to possession of a gun in May 2013; M.E.'s opportunity to have put a gun in the defendant's home; M.E.'s admitted involvement in a drug dealer lifestyle and his admission that he needed protection as a motive for having a gun; M.E.'s concealment of contraband in the form of marijuana and money in the defendant's home; M.E.'s equivocal response and ultimately his lack of denial to the direct question of whether he would have put the gun in the speaker.
32The defense submits that the totality of this evidence lends credence to M.E. as an alternate suspect.
THE LAW - LEGAL PRINCIPLES IN RELATION TO POSSESSION
33The defendant is presumed innocent and the burden of proof is on the crown to prove the charges beyond a reasonable doubt.
34I am guided therefore by the decision of the S.C.C. in R v W.(D.) (1991) 1 S.C.R. 742: if I believe the evidence of the defendant I must acquit; if I disbelieve the evidence of the defendant but this evidence is capable of raising a reasonable doubt I must acquit and even if I find that the defendant's evidence is not capable of raising a reasonable doubt I must determine if on the totality of the evidence I can be satisfied beyond a reasonable doubt of the guilt of the accused.
35Section 4(3) of the Criminal Code states:
(a) a person has anything in possession when he has 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.
36The crown must prove beyond a reasonable doubt that the defendant had knowledge and control of the gun seized in this case. There is no requirement upon the Crown to prove that the defendant handled the gun or the speaker.
37As per the decision in R v Savoury 1996 CanLII 2001 (ON CA), [1996] O.J. No. 3811 at para 7:
Control for the purpose of constructive possession does not require that the accused did in fact exercise control over the object in question. In R. v. Terrence (1980) 1980 CanLII 74 (ON CA), 55 C.C.C. (2d) 183 (Ont.C.A.) aff'd (1983), 1983 CanLII 51 (SCC), 4 C.C.C. (3d) 193 (S.C.C.), the Supreme Court accepted that control means power or authority over the object in question. Similarly in R. v. Chambers (1985) 1985 CanLII 169 (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.), the court held that the right to grant or withhold consent to drugs being stored in a bedroom was sufficient to constitute control. Again, control is established if there is the right to grant or withhold consent. It is not necessary that the consent in fact be granted or withheld.
ANALYSIS OF THE EVIDENCE
Evidence of D.C.
38Ms. D.C. is the mother and common law partner of the defendant. They have two young children together. Ms. D.C. has no criminal record.
39Ms. D.C. gave evidence as follows:
The defendant moved into the residence July 1, 2013. The speaker box and storage bins were in the middle of the room as the apartment had very little storage. Ms. D.C. testified that she dragged the speaker box to the corner of the living room beside the couch and created the table/storage area where the speaker box and ultimately the gun and ammunition were located by the police;
M.E., the defendant's younger brother stayed over at their place from time to time commencing in July 2013 up to and including early Friday morning (Thursday night around midnight) to the Saturday morning on the weekend the search warrant was executed. When M.E. stayed over he slept on the couch in the living room. Ms. D.C. testified that M.E. stayed on the weekends and rarely stayed during the week;
When M.E. stayed over he only brought a few articles of clothing such as a shirt or a pair of pants and only left behind one or two articles of clothing;
The 'Pepe' jeans (exhibit 9T), seized by the police during the execution of the search warrant on October 27, 2013, belonged to M.E.; Ms. D.C. testified that she knew this because they were a brand name jean with rips at the top; the defendant only wore jeans with rips at the bottom as part of his work clothes and not designer jeans;
In addition, Ms. D.C. testified that she believed that one or two additional articles of M.E.'s clothing were located in the basket of dirty laundry in the corner of the master bedroom depicted in Exhibit 3N;
Ms. D.C. testified that not all of the dishes in the sink belonged to her and her family and some of them would have been left behind by M.E. (Exhibit 6c and 8D);
Ms. D.C. testified that sometime within the months preceding the execution of the search warrant M.E. hid a large quantity of marijuana and a wad of rolled up money in a bag under the couch in the apartment; Ms. D.C. testified that she discovered the marijuana and money when she was cleaning and confronted both the defendant and M.E. regarding who it belonged to. Ms. D.C. testified that M.E. admitted that it was his, in the presence of the defendant;
Further, Ms. D.C. testified the marijuana 'roaches' found in an ashtray, which the police located inside a kitchen cupboard, exhibit 8T, do not belong to her and that she did not know where they came from;
Ms. D.C. testified that M.E. began giving money on a monthly basis to her for the support of her and the defendant's children. This money came to her via the defendant's parents as M.E. refused to have any direct contact with Ms. D.C. The financial support from M.E. began in January 2014, following D.C.'s last conversation with M.E. which was about these charges;
Ms. D.C. testified that M.E. and the defendant are quite similar in appearance including their stature.
40In a ruling rendered by this Court on June 8, 2015, I held that Ms. D.C.'s status as the defendant's common law spouse and mother of his two young children did not defacto render her unbelievable as a witness. I have determined that in relation to Ms. D.C.'s evidence that she had a discussion with M.E. in December 2013, her testimony was capable of belief.
41Particularly, I found that the undisputed circumstance that M.E. began to financially compensate Ms. D.C.'s children following their discussion is a circumstance which supported Ms. D.C.'s evidence regarding the nature of that conversation as credible. As M.E. did not adopt or admit the incriminating aspect of that conversation, it is of course not admissible.
42Ms. D.C. admitted, somewhat reluctantly when questioned by the crown and in a more forthcoming fashion when cross examined by the defense, that at the time of the arrest she thought that the defendant was the person who put the gun in the speaker. She admitted that she felt overwhelmed, angry, upset and disappointed at the defendant when she learned that this was happening to her again as their home had been the subject of a police search in the past.
43Shortly after the arrest Ms. D.C. testified that her views changed and she now believes that the defendant would not have brought a gun into their home and jeopardized the safety of their young children.
44I take into account that aspects of Ms. D.C.'s testimony have been coloured by her feelings towards the defendant, including her stated belief in his innocence, her belief, naive or otherwise, that the defendant always tells her when he has done something wrong, and her position that it is unfair that the defendant remain in custody away from his children in circumstances when it is Ms. D.C.'s belief that his brother M.E. is the responsible party.
45I also take into account that Ms. D.C. has strongly held negative feelings about M.E. in assessing the credibility and reliability of her evidence.
46Consistent with Ms. D.C.'s biased perspective, I find that there are areas of Ms. D.C.'s testimony which suggest that from time to time Ms. D.C.'s evidence was skewed by her desire to assist the defendant.
47For example, Ms. D.C. initially testified that the defendant never touched the speaker box, a position which she quickly resiled from recognizing that she would not of course always be present when the defendant might have this opportunity.
48In addition, Ms. D.C. testified that items located in the corner, where the speaker box and firearm were found belonged to her and the defendant. This is simply not borne out by the evidence. Located in the corner were documents belonging to the defendant and a starter pistol identified as belonging to the defendant. There were no items that appear to have belonged to Ms. D.C. or were mutual possessions.
49I find that Ms. D.C. at times inserted her presence into the scene in order to fill gaps for the defendant in an effort to possibly minimize his responsibility. Much like her testimony about the fertilizer in the bin being there for her planting even though she had it for an unspecified period of time had moved it from one house to the next and had never bought any plants with it.
50That being said, an assessment of these vagaries in Ms. D.C.'s evidence leads me to find that they were minor and inconsequential inconsistencies.
51I find that the majority of Ms. D.C.'s evidence was delivered credibly and in a forthright manner and that Ms. D.C. testified in a manner which was spontaneous, internally and externally consistent. Ms. D.C., in a frank and unwavering fashion, frequently gave evidence which was not necessarily in the defendant's favour.
52Ms. D.C. consistently gave evidence of the defendant's connection to the apartment, identifying his clothing and his keys. In addition, Ms. D.C. admitted without hesitation that she was aware that the defendant had a starter's pistol and she confirmed that it belonged to the defendant. Ms. D.C. also confirmed that the speaker box in question was the defendant's and that he brought it into the apartment when he moved in with her.
53Ms. D.C. was forthright in testifying that the defendant was secretive about his mail and always made sure that his safe was locked and that he never gave her the key. In addition, she admitted that the defendant smoked marijuana and would hide it from her.
54Ms. D.C.'s evidence is externally consistent with that of Officer Blake regarding the position of the items in the corner and the proximity of the speaker box to the couch. Both witnesses describe the items as "stacked" and both witnesses testified that the speaker box was touching the couch.
55Ms. D.C.'s evidence that she dragged the speaker box to the corner and set up the corner in order to keep things out of the way and keep her home tidy was delivered spontaneously and accords with common sense.
56Ms. D.C.'s evidence, regarding M.E. being at her apartment on Friday October 25th, while her and the defendant and their children were away, is consistent with the surveillance evidence which captured a single male similar in stature and appearance to the defendant in the apartment on Friday evening with no one else around. This, alongside confirmatory identification by surveillance officers who saw the defendant, Ms. D.C., and their children, returning home on Saturday at around 10 p.m., lends plausibility to Ms. D.C.'s evidence regarding the movements of the defendant and M.E. that weekend.
57The identification of the 'Pepe' jeans, as M.E.'s is evidence which is consistent with the defendant and M.E. More importantly, Ms. D.C. was able to give a credible explanation about how that style of clothing differs from the other jeans that the defendant would wear.
58Not every item of clothing has been photographed and certainly Ms. D.C.'s evidence regarding whether there were actually clothes in the dirty laundry basket belonging to M.E. was unclear and I find speculative.
59On the other hand, if Ms. D.C. was going to fabricate a story that M.E. was there during the two days before the execution of the search warrant why not attribute more items to him to solidify the story?
60Ms. D.C. was pressed by the crown on why she did not tell Officer Kim Harris when she was asked who had keys to the apartment that M.E. stayed with her and the defendant on occasion and at times had use of their keys to access the apartment.
61Ms. D.C. testified that she did not mention M.E. to Officer Harris because she was never specifically asked about visitors to the place and she was focussed on her own situation at the time. Detective Harris agreed she never asked Ms. D.C. who else stayed in the apartment or who else ever had a key.
62Given that Ms. D.C. was not specifically asked about visitors to the apartment, that she was told by the police that the defendant was the target, that she believed that the defendant was in fact culpable based on what she was told, and given that she had not as yet had a conversation with the defendant or M.E. which changed her perspective about what appeared to be obvious regarding who was at fault regarding the firearm, I do not find Ms. D.C.'s evidence necessarily incredible in this regard.
63Ms. D.C. testified that even after her perspective changed and she believed that the gun belonged to M.E., she did not come forward out of loyalty to her spouse's wishes that she did not do so.
64It is difficult to accept that an individual with information that could possible exonerate if not release their partner and the father of their child from custody, would not make every attempt to do so.
65Ms. D.C. testified that she did make attempts to call and record M.E. to preserve evidence. No phone records or other evidence of her efforts have been tendered. M.E. confirmed Ms. D.C.'s repeated attempts to contact him following their conversation in December 2013.
66I do not find that in the circumstances, given the relationships involved, and given other credible and reliable aspects of Ms. D.C.'s evidence that her failure to mention M.E. to Officer Harris and her delay in disclosing the nature of her conversation with M.E. in December 2013, to anyone in authority until the trial had commenced is necessarily incredible. There is nothing which refutes her testimony and Ms. D.C. remained consistent.
67I accept that Ms. D.C. was not in control of the disclosure of the information regarding M.E. and that she felt obliged to follow the defendant's wishes.
Evidence of S.E.
68The defendant testified as follows:
During the May 2013 long weekend, while at Woodbine Beach Park, with his brother M.E. and some other friends, M.E., while out of eye sight of their friend(s) showed the defendant a handgun he had concealed in his knapsack. The defendant testified that M.E. told him he needed the firearm for protection and that people were out to get him in the area of his parents' place. The defendant testified that he chastised his brother about having the gun and told him to get rid of it;
The defendant testified that shortly after he moved in with D.C. on July 1, 2013, M.E. begged him to let him stay at the apartment because of the problems he was having at his parent's home and because people were after him;
The defendant testified that he questioned M.E. regarding what he had done with the firearm and M.E. told him that he had gotten rid of it. The defendant testified that he told M.E. not to bring that into "my" house and was assured by M.E. he would not;
The defendant testified that he did not tell D.C. about the gun he had seen in his brother's possession because she would have never allowed him to stay. The defendant testified that he believed that when M.E. came to his home, he no longer had the firearm;
The defendant testified sometime later, after M.E. was staying at his home, M.E. stashed marijuana and money underneath the couch in the living room where he slept. The defendant testified that he again questioned M.E. asking him if he was sure he did not bring a firearm into the residence. The defendant testified that M.E. stated that he got rid of the firearm and that he was convinced based on what M.E. said that he had not brought a firearm into the apartment;
The defendant testified that he decided to do a check around to be sure because his brother had said he was not going to bring a gun into the house and he brought "weed" so he wanted to make sure;
The defendant testified that he searched around the couch where M.E. slept, "around and behind, front and back", and that he looked behind the entertainment centre, and in his brother's knapsack. The defendant agreed that he did not search inside the bins and never picked them up. The defendant maintained there was nothing in the bins and the bins were all stacked inside each other;
The defendant testified that it never crossed his mind to take apart the apartment to search, or to take out his tools and look through every crevice;
The defendant admits that he did not look behind the speaker;
The defendant testified that the last time he saw M.E. was the Saturday before he was arrested, he was not sure if that was in the afternoon or the evening;
The defendant denies putting the firearm in the speaker or giving M.E. permission to do so. The defendant further denies that he chose to ignore what was readily apparent; that M.E. was looking to hide a firearm somewhere and did so in his residence.
69The defendant has youth court dispositions dated September 27, 2001, and March 4, 2005. On October 26, 2009 the defendant was convicted of Theft Over, Dangerous Operation of a Motor Vehicle, Possession of Burglary Tools and Break and Enter and received at sentence of a 12 month conditional sentence, to be followed by two years of probation. On December 1, 2011, the defendant was convicted of Common Nuisance and Possession of Marijuana for the Purpose of Trafficking and received a sentence of a $900 dollar fine and a nine month conditional sentence.
70A court may consider a defendant's disreputable lifestyle or obvious bad character in assessing the weight to be given to the defendant's evidence. R v Cameron (1995) 1995 CanLII 1283 (ON CA), 96 C.C.C. (3d) 346 (Ont.C.A.).
71In this case the defendant's prior involvement in drugs and prior criminal convictions, although not admissible to support an inference that the defendant is more likely to have committed these offences, may be used to assess the defendants' credibility as a witness in the proceedings. R v Chambers 1990 CanLII 47 (SCC), [1990] 2 S.C.R. 1293.
72Overall, an assessment of S.E.'s evidence reveals a combination of forthright spontaneous admissions against interest along with areas where material gaps and inconsistency in the defendant's testimony exists.
73The defendant was forthright in admitting his criminal record and describing the circumstances, which lead to his convictions and other dispositions.
74There is some circumstantial evidence, independent of that of D.C. and M.E., which may tend to support some aspects of the defendant's version of the events.
75For example, the description of the individual observed by Detective Brian Johnstone when he conducted surveillance on the residence at 10:45 p.m. on October 25, 2013, is some evidence capable of supporting the defendant's version that it was his brother and not him at the apartment at that time.
76Detective Johnstone testified that he observed the apartment for a couple of hours from his vehicle using binoculars. Detective Johnstone conceded that at the time he made his observation of the residence, he only had a general description of the defendant, male white, five foot six inches, and had not seen a photo of the defendant prior to conducting surveillance.
77Detective Johnston testified that the first time he had seen M.E. was during the trial proceedings and that admittedly M.E. looks similar to the defendant.
78Although Detective Johnstone maintained that the individual he observed was the defendant, I find that the reliability of his evidence, given his lack of prior knowledge of either the defendant or M.E. is weak.
79The fact that the defendant and M.E. are similar in stature and appearance militates against finding that any definitive conclusion from the officer regarding the identity of the person captured by surveillance on Friday October 25, 2013, is reliable.
80That the individual observed by Detective Johnstone was alone and not in the company of Ms. D.C. and the children, further supports an inference that it was M.E. and not the defendant who was the individual observed in the apartment.
81On October 26, 2014, at approximately 10:15 p.m., Officer Christopher Fortella, conducting surveillance on the defendant's residence observed a vehicle and individuals matching the description of the defendant, Ms. D.C. and their two children, park their vehicle and enter carrying shopping bags. The totality of the surveillance evidence is consistent with the defendant and D.C.'s version that they left their apartment on Friday night and returned on Saturday night.
82The defendant testified that the speaker in question came from a car which he ultimately gave to his mother. The defendant testified that he decided to keep the speaker because it was new, it had some value, approximately $600 dollars, and he wanted to put it in a new car.
83There is some peripheral circumstantial independent evidence which tends to support the defendant's evidence that he transferred a car in question to his mother such that aspects of this version of how the defendant acquired the speaker have some foundation.
84The defendant testified that his mother's minivan broke down some years prior, possibly three or four years. The defendant testified that in 2010, he gave the vehicle to his mother and kept the speaker. Exhibit 4C, seized from the safe identified as belonging to the defendant, is a vehicle permit which tends to support the defendant's evidence that he transferred a vehicle to D.E., his mother, on November 21, 2011.
85The defendant testified that when Ms. D.C. first moved into the apartment around May 2013, he along with Ms. D.C.'s father moved in the big items such as the couch and television console. He testified that when the few storage bins and speaker were moved out of storage and into the apartment when he moved in in July 2013, it was Ms. D.C. who set up the area to the side of the couch and placed all of the items including the speaker as they were positioned when the residence was searched on October 27, 2013.
86The defendant denies ever touching the speaker or moving or touching anything in that area from the time he moved in. The defendant testified that he may have touched the bins, incidental to touching the couch, but he did not go into them. The defendant testified that the bins and speaker should have been in storage but he did not want to pay for storage for three bins.
87The defendant testified that he did not look in the plastic containers in the area where the gun was located from the time they were placed there by Ms. D.C. when he moved in.
88There is simply no evidence that refutes the defendant's testimony in this respect and I cannot say that the defendant's evidence on its own defies credulity. Certainly there is nothing in the containers by way of recent documents or any other indicia which indicates otherwise.
89In addition, the defendant's testimony that the speaker box was three of four feet away from the couch is inconsistent with the credible and reliable evidence of D.C. and Officer Blake who both testified that the speaker box was touching the couch.
90The nature of the defendant's error in identifying the location of the speaker box in the circumstances is internally consistent with his evidence that he did not move the speaker box since Ms. D.C. placed it in that location when he moved in.
91That being said, there are inconsistencies and gaps in the defendant's evidence some of which are major and which detract from the credibility of the defendant's version of the events.
The History and Use of the Speaker
92In general, I found the defendant's evidence regarding when he acquired the speaker to be vague and inconsistent. The defendant described the speaker as a subwoofer for a car stereo belonging to a car he had which he had to get rid of. He was unable with any specificity to provide a date when or time frame of when and how he acquired the speaker.
93In addition, the defendant testified that the speaker came from their storage unit. However, Ms. D.C. testified that she did not recall seeing the stereo speaker in storage a concerning inconsistency.
94According to the defendant the speaker was functional though not functioning.
95The defendant's evidence in this regard is materially inconsistent with that of M.E. who testified that the speaker did not work which was why it was sitting in the corner. M.E. testified: "S.E. and I tried to figure out why it did not work. It made no sense the wires were all connected".
96One may infer, given M.E.'s evidence, that the speaker was in the corner because it did not work and that there was some handling of the speaker by the defendant while he lived at the apartment contrary to the defendant's evidence. There is no context to this evidence, however; and no evidence about when he and the defendant tried to figure out why the speaker did not work or whether the notion that the speaker was not working came from a conversation with the defendant.
97In addition, for reasons which I will outline later in this judgment, I find M.E. to be an incredible and unreliable witness.
98However, the speaker and the defendant's dealings with it are a critical issue and the inconsistency and lack of clarity around the defendant's evidence regarding the history of the speaker I find to be inconsistent with a credible and reliable account.
The Delay in Disclosure of the Third Party Suspect
99The defendant testified that the reason he delayed disclosing M.E. as an alternate suspect was that he was waiting for his brother to come forward.
100I found this aspect of the defendant's evidence to be illogical.
101It is difficult to believe that the defendant who has young children would willingly remain in custody for over a year and a half and not act on his knowledge of his brother's involvement.
102Perhaps, had the defendant had some indication that his brother would come forward, then the defendant's explanation for waiting to disclose the alternate suspect might accord with common sense. However, the consistent evidence is that neither the defendant nor D.C. had had any contact or communication with M.E., since December 2013.
103The defendant did testify that in coming forward he risked the possibility that both he and his brother would end up in jail and cause his mother to have a nervous breakdown.
104It is entirely reasonable to assume that M.E. and S.E. would be looked upon as joint parties in relation to the possession of this gun such that the defendant's concerns about that outcome have a basis in logic and reality. But, to sit in custody for such a length of time passively, without making some apparent effort at liberty given the information the defendant says he had in his possession defies common sense.
The Defendant's Utterance Upon Arrest
105When the defendant was notified that a gun was located, the consistent evidence of Officer Tan, Officer Small and the defendant is that his demeanour changed, that he got upset and began to cry. It is at this point that the defendant made an utterance to officers Tan and Small.
106The defendant testified that he told the officers that the gun had nothing to do with D.C. and had to do with him in an effort to try and exculpate D.C. The defendant denies ever saying that the gun was his or using any words that were explicit in relation to ownership of the gun.
107The defendant's evidence is corroborated by Officer Small who testified that the defendant said that the firearm had nothing to do with anyone else but him and that Ms. D.C. had nothing to do with it.[5]
108The crown submits that the defendant's utterance is in fact a confession. I am not persuaded that this is the case. The defendant carefully chose his words in circumstances where D.C. had been detained by the police and was clearly in jeopardy of being arrested for possession of the firearm. There is no doubt given the defendant's strong feelings towards Ms. D.C. and his children that the defendant chose his words with the primary intent of exculpating Ms. D.C. without necessarily incriminating himself.
109I find as a fact that the defendant made this utterance without specifically claiming that the gun was his and that the defendant carefully chose his words saying enough to exculpate Ms. D.C. without being an admission of guilt on his part.
The Defendant's Evidence about the Gun in the Knapsack
110The defendant's evidence regarding the gun he saw in M.E.'s knapsack is vague. The defendant did not testify that he asked M.E. questions like: "Were did you get that thing?", or, "Is it real?" or "Is it loaded?", or even, "How do you plan to get rid of it?". These are questions which would logically and reasonably flow from having observed a gun.
111The defendant testified that he could not say that the gun he saw in M.E.'s knapsack is the same as the one that the police found in the speaker or box or even if it looked the same.
112One interpretation of the defendant's evidence is that it is measured and careful in respect of this observation. Another view of the defendant's evidence is that it is convenient and calculated; again, saying enough to distance himself from the firearm while not necessarily incriminating his brother in the respect of the seizure by the police of the specific loaded firearm in question.
113In an overall assessment of the defendant's evidence I find given the material inconsistencies and gaps in the defendant's evidence that I do not believe the defendant's version of these events.
Evidence of M.E.
114M.E. is S.E.'s younger brother. M.E. and S.E. were very close prior to the defendant's arrest. Unfortunately the two brothers have a criminal history together and were both convicted in relation to a charge of Dangerous Driving Operation and other offenses stemming from this incident in 2009. M.E.'s only criminal conviction is for Dangerous Driving and Mischief to Property in 2010, for which he received a sentence of 2 years probation, 100 hours community service and an order he pay restitution.
115The essence of M.E.'s testimony is that he is an admitted drug user, and that he has hidden drugs in his parents' home on two occasions as well as the defendant's home on one occasion despite being warned by the defendant not to bring contraband into the house.
116M.E.'s evidence is consistent with the defendant's and that of D.C.'s that he had been staying with the defendant and Ms. D.C. on their couch on and off from July or August 2013, up until the weekend the defendant was arrested. In addition, M.E.'s evidence is in agreement that he slept at the defendant's apartment from the Friday to Saturday before the defendant's arrest on Sunday October 27, 2013, when the defendant and his family were sleeping elsewhere.
117M.E. testified that the defendant warned him before he moved in not to bring drugs or "anything" into his house. He admitted that he told the defendant that people were after him and that he needed protection before he moved in and while he was staying at the defendant's apartment.
118M.E.'s evidence was consistent with the defendant's that he had a knapsack with him when he and the defendant were together during the May 24, 2013, long weekend, and were drinking with some other friends, 'Johnny' and 'Tony', last names unknown, in Woodbine Beach park. M.E. agreed that at one point he and the defendant were speaking by themselves away from their friends.
119M.E. denies showing the defendant a gun concealed in his knapsack.
120M.E. confirmed that Ms. D.C. found his weed under the couch and got really angry and that the defendant again "took him aside" about not bringing anything into the house.
121However, M.E. denies that it was any more than two joints and denies that Ms. D.C. located a wad of rolled up money with the weed under the couch.
122M.E.'s evidence was illogical, inconsistent on material issues, evasive and I find entirely incredible.
123His evidence regarding how much weed was found under the couch and that he hid one or two joints because he was concerned about getting robbed for this amount defies credulity. It is internally inconsistent that someone could hide one or two joints, item capable of being concealed anywhere particularly on their own person, would instead place them under a couch to conceal them.
124M.E. was evasive in all respects. He was unable to provide details in relation to his employment history when staying at the defendant's apartment. When asked direct questions about who he owes money and what he owed for, his evidence was again defensive and evasive. Initially, he refused to provide any details other than that he owed them money for "things" before eventually admitting that it was for weed.
125His evidence was deliberately vague regarding what he was specifically told by the defendant not to bring into the house.
126M.E. admitted to not calling or visiting the defendant since his arrest and detention on these charges in October 27, 2013.
127His evidence that he has not visited or called his brother in over a year and a half because he is "too busy" is an incredible unbelievable assertion.
128In addition he admitted that he had been giving money towards the support of the defendant's children on a monthly basis since January 2014. He provided no explanation for why he was doing so particularly in light of the fact that he had never given them money prior to the defendant's arrest.
129M.E.'s responses to material questions regarding whether he would have put the gun in the speaker were evasive and inconsistent with candour, initially denying that he did so and eventually repeating in his testimony that he did not remember if he did so.
130Certainly, the tenor of M.E.'s evidence is entirely consistent with deception and someone who is hiding something from the court.
IS THERE AN AIR OF REALITY TO THE ALTERNATE SUSPECT DEFENSE
131An accused is entitled to adduce evidence that a third party not the accused committed the crime. The evidence may be direct or circumstantial and must have sufficient probative value to justify its reception. If there is an insufficient connection between the third person and the crime, the evidence will lack the requisite air of reality. R v Grandinetti (2005) 2005 SCC 5 (CanLII), S.C.C. 5, 191 C.C.C.(3d) 449 para 46 – 48; R v Tehrankari (2012) 2012 ONCA 718 (CanLII), O.J. No. 5030; R v Murphy (2012) 2012 ONCA 573 (CanLII), O.J. No. 4086.
132Inferences based on the evidence may be drawn but speculation is not permitted. The evidentiary burden on the accused is discharged if the defence shows that there is some evidence upon which a reasonable jury properly instructed could acquit. Grandinetti, supra paras 47 – 48.
133There are frailties in the defense version that a third party namely M.E. planted the gun.
134For example, an inconsistency in the evidence exists regarding the timing of M.E.'s arrival. D.C. testified that she believed M.E. came to the apartment around midnight on the Thursday night into the Friday morning, while both the defendant and M.E. testified that M.E. came to the apartment Friday evening.
135All three witnesses were somewhat vague regarding when M.E. arrived. I am unable to conclude if this inconsistency is due to the passage of time or some other reason. It has no adverse impact on my assessment of the defense version of events.
136I find it externally inconsistent that M.E. never mentioned in his evidence the discomfort of the apartment's lack of hot water which was the reason the defendant and D.C. testified that they vacated the premises on the Friday evening, and which would have been a readily apparent circumstance to an overnight guest at the apartment that night.
137A further inconsistency in the defense evidence exists in that M.E., characterized as a slob, and a regular overnight guest at the apartment up to and including the weekend of October 27, 2013, would leave so few the signs his presence at the apartment: one or two articles of clothing and an ashtray full of 'roaches'.
138A gap exists in the defense version in that neither the testimony of the defendant, M.E. or D.C. ever explains how M.E. could have left the apartment on Saturday and secured the apartment when in fact both D.C. and the defendant had their keys with them when they were arrested on October 27, 2013.
139There is no evidence that keys to the apartment were ever exchanged at any point. M.E. testified that he believed he last saw the defendant "probably on the Friday before he got picked up". M.E. also testified that he did not see the defendant or D.C. after he left their apartment on Saturday but that he did stop by his mother's house for a visit.
140S.E. testified that he believed he saw M.E. in the afternoon or evening on the Saturday before his arrest but made no reference to getting his key back.
141Logically, the topic of the key given the restrictions D.C. and S.E. testified that they imposed on M.E. having a key should have flowed from the evidence of M.E. and S.E., those with purported firsthand knowledge of this event, if this key exchange and the overnight stay actually occurred.
142It is a gap in the evidence and it is material. But I must consider the weight of this gap in light of the fact that the witnesses were not specifically challenged or tested on their version of how M.E. accessed the apartment. Certainly the defendant's evidence creates an opportunity for an exchange to have occurred in that he says he saw M.E. Saturday afternoon. Though apparently inconsistent with M.E.'s evidence about when they last saw each other the extent of the inconsistency on the specific issue of when keys were exchanged is untested. I cannot arrive at a conclusion, as was submitted by the crown, that these witnesses have fabricated their evidence given the state of the evidence.
143It is illogical that an individual would store a gun in a place he would not have easy access to. That being said there did not appear to be any restriction on when M.E. was permitted to stay at the apartment and whom he could have there.
144Certainly on the evidence the defendant's apartment was accessible to M.E. and other than needing to ask for a key there appeared to be no restrictions on his access to it.
145Unlike the facts in R v Tomlinson 2014 ONCA 158 (CanLII), [2014] O.J. No. 930 where the suggestion of the third party suspect's opportunity to access the victim's apartment was tenuous and ultimately refuted by other circumstantial evidence, I am satisfied that M.E. had ample opportunity to secret the gun in the speaker box.
146The surveillance evidence in my view corroborates D.C.'s, the defendant's and M.E.'s evidence, that M.E. was at the apartment alone on the Friday night before the warrant was executed at the defendant's apartment. It is further consistent with the defense evidence that the defendant and Ms. D.C. were not there and did not return until Saturday night and I have found that D.C. is a generally credible witness.
147In addition, I am satisfied that M.E. had a motive to arm himself and that he told the defendant on more than one occasion that people were after him and he was afraid.
148Again, I distinguish the circumstances of this case from Tomlinson supra at para 83, where the evidence of the impecuniosity of the third party as a possible motive to commit the crime was considered to be of such a "general and amorphous nature as to be almost valueless".
149There is no direct evidence that M.E. was in possession of the gun seized by the police or any gun. M.E. has made no admission in court or elsewhere to having possession of a gun.
150Despite there being no direct evidence connecting M.E. to the gun seized by the police, I find that there is significant circumstantial evidence from which an air of reality arises that M.E. stashed the gun in the speaker box without the knowledge or consent of the defendant.
151I would summarize this circumstantial evidence as follows:
The speaker box was positioned in such a way that someone sitting on the couch could access the front of it without disturbing the stack of other items;
M.E. stayed habitually on the living room couch in the defendant's apartment;
M.E. admittedly needed protection; people were after him, and he was afraid;
M.E. in his testimony displayed unusual and particular knowledge of speaker box itself; he accurately described the brand of speaker as JL (see Exhibit 8N) which is the name clearly identified on the face of the speaker on top of the entryway into the speaker box from where the gun and ammunition was retrieved;
The area of the speaker M.E. referred to would have been facing away and towards the wall;
M.E. testified that the speaker was not working which is why it was there next to the couch.
152Clearly there is an available reasonable inference that arises from the evidence that M.E. would only have this direct knowledge if he had handled or had direct contact with the speaker box given its location. M.E. testified that he knew that the speaker box was at the side of the couch and that he saw the front of the speaker which would not have been plainly visible.
153M.E.'s equivocal testimony initially denying knowledge and possession of the gun and then testifying that he did not remember if he put a gun in the speaker box, tends to further support rather than detract from the inference that he had knowledge and possession of the gun and ammunition.
154In addition I find the evidence of M.E.'s conduct following the defendant's arrest on these charges by not visiting the defendant and refusing all opportunities for contact with the defendant and D.C., and in undertaking regular payments to defendant's children without explanation, is evidence which further lends an air of reality to the third party suspect defense in this case.
WILFUL BLINDNESS
155Before the doctrine of wilful blindness can be used to impute guilty knowledge there must be a determination that the defendant had his suspicions aroused but declined or omitted to make further inquiry:
Wilful blindness constitutes a subjective inquiry into the accused's state of mind. Against a proper factual backdrop, it can stand as a substitute for actual knowledge. It imputes knowledge in circumstances where an accused's suspicion is aroused to the point that he or she sees a need to inquire but "deliberately chooses not to make those inquiries". R v Briscoe 2010 SCC 13 (CanLII), 2010 SCC 13 at para 21.
156A person who is wilfully blind such that a court can find that they possess the requisite mental element for a criminal offense is someone who becomes aware of the need for an inquiry and declines to make it because he does not want to know the truth: "he would prefer to remain ignorant". Sansregret v the Queen [1985] 1 S.C.R. 584 - 585.
157In R v Malfara 2006 CanLII 17318 (ON CA), [2006] O.J. No. 2069 at para 4, the Court reaffirmed the necessary tenets of the concept of wilful blindness, namely that the question of wilful blindness is appropriately framed not as whether the defendant should have been suspicious but whether the defendant was in fact suspicious; and in addition, that the level of suspicion or the degree of specificity of the suspicion required must reach a suspicion to address that a fact is probably true.
158I am not satisfied that the evidence supports a finding that the defendant was wilfully blind to the presence of the gun and ammunition in the speaker box.
159On his own evidence, the defendant's suspicions were aroused to the possibility that M.E. was hiding other things, possibly a gun, after D.C. found the drugs and money belonging to M.E. under the couch. The defendant gave evidence regarding the extent of his search to confirm that what his brother told him, to the effect that he had not hidden a gun or anything else in the house, was true.
160Although officer Blake testified that the speaker box appeared tampered with in that it appeared pushed out, there is no evidence of the extent to which the box appeared initially tampered. Officer Blake testified that he picked up the box and placed it on the couch to examine it. However there is no evidence that anyone simply looking at the speaker box would have noticed anything amiss absent some form of close inspection.
161In addition there is no evidence which refutes the nature and extent of the search the defendant said he conducted. The defendant's evidence in this respect is unchallenged.
162Finally, there is no evidence of any change in the defendant's behaviour, or pattern of conduct towards M.E. or the speaker box following the discovery of the stashed marijuana and the defendant's search, which might be consistent with the defendant having had his suspicions aroused that M.E. had hidden a gun, and a failure to act on them, or a willingness to ignore these suspicions in order to protect his brother.
CONCLUSION
163There are five scenarios which arise from a consideration of totality of the evidence.
164The first scenario is that the gun and ammunition belonged to the defendant and the defendant put the gun in the speaker.
165The second scenario is that the possession and storage of the gun in the speaker was a joint venture of the defendant's and M.E.
166The third is that the defendant knew that his brother M.E. had a gun and allowed M.E. to store this gun in the speaker.
167The fourth scenario is that the defendant did not know initially that his brother had a gun in the apartment, but then did suspect or should have suspected that his brother had brought a gun it into his home based on the following: his brother showing him a gun on the May 24, 2013, long weekend; his brother's comments to him that people were after him and he needed protection; his own belief that his brother maybe selling drugs given that he always had money but had no job; as well as the fact that his brother hid drugs and money in the apartment under the couch despite being told not to bring anything into the house and the defendant turned a blind eye to this fact.
168The fifth scenario which I find remains available on a reasonable interpretation of the evidence that I do accept is that M.E. stashed the gun and ammunition into the speaker box and the defendant did not know or give his brother permission to do so and did not suspect he had done so until the police told the defendant they had found a gun.
169I find that this fifth scenario is not speculative and is capable of belief. I am therefore not satisfied that the crown has proven the defendant's guilt beyond a reasonable doubt.
170The defendant will be found not guilty on all counts.
Date: July 9, 2015
Signed: Justice Sandra Bacchus
Footnotes
1Officer Blake volunteered his opinion that the fertilizer was consistent with use in a marijuana grow operation. No other evidence consistent with drug production or drug paraphernalia was located in the residence.
2The speaker was referred to as a speaker box interchangeably through the trial.
3R v S.E., Ruling on the Admissibility of Statements (January 20, 2015)
4See Exhibit 1
5Officer Tan testified that the defendant said it was his gun and he did not want anyone else to get introuble for it. Officer Tan had difficulty recalling key aspects of what the defendant said. The most significant concern regarding the reliability of officer Tan's account however is that it is contradicted by officer Small who testified that the defendant did not say explicitly that it was his gun and that if the defendant had said this he would have overheard him. R v S.E., Ruling on the Admissibility of Statements (January 20, 2015).