Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 09 03 COURT FILE No.: 4810-998-21-35004089-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

Afrah MOHAMED

Before: Justice S. Chapman

Evidence and Submissions on: January 29 -31, 2024, August 7, 2024 Reasons for Judgment Released on: September 3, 2024

Counsel: D. Harm, for the Crown J. Goldlist and K. Friesen, for the accused Afrah MOHAMED

Chapman J.:

Overview

1Mr. Afrah Mohamed stands charged with unauthorized possession of a firearm, unauthorized possession of a firearm knowing it is unauthorized, unauthorized possession of a prohibited weapon, and possession of an unloaded prohibited firearm with readily accessible ammunition. At the outset of trial he brought an application pursuant to section 24(2) of the Charter, seeking the exclusion of evidence, namely the firearm and ammunition found during the search of a residence, on the basis of an alleged section 8 Charter breach concerning the manner of execution of the search warrant. I dismissed the application. I then heard submissions on the merits. The central issue is whether or not the Crown has proved beyond a reasonable doubt that Mr. Mohamed was in possession of the firearm or ammunition. I find that it has not. These are my Reasons.

Factual Overview

The Investigation and Prior Authorization

2Shortly after a witness testified in a remote video conference on February 23, 2021, at a preliminary inquiry concerning a charge of first-degree murder, the witness reported to police that her image was circulating on various Instagram (IG) accounts. After investigating, the police determined that images and audio obtained from the virtual court appearance were posted on several IG accounts, contrary to the Publication Ban ordered to protect the proceedings from being recorded and disseminated.

3The Coordinated Cyber Crime Investigation Unit (C3) of the Toronto Police Service investigated the specific Instagram accounts involved to determine who was operating them and the residence associated with the operators. On November 1, 2021, the police sought and obtained search warrants for four different addresses including 820-600 Queens Quay West in Toronto, where they believed Afrah Mohamed to be residing.

The Execution of the Search Warrant

4On November 4, 2021, the search warrant was executed at 820-600 Queens Quay. Some officers from the local police division were asked to attend with the Cyber Crime officers so as to provide a uniformed presence at the front of the stack.

5Immediately upon entering the apartment several officers saw the accused, Mr. Mohamed, coming out of his bedroom in a t-shirt and underwear. He appeared to have been woken up by the presence of the police. D.C. Wong yelled “police, don’t move”. The accused raised his hands and was subsequently arrested. D.C. Dowding, a uniformed officer from 43 Division major crime, had seen a photo of Mr. Mohamed and was tasked with arresting him for the offences of intimidating a witness, breaching a publication ban and obstructing justice.

6The bedroom that Mr. Mohamed emerged from was one of two in the unit. The other bedroom was occupied by Mr. Mohamed’s roommate, who was dealt with separately. The roommate interacted with police and his electronic devices were returned to him on scene.

7Officer Wong searched the bedroom associated with Mr. Mohamed starting at 6:56 a.m. A wallet with various pieces of identification for the accused were found and photographed. A cell phone beside the bed was seized, as were two additional cell phones found on a children’s desk in the same room. D.C Wong entered the walk-in closet. In that closet on a top shelf, on top of clothing, he saw a Louis Vuitton (LV) satchel. He picked it up and by its weight immediately suspected it contained a firearm. He opened the satchel and found inside a firearm, an over capacity magazine and an envelope. D.C. Moore removed the firearm from the satchel and proved it safe. The chamber was empty, and no magazine was inserted.

Additional Facts

8It is an agreed fact that the firearm meets the definition of a “prohibited firearm” as defined in section 84 of the Criminal Code. It is also agreed that the ammunition found, that is 12 cartridges of 40 Smith and Wesson, meets the definition of “ammunition” as defined in section 84 of the Code. The magazine is a detachable box cartridge magazine capable of holding more than 10 cartridges of 40 Smith and Wesson calibre ammunition and meets the definition of a “prohibited device” as defined by section 84 of the Code.

Analysis

The Legal Principles that Apply

9Section 4(3) of the Criminal Code defines possession for the purposes of the Act, as including actual, deemed and constructive possession. Section 4(3)(a) states that 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 or 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.

10In this case the Crown alleges constructive rather than actual possession. Accordingly, it must establish that the accused (i) has knowledge of the character of the object; (ii) knowingly puts or keeps the object in a particular place whether or not that place belongs to him; and (iii) intends to have the object in the particular place for his use or benefit or that of another person: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253.

11In R. v. Tyrell, 2014 ONCA 617, 123 O.R. (3d) 109, Doherty J.A. said, at para. 30:

Proof of knowledge ... 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] S.C.R. 531, at pp. 538, 541-42.

12In R v Choudhury, 2021 ONCA 560 Justice Jamal, as he then was, offers the following guidance on behalf of the Court at paragraph 19:

The relevant legal principles on constructive possession are not in dispute:

Constructive possession is established when an accused does not have physical custody of an object but knowingly has it in the actual possession or custody of another person or has it in any place for their own or another’s use or benefit: Criminal Code, s. 4(3)(a); R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17; and R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 47.

Knowledge and control are essential elements of constructive possession, which is established when the Crown proves beyond a reasonable doubt that the accused: (i) has knowledge of the character of the object said to be possessed; (ii) knowingly puts or keeps the object in a particular place, whether or not the place belongs to or is occupied by the accused; and (iii) intends to have the object in the place for the use or benefit of the accused or another person: Morelli, at paras. 15, 17; Lights, at paras. 44, 47.

Tenancy or occupancy of a place where an object is found does not create a presumption of possession: Lights, at para. 50; R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at paras. 2-3; and R. v. Bertucci (2002), 169 C.C.C. (3d) 453 (Ont. C.A.), at para. 18.

When the Crown relies largely or wholly on circumstantial evidence to establish constructive possession, a conviction can be sustained only if the accused’s knowledge and control of the impugned objects is the only reasonable inference on the facts. The trier of fact must determine whether any other proposed way of looking at the case as a whole is reasonable enough to raise a doubt about the accused’s guilt, when assessed logically and in light of human experience and common sense: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56; Lights, at para. 39; and R. v. Stennett, 2021 ONCA 258, at paras. 60-61.

This Case

13On the cell phone seized from Mr. Mohamed, there is an undated picture of him in the living room of the apartment he was found in. He is wearing a cross body LV bag very similar to the one that was found in the walk-in closet. There are also text messages from that phone filed as exhibits. They show the accused directing someone to visit him at his “crib” at apartment 820 - 600 Queens Quay. As well, among his papers there was an application for a driver’s licence in his name and listing this apartment as his residence. There was a child’s desk found in the bedroom Mr. Mohamed was occupying at the time of the search and the text messages extracted from his phone make clear that he has a child.

14On the other hand, there was an envelope found in the satchel in the closet with a fingerprint identified as belonging to a named male, not Mr. Mohamed. The satchel is a black LV bag and rather common. There is no evidence to establish that it was the same satchel found in the closet. There is no credit card or receipt associated with the satchel. There was no identification or other documentation in the satchel connecting it to Mr. Mohamed. His prints were not found on the satchel. Nor were his prints found on the firearm or the ammunition.

15Though his phones and wallet were found next to the bed he was sleeping in, that is not to be unexpected by even a mere visitor at a hotel. There were no personal effects inside any of the drawers of the bedroom nightstands, on the walls or in the apartment at large suggesting Mr. Mohamed’s permanent occupation of the room. None of his personal effects were found in the closet where the satchel was located. There are photographs of some of the clothing found in the closet but there is no nexus in the evidence between that clothing and Mr. Mohamed. There are no pictures of a child on his phone and in any event the mere presence of a child’s desk does not point to Mr. Mohamed’s residency there. There is another man living in the apartment. There is no evidence such as a lease to demonstrate Mr. Mohamed’s connection to the apartment. He was not found in possession of a key or fob facilitating access to the apartment. On this record, it could be an AirBnB with rotating guests. There is certainly no evidence that he had unobstructed access to the apartment.

16Though in his text messages he directs someone to visit him at the apartment, he instructs them to tell the concierge it’s the apartment of someone with a different name. Further, these texts were in July and August. This suggests that he had stayed at the apartment before but not necessarily that he was living there at the time of the search in November.

17For these reasons, I have a doubt as to whether or not Mr. Mohamed was in constructive possession of the firearm and ammunition and accordingly I find him not guilty.