R. v. Lye, 2025 ONCJ 59

ONTARIO COURT OF JUSTICE

DATE: 2025-01-30
COURT FILE No.: Central West Region 998 23 31109769

BETWEEN:
His Majesty the King
— AND —
Kadeem Lye

Before Justice J. De Filippis
Heard on November 4, 5, 6, 8, 29 & December 5, 2024
Reasons for Judgment released on January 30, 2025

Ms. C. Agateillo ................................................................................... counsel for the Crown
Ms. T. Mohamed...................................................................... counsel for the accused

De Filippis, J.:

INTRODUCTION

1In September 2023, Jaclyn Yasin visited her former intimate partner, Thomas Guerrero-Fajardo, at his apartment. At the time, the defendant also lived in this unit. During the early morning hours, the two men argued. Ms. Yasin called the police to report the defendant had threatened Mr. Guerrero-Fajardo and that she had seen a handgun in the defendant’s bedroom. The police arrived and took her out of the apartment. Several hours later, a search warrant was executed at the apartment unit. As this happened a satchel was thrown from the unit. It was found to contain a handgun and ammunition.

2The defendant and Thomas Guerrero-Fajardo were jointly charged with these offences:

1. Possession of a restricted weapon (handgun) knowing he was not the holder of a licence to do so – s. 92(2)
2. Careless Storage of a firearm (handgun) – s. 86(1)
3. Possession of a loaded prohibited firearm without authorization or licence - s. 95(1)
4. Possession of firearm while prohibited by an order under s. 109(2) - s. 117.01(1)

3One week before this trial began, the Crown withdrew all charges against Mr. Guerrero-Fajardo. He was called as a witness by the Crown. A subpoena was also issued to Ms. Yasin. In the weeks leading up to the trial, the police were unable to find her. Ms. Yasin’s father reported that she had been threatened and was afraid to testify. There is no evidence before me to confirm this threat occurred and, if so, who was responsible for it. What became clear is that Ms. Yasin was avoiding the police and failed to attend Court on the first day of trial.

4The Crown moved to have a material witness warrant issued against Ms. Yasin. After a hearing, I granted that Order. The trial commenced. During the proceedings the Crown advised that Ms. Yasin had not been found and that the police would keep looking for her until the final day of trial. Meanwhile, in the event she was not found, and to avoid delay, the Crown moved to have three hearsay statements by Ms. Yasin admitted into evidence; namely, a 911 call to the police, a statement made to police when she was removed from the apartment unit and captured by an officer’s body worn camera, and a formal statement later taken. The Defence opposed this application. After a hearing, I reserved my decision until the next, and last day, scheduled for this trial. A decision was not given because before that return date, Ms. Yasin had been located. She appeared in Court, not in custody, and testified.

5I heard from nine witnesses called by the Crown. The parties also filed an agreed statement of facts and admissions. This document makes it unnecessary to summarize the testimony of several police officers.

6These reasons explain why I find the defendant guilty of all charges.

FACTS AND ADMISSIONS

7The parties agree to the following:

1. The offences occurred on September 1, 2023, at 607-30 Hanson Road, Brampton [sic – Mississauga]. During the execution of a search warrant a loaded prohibited firearm was thrown from unit 607 landing on a daycare playground below.
2. At the time the search warrant was executed, there were two occupants in the unit, the defendant and Thomas Guerrero-Fajardo.
3. The defendant is the person named in the Information.
4. Proof of continuity of the items seized by police during the search warrant is not necessary.
5. The firearm recovered by the police [from the playground], a SCCY Industries model CPX-1 9mm semi-automatic, with a barrel length of 79mm, is a functioning prohibited firearm as per the Criminal Code.
6. This firearm was found in a white satchel that had been thrown from unit 607-30 Hanson Road.
7. This firearm was loaded when found.
8. Nine cartridges of 9mm LUGER center-fire ammunition were found in the magazine of the firearm. The cartridges are ammunition pursuant to s. 84 of the Criminal Code.
9. The defendant is not licensed to own or possess firearms.
10. The defendant did not have a registration certificate for firearms.
11. The Certificates of Analysis of and notes of Firearm Analyst Jeremy MacLeod are admitted.
12. The contents of the Affidavits of Angie Mcklusky and Angela Dawn Fenton are admitted.
13. At the time of this incident, the defendant was subject to an order under s. 109(2) of the Criminal Code prohibiting him from possessing any firearms.
14. All photographs taken during the investigation can be admitted without oral evidence [re authenticity].

EVIDENCE

8Ms. Yasin was the final witness called by the Crown because of the way this trial unfolded as described above. However, the events in question are best understood by beginning with her testimony. On the day in question, she visited Mr. Guerrero-Fajardo at his apartment. She had once lived with him in this unit before moving to Alberta and she had recently returned to Ontario. Mr. Guerrero-Fajardo picked her up in his car around 9:30 pm, purchased wine, and went to his apartment.

9The apartment is described as follows: The door opens to a kitchen on the left and a hallway on the right. Beyond the kitchen is a balcony. The first room in the hallway is a bedroom, followed by a washroom, with a second bedroom at the end.

10On arrival, Ms. Yasin saw the defendant asleep in the living room. She had met him between five and ten times, always at this apartment. She knew him as Charlie but does not know much else about him. She understood that the first bedroom in the hallway was occupied by the defendant. On prior occasions she has heard him in that room with the door shut. The bedroom at the end of the hallway was occupied by Mr. Guerrero-Fajardo.

11Soon after arriving, Ms. Yasin went to the washroom. The door to the defendant’s bedroom was open and as she walked by, she saw clothing and other personal effects and a white chair inside the room to the left of the door. On this chair she saw a gun with a black handle and silver barrel. She did not know if it was real or imitation but “it definitely stood out”. Ms. Yasin said nothing about this at the time or later when she and Mr. Guerrero-Fajardo retired to his room. She testified that, “I had been gone for years [and] I didn’t know their lives”.

12Ms. Yasin and Mr. Guerrero-Fajardo spent several hours in his bedroom “catching up”. At times they went to the balcony to smoke a cigarette. The defendant was still asleep in the living room. On one occasion she knocked over a shopping cart. This caused the defendant to awake, and he said something. She heard Mr. Guerrero-Fajardo say sorry. Later, when the Ms. Yasin and Mr. Guerrero-Fajardo returned to their bedroom, the defendant started yelling from the living room. He appeared upset with Ms. Yasin and angry with Mr. Guerrero-Fajardo for “letting her walk all over you”. They went to the living room and the argument between the two men became more heated. They were “in each other’s face” and the defendant said, “touch me, I dare you, I’ll end this right now”. Mr. Guerrero-Fajardo told Ms. Yasin to go back to the bedroom.

13Ms. Yasin went to get her bag so she could leave. She testified, “I felt unsafe, I don’t know this guy or why he is angry at Thomas about me”. Her fear was heightened by the fact she had seen a gun in the defendant’s bedroom. She was confused and upset. Once in Mr. Guerrero-Fajardo’s bedroom, Ms. Yasin spoke with her father and some friends before dialing 911. Soon after, Mr. Guerrero-Fajardo came into the bedroom and told Ms. Yasin the police had arrived and wanted to speak with her. It was after midnight. The police took her outside the unit and into the stairway. She provided a statement to them and again at the police station later that day.

14In cross-examination, Ms. Yasin was challenged about why she investigated the defendant’s bedroom. She replied that she saw the gun as she walked by the open door. She confirmed the day in question was the first time she had seen Mr. Guerrero-Fajardo since returning from Alberta. She agreed that she was drunk and can be heard slurring her words when captured on the body worn camera of one of the officers who spoke to her in the stairway. She told the officer that the black and silver gun she saw “is a little longer than what a police gun looks like”. When it was suggested that she brought the gun to the apartment, Ms. Yasin replied, “definitely not, I didn’t expect anyone to get arrested, I just wanted to get out of that apartment”. She later added that she has never owned or possessed a gun.

15Ms. Yasin agreed that nobody waived the gun or threatened her with it. She also agreed that she was not frightened when she first saw the gun. She explained that she does not find guns “scary” and “it depends on the person’s emotional state and whether they legally own it”. However, she became frightened when the defendant became loud and aggressive in arguing with Mr. Guerrero-Fajardo about her. This is why she called the police. She feared for her safety, not that of Mr. Guerrero-Fajardo as “he can handle himself”.

16Ms. Yasin denied she over-reacted because she was drunk or that her reaction to the defendant was based on “the stereotype of a black man being angry and erratic”¹. She rejected the suggestion she wanted the defendant out of the apartment so she could move back in with Mr. Guerrero-Fajardo and explained that “I was happy living with my parents on my return [from Alberta] and trying to rebuild”. When counsel asked why her testimony should be believed given that she was drunk, Ms. Yasin replied, “I have no stake in this, I have no reason to lie…it is nothing to me whatever the verdict is”.

17Mr. Guerrero-Fajardo is the registered tenant at unit 607, 30 Hanson Road. His description of the apartment accords with that given by Ms. Yasin. He confirmed that the defendant was his roommate at the time of the events in question and occupied the first bedroom in the hallway to the right of the entrance door. He testified that the defendant goes by the name Charlie and that he is a musician.

18Mr. Guerrero-Fajardo said that Ms. Yasin is his ex-girlfriend and that she was often at his apartment before the defendant moved in. He had not expected her to spend the night on the occasion in question. He and the defendant argued that night, but he does not recall why. The police arrived for a wellness check on Ms. Yasin, and she left the apartment with them. The police returned the next day with a search warrant. He and the defendant did not leave the apartment, and nobody else came inside, from the time Ms. Yasin left with the police and the execution of the search warrant later that day.

19In cross-examination, Mr. Guerrero-Fajardo testified he has known the defendant since 2019. He likes and trusts him, like a brother. The defendant is a musician and paid half the monthly rent. At times the defendant would stay with his parents or the mother of his child. Mr. Guerrero-Fajardo has never possessed any type of firearm and has never known the defendant to be in possession of one. He does not know if Ms. Yasin has ever possessed a firearm or if she brought one with her that night and placed it in the defendant’s bedroom. He has never known a guest to bring one into his apartment. Mr. Guerrero-Fajardo did not throw any type of satchel from his balcony during the execution of the search warrant, and he did not see the defendant do so.

20PC Babensee and PC Goodwin were dispatched to 30 Hanson Road in response to the 911 call. They knocked on the door of unit 607 at 3:07 am. Both testified that a black man answered. PC Babensee added that this man appeared evasive when they asked about Ms. Yasin and went back inside. Another man, who identified himself as Thomas then came to meet the officers. He was followed by Ms. Yasin. She was taken down the hall to a stairway. She was described as intoxicated, upset, but level-headed. She told them why she was fearful and that she had seen a black and silver gun. Ms. Yasin was taken to the police station and another officer remained to watch the door to the apartment.

21PC McCaig was one of the officers tasked to assist in the execution of the search warrant. He and others were briefed on the report of a firearm at 6:45 am and positioned himself on the west side of the building, relieving officers on the night shift who had been watching unit 607 while an application was made for the search warrant. At 12:43 pm, PC McCaig saw tactical officers enter the lobby of the building. Minutes later he heard yelling and knew, based on experience, that it was the police shouting in advance of entering the apartment unit. Within one minute, he saw a white bag drop from above, hit a nearby shed, bounce off, and land on the ground. A fence separated him from the shed and the bag. He did not see where the bag came from. At the same time, an elderly woman came onto the balcony of one of the units on the 6th floor. The officer asked her if she had dropped anything, and she replied that she had not. Another officer, PC Giles, was on the other side of a fence. PC McCaig told this officer to seize the bag.

22PC McCaig looked up and saw that the window to unit 607 was open. In testimony he was able to identify this unit based on photographs put to him and tendered as evidence. The officer added that no other window to any of the units on the west side were open. The officer now realized he had been focused on the wrong unit. He had been watching the one to the immediate right of apartment 607.

23PC Giles was outside the back of 30 Hanson Rd near a daycare playground associated with the apartment building. He was aware of the report of a gun in one of the apartment units. At 12:49 PM he saw a white bag on the ground. A fellow officer, PC McCaig, standing nearby on the other side of a fence told him the bag had fallen from the building. PC Giles photographed the bag before and during his search of it. He saw a gun inside. He removed the magazine, proved it safe, with a bullet coming out of the chamber. It was a loaded gun. This is the firearm referred to in the agreed facts noted above.

24PC Malabanan followed the tactical officers into the apartment in question after they announced their presence. He heard a report that something had been thrown from the building and landed near a shed in the daycare playground immediately below unit 607. The officer searched the bedroom identified by Ms. Yasin in her police statement as belonging to the defendant. In this room he found a health card with a photograph of the defendant and bearing the name Kadeem Jamal Charles Lye.

25The execution of the search warrant was assisted by the police aerial support unit. A drone was used as part of the surveillance of the west side of 30 Hanson Rd. A video record was identified by PC Malabanan and tendered in evidence. An object can be seen thrown from one of the units, bouncing off a shed, and landing on the ground nearby. Based on the drone record and floor plans for the sixth floor, also tendered in evidence, the officer identified the object as having been thrown from unit 607.

26PC Malabanan learned that the defendant is a “rapper who goes by the name Cuzzin Charlie”. He conducted an open source internet search under this name and saved a video of a man singing. This was tendered in evidence. The officer identified the singer as the defendant. The defendant can be seen singing while wearing a satchel that is identical to the one thrown from unit 607, seized by PC Giles, and containing the firearm referenced in the agreed facts noted above. The officer was shown photographs of the defendant’s bedroom at 607 – 30 Hanson Rd. He testified that the background to the rapper video appears to be the same as that depicted in the photographs of the defendant’s bedroom. In cross-examination, the officer agreed that he understands that Mr. Guerrero-Fajardo was the defendant’s music manager. The officer could not dispute the suggestion that the white satchel could belong to the manager and loaned to the musician for the purpose of making the rapper video.

SUBMISSIONS

27The Crown submits that all charges rest or fall based on finding with respect to count 3; possession of a loaded prohibited firearm without authorization or licence, contrary to s. 95(1). The Crown acknowledges that no person testified that they saw the defendant in physical possession of the firearm. As such, he can be found guilty if such an inference is the only reasonable one available from established facts. If there is any other rational conclusion to be drawn, all charges must be dismissed. Counsel urges me to find that the circumstantial evidence proves the defendant is guilty of the charges and that the suggestion of third-party possession must be rejected as entirely speculative.

28The Crown argues that Ms. Yasin had no motive to falsely implicate the defendant. Indeed, she was a reluctant witness who appeared in court after a material witness warrant was issued compelling her attendance. The reliability of her testimony is reflected by its internal consistency and confirmation by external evidence. The firearm that was seized matches the description of the one she reported seeing in the defendant’s bedroom. The rapper video depicts the defendant wearing a white satchel while performing in what appears to be the bedroom in which Ms. Yasin saw the firearm. Counsel adds that there is no merit to the suggestion Ms. Yasin is tainted by stereotypical views of black men or by the desire to protect Mr. Guerrero-Fajardo and resume living with him.

29The Defence emphasizes that this is a circumstantial case because there is no evidence showing the defendant in actual possession of the firearm or depicting who threw the white satchel out of the unit. In these circumstances, there is no proof of knowledge and control by the defendant and there are other reasonable inferences available. Counsel added that mere presence in a shared place where a gun is found does not establish constructive possession.

30The Defence cautions that there is no proof that the satchel in which the firearm was found is the same as the one worn by the defendant as depicted in the rapper video. In any event, it is argued that the satchel could have belonged to Mr. Guerrero-Fajardo as he was the defendant’s music manager and that this is the person who could have placed the gun in the satchel and thrown it out of the unit. In this regard, the gun could have belonged to Mr. Guerrero-Fajardo or brought into the unit by Ms. Yasin. As such, Mr. Guerrero-Fajardo could have thrown it out of the unit to protect himself or his former intimate partner.

31The Defence concluded by noting that it is not my role to figure out what happened but to decide if the Crown has proven guilt beyond a reasonable doubt. In this case there is room for doubt and the charges should be dismissed.

ANALYSIS

32The Crown carries the burden of proving guilt beyond a reasonable doubt. This means that probable guilt is not the criminal law standard of proof – it is closer to certainty. A reasonable doubt is a doubt based on reason and common sense which must be logically based on the evidence or lack of evidence: R v Villaroman, 2016 SCC 33. In applying this standard, I can accept some part, or none of what a witness says. The testimony of a witness is assessed based on the person’s sincerity and accuracy.

33I agree that all charges rest or fall on my finding with respect to possession of the firearm. It is conceded that the defendant was not the holder of an authorization or licence to possess the firearm and that he was bound by a court order not to do so. There is also no question that the offence of careless storage is made out if a person places a firearm on a chair or throws it onto a playground.

34Section 4(3) of the Criminal Code provides that a person may be in possession of an item in several different ways. The caselaw is well established. A person may be in possession by actual physical control of the item. A person who knowingly has something in the actual possession or custody of somebody else, or in some place for the use or benefit of him/herself or somebody else, has that thing in their possession, provided they have some control over that thing. Knowingly means awareness of the possession or custody of the thing by another, or in another place. Several persons may have possession of an item at the same time. Where any one of two or more persons, with the knowledge and agreement of the others, has anything in their possession or custody, all of them are in possession of that item, provided each has some control over the thing. Knowledge, agreement, and some control by the others who are not in actual possession of the item is essential. Mere indifference or doing nothing is not enough.

35These facts are not in dispute: A white satchel was thrown from 30 Hanson Rd as the police began executing a search warrant at unit 607 of that building. The satchel landed in a daycare playground and was immediately seized by police. The satchel contained a loaded prohibited firearm, namely, a SCCY Industries model CPX-1 9mm semi-automatic, with a barrel length of 79mm. Nine cartridges of 9mm LUGER center-fire ammunition were found in the magazine of the firearm. At the time the satchel was thrown, there were only two occupants in unit 607, the defendant and Mr. Guerrero-Fajardo. That the satchel containing the firearm was thrown from unit 607 is also not in dispute. In any event, the evidence given by PC Malabanan with respect to the drone footage and the building floor plans means there can be no doubt about this. In this regard, the credibility and reliability of PC Malabanan, like that of the other police officers, is not an issue at this trial.

36I agree with the Crown that I can be confident in the evidence of Ms. Yasin. The events leading to this trial began when she called the police because the defendant caused her to be fearful. Having been safely escorted out of the premises, she later tried to avoid her obligation to testify. When compelled to come to Court, she impressed me by her desire to be truthful and accurate in testimony. Ms. Yasin did not argue with counsel, evade questions, or embellish. She has no skin in the game. Her description of the firearm matches that found by the police. The challenges to her testimony fail. There is nothing to support the suggestion she acted on a “stereotype about angry black men”, or that she brought that gun into the apartment, or that she falsely implicated the defendant so she could resume living with Mr. Guerrero-Fajardo. Crown counsel correctly points out that these suggestions are entirely speculative. Moreover, they do not make sense in the circumstances. For Ms. Yasin to bring the gun into the unit would expose her former intimate partner to the accusation that he was guilty. Indeed, he was originally charged with several offences and the accusation forms part of the Defence submission in this case. Similarly, there is no merit to the apparently alternate Defence submission that the gun belonged to Mr. Guerrero-Fajardo and Ms. Yasin is lying to protect him. This assumes she is also lying about the presence of the gun in the defendant’s bedroom. If the gun had been in the possession of Mr. Guerrero-Fajardo, why would she be frightened of the defendant when the argument began? Why call the police? In addition to these observations, the challenges to Ms. Yasin ignore other compelling evidence.

37The video of “Cuzzin Charlie” shows a man singing while wearing a white satchel. The room in which this performance takes place appears to be the same as the bedroom that Ms. Yasin and Mr. Guerrero-Fajardo identified as belonging to the defendant. Police later found the defendant’s health card in this room. Both witnesses confirmed the accuracy of photographs of that bedroom. I find that it is the same one as depicted in the rapper video. There is also no doubt that the rapper in the video is the defendant. The performance took place in his bedroom. Moreover, the testimony by PC Malabanan that the rapper in the video and the defendant before me is one and the same is in accord with my own observation.

38I am persuaded by the evidence given by Ms. Yasin. That she was intoxicated when the police arrived to escort her out of the apartment several hours later does not concern me. It does not follow that she was in this state when she saw the gun or that it affected her memory of events afterwards. Moreover, I am not troubled by the testimony of Mr. Guerrero-Fajardo or his potential guilt.

39The white satchel was thrown out a window of the apartment by either the defendant or Mr. Guerrero-Fajardo. Although Mr. Guerrero-Fajardo confirmed in cross-examination that he never saw a gun in the apartment, he was never asked about the white satchel or how it is that it came to be thrown outside. In any event, Mr. Guerrero-Fajardo lied to me when he said he did not know about the gun and has never seen one in the possession of the defendant. Ms. Yasin saw it in plain view as she walked past the defendant’s bedroom. It is inconceivable that Mr. Guerrero-Fajardo did not also see it, either then or before the arrival of Ms. Yasin. His testimony betrays a concern that his knowledge that the defendant had a firearm in a place in which he is the leaseholder means he could be jointly guilty of three of the four charges². None of this affects my conclusion about the defendant’s guilt.

40Proof of possession does not require proof of ownership. That said, I find the Crown has established these facts beyond a reasonable doubt: The defendant owned and possessed the firearm. It was on a chair in his bedroom when Ms. Yasin visited. The satchel in which the firearm was later found is the same one worn by the defendant as depicted in the rapper video. The firearm was put into that satchel and thrown out of the apartment into the playground below when the police announced their presence to execute a search warrant.

41The defendant has been proven to be guilty of the four charges.

Footnotes

1. 1The defendant is a black man.
2. 2There is no suggestion that Mr. Guerrero-Fajardo was bound by an Order not to possess firearms.