Court of Appeal for Ontario

Date: 2018-05-15 Docket: C63069 Judges: MacFarland, Watt and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Jesse Dawson Appellant

Counsel

Breana Vandebeek, for the appellant Craig Harper, for the respondent

Heard: May 14, 2018

On Appeal

On appeal from the convictions entered on September 7, 2016 and the sentence imposed on January 19, 2017 by Justice Graeme Mew of the Superior Court of Justice, sitting without a jury, with reasons for judgment reported at 2016 ONSC 5601 and reasons for sentence reported at 2017 ONSC 473.

Reasons for Decision

Overview and Issues

[1] Jesse Dawson was convicted of a number of possession offences as the result of events that occurred while he was visiting the ground-floor apartment of his friend, Alex James, which the police had under surveillance.[1]

[2] After being in the apartment for approximately two hours, Mr. Dawson exited into the hallway. When he saw police officers lurking outside the apartment, he fled back inside. Seconds later he followed a young person, D.F., out a bedroom window at the back of the apartment.

[3] Some of the items the trial judge found that Mr. Dawson possessed – a Browning semi-automatic handgun, cocaine, and a scale – were found in the snow outside of that window. Other items – marijuana and money found to be the proceeds of crime – were found in plain view in the bedroom itself, where Mr. Dawson had spent time earlier that day.

[4] There is no direct evidence as to how the gun, cocaine, and scale came to be outside. Mr. Dawson's appeal counsel concedes that the trial judge was nonetheless entitled to infer on the evidence, including the warmth of the items on the snowy ground, that these items had been inside shortly before they were discovered. However, Mr. Dawson argues that the trial judge should not have made the inference that he was the one who placed the gun, cocaine, and scale there.

[5] Mr. Dawson urges that these items reasonably could have been thrown from the window by someone else, or that D.F. could have dropped them while fleeing. Given that there is more than one reasonable inference on the evidence, Mr. Dawson contends that it was unreasonable for the trial judge to infer that he possessed the gun and cocaine.

[6] He also argues that the trial judge took improper judicial notice that the positioning of the items in the snow showed that they were dropped, not thrown.

[7] Mr. Dawson further argues that the trial judge misapprehended evidence that Mr. Dawson made a "spontaneous exculpatory" statement upon arrest, as well as evidence about whether he was wearing a black jacket when he fled.

[8] Finally, Mr. Dawson urges that his conviction for the possession of the items found in Mr. James' bedroom was unreasonable.

Analysis

A. The Reasonableness of the Gun and Cocaine Possession Convictions

[9] It was reasonable for the trial judge to infer that Mr. Dawson dropped the cocaine, gun, and scale on the snow as he fled the apartment.

[10] Mr. James testified that D.F. and Mr. Dawson were near the rear bedroom window after Mr. Dawson fled inside after he saw the police in the hallway. Mr. James placed all of the other occupants elsewhere in or near the bedroom. Mr. Dawson testified that he did not see D.F. throw anything out of the window. The trial judge was entitled to find that given the quick retreat that was occurring, no-one else had a realistic opportunity to throw items out the window.

[11] A police officer also saw D.F. exit the window. He did not testify to observing D.F. throw anything out before doing so, or to seeing him carrying anything as he exited. He said that he did not see anything being thrown out of the window after D.F. exited.

[12] D.F. was wearing a golf shirt, jeans, and no shoes, making it unlikely that the gun, cocaine, and scale that were recovered would have been secreted on his person. The police officer also testified that D.F. also began to run immediately after hitting the ground, taking no actions that would suggest he dropped anything.

[13] All of this evidence supports the inference that the items which originated in the apartment were not thrown out of the window, and were not carried by D.F. when he exited.

[14] By contrast, Mr. Dawson was wearing either a grey hoodie with a front pouch and/or a black jacket when he exited the window. He therefore had the capacity to hold the items in his clothing.

[15] Immediately after Mr. Dawson exited the window, the police officer testified that he saw Mr. Dawson crouch and then stand in the very area where the gun, cocaine, and scale were located. Although his precise actions while crouching could not be seen, Mr. Dawson's pause before running gave him the opportunity to jettison the items before running – an opportunity D.F. did not realistically have.

[16] Finally, the trial judge was entitled to find, notwithstanding Mr. Dawson's testimony to the contrary, that Mr. Dawson knew that the men in the hallway were police officers. The trial judge had evidence before him that the officers identified themselves as police officers, and that Mr. Dawson looked directly at the one officer who was in uniform.

[17] In the context of all of this evidence, Mr. Dawson's reaction to seeing the officers supported the reasonable inference that Mr. Dawson fled because he was holding the gun, cocaine, and scale when he retreated into the apartment. Put otherwise, his urgent, direct flight out the window upon seeing the officers, coupled with the discovery of items that only he had a realistic opportunity to jettison, help sustain the mutually supporting inference that Mr. Dawson fled from the police because he had the contraband with him when in the hallway.

[18] The inference that Mr. Dawson was the one who had possession of the gun and cocaine before they were left in the snow outside of the window was therefore the only reasonable conclusion open to the trial judge. The trial judge was entitled to find that the Crown proved the elements of the offence beyond a reasonable doubt.

B. The Judicial Notice Objection

[19] We do not agree that the trial judge's conclusion, at para. 85 of his reasons, that "the way the gun was resting in the snow suggested that it was placed or dropped rather than jettisoned from inside" constitutes improper judicial notice. This was nothing more than a factual inference drawn by the trial judge from the testimony of Cst. Caccia that the items appeared to have "just been dropped there" in the snow.

[20] However, we do agree that this factual inference is controversial. Cst. Caccia does not appear to have intended to communicate that he inferred that the items had been dropped as opposed to thrown, and there was arguably no objective evidence about the posture of the gun that could support an inference that it was dropped and not thrown. Nevertheless, even if this reasoning does reflect a misapprehension of the evidence by the trial judge, it has not resulted in a miscarriage of justice. The trial judge had ample bases on the other evidence available to come to the conclusion that Mr. Dawson possessed the items found outside.

C. The Exculpatory Statement

[21] We do not accept that the trial judge misapprehended the evidence about the statement Mr. Dawson made after arrest. That statement was made after Mr. Dawson was brought back into the apartment where all of the other arrested suspects were being held. He testified that he said, after learning that a gun had been discovered, "Someone fess up to your shit". Police witnesses testified that Mr. Dawson said something to the effect of, "We know there's a gun in there (or here). Someone own (or fess) up to it."

[22] This evidence was admitted pursuant to the authority of R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161. Mr. Dawson's complaint is that the trial judge dismissed the significance of this evidence in a single sentence, at para. 91 of his reasons: "Mr. Dawson's subsequent utterance about fessing up could have been either self-serving or exculpatory." He urges that the trial judge obviously did not appreciate the significance of the evidence.

[23] Clearly, the trial judge was not moved by Mr. Dawson's implicit declaration of innocence. Even assuming the more exculpatory version of the statement, the trial judge was entitled to give the statement no weight and concise treatment. The persuasive value of Edgar evidence is linked to its spontaneity, which gives support to the prospect that the denial of guilt was made with little opportunity to reflect. In the circumstances of this case, Mr. Dawson had ample opportunity to consider his situation before his words were uttered. The trial judge reasonably concluded that this was not compelling evidence of innocence, in all of the circumstances.

D. The Black Jacket

[24] Nor did the trial judge misapprehend the evidence about whether Mr. Dawson was wearing a black jacket when arrested. The trial judge was entitled to accept the testimony provided by several police officers that Mr. Dawson was not wearing a jacket at that time, and that he was given the jacket after his arrest, inside the apartment.

[25] Mr. Dawson also contends that the trial judge erred when making the black jacket finding based on the belief that the police officers who offered this testimony would not engage in serious police misconduct by conspiring to lie about what Mr. Dawson was wearing. In coming to his conclusion, the trial judge was entitled to consider the fact that several police witnesses were saying the same thing. In our view, this is all his reasons say. He was not inferring that because police officers are unlikely to lie, Mr. Dawson was wearing a black jacket. Indeed, in an earlier Charter voir dire the trial judge demonstrated that he does not consider police officers to carry unique credibility: R. v. Dawson, 2016 ONSC 3461.

E. The Reasonableness of the Proceeds and Marijuana Possession Convictions

[26] Finally, the trial judge did not err in finding that Mr. Dawson was in possession of the marijuana and the proceeds of crime that were lying in plain view on the bed in the bedroom he was in. There was clear evidence that drug trafficking was being carried on in connection with the premises, and Mr. Dawson had just spent a protracted period of time with its other occupants in the immediate presence of the marijuana and drug proceeds. While doing so, he was carrying tools of the drug trafficking trade – the gun, cocaine supply, and scales. It was reasonable for the trial judge to infer in these circumstances that the items in the room were jointly possessed by Mr. Dawson and the others present.

Conclusion

[27] We therefore dismiss Mr. Dawson's conviction and sentence appeals in their entirety.

"J. MacFarland J.A."

"David Watt J.A."

"David M. Paciocco J.A."

Footnotes

[1] Mr. Dawson was convicted of offences under ss. 91, 92, and 354 of the Criminal Code, R.S.C. 1985, c. C-46 and ss. 4(1) and 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.