WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Toronto Region

Date: December 18, 2012

Ontario Court of Justice

sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

Parties

Between:

Her Majesty the Queen

— AND —

K.R.C., a young person (or "young persons")

Hearing Details

Before: Justice H. Borenstein

Heard on: December 17 and 18, 2012

Reasons for Judgment released on: December 18, 2012

Counsel:

• Mr. B. Moreira for the Crown
• Mr. D. Adanja, counsel for K.R.C.

REASONS FOR JUDGMENT

BORENSTEIN J.:

Facts and Evidence

[1] K.R.C. is now 18 years old. He is charged with 11 criminal charges in relation to a loaded semi-automatic handgun found in a Tupperware container found in the closet of a bedroom he shares with his 20-year-old brother K.. Crack cocaine and a scale were found in a desk they both use.

[2] On March 11, 2012, members of the guns and gangs unit were about to execute a search warrant at Apartment A[…] Crescent. That is the apartment the accused lives in with his brother and mother. The guns and gangs unit were targeting K.R.C.. They had his photo and had obtained the search warrant.

[3] At 7:50 p.m., a team of officers set up near the accused's apartment building.

[4] One officer was making observation of people inside the apartment and broadcasting those observations to the other officers. That officer was not called as a witness. Accordingly, his observations were hearsay and will not be considered.

[5] In any event, the team of officers were advised that the accused, in the company of two others, had left the apartment and were walking along Kennedy Avenue. The officers drove up and arrested the accused and the two others at gun point. One of the others was 15-year-old M.R.. The other was a young woman named A.

[6] Upon being arrested and searched, the police took keys from the accused.

[7] Those keys opened the door to Apartment A[…] Crescent – the target apartment.

[8] The accused's bedroom is one of two bedrooms in the unit. There are two beds in that room, a desk, couch, dresser and not much else. Clothes and shoes were all over the room.

[9] In the bedroom was located usual clothing as would be worn by young men. On the floor of that closet was a large Tupperware container. On top of that container were loose clothes and bags. Inside the container, the police found a box full of children's toys. On top of those toys was a loaded high-point semi-automatic Luger handgun. This was a prohibited firearm. The magazine contained five rounds of centre point pullets in the clip ready to be fired. One was a Winchester.

[10] The desk contained two closed cupboards. In one, there were bottles of cologne and other items. There was also a silver device which, when opened, turned out to be a scale with what appeared to be cocaine residue. There was also a gold jewellery box which contained crack cocaine.

[11] In one of the drawers was another box. Inside that box was an empty box of Winchester bullets.

[12] On a dresser next to the desk, the police found the accused's Ontario health card, his expired Wexford Collegiate student identification, a transcript, as well as a West 40 gift card addressed to K.R.C.. There was identification of another male in the room as well as identification of A..

[13] It is conceded that the accused did not have a licence, firearms certificate, and that the handgun was not registered. It is plain and obvious that the firearm and ammunition were stored carelessly. It is also admitted that the accused was on a weapons prohibition from a prior youth entry for assault with a weapon.

[14] In addition to the admissions, three officers from the team who effected the arrest and the search of the room testified. Their evidence was, in essence, as described above. Fifteen-year-old M.R. testified. He confirmed that he had come from the apartment with the accused and A.. It was not his gun and he did not know whose gun it was. He testified that the accused lived in that apartment with his mother.

[15] I also heard from the accused's mother. She was the only defence witness. She testified that she lived in that apartment with the accused and her other son, K.. K. is 20 years old. She testified that her two sons essentially use everything in their room. They do not have assigned beds. They sleep on whichever bed they feel like sleeping on. They both use the dresser and the desk and the closet. They frequently have friends sleep over as well and her sons' friends leave clothing in that bedroom. She testified that likes to keep her sons and their friends close to home given the frequency of gun crimes on the street. That was an ironic comment given that a loaded prohibited firearm was found in her sons' bedroom.

[16] That was the evidence in this case.

Legal Analysis

[17] The only issue in this case is whether the Crown has proven beyond a reasonable doubt that K.R.C. was in possession of these items. If so, all of the offences are made out.

[18] In this case, the issue of possession really depends upon whether the Crown has proved beyond a reasonable doubt that the accused had knowledge of the items in his room. If he did, given that it was his room, the accused could be said to have had a measure of control over the items in his room.

[19] I have no difficulty with the general proposition that someone could be reasonably inferred to have knowledge of the presence of items in his or her room absent something in the circumstances to raise the possibility of otherwise.

[20] In this case, it is clear that two people shared that room. While others had frequent access to it, such as the friends of the boys, their frequent visits, without more, would not be a concern for me. I would not speculate that maybe they left those items there.

[21] In this case, however, we have two brothers – K. and K.R.C. – who live in that room. While both have access to everything in that room, access alone does not amount to possession. In other words, the fact that something is accessible does not mean that that person has knowledge of the item's existence. For example, if two people share a car and a gun is found in the car, that would not, without more, be sufficient to impute knowledge to both. If the gun was visible, however, then knowledge could be easily inferred.

[22] If the accused were the only one to live in that room, I would have no doubt that he was aware of the contents of a box in his own room. However, he is not the only one who lives there. It may be that it is his brother's box and that he was unaware of its contents.

[23] While two people in these circumstances might easily be in joint possession of the items, that too would depend on the Crown proving knowledge of the items in question.

[24] The Crown's case in relation to the drugs is somewhat stronger than the loaded gun. The drugs were found in a box on the shelf of a cupboard on a desk. There is deodorant on that shelf and, on the evidence of the mother, together with reasonable inferences that people who have deodorant use it daily, I infer that both sons opened that shelf daily. Therefore, they would have seen the box daily. That makes it extremely likely therefore that the accused would have known the contents of the box.

Decision

[25] In this case, while I am undoubtedly highly suspicious that the accused, K.R.C., had knowledge of the items in the room he shared with his older brother, I am not satisfied beyond a reasonable doubt. He will be found not guilty of all charges.

Released: December 18, 2012

Signed: "Justice Borenstein"