Court File and Parties

COURT FILE NO.: CR-15-10000288-0000 DATE: 20160907

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ALEX JAMES and JESSE DAWSON

Counsel: Emile Carrington, for the Crown David Burke and Lilit Izakelian, for Alex James Mary Cremer, for Jesse Dawson

HEARD at Toronto: 9, 13, 16, 18, 19, 20, 24, 25 May; 20, 22, 23 June 2016

Before: Mew J.

[1] On 13 March 2014 Alex James and Jesse Dawson were among five people arrested on drugs and firearms charges at a ground floor apartment located at 4001 Steeles Avenue West, Toronto.

[2] The apartment was the residence of Mr. James, his mother and sister.

[3] In Alex James’ bedroom, cash, marijuana and drug-related paraphernalia were found. So was a loaded FN Browning handgun, which was located inside a snowboard bag.

[4] Outside the apartment, lying in the snow nearby, police found cocaine, and electric scale and another FN Browning handgun.

[5] Mr. James and Mr. Dawson, both of whom testified, say they had no knowledge of the weapons or the drugs that were found. They acknowledge that some joints of marijuana were shared by the five before the police arrived, but claim that is the extent of any drug-related activities on their part.

Background Facts

[6] In March 2013, the Toronto Police were investigating a shooting that had occurred at York University on 6 March.

[7] Kemon Edwards had become a person of interest in that investigation.

[8] The police knew that, pursuant to the terms of a recognisance, Mr. Edwards was required to reside at the apartment. Alex James had stood as a surety for Mr. Edwards.

[9] The police already had the James apartment under surveillance when, on the afternoon of 13 March 2014, Mr. Edwards was arrested nearby. A search of a Driftwood Avenue apartment associated with Edwards was conducted as soon as he was arrested; no weapon was found there that would link him to the York University shooting. Investigators believed that such evidence might be found in the James apartment. So surveillance of the apartment was maintained while police waited for a search warrant to be issued.

[10] Seven officers (six in plainclothes and one in uniform) were positioned in the common areas of 4001 Steeles Avenue West observing the front door of Unit 106 as well as an eighth officer, uniformed and in a patrol car, parked outside with a view of the rear of the apartment.

[11] The police did not know who, if anyone, was in the James apartment. However, the officers had been instructed to detain anyone exiting the unit in order to prevent the destruction or removal of evidence that might be located in the unit.

[12] At approximately 5:02 p.m. Jesse Dawson, exited apartment 106 and walked in the direction of a door to a stairwell, behind which three officers were observing. Mr. Dawson, apparently coincident with seeing one or more of the individuals standing behind the stairwell door, abruptly turned round and went back to the apartment, the door of which was closed behind him.

[13] Officers then followed Mr. Dawson and, using a key that had already been obtained from the building’s superintendent, opened the door to the apartment.

[14] A number of the officers who followed Mr. Dawson into the apartment described, upon doing so, hearing a commotion coming from the other side of a closed door at the end of a hallway in the apartment. After commands were given by the police, this door, which led to Mr. James’ bedroom, was opened. Three people inside the bedroom, including Mr. James, immediately surrendered.

[15] Mr. Dawson and another individual, DF, had exited the bedroom through a window. They were apprehended by officers at the back of the apartment as they attempted to flee.

[16] A loaded semi-automatic handgun, a digital scale and a quantity of what was subsequently confirmed as cocaine was found lying on the snow not far from the window that had been used by the individuals who left the apartment.

[17] Later on a search warrant was executed inside the apartment.

[18] During the course of the trial I ordered that certain evidence seized when the warrant was executed should be excluded: R. v James, 2016 ONSC 4086. However, admissible evidence found in Mr. James’ bedroom included a health card belonging to Alex James, two bags containing a total of 12.84 grams of dried marijuana, three electronic scales, $875 cash in Canadian currency, seven mobile phones and the other FN Browning handgun. A marijuana grinder was in the bedroom. Also found in the snowboard bag was correspondence and court documents addressed to Mr. James, a handwritten receipt issued to Mr. James, some printed till receipts and plastic wrapping.

[19] Mr. Dawson was charged with offences related to possession of the handgun found in the snow and possession of cocaine for the purposes of trafficking.

[20] Mr. James was charged with offences related to possession of the handgun found in the snowboard bag (a charge with relation to the possession of heroin for the purposes of trafficking was withdrawn following my evidentiary ruling).

[21] Both of the defendants are charged with possession of the proceeds of crime (the Canadian currency) and simple possession of marijuana (downgraded from an original charge of possession for the purposes of trafficking).

[22] Neither of the individuals charged had criminal records at the time of their arrest. Neither of them were persons of interest in the York University shooting investigation.

[23] No forensic evidence (DNA, fingerprints) was tendered linking either Mr. James or Mr. Dawson to the guns or drugs that were seized.

[24] Messrs. James and Dawson each admit that they did not hold a licence to possess a firearm or a registration certificate for a firearm.

Alex James

[25] Mr. James is 25 years old and employed as a drywaller.

[26] On the day of the arrests Mr. James was on bail for other charges that were subsequently withdrawn. He had awoken early and had called his employer to say he would not be coming in that day. Later he had received a text from CPL, a friend, who agreed to come over (Mr. James’ bail conditions placed restrictions on his ability to go out). CPL arrived with another friend, Dominic Bernard. According to Mr. James, the three of them played video games in his bedroom.

[27] At some point Mr. Bernard asked if he could borrow Mr. James’ car. He did not say why he wanted to borrow it. Mr. James agreed, explaining that if “you were under house arrest you’d do a favour to someone who came to see you”.

[28] While Bernard was gone, DF came to the James apartment. Mr. James described him as a friend of CPL’s. DF produced a marijuana spliff which was shared around.

[29] When Bernard returned, Mr. Dawson was with him. Mr. James had known Mr. Dawson for around 10 years. They would socialise together every couple of months.

Jesse Dawson

[30] Mr. Dawson is also 25 years old. He was not employed at the time of his arrest but was generating income of between $300-$500 per month from a vending machine that he part owns. He has some post-secondary education and had enrolled at summer school at George Brown College to start in May 2014. He has a six-year-old daughter who lives with the child’s mother.

[31] Mr. Dawson testified that he had spent part of the day visiting Kemon Edwards who he described as a friend who he had known for about two years that that time. He had responded to an invitation from Edwards to go to the Driftwood Avenue apartment (which was Mr. Edwards’ mother’s residence) and had spent some time there chatting. He had left the Driftwood Avenue apartment by taxi and gone to Yorkgate Mall. There he had spoken by phone to Bernard, who he had known for eight to ten years. Mr. Dawson is not sure who called who, but he asked Bernard if he wanted to smoke a joint. Bernard said yes and that he was close by and would pick Mr. Dawson up.

[32] Mr. Dawson says that a few minutes later, he was picked up by Bernard who was driving Mr. James’ vehicle. They went from the mall directly to the James apartment.

Before the Arrests

[33] There are some variations in the evidence about who was where, when and with whom in the hours leading up to the arrests of Messrs. James and Dawson and the three other individuals who was at the James apartment at the time.

[34] Officers keeping watch outside the James apartment building saw a Mazda with two men in it leave the apartment parking lot. Officers keeping watch outside the Driftwood Avenue apartment saw the same vehicle arrive a few minutes later. A man, identified as Mr Dawson by Detective Paul Dominey, got out and went inside. Mr Dawson is said to have returned a few minutes later. The vehicle then went back to 4001 Steeles Avenue West.

[35] Whether Mr Dawson went to and returned from Driftwood Avenue in the Mazda, or whether he was simply picked up from the Mall by Bernard, there appears to be common ground that Bernard and Mr Dawson arrived at 4001 Steeles Avenue West in the Mazda.

[36] According to Mr. James, once Bernard had returned to the apartment with Mr Dawson, the five individuals remained there until Mr Dawson said he had to leave. Members of the group were playing video games and smoking marijuana. Other than going to the door, Mr. James was in his room while the other males were present. He was sat on his bed with his back to the wall. He says his focus was on the TV, but acknowledged that where he was located offered the best vantage point, provided he was paying attention to what was going on in the room.

[37] Mr Dawson, on the other hand, suggested that DF came to the apartment after Mr Dawson’s arrival. Smoking of marijuana continued.

[38] Both Mr James and Mr Dawson deny the presence of bags of marijuana. The marijuana being consumed came in the form of individual spliffs or blunts supplied by Bernard and DF.

[39] At some point, according to Mr Dawson, Bernard left the bedroom. He was gone for about five minutes. Mr Dawson does not know why he left or whether he grabbed any clothing or took anything with him.

[40] The evidence of Detective Constable Nittin Sehdev, while conducting surveillance outside 4001 Steeles Avenue West, is consistent with Bernard having made a further excursion from the bedroom. He saw the man who he had previously observed driving the Mazda come back out of the apartment and approach a Toyota Camry. The individual got into the Camry which then drove to another part of the parking lot. D.C. Sehdev then saw that individual (presumably Bernard), together with the driver of the Camry, walking past the officer’s car and going back into the apartment building.

Mr. Dawson Departs?

[41] Mr Dawson claims that he received a phone call from his mother who said she was not feeling well and that he should come home. He called for a taxi. He said goodbye to everyone. He walked to the front door. He put on his shoes. He claims that for the entire time he was at the James apartment he was wearing a black leather jacket over his grey tracksuit. He says that Bernard walked him to the door.

[42] Mr James, on the other hand, while agreeing that Mr Dawson said that he had to leave, says that it was he who escorted Mr Dawson to the door. He locked the door behind Mr Dawson.

[43] As Mr Dawson stepped out into the hallway, he says that he looked to the left and saw two people standing “suspiciously” in the middle of the hallway, 15 to 20 m away from him. He looked the other way and could see four (he subsequently said at least two to three) people staring at him from behind a stairwell door.

[44] Mr Dawson says that he was scared, even “paranoid”. He did not know who these people were. He denies that he realised they were police officers (he said that if he had known they were officers, he would not have retreated to the James apartment). He says that he did not walk towards the staircase. He says he did not have a key for the James apartment. He turned around and knocked on the door saying “open the effing door”. He claims that he did not hear any of the police officers saying anything.

[45] Mr. Dawson says that Bernard opened the door, let him in then closed the door. He went back to the bedroom. He cannot recall whether the bedroom door was open or closed. When he got there he saw that DF was already at the window, getting out.

[46] Mr. James said that as he turned round, having seen Mr. Dawson out, he heard a banging on the door. He assumed Mr Dawson had forgotten something. He opened the door again. Mr Dawson “breezed” passed him in a panic state and went to the bedroom.

[47] Mr. James says that he again locked the front door and followed Mr. Dawson through to the bedroom. He claims that he walked to the bedroom casually. When he opened the bedroom door to go inside, the room was “in chaos”. Clothes were everywhere. People were moving around. There were people at the window. Mr. James closed the bedroom door.

[48] Mr. James claims that he did not know what was going on. He then heard “Toronto Police” called out a couple of times, followed by “come out with your hands up”. Mr. James said that he turned around. He opened the door. He said he was terrified. He raised his hands. He went down to the ground very quickly. He could see that Mr. Dawson was near the window area. DF was near him. CP was near the bed. Bernard was to Mr. James’s left, near the door.

[49] The police officers positioned outside the James apartment tell a somewhat different story. It is not disputed that there were four officers, three of them in plain clothes, positioned behind a stairwell door at the time that Mr. Dawson emerged from the James apartment. At the same time, there were three more officers located at the other end of the hallway.

[50] The accounts given by the officers are not identical in every detail. All saw, or very quickly became aware of, Mr. Dawson leaving the James apartment and walking towards the stairwell door. D.C David Caccia and P.C. Christofer Lemieux were two of the officers located behind the stairwell door. Officer Lemieux was in uniform. Officer Caccia was in plain clothes. They observed Mr. Dawson’s emergence from the James apartment through a window in the stairwell door. According to Officer Caccia, as Mr. Dawson walked towards the officers’ location, Mr Dawson’s eyes met with his. He then appeared to notice PC Lemieux. Mr. Dawson’s eyes went wide. He stopped abruptly. He turned round, went back to the apartment, opened the door and shut it behind him.

[51] Some, but not all, of the officers say that Mr Dawson used the key to get back into the apartment. DC Caccia says that he called out “Toronto Police. Stop”. Officer Caccia also testified that Mr Dawson appeared to be holding the front of his grey sweatshirt. P.C. Lemieux, in pursuit of Mr. Dawson, claims that he calmly said to him “come here, I want to speak to you”.

[52] All but one of the officers described Mr. Dawson as wearing grey sweat suit attire immediately before and at the time of arrest. The exception was Detective Constable Palvinder Randhawa. At the preliminary inquiry, although he initially testified that Mr. Dawson was wearing a grey hooded sweater, when pressed in the course of cross-examination and referred to his notes, which indicated “Male also wearing a jacket”, he said that Mr. Dawson was wearing a black jacket when he was arrested. At trial he said that at the time of arrest, Mr. Dawson was wearing a grey hoodie and grey track pants, but not a black jacket. He also recanted his testimony at the preliminary inquiry that, after arresting Mr. Dawson, he found keys and a cellphone in Mr. Dawson’s left jacket pocket and $20 in his right jacket pocket. Asked to explain these discrepancies, D.C. Randhawa said his notes and preliminary inquiry testimony were mistaken. He blamed tiredness and the fact that the notes were written up at the end of a long day. He denied that he changed his story after speaking with his colleagues.

[53] Whether they were in his grey hoodie, or a black jacket pocket, Mr Dawson did have a set of keys on him which were retrieved by D.C. Randhawa. The keys found on Mr Dawson were not tested for a match with the lock on the front door of the James apartment. Indeed, the set of keys found on Mr Dawson was not retained by the police and the keys were returned to him.

The Arrests

[54] I will say more about the particular circumstances surrounding the arrests of Mr James and Mr Dawson in due course. At this juncture, suffice it to record that, of the five males arrested, three (including Mr James) were arrested in Mr James’ bedroom, and two (including Mr Dawson) were arrested outside the apartment building as they attempted to flee.

[55] All five individuals were brought back to the living/dining room area of the James apartment. Based upon what had been found out in the snow, each of the five individuals were informed that they were under arrest for possession of a firearm and trafficking in cocaine. They were taken, one at a time, by Officers Haljaste and Gini, to Mr James’ bedroom to retrieve their outdoor clothing, prior to being transported to the 31 Division police station.

[56] During the course of the retrieval of outdoor clothing, a small plastic bag containing crack cocaine was found in DF’s jacket.

Issues

[57] The law relating to possession is central to the determination of whether the Crown has proved the charges against the defendants beyond a reasonable doubt. That guns, drugs and money were found at the apartment (and immediately outside) is not disputed. But does the evidence demonstrate the defendants’ knowledge and control, and hence possession, in relation to the guns and the drugs?

[58] The credibility of the evidence of Messrs. James and Dawson, applying the framework set out in R. v. W. (D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), necessarily also forms part of the analysis.

The Law Relating to Possession

[59] The starting point is section 4(3) of the Criminal Code, R.S.C. 1985, c. C-46, which provides:

(3) Possession

For the purposes of this Act,

(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.

[60] In R. v. Pham (2005), 203 C.C.C. (3d) 326 (ON CA), affd. 2006 SCC 26, [2006] 1 S.C.R. 940, Kozak J. ( ad hoc ) explained these provisions and their operation at paras 14-18. In summary:

a. There are three types of possession:

i. personal possession as outlined in section 4(3)(a);

ii. constructive possession as set out in section 4(3)(a)(i) and section 4(3)(a)(ii); and

iii. joint possession as defined in section 4(3)(b).

b. Constructive possession requires knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed.

c. Joint possession requires knowledge, consent, and a measure of control on the part of the person deemed to be in possession.

d. To establish knowledge, it is not essential that there be direct evidence of the accused’s knowledge of the presence of the subject matter of the charge. Knowledge may, as with any other issue of fact in a criminal proceeding, be established by circumstantial evidence.

e. The onus is on the Crown to prove beyond a reasonable doubt all of the essential elements of the offence of possession.

[61] In R. v. Sparling, [1988] O.J. No. 107 (Ont. H.C.) at p.6 (quoted in Pham at para. 17), Watt J. observed, in a possession case involving narcotics:

In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of the scale in a bedroom apparently occupied by the applicant, and; the applicants [sic] apparent occupation of the premises may serve to found an inference of the requisite knowledge.

[62] The Court of Appeal in Pham also quotes (at para. 18) Martin J.A. in Re: Chambers and The Queen (1985), 20 C.C.C. (3d) 440 (ON CA) at p. 448, that the court may draw “appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug”.

[63] As to the meaning of “control”, the Court of Appeal in R. v. Savory, [1996] O.J. No. 3811 (C.A.) at para. 7 stated:

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), 55 C.C.C. (2d) 183 (Ont. C.A.), affd. (1983), R. v. Terrence (1983), 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), 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.

The Gun and Cocaine in the Snow

[64] The police had anticipated the possibility that the back of the apartment might be used as an escape route. Mr. Dawson and DF were intercepted as they ran away from the window that they had climbed through to exit the apartment. DF came out first, followed by Mr. Dawson

[65] The handgun, two baggies containing cocaine and an electronic scale were discovered, lying in the snow a few feet away from the exit window, shortly after arrest of Mr. Dawson and DF.

[66] No one saw how these items ended up in the snow: were they thrown from the window or dropped? And by whom?

[67] There is no doubt that Mr. Dawson was in flight at the time of his arrest. He says that when he encountered the police as he left the apartment, he was leaving to go home, having spent some time “chilling” with the others in Mr. James’ bedroom at the apartment. He says he was wearing a black leather jacket over a grey track suit. He had called a taxi to take him home.

[68] As I have already noted, Mr. Dawson claims that when he left the apartment he could see two people “suspiciously” standing in the hallway 15-20 metres away from him. He looked the other way and could see four people staring at him from behind a door with a glass panel window in it. He says he was scared, not knowing who these people were. He turned around and knocked on the door of the apartment he had just left saying “open the effing door”. He claims that one of the others – Dominic Bernard – opened the door, let him back in and closed the door behind him.

[69] According to Mr. Dawson, he heard a commotion near to the front door. It sounded like people were trying to get into the apartment. He claims that he did not know who these people were and that did not hear any shouts of “police” coming from the other side of the front door. His intention was to get out of the apartment. He did not have time to tell Mr. Bernard (who he says opened the apartment door to permit him to re-enter it) what was going on. He barged in and ran. He went through to the bedroom where he initially saw DF, who was by the window> DF climbed through the open window. Mr. Dawson followed between two to five seconds behind. He says he climbed through the window, landed on the ground, and immediately ran.

[70] Mr Dawson says that he could not tell if DF was carrying anything. He did not see DF throw anything out of the window. Mr. Dawson denies that he was carrying any drugs or a gun. After going through the window he saw a field and DF running ahead of him. He did not see a gun or drugs on the ground at that time. Then he saw someone running towards him with a gun drawn, who shouted “freeze” and announced he was a police officer. Mr. Dawson immediately went to ground and surrendered.

[71] P.C. Philip Sinclair was a uniformed officer who had been posted at the back of the Steeles Avenue West apartment building. He observed DF climbing out of one of the James apartment’s windows. He saw DF turn to the right after going through the window and start to run. He then saw Mr. Dawson coming out of the same window. He observed Mr. Dawson drop to the ground and crouch for a couple of seconds by the patio. He says that Mr. Dawson then got up and started running in the same direction as DF.

[72] Officers Sinclair, Sehdev, Little, Randhawa and Caccia were involved in the arrests of DF and Mr. Dawson at the back of the apartment building. D.C. Caccia was rounding the outside northeast corner of 4001 Steels Avenue when he saw Mr. Dawson, who he recognised as the individual he had just seen in the hallway, standing near a wooden fence located near the open window at the back of Apartment 106. He says that Mr. Dawson then started jogging in a southeasterly direction.

[73] After the arrests, D.C. Caccia went over to the fence that he had first seen Mr. Dawson near and observed an open window near to it, through which he saw D.C. Haljaste who was inside with other officers who had secured the unit. D.C. Caccia then saw on the ground outside a clear plastic bag with what appeared to be crack cocaine, a black semiautomatic handgun and a digital scale. Nearby, was the back of the scale and a battery. The area was not heavily travelled by foot prints. There was snow on the ground. The items had broken the surface of the snow and appeared to be warmer than other objects; as snow had touched the frame of the gun and the scale it appeared to have melted somewhat. From this, D.C. Caccia concluded that the items had recently been dropped. He confirmed that the place was where he had seen Mr. Dawson standing near the fence

[74] Whereas the other four individuals were not wearing outdoor clothing at the time they were arrested, Mr. Dawson claims that he was. In particular, he points to video evidence of his arrival at 31 Division wearing the black jacket which he says he had on both at the time he initially emerged from front door of the James apartment and at the time of his arrest. It is argued that the video evidence shows his arms through the sleeves of the black jacket. This would be inconsistent with the evidence of the police witnesses who say that all of the arrested individuals, including Mr. Dawson, were handcuffed before their outdoor clothing was retrieved and, hence, their arms would not have been through the sleeves of their jackets.

[75] I have examined the available video evidence very carefully and at length. In my view, it is not conclusive. Unfortunately there is no recording of Mr. Dawson being paraded before the duty sergeant which might have shown more clearly whether his arms were through the sleeves of his jacket or not.

[76] After the five individuals were told they were being charged with possession of a weapon and trafficking in cocaine, the police witnesses say that Mr Dawson said words to the effect of “We know there’s a gun in there (or here). Someone own (or fess) up to it”. Mr. Dawson, on the other hand, while acknowledging that he said something, claims that his words were “Someone fess up to your shit”.

[77] The Crown’s theory of the charges against Mr. Dawson relating to the firearm and the cocaine found in the snow is as follows:

a. Mr. Dawson left his apartment without a black jacket. This was because he was not going home but was going out to do a drug deal.

b. He had a gun and crack cocaine in the pocket of his hooded sweatshirt.

c. When he went out into the hallway, he knew that the people he saw there were police officers.

d. When he turned to run back to the James apartment, he held the front of his hooded sweatshirt as he ran to prevent the gun and the drugs from falling out.

e. He let himself back into the apartment with a key.

f. If he had not had anything on him, he would not have needed to run.

g. By the time Mr. Dawson reached the door of the apartment the police were yelling and announcing their presence.

h. DF would have been tipped off, if not by Mr. Dawson, then by hearing the yells of “police”.

i. DF and Mr. Dawson both fled from the apartment building in the clothes they were wearing at the time. DF was wearing a golf shirt and jeans with no shoes. Mr. Dawson was wearing a grey hoodie

j. DF had good cause to flee because he would have known that there was crack cocaine in his jacket.

k. Although no witness saw anything being thrown, Mr. Dawson crouched for a couple of seconds after climbing out of the apartment window enabling him to place the gun and cocaine in the snow.

[78] The Crown accepts that Mr. Dawson took flight because he was scared. But he was scared not of the presence of some threatening strangers outside the apartment but, rather, because he knew those individuals were police officers and he knew that he was involved in criminal activity.

[79] In the Crown’s submission, the evidence, albeit largely circumstantial, more than amply demonstrates that Mr. Dawson had possession and control of the firearm and the drugs found out in the snow.

[80] Although there are minor discrepancies in the accounts given by the police witnesses as to exact positioning, time intervals and other details (for example whether Mr. Dawson used a key to get back into the James apartment), I have no doubt that Mr. Dawson knew that the individuals he saw outside the apartment were police officers and that he retreated to the apartment because he and the other individuals were engaged in criminal activity.

[81] Mr. Dawson pointed to the possibilities that the drugs, gun and scale were either thrown through the window from inside the apartment or dropped by DF as he fled.

[82] Something or someone – most likely Mr. Dawson himself – must have alerted the others that the police were outside. There was a mad scramble lasting a matter of seconds. Someone got the window at the back of Mr. James’ bedroom open (although it may already have been at least partially open to ventilate the smell of marijuana smoke before the anticipated return home of Mr. James’ mother) and DF went through it, closely followed by Mr. Dawson.

[83] No one testified to having seen objects thrown through the window, carried by DF or dropped by him. Nor were the actions of DF that were observed by P.C. Sinclair consistent with him having dropped the objects or placed them on the ground.

[84] From a practical standpoint DF, wearing only a golf shirt and jeans, who was observed coming through the window and immediately sprinting away from it, would have had difficulty concealing the weapon and the drugs and the scale as he emerged from the James apartment. If he had the weapon and drugs, he would have to have been carrying them as he came out of the apartment. Yet the officers who observed DF and Mr. Dawson coming out of or running away from the apartment, in particular P.C. Sinclair, did not see DF carrying, throwing or dropping any objects as he emerged and ran. Nor was he observed to stop or pause after he came through the window.

[85] The gun had not been in the snow for long when the police found it. I find that the way the gun was resting in the snow suggested that it was placed or dropped rather than jettisoned from inside.

[86] The time that would have elapsed between Mr. Dawson’s retreat from the officers in the hallway, his escape through the window immediately following DF and the entry of the officers into Mr. James’ bedroom, would have afforded scant opportunity for the weapon and drugs to have been placed or dropped in the snow by anyone other than Mr. Dawson or DF, and for the reasons already given, I do not believe that it could have been or was DF.

[87] It does not necessarily follow that because I conclude that the evidence does not support the conclusion that DF dropped or placed the objects in the snow, it is dispositive of Mr. Dawson’s guilt.

[88] However, according to P.C. Sinclair, Mr. Dawson crouched down for a couple of seconds after coming out of the window before starting to run. And as D.C. Caccia rounded the northeast corner of the building, he says that Mr. Dawson was standing near the place where the gun, cocaine and scale was located, from which point Mr. Dawson then ran in a southeasterly direction before surrendering.

[89] I perceive no discrepancies between the officers: Mr. Dawson would have stood up after crouching and before starting to run. The gun, cocaine and scale were found close to the place where Mr. Dawson was seen standing by D.C. Caccia and crouching by P.C. Sinclair.

[90] I find that the only rational inference to draw from these facts is that the gun and the drugs were placed or dropped outside on the snow by Mr. Dawson before he started to run away from the building.

[91] Mr. Dawson’s subsequent utterance about fessing up could have been either self-serving or exculpatory.

[92] I should add that any variation in the evidence of police witnesses about something as potentially significant in the circumstances of a case as the issue of whether or not Mr. Dawson was wearing an outdoor jacket is obviously a matter of concern. However I accept the explanation by D.C. Randhawa that his notes and the evidence he gave at the preliminary inquiry were mistaken to the extent that they had Mr. Dawson wearing his black jacket at the time of his arrest.

[93] Furthermore, if D.C. Randhawa’s earlier evidence on the issue of whether Mr. Dawson was wearing a jacket or not is correct, it would mean that all of the other officers who gave contrary testimony are wrong, or worse. Absent serious police misconduct, that would seem highly improbable. I do not accept that such misconduct has occurred in this case.

[94] In evaluating the evidence and in particularly the contest between the credibility of Mr. Dawson, on the one hand, and the prosecution’s witnesses on the other, I have, as I must, followed the direction provided by the Supreme Court of Canada in R v W.(D.), [1991] 1 S.C.R. 742.

[95] There is much in Mr. Dawson’s background that is commendable. At the time he was arrested he had no criminal record. He is well educated. He has undertaken significant and important voluntary work in his community. But these positive attributes notwithstanding, I reiterate that I do not believe his evidence that he did not realise that there were police officers outside the apartment. He ran from the officers because he was involved in criminal activity at the time. He did not want to be stopped and searched by the officers. He needed to alert his confederates that the police were outside. And, as he himself said, he needed to get out of the apartment. Not, though, as he says, because of the commotion of the officers outside the apartment door, but because of the serious consequences if he was detained at that time.

[96] Nor do I believe Mr. Dawson’s assertion that he did not at any time have the gun or the drugs on him.

[97] On the basis of the evidence that I do accept, I am driven firmly and confidently to the conclusion that Mr. Dawson had a gun and crack cocaine on him when he fled from the police. The gun and the cocaine could have been concealed in the front pocket of his grey hoodie. He knew that he would be in serious trouble if these items were found on him. When he saw the police outside, he was able to turn and get back into the James apartment before the police could apprehend him. He ignored their instructions. He ran through the apartment and climbed through the window of the Mr. James’ bedroom. He then placed or dropped both the gun and the drugs in the snow as he paused immediately after having gone through the window.

[98] Having regard to the amount of cocaine involved and the close proximity in the snow of a scale, I am also left in no doubt that Mr. Dawson was in possession of the crack cocaine for the purpose of trafficking.

[99] I therefore find Mr. Dawson guilty on the weapon and trafficking charges.

The Gun in the Snowboard Bag

[100] Shortly after midnight on 14 March, a search warrant was executed at the James apartment. After an entry video was taken, the officers present were allocated various aspects of the search. D.C. Haljaste assisted with the search in Mr James’ bedroom. There he located a handgun in the side zipper pocket of a black and red chequered snowboard bag. The gun was muzzle down. At trial, D.C. Haljaste said that zipper pocket was open to a sufficient extent that the gun can be seen inside without being touched (he had been less certain about this at the preliminary inquiry). The bag was stood up against a refrigerator, somewhat adjacent to the bedroom window. D.C. Haljaste then opened the zipper further, without disturbing the contents of the pocket and video was taken. Then the weapon was removed and made safe. He removed the magazine from the handle. It contained ammunition but was not chambered.

[101] In the same zipper pocket as the firearm, DC Haljaste found some papers. These papers, which included a court notice and a receipt from a law firm, were clearly addressed to Mr James. The most recent was dated 18 February 2014. The pocket also contained what looked like the remnants of plastic baggies.

[102] Mr. James acknowledges that the snowboard bag and the documents in the zipper pocket are his. But he denies any knowledge of the gun.

[103] The Crown’s theory of the charges against Mr. James relating to the firearm in the bedroom is as follows:

a. Mr. James had control over who came into the apartment and to his bedroom.

b. Mr. James had control over the activities in his bedroom permitting, for example, marijuana to be smoked.

c. The snowboard bag was lodged in the corner of the room. It was standing up so that the zipper pocket was away from the wall and therefore accessible. It was close to Mr. James’ bed.

d. Although the firearm was not in plain view it was in Mr. James’ snowboard bag, which was in his bedroom. It was in a zipper pocket which also contained documents with his name all over them. The only reasonable inference is that he knew the gun was in the snowboard bag.

e. The gun was placed towards the bottom of the zipper pocket. The handle was placed in as accessible a way as possible; neatly placed between the papers. It is highly unlikely that an occasional visitor would have noticed the zipper pocket and then been able to think about neatly placing the gun there all in a matter of seconds. The only reasonable inference is that it was Mr. James who placed the gun in the zipper pocket of the snowboard bag.

f. The mere possibility that some other person in the room may have secreted the firearm in the snowboard bag in the few seconds between Mr. Dawson’s re-entry to the apartment and the arrival of the police at the door of Mr. James’ bedroom is not enough to displace these inferences.

[104] Mr. James denies possessing a gun. He describes himself as not being the sort of person to keep guns. He is “against firearms”. He is scared of them. He claims to have never held a firearm or seen one being shot.

[105] He also denied ever having owned digital scales or packaging (both of which were also found in his bedroom). He did, however, know there was some marijuana in his room. Asked to explain the presence of loose Ziploc slide seal bag and a box of slide seal bags in his bedroom, Mr James denied that the bags were his and said he had no idea how they got there

[106] Mr. James confirmed that he had been a surety for Kemon Edwards. He had promised to give Mr. Edwards a place to stay. Mr. Edwards had never shown up. Mr James had never told the police that Mr. Edwards had not turned up.

[107] According to Mr James, at no time during the course of the afternoon leading up to his arrest did he or any of the other males in his bedroom talk about weapons or guns. Mr. James did not see any weapons or guns. Other than the joints that were shared that afternoon, Mr. James did not see any drugs either.

[108] Although he admitted to possessing a marijuana grinder, Mr. James denied that he had used it that afternoon.

[109] Mr. James had been under house arrest since June 2013. The terms of his bail permitted him to go to work each day, wearing a monitor. He said that he was very anxious about the then pending charges (for break and enter – the charge was subsequently withdrawn) and that his friends knew his situation and would know that he did not want to do anything to jeopardise his freedom. Mr. James did not expect anyone that he was hanging out with that afternoon to have anything on him that might put him in danger. He denied it when it was put to him that Mr. Dawson and Mr. Bernard were going in and out of the apartment that afternoon making drug deals.

[110] Mr. James had not snowboarded that winter. Describing the rest of his room as “organised chaos”, Mr. James thought his snowboard bag was a good place to keep important documents. Although a barbecue lighter with a grey handle was also found in the snowboard bag, Mr. James said he could not remember putting it there.

[111] Mr. James denied that money was being counted on his bed that day or that items were being weighed and packaged.

[112] Faced with the blanket denial by Mr. James of any knowledge of the presence in his room of a firearm and of any drug-related activity (other than the personal use of marijuana by him and his friends), the analysis directed by R v W.(D.) is once again engaged.

[113] Mr. James, too, had at the time (and still has) no criminal record. He has steady employment.

[114] I have no doubt that Mr James was concerned about the charges which he was facing at the time of his arrest on 13 March 2104. But notwithstanding that, he acquiesced in the breach of bail terms by Mr Edwards, for whom he had stood surety, and further breached his own bail terms by smoking marijuana with his friends, which he knew was illegal. It seems highly unlikely that there was no discussion at all about the comings and goings from his apartment that afternoon and, in particular, the use of Mr James’ vehicle by Mr. Bernard.

[115] I do not accept the bald denial by Mr. James of his knowledge of the handgun. When I consider all of the evidence, I am left in no doubt that he knew that there was a gun in his snowboard bag.

[116] Quite apart from the unlikelihood that anyone other than Mr. James would have had the awareness of the zipper pocket as a place to put things in the few seconds that elapsed between Mr. Dawson returning to the apartment and the police entering Mr James’ bedroom, the fact that the gun was placed neatly in the pocket, without apparently disrupting the papers that were also there, renders the defence position that someone else put the gun in the bag implausible. And it was not just the gun which Mr. James baldly denied knowing about. He could not explain the scales, the Ziploc bags or the Canadian currency that were found in his room all of which, like the gun itself, are evidence that drug-related activity was going on in the room that afternoon.

[117] As noted by Backhouse J. in R. v Tinglin, unreported, 30 November 2012, drug trafficking and firearms go together (para. 49). A gun is a valuable item which one possesses illegally to protect one’s life and, in circumstances involving drug-related activity, one’s livelihood (Tinglin, para. 51).

[118] Mr. James had control over the activities conducted in his bedroom. He knew about the gun and maintained control over it. Accordingly I find Mr James guilty on the weapon charges.

Marijuana and Proceeds of Crime

[119] Although Mr James and Mr Dawson acknowledged that marijuana was being smoked during the course of the afternoon, they deny knowledge of the bags of marijuana that were found by the police when the search warrant was executed. They similarly deny that currency, which was found in Mr. James’ room, was being counted or otherwise having seen currency in the bedroom.

[120] The original marijuana charges against Mr James and Mr Dawson were downgraded from trafficking to simple possession following evidence from a crown witness that the amount of marijuana seized was not inconsistent with personal use.

[121] I do not accept that Canadian currency, which had, if the evidence of Mr James and Mr Dawson is to be accepted, not been in plain view earlier in the afternoon, was suddenly placed on the bed (which is where the majority of the officers say they saw it) or on the floor (which is where at least two of the officers say it was found) during the time that elapsed between one or both of them leaving the bedroom (at the time of Mr Dawson’s departure) and returning soon after.

[122] Regardless of who the marijuana belonged to, I find that it was in the bedroom, and in plain view of all of the occupants of the bedroom, prior to the arrival of the police. There is more than ample evidence to support a finding of actual, constructive or joint possession of marijuana on the part of both Mr James and Mr Dawson.

[123] Similarly, the circumstances lead to the irresistible conclusion that the Canadian currency – some $875 – was plainly visible to all of the individuals in the bedroom and was the proceeds of criminal activity: trafficking is a cash business.

[124] Accordingly, convictions will also be entered against Mr. Dawson and Mr. James on the simple possession of marijuana and the proceeds of crime charges.

Graeme Mew J.

Handed down: 7 September 2016

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ALEX JAMES and JESSE DAWSON

REASONS FOR JUDGMENT Mew J.

Handed down: 7 September 2016