CITATION: R. v. Ali, 2008 ONCA 741

DATE: 20081028

DOCKET: C48345

COURT OF APPEAL FOR ONTARIO

Gillese, Blair and Watt JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

And

Mohamed Zaheer Ali

Appellant

Alan D. Gold, for the appellant Mohamed Ali

Megan Stephens, for the respondent

Heard and released orally: October 16, 2008

On appeal from the conviction entered by Justice Alison Harvison-Young of the Superior Court of Justice dated December 7, 2007 and from the sentence imposed by Justice Harvison-Young dated February 22, 2008.

ENDORSEMENT

[1] The appellant was convicted of several firearms offences involving a loaded, sawed-off shotgun that police recovered from under the driver’s seat of a car of which the appellant was the driver and sole occupant.

[2] Police apprehended the appellant as he drove the car along a street a short distance from his home. A search of the vehicle revealed a loaded, sawed-off 12 gauge shotgun under the driver’s seat of the car. The firearm rested on its side with the stock facing towards the front of the driver’s seat and the barrel pointed towards the back of the car. The stock was not visible from the driver’s seat, but was readily accessible to the driver by a simple reach from a seated position. Apart from the loaded shotgun, no ammunition or associated paraphernalia was found in the car or in a later search of the appellant’s residence.

[3] At trial, defence counsel conceded that the appellant had the degree of control over the shotgun required to establish possession under s. 4(3) of the Criminal Code. The sole issue was the adequacy of the Crown’s proof of the appellant’s knowledge of the presence of the shotgun under the driver’s seat of the car.

[4] The trial judge concluded that the cumulative force of several items of circumstantial evidence established the critical element of knowledge beyond a reasonable doubt. Among the evidence considered by the trial judge were the following items:

i. the gun was located under the driver’s seat of the car in a position that would give the driver the most ready access to the stock of the firearm;

ii. the appellant was the only person who drove the car on the day and evening prior to, and the day of, his arrest and the finding of the gun;

iii. the household routine was that the appellant was the primary, if not the exclusive driver of the car; and

iv. the inherent improbability of another person secreting the weapon under the driver’s seat in light of the nature of the item and its ready visibility from the rear seat and window of the vehicle;

The trial judge rejected several alternative explanations proffered by the defence to raise a reasonable doubt about the appellant’s knowledge of the loaded sawed-off shotgun.

[5] On the hearing of the appeal, the appellant contended that the evidence adduced established nothing more than the actus reus of the offences charged and not the mens rea, in particular, the critical element of knowledge of the presence of the sawed-off shotgun in the motor vehicle. We disagree.

[6] The trial judge was plainly aware of the centrality of the knowledge issue to her decision in the case. Likewise, she was fully cognizant of the fact that the Crown’s proof of knowledge was entirely dependent on the cumulative force of circumstantial evidence. The trial judge had in mind throughout her reasons the placement of the burden and the standard of proof required to establish guilt. She did not misplace the burden by expressly or impliedly shifting it to the appellant. In particular, she did not impose upon the appellant the burden of proving a reasonable or possible alternative explanation for the presence of the firearm in the motor vehicle.

[7] In our view, the inference drawn by the trial judge of the essential element of knowledge was reasonably open to her on the evidence taken as a whole. Her decision was not infected by any legal error.

[8] Accordingly, the appeal is dismissed.

“E.E. Gillese J.A.”

“R.A. Blair J.A.”

“David Watt J.A.”