Court Information

Information No.: SR13 – 4271

Court: Ontario Court of Justice (at St. Catharines, Ontario)

Between:

Her Majesty the Queen

• and -

Hazim Badawi

Counsel:

• Mr. J. Coppolino for the Crown
• Mr. M. Evans for Hazim Badawi

Judge: J.S. Nadel, J.

Introduction

[1] On October 4, 2013 Hazim Badawi was stopped for speeding and then almost immediately arrested for possession of marihuana. That arrest led to a search of his car, which resulted in the discovery of, among other things, a loaded handgun under the driver's seat, two small bags of marihuana and $1,000.00. Badawi was charged with several offences. The evidence at his trial consists of the testimony of the arresting officer, a K9 officer and multiple admissions and documents filed on consent.

[2] The Crown submits that the cumulative effect of the evidence proves Badawi knew about and was therefore in possession of the gun and the other items. He should be found guilty as charged. The Defence submits that the evidence does not permit the inference that Badawi had prior knowledge of the presence of the gun to be drawn. Badawi, however, does concede his guilt for a small bag of marihuana found in his left shoe.

The Charges

[3] The information contains seven counts. The first count, proceeded upon summarily, alleges simple possession of marihuana contrary to s. 4(1) of the Controlled Drugs and Substances Act. The Crown proceeded by indictment on counts 2 through 7, inclusive. Those counts allege the following:

Count 2

Possession of a prohibited weapon without being the holder of a licence to possess it, contrary to s. 91(2) of the Criminal Code;

Count 3

Possession of a prohibited weapon knowing that he was not the holder of a licence to possess it, contrary to s. 92(2) of the Criminal Code;

Count 4

Occupying a motor vehicle knowing that there was a firearm in it, contrary to s. 94 of the Criminal Code;

Count 5

Possessing a loaded prohibited weapon, contrary to s. 95 (a) of the Criminal Code;

Count 6

Carrying a concealed weapon without authorization, contrary to s. 90 of the Criminal Code;

Count 7

Possessing a prohibited firearm together with readily accessible ammunition capable of being discharged in the firearm without being the holder of an authorization under which he may possess the firearm, contrary to s. 95 (b) of the Criminal Code.

The Admissions

[4] The parties jointly made several admissions; viz:

• a police officer stopped Badawi while he was the driver and sole occupant of a motor vehicle on October 4, 2013;

• a .22 calibre Sig Sauer Mosquito semi-automatic handgun, found under the driver's seat, was a prohibited firearm as defined in the Criminal Code;

• the firearm and its ammunition were examined by a qualified examiner;

• that examiner's report was substantively admissible and filed as Exhibit 1;

• the vehicle, a four door blue 2012 Hyundai Sonata, was a rental vehicle, leased for one month from September 27, 2013 and due to be returned on October 27, 2013;

• a copy of the rental agreement, filed as Exhibit 2, disclosed that the vehicle was rented by Limitless Car and Truck Rental to Abdelmunein Abdalla;

• the Hyundai was owned by a numbered company carrying on business as Limitless – a copy of the ownership for the vehicle was filed as Exhibit 3;

• the Hyundai had been cleaned by Limitless before it was rented to Abdalla and it did not have a firearm in it when it was rented out on September 27, 2013;

• the vehicle was returned to the rental company by the police after being seized on October 4, 2013;

• two small bags of marihuana were seized by the arresting officer – one from the driver's door sleeve and one from Badawi's left shoe;

• the bags weighed 3.2 grams and 2.9 grams, although the officer could not recall which bag came from which location;

• no forensic evidence by way of fingerprints or DNA tied Badawi to the gun;

• the firearm was last known to be lawfully owned in the USA – Exhibit 7 sets out its provenance;

• Badawi was not the holder of a firearm authorization, licence or acquisition certificate.

The Evidence

[5] O.P.P. Officer Kelly McGrath, a 27 year police veteran, was patrolling a portion of the westbound QEW in the area of Grimsby when he encountered Badawi on October 4, 2013.

[6] It was 11:40 p.m. McGrath was operating a moving radar unit while travelling westbound in lane two on the QEW when Badawi overtook him doing 130 in a 100 km zone. McGrath stopped him for speeding and Badawi pulled over onto the right shoulder without incident. Before approaching Badawi McGrath took 30 seconds to do a database search of the Hyundai's licence plate so that he knew it was a rental car.

[7] McGrath had been unable to see into Badawi's vehicle on the highway or on the shoulder as McGrath's unit was not equipped with a bright "alley" light. McGrath did not know how many occupants were in the stopped car before he approached the front passenger's door.

[8] Badawi lowered the window and as soon as he did so McGrath "was struck by an extremely strong odour of fresh marihuana". McGrath shone his light into the car while concentrating on Badawi's hands and did a cursory search of the vehicle. He then leaned forward slightly and asked for Badawi's driver's licence, ownership and insurance and told Badawi that he had been stopped for speeding.

[9] At that point McGrath saw some zig-zag rolling papers in their blue, white and red packaging lying on the passenger side door handle. McGrath knew the rolling papers were commonly used to roll tobacco or marihuana cigarettes. He also saw a small amount of loose, green leafy material on the door handle that he believed to be marihuana.

[10] McGrath thought that these flecks of suspected marihuana were incapable of being the source of the odour emanating from the vehicle. He believed that there had to be a large quantity of drug in the vehicle to account for the odour and so he felt that he had the grounds to arrest Badawi for possession of a controlled substance.

[11] He immediately went around to the driver's side and placed Badawi under arrest for that offence. He cuffed Badawi's hands behind his back and put him in the rear seat of his cruiser. Badawi was cooperative and did not resist McGrath in any way. McGrath testified that Badawi was easy to deal with throughout and that he remained cooperative and polite.

[12] McGrath called in this arrest and then went to search the Hyundai as an incident to that arrest.

[13] It was about 11:42 p.m. when McGrath began searching the driver's seat area first. He explained that it was his experience that if a driver was hiding something it would typically be hidden within his reach as driver. So, he did a quick scan of the driver's seat area, aided by a strong flashlight and the car's interior light, which came on when he opened the driver's door. He saw nothing untoward.

[14] He then went low, getting his head into the footwell of the driver's seat under the steering wheel and looked under the seat. To do that he had to crouch down at the bottom edge of the driver's door, almost to his knees in order to stick his head into the footwell underneath the steering wheel. Having done so, he immediately saw a handgun underneath that seat. McGrath didn't have to reach to find it. It was immediately observable once he bent and looked under the seat, albeit McGrath was using a flashlight at the time.

[15] The gun was about three or four inches back from the front of the seat. It was positioned as if a right-handed person had bent forward slightly and reached down to place it under the seat with his right hand while sitting in the driver's seat. That is to say, the "slide" and top of the barrel was facing the driver's door, although on an angle away from it and not directly parallel to that door. The hand grip of the weapon was facing toward the centre console, again, on a slight angle. The rear sight of the gun was facing the front of the car. McGrath drew a diagram of what he was intending to convey, which was filed as Exhibit 6.

[16] No part of the gun was visible without specifically looking under the driver's seat. A photograph of the weapon, only slightly smaller than life-size, was filed as Exhibit 5.

[17] The gun's magazine, which held 10 rounds of ammunition, was seated in the weapon, but no round was chambered.

[18] McGrath made the weapon safe and then secured it in the front of his cruiser, which had a security screen separating the front and rear seats. He then re-arrested Badawi for possession of the firearm and gave him his Charter rights and another caution. He then sought "back-up" because of the presence of a gun.

[19] McGrath then returned to the Hyundai and continued searching it. At 11:52 p.m. he discovered a small plastic bag in the driver's door pocket that he believed, correctly, to contain a small amount of marihuana. That plastic bag was not tied off. Rather, the top of the bag was spun around several times to secure the contents and then the twisted top of the bag was folded over to further secure its contents.

[20] McGrath continued searching and in the centre console he found two bundles of money – $500 in the upper section of the console and another $500 in the bottom section. (Officer McGrath volunteered and Mr. Evans noted in his submissions that no "proceeds" charge was laid.) Neither bundle of money was tied up or wrapped but McGrath noticed and noted that Badawi had rubber bands on his left wrist.

[21] Finally, (excluding the package of zig-zag rolling papers that was not mentioned again,) McGrath found three cell phones all in plain view on the passenger seat: an iPhone, a Samsung and a Blackberry.

[22] A strong smell of marihuana was still emanating from the Hyundai yet McGrath's searches had not resulted in the discovery of a hidden cache that could account for that smell. As a result, he believed that the smell was either the remnant of a large quantity of marihuana that had recently been removed from the car or that there must be some sort of hidden compartment containing a large quantity of marihuana that he could not find. In his view the small amount of marihuana that he had removed from the driver's door sleeve could not account for the smell. So, he asked the Niagara Regional Police Service to send out a K9 team to search the car in case the second possibility obtained.

[23] Before the K9 team arrived McGrath told Badawi what he was arranging. During that exchange Badawi volunteered that he had marihuana on him, that he had a small bag of it in his left shoe. That small amount was bagged and closed in exactly the same fashion as the one that McGrath had discovered in the driver's door sleeve; viz in a plastic bag closed by the top being spun and twisted multiple times with that closure then folded over.

[24] Officer John Krajcovic, a Niagara Regional Police Service K9 officer responded with "Bronson," a five-year-old Belgian Malinois. McGrath asked Krajcovic to have his dog search the Hyundai for hidden drugs. Krajcovic was not qualified as an expert and in any event, despite Bronson apparently pawing at some areas of the interior of the car, no further drugs were located. What is significant, however, is that as soon as Krajcovic opened the front passenger door of the car just a crack, he smelled the odour of marihuana coming out of that door.

Submissions

[25] While Mr. Evans submitted that control as an element of possession was also in contest, both counsel centred their submissions on whether the evidence permitted the inference that Badawi had knowledge of the gun found under his seat and whether the allegations were proved to the exclusion of any reasonable doubt. In my view, on the evidence, if Badawi knew about the gun's presence in the car then he had control over it.

The Crown's Submissions

[26] Relying on the principles expressed in R. v. Husaini, [2013] O.J. No. 1936 (SCO) and R. v. Ali, [2008] O.J. No. 4232 (C.A.) Mr. Coppolino submitted that the constellation of circumstances proved against Badawi requires the court to infer that he knew about and was therefore in possession of the gun found under his seat. Additionally, Mr. Coppolino added that the several factors identified by Hill J. at paragraph [74] of R. v. Anderson-Wilson, 2010 ONSC 489, [2010] O.J. No. 377 (SCO) assist in marshalling the proof adduced against Badawi, particularly factors [1] and [5].

[27] In the Crown's view, the totality of the circumstances inexorably leads to the conclusion that Badawi was involved in the drug trade and that he had just completed a transaction. The Crown posits that he had armed himself with the gun to protect himself and to protect against the possibility of being "ripped off". The persisting smell in the car shows that it had recently contained a significant quantity of marihuana. The $1,000.00 in cash was undoubtedly the proceeds of that transaction. The gun was a tool of the trade of a drug dealer. The presence of three cell phones on the seat beside him also denotes him as a drug trafficker. They, too, are tools of the drug trade. The car being used was a rental, a common occurrence in drug trafficking. Moreover, Badawi was returning westbound towards Mississauga where the car was rented. The two small packages of marihuana also confirm this drug trafficking scenario. The elastic bands were to be used to secure the two sums of money.

[28] Significantly, in the Crown's submission, the package of marihuana in Badawi's left shoe demonstrates that he put it there while he was being stopped by McGrath. The rental agreement, (Exhibit 2,) shows that the car was an automatic. Badawi could continue to operate it with his right foot, enabling him to try and hide some of the contraband in his left shoe. He must have done so while he was being stopped because no one would walk around uncomfortably, with drugs in one's shoe.

[29] Indeed, the Crown asks that I find that the gun was not merely found under the seat but that the evidence demonstrates that Badawi placed it there with his right hand. This is amply demonstrated by the gun's orientation under the seat and confirmed by the fact that Badawi was wearing rubber bands on his left wrist, which is also consistent with them being placed there by the use of his right hand.

[30] In response to my observation that no expert evidence had been called concerning how much marihuana would be needed to create a subsisting odour or about how long such an odour would last Mr. Coppolino referred to that portion in Husaini at paragraph [171] where Leach J. quoted R. v. Phan, [2005] O.J. No. 5127 (C.A.), at paragraph [30] which observed that:

It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof especially for inferences consistent with guilt, but it does not demand certainty.

[31] Additionally the Crown submits that as a matter of common sense, one would not leave $1,000.00 in cash or a loaded illegal weapon lying about unattended. The value of these items, in and of themselves, permits inferences of knowledge about them by Badawi to be drawn. Moreover, the proximity to and ubiquity of the various items of contraband are circumstances from which the inference of knowledge can and should be drawn.

[32] While the Crown did not say so expressly, the thrust of its submission was that as the sole occupant of the car, Badawi hid these items all around himself as he was stopped. He put a bag of marihuana in the door sleeve and another in his left shoe. He placed the gun under his seat out of view and put the money in both parts of the console leaving the rubber bands on his left wrist. All of these things were within inches of him as the driver.

[33] In the Crown's submission this is much more than a case of merely highly suspicious circumstances. This is a case of proven guilt since the circumstances impel the inference that Badawi knew about and was therefore in possession of the gun. While the Crown acknowledges a potential weakness of its case given the absence of evidence from or about the man who rented the vehicle, it maintains Badawi's guilt has been proved, notwithstanding. The essence of the Crown's submissions is that the theoretical "possibility" that someone other than Badawi put the gun in the car without Badawi's knowledge amounts to no more than a shadowy speculation that vanishes in the light of the other proved circumstances.

The Defence Submissions

[34] Mr. Evans advised that he proposed to go through some cases where charges were dismissed in order to draw parallels to the evidence adduced at this trial. In addition, during his submissions he distinguished cases where convictions were imposed or upheld. But, before doing any of that he voiced his concern about expressing the contested issue of knowledge in terms of "whether there is another competing inference to be drawn." In Mr. Evans' submission framing the issue in those terms has the ring of a reversal of the burden of proof. Mr. Evans was also concerned that framing the issue in this way appeared to assume that Badawi was in possession of the other contraband located in the vehicle and Badawi made and makes no such concession. I assured counsel that I was aware of the Crown's burden of proof and that the burden does not shift to the accused and further, that Mr. Badawi was presumed innocent.

[35] Mr. Evans began his journey through the cases by stressing that in any case where an accused was found to have known about and been in possession of a hidden item "something more" was required than mere proximity to the item or control over the room or vehicle in which it was found. It is only when that "something more" exists that an inference of knowledge about a hidden object can be drawn.

[36] He began with Ali where Ali unsuccessfully appealed convictions for offences arising out of his possession of a loaded sawed-off 12 gauge shotgun that had been found under the driver's seat of the car he was driving. While the stock was not visible from the driver's seat it was readily accessible by a simple reach from a seated position. Apart from the loaded shotgun, no ammunition or associated paraphernalia was found in the car. The sole issue was the adequacy of the Crown's proof of Ali's knowledge of the presence of the weapon under his seat.

[37] In that case, beyond mere proximity, the "something more" included exclusive use of the vehicle on the day and evening prior to and the day of the arrest, the fact that the accused was the primary, if not exclusive, user of the vehicle together with "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." Mr. Evans submitted that these other elements are lacking in the Crown's proof alleged against Mr. Badawi.

[38] Likewise, and contrary to the facts in Husaini there was no evidence of extensive surveillance of Badawi demonstrating any connection by him to the Hyundai in which the handgun was found, other than his presence on the occasion of his arrest. As Mr. Evans put it several times, the proof is silent as to whether Badawi had been in possession of the Hyundai for five minutes, five hours or five days. Equally, Badawi did not rent the vehicle and the evidence does not disclose any relationship between him and the man who did, who is a complete cipher.

[39] Likewise, the facts here do not show any use by the accused of the fittings of the vehicle to hide anything, nor does the evidence show Badawi to have had any familiarity with hiding places naturally occurring in the configuration of the vehicle as occurred in some of the cases cited.

[40] Mr. Evans cautions me that I cannot presume or assume that Badawi had any knowledge of any of the items found in the car. Badawi makes no claim to the $1,000.00 found and makes no admission of guilt to anything other than the small quantity of marihuana in his shoe.

[41] Mr. Evans also submitted that the evidence available to infer that Badawi had knowledge of the hidden gun was weaker than in many of the cases where knowledge was not inferred. A fortiori there is even less of a basis to infer that Badawi knew about the presence of the gun hidden under the driver's seat. For example, the evidence does not show that Badawi was moving around in the vehicle unusually or at all prior to being investigated. There is no evidence that upon being signalled to stop Badawi pulled over particularly slowly to give himself a chance to rid himself of the gun, the drugs or the money. Equally, there is no evidence that he did any such things. Further, many of the cases note an accused displaying an anxious demeanour from which one might infer guilty knowledge. Nothing of the sort occurred here. Badawi was calm, compliant and cooperative throughout. Additionally, no evidence was called to suggest that Badawi tried, in some fashion, to distance himself from the vehicle, as occurred in at least one of the cases submitted.

[42] Mr. Evans submits that it is a reasonable and available inference that the gun was placed beneath the driver's seat by the man who rented the car and that there is no reason to reject that inference. In the defence submission the availability of that reasonable alternative inference precludes this court from not having a reasonable doubt about Badawi's guilt. Moreover, the same can be true of a further hypothesis; namely, that some third party other than Badawi or Abdelmunein Abdalla, may have hidden the gun in the Hyundai without Badawi's knowledge.

[43] Mr. Evans submits that these alternative and available specific hypotheses have been adverted to and acted upon to dismiss like charges or to overturn convictions on appeal in the face of the availability of such inferences on many occasions. Mr. Evans offers many examples but especially R. v. Lee, [1996] B.C.J. No. 1196 (B.C.C.A.) as well as R. v. Amado, [1996] B.C.J. No. 1943 (B.C.S.C.), but also R. v. Payen, [2005] O.J. No. 5167 (SCO); R. v. LeBlanc, 2009 NSSC 221 and R. v. Anderson-Wilson, 2010 ONSC 489, [2010] O.J. No. 377 (SCO).

[44] Mr. Evans reminds the court that a high degree of suspicion is inadequate to demonstrate that the only reasonable inference to be drawn from the proven facts is guilt. Lee and Amado and like cases demonstrate that where there are competing inferences available about whether an accused knows about the presence of contraband in a room, closet, cassette tape player, opaque bag or vehicle, (to list some of the fact patterns,) then it is not open to a trial judge to find that the only reasonable inference to be drawn is guilt. The available competing inferences here, as noted above, are that Abdelmunein Abdalla, the man who rented the car put the gun beneath the seat without Badawi's knowledge or some unknown third party did so at some point after the car was rented on September 27, 2013 and before Badawi began to drive it at some point on October 4, 2013.

[45] The defence position is that these are not far-fetched or speculative hypotheses. After all, if you borrow a car, unless you are a very nosey-parker, you don't crouch down and look under the seats or rummage through the console or glove compartment.

[46] As to the Crown's submission that no one would leave $1,000.00 or a loaded gun in a car, the fact that items of substantial value are stolen from cars on a daily basis because the owners of those stolen items left them in their vehicle puts paid to that submission. I disagree. While people have left priceless musical instruments in taxis or have failed to recall the presence of a child and locked a child in a hot car, those are exceptional cases. A loaded handgun and $1000.00 in cash are substantially more significant items than forgotten loose change or a misplaced or forgotten wallet. I find it incredible and I am unable to accept that three or fewer individuals independent of each other either intentionally or forgetfully left the bag of marihuana in the door, the loaded weapon under the seat and the money in the console and that Badawi was ignorant of that having occurred. Likewise, I find it incredible and unbelievable that a single individual intentionally or forgetfully left those three items in those places without Badawi's knowledge, for the reasons that I shall discuss below.

[47] Mr. Evans also adopted a principle voiced by Cromwell J. that I raised with counsel during submissions. Cromwell J. noted in R. v. J.M.H, 2011 SCC 45 at paragraph [39] that "…a reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond reasonable doubt." (emphasis added) Mr. Evans submitted that there are substantial voids in the evidence, beginning with any evidence about Abdelmunein Abdalla and continuing to an absence of any in situ photographs of any of the items said to be in Badawi's possession. This is especially significant given the contortions that McGrath had to undertake to look under the driver's seat.

[48] This absence of evidence is exacerbated by the failure of the Crown to connect Badawi to the three cell phones in any way, contractually, forensically or by any kind of investigation. Here and as more fully outlined below, this was a prosecution by presumption. The police presumed rather than having investigated. There is a complete absence of evidence about the cell phones and hence, they have no inculpatory value.

[49] Moreover, Mr. Evans maintains that the fact that Badawi was driving 30 km. over the limit is, in effect, evidence supporting an inference of lack of knowledge since, if Badawi knew that he was sitting on an illegal gun he would have driven much more sedately. That inference is further buttressed by the admitted facts that there is no forensic connection of Badawi to the gun by way of fingerprints or DNA, nor is there any connection to the gun by way of provenance of the weapon through prior place of residence, immigration or anything else even remotely connecting him to the weapon.

[50] Likewise, Badawi's connection to the Hyundai is tenuous. There is no evidence of how or when he came to be in possession of the car, no evidence of where he was coming from or going to. There is no evidence to connect him to Abdelmunein Abdalla, nor any evidence about Abdelmunein Abdalla. Worse yet, there is no explanation for the lack of evidence about Abdelmunein Abdalla, which is a strand of evidence that the Crown could have called but did not. What is clear is that Badawi is not and could not be the regular driver of that vehicle since it had only been rented a very few days prior to the discovery of the gun in that car.

[51] Beyond all of that Mr. Evans submits that the lack of a proceeds charge undercuts any inculpatory effect of the finding of the $1,000.00. Moreover, Mr. Evans submits that the Crown's theory of Badawi hiding things ought to be rejected. The defence submits that it makes no sense that Badawi would hide a small amount of marihuana in his shoe and yet leave or put the other items in the other spots. In the defence submission, it is senseless to hide some items but not all and the Crown's hiding theory is replete with assumptions or speculations masquerading as inferences. After all, why hide a minimally valuable bag of marihuana in your shoe rather than $1,000.00 in your sock?

[52] Ultimately the defence maintains that the Crown's drug-trafficking theory amounts to impermissible speculation that only makes sense if you ignore and fail to apply the presumption of innocence and assume guilt. The theory begs the answer to the question that the Crown is burdened to prove. The Crown's theory of guilt requires the court to infer that Badawi was in possession of the bag of marihuana hidden in the door sleeve along with the $1,000.00 hidden in the console and only then might there be some basis for inferring that he had knowledge of the gun hidden under the driver's seat. In effect the Crown invites the court to bootstrap the "proof" by presuming that Badawi is a drug dealer. Only by doing so does the Crown's theory fit the evidence to that presumption.

[53] Mr. Evans stresses that contrary to law, which precludes drawing an inference of knowledge from mere occupancy, the Crown seeks to have the court infer that the marihuana hidden in the door was in Badawi's possession. Moreover, and once again, for the Crown's theory to hold sway the court must presume Badawi's knowledge of and therefore control over the money in the centre console. Further, and without any evidence, the court would be required to infer that at some prior time there were drugs in the car with Badawi's knowledge and over which he could have exercised some measure of control. Mr. Evans submitted that, in effect, the Crown was inviting the court to repeat an egregious error previously identified by appellate courts, namely proceeding on the basis of speculation.

[54] Mr. Evans concluded by recapitulating and summarizing his submissions into the following points:

• [1] the car was a rental vehicle and not rented by Badawi;

• [2] the gun was completely hidden and invisible upon getting into the car;

• [3] a driver does not look under the seat without special reason;

• [4] a driver does not investigate another's belongings stored in a car;

• [5] there is no evidence about how long Badawi had been in the vehicle;

• [6] Badawi made no attempt to distance himself from the vehicle;

• [7] Badawi was completely cooperative and his demeanor was benign;

• [8] there is no forensic evidence by way of DNA, fingerprints or otherwise that connects Badawi to the firearm, money or the cell phones;

• [9] no expert evidence of any sort was called that permits any inferences in support of drug trafficking;

• [10] nothing whatsoever connects Badawi to the gun;

• [11] Badawi was not seen to act in any suspicious manner in the car or with it;

• [12] Badawi made no attempt to delay his being stopped to extend the time to create an opportunity to hide anything;

• [13] there is a complete absence of evidence about the man who rented the car.

Hence all counts ought to be dismissed, other than one count of simple possession of a small amount of marihuana from his shoe.

Discussion

Possession

[55] The position of the Crown is that Badawi had personal possession of the gun. As part of that theory the Crown also alleges that he possessed all of the drugs, money and cell phones found. Personal possession is defined in s. 4(3) of the Criminal Code in these terms:

(3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly …

(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

[56] Proof of possession requires the Crown to establish that Badawi had knowledge of the gun beneath his seat and that he had some measure of control over it, whether exercised or not. "Control refers to power or authority over the item whether exercised not. … {However,} [c]riminal liability for voluntary occupancy in a vehicle knowing there is a weapon in the conveyance does not, unlike a possession charge, require proof of control."

Circumstantial Evidence

[57] Knowledge for the purposes of possession can be and frequently is proved by inference from other proved circumstances. In such cases an instruction, or a self-instruction, on the burden and quantum of proof is required. Mr. Justice Casey Hill has collected and précised the applicable principles of this area of the law at paragraphs [72] and [73] of Anderson-Wilson.

72 The essential component of self-instruction on circumstantial evidence is that the trier of fact must be satisfied that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Griffin; R. v. Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.) at para. 33. Circumstantial evidence must be viewed as a whole and not each piece individually: R. v. Warkentin et al. (1976), 30 C.C.C. (2d) 1 (S.C.C.) at 20. "[T]he mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt": R. v. Griffin; R. v. Harris, supra, at para. 34.

73 The Crown may seek to establish the existence of a fact in issue by submitting that an inference may reasonably and circumstantially be drawn from the primary facts - there exists an inferential gap between the primary fact and the fact to be proved: R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.) at 31-2; R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.) at 172-3. Whether the inference is a reasonable one to draw usually involves an application of "human experience and common sense" (R. v. Figueroa et al., 2008 ONCA 106, [2008] O.J. No. 517 (C.A.) at para. 33; U.S.A. v. Huynh (2005), 200 C.C.C. (3d) 305 (Ont. C.A.) at 307). Circumstantial inferences are ones which "can be reasonably and logically drawn from a fact or group of facts established by the evidence": R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at 209. A trier of fact "cannot be invited to draw speculative or unreasonable inferences": R. v. Figueroa et al., at para. 35, 42. Most cases "will involve hiatuses in the evidence which can be filled only by inference": Lameman v. Canada (Attorney General), 2006 ABCA 392, [2006] A.J. No. 1603 (C.A.) at para. 87. "The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess": U.S.A. v. Huynh, at 307.

Inference Distinguished From Speculation

[58] There is a difference between inference and speculation. Speculation is the process of forming a theory or conjecture without a factual basis. Cases caution against confusing a reasonable inference with mere speculation. "Supposition or conjecture is no substitute for evidence and cannot be relied upon as the basis for a reasonably drawn inference. Therefore, it is not enough simply to create a hypothetical narrative … Simply because a possibility cannot be excluded does not necessarily mean that a reasonable trier could be justified in reaching such a conclusion on the evidence."

Circumstantial Evidence and "The Only Rational Inference"

[59] "In order to infer guilt based upon circumstantial evidence, the trier of fact must be 'satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty' (R. v. Griffin, 2009 SCC 28 at para. 33.) This is a high standard that requires that alternative explanations be excluded because 'the mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt' (ibid. at para. 34; see also R. v. Mars (2006), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 4)."

[60] That principle is placed in context in Mars. Home invaders used the ploy of an errant pizza delivery. Only one accused was charged but the identification testimony was either too generic to be probative or was inconsistent with the appearance of the accused or of his alleged involvement. It was therefore exculpatory. However, of the three prints lifted from the pizza box left at the scene, a single print was identified as having been made by the accused's left ring finger.

[61] Mars' appeal from conviction was allowed on the basis that the conviction was unreasonable. The probative value of the fingerprint depended on the totality of the evidence, since a fingerprint can last for a considerable period of time on an object. In Mars, there was no evidence to demonstrate that the inference that Mars touched the pizza box in connection with the robbery was a more likely inference than the inference that he had touched the pizza box at some prior time.

[62] The Crown relied upon R. v. McFadden (1981), 60 C.C.C. (2d) 305 at 307 (B.C.C.A.) for the submission that the trial judge was entitled to draw the former inference in preference to the latter because no other reasonable explanation for the existence of the print on the pizza box had been proffered by the defence. This submission was rejected on appeal since "[t]he Crown bore the burden of proof throughout the trial. If the Crown's evidence was capable of supporting the conclusion that the print was put on the box in connection with the robbery, the absence of any innocent explanation could well have made it easier for the trial judge to draw the inference of guilt. If, however, [as Doherty J.A. held], the Crown's case could not reasonably support the conclusion that the print was placed on the pizza box in connection with the robbery, the failure of the appellant to offer any other explanation by way of testimony or through some other evidence is of no consequence. An appellant's failure to testify or otherwise advance an "innocent" explanation cannot add weight to the Crown's case so as to justify drawing what would otherwise be an unreasonable inference of guilt: R. v. LePage (1995), 95 C.C.C. (3d) 385 at 396-97 (S.C.C.)."

[63] R. v. Bui, [2014] O.J. No. 4003 (C.A.) also applies these principles. On appeal, the main issues were whether the trial judge erred in his statement and application of the rule in Hodge's Case; and, whether the trial judge's finding of guilt on firearms counts constituted unreasonable verdicts on the following facts:

• a house owned jointly by Bui and his wife was searched;

• it contained a marihuana grow that gave off an obvious odour on entry;

• a loaded handgun was found between the box and mattress in a bedroom;

• apart from the bed other furnishings were sparse;

• male and female clothing was found in the bedroom containing the gun;

• prescription pill bottles for six individuals were found on a the kitchen table;

• Bui arrived at the property with a key to the house in his pocket;

During the trial the Crown withdrew all counts alleged against the wife. Bui elected to call no evidence.

[64] The defence in Bui took several points that are not dissimilar to some of Mr. Evans' submissions; namely, that the evidence fails to foreclose innocent explanations for the circumstantial evidence; that no surveillance or evidence of close connection was demonstrated; and, that the gun allegations were weaker yet, since one can run a grow without knowing anything about a hidden gun.

[65] In convicting Bui the trial judge "found no evidence of another person or persons being involved with the marijuana grow operation." Further, the trial judge concluded that there were "no proven facts upon which [he could] infer" that someone else controlled the grow without Bui's knowledge. (emphasis added) That comment was made in the face of expert testimony that one person could manage the grow operation and other testimony that it was impossible to know how many workers were needed to manage the grow.

[66] The pivotal trial issue in Bui was whether accused had knowledge of the grow. Ostensibly relying on comments in R. v. McIver, [1965] 4 C.C.C. 182 (Ont. C.A.) at [7], the trial judge concluded: "There are no proven facts upon which I can infer that some imagined person other than the accused, controlled the marijuana grow operation in the accused's house without the accused's knowledge. Such a conclusion would be speculative, and not a rational conclusion. …"

[67] The Court disagreed holding that the trial judge "erred in law in holding that, when assessing circumstantial evidence, conclusions alternative to the guilt of the accused must arise from 'proven facts'." They found that this error infected his reasons since subsequent to R. v. Cooper, [1978] 1 S.C.R. 860 "an accused is entitled to an acquittal if there is 'a reasonable doubt on all of the evidence, a conclusion sustainable at a threshold significantly lower than a 'reasonable inference' from 'proven facts'." The panel went on to hold that "whether a reasonable doubt exists must be assessed based on the totality of the evidence adduced at trial and not simply based on the 'proven facts'." Further, "[w]hile the evidence at trial may not have been in dispute, the inferences capable of being drawn from that evidence were very much in dispute."

[68] The Court concluded that the trial judge blurred the distinctions between evidence, available inferences and proven facts with the result that he failed to appreciate that some of the defence submissions were not merely theoretical possibilities lacking any evidentiary value, hence a new trial was ordered on the grow charges.

[69] A different result obtained on the gun charges. The defence submitted and the Court of Appeal accepted that a conviction on those counts was unreasonable because of: (i) the presence of both male and female clothing; (ii) the presence of prescription bottles in the names of several people; and, (iii) other evidence about the state of the house. All of that gave rise to an available inference that more than one person had been in the house and that more than one person was involved with the grow. In those circumstances, given the absence of some specific evidence linking Bui to the gun, a fact-finder was precluded from excluding the possibility that someone other than Bui hid the gun without Bui's knowledge. Hence, an acquittal was entered on those counts.

Reasons for Judgment

[70] "Possession cases are fact-driven inquiries. Where proof is dependent upon circumstantial evidence, some facts will have more probative value than others. It is the cumulative effect of relevant circumstances which must be assessed in determining whether proof beyond a reasonable doubt exists."

[71] "No rebuttable presumption of knowledge and control for purposes of determining possession, based solely on the fact that a person is the operator with control of the vehicle, exists at common law or under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. To give effect to such a premise would constitute an impermissible transfer of the Crown's burden of proof to the accused. While the fact that a person is the operator with control of the vehicle, together with other evidence, may enable a trial judge to infer knowledge and control in appropriate cases, it cannot, standing alone, create such a rebuttable presumption."

[72] There are many cases where suspicious circumstances have been proved yet the evidence fails to demonstrate proof to the exclusion of any reasonable doubt. Mr. Evans referred me to many of them, including R. v. Freeman, [2006] O.J. No. 1021 (C.A.), R. v. Amado, [1996] B.C.J. No. 1943 (B.C.S.C.) in support of the submission that, at its highest, the evidence in this case goes no further.

[73] Put differently, Mr. Evans submitted that the gaps in the evidence preclude the Crown from being able to satisfy the court to the requisite standard. Moreover, and most importantly, he submitted that the evidence precludes any finding of guilt on the gun charges because Badawi's guilt is not the only rational inference that can be drawn from the circumstantial evidence.

[74] Mr. Evans submits that I cannot be so satisfied because the mere existence of any rational non-guilty inference is sufficient to raise a reasonable doubt and he urges that such a rational non-guilty inference does exist; namely, that Abdelmunein Abdalla, the man who rented the car, may have put the gun under the driver's seat hidden from view and therefore unknown to Badawi. Moreover, that may have been done by some unknown third party as posited by the British Columbia Court of Appeal in R. v. Lee, [1996] B.C.J. No. 1196 (B.C.C.A.).

[75] Although he did not refer to it, Mr. Evans submits that the Court's analysis in R. v. Bui, [2014] O.J. No. 4003 (C.A.) obtains. That is to say Badawi must be acquitted because a reasonable doubt on all of the evidence exists. The conclusion that a reasonable doubt exists arises at a threshold significantly lower than a 'reasonable inference' from proven facts since whether a reasonable doubt exists must be assessed based on the totality of the evidence adduced at trial and not simply based on the proven facts.

[76] Mr. Evans urges that his submissions are not merely theoretical possibilities. It is agreed that the car was rented by someone other than Badawi. It is agreed that the gun was completely hidden from view. It is agreed that no specific evidence links him to the gun. It is agreed that the same holds true for the $1,000.00 and the cell phones. These facts preclude the rejection of the possibility, founded on this evidence, that someone other than Badawi hid the gun without Badawi's knowledge. Hence, an acquittal ought to be entered on all of the gun-related counts.

Decision

[77] With respect, despite Mr. Evans' able submissions, I disagree. As noted above, possession cases are fact-driven inquiries and where, as here, the proof is dependent upon circumstantial evidence some facts will have more probative value than others.

[78] I find that Badawi was the operator of and in control of the car in which the loaded weapon was found. That fact together with the other evidence, that I shall review, leads me to infer knowledge and control of the weapon by Badawi to the exclusion of any reasonable doubt. It is my view that on the cumulative effect of the evidence the only rational inference that can be drawn from the circumstantial evidence is that the accused had knowledge of the gun and exercised control over it. He is guilty as charged. Accordingly, subject to further submissions on the basis of Kienapple, I find Hazim Badawi guilty on all counts. My reasons for doing so follow.

[79] When Badawi was stopped by McGrath, Badawi's car reeked of the smell of fresh marihuana. As soon as Badawi lowered the front door passenger window McGrath was struck by an extremely strong odour of fresh marihuana. McGrath's testimony was corroborated by John Krajcovic, a Niagara Regional Police Service K9 officer. As soon as Krajcovic opened the front passenger door of the car just a crack, he smelled the odour of marihuana coming out of that door. That smell was present in the car before Badawi was stopped and while Badawi was its driver and lone occupant. The odour remained in the car even after McGrath had spent some time searching the car with the driver's door opened. That smell was recognized by Badawi and known to Badawi since Badawi concedes that he was in possession of a small amount of marihuana packaged in a small plastic baggie and hidden in his shoe.

[80] The amount of marihuana recovered by McGrath from the driver's door sleeve and from Badawi's shoe was insufficient to create the pervasive odour identified by McGrath. McGrath specifically testified that the small baggie of marihuana removed from the driver's door could not account for the odour in the car. While he did not say so expressly, I find that he was also of the view that the further small packet of marihuana that Badawi had in his shoe also could not account for the odour remaining in the car either alone or in conjunction with the door sleeve bag. Otherwise there would have been no need for McGrath to have Krajcovic proceed to search the car with his dog. I find that McGrath proceeded with the K9 search because he believed that the smell was either the remnant of a large quantity of marihuana that had recently been removed from the car or that there was some sort of hidden compartment containing a large quantity of marihuana that he could not locate. He wanted to determine whether it was the former or the latter. Despite my questions posed to Mr. Coppolino about the lack of expert evidence dealing with the creation and persistence of odours, I am of the view that McGrath's opinion are not matters of expert evidence but rather matters of common knowledge and experience. It something exudes an odour, a lot of it will give off more odour than a lesser amount. The greater the buildup of an odour in a confined space, the longer it will take to dissipate. These are prosaic and commonplace observations.

[81] In addition to the pervasive smell of marihuana, which I have found Badawi recognised and which I find he must have adverted to given its strength, there was also a package of rolling papers in plain view on the passenger door handle.

[82] Next I note that there were two small packages of marihuana in the car when Badawi was stopped by McGrath. One was in the driver's door sleeve. The other was in Badawi's left shoe as he was taken out of the car.

[83] Both packages contained essentially the same quantity of marihuana; 3.2 grams and 2.9 grams. In addition and to my mind significantly, both packages were packaged and secured in exactly the same way; that is to say, both were in a plastic baggie. In each case there was no twist tie or other closure mechanism. Rather, each baggie had been sealed exactly in the same fashion by someone having twisted the top of the baggie around and around and then having that twisted top folded over. The packages, then, were virtually identical.

[84] In my view it strains credulity and beggars the imagination to accept that Badawi, ignorant of anything else in the car, should merely by chance have virtually the same amount of marihuana in his left shoe as was hidden to his left in the driver's door sleeve packaged in identical fashion. Equally, it strains credulity that this should occur merely by chance while he was in control of a vehicle that stank of a pervasive odour of marihuana. Moreover, I am inclined to accept Mr. Coppolino's submission that Badawi put the baggie into his left shoe as he was being stopped, though I need not make such a finding.

[85] I am satisfied to the exclusion of any reasonable doubt that Badawi was in possession of both baggies. The one he admits to being in possession of and the one I find that he knew about and controlled in the driver's side door.

[86] Next, I note that Badawi had rubber bands on his left wrist and I note that the weapon was found within inches of him under the seat of the car that he was driving. Significantly, the handgun was oriented in a fashion that permits the inference, which I draw, that it was placed there using a right hand. Just as in Ali this gun was readily accessible by a simple reach from a seated position. In my view, Mr. Coppolino is correct that the rubber bands on Badawi's left wrist denote that Badawi is right-handed and that Badawi put those bands on his left wrist with his right hand.

[87] Likewise, I am satisfied in the face of these circumstances that Badawi knew about and was in possession of all of the other items that were within his arm's reach being: the weapon, the $1,000.00 located in the centre console and the three cell phones in plain view on the passenger seat, along with the rolling papers on the passenger's door handle. While the police could have done much more to investigate the three cell phones, their existence in plain view on the passenger seat, in conjunction with these other circumstances is a fact adding to the cumulative force of these other circumstances.

[88] As must be clear, it is the domino effect of the identical nature of the two bags of marihuana in the face of the pervasive smell of marihuana present in the vehicle that brings the totality of the circumstances into focus. The finding, which in my view is irresistible, that Badawi was in possession of the hidden bag of marihuana in the door sleeve compels the further inferences that he had knowledge of an was therefore in possession of the gun and the money and the cell phones and the rolling papers. Those further inferences flow naturally and irresistibly, as a matter of common sense and human experience. As I noted earlier at paragraph [46] I find it incredible and I am unable to accept that three (or fewer) individuals independent of each other either intentionally or forgetfully left the bag in the door, the loaded weapon under the seat and the money in the console and that Badawi was ignorant of that having occurred. Likewise, I find it incredible and unbelievable that a single individual intentionally or forgetfully left those three items in those places without Badawi's knowledge, given illegality of the weapon and the value of the money. The defence contention that it is a reasonable alternative hypothesis that Abdalla or some unknown stranger left a loaded handgun under the driver's seat without Badawi's knowledge is not a rational inference that can be drawn in the face of the cumulative effect of these other circumstances.

[89] On the defence view of the facts it is merely a coincidence that Badawi had the bag of marihuana in his left shoe, a coincidence unconnected in any way to the discovery of any of the other items found. With respect, I reject that submission as being untenable, unbelievable and simply not the case. The facts of this case go far beyond mere occupancy of a motor vehicle containing some hidden contraband. As Mr. Justice Hill noted in Anderson-Wilson there are a number of factors that can be considered:

(1) the physical proximity of the firearm to the accused: the gun was under his driver's seat within inches of him and oriented in a fashion that suggests it was placed there with a right hand and it is very likely that Badawi is right handed, given the rubber bands on his left wrist.

(2) the degree of visibility of the firearm: while the gun was not visible upon entering the vehicle, it was not hidden in an inaccessible spot; it was left hidden but available to the hand of the driver by simply bending forward and reaching down under the driver's seat;

(3) the degree of communal use of a vehicle containing the firearm: while Badawi did not rent the vehicle, other than inferring some initial use of the car to that man there is no evidence of any "communal" use;

(4) the size, nature and number of weapons in a particular space: an analysis using this focus asks one to consider the specifications, sizes and numbers of the weaponry – here a single handgun was found under the seat of a driver who was the sole occupant of the vehicle – these circumstances tend to allay rather than raise doubts about knowledge;

(5) the nature of other items located proximate to the firearm capable of providing context for inference of knowledge and control: - that is what these reasons have determined. For the reasons given I have concluded that the only reasonable inference to be drawn from the facts established on the whole of the evidence is that Badawi knew about and had control over the loaded gun beneath his seat.

[90] I agree with the Crown that the possibility that Abdelmunein Abdalla or an unknown third party hid the gun beneath the seat without Badawi's knowledge is no more than a speculation in the light of the proved circumstances. That is not to say that I accept the "completed drug-deal scenario" posited by the Crown. The Crown's burden was to prove Badawi was in possession of the weapon to the exclusion of any reasonable doubt. That it has done.

[91] While the Crown's case had gaps and while and a more complete investigation may have proven Badawi's guilt to a mathematical certainty that was not the Crown's burden. Such gaps as there are have not precluded me from being satisfied to the exclusion of any reasonable doubt about Badawi's guilt. As quoted previously from R. v. Pham, [2005] O.J. No. 5127 (C.A.) at paragraph [30]:

It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof especially for inferences consistent with guilt, but it does not demand certainty.

[92] Although the fact pattern between this case and R. v. Mufuta, 2015 ONCA 50 is completely different, a reference to Mufuta bears mentioning, particularly as Duncan J., the trial judge, found alternative scenarios to account for the DNA evidence adduced in that case to be fanciful or speculative and totally lacking in evidentiary support. Mr. Evans has urged that I take care not to reverse the onus of proof or place any burden on Badawi to provide an innocent explanation for any of the items located in the vehicle he controlled.

[93] I am alert to the applicable test for assessing guilt or innocence in a circumstantial case. The correct principles in such a case were identified, explained and applied in the many cases to which I have referred.

[94] I have expressly considered, as I am obliged to do, whether the Badawi's guilt was the only reasonable inference to be drawn from the facts established on the whole of the evidence. I have expressly instructed myself that the Crown must prove guilt beyond a reasonable doubt, which burden carries with it, in a circumstantial case, the duty of excluding all rational conclusions alternative to guilt. For the reasons given that is the conclusion that I have reached.

[95] I find Hazim Badawi guilty as charged on all counts.

Dated at St. Catharines this 29th day of January 2015

J.S. Nadel, (O.C.J.)