R. v. Prior

Ontario Court of Justice

Date: November 13, 2015

Court File No.: Central East - Newmarket 4911-998-14-08747-02

Between:

Her Majesty the Queen

— AND —

Geoffrey Prior

Before: Justice David S. Rose

Heard on: July 14, 15, 16, October 26, 27 and 28, 2015

Reasons for Judgment released on: November 13, 2015

Counsel:

• Jennifer Gleitman, for the Crown
• Michael McKee, for the defendant Geoffrey Prior

ROSE J.:

Charges

[1] Geoffrey Martin Prior is charged that on the 20th of November 2014:

• Count 1: He possessed a loaded restricted firearm, namely a handgun, at 41 Riverview Beach Road without being the holder of an authorization or licence permitting such possession at that place, contrary to s. 95(2) of the Criminal Code.

• Count 2: He possessed firearms, namely a loaded handgun and shotgun, without being the holder of a licence, contrary to s. 91(3) of the Criminal Code.

• Count 3: He stored firearms, namely a shotgun and a handgun, in a careless manner, contrary to s. 86(3) of the Criminal Code.

• Count 4: Between the 15th day of July 2014 and the 16th day of July 2014 he committed a break and enter at a business of 319 Pefferlaw Road, contrary to s. 348 of the Criminal Code.

• Count 5: He altered a VIN number of the motor vehicle, namely a 1999 Dodge Durango, contrary to s. 353.1(4) of the Criminal Code.

• Count 6: He possessed a motor vehicle not exceeding $5000, knowing that the vehicle was obtained by crime, contrary to s. 354(1) of the Criminal Code.

• Count 7: He possessed motor vehicles in excess of $5000 knowing that all property had been obtained by crime, contrary to s. 354.1 of the Criminal Code.

• Count 8: He altered a VIN number of a motor vehicle, namely a Mercedes, contrary to s. 353.1(4) of the Criminal Code.

Preliminary Matters

[2] During submissions Ms. Gleitman asked that I acquit Mr. Prior's co-accused, Ms. Page, of all charges and I did so.

[3] Also during submissions Ms. Gleitman asked that I acquit Mr. Prior of Counts 5 and 8, namely the alteration of the VIN number charges, which I did.

[4] These reasons for judgment therefore relate only to Counts 1, 2, 3, 4, 6 and 7.

[5] The defence has conceded that the issue in Counts 1, 2 and 3 is knowledge on the part of Geoffrey Prior and that the nature and state of the handgun and shotgun are not an issue. The defence conceded that Mr. Prior is not licenced to possess a firearm and that the weapons seized from 41 Riverview Beach Road on the 20th of November 2014 were not stored legally. The defence also fairly concedes that the motor vehicles referred to in Counts 6 and 7 were in fact stolen and the issue is whether or not Mr. Prior knew that at any time. Lastly, the issue with respect to Count 4 (the break-in at 319 Pefferlaw Road) is whether or not Mr. Prior was involved in any way with that break-in.

[6] The evidence was heard over July 14, 15, 16, October 26, 27 and 28, 2015.

The Evidence

DC Crook

[7] Detective Constable Crook is a member of the York Regional Police Service and attended at 41 Riverview Beach Road in Georgina on the 20th of November 2014 to execute a search warrant. The search was affected initially by the Emergency Response Unit breaching the door of the house and clearing it at 7:28 p.m., and then at 7:36 p.m. D.C. Crook and his team took over. At 8:00 p.m. he located a pistol in the exposed ceiling of the basement. As it turned out, the police had been directed to that location. The pistol he found was sticking out of the rafters, perhaps three-fourths of an inch, and contained a magazine with .22 calibre long ammunition inside it. There was a magazine in the chamber of the gun. It turned out to be a Browning .22 calibre pistol.

[8] Others in the search team located a shotgun a few rafters over from where the pistol had been located. The shotgun turned out to be a Remington Model 31.

[9] D.C. Crook secured the guns in his vehicle and returned to the residence to assist with the balance of the search. At some point he heard a voice at the front door, which turned out to be the accused Geoffrey Prior who appeared angry. Mr. Prior was not walking with a cane at the time.

[10] In cross-examination D.C. Crook testified that when he went into the basement he looked behind the furnace because D.C. Roots from his team said he should look there. He testified that he did not immediately locate the handgun, even though he had specific information about its location. He said it was not readily apparent.

Trevor Hosier

[11] Mr. Trevor Hosier is a registered psychotherapist who has a private practice in Lindsay, Ontario. He has office space at 319 Pefferlaw Road in Georgina where he works on Tuesdays. There is also a pharmacy at that location and the walls of his office touch it. On Tuesday, July 15, 2014, he went to his office at 319 Pefferlaw Road and noticed there was a window broken. He said that at the bottom of the ledge of the window there was a shattering of the glass the size of a quarter. It appeared as if it had been hit by a rock. On July 22 he went back to his office; the glass window was boarded up and there was a hole cut at the base of the wall to the pharmacy, which was about 14 inches in diameter in a rectangular shape. He said the hole was not there on July 15, and that he left his office on July 15 no later than 9:00 p.m.

Deborah Godfrey

[12] Deborah Godfrey testified that she's been working as a cashier at Ben's pharmacy for 10 years. Ben's Pharmacy is at 319 Pefferlaw Road. On July 16, 2014 she was working a shift from 9:00 a.m. to 5:00 p.m. When she got there she noticed a corner fridge which was out of place. There was hole in the wall. She thought that might be because there had been an attendance by Roger's Cable that day but was advised by a co-worker that was not the case. She was told that there had been a break-in and that most of the narcotics were gone.

[13] Ms. Godfrey knows Geoffrey Prior as a long-time customer of Bens pharmacy.

Christian Booth

[14] Christian Booth was a central witness for the Crown. Mr. Booth knows both accused because he is in a relationship with April Broderick, who is the step daughter of Mr. Prior. Mr. Booth and Ms. Broderick have one child, a girl named Sophie, who is now two and a half.

[15] Mr. Booth has no criminal record and knows 41 Riverview Beach Road because of April Broderick's relationship to Mr. Prior and Ms. Page who live there. He testified that he lived there for about three weeks several months after his daughter Sophie was born. And Sophie was born February 20, 2013. In his evidence he said that if he wanted to see Sophie he would have to live at 41 Riverview Beach Road because that is where April fled to. In Mr. Booth's evidence, April developed post-partum depression and started to drink. Mr. Booth stayed at 41 Riverview Beach Road for about three weeks, sleeping on a mattress on the floor in the living room. At that time 41 Riverview Beach Road had Geoffrey Prior, Wendy Page, April Broderick, himself, Geoff's daughter Jessica, Jessica's boyfriend, Isaac, Trevor and Isaiah, which are Wendy Page's children. It was a full house.

[16] Mr. Booth testified that he tried to be nice with Geoff and that everyone tried to get along. He testified that his relationship with April was "all right" but Mr. Booth did not want to work out on that side of Lake Simcoe. As a result there was confrontation. Mr. Booth said that he had no work contacts on that side of the lake and that things developed poorly for him at the accused's residence. As Mr. Booth described it, he didn't like to smoke in the house and he was not working there. There was nowhere to sleep and the number of people smoking cigarettes or marihuana in the house was adverse to his daughter Sophie who is asthmatic. Ultimately he got a court order for access to his daughter Sophie while he lived in Bradford or Cookstown. At one point Sophie stayed with his mother and Mr. Booth needed to formalize his Family Court documents in order to finally get access to his daughter Sophie.

[17] In November of 2014, Mr. Booth went to the York Regional Police because he was not getting access to his daughter Sophie. That access was being denied by Wendy Page, her daughter Jessica and Jessica's boyfriend. There was an altercation according to Mr. Booth which resulted in those three individuals removing Sophie from Mr. Booth's car and in his words "Grabbing me and attacking me." Mr. Booth went to the police to make a statement saying that he could not get his daughter because of that incident. Mr. Booth testified that he was told by the police that it would be a long time before he got Sophie back and that more paperwork would be required. That caused him to reflect on it and tell the police about what he had seen and heard at 41 Riverview Beach Road in order to get his daughter out of that environment.

[18] Mr. Booth described the environment at 41 Riverview Beach Road as one involving drugs and smoking in the house, selling OxyContin by Geoffrey Prior, which he witnessed.

[19] Mr. Booth testified that he did not want to get into any conflicts with Mr. Prior when he was living at 41 Riverview Beach Road because he was just trying to focus on getting his daughter out of the house and convince his partner April of the same. While Mr. Booth was living at 41 Riverview Beach Road he drove Mr. Prior to the pharmacy to get his prescription for OxyContin and at that time Mr. Prior told him that he had broken into that pharmacy and taken OxyContin. According to Mr. Booth, Mr. Prior told him that he went to the pharmacy to do the break-in with others but only Mr. Prior broke in to the pharmacy.

[20] Mr. Booth testified that he helped Mr. Prior get Mr. Prior's Mercedes Benz painted. He described the Mercedes as being greyish in colour, but that it looked like the car had been painted previously. Mr. Booth had friends who operated an auto shop called "FX" and Mr. Prior had asked Mr. Booth if he could get the Mercedes painted at that auto shop. The work was being paid for by an insurance company. Mr. Booth was light on the details of the location of the auto shop and the names of its operators, but he was clear that it was in Whitby.

[21] The Mercedes was ultimately taken to the "FX" auto shop to be painted and while it was there the operators of the auto shop called Mr. Booth to say there were problems ordering parts, which were to be replaced under the insurance claim. Mr. Booth elaborated that he was told by the auto shop that the serial numbers of the car did not match. Mr. Booth called Geoffrey Prior and told him that as a result of the problems matching the serial numbers of the car, Mercedes Benz wanted to go look at the car. Mr. Booth testified that upon hearing this Mr. Prior got very upset and said, "That can't happen." Mr. Booth testified that Mr. Prior did not want Mercedes Benz to go there to examine the car because the car was not legitimate. Mr. Booth said that when he spoke with Mr. Prior about the Mercedes Benz he said:

I said that Mercedes wants to look at the car. He said that can't happen, like it's a stolen car whatever and that – and that it would come up, like they would be able to find out.

From this Mr. Booth knew that the Mercedes Benz was stolen.

[22] Mr. Booth testified that he never owned any guns, nor did he ever have a firearm licence. Mr. Booth testified that while he was living at 41 Riverview Beach Road his cousin was over and the discussion turned to skeet shooting, at which point Mr. Prior showed them both a shotgun hidden in the ceiling of the furnace room in the basement. Mr. Booth described the basement as having an unfinished ceiling with duct work, which is where the shotgun was located. Mr. Booth described the gun being located within four feet of the furnace.

[23] The conversation between Mr. Prior, Mr. Booth and Mr. Booth's cousin about skeet shooting and the shotgun took place in the kitchen. He said there were at least five of them there at the time. Mr. Prior said to them that they should follow him and he would show them the shotgun, which caused them to follow him into the basement. He described the shotgun as not being a duck gun like his cousin's, but rather like an assault gun. He elaborated by saying that in the basement it was just himself, Mr. Prior and Mr. Booth's cousin. That was the only gun that he saw at the time but Geoff Prior said there were more guns. Mr. Booth said there were guns built into the walls of the house behind the drywall. Mr. Booth disclosed this fact to the police when they were interviewing him.

[24] In cross-examination Mr. Booth testified about where he and April lived during the course of their relationship. Mr. Booth testified that his partner April was effectively moving in and out of 41 Riverview Beach Road in 2013 but that those stays were not permanent and amounted to no more than a week or two. Mr. Booth would go to 41 Riverview Beach Road from time to time to visit with April and Sophia after she was born. He said if they needed something he would go up to 41 Riverview Beach Road, but he did not usually spend the weekends there. Once or twice those visits to 41 Riverview Beach Road included leaving April with Mr. Prior and Ms. Page so that they could go out for an evening on the town. After April left 41 Riverview Beach Road, she moved in with Christian Booth's mother, again only for a short while, about a month. Mr. Booth and April and Sophie continued to move around the area going into Barrie for about four or five months, then to Oro, after which April moved back to 41 Riverview Beach Road and Mr. Booth went to London, Ontario to work.

[25] By Christmas of 2013, Mr. Booth and April moved to Whitby and got an apartment across the street from April's sister Cara. That apartment housed them only for a couple of months. Mr. Booth testified that they left the Whitby apartment because he was fearful. He and April separated and at some point April moved back to 41 Riverview Beach Road. Mr. Booth was not clear about the exact dates of these movements, but did admit that around July of 2014 he moved into 41 Riverview Beach Road to be with April. They had a bedroom that was set up in the living room area, which was no more than a mattress on a futon frame on the floor. During this stay he described the environment at 41 Riverview Beach Road as being "friendly." Mr. Booth testified that after he moved out from that stay at 41 Riverview Beach Road he did not go back. Mr. Booth described an incident where he went to get his daughter Sophie with court documents, which he believed to be accurate, but there was an argument on the driveway that led to Wendy Page, her daughter and her daughter's boyfriend. Mr. Prior testified that he was robbed of his wallet and his keys at the time. Mr. Booth admitted that was the last day he was at 41 Riverview Beach Road, namely the day there was an argument in the driveway.

[26] That was the first day that Mr. Booth went to the police and complained. Mr. Booth followed up with a second statement to the police on November the 20th, but Mr. Booth was unclear when the second statement was relative to his first visit to the police station about the goings-on at 41 Riverview Beach Road.

[27] Mr. Booth did agree that his conversation with Mr. Prior about the car being stolen had occurred after he had moved out of 41 Riverview Beach Road. The conversation that he had with Mr. Prior about the break-in of the pharmacy occurred while he was staying there. He did not know exactly when Mr. Prior told him this relative to the actual break-in but he did elaborate by saying that Mr. Prior told him that he threw a brick or a rock through the window. He also said Mr. Prior admitted to climbing into the pharmacy through the window and that he took Oxys from the pharmacy. Mr. Booth did not hear Mr. Prior admit to cutting a hole in the wall, nor did he hear Mr. Prior talk about an alarm system. Mr. Booth testified that Mr. Prior told him there were accomplices that ran away but he did not know their names.

[28] Mr. Booth was cross-examined on the name of his cousin who attended at the house and gave the name Justin Gilcress.

[29] Mr. Booth denied being caught by Mr. Prior taking his pills and further denied that he was a heavy user of OxyContin in 2013 and 2014. He further denied smoking marihuana. He further denied having to leave Whitby in early 2014 in the middle of the night because he had committed a robbery. Mr. Booth did admit that when the detectives asked him for the name of the auto body shop where Mr. Prior's Mercedes was being fixed he could not give that detail. Nor could Mr. Booth give the police detective on November 20th any detail about persons that Geoff Prior had sold drugs to out of 41 Riverview Beach Road. Mr. Booth denied in cross-examination that the two firearms that were found at 41 Riverview Beach Road were his and that he put them there after committing a robbery in Whitby. Mr. Booth denied that after he moved out of 41 Riverview Beach Road in the summer of 2014 and was not able to re-enter the house that he lied to the police about the guns being Mr. Prior's because he was not able to retrieve any of his property, including the two guns.

[30] Mr. Booth initially denied in cross-examination telling the police about the handgun that was ultimately found but later, after being confronted with his statement to Detective Hurd on November 20th did admit that he told the police about the handgun as well as the shotgun.

[31] In cross-examination Mr. Booth was confronted with a page of an officer's notebook that confirmed Mr. Booth and his mother went to 3 District of the York Regional Police Service to make a complaint about not being able to get his child on September 28, 2014.

[32] During the course of Mr. Booth's evidence much hearsay evidence was elicited in the form of utterances by various persons including his partner April, an auto body shop owner and I charge myself that these utterances may be used for the purposes of a narrative or res gestae, but not for the truth of the contents.

[33] After being confronted with the September 28, 2014 date for his first statement to the police Mr. Booth acknowledged that was the last time that he would have seen his daughter. Mr. Booth was adamant that when he went to the police on September 28th he told them about how the house was being used as a drug house and had been raided many times before for that reason.

[34] In cross-examination Mr. Booth was clear that Geoff Prior did not tell him the Mercedes was stolen before the car went into the auto body shop.

[35] Mr. Booth was cross-examined on his failure to disclose all of the goings-on at 41 Riverview Beach Road when he first saw the police on September 28, 2014. His evidence was that he told both the police and the Children's Aid Society about drugs and guns being in the house. Mr. Booth denied counsel's suggestion that Mr. Prior never told him about either the weapons or the fact that the Mercedes was stolen or admitted that he had broken into the pharmacy.

[36] Mr. Booth denied telling Zach Sheehy about a break-in into a stash house in Whitby. He testified that he was worried that the people who were robbed would realize that he and April were related to April's sister Cara and her partner Zach because they went to their apartment often.

DC Roots

[37] DC Roots testified that Mr. Prior approached him outside the Courtroom during the trial, and said to him "Off the record…you do know who I bought those cars from, don't you?" Mr. Prior told DC Roots that the man he bought them from was arrested in a multi-million dollar ring, and that if DC Roots had done his homework, he would know this. Mr. Prior then said, "well his wife", which DC Roots took to mean that Mr. Prior had bought the cars from the wife of the man who had been arrested.

[38] Documentary evidence was tendered which showed that both the Dodge Durango and the Mercedes SL 500 were stolen. A police expert testified that the VIN Numbers for both cars had been altered, and after some effort he managed to uncover the original VIN numbers which, when checked, turned out to correspond to stolen vehicles of the same description. There is no contest from the Defence that the Durango and the SL 500 were indeed stolen vehicles.

Geoffrey Prior

[39] Mr. Prior himself gave evidence. He testified that he built 41 Riverview Beach Road 17 years ago and has lived there ever since. He described the house as having 4 bedrooms with 3 upstairs and 1 in the basement. Mr. Prior said that his bedroom was in the basement.

[40] Mr. Prior was asked about the substance of his criminal record in chief. He said that he once received a $5.00 fine after the police executed a search warrant and seized a small number of marijuana plants. He said that small meant perhaps 9 plants. He denied selling marijuana. Mr. Prior's criminal record was filed as Exhibit 26, as was the March 11, 2015 reasons of West J. which appear to correspond to the last line in his criminal record, namely a $5.00 fine with 2 years of probation for production of cannabis. West J.'s reasons, which are found at 2015 ONCJ 141 refer to a police discovery of 99 marijuana plants in various stages of growth.

[41] Mr Prior said that he uses a cane because of a catastrophic motor vehicle accident he was involved in in 2004. That accident has left him with limited mobility and ongoing pain.

[42] Mr. Prior admitted to knowing Mr. Booth as his stepdaughter April's boyfriend. He testified that April and Christian Booth had an on and off again relationship which he did not approve of. April had a problem with alcohol and post-partum depression after the birth of Sophie. Mr. Prior said that Mr. Booth had a drug problem himself, and that he has caught Mr. Booth trying to take his pills.

[43] Mr. Prior denied selling drugs. He was absolute when he said he had never sold drugs, "Never, never once." He denied ever selling his Oxycontin prescription pills or marijuana.

[44] Mr. Prior said that in the beginning of 2014 April lived in an apartment in Whitby near her sister Cara. He said that April moved there from Christian Booth's mothers place. Shortly after getting an apartment in Whitby Mr. Booth moved in with April. Mr. Prior did not approve of the volatility of their relationship, and was upset that Mr. Booth had moved in with April at that time.

[45] About 3 weeks after April and Christian moved in together in Whitby April had called Mr. Prior and Ms. Page in the early morning hours and asked to be picked up because she and Mr. Booth had had a fight. April then moved back to 41 Riverview Beach Road. Mr. Prior converted the living room of the house into a fifth bedroom. At that point there would have been 7 children living in the house. At some point Mr. Booth joined April at 41 Riverview Beach Road. Mr. Prior put that date as mid or early July of 2014. He said that Mr. Booth had lived there three times previously. For Mr. Prior it was a cycle where April would leave Mr. Booth, move back to 41 Riverview Beach Road, only to be joined by Mr. Booth later. That was one of the reasons why he described his relationship with Mr. Booth as being very strained.

[46] Mr. Prior testified that he doesn't drive and relies on his wife Wendy to get around. He admitted to losing his licence medically because of the motor vehicle accident.

[47] Mr. Prior said that when Mr. Booth moved to 41Riverview Beach Road in July of 2014 he was only there for 3 – 4 weeks, and within that period Mr. Booth was gone for about 6 days. That was a sudden departure after he and April got into a fight.

[48] Mr. Prior admitted to being the owner of 2 motor vehicles. One was a 1999 Dodge Durango, and the other was a 1999 Mercedes SL 500. He said he bought them from a friend of a friend's wife who had passed away. It was, he said, an estate sale and they lived in Sutton. The seller was Juanita Nicholson, and the estate was that of her father Glen McCarthy. Juanita Nicholson's husband is Jamie Nicholson. Mr. Prior said he had no idea either of the cars was stolen. He said he found that out at the time of his arrest.

[49] Mr. Prior described that a tree fell on the Mercedes and an insurance claim was put in which resulted in the car being fixed by an uncle of Mr. Booths named George. According to Mr. Prior Mercedes kept sending out the wrong part for the sun visor, but Christian Booth never talked to him about the car being stolen. He said he dealt with only George at the repair shop. Once the car was at George's shop all his dealings were with him. He said that George's shop was a large very well established business.

[50] Mr. Prior denied telling Mr. Booth that he broke into Ben's pharmacy. He said that he learned about the Break in from the pharmacist Ben. He said he told this to Christian after he learned it from Ben. Mr. Prior said that he was not physically able to climb into the pharmacy through the boarded up window. In other words, he said he couldn't have been physically able to do the break in because of his various documented injuries.

[51] Mr. Prior denied owning any firearms, and denied ever owning a shotgun or a handgun. He had no knowledge of either the shotgun or handgun in the house. He denied ever talking to Mr. Booth about the guns. He said that the cousin, who Mr. Booth said was a party to that conversation, had never been in his home. He had come once to the property when April had kicked Chris out of the house. The cousin had come in Chris' Jeep to pick up Chris, but never stepped one foot in the house, but stayed on the driveway only. Mr. Prior denied ever confiding in Mr. Booth because he doesn't like him or trust him.

Zachary Sheehy

[52] Mr. Prior called Zachary Sheehy to testify. Mr. Sheehy's common law partner is Cara Prior, Geoffrey Prior's daughter. He said that in November of 2012 April Broderick came to live with them in Whitby. She ultimately found an apartment across the street before Christmas. At that time, April's partner Christian Booth started coming around, which was concerning to them, because Zachary and Cara believed that April had been doing a lot to leave Christian. Zachary said that he and Cara became the care givers for Christian and April's daughter Sophie. During this time Zachary heard Christian say that he was involved in a robbery and was scared for his life. Christian seemed shaken up, and shortly after that he and April moved out. Christian didn't say whether he was the culprit or the victim of the robbery, but Mr. Sheehy had the impression that he was the culprit.

Cara Prior

[53] Cara Prior also testified for the defence. She said that she is April Broderick's sister. Cara Prior testified about events that occurred during the birth of April and Christian's daughter Sophie. She said that Mr. Booth was present physically, but not mentally. He was in the delivery room but was hostile with the medical staff. She described Mr. Booth as controlling, and having an alcohol and drug problem.

Findings

Since Mr. Prior testified, I apply the W.D. analysis. Firstly, do I believe Mr. Prior's testimony?

[54] Mr. Prior's evidence has certain frailties, which I would list as follows:

i. Mr. Prior testified in chief about the basis for the $5.00 fine he received after pleading guilty to production of marijuana on March 11, 2015. He said it was from a small seizure - 9 plant plants. In fact it was a 99 plant seizure, which I find is not a small seizure. I find that this amounts to a deliberate minimization of his past criminal involvement. This guilty plea was only 7.5 months prior to his evidence about it, and so would have been relatively fresh in his mind.

ii. Mr. Prior said that his May 22, 2012 conviction for possession of marijuana was not based on a police seizure of 45 plants. He said that it was 9 plants cut up. He explained that his plea before Bourque J. was based on facts that weren't true, namely the size of the seizure. As he said, "If 45 plants or 9 plants it didn't matter to me. It was just – I was just getting the charges plead with and dealt with." His explanation for the 2012 plea before Bourque J. was that the size of the seizure was not correct but that it didn't matter. This is some evidence of Mr. Prior's lack of interest in being accurate with the Court. After the Court recording was played for Mr. Prior he continued to resist the truth of the facts of the guilty plea. He said "…Im not going to debate whether it was 9 or 45, its fine, I'll say 45."

iii. Mr. Prior said he had never sold drugs, but he has a 1991 conviction for trafficking in a narcotic for which he received a 90 day jail term.

iv. He denied in cross-examination ever meeting Mr. Booth's cousin or even knowing what he looked like. That was the same cousin who Mr. Booth said had heard Mr. Prior admitting to owning the guns. But this contradicts his evidence-in-chief where Mr. Prior said that Mr. Booth's cousin was at the house in the driveway. Mr. Prior would only know that Mr. Booth's cousin was in his driveway if he knew what that man looked like. This is an internal inconsistency in his evidence about a point which I would describe as more than peripheral.

v. Mr. Prior testified that in the summer of 2014 he had a lock on his bedroom door, but not a key lock. In Mr. Prior's guilty plea West J. found that in the fall of 2013 Mr. Prior's house had access to all rooms restricted by locks which Mr. Prior had the only keys. This is an external inconsistency, but I find not a substantial one. I place some minimal weight on it.

vi. Mr. Prior testified that he registered both the Durango and the SL 500 to 292 Duclos Point Road, Pefferlaw, where he stayed for a period of only several days some time ago. This was confirmed in the documentary evidence. He explained that he did this because of a very short break up with Ms. Page. He said that he never went back and re-registered the vehicles to 41 Riverview Beach Road. He never moved the cars to the Duclos Point Road address. Mr. Prior struggled to explain why he would do this, and admitted that he could have even got the Duclos Point Road address wrong. He was left to describe all of this as very irrational on his part. I found his explanation completely wanting and inadequate. His evidence of registering two cars to an address which was not his, and may not even exist, is very suggestive of an attempt to own the vehicles under false public documentation. His explanation of it merely being irrational does not have the ring of truth to it. Mr. Booth comes across as a person who managed to build his own house and provide for an extended family even though he has suffered a very serious injury. He does not impress me as an irrational person.

vii. He denied in cross-examination that there were any guns in the house of 41 Riverview Beach Road. When confronted with pictoral evidence of pellet guns and knives being seized in upstairs bedrooms he gave a very long winded answer which effectively denied the fact that numerous weapons were actually found elsewhere in the house, and not just the basement. This is an external inconsistency to his evidence.

viii. When it was suggested to him that he was boasting to DC Roots in the hallway of the Courthouse about DC Roots not doing his homework on the stolen cars he gave a very long winded answer which was only minimally responsive to the question. I got the distinct impression that Mr. Prior did not want to answer the question, but rather wanted to tell me what he wanted. In this sense he was an evasive witness.

ix. Lastly, Mr. Prior has a criminal record, albeit dated, for offences of dishonesty, namely Theft in 1986, Possession of Stolen Property in 1986. This detracts from his credibility.

[55] For the forgoing reasons I do not believe Mr. Prior, and find him to be a witness unworthy of belief. I reject his evidence as contrived. That said his evidence does raise a reasonable doubt about the Break and Enter charge. I accept that he does in fact suffer long standing physical impairments from a significant traffic accident. Precisely how much this affects him I cannot say, but I do find that his physical injuries raise a reasonable doubt about his ability to Break into the Pharmacy as alleged in Count 4. That, coupled with the lack of physical evidence tying him to the Break in either at the scene or at 41 Riverview Road leads me to conclude that it would be unsafe to convict him of Count 4. The Crown has not met the high onus and he will be acquitted of Count 4. His evidence does not otherwise raise a reasonable doubt about any other Counts on the Information.

[56] Having rejected his evidence, but saying that it does raise a reasonable doubt about Count 4, I now examine the evidence I do accept in order to determine if the Crown has proven the remaining Charges beyond a reasonable doubt.

[57] I find that Mr. Booth's evidence has some inconsistencies. His evidence is at odds on the issue of the Whitby Robbery with Mr. Sheehy. Mr. Booth denies talking to Mr. Sheehy about it, but Mr. Sheehy says he admitted to being involved. The evidence provides nothing more about it. If I accept Mr. Sheehy's evidence on the point, how exactly was Mr. Booth involved in the robbery? Was he a culprit or a victim? When was it? What happened? Was a firearm involved? There is no evidence before me to answer any of these questions. Mr. Booth's evidence is therefore only externally inconsistent with the utterance received by Mr. Sheehy. Under the circumstances I find that this is a very peripheral issue, and one which does not detract from Mr. Booth's credibility in any meaningful way.

[58] Mr. Booth was challenged vigorously on this testimony but was consistent in his evidence that he was told by Mr. Prior that the Mercedes was a stolen car, and that Mr. Prior also showed him the shotgun in the furnace room. I recognize that at times Mr. Booth was somewhat evasive, and often demanded to take a lie detector test. But his evidence on those two pivotal issues was internally consistent. His evidence did have ambiguities, such as dates and times, but I found him to be candid in his admissions of his own failings. He did not attempt to explain or hide those facts which he did not know. Mr. Booth's inability to recall details to some minimal extent detracts from the reliability of his evidence. Mr. Booth in cross-examination was also difficult in as much as he described some of the suggestions being put to him as funny, however I cannot find any internal or external inconsistencies in his evidence which rise beyond minimal.

[59] Significantly, Christian Booth's evidence that he was told by Mr. Prior that the Mercedes Benz was stolen was confirmed by the police who discovered just that. There is no evidence that Mr. Booth would know that fact other than being told by Mr. Prior. There is no explanation of how Mr. Booth might possibly come into that knowledge were it not true that Mr. Prior told him. There is nothing in the appearance of the Mercedes Benz that would notify any passerby that the Mercedes was stolen. That is a pivotal fact because it is an inculpatory admission on the part of Mr. Prior.

[60] Mr. Booth had little to say about the Durango. He drove it occasionally, as did the others in the house. It was an operating motor vehicle, unlike the Mercedes Benz. The Durango was similarly registered to an address in Pefferlaw, which is suspicious. But Mr. Booth did not testify that Mr. Prior admitted that he knew the Durango to be stolen. The documentary evidence suggests that the Durango was reported stolen to Peel Regional Police on June 14, 2001 and registered to Mr. Prior in 2009, several years later. While Mr. Prior was the titled owner of the vehicle, and therefore was in possession of it, I have some doubt about his knowledge of the fact that it was stolen, and it would be unsafe to convict him of this count. He is therefore acquitted of Count 6.

[61] Another pivotal piece of evidence from Booth is his testimony that he was shown the location of the shotgun in the basement of 41 Riverview Beach road by Mr. Prior. This evidence was confirmed insofar as DC Crook found the shotgun where Mr. Booth had described. There is no evidence elsewhere in the trial that Mr. Booth himself handled the guns or otherwise put them there. Any suggestion that Mr. Booth was the culprit in a robbery, used the guns in that robbery and put them in 41 Riverview Beach Road unbeknownst to Mr. Prior is not born out on the evidence. It is therefore speculative to suggest that Mr. Booth put the guns there himself. I accept Mr. Booth's evidence that Mr. Prior discussed having guns hidden in the house, showed the shotgun to him and therefore find that Mr. Prior had the required knowledge and control of the shotgun. I also find that the handgun was in the possession of Mr. Prior by virtue of being in the house he built and lived in, and had admitted to possessing guns secreted in the house, of which the handgun was one such weapon. I also look to the proximity of both guns to each other and to Mr. Prior's bedroom as evidence that Mr. Prior knew of the existence of both guns in the furnace room. Having found that Mr. Prior knew that the shotgun was in the rafters of the furnace room, it is inconceivable that he did not also know of the handgun similarly hidden only feet away from the shotgun. He is guilty of possession of both weapons.

[62] In the result Mr. Prior is acquitted of Count 4, 5, 6 and 8, and found guilty of Counts 1, 2, 3, and 7.

Released: November 13, 2015

Signed: Justice David S. Rose