Court Information

Ontario Court of Justice

Between:

Her Majesty the Queen

C. Lindo-Butler, for the Crown

— and —

Toray Holman

G. Tomlinson, for the accused

Heard: June 8, 29, 2017

FELDMAN J.:

Introduction

[1] Toray Holman entered not guilty pleas to the following charges: knowingly being in unlicensed possession of a restricted firearm; occupation of a motor vehicle knowing that there is a restricted firearm in that vehicle; possession of a loaded restricted firearm without an authorization or license; breach of a firearms prohibition order; breach of probation.

[2] Based on information from two confidential informants that Mr. Holman was in unlawful possession of a firearm, police obtained warrants to search the defendant's residence and car. On June 28, 2016, surveillance officers observed his mother being dropped off at the suspect address in a Nissan Altima, purported to be the vehicle ordinarily driven by the accused.

[3] Police later observed Mr. Holman leaving a second suspect address carrying a knapsack. He got into a taxi that drove into a gas station. Shortly thereafter, an Audi, driven by a close friend of the accused, entered the station and parked behind the taxi. Mr. Holman got out and spoke to the driver, returned to the taxi to retrieve his knapsack and then got into the back seat of the Audi. It drove off.

[4] A senior officer instructed the surveillance officers to detain and investigate the defendant. They did so on Kingston Rd. The knapsack was searched and a firearm found. Mr. Holman was arrested. He denies knowledge of the firearm.

[5] In an earlier ruling, I found the search warrant valid, the search lawful and the firearm admissible in evidence.

[6] I must weigh the credibility of the evidence and witnesses in making my findings of fact. I am mindful of the burden of proof on the Crown.

The Evidence

[7] On June 28, 2016, officers from the Guns and Gangs Task Force conducted surveillance on 29 Dunford Rd., in Toronto, where Mr. Holman lived with his mother. At 9:14 p.m., a Nissan Altima drove up to the residence. The defendant's mother got out of the car and entered her home. The Nissan was a target of the search warrant.

[8] At 11:40 p.m., Mr. Holman and George Young, a friend and co-worker of the accused, left 9 Cheatham Ave., a second suspect address, and entered a taxi. D.C. McNeil observed that Mr. Holman was carrying a laptop bag in front over his shoulder. The taxi was followed to 80 Mornelle Crt., where Mr. Young got out and entered that residence. He was empty-handed. The defendant remained in the rear seat.

[9] D.C. Wolcoupe followed the taxi. He saw it enter a gas station. He and D.C. Tanouye observed an Audi drive up and park behind the taxi. Mr. Holman got out and spoke to the driver, then retrieved his bag, slung it across his shoulder, and entered the Audi. The officers followed the Audi as it made its way to Kingston Rd. east and entered the left lane for Rylander Ave. There, D.C. McKenzie called for a takedown. From that point, it was about a five-minute drive to the defendant's home.

[10] Police drew their guns during the takedown. There were safety concerns given that this was a firearms investigation. As well, the accused was seen entering the Audi bearing a satchel that D.C. Tanouye believed, in light of the allegations in the search warrant, might contain a firearm.

[11] D.C. Tanouye testified that the defendant, as instructed, kept his hands in the air as he approached him with his gun drawn. The bag was across his chest with the back part on his lap. The officer took the accused, who was compliant, out of the car and with the assistance of D.C. McNeil handcuffed him. D.C. Tanouye placed the bag on the ground. He described it as having some "heft".

[12] D.C. McKenzie looked in the satchel and found a firearm. He alerted his colleagues. He rendered the firearm safe by removing the clip and ammunition. One round was in the chamber. The gun was ready to fire. In addition, he found two additional magazine clips with ammunition. He also found a broken I-Phone.

[13] At 12:30 a.m., D.C. McKenzie and his colleagues executed the search warrant at 29 Dunford Rd. Nothing was seized.

The Defendant's Evidence

[14] Mr. Holman testified in his own behalf. He is 27 years old. He resides at 29 Durnford Rd., apt 203, with his mother and brother. His criminal record includes: threaten death, possession of stolen property, fail to comply with a recognizance and obstruct peace officer. He is subject to a weapons prohibition order.

[15] Prior to this, the defendant had completed the 'Breaking the Cycle' program that was designed to help offenders with life skills and job applications. On June 28th, he was on the second day of a job working in the stock room at Giant Tiger. He travelled there by public transport with George Young, whom he knew for two months after befriending him at 'Breaking the Cycle'.

[16] Mr. Holman told the court that he brought the laptop bag to work. He says he packed clothes in it, sometimes lunch, as he did at 'Breaking the Cycle'. He packed an extra sweater and his lunch on June 27. He does not recall what, if anything, he packed in the bag on June 28 but knows he did not bring his lunch. This is inconsistent with his testimony on Feb. 9, 2017, on an application challenging the lawfulness of the search warrant. Then, he testified that he packed extra clothes in the bag in the morning. He describes that now as a mistake and believes he might not have packed anything. On this evidence, it permits the defendant, given his Feb. 9 testimony, to distance himself from responsibility for the contents of the bag on June 28.

[17] Mr. Holman told the court that he left the bag in a back room on June 27, the next day in the cafeteria. George did not have his own bag, asked to use it and was permitted to do so. On June 28, the defendant went from work to a party at 9 Cheatham Ave with George. He said there was nothing unusual about the weight of the bag. This stands in contrast with his evidence on Feb. 10, that on June 28, "my bag was heavy, there was a lot of clothes in there and stuff". He claims, as well, to be mistaken about this prior testimony.

[18] The defendant was at the party for 7 hours until 11:30 p.m. He left his bag somewhere in the living room by one of the couches. He testified that he consumed half a bottle of brandy, 1-2 tall-boy beers, 5 bottles of beer and about 7 joints. He says he became very drunk, as well as high on marihuana. He suggested that others at the party had access to his bag.

[19] Mr. Holman took a taxi home with George. He dropped his friend off at 80 Mornelle Crt. It did not appear that George was carrying anything as he left the taxi. The defendant testified that Jamil, someone he considers a brother, then called him to meet at a nearby gas station, which he did. There, Jamil pulled in behind the cab. Mr. Holman got out and said he paid him some rent money. Jamil offered to drive him home. The defendant retrieved his bag, put the strap across his shoulder and got into Jamil's Audi. He left the bag on his shoulder as he was 5 minutes from home.

[20] Shortly thereafter, he was arrested after a police takedown. He was handcuffed and placed on the ground. He says he was surprised to hear an officer yell, "gun". He said he does not know how the firearm got into the bag.

[21] Police found a broken I-Phone in the bag. Mr. Holman says that belonged to George. There were also some pills and an empty Tupperware container, but nothing else. The bag was almost empty. The defendant claims not to have noticed a difference in the weight of the bag since he took it to work in the morning. He says he did not feel the weight of the iron firearm and 2 metal cartridges, nor hear metal on metal.

[22] The defendant gave evidence that he was high on drugs and very drunk, the implication being that his ability to sense the increased weight of the bag was diminished. In this regard, P.C. Tanouye testified that he saw little sign of intoxication. He found Mr. Holman responsive and steady on his feet. Of significance, the booking video provides some perspective on the defendant's assertion. Mr. Holman can be seen walking normally into the booking hall. He is immediately responsive to all questions posed by the officer. His speech is not slurred. He stands straight and moves well. He initiates and takes charge of a discussion about the amount of money he came in with, some of which he claims is missing and refuses to sign documents because of that. He is articulate, persistent and focused. He told the booking officer that he had 4-5 beers and a "blunt" just before the police arrested him. This does not line up with his testimony.

Positions of the Parties

[23] Mr. Tomlinson, for the accused, submits that the evidence permits the circumstantial inference that either George or some unknown person from the party at Cheatham Ave placed the firearm in Mr. Holman's bag for unknown reasons and without informing him. He says that given his inebriated state, it is possible the defendant did not feel the extra weight in his bag.

[24] Ms. Lindo-Butler, for the prosecution, submits that the defendant's evidence is not credible, that there is no air of reality to the defence of an unknown party placing a firearm in the bag and that the presence of this valuable and dangerous item in Mr. Holman's bag was unlikely to be the subject of innocent possession.

Has the Crown Proved Unlawful Possession of the Firearm?

[25] Mr. Holman denies knowledge or control of the firearm. In his evidence, he implies that he possessed the bag for an innocent purpose and was unaware that somehow and for unknown reasons some person placed the firearm in the bag without informing him.

[26] There are material aspects of the defendant's evidence that are problematic. His testimony on Feb. 9 and 10 during the search warrant challenge is materially different from his trial testimony concerning the contents of his bag and his awareness of what was in it on June 28. I am mindful that his earlier evidence is not admissible for its truth, but for the limited purpose of impeachment.

[27] On Feb. 9, Mr. Holman told the court that on June 28, the bag was heavy with a lot of clothes he had placed in it. On Feb. 10, he repeated that assertion. I infer he said so to suggest that the weight of the clips and firearm would not have drawn his attention.

[28] In trial testimony, however, he said he made a mistake in this regard and that he does not recall if he packed any clothes on that date. Had he maintained his earlier admission, it would permit the inference that he was aware there were no clothes and little weight attached to his near-empty bag. In my view of the evidence, his belated lack of recall was convenient. It would otherwise have belied his failure to be aware of the "heft" in the bag, noted by P.C. Tanouye, and diminish his claim of innocent possession.

[29] Mr. Holman reinforced his more recent narrative by testifying that he was high on marihuana and very drunk. He told the court that while at the party he consumed one-half bottle of brandy, 1-2 tall boy beers, 5 bottles of beer and 8 joints.

[30] By contrast, he informed the booking officer he had 4-5 beers and "just a blunt". In addition, the booking video indicates that the defendant's motor skills and cognition were normal. This is a material inconsistency. I don't accept the implication in the defendant's evidence that his inebriated condition diminished his capacity to have a sense of increased weight in the bag.

[31] I consider these material inconsistencies to be contrived and self-serving. I would be cautious in relying on the defendant's evidence. This conclusion is reinforced by the inference that in the circumstances here it would be speculative and contrary to human experience that an item of this nature would be the subject of "unknowing possession": R. v. Balasuntharam, [1997] O.J. No. 6517 (Ontario Court of Justice (General Division)), at para. 31; affirmed [1991] O.J. No. 4861 (Ont. C.A.), at para. 2.

[32] For example, in R. v. Gagliardi, 2005 CarswellOnt 1543 (Ont. S.C.), following his arrest, the accused asked his spouse to attend a rental van company to pick up his truck that had been locked. She did so and removed a shotgun that she took home and placed with a second shotgun. She called the police to remove them. Police also found a handgun and butterfly knife in the console of the truck. The accused was charged with weapons offences.

[33] The defence suggested that perhaps the defendant lent his truck to someone he knew who left the gun in the vehicle. Sproat J. was of the view that this possibility was "in the realm of speculation and an unreasonable and unlikely scenario". He said, at p. 7, that a person leaving a gun in those circumstances would be parting with a "valuable asset and dangerous item", exposing himself and Gagliardi to prosecution and potential loss of liberty.

[34] In coming to this conclusion, Justice Sproat found it helpful to bear in mind the common sense admonition by Chief Justice McEachern in R. v. To, [1992] B.C.J. No. 1700 (B.C.C.A.), at p. 8, 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".

[35] In R. v. Amare, 2014 ONSC 4119, [2014] O.J. No. 5225 (Ont. S.C.), police, acting on a tip, stopped the accused's vehicle. A search turned up a significant quantity of the drug, Ecstasy. The Accused claimed he had loaned his vehicle to another individual just prior to being stopped and suggested that person must have placed the drugs in his car. He said he had no knowledge or control of the drugs.

[36] Justice Hill was of the view, at paras. 110 and 111, that it was a matter of logic and common sense that the owner of the illicit drugs was "unlikely to place his or her valuable contraband in the vehicle of some uninvolved third party, unguarded, unconcealed, discoverable and beyond the reach of easy discovery…". He considered the circumstantial inference relied on by the defence to be both speculative and unreasonable.

[37] In the case at bar, there is no confirming evidence that the I-Phone in the bag belonged to George, nor does it make common sense that he left the taxi without the firearm, were it his. While carrying the bag, Mr. Holman kept it mostly attached to his person. I am not left in reasonable doubt on this evidence that the effect of intoxicants on the defendant rendered him unable to perceive the "heft" in the bag and its significance.

[38] On the evidence, it would be speculative to infer, without more, that George secreted the firearm in the bag for reasons of his own and without informing the defendant, more so an unknown person at the party on Cheatham Ave. On this evidence, the possibility that such an individual would part with this "valuable" and "dangerous" item in such circumstances is an unreasonable one and does not comport with real life, nor does it leave me in reasonable doubt that he or she did so. I am not left in reasonable doubt by the evidence of the accused, or the remaining evidence that I do accept, that Mr. Holman was in innocent possession of the firearm. He will be found guilty on all counts.

Released: August 14, 2017

Signed: "Justice L. Feldman"