WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2017-10-24

Court File No.: Toronto 16-Y50595

Between:

Her Majesty the Queen

— and —

H.A.H. (a young person)

Before: Justice David A. Fairgrieve

Heard on: August 14 and 24, 2017

Oral Reasons for Judgment given: August 24, 2017

Written Reasons for Judgment released: October 24, 2017

Counsel:

• Katherine Rogozinski — counsel for the Crown
• Elliott Willschick — counsel for the accused H.A.H.

Judgment

FAIRGRIEVE J.:

The Charges

[1] H.A.H. was charged under the Youth Criminal Justice Act with a number of criminal offences he allegedly committed in Toronto on September 23, 2016, when he was 17 years old. The Crown proceeded by indictment on the following three charges, all relating to the loaded sawed-off shotgun found in the car he had just been driving:

• Count 2: possession of a prohibited firearm (s. 92(1));
• Count 3: occupying a motor vehicle knowing that a prohibited weapon was present (s. 94(2));
• Count 4: possession of loaded prohibited firearm (s. 95(1)).

[2] The defendant pleaded not guilty to the charges.

The Crown's Case

[3] The Crown's case consisted, first, of a statement of "Admissions," signed by both counsel, filed as Ex. 1. In addition, oral evidence was given by the defendant's mother, K.I., the registered owner of the car in question, and by four police officers who had been involved in the investigation. Two uniformed officers, P.C. Bahula and P.C. Gandhi, had first observed the partly-concealed shotgun on the floor in front of the front passenger seat, immediately after the defendant parked the car and he and the other occupants got out and left the area. Det. Allen supervised both the execution of a warrant to search the car the next day and the taking of photographs of the vehicle and its contents. Finally, Det. Cst. Matthew Ellis testified concerning his examination and compilation of video surveillance clips taken by 20 different security cameras at the apartment building at W[…] Road, part of the Toronto Community Housing complex known as S[…], where the defendant lived with his mother and siblings in a nearby townhouse.

[4] Det. Cst. Ellis prepared a detailed summary of what was shown on the overlapping video clips, filed, on consent, as Exhibit 4, which Crown counsel, Ms. Rogozinski, used to prepare a consolidated chronology entitled "Surveillance timeline," filed as Exhibit 8, when the trial continued on a later date. Mr. Willschick, on behalf of his client, admitted that the contents of both exhibits were accurate and that the evidence on which the Crown relied was not in dispute.

[5] No evidence was called by the defence.

[6] Both counsel agreed that the sole issue at trial was whether the Crown had proved beyond a reasonable doubt the knowledge and control necessary to make out the defendant's possession of the firearm in question, an essential element of the offences charged in Counts 2 and 4, and the defendant's knowledge of its presence in the motor vehicle, part of the requisite mental element of the offence in Count 3.

[7] The purpose of these reasons is to summarize the evidence upon which the Crown relied, all of which was eventually conceded by the defence to be accurate, to state the legal principles applicable to the issue identified by the parties, and to explain the reasons why I concluded that the Crown had indeed met its burden of proving the defendant's guilt beyond a reasonable doubt concerning each of the three charges.

The Admissions and Evidence

[8] The written statement of "Admissions" consisted of the following:

Jurisdiction

1. Jurisdiction and date are admitted.

Photographs, Maps and Surveillance

2. It is admitted that the photographs, maps and surveillance [i.e., security camera video clips] tendered by the Crown are fair and accurate.

Continuity

3. Continuity of exhibits is admitted.

Vehicle

4. It is admitted that H.A.H.'s mother, K.I., was the registered owner of the green Toyota sedan with licence plate […] on September 23rd, 2016. She had been the registered owner of the vehicle since June 6th, 2014.

License/Registration Certificate

5. It is admitted that H.A.H. does not and has never had a licence or registration certificate to possess a firearm.

Firearm, Ammunition, and Magazine

6. It is admitted that a sawed-off shotgun and magazine were recovered inside the green Toyota on September 23rd, 2016. The sawed-off shotgun is a prohibited, operable firearm. The firearm was loaded with one cartridge of ammunition in the chamber. The cartridge of ammunition from the magazine was tested and fired in the firearm in question.

7. It is admitted that the firearm and ammunition were tested for DNA and fingerprints. All items came back negative.

[9] P.C. Bahula and P.C. Gandhi, the uniformed officers who had been patrolling the area on the night in question, both testified concerning their observations. Since much of their evidence was confirmed by the video clips and superseded by a chronological narrative admitted by the defence to be accurate, the minor discrepancies in their evidence were not suggested to be significant.

[10] Both officers testified that on the evening of September 23, 2016, they were patrolling the S[…] area in a marked police cruiser, as part of the Toronto Police Services strategy to reduce gun violence in that part of the city. At about 9:00 p.m., they were at the intersection of T[…] Crescent and W[…] Road, when both P.C. Bahula and P.C. Gandhi saw to the south a vehicle coming from a parking lot in the S[…] housing complex. The car turned and started to proceed north. When it appeared that the occupants of the car saw the police cruiser, the vehicle stopped suddenly. It then reversed, before making an abrupt turn to drive back into the parking lot it had just been leaving. (The officers were evidently not able to observe – as the video clips disclosed and the defence eventually admitted - that the defendant quickly jumped into the driver's seat of the car, after it had reversed and stopped briefly in the driveway in front of W[…]. It was eventually conceded that the person who had been driving, E.D., had moved then into the front passenger seat, and the defendant drove the car back into the parking lot and parked it.)

[11] Because they regarded the car's apparent attempt to avoid the police as suspicious, P.C. Bahula and P.C. Gandhi then turned south and drove to the parking lot themselves. As they arrived, they observed four occupants exiting from the now parked vehicle. Three of them went towards the entrance to the building at W[…], while the fourth went off in a southwest direction. P.C. Bahula described all four occupants of the car simply as black males, thin build, about 6 feet tall, between the ages of about 17 and 28. Since Det. Cst. Ellis subsequently testified that he was able to reconstruct the event from the surveillance videos and to identify each of the four individual occupants who got out of the car – again, with the agreement of the defence that the identifications were accurate – the vague descriptions provided by the uniformed officers, made from a distance with limited lighting, turned out not to be significant. Indeed, as already stated, Mr. Willschick eventually agreed that H.A.H. drove the car back into the parking space, that E.D. was the driver when the car started to go north, but then stopped and reversed back to the south, and that A.T. and J.A. were the passengers in the back seat. It was not disputed that these were the four young men the officers saw getting out of the car, and that the defendant was the person who went off, at least initially, in a southwest direction, while the other three went directly into the building at W[…].

[12] Both P.C. Bahula and P.C. Gandhi separately looked inside the parked car from the outside and observed what appeared to be a sawed-off shotgun, partly covered by a black backpack, in the foot well in front of the front passenger seat. The officers both testified that they could see the barrel of the shotgun protruding from under the backpack on top of it, pointed towards the front of the car. In cross-examination, P.C. Bahula agreed that he used his flashlight looking into the passenger side of the vehicle, and that he could not say if the firearm would have been visible without it. Similarly, P.C. Gandhi testified that the gun was readily seen, but agreed, in cross-examination, that from outside the driver's door, even using a flashlight, he was not able to see it, evidently because it was on the floor next to the centre hump on the passenger side.

[13] Det. Allen, as already stated, testified concerning his role in the investigation. He took a written statement from the defendant's mother on the night in question. The following day, at the police garage, Det. Allen also supervised the execution of the warrant to search the vehicle and the taking of the photographs, filed collectively as Exhibit 3. The photos were admitted to be accurate depictions of the firearm, as well as the backpack and its contents and other items that were eventually removed from the car. The photographs showed the following:

(i) the location of the shotgun protruding from under the black backpack on top of it;

(ii) the position of the shotgun, about two and a half feet in length, once the backpack had been removed;

(iii) a close-up view of the shotgun, after it had been taken out of the car, as well as a round of ammunition from its chamber;

(iv) the backpack and its contents, which included a Grade 11 school timetable for H.A.H. dated September 19, 2016, and a Ministry of Transportation request for a driver's history purportedly made by H.A.H.;

(v) the wallet found in the pocket of the driver's door which contained, among other things, the defendant's G1 driver's licence and Ontario Health card; and

(vi) the ignition key for the car, which was found to work, left under the driver's seat.

[14] The defendant's mother, K.I., a visibly reluctant Crown witness, testified that on September 23, 2016, the defendant lived with her and her three other children in a townhouse in the S[…] complex. K.I. testified that she was the registered owner and primary driver of the green Toyota in question. The only other person who ever drove it was the defendant, who had a G1 licence at the time, which required her to be with him when he drove. No one else, according to her evidence, ever drove the car.

[15] After refreshing her memory by referring to the written statement she had provided to Det. Allen on the night of the alleged offences, K.I. testified that she had been sick for two days, and had not driven the car since 5:00 p.m. the day before (i.e., Thursday, September 22) when she had parked the car in parking lot number 3. She also testified that there was no gun in the car at that time. She testified as well that she had observed the car still parked in the place she had left it at about 5:00 p.m. on Friday, September 23, the day the police came to her residence.

[16] K.I. testified that there was only one key to the car, the key later found by the police to have been left under the driver's seat. She testified that although she had left the key on the refrigerator in her kitchen earlier, when she looked for it when the police were there, she was unable to find it.

[17] She also testified that she had seen the defendant that afternoon at about three o'clock when he came home from school with his black backpack, but that he later went out again. Because she was sick and was planning to sleep, she did not pay much attention, but she asked him where he was going. The defendant told her he was going to his uncle's restaurant, a 15- or 20-minute walk from where they lived. He did not ask to use the car and, in any event, she never allowed him to take it on his own.

[18] According to K.I.'s evidence, her son did not come home that night, and she did not see him again until September 29, after he had been arrested and she went to court to testify at his bail hearing. She testified that he had never stayed out all night before, and her efforts to find him in the following days, asking "kids in the neighbourhood" and going to his school, proved unsuccessful.

[19] The final witness called by the Crown, Det. Cst. Ellis, as already indicated, gave evidence concerning the overlapping video clips he had obtained from the 20 security cameras at W[…] that had captured parts of the relevant events. It was admittedly very difficult to follow all of the videos that were played in court, with their apparently inaccurate and unsynchronized times, even with Det. Cst. Ellis's narrative explaining various camera angles and references to different individuals shown – particularly on a first viewing while, at the same time, consulting the map of the complex and the painstaking summaries prepared by the officer. To repeat it again, however, it was in the end conceded by the defence that the videos established the facts recorded in Exhibit 8, the chronology very helpfully prepared by Ms. Rogozinski. What is shown on the video clips can be summarized as follows:

Surveillance Timeline

c. 5:51 p.m. to 5:54 p.m:

H.A.H. drives the car into a parking spot on the north side of W[…] Rd., after which he goes to the area of the basketball court, and later enters the east side of the apartment building at W[…] and walks up in the stairwell (going off-camera);

c. 7:09 p.m. to 7:13 p.m.:

the defendant exits the building in the company of J.A. and a person named H., walking east; the defendant walks toward the basketball court;

c. 8:44 p.m. to 8:46 p.m.:

the defendant, as well as E.D., J.A. and A.T. all exit the front entrance of the building at W[…], walk west along the front of the building and speak to unknown people; the defendant then walks east through the parking lot, enters the west side of the building and goes upstairs again;

c. 8:56 p.m to 8:59 p.m.:

E.D. walks eastbound along the front of the building towards the car (where the defendant had parked it), approaches the passenger side of the car and looks inside; then walks east off-camera, before returning to the driver's side of the car and getting into the driver's seat;

H. walks east in front of the building and approaches the driver's side of the car;

the defendant comes down the stairs of W[…] and exits the west side of the building and speaks with unknown people;

J.A. and A.T. walk eastbound along the north side of the building towards the car;

J.A. enters the rear passenger door of the car;

A.T. enters the rear driver's side door;

E.D. reverses the car out of the parking spot and down the driveway;

the defendant, walking eastbound through parking lot towards W[…], tosses an unknown object to H., who is walking westbound;

both the defendant and H. turn and walk eastbound towards the building;

the defendant approaches the driver's side of the vehicle and remains standing in the driveway after the car reverses and drives away;

c. 9:00 p.m:

the car [being driven then by E.D.] stops, then reverses back towards W[…];

c. 9:01 p.m. to 9:02 p.m.:

car reverses to where the defendant is still standing in the driveway and stops;

the defendant gets into the driver's seat, reverses car into the parking lot and drives forward into the parking spot;

P.C. Bahula and P.C. Gandhi arrive on scene;

the defendant gets out of the driver's seat and walks south by himself;

the three passengers (E.D., J.A. and A.T.) get out of the car and walk towards W[…], which they enter;

c. 9:03 p.m. to 9:05 p.m.:

the defendant walks southbound through area of townhouses to west of building and goes off-camera;

the defendant runs to rear door of W[…], enters building, runs down hall and meets up with E.D.;

the defendant and E.D. both go upstairs and off-camera;

c. 9:08 p.m. to 9:12 p.m.:

J.A. exits rear of building and goes off-camera;

The defendant, with E.D. and A.T., go downstairs, through S[…] Court and off-camera.

The Legal Principles

[20] As already stated, both counsel identified the sole issue to be determined at trial is whether the Crown had proved the defendant's possession of the firearm in question, which required the Crown to prove control and knowledge beyond a reasonable doubt. There was no dispute concerning the legal principles to be applied in a case of this kind, with both parties accepting that the defendant could only be found guilty of a particular charge if his guilt was the only reasonable conclusion that could be reached on the whole of the evidence.

[21] In R. v. Villaroman, 2016 SCC 33, Cromwell J., for a unanimous Court, made the following statements during the course of his reasons finding that the Alberta Court of Appeal had erred in setting aside a verdict of guilt on the basis that gaps in the evidence should have raised a reasonable doubt:

[30] It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences….

[35] … In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4 … Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.

[36] I agree with the respondent's position that a reasonable doubt, or theory alternative to guilt, is not rendered "speculative" by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt "is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence : para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[37] When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt… I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

See also Cromwell J.'s statement at para. 50 of his reasons in Villaroman.

[22] R. v. McLean, 2017 ONCA 657, provides, in my view, a recent example of a decision dealing with an issue comparable to the one arising in this case. The Court of Appeal (Doherty, LaForme and Rouleau JJ.A.) described McLean as "a simple single-issue case – did the Crown prove beyond a reasonable doubt that the appellant was in possession of the firearm and ammunition found in the computer bag she removed from her apartment, took and left in the apartment of her cousin?" The Court of Appeal's brief analysis provides guidance, I think, as to how such an issue can properly be determined:

[3] The crucial question was whether the appellant knew the gun and ammunition were in the bag. Her boyfriend, who was at her apartment earlier that morning, was a gang member and presumably the suggestion is that, unbeknownst to the appellant, he put the gun and ammunition into the bag.

[4] In our view, if the Crown proved that the appellant knew the gun and ammunition were in the bag, her physical possession of the bag and her control over it provided ample evidence of sufficient control over the contents of the bag to establish the control required for possession. Knowledge was the crucial issue. The Crown relied on circumstantial evidence to prove knowledge or its legal equivalent, wilful blindness. The appellant did not testify. The trial judge thoroughly and accurately reviewed the evidence and we will not repeat that exercise.

[5] The appellant submits that the verdict is unreasonable. She argues that the trial judge did not consider the availability of an alternative inference, that is, that the bag contained some other kind of contraband, e.g., drugs.

[6] We disagree with this submission. The trial judge specifically considered and rejected the submission, describing it as based on "speculation". We agree with this characterization. There was simply no evidence of what, if anything, was said by the boyfriend to the appellant about the contents of the bag. The trial judge had to draw inferences from the evidence, not from what the evidence might have been.

[23] There was no dispute in the submissions made here by both Mr. Willschick and Ms. Rogozinski as to the essential elements of the offences required to be proved by the Crown beyond a reasonable doubt. Specific reference was made to the judgments of Code J. in R. v. Bonilla-Perez, 2014 ONSC 2031, and Hill J. in R. v. Anderson-Wilson, 2010 ONSC 489, both cases involving allegations that an accused, occupying the driver's seat of a motor vehicle that also had one or more other occupants, was in possession of the firearm located in the vehicle. It is not necessary to repeat at length the reasons given by either Superior Court trial judge, reaching different conclusions based on the evidence he accepted, since it was accepted that the Crown could rely on constructive or joint possession, as defined in s. 4(3) of the Criminal Code, or as a party to another person's possession under s. 21(1). I adopt the reasons of both Code J. and Hill J. concerning the constituent elements of the offences charged.

[24] The crucial issue in this case, it was agreed, was whether the Crown had proved the defendant's control and knowledge concerning the firearm beyond a reasonable doubt. With respect to the control aspect of possession, both Code J. and Hill J. referred specifically to R. v. Belnavis and Lawrence (1996), 107 C.C.C. (3d) 195, at p. 209 (Ont. C.A.); aff'd (1997), 118 C.C.C. (3d) 405, at p. 419, as authority for the general proposition that the owner or driver of a car normally has authority to control both access to the car and its uses.

[25] In relation to Count 4, although there were no specific submissions made on the point, it was not disputed that the defendant's knowledge (or its legal equivalent, wilful blindness) that the shotgun was loaded was part of the mens rea required to be proved beyond a reasonable doubt: see R. v. Williams (2009), 2009 ONCA 342, 244 C.C.C. (3d) 138, at para. 16 (Ont. C.A.).

[26] The only other legal question that was the subject of submissions by counsel concerned the evidence of the defendant's "post-offence conduct," namely, his exiting the car and departing from the parking lot as the police arrived, meeting up with Davis and the others a few minutes later, and then his failure to go home the night of September 23, 2016, or to let his mother know his whereabouts until after he had been arrested some days later. It was agreed that the judgment in R. v. White, [1998] 2 S.C.R. 72, explaining the proper use that could be made of such post-offence conduct, applied to this evidence led by the Crown here. At paras. 19 to 22, Major J. stated the following under the heading "Post-Offence Conduct and Consciousness of Guilt":

[19] Under certain circumstances, the conduct of an accused after a crime has been committed may provide circumstantial evidence of the accused's culpability for that crime. For example, an inference of guilt may be drawn from the fact that the accused fled from the scene of the crime … As Weiler J.A. noted in R. v. Peavoy (1997), 117 C.C.C. (3d) 226 (Ont. C.A.), at p. 238:

Evidence of after-the-fact conduct is commonly admitted to show that an accused person has acted in a manner which, based on human experience and logic, is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person.

[20] Evidence of this kind is often called "consciousness of guilt evidence", since it is introduced to show that the accused was aware of having committed the crime in question and acted for the purpose of evading detection and prosecution. That label is somewhat misleading and its use should be discouraged. "Consciousness of guilt" is simply one inference that may be drawn from the evidence of the accused's conduct; it is not a special category of evidence in itself. …

[21] Evidence of post-offence conduct is not fundamentally different from other kinds of circumstantial evidence. In some cases it may be highly incriminating, while in others it might play only a minor corroborative role…

[22] It has been recognized, however, that when evidence of post-offence conduct is introduced to support an inference of consciousness of guilt, it is highly ambiguous and susceptible to jury error. As this Court observed in Arcangioli, the danger exists that a jury may fail to take account of alternative explanations for the accused's behaviour, and mistakenly leap from such evidence to a conclusion of guilt. In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation. Alternatively, the jury might determine that the conduct of the accused arose from a feeling of guilt, but might fail to consider whether that guilt relates specifically to the crime at issue, rather to some other culpable act.

At para 27, Major J. repeated that, as a general rule, it will be for the trier of fact to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused related to the alleged crime rather than some other culpable act, and how much weight it should be given in the final determination of whether guilt had been proved a reasonable doubt.

Analysis and Conclusions

[27] The defendant was clearly entitled to rely on the presumption of innocence, and it was the Crown that had the burden of proving each offence beyond a reasonable doubt. In my view, however, the only reasonable inference available from the unchallenged evidence, taken as a whole, was that the defendant committed the three offences with which he is charged.

[28] The evidence called at trial compelled, in my view, findings that the following events occurred:

(i) the defendant arrived home from school with his backpack at about three o'clock;

(ii) the defendant went out again later, lying to his mother about where he was going;

(iii) when the defendant left his house, he took the key to his mother's car and his backpack, both of which were later found by the police in the car where the shotgun was located;

(iv) shortly before six o'clock, the defendant drove the car from where his mother had parked it the day before to a parking spot in a different parking lot by W[…];

(v) shortly afterwards, the defendant entered the apartment building and went upstairs;

(vi) a little after 7:00 p.m., the defendant left the building in the company of J.A., one of the occupants of the car two hours later when it attracted the attention of the uniformed officers;

(vii) shortly before 9:00 p.m., the defendant left the building at W[…] again, this time in the company of all three people who ended up as occupants of the car when the firearm had evidently already been placed inside, partly concealed by the defendant's backpack;

(viii) a few minutes later, E.D. approached the passenger side of the vehicle, looked inside (in the direction of where the shotgun was eventually seen by the police officers), and, after another couple of minutes, returned to the car and got into the driver's seat;

(ix) in order for E.D. to have entered the driver's door, the defendant either had to have given E.D. the car key or left the driver's door unlocked and the key available to start the car;

(x) two other people with whom the defendant had just been associating, J.A. and A.T., got into the back seat of the car;

(xi) E.D. reversed the car out of the parking spot to the location in the driveway of W[…] where the defendant approached the driver's side of the car;

(xii) the defendant remained standing in the driveway as E.D. and the two back seat passengers then drove off to go north;

(xiii) the defendant was still standing in the driveway when the car suddenly returned seconds later;

(xiv) the defendant jumped into the driver's seat, which was only possible because E.D. moved over to the front passenger seat;

(xv) the defendant then parked the car, evidently taking the key out of the ignition and leaving it under the driver's seat;

(xvi) the defendant got out of the car, as did the other occupants, and walked away, as the police cruiser arrived;

(xvii) a couple of minutes later, the defendant, who had walked off on his own, returned to W[…], where he met up with E.D. and went upstairs;

(xviii) after a few minutes had elapsed, the defendant left the apartment building with E.D. and A.T.;

(xix) the defendant did not go home that night and had no contact with his mother for several days, until after he had been arrested (in unknown circumstances).

[29] There certainly were significant gaps in the evidence, since the video clips showed only some of the defendant's movements during the late afternoon and evening of September 23, and his mother's car was not under continuous surveillance by security cameras during the entire period. Exactly when, where and by whom the sawed-off shotgun was placed inside the car was not captured by the video evidence. One could safely conclude, however, that it must have been before about 5:52 p.m., when Clips 1 and 2 showed the defendant driving the car to the parking spot where it remained until shortly before 9:00 p.m., at which time E.D. and his two passengers got into it. Since the shotgun was eventually found by the police partly concealed by the defendant's backpack, it clearly must have been placed there between the time the defendant left his house with his backpack in the late afternoon and his reparking the car shortly before six o'clock. I can think of no other reason for E.D. looking inside the passenger door window, taking an interest in what was inside, and then getting into the driver's seat, except that he must have been informed that the firearm was there. Who else might have placed it there, in addition to the defendant himself, was simply not revealed by any of the evidence called at this trial by either party.

[30] In my view, the video clips did, however, provide direct evidence of the defendant's control of the car. He was the only person who could have taken the car key and had control over who had access to it and the uses that could be made of it. He himself in fact drove the car shortly before 6:00 p.m., when the gun must have already been inside it, within easy reach of the driver, only partly concealed by his own backpack. Only the defendant could have provided the key to E.D., allowing him to drive it. Moreover, the defendant jumped into the driver's seat to repark the car following the aborted, unexplained armed outing by E.D., J.A. and A.T., further demonstrating the defendant's continuing control over the car and its contents.

[31] As previously stated, the defendant's knowledge that the gun was there at the relevant time remained the crucial issue. The question was whether the circumstantial evidence required the finding that his knowledge, or its legal equivalent, wilful blindness, was the only reasonable inference that could be drawn, or whether there was an alternative reasonable inference available that arose from the evidence or the absence of evidence.

[32] While many questions remained unanswered, I was satisfied that the defendant's requisite knowledge was established beyond a reasonable doubt. No finding could be made, obviously, concerning the nature of the defendant's association and interaction with the three other occupants of the car both before and after the unanticipated intervention by P.C. Bahula and P.C. Gandhi. Neither could one say, without engaging in pure speculation, what the purpose of possessing the loaded shotgun was or what the plan for its use might have been on the night in question. In my view, however, no findings need to be made in relation to those questions, since the evidence compelled only one reasonable conclusion with respect to the essential issue in the case.

[33] Mr. Willschick submitted that the defendant's conduct after the alleged offences were committed did not add anything of an inculpatory nature to the case for the Crown. Specifically, he argued that his client's "flight" from the parking lot when the police arrived, his departure on his own before meeting up again with E.D. and the others a short time later, and his failing to go home that night or for days afterward, could all be explained simply by his fear of the consequences of having taken the car key without consent and his having driven the car with only a G1 licence, when he could only legally drive with a fully-licensed driver present. I did not accept this submission. Not only was there no evidence to support such an alternative speculative inference as to what motivated the defendant at the time, but his flight and disappearance seemed entirely disproportionate to whatever the disciplinary consequences for such comparatively minor transgressions might have been. I was satisfied that the only reasonable explanation to account for the defendant's post-offence conduct was that he was aware that the loaded shotgun was underneath his backpack, next to the driver's seat he occupied, and he sought to distance himself and avoid apprehension in order to avoid the consequences of having committed the firearm offences. No other conclusion, in my view, accorded with logic, human experience and common sense.

[34] Since the Crown proved all three charges beyond a reasonable doubt, findings of guilt were required. A pre-sentence report was ordered pursuant to s. 40 of the Youth Criminal Justice Act.

Released: October 24, 2017

Signed: Justice David A. Fairgrieve