Court Information

Ontario Court of Justice Date: May 7, 2018 Location: Scarborough - Toronto

Parties

Between: Her Majesty the Queen

And: Clifford Haley

For the Crown: E. Marrocco For the Defendant: T. David

Heard: February 21, 22, March 12, 2018

Reasons for Judgment

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] On January 6, 2017 police executed a search warrant at the home of Tal Singh Fermah. They found and seized a 9 mm Glock 17 handgun with serial number NSS542, a restricted handgun that had been registered to Mr. Haley since July 25, 2012. The gun was found in a locked box in a storage bin in the master bedroom closet. Also in the locked box was a plastic bag containing 100 grams of heroin.

[2] The gun had no business being in anyone's possession other than Mr. Haley's. Mr. Haley was never authorized to transfer the Glock to Mr. Fermah, nor anyone else. At no time prior to January 6, 2017 had Mr. Haley, nor anyone on his behalf, reported the gun lost or stolen.

[3] On March 20, 2017, police executed a search warrant at Mr. Haley's home. They found two gun safes in a storage closet in the apartment. One held six rifles lawfully owned and stored by Mr. Haley. The other safe had been pried open and had clearly once contained Mr. Haley's Glock.

[4] Mr. Haley is thus charged with two offences:

(i) Transferring the restricted Glock without authorization, contrary to s. 99(1) of the Criminal Code, and;

(ii) Failing to report the loss or theft of the Glock, contrary to s. 105(1) of the Criminal Code.

[5] Counsel admit that, on the evidence presented, there are only two possible explanations for the finding of the Glock in Fermah's possession in January, 2017: either Mr. Haley unlawfully transferred the gun to someone prior to January 6, 2017, or it was stolen from the safe in the storage closet at Mr. Haley's home prior to that same date.

[6] Mr. Haley denies transferring the gun. He testified that he last saw the Glock in his gun safe sometime in October, 2016 and that he did not realize it had been stolen until the police executed the search warrant at his home on March 20, 2017.

[7] If I believe Mr. Haley, or if his version of events might reasonably be true, he must be acquitted since it is not unlawful to unknowingly suffer the theft of one's restricted handgun.

[8] On the other hand, if I reject Mr. Haley's version of events, I must examine the rest of the evidence, all of which is circumstantial, to see if either charge is made out beyond a reasonable doubt. This essentially comes down to asking if the evidence and lack of evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than the guilt of the accused. R. v. Villaroman 2016 SCC 33, at para. 38

B. EVIDENCE

(a) Introduction

[9] An agreed statement of facts was filed and the Crown called several of the officers who searched Mr. Haley's apartment, as well as Mr. Haley's mother, Maureen Haley, who, along with Mr. Haley's wife and child, lived with Mr. Haley.

[10] Only Mr. Haley testified for the defence.

(b) The police evidence

[11] When the search team entered Mr. Haley's two-bedroom home on March 20, 2017, Mr. Haley was there with his mother, wife and child. The police discovered a small storage closet that contained a vacuum cleaner, some boxes, some plastic bins and two green safes stacked on top of each other. Mr. Haley provided the police with the combination for the lower, larger safe, which contained six rifles, all safely stored. The upper, smaller safe was unlocked and ajar. There were pry marks on the door near the lock, consistent with the safe having been broken into. The small safe had a description of the Glock written in black ink on the inside of the door. The safe contained a wealth of ammunition for the Glock and the rifles, as well as some rifle parts, a knife and some gunpowder. It also contained the paperwork associated with the accused's ownership and registration of the Glock.

[12] There were no signs of forced entry into the apartment unit.

(c) The evidence of Maureen Haley

[13] Maureen Haley is the accused's mother. The accused came from Ottawa to live with her approximately four years ago. At the time of his arrest his wife and child were living there as well. He was employed fixing windows.

[14] The accused had had a heroin addiction and was on a methadone program at one time. According to Ms. Haley he was no longer addicted when he moved in.

[15] Ms. Haley knew about the accused's long guns. She knew he was a hunter and so when he asked about moving his guns to her home with him, she assumed he meant hunting rifles. He never said anything specific about a handgun and she had never seen one. She knew that there were two safes in the storage closet.

[16] Ms. Haley would routinely go into the storage closet twice a week to retrieve the vacuum cleaner. The accused would only go into the closet if he were going hunting. She could not recall the last time that had occurred.

[17] The accused often had friends over but he never took his guns out while anyone was there.

[18] The accused never mentioned having any financial concerns. He and his wife were both employed. If he had financial difficulties she would have helped him out, but he never asked.

[19] She and the other residents of the apartment would sometimes leave the apartment with the door unlocked so that the accused's daughter could get in. As a result, three times a week, the apartment would be unlocked and empty for up to an hour or longer.

[20] After his arrest, the accused told Ms. Haley that the lock was broken on the small safe. He never told her, however, that anything had been stolen. Nor had she ever noticed anything missing from the apartment.

(d) The evidence of the accused

[21] Mr. Haley has a criminal record for theft, possession of heroin and fail to comply. The theft was of gasoline from a self-serve station.

[22] According to Mr. Haley he was working as a trucker at the time of his arrest. He had no idea who Mr. Fermah was.

[23] He had acquired the Glock for the purpose of target shooting at a club near Ottawa. He moved the gun with him, without proper authorization, to his mother's home in 2014 and hadn't used it since. He stored it in a securely locked case, which itself was in the locked small green safe. It would not have been obvious that the securely locked case contained a handgun.

[24] The last time the accused had looked at the safes was in October, 2016 when they were both locked. He had the only key to the small safe. The only people who knew about the Glock were his wife, his hunting buddies and friends who had gone shooting with him when he lived in Ottawa.

[25] Mr. Haley only accessed the closet to either get his guns for hunting or to help with the Christmas decorations which were stored in the closet. He was planning to hunt in October 2016 but cancelled the trip because he was assaulted on October 20th and suffered an injury to his face that required surgery in November and significant convalescence at home. Because of this injury he did not participate in the mounting of the Christmas decorations in 2016. He thus had no occasion to go back into the storage closet between October, 2016 and the date of his arrest in March, 2017.

[26] It was his wife and son that helped with the Christmas decorations that year. Neither of them, nor his mother ever reported to Mr. Haley that the upper safe door was damaged or open.

[27] After moving back to Ajax the accused had to move to other residences from time to time. These changes of address were reported to the Ministry of Transport, yet the accused had not registered his new address with the firearms authorities, although he had informally notified the local police and the Children's Aid Society.

[28] Mr. Haley has been a heroin addict since around 2012 and began a methadone program upon moving to Ajax from Ottawa. He has relapsed a few times since then.

C. ANALYSIS

(a) The parties' arguments

[29] Both parties agree that either Mr. Haley unlawfully transferred the Glock or it was stolen.

[30] Ms. Marrocco argues that Mr. Haley's testimony is unworthy of belief. She points to his criminal record for theft and argues that it is well-nigh impossible that the gun was stolen and impossible that such a theft, in the extremely unlikely event that it had occurred, would go unnoticed. She points to the following evidence in support of her position:

• There were no signs of a break-in.
• There was scant opportunity for anyone to come in while the door was unlocked, especially in light of Mr. Haley having been around the house convalescing for extended periods between October, 2016 and January 6, 2017.
• Even though Mr. Haley's mother, wife and son were in and out of the storage closet between October and January, especially around Christmas, none of them told Mr. Haley about the open safe.
• After Mr. Haley's arrest he told his mother that the lock was broken. At no time did he tell her that the safe had been broken into, which is what one would have expected him to say to her after the arrest. What's more, what he did tell his mother is consistent with the lock having ceased to work and him having had to break into the safe himself.
• Few people knew he had the Glock and there was no evidence that any of these people had any motive to steal it.
• The gun was in a case that would not have obviously held the Glock.
• Even though the safe contained ammunition for the Glock, nothing else was stolen, either from the safe, or the rest of the apartment.

[31] She also argues that Mr. Haley, being a heroin addict, had a motive to either trade the gun for heroin or sell it quickly.

[32] Mr. David argues that Mr. Haley's evidence was forthright and that I should accept it, and even if I do not, his testimony viewed in the context of the rest of the evidence raises a reasonable doubt. The body of evidence, including what evidence is lacking, viewed logically and in light of human experience, is reasonably capable of supporting the possibility that the gun was stolen.

[33] In particular, he points out that:

• There is no evidence of any connection between Mr. Haley and Mr. Fermah.
• If Mr. Haley had sold the gun would he not have also sold the ammunition?
• The Crown presented no evidence of financial hardship. Mr. Haley and his wife were both employed. The heroin addiction alone does not prove a motive for quick money or drugs.
• If Mr. Haley had wanted to sell the gun he could have done so legally.
• Even though Mr. Haley could not point to a likely suspect, the door to the apartment was often open and anyone could have come in.
• If someone had come in, the safe would have been an obvious target for a thief.

(b) Do I accept the accused's evidence?

[34] Because of Mr. Haley's criminal record, in particular for theft, and the extent to which his evidence relies on a series of unlikely events, I am unable to be sure of the truth of his testimony. I am not convinced by his testimony that the gun was stolen.

(c) Could the accused's evidence reasonably be true?

[35] Mr. Haley's testimony was essentially to the effect that the gun was stolen from his home without his knowledge. Whether his testimony might reasonably be true thus breaks down into two fundamental sub-questions.

(1) Is it reasonable to conclude that the theft could have occurred?

[36] For the theft to have occurred it must have taken place between late October, 2016 and shortly after New Year's, 2017, a window of over two months. It would have required someone to enter the Haley residence through the open door when no-one was home. This intruder would have to have had a pry bar with him.

[37] I do not consider this to be particularly unlikely. The world has its share of break and enter artists who break into random homes targeted for a variety of reasons. The open door at the Haley residence would have made such an opportunistic break-in even less unlikely. Anyone aiming to break into a home might well come equipped with a pry bar, if only to assist in breaking in in the first place.

[38] My review of the photos leads me to conclude that there wasn't much in plain sight that was particularly valuable which would explain why nothing else was taken. And once the intruder saw the safes, they would immediately have become the target of his thievery. The notion of prying open the top safe would have come naturally to the thief.

[39] It is not surprising that the thief would grab the non-descript locked case inside the safe. It would have been obvious from the surrounding contents (gun parts and ammunition) that the case contained a gun. Any thief with an ounce of sophistication could have concluded that the gun was worth stealing for the purpose of resale to another criminal. A thief in a hurry might not have bothered with the ammunition.

[40] The fact that Mr. Haley could not identify anyone who might know of the gun, and be the sort of person to break in and steal it, doesn't reduce the pool of available break-in artists by much. As observed above, break-ins by strangers are not uncommon.

[41] As for Mr. Haley's convalescence and his increased presence around the house during the critical period, the probability of one single break-in taking place on any particular day is no different than the probability of it occurring on any other day. The break-in might well have occurred shortly before January 6, 2017.

[42] The evidence that Mr. Haley told his mother after the arrest that the lock on the safe was broken, rather than telling her that it had been broken into is, at first blush, a problem for Mr. Haley's credibility. It was Mr. Haley's mother who remembered the accused using those words after his arrest. Given how long ago this conversation occurred, I question the reliability of her recollection of the exact words he used. When Mr. Haley was cross-examined about this conversation he never expressly acknowledged that he used those exact words. Rather, he said that when the police arrived he saw that the safe was damaged and that he did not know enough about safes to distinguish between the lock being broken and the door itself being damaged. Insofar as he did not expressly contradict the Crown's suggestion that he told his mother that "the lock was broken" I find that his recollection of the exact words he used is no more reliable than his mother's.

[43] Mr. Haley's heroin addiction does not materially advance the Crown's case. Mr. Haley testified that he was not using heroin at the time of the disappearance of the gun and while he did suffer the occasional lapse, the cost of heroin was not a problem for him. He and his wife both worked. His evidence in this regard was largely corroborated by his mother and not contradicted by any other evidence.

(2) Is it reasonable that the theft could have occurred without the accused's knowledge?

[44] For Mr. Haley's version of events to be true, the safe must have been in its broken condition for at least six weeks (from just before January 6th to March 20th), and for up to five months. Yet, Mr. Haley testified that he never noticed it, nor did anyone else bring it to his attention. The key to this apparent conundrum lies in the evidence of Maureen Haley, who testified that she accessed the storage closet two or three times a week and she never noticed it. She testified for the Crown and was not challenged by either party on this, or any other aspect of her evidence. Neither Mr. Haley's wife, nor his son testified. The record is thus silent as to whether either of them had occasion to enter the storage closet after New Year's. Mr. Haley's testimony that he only went into the closet to get his guns for hunting and to get Christmas decorations was corroborated by his mother's testimony.

[45] While the fact that no-one noticed the theft decreases the likelihood that the theft really occurred, it does not reduce the likelihood below it being a reasonable possibility.

D. CONCLUSION

[46] For the reasons expressed, Mr. Haley's testimony in conjunction with the other evidence in this case leads me to conclude that it is a reasonable possibility that the gun was stolen and not transferred as alleged. Count #1 is thus dismissed.

[47] As concerns Count #2 which alleges that Mr. Haley knowingly failed to report the loss or theft of the gun, the evidence clearly raises at least a reasonable possibility that the gun was not lost or stolen, but rather that it was transferred. As conceded in argument by Ms. Marrocco, loss or theft does not include transfer. As such, Count #2 is also dismissed.

Released on May 7, 2018

Justice Russell Silverstein