Court File and Parties

Ontario Court of Justice

Date: 2018-03-06

Court File No.: Ottawa 17-RF1013

Between:

Her Majesty the Queen Respondent

— And —

Alan Scott MacDonald Applicant

Before: Justice Trevor A. Brown

Reasons for Decision

Counsel

Ms. Colleen Liggett — Counsel for the Respondent, Federal Crown

Mr. Julian Daller — Counsel for the Respondent, Provincial Crown

Mr. Mark Ertel — Counsel for the Applicant, Alan Scott MacDonald

INTRODUCTION

[1] Alan Scott MacDonald is charged with a number of Criminal Code and Controlled Drugs and Substances Act offences arising out of an Ottawa police investigation entitled "Project Transporter". This investigation targeted a number of persons believed to be involved in the drug trade, including Mr. MacDonald and his co-accused, Luke McCormick. In short, Mr. MacDonald and Mr. McCormick are alleged to have shared a storage locker at a Dymon Storage facility in Ottawa, and to have stored a number of loaded and unloaded restricted firearms at this location, along with crack cocaine, drug paraphernalia, buffing agents, and a large amount of ammunition.

EVIDENTIARY RECORD

[2] This is a joint federal and provincial prosecution. The prosecution proceeded by filing a detailed agreed statement of facts, a Google Maps screen capture detailing the location of two Dymon storage facilities in the city of Ottawa, and video surveillance footage from Dymon Storage. The prosecution called one witness in the matter: the co-accused, Luke McCormick. Mr. McCormick had earlier pleaded guilty before me to a number of firearms and drug offences arising out of the same circumstances giving rise to the charges against Mr. MacDonald. At the conclusion of the case for the prosecution, the Defence elected to call no evidence.

[3] The pertinent evidence from the agreed statement of facts is as follows:

a. In October of 2015, Luke McCormick rented Locker B201 at a Dymon Storage facility located at 1554 Carling Avenue in the City of Ottawa. He did so using the false name of "Zack Dickie".

b. The evidence showed that Mr. McCormick and the accused, Mr. MacDonald, both had access to this locker. Between January 2016 and July 28, 2016 when police conducted a covert entry on locker B201 at Dymon Storage's 1554 Carling Avenue location, Mr. MacDonald accessed locker B201 nine times, eight times alone, and once with McCormick on February 24, 2016. Between those same dates, Mr. McCormick accessed locker B201 16 times, 15 times alone, and once with Mr. MacDonald.

c. On May 12, 2016, video surveillance at Dymon Storage at 1554 Carling Avenue showed MacDonald paying cash for a locker. MacDonald paid $172.55 for locker B201 (the rate was $135/month, and the last payment had been March 16, 2016). The video surveillance showed MacDonald entering locker B201 for a period of two minutes. MacDonald carried into the locker a black CCM hockey bag, a black Adidas gym bag, a black backpack, and a black briefcase style bag. MacDonald exited the locker empty-handed.

d. On the morning of June 8, 2016, video surveillance at Dymon Storage's 1830 Walkley Road location showed McCormick renting locker Z123. He rented that locker in the name of "Zack Dickie" (the same false name as the lessee for locker B201 at 1554 Carling Avenue). A rental agreement in the name of "Zack Dickie" for Dymon Storage locker Z123 at 1830 Walkley Road was found in McCormick's residence upon execution of a search warrant on September 13, 2016.

e. Later in the morning of June 8, 2016, McCormick was captured on Dymon Storage video surveillance removing a black CCM hockey bag from locker B201 at 1554 Carling Avenue. McCormick was inside locker B201 for approximately three minutes. McCormick then travelled with that black CCM hockey bag to Dymon Storage at 1830 Walkley Road, arriving 15 minutes later. Google Maps shows that it is a roughly 15 minute drive between the two locations.

f. McCormick was captured on Dymon Storage video surveillance placing the black CCM hockey bag and a black backpack into locker Z123 at 1830 Walkley Road. He was inside locker Z123 for approximately one minute. McCormick exited locker Z123 empty-handed.

g. The Ottawa Police Service received and reviewed all security video surveillance footage from Dymon Storage with respect to anytime locker B201 at 1554 Carling Avenue was accessed between January and September 2016. The viewpoint of that security video footage is the hallway; the security camera does not allow a view into locker B201.

h. Mr. MacDonald was the only person to access locker B201 at 1554 Carling Avenue between May 12, 2016, when he brought the four pieces of baggage into locker B201, and June 8, 2016, when McCormick attended B201 and left with the black CCM hockey bag. Mr. MacDonald accessed locker B201 on May 19, 2016 for approximately one and a half minutes. He was empty-handed both when he entered and exited the locker.

i. On July 28, 2016, the Ottawa Police conducted a covert entry into locker B201 at the Carling Avenue location. No black backpack was observed by police inside locker B201 at that time. No black backpack was observed being carried out of locker B201 by anyone between May 12, 2016 when MacDonald carried a black backpack into that locker, and July 28/16 when police conducted a covert entry into that locker. The only bag into which that black backpack could have fit to be taken out of locker B201, based on the bags that were observed to be carried out of locker B201 after May 12, 2016, is the black CCM hockey bag which McCormick took out of locker B201 on June 8, 2016 and then took to locker Z123 at Dymon Storage's 1830 Walkley Road location.

j. The only time locker Z123 at 1830 Walkley Road was accessed by anyone other than police when they conducted their covert entry on August 23, 2016 was on June 8, 2016, when the locker was initially rented by McCormick and he later that same day brought in the black backpack and the black CCM hockey bag (which contained the black Adidas gym bag, among other things). Mr. McCormick's most recent entry into locker B201 on Carling was June 8, 2016 when he removed the black CCM hockey bag to deposit it inside locker Z123 at Dymon Storage's 1830 Walkley Road location, along with the black Dakine backpack.

k. On August 23, 2016, police conducted a covert entry into locker Z123 at Dymon Storage's 1830 Walkley Road location. Police seized:

i. A black Dakine backpack containing:

• An empty fabric shopping bag
• A black nylon Dollar Store "courier" bag containing:
  • Unloaded .45 calibre Springfield Armoury semi-automatic handgun with two magazines each loaded with .45 calibre ammo; this is a restricted firearm; the firearm was wrapped in a pair of blue underwear
  • Loaded .45 calibre HK Tactical USP handgun, with loaded magazine inserted into the mag well; this is a restricted firearm; this firearm was located inside a pouch in the main compartment of the backpack

ii. A black CCM hockey bag

l. In the front pocket of the hockey bag was found:

• Motorcycle DL book Air
• Wedge and pump
• "Hide a key" box (empty)
• Broken piece of plastic (gas cap cover)

McCormick's fingerprint was on this broken piece of black plastic. McCormick placed this gas cap cover into the black CCM hockey bag himself. McCormick's vehicle was seized on takedown. The lid for the gas cap cover was broken.

m. In the main compartment of the hockey bag was found:

• Red empty re-usable shopping bag
• Loaded Uzi submachine gun wrapped in a beige curtain (the breach was clear, but a high capacity magazine loaded with 9mm ammunition was inserted into the mag well, and the serial number was destroyed); the Uzi is a prohibited firearm; the high capacity magazine is a prohibited device.
• Black re-usable shopping bag containing:
  • 14.3 g buff in a torn grey plastic bag tied in a knotted Ziploc bag containing 18 x .45 calibre rounds
  • Various miscellaneous items:
    • Two used Nitril gloves
    • Empty black nylon backpack
    • Black square fabric with Velcro edges
    • Green boxer shorts
    • Grey toque
    • Black screwdriver
    • Torn clear Swiss Chalet plastic bag
    • Roll of cling wrap
    • Box of Glad sandwich bags
    • Empty Ziploc bag that had MacDonald's thumbprint on it
    • Table knife
    • Pencil
    • Used paper towels
• Black Adidas gym bag containing:
  • 8.3 g crack cocaine in two plastic bags (one grey, one clear) tied together. That crack cocaine was for the purpose of trafficking.
  • 1,254 rounds of ammunition in Nike shoebox.

EVIDENCE OF LUKE MCCORMICK

[4] Mr. McCormick was the only witness called to give evidence in this matter. Despite Mr. McCormick being a prosecution witness, neither of the Crown Attorneys prosecuting this matter met with him prior to him giving his evidence. Both Crown attorneys were the same prosecutors that had handled Mr. McCormick's plea and sentencing before me.

[5] At the start of his evidence, Mr. McCormick was affirmed, and agreed with counsel for the Provincial Crown that he did not really want to be here testifying. He confirmed that he had never met outside of court with either of the provincial or federal Crown attorneys prosecuting this case. At the time of giving his evidence, Mr. McCormick was 25 years of age, and had been in custody for 13 days, the number of days which had elapsed since he was sentenced by me.

[6] Mr. McCormick's evidence in chief was focused, at the beginning of his testimony, on the extent to which Mr. McCormick actually accepted responsibility for the offences he had pleaded guilty to. Mr. McCormick was asked what sorts of things he had accepted responsibility for at the time of his sentencing, and in order to refresh his memory of the facts that underlay his plea of guilty, a transcript from his plea of guilty on 5 December 2017 was placed before him. The Crown took him in broad strokes through the transcript to establish that he had in fact pleaded guilty to a number of charges, and that he took responsibility for the illegal possession of drugs and firearms. He confirmed that he had directly handled the firearms, including moving them around, though he could not recall when.

[7] Mr. McCormick was reluctant to accept as true some of the facts from that plea and sentencing, though it was not clearly elicited from him which facts were true and which were not. Mr. McCormick testified that the whole experience had been a traumatic one for him, that since the events occurred he had been trying to move beyond them, and that he simply took a plea deal because he wanted to get things over with. Regarding the process of pleading guilty and accepting the facts that he did at the time of the plea, his belief was that he was "doing it just to get my plea deal".

[8] With respect to the events of June 8, 2016, Mr. McCormick testified in chief that he went to the Walkley storage unit and rented a locker, then went to the storage locker on Carling Avenue, and then drove from Carling to Walkley, where he dropped some items into that storage locker. Following this he returned back to work, and then went home after. He did not recall the exact route of travel that he took between the two storage facilities, but testified that he did not make any stops along the way, nor did he touch the guns themselves between the two lockers. He was alone in the car. He could not recall what exactly what he did when he arrived at the Walkley storage location, as he had been trying to get rid of these memories in his head for more than 17 months and did not remember exactly what he did.

[9] During the drive from the Carling storage locker to the Walkley storage locker, he had with him the CCM bag and the Dakine bag. When asked if he remembered what was inside those bags, he indicated there were multiple firearms, ammunition, drugs, and buff. He testified that he had placed those items in the bags months before June 8, 2016. This happened while he was in an apartment building in the East End of Ottawa. When asked whether he himself had placed those bags in the Carling storage location, his evidence was "no, I told my co-accused to do that". By co-accused, he testified, he was referring to Scott MacDonald.

[10] When asked further about this, he said that he had told Scott to take the bags into the building at the Carling location. He testified that it was his belief that this happened on the one and only occasion when they both went there together, and that they were seen together on video on this occasion. Mr. McCormick indicated that he was aware of the contents of those bags when he moved them from Carling to Walkley on June 8, 2016, though he did not recall what he did while inside the Carling locker. He further admitted to having rented the Carling locker under the false name of "Zack Dickie".

[11] In cross-examination, Mr. McCormick confirmed that he had been anxious to resolve these criminal charges because he wanted to start serving his sentence. He knew at the time of pleading guilty that he might have to come and testify in court, and that his sentencing hearing was to take place before Mr. MacDonald's case went to trial. Mr. McCormick agreed in cross-examination that in admitting the facts that he did, he was trying to get the best possible sentence for himself. He agreed that he was not at this stage vouching for the truth or the accuracy of any facts he admitted to at the time of the sentencing. He further agreed that the statement of facts that he admitted to at the time of his sentencing was better for him than the truth of what had really happened. For example, Mr. McCormick in his agreed statement of facts indicated that he had never handled the weapons, which was a fact he had agreed to but was not in fact true.

[12] Mr. McCormick also testified in cross-examination that he knew at the time that he took the deal that he would have to come to court to testify. He was unsure as to whether straying at this trial from the agreed statement of facts would get him in more trouble for other offences. When asked if he considered that he might be prosecuted if he did not testify "properly" at this trial, Mr. McCormick said "I just know I have to tell the truth". He agreed that the facts at the time of his sentencing were not all true. Ultimately, Mr. McCormick testified that as long as there was some truth in the agreed statement of facts at the time he entered his plea it wouldn't have mattered to him if there were other parts of that agreed statement of fact that were incorrect. His focus at the time of his plea was on getting the sentence that he wanted, not on whether the facts were true or not.

[13] In relation to the contraband in question in this case, Mr. McCormick admitted that he contracted both the Carling and the Walkley storage locations under the false name "Zack Dickie", packed some bags with guns ammunition and drugs, and had Mr. MacDonald move them into the storage locker at the Carling location. Mr. McCormick asked Mr. MacDonald to do it, was with him when he took them there, and had Mr. McCormick carry the bags. They were his [Mr. McCormick's] guns, his ammo, and his drugs. He had Mr. MacDonald carry the bags into the Carling location because he himself did not want to carry those bags in the facility. That was because those bags were full of things he did not want to get caught with. Mr. McCormick did not recall how he got to the Carling facility on the day Mr. MacDonald carried the bags into it, whether he arrived with Mr. MacDonald in one vehicle or two, or whether they traveled together or met at the location.

[14] Mr. McCormick admitted to being a drug dealer at the time, and having been in and out of that storage location with guns and drugs on previous occasions. Mr. McCormick recalled putting the CCM bag in the trunk at the Carling location and driving it over to Walkley. He did not know and could not recall whether he put anything else in those bags at the Walkley location before he carried the bags in. He agreed with Defence counsel's suggestion that it was a "maybe, maybe not, situation" as to whether or not he had added anything to the bags before placing them into the Walkley storage locker. At the time he moved the bags from Carling to Walkley, he did not think Mr. MacDonald was even living in Ottawa at the time. Mr. MacDonald had nothing to do with the decision to move the bags from one place to the other. Mr. McCormick had never told him what was inside those bags, and as far as he knew Mr. MacDonald never opened the bags or looked inside them. These bags had become a problem for Mr. McCormick, and he was afraid they would get him into trouble.

ADDITIONAL OBSERVATIONS ABOUT THE EVIDENCE

[15] In addition to the above-mentioned evidence, I note the following.

[16] The contents of locker B201 at the Dymon location on Carling Avenue during the relevant time period, with the exception of the materials brought into the locker by Mr. MacDonald on May 12, 2016 and the materials removed from that locker by Mr. McCormick on June 8, 2016, are unknown. The video surveillance camera installed in the hallway where that locker is located does not provide a view in to the locker. Although the police made a covert entry on July 28, 2016 and determined that no black backpack was observed inside the locker, the court was not provided with an inventory of what, if any, other items were located in that locker at that time.

[17] When the police conducted the covert entry into locker Z123 at the Walkley location on August 23, 2016, the officers performed an inventory of the contents of the black CCM bag. They did not however weigh the bag or the items within it.

[18] As for the ammunition located in Mr. MacDonald's motor vehicle at the time of his arrest in September of 2016, though it was the same calibre as the ammunition loaded in the Uzi located in the hockey bag, there is no evidence before me that it was of the same or a similar brand as what was found in the Uzi, nor was there any testing done to determine if it was capable of being loaded in or discharged from that firearm.

POSITIONS OF THE PARTIES

[19] The prosecuting Crown attorneys submit that the two key issues in this case are: 1) whether Mr. MacDonald had knowledge of the contents of the bags seized by the police, and 2) whether all of the bags seized at the Walkley location had the same contents as at the Carling location, in other words, is continuity established.

[20] With respect to the first issue, the Crowns submit that there is a body of circumstantial evidence that cumulatively proves Mr. MacDonald's knowledge of the contents of the bags beyond a reasonable doubt. The Crown stresses the importance of assessing the circumstantial evidence cumulatively, and not on a piecemeal basis. Taken together, the following facts are all circumstantial evidence that suggest Mr. MacDonald must have known or was willfully blind to what was inside those bags:

• Mr. MacDonald had accessed the Carling locker on a number of occasions between January and July of 2016;
• Mr. MacDonald paid for the Carling locker on 12 May 2016;
• The bags Mr. MacDonald was handling on the 12th of May appeared on the videos to be heavy, and thereby warranted further inquiry;
• Mr. MacDonald returned to the storage location for less than two minutes a week later, arriving and leaving empty-handed;
• Mr. MacDonald's thumbprint was located on an empty Ziploc bag inside the black CCM hockey bag;
• Mr. MacDonald was arrested some four months after placing the bags in the Carling storage facility, and at that time was found to be in possession of ammunition of similar calibre to that found in the CCM hockey bag.

[21] The Crown further stresses the unlikelihood that anyone would turn over custody of contraband of this nature to someone without making that person aware of what they are carrying. Property of this nature as a matter of human experience would simply not be the subject of unknowing possession. It is inconceivable that the quantity and value of firearms and drugs at play here would be entrusted by Mr. McCormick to someone who did not know what was in those bags. Moreover, the Crown says, the evidence raises the specter of wilful blindness on Mr. MacDonald's part. Rhetorically, the Crown asks, why is Mr. MacDonald paying for this locker, carrying the items in for Mr. McCormick, and not asking any questions?

[22] The Crown takes the position that the evidence of its witness, Mr. McCormick, is unreliable to the extent that Mr. McCormick asserts a lack of knowledge on Mr. MacDonald's part of the contents of the bags he placed in the Carling storage locker. Mr. McCormick's recollection of attending the storage locker itself at Carling with Mr. McCormick is contradicted by what is seen on the video that day, which clearly shows Mr. MacDonald attending the locker on his own. The lack of clarity in Mr. McCormick's evidence undermines his suggestion that he told Mr. MacDonald to move the bags without ever mentioning what was inside. As it relates to the question of continuity, the 15 minutes between the Walkley and the Carling locations would simply not afford the opportunity for Mr. McCormick to go anywhere else or to have added items to the contents of the bag.

[23] The Defence takes the position that there has been no demonstration by the Crown that Mr. MacDonald knew what was in those bags at all. On the evidence called in this court, it is reasonably possible that Mr. MacDonald did not know what was in those bags. If I as the trier of fact accept the evidence of Mr. McCormick that Mr. MacDonald was not told of the contents of the bags, or if Mr. McCormick's evidence leaves me in a state of doubt on that point, then I must acquit. Even if I reject completely the evidence of Mr. McCormick, the balance of the agreed statement of facts is insufficient for me to conclude knowledge on Mr. MacDonald's part beyond reasonable doubt. Indeed, the Defence argues, the inability of the evidence in the agreed statement of facts to amount to proof beyond a reasonable doubt was the very reason the Crown called Luke McCormick in the first place.

[24] The Defence also points to the failure on the part of the Crown to call any evidence that would contextualize Mr. MacDonald's possession and delivery of the bag to the storage locker. Most particularly, the Crown did not call any evidence from its witness McCormick as to the relationship between he and Mr. MacDonald. Absent evidence of this relationship, it would be speculative for the trier of fact to conclude that the circumstances facing Mr. MacDonald called for him to question Mr. MacDonald's request to deliver the bags or to enquire further into the contents of the bags prior to delivering them to the storage locker. The Defence disagrees with the Crown assertion that Mr. MacDonald on the surveillance video appears to be struggling with the weight at the bags, and in any event bags can be heavy for all kinds of reasons, and there would be no reason for one to be concerned from the simple fact of the weight of a bag that it might contain contraband items like firearms or ammunition. Because we do not know anything about the relationship between McCormick and MacDonald, it cannot be said that Mr. MacDonald ought to have been suspicious of Mr. McCormick's request to deliver the bags for him. Indeed, to Mr. MacDonald this could well have appeared to have been nothing more than a simple request from one friend to ask another to drop some bags into a storage locker that they share.

APPLICABLE LEGAL FRAMEWORK

[25] Under s. 4(3) of the Criminal Code, possession includes personal possession, constructive possession and joint possession: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15. Knowledge and control are essential elements of the doctrine of possession: Morelli, at para 15.

[26] As with other offences, Crown counsel may prove the essential elements of possession by direct evidence, by circumstantial evidence or by a combination of direct and circumstantial evidence. Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself: R. v. Blondin (1970), 2 C.C.C. (2d) 118 (B.C.C.A.), at p. 121; R. v. Fredericks, [1999] O.J. No. 5549 (C.A.), at paras. 3-4; R. v. To; and R. v. Bryan, 2013 ONCA 97, at para. 11. It is a reasonable inference that a valuable quantity of drugs or firearms would not be entrusted to anyone who did not know the nature of the contents of the bag or other container that they were given to them in: R. v. Balasuntharam, [1999] O.J. No. 4861 (C.A.) at para. 2; R. v. Bryan, supra at para. 11; R. v. Bains, 2015 ONCA 677, [2015] O.J. No. 5191 (C.A.). The inference is one that may or may not be drawn, depending on the overall circumstances facing the trier of fact: R. v. Robinson, 2011 ONSC 4915; R. v. Bailey-Ricketts, [2014] O.J. No. 402 (S.C.J.); R. v. Buttazzoni, 2015 ONSC 6411, [2015] O.J. No. 6198 (S.C.J.); R. v. Smith, Wynter, 2017 ONSC 4995.

[27] It is settled law that willful blindness can substitute for actual knowledge where knowledge is a component of the mens rea. The doctrine of willful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. Willful blindness is distinct from recklessness. While a failure to inquire may be evidence of recklessness or criminal negligence, in circumstances where the failure to inquire is a marked departure from the conduct expected of a reasonable person, willful blindness is not simply a failure to inquire, but constitutes deliberate ignorance: R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411.

[28] As much of the Crown's case against Mr. MacDonald rests upon circumstantial evidence – a fact adverted to by the prosecution in the course of submissions – I will briefly re-state the law applicable to the assessment of circumstantial evidence and the process of drawing inferences from such evidence.

[29] In order to reach a finding of guilt in a case involving circumstantial evidence, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Ukwuaba, 2015 ONSC 2953 at para. 97 (Hill J.); R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.) at paras. 33-34.

[30] Circumstantial evidence must not be examined and evaluated in a piecemeal fashion, but rather cumulatively by way of the application of logic, common sense and experience to the evidence which engages both the consideration of inherent probabilities and inherent improbabilities and, not infrequently, eliminating the unlikelihood of coincidence: R. v. Ukwuaba (supra) at para. 98; R. v. Hall, 2015 ONCA 198 at paras. 5-6. What may essentially be a single ongoing event must not be subjected to a metaphysical, frame-by-frame dissection. The whole of the evidence must be considered in a case involving circumstantial evidence: R. v. Hall (supra). In considering the whole of the evidence in a circumstantial case, and in particular during the search for alternative "innocent" explanations, other than the prosecution's theory of guilt, the court is not limited to inferential explanations based on "proven facts" but rather may take into account alternate rational possibilities grounded in the evidence or the absence of evidence: R. v. Ukwuaba (supra) at para. 99; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 at para. 36. Alternative inferences to guilt must be reasonable, not just possible: R. v. Villaroman, supra at para. 42.

[31] There is no obligation upon an accused to demonstrate the existence of an exculpatory hypothesis or other rational explanation other than guilt. The burden remains with the Crown throughout.

[32] In considering the credibility of evidence proffered in the trial, the decision reached should not be based on choice as between competing versions of the events, but rather should be based on the whole of the evidence.

[33] As certain aspects of the evidence proffered in the Crown's case included evidence that may be considered exculpatory to an accused, even where no evidence was called by the particular accused, the principles established in R. v. W. (D.) (1991), 3 C.R. (4th) 302 at 310 (S.C.C.) are engaged: R. v. B.D. 2011 ONCA 51, [2011] O.J. No. 198 (C.A.) at para. 114.

[34] Evidence adduced by an accused or by the Crown, which is considered in a credibility assessment and which engages the principles in R. v. B.D. (supra), must be weighed along with the conflicting evidence introduced on behalf of prosecution.

[35] As noted by our Court of Appeal in R. v. Hoohing, 2007 ONCA 577, [2007] O.J. No. 3224 (C.A.) at para. 15, the evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses' evidence, that evidence may no longer be believable, and in the case of an accused may no longer raise a reasonable doubt.

ANALYSIS

[36] The principal issue in this case is whether the Crown has proven beyond a reasonable doubt that Mr. MacDonald had knowledge of the contents of the bags that he delivered to the Dymon storage locker at 1554 Carling Avenue in the city of Ottawa. Clearly, as the person delivering those bags to the facility, paying for the locker, and maintaining access to that locker both before and after the bags were delivered, Mr. MacDonald exercised a measure of control over those bags. The question is whether he had actual knowledge of the contraband within them, or alternatively whether I can impute that knowledge to him because he was wilfully blind to the contents of the bags. In other words, did Mr. MacDonald actually know what was in the bags? If not, did he know or suspect that inquiring into the contents of the bags would reveal the guilty truth of what was in there, and close his eyes nonetheless?

[37] The only direct evidence on the issue of Mr. MacDonald's actual knowledge of the contents of the bag came from Mr. McCormick. The remaining evidence in the case is of a largely circumstantial nature. If I accept Mr. McCormick's evidence that Mr. MacDonald did not know of the contents of the bags he delivered, or if that evidence raises a reasonable doubt on the issue of knowledge, then I must acquit. Even I do not accept his evidence and it does not raise a reasonable doubt, I still need to consider whether on the remaining evidence that I do accept, the Crown has proven its case beyond a reasonable doubt.

[38] The manner in which the evidence of Mr. McCormick was elicited was unusual. Neither of the prosecuting Crown attorneys met with Mr. McCormick to prepare him for his evidence. It was evident that the prosecution did not know what Mr. McCormick's evidence was going to be, and were concerned that it might be unfavourable to their position vis-à-vis Mr. MacDonald. Although efforts were made to refresh Mr. McCormick's memory from the agreed statement of facts at the time of his plea of guilty, the agreed statement of facts was not used to challenge his evidence or his credibility as a witness. No application was brought by the Crown to have this witness treated as an adverse or hostile witness, or to cross-examine him on his earlier acknowledgement of facts germane to this case.

[39] The Crown did not ask Mr. McCormick any questions about his relationship with his co-accused, Mr. MacDonald, and did not elicit evidence about any discussions between the two about the contents of the bags. These were areas of direct relevance that one would have expected the Crown to canvas with its witness during its examination in chief, as it would have direct bearing on the question of whether Mr. MacDonald had actual knowledge of or was wilfully blind to the contents of the bags.

[40] How long the two knew one another, how often they saw one another, how often they spoke, how it came to be that they shared a storage locker and why they chose to do so, are all relevant considerations that went unasked and therefore unanswered in chief. Mr. McCormick was not asked who the guns, drugs, ammunition and paraphernalia belonged to. He was not asked whether that contraband belonged to him, or whether, if it did belong to him, he shared ownership of it with anyone else. He was not asked, at the time most opportune to do so, what if anything he told Mr. MacDonald about the contents of the bags, or if there was any conversation at all about the contents of the bags prior to him asking Mr. MacDonald to deliver them to the storage locker. As I indicated during the course of ruling against the Crown when it proposed in re-examination to question Mr. McCormick about what he discussed with Mr. MacDonald, the time to do so was during the witness's evidence in chief.

[41] Mr. McCormick was a hesitant and reluctant witness in this case. I am mindful of the need to approach his evidence with caution. The evidence of a co-accused-turned-witness who presents a different version at trial than the one he adopted at the time of his own plea of guilty appearance ought to be carefully scrutinized. There is of course the risk that Mr. McCormick, after receiving his own sentence, might present a version of events more favourable to his co-accused than is warranted in the circumstances. It was apparent over the course of his evidence that either Mr. McCormick minimized his involvement with the firearms in this case, in order to receive a favourable sentence, or he was being untruthful at the trial of Mr. MacDonald.

[42] I am also troubled by the fact that in his evidence in chief, Mr. McCormick was of the belief that video surveillance cameras captured him with Mr. MacDonald inside the Carling facility at some point on the date that Mr. MacDonald delivered the bags to the locker B201. This differed from his evidence in cross-examination, and causes me to view Mr. McCormick's evidence with some suspicion. I am certainly unable to accept, on the basis of his word alone, Mr. McCormick's assertions that Mr. MacDonald did not know the contents of those bags and that Mr. McCormick did not tell or otherwise make Mr. MacDonald aware of the content of those bags.

[43] That said, it is important that I consider Mr. McCormick's evidence in the context of the evidence as a whole and ascertain whether that evidence, though not accepted, raises a reasonable doubt. The reasons Mr. McCormick provided in cross-examination for agreeing to facts at the time of his sentencing that did not accord with the truth, might reasonably be true.

[44] Mr. McCormick understood that at trial he was required to tell the truth. He admitted that at the time of his pleas being entered before me, his principal concern was with getting the sentence he wanted, not with the truth or otherwise of each and every fact that underpinned that sentence. It may well be that at the time of his sentencing, he was minimizing his own involvement to receive a better sentence, to the inherent detriment of Mr. MacDonald. It may also be that by the time he arrived in court to testify, he understood his obligation to tell the truth and was doing his best to do so.

[45] Mr. McCormick's evidence before me in this trial was that he asked Mr. MacDonald to deliver the bags to the storage locker because he himself did not wish to carry them in. The reason for this was that the bags were full of contraband that Mr. McCormick did not wish to be caught with. In other words, Mr. McCormick was insulating himself from jeopardy by sending the bags into the locker via Mr. MacDonald. Though a risky venture, given the potential consequences of being found himself in possession of such an arsenal of illegal contraband, I cannot exclude the reasonable possibility that this is exactly what Mr. McCormick was doing by involving Scott MacDonald. His ability to do so quite conceivably would depend on Mr. MacDonald being unaware of the contents of those bags.

[46] I note that this possibility is consistent with other evidence in this case. The evidence establishes that Mr. McCormick and Mr. MacDonald shared access to the locker at the Carling location, and that of the 25 times in total that the two of them visited the locker – Mr. McCormick 16 times, Mr. MacDonald 9 times – they only attended together on one occasion. One available inference from this fact is that each made use of the locker for their own individual purposes. The police made a covert entry into locker B201 in July of 2016, and determined that the black backpack was not there. However, there is nothing to suggest that the locker was otherwise empty, nor is there anything to suggest that it contained any contraband. Given the evidentiary gap as to what the other contents of the locker were at the time that Mr. MacDonald enters it on May 12 and 19, I cannot exclude the reasonable possibility that the locker was being used legitimately by Mr. MacDonald, at least, to store other items that belonged to him. I certainly cannot infer that he took any interest in items belonging to Mr. McCormick when he attended on those occasions, other than dropping off the bags on May 12th. Indeed, it is noteworthy that on June 8, 2016, Mr. McCormick moved the bags containing firearms and drugs from the Carling location to locker Z123 at the Walkley location. No one other than Mr. McCormick – including Mr. MacDonald – accessed this storage locker. Again, this evidence is capable of supporting an inference that Mr. McCormick sought to conceal the contents of the bags from Mr. MacDonald.

[47] The Crown argues that the overall circumstances facing Mr. MacDonald required him to be suspicious of the contents of the bags he delivered to locker B201, and that if not a case of actual knowledge, it is certainly one of willful blindness.

[48] Wilful blindness is imputed knowledge. The willful blindness analysis always requires a contextual assessment of the circumstances facing the accused person to whom knowledge is being imputed. For the Crown to succeed on this submission, it must establish the existence of circumstances that would lead me to conclude that Mr. MacDonald's suspicion must have been aroused to the point where he saw the need for further inquiries, but deliberately chose not to make those inquiries; in other words, he remained deliberately ignorant. The overall circumstances cited by the Crown – a shared storage locker, paid for on May 12th by Mr. MacDonald, into which bags containing a small arsenal of dangerous firearms, ammunition, drugs and paraphernalia, are of course at first blush suspicious.

[49] Without knowing the context of the relationship between Mr. MacDonald and Mr. McCormick, however, it becomes impossible to tell whether or not the circumstances ought to have suggested to Mr. MacDonald that the contents of the bags that he was asked to deliver were illicit. As noted above, I know next to nothing about the relationship between Mr. MacDonald and Mr. McCormick beyond the fact that they shared the locker at the Carling location. I do not know how long they knew one another, how often they saw one another, how often they spoke, how it came to be that they shared a storage locker and why they chose to do so. While the overall circumstances here can quite fairly be characterized as suspicious, they are insufficient for me to draw the requested inference of knowledge or willful blindness beyond a reasonable doubt. I cannot exclude the reasonable possibility that Mr. MacDonald was nothing more than an acquaintance of Mr. McCormick who shared a storage locker with him, and was asked on one occasion to drop off some of Mr. McCormick's belongings at that locker.

[50] Moreover, I cannot infer from the evidence before me that Mr. MacDonald would have some reason to be suspicious of Mr. McCormick's request to deliver the bags to the storage facility or question him about the contents of the bag before agreeing to do so. Although the law permits a trier of fact to infer that a valuable quantity of drugs or firearms would not be entrusted to someone who did not know the nature of the contents being held, whether or not such an inference ought to be drawn is dependent on the context of the evidence as a whole. Mr. McCormick's evidence was that he asked Mr. MacDonald to deliver the bags to the storage locker because he himself did not wish to be caught with them. This would be a very real concern for a person in possession of such contraband, as the consequences of being found by the police with it would be steep. In the circumstances of this case, it is certainly a reasonable possibility that Mr. McCormick was attempting to shield his own involvement with this contraband by having Scott MacDonald transport the bags.

[51] A few evidentiary items bear further discussion. Given the absence of evidence of the relationship between Mr. MacDonald and Mr. McCormick, and the fact that they appeared to share a common storage locker, I am unable to place much if any weight on the fact that an empty Ziploc bag with Mr. MacDonald's fingerprint on it was located inside the black CCM hockey bag. There are a myriad of innocent explanations for how that may innocently have come to be, not the least of which being the fact that the two men shared a storage locker.

[52] I am likewise unable to conclude that the bags in this case were of such a weight that Mr. MacDonald's suspicions ought to have been aroused. The video surveillance, having viewed it, does not lead me to conclude that the bags were unusually heavy, and I note that although the Crown has asked me to draw such an inference, the bags were never weighed, Mr. McCormick himself was not asked about the weight of the bags, and no evidence was called from anyone involved in the August 23rd covert entry to establish as a fact that these were particularly heavy bags.

[53] As for the Crown's submission that during the arrest of Mr. MacDonald ammunition of a similar caliber to that located with the Uzi was found, I note the absence of any evidence that this ammunition was capable of being loaded in or fired from the Uzi. I also note the absence of any evidence that the ammunition was of the same or similar brand or packaging.

[54] I recognize that circumstantial evidence is not to be assessed in a piecemeal fashion. Even taken together with the other evidence in this case, however, I do not find the evidence relating to the fingerprint, weight of the bags or the ammunition found at the time of Mr. MacDonald's arrest to be compelling circumstantial evidence.

[55] Having considered all of the evidence in this case, I am simply not satisfied beyond a reasonable doubt that the Crown has proven that Mr. MacDonald knew or was willfully blind to the contents of the bags he delivered to the Dymon storage locker on Carling Avenue on May 12, 2016. Though the circumstances in their totality are suspicious, for the reasons I have articulated, I am not satisfied that Mr. MacDonald's guilt is the only rational inference that can be drawn. The prosecution has proven neither actual knowledge or wilful blindness on his part as to the contents of the bags. I therefore find him not guilty of counts #1 through 25.

[56] Both parties made submissions regarding the issue of continuity. I am satisfied on the evidence as a whole, and in particular from the contents of the agreed statement of facts, that the contents of the black CCM hockey bag delivered to the Walkley storage facility on June 8, 2016 by Mr. McCormick, were the same items delivered by Mr. MacDonald to the Carling storage facility on May 12, 2016. None of the answers provided by Mr. McCormick in chief admitted to any opportunity for adding more items than those he admitted to having packed into the bags himself, either before, during, or following the car ride to the Walkley facility. Nor did I get the impression during cross-examination on this point that he had any actual recollection of doing so. Had Mr. McCormick stuffed further contraband into the CCM hockey bag before delivering it to locker Z123, one would certainly have expected him to remember taking such a step.

[57] With respect to count #31, the unlawful possession of ammunition while prohibited to do so upon his arrest in Toronto on September 18, 2016, I do make a finding of guilt. The facts in the agreed statement of facts filed with this court provide ample evidence tantamount to proof beyond a reasonable doubt, and indeed Defence counsel conceded as much.

Released: March 6, 2018

Signed: Justice Trevor A. Brown