Court Information
Court: Ontario Court of Justice
Date: November 7, 2019
Before: Justice Maria Speyer
Heard: August 19-22 and September 27, 2019
Reasons for Judgment Released: November 7, 2019
Parties and Counsel
Between:
Her Majesty the Queen
— AND —
Ashley Perry and Christian Walters
Counsel:
- Jackie Garrity, for the Crown
- Robb MacDonald, for the accused Ashley Perry
- George Singh, for the accused Christian Walters
Judgment
M. Speyer J.:
Introduction
[1] Ashley Perry and Christian Walters are charged with a number of offences alleging unlawful possession of a loaded restricted firearm, two over-capacity magazines, and 7.28 gm of cocaine. They were charged after Toronto police officers located these items in the bedroom of 25 Town Centre Court, unit 2007 in Scarborough, on June 18, 2018.
[2] Most of the facts in this case are not in dispute. The only issue is whether Ashley Perry and Christian Walters had knowledge and control of the firearm, magazines and cocaine.
Items and Location in Apartment
[3] At 6:53 p.m., on June 18, 2018, Toronto Police officers executed a search warrant on the above-noted residential apartment. Ashley Perry and Christian Walters were located inside the apartment. Ms. Perry was in the living room area, and Mr. Walters was in the bedroom. The apartment is a small unit consisting of a combined living room and kitchen area, a bathroom, one bedroom and a small den. It is in a secure building with controlled entry.
[4] Police obtained a warrant to search this address as a result of their investigation into the location of a person named T'Quon Robertson. Mr. Robertson was wanted by the police in connection to a shooting that had occurred at approximately 5 p.m. on June 14, 2018 at 10 Alton Towers Circle. Police had learned that Mr. Robertson had accessed his Instagram account on June 15, 2018 at 1:12 pm from 25 Town Centre Court, unit 2007, using an internet address registered to Ms. Perry. Surveillance video from 25 Town Centre Court established that at approximately 1:11 a.m. on June 16, 2018, Mr. Robertson entered the elevator on the 20th floor and exited from the front lobby carrying a grey plastic bag.
[5] Police also obtained evidence that a phone number associated with Mr. Robertson was in communication with a phone number registered to Ashley Perry the day before and the day of the Alton Tower shooting. Ms. Perry testified that while the telephone number was registered to her, it was used exclusively by Mr. Walters.
[6] 25 Town Centre Circle unit 2007 is leased by Ms. Perry. She resided there with her dog Rambo. Christian Walters is her boyfriend. He had keys to the unit and building. Mr. Walters had access to the apartment and kept some clothes, other personal effects and documents in the apartment. It was agreed by the defendants that he spent approximately 70% of his time at the apartment. Other times, he resided at 1210 Radom Street, unit 1802, in Pickering with his brother Darrian Walters.
[7] The items that form the subject of these charges were found in a night table in the bedroom and in a laundry hamper in the closet of the bedroom.
[8] In the laundry hamper, Constable Racette located a Taurus SKR71760, 40 cal. handgun with laser, which was fully loaded with an overcapacity magazine. The handgun was in a Walmart plastic bag that also contained an extra-small Roots sweatshirt, a black headscarf, a clear plastic bag containing 18 rounds of ammunition and a Burberry cloth pouch containing a digital scale. The plastic bag was tied at the top and was at the bottom of the hamper, underneath a grey sweatshirt, blue jeans, dirty white socks, a white towel and a dark Nike tee shirt. The bag was not visible underneath these items.
[9] On top of the night table, Constable Ebrahimi found $1900 in cash and a white I-phone. Below that, on an open shelf, he found a blue cloth pouch containing a black magazine loaded with 15 Smith and Wesson hollow point rounds. Next to the pouch, he found a Samsung flip phone, documents dated June 5, 2018 issued to Christian Walters for the purchase and insurance of a motorcycle, a Rider Training Institute certificate dated June 3, 2018 issued to Christian Walters and a brown wallet containing government documents in the name of Christian Walters. I am satisfied and find as a fact that the flip phone, blue pouch, documents and wallet were in plain view when police entered the bedroom.
[10] In the drawer of the night table, Constable Ebrahimi found a Herschel fanny pack containing a digital scale and 2 small plastic knotted bags each containing white powder. Next to the fanny pack, Constable Ebrahimi found a document about learning to ride a motorcycle. Underneath the fanny pack, he found a yellow Louis Vuitton cloth pouch containing 2 expired drivers licenses in name of Christian Walters and an expired health card in name of Darrian Walters, and a set of keys with fob. This drawer was closed when police entered the bedroom.
[11] There is no forensic DNA or fingerprint evidence linking the contraband items to Mr. Walters or Ms. Perry.
[12] The defendants have admitted that the handgun seized is a restricted weapon for which they had no license to possess. They also admit that the two over-capacity magazines are prohibited weapons as defined by the Criminal Code. They further admit that one of the clear plastic bags found in the fanny pack contained 7.28 gm of cocaine. The Crown agrees there is no evidence that the cocaine was possessed for the purpose of trafficking or that the cash from the top of the night table was proceeds of crime. Accordingly, the defendants are found not guilty counts 2 and 3 of the CDSA Information.
[13] Ms. Perry testified that she had no knowledge of the contraband items. She testified she had done a thorough cleaning of the apartment on June 12, 2018 including laundry and cleaning the shelf of the night table, but not the drawer, and she never saw these items. According to Ms. Perry, she and Mr. Walters were together from about June 12, 2018 until their arrest on June 18, 2018 and she never saw Mr. Walters with these items.
[14] Ms. Perry gave evidence regarding the night table and hamper. According to her, the night table containing the drugs and magazine was used solely by Mr. Walters and it was on the side of the bed where he slept. The cash, iPhone, motorcycle documents and wallet all belonged to Mr. Walters. She had no knowledge of and had never seen the Samsung flip phone, the blue pouch and its contents, the Hershel fanny pack and its contents, or the yellow Louis Vuitton pouch and its contents.
[15] Ms. Perry testified the hamper was used by Mr. Walters for his laundry. She had her own laundry hamper on the other side of the room. The clothes in Mr. Walters' hamper belonged to him and while she had used the white towel, she had given it to Mr. Walters and assumed he had put it in that hamper. Ms. Perry testified that she usually did the laundry for both of them. The last time she had done laundry prior to the police search was on June 12, 2018. She had no knowledge of the Walmart bag or its contents.
[16] Mr. Walters did not testify.
Alternate Suspects
[17] The defendants' position is that either T'Quon Robertson or Darrian Walters hid the firearm, magazines and drugs in the apartment without their knowledge and while they were away at a cottage.
[18] On consent of the Crown, I allowed counsel for the defendants to call evidence of alternate suspects. This evidence consists of three videos located on the cell phone of Tarrick Rhoden, a person charged in the Alton Towers shooting. The video files are dated June 8, 2018, although there is no evidence that this is the date they were created. In the videos, T'Quon Robertson can be seen dancing and playing with a hand gun that is very similar, if not identical, to the one seized by police on June 18, 2018 at the defendants' apartment. This same handgun and rounds similar in appearance to the ones seized are observed in another video as well.
[19] Ms. Perry testified about their whereabouts in the days leading to the execution of the warrant. She testified that on the afternoon of June 14, 2018, she and Mr. Walters drove to Mr. Walters' mother's cottage in Haliburton. Ms. Perry produced copies of text messages between her and Christian Walters' mother in which they discussed going to her cottage.
[20] On the way to the cottage, Ms. Perry and Mr. Walters drove to Darrian Walter's residence in Pickering to give him her apartment keys and fobs to the building entrance and garage. She testified they did this so Darrian Walters could park his car in the garage at 25 Town Centre Circle to protect a motor cycle that Christian Walters had recently purchased.
[21] According to Ms. Perry, she and Christian Walters remained at the cottage until the morning of June 16, 2018. She explained that they were planning to stay at the cottage longer but returned early because of mosquitos and a rash on the dog. Upon their return, they found Darrian Walters and his girlfriend asleep in the bedroom. The apartment was in disarray and it seemed as though there had been a party. She was upset by this and asked Mr. Walters to speak to his brother, which he did on the balcony. She testified that Darrian Walters and his girlfriend then stayed at the apartment for a bit longer, got dressed in the bedroom and left. Prior to leaving, Darrian returned all apartment keys and fobs.
[22] Following their return from the cottage, Ms. Perry testified that she and Mr. Walters spent very little time in the apartment and slept on the couch both nights prior to their arrest. It was her evidence that they only slept in the bedroom for a nap on the afternoon of June 18, 2018. She testified that neither she nor Mr. Walters changed the sheets or cleaned the apartment from the time they returned from the cottage until their arrest.
[23] Ms. Perry testified that she had met Darrian Walters about 5 times prior June 18, 2018. She was introduced to T'Quon Robertson by Darrian and Christian Walters. To her knowledge, Mr. Robertson and Darrian Walters have both been in her apartment, in the company of Christian Walters, on one occasion prior to her arrest.
Analysis
[24] As stated at the outset, the only issue in this trial is whether the only reasonable inference that can be drawn from the circumstances in which the firearms, magazines and cocaine were found, is that Mr. Walters and Ms. Perry had knowledge and control of these items.
[25] Section 4(3) of the Criminal Code states that:
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person ...
[26] The leading case on the interpretation of this section is R. v. Morrelli, 2010 SCC 8, [2010] 1 S.C.R. 253. At para. 17, Justice Fish stated:
Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person" (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person.
[27] Thus, the Crown must prove that the defendants had both knowledge and control of the items in question. Here the Crown's case is entirely circumstantial. There is no direct evidence from a witness that either Ms. Perry or Mr. Walters placed, or had someone place, the contraband items in the night table or laundry hamper, or knew they were there.
[28] In R. v. Villaroman, 2016 SCC 33, Cromwell J. said, at para. 55, "[w]here the Crown's case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence".
[29] At paragraph 37 and 38, Justice Cromwell provides guidance to triers of fact when assessing circumstantial evidence:
[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.
[38] Of course, the line between a "plausible theory" and "speculation" is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.
[30] Ms. Perry and Mr. Walters are presumed to be innocent, unless and until the Crown has proven knowledge and control of these items beyond a reasonable doubt. This is a very high standard. It is not enough for me to believe that the defendants possibly or even probably knew of these items in the apartment. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, and nor is it proof to an absolute certainty.
[31] Furthermore, in assessing the evidence, I remind myself that I must consider the whole of the evidence, or lack of evidence, to determine whether the Crown has met its burden. I can accept some, all or none of a witness' s evidence. Since Ms. Perry testified, I must also apply the principles articulated by the SCC in R. v. W(D).
[32] I will now apply these principles to each of the defendants.
Ashley Perry
[33] Dealing first with Ms. Perry, I am not satisfied to the requisite degree of certainty that she had knowledge or control of the items in question. I come to this conclusion based on her evidence and the location of the items. As I will elaborate further below, I do not accept all of Ms. Perry's evidence, but, when considered in conjunction with other evidence that I do accept, I cannot reject her claim that she had no knowledge of the firearm, magazine and drugs.
[34] I find as a fact that Ms. Perry and Mr. Walters travelled to a cottage on the afternoon of June 14, 2018 and remained there until the morning of June 16, 2018. The text messages filed as Ex. 22 tend to corroborate this, notwithstanding that the texts may not be entirely reliable. Based on the content of the messages, they were likely exchanges between Mr. Walters and his mother using either his phone or Ms. Perry's phone. Nonetheless, the text messages do corroborate Ms. Perry's testimony that she and Mr. Walters were at a cottage from at least June 14 to 16, 2018.
[35] I find as a fact that Mr. Walters asked Ms. Perry if his brother could stay at the apartment while they were away. She confirmed this in cross-examination. I reject her evidence that the reason she gave Darrian her apartment keys and fobs was so he could park his car at her building to protect Christian Walters' new motorcycle. Mr. Walters had a parking spot at the Radom Street building. He could just as easily have left his motorcycle there.
[36] I also accept and find as fact that the telephone number which was in communication with the telephone number associated with Mr. Robertson was used exclusively by Christian Walters. From this and Ms. Perry's evidence, I find as a fact that Christian and Darrian Walters were friends or associates of Mr. Robertson. Both Mr. Robertson and Darrian Walters have convictions for weapons and firearm offences. Ms. Perry has no criminal record and I accept her evidence that she only knew Mr. Robertson in passing.
[37] I also find as a fact that the Taurus firearm seized by the police is the same one that had been in possession of T'Quon Robertson in the videotapes filed as Ex. 14 A to C. Given the unique features of the gun, especially the laser pointer, and the striking similarity between the two guns, I am satisfied that it is the same gun.
[38] The gun, magazine and drugs were found in receptacles controlled and accessed exclusively by Mr. Walters. Ms. Perry testified she did not go into the laundry hamper or do any laundry or spend much time in the bedroom between her return from the cottage and her arrest. I have no reason to reject this evidence. In the circumstances, it is possible that either Christian Walters, Darrian Walters or T'Quon Robertson hid the items in the night table and laundry hamper without her knowledge.
[39] In considering the totality of the evidence, including the testimony of Ms. Perry, I am not satisfied to the requisite degree of certainty that she had knowledge and control of these items. She is entitled to the benefit of that doubt and I find her not guilty on all remaining counts.
Christian Walters
[40] On the other hand, I am satisfied beyond a reasonable doubt that Christian Walters knew that the items in question were in the apartment, either because he had put them there himself, or he knew that either his brother or Mr. Robertson had done so.
[41] In coming to this conclusion, I have considered the location of the items and their close proximity to items belonging to Mr. Walters. For example, the laundry hamper contained Mr. Walters dirty clothes and a towel that Ms. Perry had given to him to put in the laundry. The night table contained items used regularly and recently by Mr. Walters. I am referring here to the $1900 cash, iPhone, wallet, identification and motorcycle documents all of which were found in close proximity to the blue pouch and the Hershel fanny pack.
[42] I reject Ms. Perry's evidence when she testified that Mr. Walters rarely used the night table drawer and did not use the laundry hamper after their return from the cottage. She agreed that it would have been possible for him to put something in those receptacles without her knowledge. She trusted him and did not inspect every item he brought to the apartment. She also agreed that he had keys to the apartment and spent time there without her, although he would tell her when he was there.
[43] Lastly, I have considered and rejected the possibility that the gun, magazine and drugs were placed in the night table and hamper by Darrian Walters or T'Quon Robertson without Christian Walters knowledge. In doing so, I have taken the following evidence and findings of fact into account:
[44] First, from the subscriber information, Exhibit 13, I conclude that Christian Walters and T'Quon Robertson were in communication with each other the day before the Alton Tower shooting and again in the hours before and after the shooting on June 14, 2018. According to Ms. Perry, she and Mr. Walters decided to go the cottage on June 14, 2018. She said this was an impromptu decision made while she and Mr. Walters were at lunch at Jollibee's. Indeed, the text messages to Mr. Walters' mother establish that the first request to go to the cottage was made June 14, 2018 at 2:07 p.m., within a few minutes of text messages between Mr. Robertson's phone and Mr. Walters' phone at 1:58 p.m., 2:05 p.m. and 2:06 p.m. From the proximity in time between the decision to go to the cottage and the communications between Mr. Walters and Mr. Robertson, I infer that Mr. Walters had an opportunity to advise Mr. Robertson that he and Ms. Perry would not be at the apartment in the coming days.
[45] Second, according to Ms. Perry, at the same time that she and Christian Walters decided to go to the cottage, Mr. Walters asked her to give his brother full access to the apartment while they were away. I have rejected as spurious the purported reason for giving Darrian this access. However, I do accept Ms. Perry's uncontradicted evidence that Darrian Walters was at her apartment while they were gone. Upon their return, Christian Walters spoke to his brother in private on the balcony for a few minutes. During this conversation, Darrian Walters had an opportunity to tell his brother where the items were located.
[46] Third, Ms. Perry testified that when Darrian Walters and his girlfriend left the apartment on June 16, 2018, he returned the keys and fobs to the apartment. He had no further means of accessing the apartment or any item he may have left there.
[47] Four, illegal handguns and magazines are highly valuable assets in the criminal world. It is implausible that such items would be abandoned in someone else's residence where they can easily be found. To the contrary, I can reasonably infer that such items would not have been left in Ms. Perry's apartment unless either Darrian Walters or T'Quon Robertson, or both of them, trusted Christian Walters to subsequently return the items or trade them for value. It is logical to infer that either one or both of them would have told Christian Walters of the presence of these items in the apartment. Put another way, it is illogical and fanciful to conclude that Mr. Robertson or Darrian Walters would leave valuable items in the apartment without Christian Walters' knowledge and consent. They simply would not take the risk that Christian Walters or Ashley Perry would find the items and use them as their own, or dispose of them as they saw fit, or report their discovery to the authorities.
[48] Mr. McDonald submitted that Mr. Robertson was a fugitive and could simply have abandoned the items without caring about whether he got them back. This argument fails. Logic tells me that if Mr. Robertson wanted to get rid of these items, including the cocaine, he could simply have tossed them away. There was no need to hide them in the Town Centre apartment, where they could easily be found by the residents and traced back to him, unless he was sure the items would be safe there. The only way to ensure this was to tell Christian Walters that the items were in the apartment.
[49] Similarly, there was no reason for Darrian Walters to leave the items in the apartment unless he told his brother about them so he could get them back, or trade them for value. Having returned the keys, he had no further means of accessing the apartment or the items.
[50] In conclusion, based on all of the evidence before me, viewed cumulatively, I am satisfied that the only reasonable inference is that Christian Walters had knowledge of the loaded Taurus firearm, the magazine and cocaine secreted in the apartment, either because he had put those items there himself, or was told about it by his brother or Mr. Robertson. I find him guilty of all counts.
Released: November 7, 2019
Signed: "Justice M. Speyer"