Court File and Parties

Ontario Court of Justice

Date: 2020-12-18

Court File No.: Guelph # 19-3181, # 19-3182

Between:

Her Majesty the Queen

— AND —

Thomas Stephens

Before: Justice M.K. Wendl

Heard on: September 1, 2 & 3, October 22 & 23, and December 9 & 10, 2020

Reasons for Judgment released on: December 18, 2020

Counsel

• D. Russell — Counsel for the Provincial Crown
• C. Bond — Counsel for the Federal Crown
• L. Gensey — Counsel for Thomas Stephens

Judgment

WENDL J.:

Facts and Arrest

[1] Cathy Chartier rented a 2019 Hyundai Elantra with a Quebec license plate from Enterprise rent a car in October 2019. She reported the car stolen to Enterprise on October 10. The police became aware that the vehicle was stolen only on October 16 when it fled from Constable Nagrodski and he made inquiries of the rental agency.

[2] On October 17, this same vehicle, a dark Hyundai Elantra with the Quebec license plate, was reported to be driving erratically in the area of Gordon Street and Stone Road, in Guelph. Officers Andrew Francone and Bryan Mckean, who were in the area, heard the dispatch. They were also made aware that the vehicle was stolen.

[3] Francone and Mckean then began checking known places for the vehicle. At a local Days Inn they saw a dark Hyundai Elantra with no front license plate. Vehicles licensed in Quebec do not have a front license plate. Officer Francone knew the driver, Thomas Stephens, and he knew that he did not have a driver's license. The distance between where the Hyundai was observed driving erratically and the Days Inn motel was approximately one kilometer. The time between the 911 phone call, reporting the erratic driving, and the officers' observations of the vehicle at the Days Inn was approximately seven minutes. Based on the foregoing, Officers Mckean and Francone formed the reasonable grounds to arrest Thomas Stephens for possession of a stolen vehicle.

[4] Search incident to arrest of the vehicle revealed a loaded handgun, approximately 130 grams of methamphetamine and 50 grams of cocaine. Therefore, in addition to the stolen motor vehicle charge, Mr. Stephens was charged with:

• Possession for the purpose of trafficking in cocaine contrary to section 5(2) of the CDSA
• Possession for the purpose of trafficking in methamphetamine contrary to section 5(2) of the CDSA
• Possession of a weapon for a dangerous purpose contrary to section 88 of the Criminal Code
• Possession of a firearm without being the holder of a license contrary to section 92(1) of the Criminal Code
• Possession of a firearm without being the holder of a license contrary to section 91(1) of the Criminal Code
• Being a passenger in a motor vehicle while knowing there was a firearm in the vehicle contrary to section 94 of the Criminal Code
• Possession of a loaded prohibited firearm contrary to section 95(1)(a) of the Criminal Code
• Careless transportation of a firearm contrary to section 86(1) of the Criminal Code
• Breach of probation X 2 for keeping the peace contrary to section 733 of the Criminal Code
• Breach of a weapons prohibition by possessing a firearm contrary to section 117.01(1) of the Criminal Code

Evidentiary Framework

[5] Mr. Stephens did not testify on his behalf, nor was any other defence evidence called. Therefore, as with most cases where the salient legal finding relates to the issue of possession, this court must determine based on the circumstantial evidence and the Supreme Court's direction in R. v. Villaroman, whether the Crown has proven all the essential elements of the offences and the only available inference is that of Mr. Stephen's guilt.

[6] However, before turning to that assessment, at the conclusion of the Crown's case the defence requested a directed verdict on the following charges 86(1), 91, 92, 94, 95 and 117.01(1) of the Criminal Code. At trial I granted the directed verdict motion in part with more detailed reasons to follow. The following are those reasons.

Directed Verdict

Antique Firearm Analysis

[7] The handgun located in the vehicle was a 44 Smith & Wesson Russian. The provincial Crown agreed that this handgun had been shipped to London, Ontario on August 31st, 1889. The obvious implication, and the only reasonable conclusion to be drawn, is that this handgun was manufactured sometime prior to August 31, 1889. Section 84(1) of the Criminal Code, read in conjunction with the Regulations Prescribing Antique Firearms, deems a handgun manufactured prior to 1898 capable of discharging centre-fire cartridges to be an antique firearm. Excluded from this deeming provision is a specific list of firearms which were adapted or designed to discharge certain types of ammunition. The 44 Smith & Wesson Russian is not on that list and therefore I find it to be an antique firearm.

[8] This deeming provision is of significance to the accused because under section 84(3) of the Criminal Code an antique firearm is not considered to be a firearm pursuant to sections 91 to 95, 99 to 101, 103 and 107 and section 117.03. As surprising as this is to the Court, this is a relatively straightforward analysis. Since the 44 Smith & Wesson Russian is not considered to be a firearm under section 91, 92, 94 and 95, Mr. Stephens cannot be convicted of those offences.

[9] In coming to this conclusion, I did take into consideration the definition of prohibited firearm under section 84(1) of the Criminal Code. A prohibited firearm is a handgun with a barrel length less than 105 mm. The Smith & Wesson's barrel length appeared to have been modified to 70 mm. However, the regulations prescribe the 44 Smith & Wesson not to be a firearm for the sections 91, 92, 94 and 95, therefore, although somewhat tautological, it cannot be a prohibited firearm for the purposes of section 84(1) as it is not a firearm pursuant to sections 91, 92, 94, or 95.

[10] I am strengthened in my reasoning by the Regulations themselves. Section 7, which deals specifically with antique handguns capable of discharging centre-fire cartridges, refers explicitly to adaptions which would take it out of the deeming provision, namely those relating to the type of bullets the handgun is capable of firing. Nothing is mentioned about adapting the barrel. Hence, since they refer to one adaption and not the other, I find that adapting the barrel length does not take the 44 Smith & Wesson outside of the deeming provision and despite the barrel length adaptation, this handgun still falls within the definition of an antique firearm.

[11] Therefore, although the handgun was operational, loaded, able to cause serious bodily harm or death to a person and it meets the definition of firearm in section 2 of the Code, I find that the 44 Smith & Wesson found in the motor vehicle is not a firearm for the purposes of sections 91, 92, 94 and 95 as a result of the operation of section 84(3).

[12] I did not grant the directed verdict in relation to the section 86(1) and 117.01(1) offences. Section 84(3) specifically lists those offences where a weapon meeting the definition of a firearm in section 2 of the Criminal Code is taken outside of the ambit of that definition. Therefore, since sections 86(1) and 117.01(1) are not mentioned in Section 84(3), the 44 Smith & Wesson Russian, which otherwise meets the definition of firearm in section 2, is to be considered a firearm for those sections not specifically listed in 84(3). Finally, the exception under 84(3.1), as raised by counsel, does not apply. That exception relates to contravention of storage regulations [section 86(2)] and not careless use [section 86(1)].

Possession for the Purpose of Trafficking and Possession of the Handgun

[13] As a result of the directed verdicts granted, Mr. Stephens remains charged with two breaches of probation, two counts of possession for the purpose of trafficking, possession of a stolen motor vehicle, careless use of a firearm, breach of a weapons prohibitions, and weapons dangerous. I will begin with the analysis of the possession for the purpose of trafficking charges and possession of the handgun.

[14] I analyse the two together because there is a potential relationship between possession of drugs for the purpose of trafficking and handguns. As stated by Bryant J. in R. v. Patrick:

The crown proffered to lead expert evidence from Detective Bigras concerning the relationship between guns and trafficking in controlled drugs. I ruled that it was unnecessary for this court to require expert evidence on this subject matter (R. v. F.(D.S.), 43 O.R. (3d) 609 (O.C.A.) at para. 65). The public media and reported case law refer to the proliferation of the use of handguns in association with drug trafficking. This court is capable of making a common sense inference concerning the nexus between guns and drug trafficking without the benefit of expert evidence. I find there was a nexus between the possession of the cocaine found in Mr. Watson's underwear and the gun in the glove box. I find that the possession of small packages of cocaine together with the larger piece of cocaine is relevant circumstantial evidence on the issue of possession and possession for a purpose dangerous to the public peace.

Legal Framework for Possession

[15] Legal possession requires knowledge and control. In relation to the narcotics offences, knowledge simply means knowledge of an illicit substance. The Crown does not need to prove knowledge of the specific substance on the part of the accused. As for control of the illicit substances, all that is required is for the Crown to demonstrate a measure of control over the substance. In addition to the elements of knowledge and control, possession for the purpose of trafficking requires the Crown to prove the added element of intent to traffic in the drug possessed. I do not believe the issue of constructive possession has been raised by either party. The allegation for possession for the purpose is raised through personal possession or, potentially, joint possession. Again, the second step of the analysis, whether it was for the purpose of trafficking will be made after the initial determination of possession.

[16] Thomas Stephens was arrested in the driver's seat of the stolen motor vehicle. The handgun and narcotics were found in the vehicle. Being in control of a motor vehicle does not create the presumption that Mr. Stephens has knowledge and control of the material inside. Based on the circumstantial evidence, the Crown must prove that the only reasonable inference is one consistent with guilt. If a reasonable inference exists consistent with innocence, even if there is another, stronger, inference consistent with guilt, this Court must acquit. A reasonable inference does not need to emanate from the evidence, it can come from a lack of evidence.

Continuing Possession and Vehicle Control

[17] However, control over the vehicle is a piece of evidence this Court can take into account in determining whether Mr. Stephens was in possession of the items. It is the Crown's contention that Mr. Stephens had been in possession of the stolen Hyundai at least since October 15, 2020. The basis for that assertion is a receipt found in the vehicle from an ESSO gas station dated October 15 at 22:12. After finding the receipt, police attended at the ESSO gas station and requested the surveillance footage surrounding the times identified in the receipt. Given the poor note taking of the officers on the scene, it impossible for me to conclude where exactly this receipt was found. However, for the purpose of this part of the analysis it is not necessary for me to make a finding of fact on that point. Ultimately, it is not the receipt itself that is important, but the video footage that it leads to.

[18] Surveillance footage shows a dark Hyundai Elantra with no front license pull into the station and fill up with approximately $20 of gas. The driver of the vehicle was a Caucasian male, with a chin strap beard, a Raptors baseball cap, and a red jacket with a hoodie. The surveillance footage confirms the purchase of the milk to go as identified on the receipt.

Identification from Video Evidence

[19] Defence contends that a Leaney hearing is required for the police officers to identify Mr. Stephens from the ESSO gas station surveillance video of October 15. In my view, a Leaney hearing only applies when there is video evidence of the commission of the offence and identity is an issue at trial.

Where there is video or photographic evidence capturing the commission of an offence and the identity of the perpetrator is at issue, one way in which the Crown may seek to prove that the accused is, in fact, the perpetrator is by adducing evidence from a witness who is sufficiently familiar with the accused to recognize them and assist the trier of fact in determining whether the accused is the person seen: R. v. Leaney, [1989] 2 S.C.R. 393.

[20] The issue to be determined in this case is possession, broadly construed, over the illicit substances by Mr. Stephens. The video evidence at the ESSO gas station is only a piece of the circumstantial evidence which assists the Court in proving the issue of possession. While as a practicality it may be that if I cannot conclude that the person in the video is Mr. Stephens, the evidence may then be of little weight to the court, and while a Leaney hearing may be of added value, I still do not feel it is required on the facts of this case. It only adds to the length of the trial and the ordinary rules of recognition evidence still apply. Moreover, it cannot be that every time a suspect is viewed on a video and identified by a police officer that a Leaney hearing is mandated. That conclusion would lead to an absurd situation where an officer who is tasked with surveillance of a suspect and who recognizes him because of the photo provided to him at the beginning of the investigation, which he keeps in his notes and compares the accused to during the course of that investigation, would not be in a position to identify that person on video at trial because he did not have a personal interaction with him.

[21] On the facts of this case, what is being asked of this Court is more akin to identifying Mr. Stephens based on a circumstantial evidence analysis rather than recognition in the classic sense. The arresting officers identified pieces of clothing that the accused was wearing upon arrest. Constable Campbell and Francone recall the Nike Air shoes, black with large white "AIR" lettering on the side. Constable Francone recalls the Toronto Raptors hat, red with a black brim and sticker on the brim, and Constable Mckean recalled him wearing a baseball hat as well. A red jacket, with black bottom and lining, was in the back seat of the car. Those items were logged into evidence and made exhibits at trial. The video from the Esso station, correlated to the time on the receipt, shows a Caucasian male wearing a red jacket, with a black bottom half, black lining and a hoodie, a red Raptors cap with black lip and a shinny sticker on the lip, and very particular shoes black with "AIR" written in large letters on the side with white soles. The clothing on the video matches the clothing logged into evidence. Two pieces, the hat and shoes, Mr. Stephens was wearing upon arrest, and the jacket was in the back seat. The photo of the accused upon arrest shows him with a chin strap beard, which matches the facial hair on the person in the surveillance. The build of the accused and the person in the surveillance appears to be the same. The ESSO receipt was located in the vehicle, again given the poor note taking of the officers I cannot determine where in the vehicle it was, but on the evidence at trial, the only reasonable inference is that it was found in the vehicle, and that vehicle, in which the accused was arrested, matches the one in the surveillance video. All of which leads to the only available inference that the person in the video at the ESSO station on October 15 was Mr. Stephens.

[22] It is my view that this demonstrates continuing possession and driving of the stolen Hyundai vehicle by Mr. Stephens, at least from October 15 to October 17. I am supported in the conclusion by the lived in-quality of the car itself. There were cookies, Gatorade bottles and Lysol in the passenger area. The back was replete with bags, bandanas and an empty pack of cigarettes. This supports the conclusion of continuing use of the vehicle.

Rebuttal of Alternative Theories

[23] Defence counsel argues that other persons may have had access to the vehicle or have been in possession of it during that time. She pointed to the fact that a person of interest was a Christopher Turkstra. While Mr. Turkstra may have been a person of interest, there is no evidence to actually link him to the vehicle and, more specifically, to link him to the items in the car is pure speculation.

[24] Defence also points to the fact that during the chase involving Constable Nagrodski, the officer noticed two passengers in the vehicle. Again, while the evidence does point to other people having access to the vehicle, given the fact that Constable Nagrodski noticed someone with a red hoodie driving the car which matches what Mr. Stephens was wearing in the ESSO video, it does not detract from the assertion that Mr. Stephens was in control of the vehicle and again in continuing possession of it on the 16th of October, rather it lends support to that conclusion.

[25] Defence counsel also pointed to Diana Cardy, who was on the scene at the time of the arrest of Mr. Stephens and had items in the car. Again, at the time of arrest Mr. Stephens was in the driver seat of the vehicle with the key fob in the car. While, again, this Court cannot determine where exactly the keys were found in the car because of the poor note taking of the officers, the only reasonable inference from the facts is that the key fob was found somewhere in the car.

[26] Mr. Stephens was in the driver's seat only minutes after the erratic driving complaint. Again, while Ms. Cardy may have had access to the vehicle, it is still my view that the only reasonable inference I can draw from these facts was that Mr. Stephens was in the control and the driver of the vehicle on October 17.

Location and Possession of Items

[27] Turning now to the individual items found in the vehicle. Constable Francone indicates that he found the loaded handgun on the passenger seat. The Crown contends that since it was in plain view, and Mr. Stephens had control over the vehicle for at least two days, the only reasonable inference is that he was in possession of it. Defence counsel indicated that, given the poor note taking of Officer Francone, there is no way of truly knowing where the handgun was located. She also argued that given the multiple persons linked to the vehicle, it cannot be proven beyond a reasonable doubt that Mr. Stephens was in possession of it.

[28] On the issue of the note taking by Officer Francone, while I agree it was problematic at points, particularly in relation to the location of the key fob, he was consistent about the location of the handgun on the passenger seat. He identified where the gun was located with a photo of the passenger seat. The gun was located between the cookies and the Gatorade bottle also found on the passenger seat. Officer Francone indicates that the gun made an impression on him since it was the first he had found in his career. He also indicated that after looking at it and calming down a bit, he put it in the gun locker. It is my view that it is the finding of handgun that explains some of his poor note taking in relation to the receipts and the key fob. Basically, he was focused on the gun, therefore I find that he was accurate about the gun's location. The accuracy of his notes about the location of the receipt and the key fob has no bearing on whether he accurately recalls and documented the location of the gun.

[29] Constable Hall assisted in the search of Hyundai. He searched around the driver's seat area of the vehicle. At the base of the driver's seat he located a black bag, which Constable Hall qualified as a black shaving kit style bag. Inside this shaving kit were found two further black bags, one inside the other. In the last black bag, he located a large quantity of methamphetamine and two smaller plastic baggies containing cocaine. A total of 121 grams of methamphetamine and 50.3 grams of cocaine were in the black bag. The cocaine was in two separate baggies of 39.8 grams and 10.5 grams respectively. While Constable Hall's note taking could have been better, for example he had no note as to where he found the ESSO receipt, he was extremely clear about the location of the black bag where the methamphetamine and cocaine were found. Under cross-examination he was not displaced about where the bag was located. Therefore, I find him credible on the location of the black bag and its contents.

[30] Constable Campbell found some additional narcotics, specifically 9.34 grams of methamphetamine in the centre console, along with a digital scale.

Possession of Narcotics

[31] In relation to the narcotics found at the base of the driver's seat of the vehicle, the only conclusion I can come to is that Mr. Stephens was aware of it and had knowledge and control over its contents. Given my finding that he was in continuing possession of the vehicle and, in particular, the driver of the vehicle from October 15 to October 17, I can come to no other reasonable inference other than the shaving bag ended up in the driver's area with Mr. Stephens knowledge and handling. Although I agree with defence counsel that others had access to the vehicle, the only two reasonable scenarios that end up with the shaving kit bag under the driver's seat area involve Mr. Stephens putting it there. The first one is that Mr. Stephens was handling it when the police drove up and he dropped it. The second is that he put it there for his own ease of access and to shield it from the passengers, essentially keeping it protected from their access since it contained a large amount of valuable narcotics.

Possession for the Purpose of Trafficking

[32] As for the question of possession for the purpose, in my view, the evidence is overwhelming in that regard. First, the sheer quantity of narcotics make that inference the only reasonable one, approximately 180 grams of methamphetamine and cocaine, or almost 0.4 pounds. However, that is not the only evidence of possession for the purpose, there was no evidence of personal consumption in the vehicle, other than the butane lighter, but there was no vehicle such as a pipe to consume the drugs. Also, there was the scale and the baggies. Finally, there is the handgun. As stated above there is a nexus between possession of narcotics for the purpose of trafficking and handguns. In this case the handgun was found on the passenger seat. The only inference I can draw is that Mr. Stephens was in the possession of the handgun to protect his product and money. It was readily accessible to him on the passenger seat of the vehicle. As a result, I find Thomas Stephens guilty of both charges of possession of the purpose in trafficking.

[33] Finally, even if I give credence to the defence argument that a third party left approximately 170 grams of methamphetamine and cocaine in the footwell of the vehicle which Mr. Stephens was in possession of, they would not have done so without the knowledge of Mr. Stephens, especially since the placement in the driver's footwell could have posed a hazard to him. This same reasoning applies to the handgun in the passenger seat.

Remaining Offences

[34] On the issue of possession of a weapon for a dangerous purpose, my reasoning is identical to that of Bryant J. in R. v. Patrick:

The public peace refers to the normal peaceful state of society. The possession of cocaine and a loaded cocked handgun concealed in a car to maintain control over a controlled substance is "antithetical to the whole concept of public peace" (R. v. Kerr, above, at para. 67). Thus, I conclude beyond a reasonable doubt that the cocked handgun gun was in Mr. Watson's possession for a purpose dangerous to the public peace.

[35] Therefore, I find him guilty of that charge.

[36] Given the findings above, both in relation to the handgun and the narcotics, and the admission that the probation and weapons prohibition orders were valid, I find Mr. Stephens guilty of the remaining charges: two breaches of keep the peace, a breach of the weapons prohibition, possession of the stolen motor vehicle and careless use of a firearm.

Released: December 18th, 2020

Signed: Justice M.K. Wendl