Court File and Parties

Date: February 20, 2020

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jermaine Barrows-Taylor

Before: Justice Lipson

Reasons for Judgment released on: February 20, 2020

Counsel:

• J. Smith for the Crown
• A. Ross for the accused Jermaine Barrows-Taylor

LIPSON J.:

REASONS FOR JUDGMENT

[1] Jermaine Barrows-Taylor pled guilty before me to a charge of Possession of Cocaine for the Purpose of Trafficking, but not guilty to several firearms-related offences.

Overview of the Evidence

Agreed-Upon Facts

[2] It is agreed that on Aug. 26, 2018, at night, Mr. Barrows-Taylor was operating a white BMW on Eglinton Ave. East and Bellamy Rd. when it was pulled over by the arresting officers, P.C. Daniel and P.C. Gill. Jacqueline Taylor, the defendant's mother, is the registered owner. At the time, Mr. Barrows-Taylor was not lawfully entitled to be in possession of a firearm or ammunition. The police searched the vehicle, incident to arrest. They seized the following items:

• Small ziplock baggie containing powder cocaine
• $300.25 cash
• 3 small ziplock baggies each containing powder cocaine
• A clear ziplock baggie containing marijuana
• A blue pouch with zipper containing 12 small ziplock baggies each containing powder cocaine
• A black bag containing:
  • A Kel Tec P-11, 9 mm Luger, semi-automatic handgun with a barrel length of 79 mm, loaded with a magazine with 5 cartridges of 9mm Luger caliber ammunition
  • A ziplock bag containing 13 cartridges of 9mm Luger caliber ammunition capable of being fired from the Kel Tec P-11 located in the vehicle
• Vehicle documents
• Personal documents in the name of Jermaine Barrows-Taylor
• Two cellular phones
• Two digital scales
• Two pairs of scissors

[3] The police arrested Mr. Barrows-Taylor and conducted a pat-down search. They found a ziplock bag with marijuana in his pocket.

[4] The Kel Tec P-11 firearm and 18 cartridges were examined by Grant Sutherland of the Toronto Police Service. He is an expert in the examination of weapons, including firearms and ammunition. It is agreed that:

• This firearm is a "prohibited firearm" within the meaning of s. 84 of the Criminal Code
• This firearm was in proper working order and able to fire projectiles
• The serial number had been obliterated from the firearm
• The 18 cartridges are "ammunition" within the meaning of s. 84 of the Criminal Code

[5] The contents of the 16 small ziplock bags were tested by Health Canada. Certificates of Analysis confirm that all 16 contained cocaine. The total quantity of the cocaine was 9.13 grams. The contents of the other two ziplock bags were tested and confirmed to contain marijuana. The total quantity of marijuana was 5.36 grams.

[6] D. C. Ryan Keveza is an expert in the area of packaging, selling, pricing and trafficking of cocaine and marijuana, including but not limited to quanta, related paraphernalia, and personal and commercial indicia of possession or use. His report was filed on consent, on the basis of which counsel agree that the quantity of cocaine was possessed for the purposes of trafficking, while the quantity of marijuana was possessed for personal use.

Overview of the Evidence Regarding the Seizure of the Gun and Ammunition

[7] P.C. Gill stopped the BMW because of an HTA infraction. The lawfulness of the stop is not challenged. P.C. Gill investigated the defendant. P.C. Daniel dealt with the two passengers.

[8] Prior to the stop, P.C. Gill had observed that Mr. Barrows-Taylor was driving with his seat in a reclined position, so that the upper part of the seat belt was not touching his shoulder and his head could be seen by looking through the rear window. The officer was made aware by a computer check that the defendant was a suspended driver.

[9] When the car was pulled over, P.C. Gill observed that the driver's seat was still reclined. In addition, the defendant's pant belt was unbuckled, and his pants were partially down, exposing his boxer shorts. The officer also saw what appeared to him to be a significant amount of cash in a removable compartment in the centre console area of the car, in addition to a ziplock baggie with a small amount of marijuana. He also observed a small baggie of powder cocaine that Mr. Barrows-Taylor handed over to him.

[10] PC Gill had the defendant get out of the vehicle. He placed him under arrest for possession of cocaine, searched him and then found an additional ziplock baggie of marijuana. He placed his detainee in the back seat of his cruiser.

[11] By this time, other officers had arrived. The two passengers were briefly questioned. Computer checks were made to determine if there were any warrants for them or outstanding charges. Although they were initially arrested for possession of cocaine, the officers decided to release them primarily because Mr. Barrows-Taylor had admitted to ownership of the drugs. P.C. Gill felt there was no reason "to continue the arrests".

[12] P.C. Gill then turned his attention to a search of the vehicle. On the lower right side of the driver footwell, he found a blue bag that had 12 baggies containing powder cocaine. Moments later, another officer assisting in the search alerted P.C. Gill to something else he noticed under the driver's seat.

[13] There, P.C. Gill found a black bag that contained a loaded handgun and a baggie of ammunition. He believed there was a bullet in the chamber. He was not specific as to the location of the bag but recalled that it "wasn't too far back".

[14] Of significance, he acknowledged that had the gun and ammunition been discovered prior to their release from the scene, the two passengers would have been arrested for firearms-related offences.

[15] P.C. Gill testified in cross-examination that the driver's seat had some mechanics underneath that had to do with moving the seat forward and backward and that prevented him from having a clear view of the floor in the rear section of the car. He thought this would make it difficult for someone in the back seat to place an item such as the black bag closer to the front of the area under the driver's seat.

[16] He acknowledged having made no notations regarding the seat mechanics nor the degree of obstruction they presented to passing any items under the seat. He also acknowledged not having taken a view under the driver's seat from the rear passenger area.

[17] P.C. Gill said that when he first approached the BMW, he noticed "some movement in the back seat" but believed that he did not see any passenger moving seats. While his focus was on the driver, he said he observed a female passenger in the back seat whom he described as, "adjusting in the back seat". He maintained that she was sitting behind the front passenger seat. By contrast, P.C. Daniel, who tended to the passengers, testified that the female passenger was "just behind the driver". The other male was in the front passenger seat. Both officers noted a strong smell of marijuana coming from the vehicle.

[18] The police had contact information for the two passengers but made no further effort to interview or otherwise investigate them. Neither were called as witnesses at this trial.

Positions of the Parties

Position of the Crown

[19] Crown counsel points out that Mr. Barrows-Taylor is a self-admitted drug trafficker, who by his guilty plea has admitted to possession of the cocaine for the purpose of trafficking. He says there is ample evidence the defendant used the BMW on a regular basis and that although his mother is the registered owner, documents in the car link him to it. In this regard, he was stopped while driving the car two months before.

[20] The Crown says the cash in the removable centre console compartment was likely linked to drug dealing, that the value of the drugs seized was between $500-$1000 and that the defendant had the gun in order to protect himself while plying his trade.

[21] It is submitted, in addition, that there is other circumstantial evidence inculpating the accused. The Crown points out that the ziplock bags containing the drugs and ammunition appear to be of the same kind. He makes reference to loose marijuana on two pairs of scissors found in the car and loose marijuana on parts of the handgun.

[22] The Crown emphasizes that there is little likelihood the bag with the gun could have been placed under the seat by anyone other than the driver because of the mechanics under the driver's seat. He brings attention to the fact that the defendant's pants were undone permitting the inference that just prior to P.C. Gill reaching the driver's side door the defendant was removing the gun and drugs from his person and secreting them. The Crown submits that the only reasonable inference to be drawn on all this evidence is that Mr. Barrows-Taylor was in knowing possession of the handgun and ammunition.

Position of the Defence

[23] Counsel for Mr. Barrows-Taylor submits that the officer was only relying on memory regarding his observations of the front seat area, that he made no notes and that he conducted no serious investigation that would rule out the possibility the rear passenger could have slipped the black bag under the front seat. In fact, there was no notation of the exact location of the bag, nor could the officer say how much space there was under the seat.

[24] Counsel submits, as well, that there was no evidence how long the accused had control of the vehicle, nor who had been in it at other times. He says, in effect, that there was no real investigation of the owner of the car nor of the passengers. He suggests it is a realistic possibility that one of the passengers put the bag with the gun under the seat without Mr. Barrows-Taylor being aware and that, in fact, either passenger had such an opportunity to do so.

Analysis

[25] The Crown's case is circumstantial in nature. The prosecution invites the court to draw an inference on the basis of this circumstantial evidence that Mr. Barrows-Taylor was in knowing control of the black bag and its contents that were found under the seat of the car he was driving.

[26] As for the law with respect to the proper approach to circumstantial evidence, Justice Watt very recently set out the governing principles in R. v Lights, 2020 ONCA 128 at paragraphs 36-38:

When the Crown's case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact be satisfied beyond a reasonable doubt that the accused's guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 20.

To determine if the circumstantial evidence meets the required standard of proof, the trier of fact must keep in mind that it is the evidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that is but a link in the chain of proof: R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at paras. 81-82; R. v. Morin, [1988] 2 S.C.R. 345, at pp. 360-61; Côté v. The King (1941), 77 C.C.C. 75 (S.C.C.), at p. 76.

Inferences consistent with innocence need not arise from proven facts. Rather, they may arise from a lack of evidence: Villaroman, at para. 35. Accordingly, a trier of fact must consider other plausible theories and other reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience. They must not amount to fevered imaginings or speculation. While the Crown must negate these reasonable possibilities, it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused's innocence: Villaroman, at paras. 37-38. See also R. v. Bagshaw, [1972] S.C.R. 2, at p. 8.

[27] The authorities are clear that an inference must not be drawn from a mere guess or suspicion, however shrewd that guess may be. An inference is much stronger than conjecture or speculation. If there are no proven facts from which an inference can logically be drawn, it is impossible to draw an inference. Both direct and circumstantial evidence are admissible as a means of proof. Sometimes circumstantial evidence is more persuasive than direct evidence. In this regard, while the direct evidence of one witness may contradict that of another, the circumstances of an event may not be in dispute.

[28] As the trier of fact, I am required to determine 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. In determining whether there are other reasonable inferences, I am required to distinguish between plausible theories of innocence, which do not have to be based on proven fact, and that of speculation.

[29] Villaroman is the leading authority on the use of circumstantial evidence and its relationship to proof beyond a reasonable doubt. In that case, Justice Cromwell, set out the following principles as guidelines governing the use of circumstantial evidence to establish guilt beyond a reasonable doubt:

• There is a special concern inherent in the inferential reasoning from circumstantial evidence. The concern is that the trier of fact may unconsciously 'fill in the blanks' or bridge the gaps in the evidence to support the inference the Crown invites it to draw.

• The risk inherent in circumstantial evidence is the danger inherent in jumping to unwarranted conclusions.

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

• In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt.

• A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

• The Crown will need to negative reasonable possibilities but does not need to negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused. The Crown is required to negative any inferences that are based on logic and experience applied to the evidence or the absence of evidence, not on speculation. Alternative inferences must be reasonable, not just possible.

[30] There were two other occupants in the car when it was stopped by police. Both were released from the scene prior to the discovery of the black bag. The officers took down their contact information. However, no follow-up investigation was undertaken concerning their potential knowledge of the black bag and its contents, nor were they called as witnesses at trial.

[31] I observe, as well, that the exact location of the bag under the seat was not provided, nor did the police take note of whether any of the seat mechanics would prevent the back-seat passenger from passing the gun under the driver's seat. The officers are at odds as to whether the rear passenger was sitting behind the driver or the front passenger, although P.C. Gill indicated he noticed some movement in the back seat as he approached the vehicle.

[32] The front passenger, about whom there is no information, would also, on this evidence, have had a realistic opportunity to slip the black bag under the front seat. It is evident that the police, and ultimately the Crown, never did eliminate either of the two passengers as suspects, leaving a gap in the evidence that, in my view, operates to the detriment of the prosecution in meeting its burden of proof.

[33] Of course, it is likely, even highly likely, that the black bag and its contents belonged to Mr. Barrows-Taylor. He was the driver. The bag with the gun and ammunition was under his seat. He admitted he was in possession of the drugs and that the possession was for the purpose of trafficking. It is an accepted fact of life that drug traffickers often possess guns to protect themselves and their drug supply. Moreover, the accused's belt was unbuckled and his pants partially down. One could infer that he had just removed and hidden something—maybe the drugs, maybe the gun, maybe both—near or under the back of the driver's seat.

[34] However, the police investigation was incomplete in a crucial way. Other potential suspects who were in a position to place the gun under the driver's seat were not eliminated. As a result, the Crown was unable to negative other reasonable possibilities consistent with the innocence of the accused. Proof beyond a reasonable doubt requires that the Crown be able to do so. That was not done in this case. A reasonable doubt can result from the absence of evidence which is the case here.

[35] Mr. Barrows-Taylor will have the benefit of that reasonable doubt. In the result, he will be found not guilty of the firearms-related offences, but guilty of possession of cocaine for the purpose of trafficking.

Justice T. Lipson