Ontario Court of Justice

Date: 2021·01·21 Location: Newmarket

BETWEEN: HER MAJESTY THE QUEEN

— AND — JABIR KHAN

JUDGMENT

Evidence Heard: November 16, 17, December 18, 2020. Delivered: January 21, 2021.

Counsel: Mr. Kevin Stewart ...................................................................................... counsel for the Crown Mr. Steven Hinkson ............................................................................ counsel for the defendant

Before: KENKEL J.

Introduction

[1] Police conducting wiretap surveillance pursuant to a robbery investigation heard conversation that indicated Nathanial Nelson was about to transfer a firearm to another person. Officers went to Mr. Nelson’s apartment building in Toronto and saw him meet with a van driven by Mr. Khan. When police stopped Mr. Khan’s van a short time later, they found a sawed-off shotgun with ammunition in a large red duffel bag inside his van.

[2] Mr. Khan testified that he thought the bag he received from Mr. Nelson contained cocaine. He didn’t have any reason or desire to inspect the bag when he received it. In the four years he’s known Mr. Nelson, this is the first time he’d helped him in this way. He did it because Mr. Nelson’s girlfriend was about to give birth. He said Mr. Nelson told him she didn’t want drugs in his apartment once the baby arrived.

[3] Both counsel agreed that the sole issue for decision in this case is whether the Crown has proved the knowledge component of the two remaining possession counts. The defence submits that the accused’s evidence shows he was unaware of the true contents of the bag so both counts should be dismissed. The Crown submits that the accused’s evidence was not credible, and the remaining evidence shows he knew the bag contained the sawed-off shotgun. In the alternative, the Crown submits that the principle of wilful blindness applies to prove the knowledge component of both offences.

[4] Earlier in the trial an application to exclude subscriber information related to Mr. Khan’s phone under s 24(2) of the Charter as a remedy for a s 8 breach was allowed. A subsequent application to exclude the firearm evidence for alleged breaches of sections 8 and 9 of the Charter was dismissed. Counts 1,2,7,8,9 were dismissed on application at the close of the Crown’s case. Mr. Khan is not charged with counts 5 and 6. He faces two remaining counts: count 3 alleging possession of a restricted firearm (sawed-off shotgun) contrary to s 91(3) and count 4 alleging occupation of a motor vehicle knowing that there was an unregistered restricted firearm therein contrary to s 94(2).

The Investigation and Arrest

[5] On December 30, 2018 a jewellery store in the Markham Mall was robbed by six men wearing coveralls, masks and hoodies. They were armed with sledgehammers. At least one had a firearm and he fired a shot during their escape. One suspect was arrested outside the mall. One of the sledgehammers left at the scene had DNA that was subsequently matched to Nathaniel Nelson. Further investigation led to a Part VI wiretap authorization in relation to the robbery. Mr. Nelson was a target of that authorization.

[6] One of the objects of the investigation was to locate the firearm used in the robbery. On May 28, 2019, surveillance officers were advised by a wiretap monitor that he believed Mr. Nelson was about to transfer a firearm to a third party. The parties arranging the transfer had used coded language over several days to discuss the meeting. Officers rushed to Mr. Nelson’s apartment building. They saw Nelson and his girlfriend attend Mr. Khan’s van for a brief meeting. At the time of the transfer, Nelson and his girlfriend engaged in counter-surveillance. Nelson contacted Khan after their meeting warning him that he was being followed. Mr. Khan was stopped by police shortly afterwards. As shown in the police photographs taken at the scene, a sawed-off shotgun was found in a large red duffle bag in the area behind the driver’s seat of Khan’s commercial van. Four rounds of ammunition were located in a Nike sock also inside that duffle bag.

Mr. Khan’s Evidence

[7] Mr. Khan testified that he did not know there was a firearm in the duffle bag. Nathaniel Nelson put it in his van as they had arranged. He did not touch the bag at any time. Mr. Khan said Mr. Nelson told him there was cocaine in the duffle bag and he believed him. He thought he’d pick up the cocaine, transport it to his residence and then transfer it to a third party later as directed by Nelson. The sledgehammer shown in the photographs of the van was related to construction work he was doing for Ontario Housing.

[8] In cross-examination, Mr. Khan said this was the first time in the four years that he’d known Mr. Nelson that he’d ever been asked to hold something for him. He agreed that despite the novel request, he made no further inquiry about what was in the bag. He took the bag as Mr. Nelson’s fiancée was pregnant and reaching full term and she didn’t want Nelson to have drugs in his apartment.

Credibility

[9] I’ve first considered the evidence as a whole and make the findings of fact that follow in that context.

[10] The credibility of the officers was not contested. None of the concerns raised by the defence in the Charter voir dire about reasonable grounds could have any impact on the officers’ evidence which was factual, logical, internally consistent and consistent with the external audio and photographic evidence. Their evidence was both reliable and credible.

[11] I’m unable to find that Mr. Khan was a credible witness for the following reasons:

• Mr. Khan’s evidence was illogical, it did not make sense;
• Mr. Khan’s evidence as to his lack of knowledge about the bag and its contents was inconsistent with the audio surveillance evidence and the circumstantial evidence at trial.

[12] Mr. Khan’s testimony that he was transporting “some cocaine”, said in a manner that implied a minimal quantity was completely inconsistent with his actual transportation of a large duffle bag. Mr. Nelson was plainly very wary of surveillance. There was no reason for him to select a bag or container any larger than was necessary to hold the cocaine or item he intended to move. He would have been very careful not to do so. He would not have selected something as obvious as a large red duffle bag to transport cocaine unless that was the smallest container that would transport the package he had. Mr. Khan wasn’t transporting “some cocaine”. On his evidence, he was transporting such a large amount of cocaine it had to be put in a duffle bag. That engagement in drug trafficking (via transport and planned transfer) at a commercial level goes far beyond the small personal favour described by Mr. Khan.

[13] Mr. Khan’s testimony that Mr. Nelson chose to tell him he was transporting a duffle bag of cocaine instead of a firearm doesn’t make sense. Mr. Nelson had known Mr. Khan through work for four years. Out of all his friends and contacts, it was Mr. Khan whom Mr. Nelson trusted to take the firearm and keep it at his residence. There’s no reason shown in the evidence why Mr. Nelson would tell that very trusted person a false story involving cocaine. The transport and planned transfer of a duffle bag of cocaine to a third party as described by Mr. Khan is a much more serious offence in terms of penalty than the charges before this court. It simply doesn’t make sense that Mr. Nelson would trust Mr. Khan to that high degree but tell him a false story about the contents of the bag that would likely involve significantly greater criminal liability. If he wanted to shield his friend Mr. Khan from knowledge, he would have told him the bag contained some innocuous item. It doesn’t make sense that Nelson would choose to tell him a story involving an offence with a high degree of risk, thus making Khan’s participation less likely.

[14] There was also no reason for Mr. Nelson to tell Mr. Khan a false story that Khan would immediately discover was untrue. As soon as Mr. Khan got home and picked up that bag from his van, he would have realized that the contents were not powder. The shotgun was not wrapped inside the bag. If for some reason Mr. Nelson wanted to hide the contents of the bag from Mr. Khan to the extent that he would make up a false story, he would also have made some effort to wrap or conceal the item. The fact that the shotgun was not disguised shows that Mr. Nelson did not mislead Mr. Khan about the contents of the bag.

[15] The conversation between Mr. Khan and Mr. Nelson arranging the pickup shows Mr. Khan actually had detailed knowledge about the duffle bag and its contents. Mr. Khan asked where is “it”. Mr. Nelson replied “it’s around”. Then Mr. Nelson said, “how long will it take for you to call Shorty over?”, using a slang term for girlfriend. Mr. Nelson replied, “She’s around.” Mr. Khan then told Mr. Nelson to get Shorty and he’ll be over soon. When he arrived to pick up the package Mr. Khan said to Mr. Nelson “Tell Shorty to come down”.

[16] The officer monitoring the wiretap thought that in this conversation the two were using “Shorty” as a new code term for the firearm. There was a plain link between “Shorty” and the item to be transferred. When Khan arrived he specifically asked for “Shorty” to come down.

[17] Mr. Khan’s interest in the whereabouts of Mr. Nelson’s girlfriend and his request to have her come down is explained by the elevator video from Nelson’s apartment building. It turns out that Shorty wasn’t a code name for the package, but the term did refer to both the girlfriend and the firearm. Mr. Nelson stepped onto the elevator to meet Mr. Khan who at that time was waiting in his van at the entrance to the building. Mr. Nelson was alone when he entered the elevator, and he was carrying a sock with Air Jordan markings that contained ammunition. That sock was later found in the duffle bag in the van.

[18] The elevator next stopped on another floor and Nicolette Stokoe got on. Ms. Stokoe was Mr. Nelson’s pregnant girlfriend. She was carrying the red duffle bag containing the shotgun. The elevator video shows why she was insistent that the gun be moved – it was in her apartment. In a prior intercepted phone call between Mr. Nelson and Ms. Stokoe, Nelson told his girlfriend to distract her mother while he entered her apartment. The circumstances described in that call and the elevator video showed that Mr. Nelson had secretly hidden the sawed-off shotgun in his girlfriend’s apartment. On the day of the transfer he had her bring it down in the elevator to give to Mr. Khan.

[19] Mr. Khan’s references to “Shorty’s” whereabouts and to “tell Shorty to come down” once he arrived shows he knew that Mr. Nelson’s girlfriend was keeping the gun. There was no other reason for him to repeatedly inquire about Mr. Nelson’s girlfriend. There was no other reason for him to suggest that the near-term Ms. Stokoe attend the surreptitious transfer. Both Mr. Nelson and Mr. Khan would have been very careful to minimize the persons involved and that is particularly true of Ms. Stokoe. When he arrived, Mr. Khan did not ask Mr. Nelson to bring “it” down or the ting/ping as they’d discussed earlier. He asked for “Shorty” to come down showing his knowledge that Ms. Stokoe had possession of the gun.

[20] Mr. Nelson was very cautious about surveillance both on the phones and at the time of the transaction. It is not credible that he would advise Mr. Khan of that very secret detail as to the location of the shotgun with Ms. Stokoe but otherwise lie to him about the contents of the bag.

[21] In the wiretap conversations, both Mr. Nelson and Mr. Khan used code words when referring to the transfer. The gun is referred throughout though as a single item: Khan - “take care of that ”, Nelson – “I need it gone”, Khan – “where is it ”, Nelson – “ it’s around”. It’s also described as a ting or ping as heard by the officer. It’s a very minor point given the context of coded messages, but all of the messages consistently refer to a singular item. They never make reference to expressions related to quantity like “stuff”, or “package”.

[22] Considering all of the evidence, I find the testimony of Mr. Khan was not credible. It could not reasonably leave a doubt either alone or in combination with other evidence.

Knowledge

[23] To prove personal possession as alleged in this case, the Crown must prove:

• that the accused consented to the item being in his custody;
• that he exercised control over that item;
• and that he knew the item was a sawed-off shotgun as alleged.

The knowledge element must co-exist with the act of control. R v Lights, 2020 ONCA at para 45.

[24] Both parties agree that the Crown has proved Mr. Khan arranged to take the bag into his van and that he exercised control over the bag thereafter. The only remaining issue is whether the Crown has proved that Mr. Khan knew the bag contained the unregistered sawed-off shotgun as alleged in both counts. The determination that Mr. Khan was not a credible witness adds nothing to the Crown’s case and does not relieve the Crown of its burden to prove knowledge beyond a reasonable doubt.

[25] Mr. Nelson was very careful with security and the possibility of police surveillance, particularly over the phone. However, he did not hide the fact that he had a gun in the building from his close associates. On May 1st, 2019 in an intercept of a conversation between Mr. Nelson and Mr. Rodney, Rodney alerted Nelson to the fact that he’d had a falling out with his girlfriend, and she was threatening to contact the police and tell them that Rodney had a gun and sold drugs and his friend Nelson also had a gun. Rodney told Nelson that he was going to get rid of his gun and Mr. Nelson replied that maybe he should get rid of his too. Even if Nelson was describing getting rid of drugs instead of a gun, the conversation shows that Mr. Nelson had told others including Mr. Rodney that he had a gun in his apartment.

[26] PC Dority testified that there were numerous intercepts in which Mr. Nelson discussed construction and renovation work with Mr. Khan. It’s apparent from those calls and Mr. Khan’s evidence on this point that they worked together on various projects. They knew each other for four years and they were close. Mr. Khan was familiar with the intimate details of Mr. Nelson’s life including personal details. As noted above, he also knew a key secret detail about where the gun was being kept which the intercepts show Mr. Nelson was taking great care to hide.

[27] The conversations on the wiretap regarding the transfer were coded, but they show that Mr. Khan knew that “Shorty” was bringing the gun down which was confirmed by the elevator security video. It’s simply not credible that Mr. Nelson would tell Mr. Khan the central secret detail about the whereabouts of the item but leave out the fact that it was a gun.

[28] It wouldn’t make sense for Mr. Nelson to tell Mr. Khan a false story about the item that Mr. Khan would immediately discover was untrue. Even if Khan didn’t touch the bag as it was put in the van, the inevitable clunk of the shotgun as it bumped into any part of the van or as it was placed on the metal floor would immediately alert him to the fact that it was not a large bag of packaged powder. At the latest, when Mr. Khan picked up the bag he would immediately have realized it contained a shotgun. There was simply no reason to tell Mr. Khan anything other than the truth about the item in the bag and the intercepts show he had detailed level of knowledge about the transaction.

[29] It’s very telling that there was no attempt to disguise the firearm as another object or conceal it by wrapping it or covering it in a manner that would hide its distinctive features. The lack of any effort to hide the contents from Mr. Khan is completely inconsistent with any assertion that he was being duped into thinking it was an innocent object or duped into thinking it was some other illegal object. He would have known that it was a firearm as soon as he picked it up. Mr. Nelson would never have taken the risk that Mr. Khan would discard the item or report him for being tricked. The only reasonable conclusion is that Mr. Nelson didn’t make any effort to hide the contents of the bag because his close and trusted friend Mr. Khan knew exactly what was inside.

[30] There is no recording of any direct conversation where Mr. Khan was told the item was a sawed-off shotgun. The conversations between Mr. Khan and Mr. Nelson at work were not recorded and both parties used coded language during their phone conversations to counter possible surveillance. However, the Crown has proved that Mr. Nelson did share the fact that he had a gun with close associates. Mr. Khan knew personal details of Mr. Nelson’s life and was the associate Nelson trusted to take and hold the shotgun. Mr. Khan knew the most guarded secret regarding the gun – the fact that it was stored in Nelson’s girlfriend’s apartment and that she would be bringing it down to him. The building elevator security video shows that Mr. Nelson brought the ammunition sock, but it was his girlfriend getting on at a different floor who had the duffle bag containing the shotgun. There was no effort made to wrap up the gun with bulky padding or otherwise disguise the shotgun in the bag which would have been the case if Mr. Nelson wanted to hide the contents from Mr. Khan.

[31] On the whole of the credible evidence, I find there is only one reasonable inference – that Mr. Khan knowingly accepted the transfer of the sawed-off shotgun and ammunition to his van in circumstances where it was plain Mr. Nelson had no license, registration or authorization to possess that firearm. Mr. Khan was aware of the contents of the bag so there was nothing done to disguise the contents from him or make it look like drugs or some other item.

Conclusion

[32] I can find no credible evidence that reasonably could leave a doubt on either count. On the contested issue, I find the Crown has proved beyond a reasonable doubt that Mr. Khan knowingly took possession of the sawed-off shotgun and ammunition as alleged.

[33] There will be findings of guilt on both counts.

Delivered: 21 January, 2021. Justice Joseph F. Kenkel