ONTARIO COURT OF JUSTICE

CITATION: R. v. Conroy, 2021 ONCJ 724

DATE: 2021 03 17

COURT FILE No.: Brampton 3111 998 20 2748

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DESHAWN CONROY

Before Justice G.P. Renwick

Heard on: 07, 08, 09, 10, 21 December 2020, 26 January, 01, 24 February, and 17 March 2021

Reasons for Judgment released on: 17 March 2021

Counsel: T. Powell and J. Goulin, counsel for the Crown A. Goldkind, counsel for the defendant Deshawn Conroy

REASONS FOR JUDGMENT ON THE TRIAL

RENWICK J.:

INTRODUCTION

[1] The Defendant faces four counts relating to a threat to destroy property and possession of a loaded restricted firearm with an obliterated serial number.

[2] On 22 December, I released reasons dismissing a Charter application to exclude the evidence relating to the firearm found by police in the Defendant’s home. Subsequent to that decision, the Defendant brought a mistrial application. That application was abandoned part-way through argument. Today, the Defendant confirmed that he does not wish to re-new the mistrial application. As well, today, the Defendant chose not to call any evidence during the trial or to make any closing submissions on the trial.

[3] The sole issue for my consideration is whether it is proven beyond a reasonable doubt that the Defendant committed the four alleged offences.[^1]

GENERAL LEGAL PRINICIPLES[^2]

[4] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that the prosecution has proven any element of an offence charged beyond a reasonable doubt, the Defendant will be acquitted of that charge.

[5] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic.

[6] The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt, but it lies much closer to absolute certainty than to proof on a balance of probabilities.[^3] If after considering all of the admissible evidence I am sure that the Defendant committed the alleged offence, I must convict him, since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.

[7] Although neither party made submissions about the threat to damage Andrea Conroy’s iPad, I cannot find the Defendant guilty of this offence, unless I am satisfied beyond a reasonable doubt that this offence took place.

[8] The two essential elements of the offence of possession are control over the item, and knowledge of the presence of the item. Possession involves actual possession, constructive possession, or joint possession of the item by more than one person, with each person’s consent.

[9] Actual possession means physical custody of something on one’s person or within one’s possessions. Constructive possession exists where an item is not physically on the person, but nonetheless the person has knowledge of where the item is kept and has an ability to access and control the possession of the item. Joint possession involves knowledge of the existence and location of an item by more than one person, or possession of the item by one person on behalf of another person or persons.[^4]

[10] A person who knowingly has something in their actual possession or the custody of someone else, or in a place for his or her benefit is said to possess the item, provided he or she has some control over the item. “Knowingly” means the person is aware of the item in the custody of someone else, or in another place, and the person does not act through ignorance, mistake, or accident. To decide if the Defendant acted knowingly, I may consider the evidence of his words, actions, or omissions, along with all of the other evidence.[^5]

[11] Two people may have possession of an item at the same time. Where each person, with the knowledge and agreement of the other, has anything in his or her possession or custody, both of them are considered to be in possession of the item, provided that each has some control over it. Knowledge, agreement, and some control by another who is not in actual possession of the item is essential in order to find that person has possession of the item. Mere indifference, recklessness, or doing nothing is not enough.^6

[12] The element of knowledge can be inferred from evidence of actual possession, constructive possession, or joint possession, but becomes less likely the more remote the connection between the location of the item and the individual. Drawing inferences to establish knowledge “becomes more difficult if the contraband is hidden or not otherwise in plain sight.”[^7]

[13] Knowledge can also be proven by evidence of actual knowledge or wilful blindness. Recklessness is not sufficient.

[14] Control over an item will not generally be inferred from mere knowledge of the existence or location of an item. Rather, control exists where there is a measure of access and authority to restrict or permit access, or to direct or restrain the use of the item. Possession without control is insufficient to prove the offence. The mere handling of an item is not proof of control or the intention to possess the item.[^8]

[15] The prosecution’s evidence of the Defendant’s mental state when he possessed the firearm is circumstantial. There was no direct evidence respecting the Defendant’s mental state, if in fact it is proven beyond a reasonable doubt that the Defendant possessed the firearm.

[16] In order to be satisfied that the Defendant possessed the handgun with the requisite mens rea, beyond a reasonable doubt, I must be satisfied that it is the only reasonable inference available on all of the evidence.[^9]

[17] In assessing a circumstantial case, I must consider the evidence cumulatively and as a whole. Given that each circumstantial piece of evidence may be insufficient on its own to support the required inference, I must consider all of the individual pieces of evidence together, and any gaps in the evidence to determine whether the prosecution has met its burden. “[T]he mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt.”[^10]

[18] In the next part, I will outline some of the evidence. Although many of the facts were uncontested as between the parties, the weight or significance of each fact is a determination that I must make. I will also provide an assessment of some of the viva voce testimony, with references to some of the evidence taken. Although I may not refer to all of what a witness said, I listened to each witness carefully and I have assessed the witness’ testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and the witness’ ability to observe, recall, and communicate.

THE EVIDENCE AND FINDINGS OF FACT

[19] There were several exhibits entered on consent during the trial concerning the continuity of the exhibits, the photographs taken by other officers, the firearm found by police, the Defendant’s lack of any authorization to possess a firearm, the operability of the firearm, the operability of the firearm with the ammunition that was loaded into it, the classification of the firearm, and the fact that its serial number was obliterated. These facts alone, however, fall well short of proving anything beyond a reasonable doubt.

[20] As a trier of fact, I can accept some, none, or part of the testimony of any witness.

[21] In determining what are the facts of a case, I am obligated to consider the credibility of witnesses: do I believe the witness to be truthful. I am also obligated to consider the reliability of witnesses: is the witness’ account accurate.

[22] All witnesses are presumed equal. Neither one’s station in life nor their rank in society gives them any disability or special accommodation. A trier of fact is not entitled to give less or more scrutiny to a witness’s evidence on the basis of their role in the proceedings.

Andrea Conroy

[23] Ms. Conroy is the Defendant’s mother. She testified and authenticated an audio recording of a 9-1-1 call she made seeking police assistance because she claimed to be fearful of her son. During her call to police Ms. Conroy stated:

…he threw my iPad off the building, I’m not dealing with this anymore, I’m being abused, I’m being threatened. I have many documentations, texts including my counsellors that see this and I’m sick of it.[^11]

[24] During the 9-1-1 call, Ms. Conroy confirmed that her son was “in the laundry mat” while she was on the telephone. Her testimony also confirmed this allegation.

[25] Ms. Conroy also admitted during her evidence in chief that she did not see her iPad thrown off the building, but her son had threatened to do that, and she did recover her iPad after the police had searched her apartment, but she was unsure how the iPad was recovered.

[26] I have a great deal of difficulty accepting much of what Ms. Conroy said during her testimony. She has lived a complicated life and she struck me as someone who would say anything if it suited her purposes. Where it was not corroborated by other evidence, I cannot give much weight to Ms. Conroy’s testimony. Additionally, Ms. Conroy testified that she had been drinking hard liquor that day, but she did not believe that she was intoxicated to any extent. She described herself as a “functionable” alcoholic.

[27] Based upon the evidence of Andrea Conroy’s testimony which is unchallenged and which I accept, I find as a fact that Ms. Conroy was living with her son in her apartment in early March 2020. As well, I have no difficulty concluding beyond a reasonable doubt that the Defendant had threatened to damage her iPad, although this never actually occurred.

Paul Wallbank

[28] Paul Wallbank was one of the two sergeants who also attended Ms. Conroy and the Defendant’s apartment in response to Ms. Conroy’s 9-1-1 call.

[29] Based on his evidence, I found Sgt. Wallbank to be conscientious and cautious as a police officer. He testified that he conducted a walk-through of the apartment to ensure the environment was safe and that there were no other occupants present, besides Andrea Conroy, when the police were there. He testified that during a second look into the bedroom that was apparently being used by the Defendant he saw a handgun on the dresser. Some of the photographs that became exhibit 2 apparently record the position of the firearm when it was first observed by Sgt. Wallbank.

[30] Largely for the reasons already expressed in my Charter ruling, I find that Sgt. Wallbank was balanced, candid, accurate, and reliable as a witness. Sgt. Wallbank admitted that he had no reasonable answer for why he said he looked into the Defendant’s bedroom a second time. He “just did.” In the end, I accept all of the testimony of Sgt. Wallbank as truthful and reliable in this trial.

Michael Hunter

[31] There was no challenge to this officer’s evidence, but it need not be recapitulated here. This witness had no meaningful contact with either the Defendant or the bedroom within which the firearm was found.

Mark Co

[32] It is difficult to assess the value of Constable Co’s evidence. He testified poorly. He was extremely cautious in the way he answered questions. I did not believe that he was intentionally misleading the court, but I cannot say that I had confidence that he was answering questions simply and accurately without actively trying to avoid some perceived trap. As a result, it was difficult to listen to his evidence.

[33] To a limited extent, Constable Co’s testimony supported Sgt. Wallbank’s evidence that the Defendant was upset and expressed anti-police sentiments before he was arrested.

ANALYSIS

[34] In order to find the Defendant guilty of possessing the loaded firearm with an obliterated serial number which was found in his shared apartment, I have to be satisfied beyond a reasonable doubt that the Defendant intentionally possessed the firearm, with an awareness of its existence and appreciation of its capability, and with the ability to exert some measure of control over it. There is no contest that the recovered firearm is a deadly weapon that is prohibited, it was loaded with six rounds of ammunition, and the serial number on it was obliterated.[^12]

[35] On the basis of the evidence of Andrea Conroy, I accept that part of her evidence where she testified that she does not like firearms, she does not possess firearms, and she had no awareness of the presence of the firearm in the bedroom she attributed to her son, prior to calling 9-1-1. Her criminal record, although unenviable, provided limited support for parts of this evidence.

[36] Although it was Andrea Conroy’s intention to get the police to deal with the Defendant and to recover her iPad that day, I do not find as a fact that she intentionally put the firearm in the bedroom she claimed was her son’s, or that she was even aware of the presence of the firearm in that bedroom on that day. To the contrary, I am inclined to the view that if Andrea Conroy had been aware of the presence of firearm she would not have permitted the police to walk around her apartment.

[37] In light of all of the evidence I have heard, and taking into account both the problematic areas of Andrea Conroy’s testimony and the unchallenged parts of her evidence, I have come to the following conclusions and make the following additional findings of fact:

i. The Defendant had been in the apartment he shared with his mother earlier in the day (i.e., before the police arrived);

ii. The Defendant had been doing his laundry that day prior to the arrival of the police;

iii. The laundry room for the apartment building was outside of the Defendant’s apartment;

iv. At some point after the Defendant left his apartment to attend the laundry room, Andrea Conroy locked the Defendant out of the apartment;

v. The police arrived as the Defendant was trying to convince his mother to unlock the apartment door;

vi. The police did not disturb or alter the door to the bedroom where the firearm was found;

vii. The police did not disturb or alter the laundry basket which propped open the door to the bedroom where the firearm was found;

viii. The police did not disturb or alter the position of the firearm on the dresser inside the bedroom where the firearm was found before it was observed by Sgt. Wallbank and subsequently as it appears in exhibits 2A and 2B; and

ix. The police did not disturb or alter the contents atop the dresser inside the bedroom where the firearm was found before they were observed by Sgt. Wallbank and subsequently as they appear in exhibits 2A and 2B.

[38] I find that the Defendant was in possession of the loaded firearm discovered by Sgt. Wallbank based upon the following additional facts:

i. Given the Defendant’s appearance (clothing) when first observed by police and his possession of laundry detergent and a laundry card (both were observed by police in proximity to where the Defendant had been prior to his arrest), it is clear that the Defendant was trying to re-enter his apartment after a brief absence at the laundry room;[^13]

ii. The firearm was in plain view sitting on the dresser in the bedroom;

iii. The Defendant’s Ontario Health Card was found on the dresser within inches of the firearm;

iv. The firearm was found in a bedroom containing men’s shoes and clothing;

v. The Defendant lived in the two-bedroom apartment with his mother; and

vi. The bedroom at the end of the hall (not the bedroom containing the firearm) had women’s clothing in it.

[39] I conclude that the firearm was found in the bedroom used by the Defendant. The position of the laundry basket, the presence of men’s clothing inside that room, and the presence of the Defendant with laundry detergent outside his apartment satisfy me that the only reasonable conclusion I can draw on all of the evidence, including the gaps in the evidence, is that the Defendant used that bedroom and he had been inside the bedroom earlier that day.

[40] Although I am unable to make any findings about the origins of the firearm, its owner, and the duration of time that it existed in the position in which it was found by the police, I am nonetheless satisfied beyond a reasonable doubt that the only conclusion that I can come to on all of the evidence, including the evidence of Andrea Conroy, the 9-1-1 call (including the Defendant’s voice in the background), and the observations of the police of the Defendant’s agitated state, is that the Defendant was aware of the presence, existence, and nature of the loaded firearm with an observable, obliterated serial number on his dresser in his bedroom and he was knowingly and wilfully in possession of that firearm on that day.

CONCLUSION

[41] I am satisfied beyond a reasonable doubt that Deshawn Conroy is guilty of all four counts as alleged.

Released: 17 March 2021

Justice G. Paul Renwick

[^1]: For some unknown reason, counts 1 and 2 on the Information (s.92(1) unauthorized possession of a firearm and s. 264.1(1)b) threat to damage property) allege the offences on 06 March 2020, while counts 3 and 4 (s. 95(1) possession of a loaded firearm and s. 108(1)(b) possession of a firearm with an obliterated serial number) allege offences on 07 March 2020. Neither party has raised this as an issue for my consideration.

[^2]: See R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] S.C.J. No. 77 at paras. 13, 14, 23, 26, 27, 30, 31, 33, 34, 36, 37, and 39.

[^3]: R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242.

[^4]: Section 4(3) of the Criminal Code.

[^5]: Excerpted and paraphrased from: Watt’s Manual of Criminal Jury Instructions, Second Edition, David Watt J.A., 2015, Thomson Reuters at pp. 969-977.

[^7]: R. v. Allen, [2015] ONSC 6656, unreported decision of B.A. Allen J., at para. 21.

[^8]: R. v. Breau, 1987 CanLII 7639 (NB CA), [1987] N.B.J. No. 15 (C.A.).

[^9]: R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33 at paras. 17, 18, 22, 26, 27, 29, 30, 31, 32, 34, 35, 36, 41, 42, 55, and 56.

[^10]: R. v. Griffin, 2009 SCC 28, [2009] S.C.J. No. 28 at para. 34.

[^11]: Exhibit 1B – transcript of 9-1-1 call, p. 5. I have given no weight to her claims of threats and abuse.

[^12]: I have kept in mind that count 3 alleges that the loaded firearm was “restricted” rather than “prohibited.” Again, this was not argued by the Defendant. Section 84 of the Criminal Code defines a “restricted firearm” as one that is not a “prohibited firearm.” Given that the count alleges possession of a “restricted” firearm, and the clear wording of s. 95 of the Code, which includes both types of handguns, I find that the inclusion of the word “restricted” in the Information is mere surplusage.

[^13]: These facts supported similar testimony of Andrea Conroy.