ONTARIO COURT OF JUSTICE

DATE: April 25, 2022

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ZEKEIM OGILVIE

Before: Justice T. Lipson

Reasons for Judgment released on April 25, 2022

Counsel: Mr. M. Geigen-Miller ............................................................................................... for the Crown Mr. B. Del Greco ........................................................................... for the accused Zekeim Ogilvie

Lipson J.:

Overview of the Case

[1] Zekeim Ogilvie entered pleas of not guilty to nine firearm-related charges, including possession of a loaded prohibited firearm, a 9mm. semi-automatic handgun.

[2] This case arose from a Highway Traffic Act stop for speeding that developed into a regulatory investigation under the Liquor Licence Act (LLA) and then quickly became a criminal investigation leading to the arrest of three individuals, including Mr. Ogilvie, and the seizure of two loaded handguns.

[3] These events occurred on August 27, 2020. At the time, Mr. Ogilvie was in the front passenger seat of a silver-coloured Volkswagen Jetta driven by the registered owner, Eddy Sle. P.C. David Guy, of the Ottawa Police Service, had received an “officer safety alert” that a vehicle matching that description was possibly being driven by an individual in possession of a firearm. He observed a car matching that description and having the same plate number set out in the email alert. He followed the vehicle until he had the grounds to pull it over, in this case, for speeding. He did so.

[4] P.C. Guy observed that there were two passengers, in addition to the driver. One, Mr. Ali, was in the rear seat behind Mr. Sle. He had his arm around a laundry bin containing numerous liquor bottles. There was another clear plastic bin on the back seat which also contained several liquor bottles.

[5] While speaking to the driver, the officer noted an odour of alcohol coming from the driver’s window area. In the circumstances, he returned to his vehicle and requested back up. Shortly after that, P.C. Narcisse-Clervil arrived on scene. The two officers conferred. They decided to search the Jetta under the authority of s. 32(5) of the LLA.

[6] P.C. Narcisse-Clervil found a loaded .357 magnum handgun in a blue satchel situate at Mr. Ali’s feet. He also located a loaded 9 mm. handgun wrapped in a t-shirt under the front passenger seat where Mr. Ogilvie was sitting. That firearm is the subject of Mr. Ogilvie’s charges.

[7] The Crown submits that that the initial LLA search was lawful. He says, as well, that Mr. Ogilvie lacks standing to challenge the search.

[8] By contrast, counsel for the accused says Mr. Ogilvie does have standing. He also contends that the police did not have the requisite grounds to conduct the initial search of the vehicle under any statutory authority.

[9] The defence also submits that the search was unreasonable and violated Mr. Ogilvie’s protected rights under s. 8 of the Charter of Rights and Freedoms. He says the firearm found under the front passenger seat should be excluded from the evidence under s. 24(2).

[10] It is conceded that once the three occupants were placed under arrest for possession of the loaded firearm found in the rear passenger area, the semi-automatic firearm located under the front seat was lawfully seized as incidental to arrest.

[11] The Crown submits that should the loaded firearm found under Mr. Ogilvie’s seat be admitted into evidence, the prosecution has in the result proven the defendant’s constructive possession of it beyond a reasonable doubt.

[12] The Crown relies, in part, on two videos to prove possession. Both videos were seized from Mr. Ogilvie’s cell phone that was found on the passenger seat under which the 9 mm. handgun was discovered. Both videos show Mr. Ogilvie on earlier dates in possession of a semi-automatic handgun that the prosecution says is strikingly similar. The Crown suggests there is a temporal nexus that has inferential relevance as between the firearm seized and the one seen twice on video in the defendant’s possession. Video #1 was created on June 27, two months before the traffic stop. Video #2 was created on August 6, 21 days before that event.

[13] The Crown also relies on other circumstantial evidence that includes the fact that the handgun was located under Mr. Ogilvie’s seat, in addition to his being forensically identified as a contributor to the DNA mixture found on that weapon.

[14] Counsel for the accused submits that there is insufficient proof of possession. He says the probative value of the video evidence is low, is exceeded by its prejudicial effect and should be excluded. He suggests that a reasonable alternative circumstantial inference is that one of the other occupants placed the firearm under Mr. Ogilvie’s seat. Counsel submits that the prosecution has failed to prove beyond a reasonable doubt that the defendant had the requisite knowledge and control over the firearm.

Does Mr. Ogilvie have Standing to Challenge the LLA Search?

[15] The onus is on the Applicant who applies for standing to establish he had a reasonable expectation of privacy. The Crown’s position that Mr. Ogilvie lacked standing to challenge the LLA search of the vehicle because he had no such expectation is marked by inconsistency. On the one hand, he says that the defendant’s presence at the time of the search following discovery of the first firearm and consequent lawful arrest of the three occupants in the vehicle is insufficient to establish an expectation of privacy: see R. v. Belnavis, [1997] 3 S.C.R. 341 and R. v. Steele, 2015 ONCA 169.]

[16] On the other hand, the Crown concedes that a defendant is entitled to rely on the Crown’s theory to establish facts in furtherance of his s. 8 claim. In this regard, the prosecution’s position is that the defendant was detained for the purpose of a search of the “vehicle and all of its occupants” as provided for in s. 32(5) of the LLA. In fact, both officers testified that it was their intention to search the Jetta and all of the occupants. Moreover, the search powers conferred by the LLA are not limited to the vehicle itself but extend to its occupants. It is noted that Mr. Ogilvie was detained, required to exit the vehicle and told he would be subject to a search.

[17] In these circumstances, I am satisfied the defendant had a reasonable expectation of privacy against the search of his person and his immediate area within the vehicle.

Was the LLA Search Reasonable within the Meaning of Section 8 of the Charter?

[18] The search in this case was conducted pursuant to s. 32(5) of the LLA. That section states:

32 (1) No person shall drive or have the care or control of a motor vehicle as defined in the Highway Traffic Act or a motorized snow vehicle, whether it is in motion or not, while there is contained in the vehicle any liquor, except under the authority of a licence or permit.

(2) Subsection (1) does not apply if the liquor in the vehicle,

(a) is in a container that is unopened and the seal unbroken; or

(b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle.

(5) A police officer who has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle or boat may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.

Liquor License Act, RSO 1990, c L.19, s. 32 subs. (1), (2) and (5)

[19] The onus is on the Crown to prove on a balance of probabilities that that this warrantless search was authorized by law and that it was carried out in a reasonable manner. A police officer will be authorized to conduct a search pursuant to s. 32(5) when there are reasonable grounds to believe that there is open liquor readily available to anyone in a vehicle where someone is driving or has care or control of it.

[20] The Crown relies on the evidence of P.C. Guy to establish such reasonable grounds. This officer testified that he was the one who formed the grounds to conduct the search. He told the court that he saw the vehicle being driven, conducted a traffic stop and noted the driver, Mr. Sle. He also observed a large quantity of liquor bottles in the rear passenger area of the vehicle that were in reach of the occupants. In fact, he saw that Mr. Ali had his arms around one of the bins of bottles. Of significance, P.C Guy detected a smell of alcohol coming from inside the vehicle through the open driver’s window.

[21] The Crown relies on the decision in R. v. Bashir, 2010 ONCJ 317 at para 7, aff’d on other grounds, 2012 ONCA 793 for the proposition that it will not always be necessary for a police officer to directly observe that the liquor containers are open. In Bashir, the trial judge held that a police officer had reasonable grounds when he saw multiple liquor bottles and smelled an odour of alcohol coming from inside the vehicle. In that case, the officer searched a cloth grocery-type bag on the middle of the rear seat, found liquor bottles in the rear foot well and smelled liquor coming from red cups in the car. In searching the cloth bag, the officer removed a tee-shirt near the open top and found a handgun and magazine.

[22] Mr. Bashir’s conviction was affirmed on another ground. However, in the context of its 24(2) Charter analysis, the Court of Appeal noted that the arresting officer had grounds to conduct the search under s.32(5) of the LLA. On its facts, it is implicit that the combination of liquor bottles and an odour of alcohol permitted an inference of open bottles.

[23] The defence relies on the evidence of P.C. Narcisse-Clervil to contend there were no reasonable grounds for the search. This officer assisted P.C. Guy while positioned on the passenger side of the vehicle. He said he saw several liquor bottles in the rear passenger seat area, although there is no evidence that any bottle was open. Unlike his colleague, P.C. Narcisse-Clervil did not smell alcohol coming from the vehicle. He told the court that he was the officer who formed the grounds to search, although he made no note of this assertion. He believed he had the requisite grounds based solely on the accessibility of the bottles to the car occupants.

[24] Both parties agree that P.C. Narcisse-Clervil did not have reasonable grounds to conduct a search. I also agree. I am rather of the view on this evidence that it was P.C. Guy who had the requisite grounds to conduct the search. I accept his testimony that he believed the vehicle contained open liquor readily available to the occupants. His basis for this inferential belief was the presence of many bottles of alcohol within reach of the occupants and the odour of alcohol coming from the open driver’s window.

[25] While it is true that it was P.C. Narcisse-Clervil who asked Mr. Ogilvie to exit the vehicle and who in his search of the vehicle found the semi-automatic handgun, he was mistaken to believe he had reasonable grounds to do so. Nonetheless, his incorrect belief does not vitiate the validity of the search because, in my view, P.C. Guy had the requisite grounds upon which to act.

[26] It is no answer to the question of reasonable grounds that no LLA offence was committed. Counsel for Mr. Ogilvie argues that while a ticket was issued, it was not pursued because there was no illegally stored alcohol in the vehicle. However, I am satisfied on this evidence that at the time he decided to conduct the LLA search, P.C. Guy had both subjective and objective grounds to believe an offence had been committed.

[27] On a balance of probabilities, I find that the accused has not established a s. 8 Charter breach.

Assuming a Section 8 Breach, Should the Evidence of the Firearm be Excluded?

[28] If the search was unreasonable and did constitute a s. 8 Charter violation, the court must engage in a s. 24(2) analysis set out in R. v. Grant, 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.). I am required to weigh and balance three factors: the seriousness of the breach, the impact on the Charter-protected interests of the accused and society’s interest in an adjudication on the merits.

[29] Regarding the seriousness of the breach, I agree with the Crown that it is on the lower end of the spectrum. While I have concerns about the reliability of P.C. Narcisse-Clervil’s testimony that he had reasonable grounds, when he did not, nonetheless, reasonable grounds for the search did exist and were known to P.C. Guy. Moreover, the search itself was limited in scope and performed in a reasonable manner, as was the search incidental to arrest. And once the guns were discovered, the officers chose to obtain a search warrant for the vehicle, as well as one to examine the data on two of the seized cell phones.

[30] In my view, the impact on the defendant’s Charter-protected interests was low and weighs in favour of admission. A reasonable expectation of privacy in one’s vehicle is markedly decreased when compared to an expectation of privacy in one’s home or office. Mr. Ogilvie was merely a passenger with no connection to or interest in the vehicle. His expectation of privacy was, in these circumstances, quite low.

[31] Society’s interest in an adjudication on the merits is high. This factor weighs in favour of admission. The evidence obtained includes two loaded firearms. It is reliable, probative and goes to the heart of the case for the prosecution.

[32] On a weighing and balancing of the Grant factors, I conclude that the accused has not established on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute.

Does the Probative Value of the Video Recordings Outweigh their Prejudicial Effect?

[33] The two videos were obtained from Mr. Ogilvie’s cell phone seized from the front passenger seat. The defence admits that Mr. Ogilvie is depicted in each of the videos.

[34] Video #1 bears a “created” date of June 27, 2020, at 9:43:58 p.m. It was located in the “DCIM” folder of Mr. Ogilvie’s cell phone where it would be automatically stored if it was created using the camera on the phone. It portrays two handguns, one positioned on top of the other. The handgun on top is the one the Crown alleges was found under Mr. Ogilvie’s seat. The other has no connection to this trial and has no probative value.

[35] Video# 2 bears a “created” date of August 6, 2020, at 4:07:32 p.m. It was stored in a folder used by the Snap Chat application on Mr. Ogilvie’s phone.

[36] It is common ground that the “created” dates do not prove when the videos were filmed because it is possible the videos were sent or downloaded to the cell phone. If so, the “created” dates may merely reflect when the video file was saved into the phone’s memory. Even were videos not filmed on their respective “created” dates, they were downloaded or used in some manner by Mr. Ogilvie on those respective dates.

[37] The question of probative value bears on a central issue in this case: whether Mr. Ogilvie had knowledge and control of the semi-automatic handgun wrapped in a t-shirt and partially sticking out from under the front of his seat.

[38] The Crown submits that the videos have significant probative value on the question of possession. He says, in this regard, that the appearance of the handgun in the videos is strikingly similar to the one found under the defendant’s seat, permitting an inference that they are one and the same.

[39] Counsel for the accused submits, rather, that the probative value of the video evidence is low and is outweighed by its prejudicial effect, even in a judge-alone trial where the possibility of such evidence being used for an improper purpose is diminished. He does not dispute there is a high degree of similarity as between the respective firearms, but says they have no distinctive features but for the obliterated serial number.

[40] The defence also points out that there is no evidence to indicate how prevalent or rare this firearm is in the Ottawa area, evidence he says is necessary to assist the court in evaluating whether the firearms are the same or merely of a similar make and model. Counsel submits that the obliterated serial number adds little to the probative value of the evidence.

[41] The defence submits, in addition, that the date the videos were made cannot be determined. It follows, he says, that the date of the handgun’s possession is unknowable. At best, the evidence places the firearm in the accused’s possession 21 days prior to the search, a passage of time, counsel suggests, that begins to erode the probative value of that evidence, rendering the temporal link tenuous as between the gun in the video and the one seized.

[42] In sum, the defence says there are no truly distinguishing features that connect the two firearms and that it would be speculative to link the firearms in the video to the firearm seized. As indicated, counsel emphasizes the diminished probative value of the videos because of their uncertain link to the subject handgun.

[43] I have reviewed both videos and compared the firearm to the one seized on August 27. While there is an absence of dissimilar features, there is by contrast a high degree of similarity between the two guns, including their colour and the shape and size of the grip, as well as the semi-circular pattern at the rear of the grip. Other identical features include: the wavy pattern of serrations at the rear portion of the slide, the shape of the trigger guard, the location of the serial number plate, the size and shape of the slide and the presence, size of shape and colour of etched or engraved text along the side. Of particular note, is the strikingly similar appearance of the obliterated serial numbers on the gun in the video and the gun seized.

[44] I also agree with the Crown that the proximity in time between the videos and the seizure is relatively close. Appreciating that the “created” dates for the videos may relate to downloading or being sent rather than filming, the videos bear “created” dates 60 days and 21 days, respectively, prior to the traffic stop but, of significance, before the date of the vehicle search. They are probative of the elements of possession.

[45] And as Crown counsel rightly points out, replacement of an illegal black-market handgun entails the added risk of detection by law enforcement during purchase and sale. This type of firearm is built to last and costly to replace. The videos of Mr. Ogilvie handling a strikingly similar handgun and the material inferences regarding possession that are available on the evidence are probative of the defendant’s knowledge and control of the handgun found under the front passenger seat on Aug. 27.

[46] I am persuaded that the prejudicial effect of the videos is low. This is not a jury trial, and the court is keenly aware of the potential for the misuse of this evidence. The prejudicial effect is significantly reduced because the alleged discreditable acts are equally, if not less reprehensible, than the counts in issue. In my view, evidence that Mr. Ogilvie had a strikingly similar firearm in his possession on two occasions in the very recent past is highly relevant to one of the central issues in this case: whether the defendant had knowledge and control of the gun found under his seat.

[47] For these reasons, I would admit the video evidence.

Was Mr. Ogilvie in Possession of the Firearm?

[48] The Crown is required to prove by circumstantial evidence, that Mr. Ogilvie had possession of the firearm.

[49] R. v. Villaroman, 2016 SCC 33 is the leading authority on the use of circumstantial evidence and its relationship to proof beyond a reasonable doubt. Justice Cromwell set out the following principles governing the use of circumstantial evidence to establish guilt to the requisite standard:

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 inferences.

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.

[50] As the trier of fact, I am guided in my assessment of the evidence by these instructions and principles.

[51] The Crown’s case rests primarily on the following circumstantial evidence: Mr. Ogilvie’s presence in the vehicle very close to the firearm; DNA evidence present on the firearm which cannot be excluded as coming from Mr. Ogilvie; and video evidence from the defendant’s cell phone showing him to be in possession of a semi-automatic handgun that the Crown says is the same one found under the front passenger seat of the vehicle on August 27.

[52] The defence says it stands to reason that the firearm was placed in the vehicle by one of the three occupants. But, in my view, it is not a reasonable inference that a fourth party, not present, would have stored their valuable firearm in the vehicle, in that person’s absence.

[53] I turn first to the location of the semi-automatic handgun. Mr. Ogilvie was sitting in the front passenger seat at the time of the traffic stop. When the car was searched, P.C. Narcisse-Clervil observed a white-t shirt sticking out from underneath the front passenger seat. The shirt was partially hanging out from under the front seat. The loaded firearm was wrapped in the shirt. I agree with the Crown that the location of the gun supports a strong inference that Mr. Ogilvie had knowledge and control of it.

[54] Another important piece of circumstantial evidence is the DNA evidence linking Mr. Ogilvie to the firearm. A DNA analysis by Ms. Johnston, a biologist from the Centre of Forensic Sciences, whose expertise was accepted by the parties, indicated that Mr. Ogilvie was “not excluded” as a contributor to the DNA mixture. These results are estimated to be 6200 times more likely if they originated from Mr. Ogilvie and two unknown persons than if they originated from three unknown people unrelated to the accused. Ms. Johnston told the court that while this result is not conclusive proof of identity, it provides “strong support” for the conclusion that Mr. Ogilvie was one of the contributors to the DNA mixture found on the firearm.

[55] I also note that the DNA analysis excluded Mr. Sle and Mr. Ali as contributors. Ms. Johnston was clear that there is no possibility that either individual contributed to the DNA mixture on the subject handgun.

[56] There is evidence that Mr. Ali had his own gun, a loaded revolver, seized in the search. His handgun was found in a blue satchel on the floor in front of the driver’s side rear seat where he was sitting. DNA testing on this firearm indicated that Mr. Ali was “not excluded” as a contributor to the DNA mixture found on it. The DNA results were estimated to be 23 billion times more likely accurate if they originated from Mr. Ali and three unknown people than if they originated from four unknown people unrelated to Mr. Ali. Ms. Johnston told the court that those results provided “very strong support” for the conclusion that Mr. Ali was one of the contributors to the DNA mixture found on the revolver. Importantly, this DNA analysis excluded Mr. Sle and Mr. Ogilvie as contributors.

[57] Finally, the video evidence obtained from Mr. Ogilvie’s cell phone shows him in physical possession of a semi-automatic handgun with features strikingly similar to the one seized on Aug. 27, and with no differences.

Conclusion

[58] In summary, the Crown has presented a compelling circumstantial case against Mr. Ogilvie, including:

• A loaded semi-automatic handgun wrapped in a t-shirt is found at the feet of the defendant when the traffic stop occurred.
• Expert evidence indicates that DNA from the semi-automatic handgun provides “strong support” for the conclusion that Mr. Ogilvie was a contributor to the DNA mixture found on that gun, while the DNA of the other two occupants excluded them as contributors. The DNA mixture on the revolver located at Mr. Ali’s feet excluded Mr. Ogilvie and Mr. Sle as contributors. Simply put, two of the three men in the vehicle have a gun at their feet. Each passenger is the contributor to the DNA on the respective guns. For each gun, two occupants are conclusively ruled out as contributors.

[59] I agree with the Crown that on this evidence it is a matter of compelling circumstantial inference and common sense that Mr. Ogilvie was in possession of the gun found at his feet and that the DNA results significantly strengthen that finding of fact.

[60] As well, the semi-automatic handgun seen in the video recordings bears a very high degree of distinctiveness, or striking similarity, to the one found in the search. This evidence, including the location of the handgun and the DNA evidence linking the defendant to it, makes it objectively improbable that Mr. Ogilvie did not have knowledge or control of the handgun or that it’s striking similarity to the one he handled on two prior occasions was merely a coincidence.

[61] I have applied the principles set out in Villaroman to the facts as I have found them in this case. It is not a reasonable inference on the evidence that someone in the vehicle other than Mr. Ogilvie possessed the semi-automatic handgun found under his seat. Nor is it a reasonable inference that the handgun was placed or stored under Mr. Ogilvie’s seat by one of the other two individuals in the vehicle, or that Mr. Ogilvie’s DNA was possibly transferred to the gun from the t-shirt it was wrapped in. On the totality of evidence, there are no reasonable inferences other than guilt.

[62] In the result, I am satisfied beyond a reasonable doubt that Mr. Ogilvie is guilty on all counts.

Released: April 25, 2022 Justice T. Lipson