Ontario Court of Justice

Date: 2022 11 23 Court File No.: Central West Region - Hamilton 21-6220

Between:

HIS MAJESTY THE KING

— AND —

Jason Mercuri

Before: Justice Anthony F. Leitch

Heard on: October 25-26, 2022 Reasons for Judgment released on: November 23, 2022

Counsel: Warren Milko, counsel for the Crown Alexandra Valeri, counsel for the accused Jason Mercuri

Leitch J.:

[1] Jason Mercuri is charged with possession of a loaded restricted firearm without a license and being an occupant of a motor vehicle knowing there was a firearm in it. On November 21, 2022, I released a Charter ruling denying exclusion of the gun and ammunition and made findings of fact pertinent to the trial in this matter. I adopt those findings for the purpose of these reasons. By agreement the evidence heard on the Charter voir dire became evidence on the trial. Also, on November 21, 2022, I found Justin Silva not guilty of these charges for oral reasons given that day.

[2] Jason Mercuri was driving a 2006 Cadillac sedan on July 25, 2021 around 11:30 PM. Justin Silva was a passenger in the car. Both were detained under the liquor license act for open alcohol in the vehicle and searched by the police. Jason Mercuri had no contraband on his person. Justin Silva had an imitation Glock BB gun and 50 bars of Xanax on his person when searched. The police conducted a full search of the Cadillac and found a Bersa .380 loaded handgun inside a white Nike satchel in the trunk. The satchel was beside an empty can of Twisted Tea alcohol and a significant amount of clothing. No forensic testing was conducted on the firearm or any of the other items located in the trunk. The defence called no evidence.

[3] The Crown must prove beyond a reasonable doubt the essential elements of possession to prove the charge under s. 95(2). They must prove that the defendant had actual physical control of the gun and was aware or had knowledge that he had physical control of the gun. The charge under s. 94(2) requires proof beyond a reasonable doubt that the defendant was an occupant in a motor vehicle and was aware or had knowledge he had had physical control of the gun. Control is not an essential element of the 94(2) charge.

[4] The Crown relies on a circumstantial chain of proof in this case to prove these essential elements. They submit the totality of the circumstances prove that Jason Mercuri had control of the gun in the trunk and was aware or knew it was there. They point to the evidence of a witness which, taken at its highest, showed the defendant was the true owner of the Cadillac although he paid another person to register in their name, the fact that he was the driver of the Cadillac and therefore controlled its contents, evasive driving including speeding, failing to stop for stop signs and a route travelled while the police were making the traffic stop that indicated that the defendant was trying to “lose” the police. They acknowledge no attempt by the police to conduct any forensic testing to buttress this circumstantial chain of proof.

[5] In examining the circumstantial proof, I must use common sense reasoning and consider both the strength of the evidence called by the Crown and gaps in the evidence. An inference of guilt drawn from circumstantial evidence must be the only reasonable inference that flows from the chain of proof. If there are reasonable inferences available from the evidence other than guilt the Crown has not met the standard of proof beyond a reasonable doubt. Those inferences need not arise from proven facts, there is no onus on the defendant to prove anything, proof lies squarely on the shoulders of the Crown. Gaps in the evidence may result in inferences other than guilt. As the Supreme Court said in R. v. Villaroman (2016) SCC 33 at Para. 36: “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 must negative these reasonable possibilities but need not negative every possible conjecture consistent with innocence.

[6] The evidence that the defendant was the true owner of the Cadillac comes from one witness. Adam Gillott claimed in examination in chief that he was present for discussions with the defendant and Michelle Cowen about the purchase of the Cadillac. He testified an agreement was reached wherein the defendant would pay Michelle Cowen to register the Cadillac in her name for $200, though he would be the true owner. Gillott thought the arrangement was made for insurance reasons which I take to mean to reduce the insurance paid by the defendant. In cross-examination Gillott admitted that much of the information he testified about possibly came to him as hearsay evidence from Michelle Cowen and not from personal conversations with the defendant. No application to admit this to hearsay evidence was made by the Crown and Michelle Cowen was not called as a witness.

[7] The evidence of Adam Gillott was given haltingly and lacked precision. In short, he was a poor witness. Any gains achieved by the Crown in chief were eradicated by his admissions that possibly Michelle Cowen told him much of what he said was personal knowledge in chief. In fact, the trial was stood down to clarify whether his knowledge was firsthand from discussions with the defendant or second-hand through Michelle Cowen. Additionally, he was cross-examined on a statement he made July 10, 2021 which indicated the bulk of his knowledge about the purchase of the Cadillac by the defendant and the agreement to register it in Michelle Cowen’s name came from discussions with Michelle Cowen not the defendant. As a result, I do not accept his evidence that the defendant owned the Cadillac. This finding leaves the Crown with only proof that the defendant operated the Cadillac on the night in question.

[8] In Regina v. Linclon (2012) 2012 ONCA 542, O.J. 3872 (OCA) the Ontario Court of Appeal held that no rebuttable presumption of knowledge and control for the purposes of determining possession, based solely on the fact that a person is the operator with the control of a motor vehicle, exists at common law or under the CDSA. The fact that a person is the operator with control of a motor vehicle can, with other evidence, enable a judge to infer knowledge and control in appropriate cases but it cannot, standing alone create a rebuttable presumption.

[9] There is no presumption that because the defendant was operating the Cadillac with a gun in the trunk that he knew it was there. It is but one piece of evidence available to the Crown in a circumstantial chain of proof.

[10] In my view the totality of circumstances relied on by the Crown do not prove beyond a reasonable doubt that the defendant had knowledge and control of the gun in the trunk of the Cadillac. Operating the Cadillac is a piece of proof but not sufficient on its own. The other evidence, a route taken to possibly evade the police, rolling through stop signs and speeding are some evidence to consider but are not sufficient to meet the burden of proof.

[11] In applying the Villaroman test for circumstantial proof I have considered the presence of Justin Silva as the passenger in the motor vehicle that night. Although there was no evidence of control or knowledge sufficient to found a conviction on either charge for Mr. Silva, I must consider the fact he had an imitation handgun and illegal drugs on his person that day as a passenger in the Cadillac. The seized handgun was in a satchel in the trunk. It is a reasonable possibility that Justin Silva asked Jason Mercuri if he could put his satchel in the trunk for safekeeping. That satchel could have had any number of things in it and nothing about its exterior would have told Jason Mercuri that it had a gun in it. There is no evidence of the historical use of the Cadillac by Jason Mercuri so it is possible that another person other than Justin Silva put that satchel in the trunk without his knowledge. I point out again, the police took no forensic steps to determine if any of the items in the trunk including the satchel and gun had fingerprints or DNA on them that could have linked the defendant more definitively to the gun.

[12] The gun was not found in the cabin of the Cadillac, it was found in the trunk out of reach a both driver and passenger. It could not be seen by either of them. It was not in plain view; it was inside a satchel. There is no evidence of the historical use of the Cadillac, whether it was only driven by the defendant or by others in the days before the traffic stop. There was only one weapon found in a satchel, not multiple weapons in plain view. There was no evidence that the items in the trunk were linked to the defendant other than by his control of the motor vehicle that day.

[13] I have considered the common-sense inference that parties generally do not hide valuables in someone else’s car unless they know and trust the owner of the car to look after the valuables for them (see R. v. Bonilla-Perez (2016) ONCA 535 at para. 16, R. v. Pannu (2015) ONCA 677 at para. 157 and R. v. Thompson (2020) ONCA 361 at para. 11). I accept this inference has value on these facts. However, in my view, that inference is not sufficiently strong in this case, with the other facts relied on by the Crown, to overcome the reasonable doubt standard. There is a difference between the value of a handgun in a satchel and a significant quantity of valuable illegal drugs. The inference is stronger the more valuable the commodity. As a result, I attribute less weight to this common-sense inference than I would in a case with a significant quantity of valuable drugs found in a truck. Had there been a forensic link to the defendant between the gun or other items in the trunk the result may have been different, that along with this common-sense inference may have met the reasonable doubt standard.

[14] As the Crown has failed to prove knowledge of the gun and ammunition by the defendant both charges must fail. I find you not guilty of both charges.

Released: November 23, 2022 Justice Anthony F. Leitch