ONTARIO COURT OF JUSTICE
DATE: 2023 01 25 COURT FILE No.: Metro North, Toronto Region 22-99840000038
BETWEEN:
HIS MAJESTY THE KING
— AND —
Estime NDAYIHEZAGIYE
Before: Justice Cidalia Faria
Heard on: September 9, and 29, 2022 Reasons for Judgment released on: January 25, 2023
Counsel: Daniel DeSantis, counsel for the Crown Allan Lobel, counsel for the accused Estime NDAYIHEZAGIYE
Faria J.:
I. Overview
[1] Estime Ndayihezagiye is charged with five firearms related offences regarding an allegation he possessed a restricted semi-automatic handgun and ammunition contrary to ss. 95, 92(2), 91(1), 86(1) and 86(1) of the Criminal Code.
[2] Mr. Ndayihezagiye was the target of a search pursuant to a warrant executed on November 14, 2020. Police were looking for firearms, firearm paraphernalia and accessories. They found them. Mr. Ndayihezagiye was arrested and charged the same day.
[3] Only one issue is to be decided: whether the prosecution has proved beyond a reasonable doubt that Mr. Ndayihezagiye was in possession and control of the seized firearm and ammunition.
II. Evidence
[4] The following admissions were made:
- The continuity of all property seized by police in the searched apartment at Graydon Hall Drive in Toronto, including a SIG Sauer P320 handgun and magazine with three (3) rounds of ammunition.
- The SIG Sauer P320 semi-automatic handgun and magazine with 3 cartridges seized was analyzed by Kristine McLane, a Toronto Police Service Examiner of weapons. She found it to be a restricted firearm. She examined two of the cartridges in the magazine and determined the 40 S. & W. calibre to be ammunition.
- On November 24, 2020, Estime Ndayihezagiye was not the holder of a Firearms Requisition Certificate, licence, or registration certificate under which he may possess a firearm.
[5] The prosecution called four police witnesses and filed 87 photographs. The defence called no evidence.
[6] The four officers tasked with executing the search warrant were: DC Wayne MacDonald, case manager and exhibits officer; DC Michael White, Scenes of Crime Officer (SOCO) who photographed all the items of relevance; DC Rowan Lopez, the search officer who located the firearm and ammunition; and PC Trevor McGarrity, the other search officer who located identity documents.
[7] DC MacDonald noted what was found, where, when and by whom. He testified:
- At 7:12 a.m. the Emergency Task Force (ETF) breached the apartment door while he waited in the stairwell.
- By 7:15 a.m. the ETF had located Mr. Ndayihezagiye in the apartment, apprehended him, handcuffed him, and transferred him into MacDonald’s custody who took Mr. Ndayihezagiye down 5 flights of stairs to a scout car by 7:18 a.m.
- Mr. Ndayihezagiye’s 5 family members found in the apartment and moved to the stairwell were his father, age 47 at the time, his mother, age 44, his 12-year-old brother, his 10-year-old sister and his 7-year-old sister.
- At 7:31 a.m. the ETF turned over the apartment to the search team.
- From 7:35 a.m. to 7:38 a.m. DC White took pre-search photos of every room in the apartment.
- At 7:40 a.m. the family was escorted back into the apartment and seated on the sofa in the living room for the duration of the search.
- He had obtained a floor plan of the three-bedroom apartment and located what he believed to be Mr. Ndayihezagiye’s bedroom, the target of the search warrant.
- Between 7:40 a.m. and 8:20 a.m., the four officers searched only the target bedroom. All four officers were in the room for the most part. The team supervisor Det. Lipkus was also present at times.
- DC MacDonald’s role was to collect the exhibits, seize them, place them in property bags and document them. When an officer located an item of evidentiary value, they would advise him, DC White would photograph the item, and he would make the required notations.
- At 7:45 a.m. DC Lopez informed him he had located a firearm with a loaded magazine in a black Gucci satchel hanging on the back of Mr. Ndayihezagiye’s bedroom door. It was a Sig Sauer handgun with a loaded magazine.
- Also located inside this black Gucci satchel was a laser sight attachment, though it was not attached to the handgun. A laser sight is an attachment that goes on the bottom of the barrel of the gun, in the front where the trigger is, and it allows a coloured laser to put a dot on a target to shoot at.
- DC McGarrity rendered the firearm safe. Officer White photographed the items.
- At 7:50 a.m. DC McGarrity informed DC MacDonald he had located a gummy marihuana edibles jar and car keys in a second smaller, light coloured Gucci bag, also hanging on the back of the searched bedroom door. McGarrity also located Mr. Ndayihezagiye’s identity documents in the bedroom.
- Both Gucci bags were photographed but not seized.
- He seized a cellphone at the entrance of the apartment belonging to Mr. Ndayihezagiye.
[8] DC White testified to taking the following photos:
- Pre-search photos of every room in the three-bedroom apartment, including the door, the entrance hallway, the living room area, the dining area, the kitchen, the hallway, and the three bedrooms. One bedroom had a double or queen bed and a bathroom ensuite that he believed to be occupied by the parents. The second bedroom had two single twin beds and items that appeared to him to belong to young girls, and he believe that to be occupied by the two little girls. The third bedroom was the target bedroom searched and it contained a double bed and a twin bed.
- The location and contents of a dark Gucci bag found hanging on the back of the searched bedroom door. It contained a SIG Sauer handgun, with 40 caliber bullets in the magazine, a two-piece laser sight and an Allen key.
- The locations and contents of a second, smaller light-coloured Gucci satchel. It was hanging on the back of the bedroom door near the first dark Gucci satchel with the firearm. It contained a set of BMW car keys, an empty container labelled “high quality cannabis” and coins.
- On the bedside table, close to the double bed, was a driver’s licence with the name Estime Iteka Ndayihezagiye with the address of the apartment being searched; a red Scotia Bank VISA card; a green TD VISA card; and blue BMO debit cards.
- Inside the bedside table drawer was another set of car keys, Canadian currency, bank cards, and an Opt-Plus Mastercard with the name Estime Iteka.
- A Canadian passport with the name Estime Itaki Ndayihezagiye.
- Post-search photos of the apartment.
- The firearm with the laser sight taken at the police station.
[9] DC Lopez, one of the two search officers testified:
- The searched room contained a double bed, a twin bed, a bedside table between the two beds, a tall dresser, and a closet.
- He saw a black Gucci satchel with a black strap hanging on the back of the bedroom door. He felt it and described it as heavy. He lifted the flap and saw a black handgun with a loaded magazine. He informed DC MacDonald. DC McGarrity rendered the firearm safe. DC White photographed the contents.
- Also inside the black Gucci satchel, he saw a laser sight and a small Allen key.
- He was present during the photographing of the items but never handled them.
- He continued to search the room and located nothing else.
[10] PC McGarrity, the second search officer, testified:
- He searched the room with DC Lopez after the pre-search photos were taken.
- He started from the door and Lopez told him he had located a firearm in designer satchel.
- He searched a second, smaller light coloured Gucci satchel also hanging behind the bedroom door close to the first satchel. In it, he located car keys for a BMW and an empty jar for cannabis.
- On the bedside table near the double bed, he located a driver’s licence with the name Estime Ndayihezagiye and the apartment address he was searching, as well as credit cards and bank cards beside the driver’s licence.
- In the closet, he located a Moose Knuckle parka with a Canadian passport with the name Estime Itake Ndayihezagiye in the pocket.
- Also in the closet, he found a grinder, marijuana edibles, and a thermos on the shelf with a baggy of marijuana inside the thermos.
- When asked if he found any other identification in the room, he responded “no”.
- When asked to describe the clothes he saw in the room, he testified they were “all male”, “alot of designer clothing for an older male”, and a few articles of clothing that would have belonged to a younger person. In cross- examination, he explained that “older male” clothes were in a larger in size for a teenager, who is “taller, bigger” and the other clothes were a smaller size for a younger child.
III. Law
[11] Mr. Ndayihezagiye is presumed innocent unless and until the prosecution proves his guilt beyond a reasonable doubt on all counts. A reasonable doubt is a doubt based on reason and common sense, based on the evidence, or lack of evidence, in the record before the court: R. v. Lifchus, [1997] 3 S.C.R. 320 at paragraph 39. That burden is on the prosecution and never shifts throughout the trial.
[12] Mr. Ndayihezagiye was not seen with the firearm or the ammunition. The prosecution therefore relies on s. 4(3)(a)(ii) of the Criminal Code which outlines constructive possession:
s.4(3)(a) a person has anything in possession when he has it in his personal possession or knowingly
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;
[13] To prove Mr. Ndayihezagiye’s guilt, the prosecution must prove he had knowledge and control of the firearm and ammunition: R. v. Choudhury, 2021 ONCA 560 at paragraph 19. Succinctly put, the Crown must prove:
i. Mr. Ndayihezagiye had knowledge of the character of the items to be a firearm and ammunition.
ii. That he knowingly put or kept the firearm and ammunition in a particular place – in a Gucci satchel hanging on the back of his bedroom door.
iii. That he intended to have the firearm and ammunition in the satchel for his use or benefit or that of another person.
[14] The Court of Appeal made clear the fact an item is found in a place occupied by an accused does not lead to a presumption of knowledge and control, though, that fact, together with other evidence, on the whole of the evidence, may enable a trial judge to infer knowledge and control of the relevant item (Choudhury at paragraph 19).
[15] Where the prosecution’s case is circumstantial, R. v. Villaroman, 2016 SCC 33 at paragraphs 30, 35-42, is helpful as quoted in R. v. Walker, 2021 ONSC 8090 at paragraph 13:
Where proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, a trier of fact should not draw an inference of guilt from circumstantial evidence unless it is the only reasonable inference that the evidence permits. Reasonable alternative inferences (besides guilty) may be based on the evidence or lack of evidence. What is important is that only reasonable alternative inferences can give rise to a doubt that the defendant is guilty. Speculative alternative inferences will not give rise to a reasonable doubt. (Emphasis in the original)
And put another way at paragraph 19 of Choudhury and 55-56 of Villaroman:
A conviction can be sustained only if the accused’s knowledge and control of the impugned objects is the only reasonable inference on the facts. The trier or fact must determine whether any other proposed way of looking at the case as a whole is reasonable enough to raise a doubt about the accused’s guilt, when assessed logically and in light of human experience and common sense.
[16] Moreover, a “court must bear in mind that it is the evidence assessed as a whole that must satisfy the reasonable doubt standard of proof, not each individual piece of evidence”: Walker at paragraph 15, relying on R. v. Lights, 2020 ONCA 128.
IV. Position of the Parties
[17] Counsel for the Defence submits that the prosecution has not proven beyond a reasonable doubt that his client was in possession of the seized illegal items. He submits there are two possible alternative inferences available on the evidence that entitle his client to an acquittal.
[18] One possible inference is that one of Mr. Ndayihezagiye’s parents planted the Gucci satchel with its contents behind his bedroom door just before police entered the apartment, and so he knew nothing about it or its contents. The other possible inference is that the satchel and its contents belonged to Mr. Ndayihezagiye’s 12-year-old brother and he knew nothing its contents.
[19] He submits either of these possibilities raises a reasonable doubt and his client should be found not guilty of all five offences.
[20] The prosecution submits this is a straightforward case whereby Mr. Ndayihezagiye possessed the loaded restricted firearm and a laser sight in the Gucci satchel hanging on the back of his bedroom door. He submits based on the evidence, common sense, and human experience, the prosecution has proven beyond a reasonable doubt Mr. Ndayihezagiye was in possession of the impugned items and thus all five offences.
[21] He submits the possible inferences the Defence posits are speculative and unreasonable in the circumstances of the case. He submits they are unreasonable inferences given the relationships in the family home, that the parents would not frame their 18-year-old son. And, given the age of Mr. Ndayihezagiye’s younger brother to be 12, he was not old enough, or sophisticated enough to obtain a restricted semi-automatic firearm, ammunition, a laser sight, and an Allen key, and then have it in his room unbeknownst to his older brother.
[22] In the alternative, the Crown submits that if the Court finds that Mr. Ndayihezagiye’s 12-year-old brother could have had possession of the loaded firearm, then given their ages, their sibling relationship, and common sense, Mr. Ndayihezagiye also possessed the loaded firearm and they possessed it jointly.
V. Analysis
[23] It is not disputed that the searched bedroom was occupied by Mr. Ndayihezagiye. It contained government-issued photo identification with his photo, his name, and his address. One document was his driver’s licence on the bedside table by the double bed. The other document was his passport in the pocket of a Moose Knuckle parka in the closet. The room also contained his banking documents such as credit cards and bank cards.
[24] Both the prosecution and the defence submit Mr. Ndayihezagiye shared the searched bedroom with his 12-year-old brother.
[25] I accept the submission and find that Mr. Ndayihezagiye did share his bedroom with his 12-year-old brother.
The Obvious Reasonable Inference
[26] The facts:
- Mr. Ndayihezagiye’s residence was searched pursuant to a search warrant.
- His bedroom was the only room searched in the apartment.
- He shared this bedroom with his 12-year-old brother
- Police were looking for firearms, accessories, and documentation.
- A loaded restricted firearm with the laser sight and Allen key were in a dark Gucci satchel during the search of Mr. Ndayihezagiye’s bedroom.
- The dark Gucci satchel was hanging behind his bedroom door in plain view. It did not have a zipper. It had a flap that upon lifting easily exposed its contents.
- It was hanging over clothing apparel.
- It was heavy and was described as “having weight”.
- It was hanging beside another smaller, lighter Gucci satchel that contained car keys to a BMW. There were additional car keys in the drawer of the bedside table. Mr. Ndayihezagiye was the only one who occupied the room old enough to drive. His driver’s licence was on top of the bedside table by the double bed. This smaller Gucci satchel belonged to Mr. Ndayihezagiye.
[27] I find it a reasonable inference that 18-year-old Estime Ndayihezagiye had knowledge of what was in the dark Gucci satchel hanging behind his bedroom door. He put the loaded firearm and the accessories required to facilitate hitting a target in the satchel and kept it there for his use and benefit to carry and use when he so chose.
[28] He had knowledge and control of the impugned items, and this leads to a finding of guilt on all counts.
[29] However, the fact this conclusion is a reasonable one based on the evidence does not conclude the matter.
[30] Mr. Ndayihezagiye is entitled to an acquittal if on the evidence there is a reasonable alternative inference whereby it is possible he did not have knowledge and control of the loaded restricted firearm. I must consider such alternative possibilities, and only if I find them unreasonable, and the only reasonable inference is that of guilt, can Mr. Ndayihezagiye be convicted of these charges.
Alternative Inference #1: One of Mr. Ndayihezagiye’s parents hung the satchel with the impugned items behind his bedroom door before police breached the apartment door, and Mr. Ndayihezagiye had no knowledge of its contents.
[31] The evidence is that the apartment door was breached by the ETF at 7:12 a.m. Counsel states there is a “gap” in the evidence, in that the ETF officers did not testify as to who was where when they entered the apartment. The Defence posits that it could have taken “time” for the ETF to breach the door, during which “time” one of Mr. Ndayihezagiye’s parents, an adult, could have been awake, maybe in the bathroom, given the time of day, and could have gone to get the Gucci satchel with the impugned items, could have opened Mr. Ndayihezagiye’s bedroom door, and could have hung it there, without Mr. Ndayihezagiye knowing anything about it, before the ETF entered the apartment.
[32] There is no evidence it took the ETF any “time” to breach the apartment door, much less that it took enough “time”, for one of his parents to obtain the Gucci satchel with the impugned items and hang it behind their sons’ bedroom door before the ETF entered the apartment.
[33] This would require opportunity and time, a conniving, malicious, and quick-thinking mind on the part of one of Mr. Ndayihezagiye’s parents to plant a loaded gun that would be easily found in their sons’ room before the ETF breach the door to the apartment.
[34] As Villaroman states at paragraph 36, “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.”
[35] As there is no evidence it took the ETF any time at all to breach the apartment door, in the context of a family home with young children, where such an act would require opportunity, speed, and malevolence, of which there is no evidence, I find this inference to be speculative.
[36] Speculative inferences do not give rise to a reasonable doubt.
Alternative Inference #2: The satchel with the impugned items belonged to Mr. Ndayihezagiye’s 12-year-old brother and Mr. Ndayihezagiye had no knowledge or control of its contents.
[37] Counsel relied on two cases, R. v. R.-C.(K), 2012 ONCJ 775 and R. v. Walker, 2021 ONSC 8090, to support his position that if it is a possibility that the other occupant of the bedroom could have had possession, knowledge, and control of the impugned items without the knowledge of his client, then his client is entitled to an acquittal.
[38] KRC, 18, shared a room with his 20-year-old brother. Their mother testified both brothers shared everything and “essentially use everything in their room”. The firearm was in a large, closed Tupperware container on top of toys, on the floor of the bedroom closet, covered by loose clothes and bags.
[39] Mr. Walker and Mr. Duncan-Williams, adult co-accused men, jointly occupied a bedroom. Both men had separate bags with their identity documents located close to a zipped closed, black laptop bag containing a firearm hidden from view behind an organizer in the closet.
[40] In both cases the parties sharing the bedroom were adult men. In both cases, deliberate care had been taken to hide the firearms as they were in the closet, hidden from view, in closed containers, under clothes and bags in one instance and behind a closet organizer in the other. That the adult, co-occupant of the bedroom could have concealed the firearm in a closed/zipped container and hidden it under and behind other items in the back of a closet without the accused person having knowledge the firearm was there was a reasonable alternative inference available on the evidence in those cases.
[41] That is not the evidence before me, and those inferences are not similarly available for at least three reasons: one, the ages of the parties involved; two, the number and nature of the impugned items; and three, the location of the impugned items when considered in totality.
[42] The brothers were not close in age. Mr. Ndayihezagiye at 18 was an adult, his brother was barely 12. This 6-year age difference is developmentally significant at this stage. The age difference denotes different levels of education, sophistication, financial and personal independence, social circles, and psychological and physical development. Unlike KCR and Mr. Walker, Mr. Ndayihezagiye shared his bedroom with a child.
[43] The Defence submits the court cannot assume this 12-year-old child did not possess this loaded firearm without his brother’s knowledge. Granted, though rare, 12-year-old children can and have been charged with serious firearms offences.
[44] Though unlikely, Mr. Ndayihezagiye’s 12-year-old brother could have had possession of the firearm.
[45] However, that is not the issue. The issue is whether he could have possessed it, without Mr. Ndayihezagiye also having knowledge and control of it, in essence be in joint possession of the loaded firearm.
[46] This was not a simple firearm. It was a SIG Sauer semi-automatic restricted weapon. It was loaded with a 40-caliber bullet. It had an attached magazine. There were two more rounds in it. There was a two-piece laser sight with the firearm. The laser sight facilitates shooting accuracy. The laser sight needs a tool to attach it to the firearm. An Allen key was located with the firearm, the ammunition, and the laser sight. This was a valuable, sophisticated, dangerous weapon with accessories.
[47] Mr. Ndayihezagiye’s 12-year-old brother would have had to have a sophisticated understanding of the weapon and its accessories, the contacts to obtain the illegal items, the financial means to purchase them, or the courage and opportunity to have stolen them all, for the semi-automatic handgun in the Gucci satchel to have been his, and his alone.
[48] This is a barely available inference. But to pursue it to the relevant point: is it possible the 12 year-old possessed the loaded firearm alone, and his 18-year-old brother Mr. Ndayihezagiye, with whom he shared the bedroom knew nothing about it.
[49] The location of the impugned items do not lend themselves to that possibility.
[50] The dark Gucci satchel with the impugned items was described as heavy. Mr. Ndayihezagiye would have felt the weight of the dark Gucci bag, that was hanging beside his own Gucci satchel with his car keys, closer to the door handle, every time he opened and closed his bedroom door.
[51] The heavy, dark Gucci satchel with the firearm was hanging over clothing apparel. Mr. Ndayihezagiye would have to lift it, feel its weight, and move it, to get to the clothing underneath it.
[52] The satchel was in plain view in a place he would see when he closed his bedroom door. It had no zipper. A simple lift of its flap exposed its contents.
[53] Even if it is possible Mr. Ndayihezagiye’s 12-year-old brother also possessed the contents of the dark Gucci satchel, it is not a reasonable alternative inference that he possessed it alone.
[54] I am guided by the following statement: “Alternative inferences must be reasonable, not just possible” R. v. Dipnarine, 2014 ABCA 328, at paragraphs 22 and 24-25.
[55] On the totality of the evidence, I find Estime Ndayihezagiye had knowledge and control of the contents of the dark Gucci satchel hanging behind his bedroom door. I find he knew and had control over the loaded restricted semi-automatic firearm and the accessories required to facilitate shooting. I find he kept these items for his use and benefit, to carry and use when he so chose.
VI. Conclusion
[56] I find Estime Ndayihezagiye:
- Guilty of the possession of a restricted firearm, a SIG Sauer semi-automatic handgun with ammunition pursuant to s. 95.
- Guilty of possession of a restricted weapon while not a holder of a licence permitting him such possession pursuant to s. 92.
- Guilty of possession of a restricted firearm without being holder of a licence permitting such possession and the holder of a registration certificate for a such firearm, pursuant to s.91(1).
- Guilty of storing a firearm in a careless manner pursuant to s. 86(1).
- Guilty of storing ammunition carelessly pursuant to s. 86(1).
Released: January 25, 2023 Signed: Justice Cidalia C. G. Faria
Footnotes:
[1] Mr. Ndayihezagiye brought a Garofoli application to cross-examine the Affiant of an Information to Obtain a search warrant for Mr. Ndayihezagiye’s apartment. The application was heard on January 11 and 12, 2022. Oral reasons were provided on January 13, and written reasons released on January 24, 2022, permitting the cross-examination of the Affiant in one area of the six requested areas.
After cross-examination of the Affiant, Mr. Ndayihezagiye brought a Charter application alleging a breach of his ss.7 and 8 rights and seeking to exclude the evidence found during the execution of the search warrant in his home. The application was heard on January 10, 11, 12, 13, 14, March 2, and April 5, 2022. On September 8, 2022, written reasons were released dismissing the application.
[2] Exhibit 3: Agreed Statement of Fact & Exhibit 3(a) Certificate of Analysis, Kristine McLane, March 8, 2021.
[3] Exhibit 3: Agreed Statement of Fact, & Exhibit 3(b) Affidavit of Jason Elbers, Chief Firearms Officer, February 24, 2021, & Exhibit 3 (c) Affidavit of Angie Mcklusky, Section Heard, Registration Canadian Firearms Registry, February 26, 2021.
[4] Exhibit 2a: Photo of mother, father, brother, and two sisters sitting on sofa in living room.
[5] Exhibit 1: Three-bedroom floor plan and furniture placement of apartment
[6] Exhibits 2(a) to 2(jj), 36 photos.
[7] Exhibits 2(kk) to 2(ddd), 21 photos
[8] Exhibits 2 (eee) to 2 (nnn), 10 photos.
[9] Exhibits 2 (ooo) to 2 (yyy), 11 photos.
[10] Exhibits 2 (zzz) to 2(ffff), 7 photos.
[11] Exhibits 2 (gggg)
[12] Exhibit 2 (hhhh), 30 photos
[13] Exhibit 2 (iiii)
[14] Counsel also relied on R. v. Ames, 2022 ONSC 5039 and on R. v. Choudhury, 2021 ONCA 560 referred to earlier contained applicable legal principles. I found them both distinguishable on their facts. Mr. Ames did not live in the residence searched, was not associated to the garment covering the hidden firearm in the sofa, had a reasonable reason to flee when police came in, and could have been referring to the drugs on the table when he made an inculpatory statement taking responsibility for wrongdoing. Choudhury was a case where a house was targeted for drug trafficking, and though the target of the surveillance had a key that unlocked a box with a firearm, the box was open at the time and the trial judge was found to have conflated access with knowledge and control.
