Case Information
Date: 2025-01-09
Location: Toronto
Court: Ontario Court of Justice
Parties:
- His Majesty the King
- Jore Henry
Before: Justice Mara Greene
Counsel:
- N. Naresh for the Crown
- M. Bornfreund for Jore Henry
Background
[1] Mr. Henry is charged with three offences arising from a firearm found in a vehicle registered to him on April 4, 2023. He is charged with possession of a prohibited firearm, careless storage of a firearm, and possessing a firearm where the serial number was defaced. Mr. Henry argued at trial that the Crown failed to prove that he had knowledge of the firearm and as such he should be found not guilty of all the offences before the court.
[2] The only issue at trial was whether Mr. Henry was in possession of the firearm. It was conceded that if the Crown proved possession, Mr. Henry would be found guilty of all three offences. Similarly, if the Crown could not prove possession, then Mr. Henry should be found not guilty of all three offences.
[3] The evidence at trial was not complex. It included evidence that the firearm was located in a white Honda Accord that was registered to Mr. Henry. Additional evidence linking Mr. Henry to the vehicle was also led at trial. The firearm was located in a hidden compartment in the vehicle and not visible to the average user of the vehicle. Mr. Henry led evidence through his mother that others had access to the vehicle including a Mr. Channer, the previous owner of the vehicle and a person with a record for firearm offences.
Evidence Linking Mr. Henry to the Vehicle
[4] Records from the Ministry of Transportation were filed at trial. According to these records, the white Honda Accord where the firearm was located was registered to Mr. Henry. The registration transferred from Mr. Owen Channer to Mr. Henry on September 15, 2022.
[5] On March 14, 2023, Mr. Henry was seen operating the white Honda Accord. He was issued a ticket that day for operating a motor vehicle without a front license plate.
[6] Video evidence from the parking lot of Mr. Henry’s residence was presented at trial from six different dates. All these videos showed males using the white Honda Accord. In all these videos, the persons accessing the vehicle cannot be identified. In one video from March 31, 2023, a male wearing clothing similar to clothing owned by Mr. Henry is seen operating the white Honda Accord. In a video from March 14, 2023, the same day Mr. Henry received a ticket while operating the white Honda Accord, two males are seen accessing this vehicle.
[7] On April 4, 2023, a search warrant was executed at Mr. Henry’s residence. Keys to the Honda Accord were located inside the residence where Mr. Henry lived at the time. The keys were on the floor of the living room, near the front door. A number of other persons were in the residence at the time.
The Seizure of the Firearm
[8] On April 4, 2023 the Honda Accord was seized, secured and taken to the police station. A few days later Officer Askin searched the motor vehicle and located a firearm. According to Officer Askin, the firearm was in two separate pieces. The framework of the firearm was located under a piece of trim and some wires near the gear shift. The trim had to be removed to see the firearm. The remainder of the firearm was located in the centre console, again under some trim and not visible to anyone inside the vehicle. The trim area where the gun parts were located had two tabs on it and showed signs of wear. This led Officer Askin to believe the trim had been removed multiple times.
Evidence of Other Suspect(s)
[9] Mr. Henry’s mother, Ms. Thompson, testified at trial. She testified about her relationship with a man named Owen Channer. Mr. Channer was the registered owner of the white Honda Accord until it was transferred to Mr. Henry in September of 2022. According to Ms. Thompson, in April of 2023, Mr. Channer was still in her life and continued to access and operate the white Honda Accord. Ms. Thompson further testified that during this time frame, Mr. Henry as well as others drove this white Honda Accord. Ms. Thompson testified that whoever needed the vehicle used it.
[10] Officer Collacci testified at trial that in one of the videos from the parking lot at Mr. Henry’s residence, a man that resembled Mr. Channer is seen entering the white Honda Accord.
[11] Mr. Channer has a criminal record for gun related offences. Ms. Thompson testified that on two occasions she was charged alongside Mr. Channer for gun related offences. On one set of charges, Ms. Thompson’s charges were stayed. The other set was withdrawn against her.
General Legal Principles
[12] The starting point in understanding any decision in a criminal court is understanding the burden of proof. The burden lies on the Crown to prove each essential element of the offence beyond a reasonable doubt. This is a high standard. Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough for me to believe that Mr. Henry is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. In order to convict, a trial judge must be sure that every essential element of the offence has been made out.
[13] The only legal issue in the case at bar is whether the Crown has proven beyond a reasonable doubt that Mr. Henry was in possession of the firearm located inside the Honda Accord. The offence of possession requires proof that the accused had both knowledge of the item in issue and a measure of control over that item (see R. v. Beaver (1957), R. v. Martin (1948), and R. v. Williams (1998)).
[14] Direct evidence of knowledge or control is not necessary for a conviction. It is open to the trier of fact to infer knowledge and/or control from all the evidence presented at trial (see R. v. Aiello (1978)).
[15] When dealing with a motor vehicle, generally having control over the vehicle supports the inference that one has control over the contents of the vehicle. Moreover, if an accused is in regular possession of the vehicle the inference of knowledge of the contents of the vehicle is readily available. The line between inference and speculation, however, becomes more complicated as the connection to the vehicle becomes more tenuous. For example, in R. v. McIntosh, [2003] O.J. No. 1267 (S.C.J.), Justice Hill noted at paragraph 53:
Not everyone who drives or rides in a car containing concealed illegal objects necessarily knows the presence or nature of those objects: R. v. Amado (1996), [1996] B.C.J. No. 1943 (S.C.) at para 33. In unlawful possession cases, where the prohibited item is concealed or not readily visible in a vehicle driven by the accused, the courts have generally required more than simply evidence of the proximity of the accused and the item…
[16] In reaching this legal conclusion, Justice Hill referenced the Court of Appeal’s decision in R. v. Green; R. v. Rawlins, [1993] O.J. No. 1346. In Green and Rawlins, the defendants were driver and passenger in a motor vehicle that had been stopped by the police. The vehicle was searched, and the police located a loaded firearm. The firearm was not in plain view. In overturning the conviction and substituting an acquittal, the appellate court stated that the fact “that the gun was loaded and cocked and was easily accessible to the occupants of the car is not relevant to a finding of knowledge”. The appellate court ultimately stated that “.. the evidence was wholly circumstantial, and we are not satisfied that the only reasonable inference to be drawn from the proven facts is the guilt of the accused on any of these charges”.
[17] In R. v. Emsley, [2007] O.J. No. 2091 (S.C.J.), Mr. Stewart and Mr. Emsley were charged with possession of a gun and ammunition. The gun and ammunition were located under the plastic cover of the gear shift in the vehicle they were in. In granting a directed verdict the Court held:
There is no evidence as when the firearms and ammunition were secreted in the Saturn or who placed the firearms and/or ammunition in the Saturn or that he was aware that the firearms and/or ammunition were in the Saturn when Constable Martin stopped it. (See R. v. Emsley, supra at paragraph 11).
[18] The results in the above cases can be contrasted with other cases where different conclusions were reached on somewhat similar facts. For example, in R. v. Duvivier, 2010 ONCA 136, [2010] O.J. No. 683 (C.A.) the Court of Appeal upheld a conviction for possession of crack cocaine for the purpose of trafficking where the accused was the passenger in a motor vehicle. The police located 26.92 grams of crack cocaine in an opaque plastic bag tied with a knot “over its contents into a shape like a golf ball”. The bag was in plain view, located on top of two cellular telephones on the centre console, the value of the drugs exceeded $5000.00 and Mr. Duvivier had $270.00 on him in small bills. In concluding that a jury could reasonably infer guilt from this evidence the appellate court stated at paragraphs 5 and 6:
5 This was evidence of the physical proximity of the drugs to the appellant, the degree of visibility of the drugs, the shared use of the vehicle at the time of the appellant's arrest, the quantity and value of the drugs seized, the size and nature of the bag containing the drugs, the presence of equipment - cell phones - normally used in drug trafficking, and possession by the appellant of monies in a form and amount consistent with drug trafficking.
6 In combination, this evidence provided the basis on which the jury could properly infer knowledge and control of the crack cocaine by the appellant sufficient to establish his possession of the drugs.
[19] In R. v. McIntosh, supra, Hill J. convicted Mr. McIntosh of possession of 50 grams of crack cocaine located in the back of a glove compartment of a rental car he was driving. In reaching this conclusion, the following pieces of circumstantial evidence were considered:
- a) Value of the drug – worth thousands of dollars so not likely to risk losing it;
- b) While the drugs were not in plain sight, they were readily accessible;
- c) Mr. McIntosh was in possession of the motor vehicle for 24 hours prior to being stopped;
- d) Mr. McIntosh had $4000.00 on him despite the fact that he had no known means of earning an income;
- e) Mr. McIntosh provided false identification to police; and,
- f) Mr. McIntosh was driving around at night in high crime area.
Analysis
[20] In the case at bar, the evidence supporting the inference that Mr. Henry had knowledge that the firearm was hidden inside the white Honda Accord includes the fact that Mr. Henry was the registered owner of the vehicle, that he operated the motor vehicle with some frequency and that the keys to the vehicle were located in his residence. Moreover, I appreciate that firearms are expensive and difficult to access. Common sense dictates that the owner of a firearm is not likely to leave a firearm in a place where someone else could readily find it and take it.
[21] There is, however, a host of evidence that raises real doubt about whether or not Mr. Henry knew that this firearm was hidden in his vehicle. Firstly, Mr. Henry was not the sole user of this vehicle. It appears to have been used by other people as well. Secondly, the firearm was well hidden such that another person with regular access to the vehicle may not be as concerned about it being located. Thirdly, one of the other people that had access to this vehicle was the prior owner of the vehicle and has a history of possessing firearms.
[22] In my view, the evidence in the case at bar falls short of establishing beyond a reasonable doubt that Mr. Henry knew the firearm was inside the white Honda Accord. As the registered owner and user of the vehicle an inference is available that Mr. Henry knew the firearm was located inside the vehicle. Given how well hidden the firearm was, the communal use of the vehicle and Mr. Channer’s continued access to this vehicle, another available inference on the evidence is that Mr. Channer or someone else with access to the vehicle owned the firearm and hid it under the trim for safe keeping. Given the presence of this other reasonable inference, the Crown has not proven one of the essential elements of the offences. I find Mr. Henry not guilty of all charges.
Released January 9, 2025
Justice Mara Greene