ONTARIO COURT OF JUSTICE

DATE: 2025 12 17

COURT FILE No.: Brampton 23-31114530

BETWEEN:

HIS MAJESTY THE KING

--- AND ---

JUSTIN MCLEISH

Before Justice C.K. Assié

Heard on December 16, 2025

Reasons for Judgment released on December 17, 2025

M. Otim — counsel for the Crown

J. Rabinovitch — counsel for the accused Justin McLeish

ASSIÉ J.:

Introduction

[1] The defendant, Mr. McLeish, was investigated for smoking cannabis in a vehicle. A police officer later found a loaded handgun beneath the defendant's car within arm's reach of the driver's door. The officer did not observe the defendant handle or discard the firearm. There are no Charter issues. The central issue is whether the Crown has proved possession of the firearm beyond a reasonable doubt on a circumstantial record.

[2] I will first set out the governing legal principles. I will then summarize the evidence. Finally, I will analyze whether the inference of guilt is the only reasonable inference available.

Legal Principles

[3] The Crown bears the burden to prove guilt beyond a reasonable doubt; the defendant has no burden to prove innocence or to establish exculpatory facts. [1]

[4] This is a circumstantial evidence case. The proper approach is whether, on the whole of the evidence, the inference of guilt is the only reasonable inference available. Alternatives consistent with innocence need not be proven; it suffices that they are reasonably possible on the record. [2]

[5] An inference is reasonable when it is logical and grounded in human experience and common sense, and not speculation. It can be based on evidence or the absence of evidence. A gap in the evidence may support an inference other than guilt. Inferences consistent with innocence do not need to arise from proven facts — they can arise from lack of evidence, provided they are reasonable.

[6] I must consider other plausible theories or reasonable possibilities inconsistent with guilt. The Crown does not need to disprove every possible conjecture, only those that are reasonable. The line between a "reasonable possibility" and "speculation" is drawn by asking: Is the alternative explanation logically possible and consistent with the evidence or lack of evidence, assessed in light of human experience? If the inference of guilt is the only reasonable inference, then a conviction is justified. If not, there is a reasonable doubt.

Evidence

[7] Moving on to the evidence, the essential facts are largely uncontested, and much is captured on the officer's body-worn camera (BWC), though the first minute or two is not recorded:

a) DC Satino drove through a motel parking lot around 11:00 p.m. He smelled someone smoking marihuana.

b) The defendant's car was backed into a spot, he was alone, in the driver's seat, his window open, headlights on, smoking marihuana.

c) The officer, in uniform but in an unmarked cruiser with untinted front windows/windshield, drove past the defendant's vehicle, did a U-turn, and approached him to conduct an investigation under the Cannabis Act.

d) While driving away prior to doing a U-turn, the officer observed the defendant via the rearview mirror and saw the defendant exit, close the door, and kneel near the driver's side door momentarily.

e) As the officer approached, the defendant began walking away with a lit joint, flicking it toward bushes. The officer detained him.

f) The BWC does not capture the initial minute or two; thereafter it shows the rest of the interaction including the detention, the defendant being handcuffed and placed in the cruiser, a brief search under the Cannabis Act, and finally locating the firearm under the car.

g) The officer told the defendant he was under detention for an investigation under the Cannabis Act and requested his identification. The defendant walked around the car while on the phone with someone.

h) The defendant walked around the car to the passenger side. The defendant grabbed a bag at some point and began searching it. After some time, the officer told the defendant to take his hand out of the bag as he was beginning to be concerned that the defendant had access to a weapon. The officer told him he was going to be cuffed for officer safety.

i) The defendant's reaction to being told he was going to be cuffed was to remove his coat and let it drop to the ground by the driver's door. The officer found this odd because it was cold and he believed the coat to be expensive.

j) The officer placed the defendant in his cruiser and continued conducting a search of the vehicle.

k) After the Cannabis Act search, the officer looked under the car and found a loaded handgun under the driver's side, within arm's reach from the edge of the vehicle.

l) There were no cars immediately adjacent on either side; a group of people was about fifty feet away near the entrance to the motel. A woman approached during the detention but was kept at least ten feet from the vehicle.

m) The officer did not see the defendant handle or discard the firearm. The officer never saw the car in motion and could not say how long it had been parked.

n) No fingerprints attributable to the defendant were recovered from the gun. DNA on the firearm belonged to an unknown male (not the accused).

Analysis

[8] Turning now to the analysis, the ultimate question is whether the Crown has proved beyond a reasonable doubt, by circumstantial evidence, that Mr. McLeish's possession of the handgun is the only reasonable inference on the record.

[9] The officer's evidence was not seriously challenged. I found the officer credible and his evidence believable. He did not exaggerate or embellish his account. Cross examination did not produce any discrepancies — big or small. In short, I found no reason to disbelieve anything he said. His evidence was internally consistent and largely corroborated by the video from his body worn camera.

[10] The defence did not call any evidence.

[11] The Crown's position is that the only reasonable inference is that the defendant tossed the handgun under the car when he kneeled beside the vehicle after seeing the police officer drive past him. His theory is the defendant knew the unmarked cruiser was a police officer because the defendant's headlights were on and he was facing the officer as he drove by. [3] The defendant would have been able to identify the driver as an officer because the front windows and windshield were not tinted and the officer was in uniform. As a result of spotting the officer, the defendant attempted to leave his car quickly because he knew he might be investigated and when he got out of the car he kneeled to drop the gun under the car. During the interaction with the officer, the defendant dropped his coat when he was told he was going to be handcuffed in an attempt to make it more difficult for the officer to see the handgun. There were no other individuals in the area who had the opportunity to toss the gun.

[12] The defence position is that the defendant was unable to know the driver of the unmarked cruiser was a police officer because it was unmarked and the little amount of time the vehicle was in front of him. The defendant would thus have no reason to get out of the car and get rid of the gun. Had he wanted to get rid of the gun, he could easily have thrown it far into the bushes beside him. Or alternatively, thrown the gun further under the car rather than within arm's reach. The officer's evidence about the location where the defendant knelt was unreliable. The officer acknowledged it was a 'high crime' area. There was no evidence about when the vehicle parked in that spot. Had the defendant backed into the spot at nighttime, the dark handgun could easily have been overlooked. Nothing can be inferred from the fact that the defendant dropped his coat. Finally, the fact that someone else's DNA was located on the firearm and that neither the defendant's fingerprints or DNA were located, suggests someone else possessed it.

[13] I do not accept the defence position that the defendant was unaware the driver of the unmarked cruiser was a police officer. I heard no evidence from the defendant. It was late at night. There was no one else driving in the parking lot. The officer was driving slowly towards the defendant trying to determine if he was the source of the smell of marihuana. He would have been staring right at the defendant. The defendant was alone in his car smoking marihuana — an offence. His vehicle was facing directly the officer's vehicle as it passed him slowly. The front windows and windshield were not tinted and the defendant's headlights were on, thus illuminating the officer. I find that he knew or suspected the driver was a police officer.

[14] The defence suggested the officer's evidence about the location where the defendant knelt was unreliable. The focus of the criticism is between how the officer described the location, whether it was close to the wheel well or right beside the driver's door. The officer's evidence was that he was observing the defendant through his rearview mirror at the time he knelt. Based on the diagrams the officer drew during his testimony, he would have been directly in line with the defendant's vehicle when he got out on the driver's side and knelt by his door but driving away from him and observing him through the rearview mirror from fifty feet. [4] It is understandable that the officer would have difficulty saying the exact location the defendant was standing along the side of the vehicle when he knelt. From that angle it would have been difficult to assess. In the end, however, I find that this is unimportant. Whether the defendant was one foot closer to the front of the car or two feet closer to the rear of the car has no impact on whether the defendant had the opportunity to drop the gun under the car.

[15] The defence points to the fact that the officer did not see the defendant drop the gun. Though the officer testified he maintained observations on the defendant, it is clear that he would have lost sight momentarily as he drove away fifty feet and did a U-turn. Common sense tells me that there will be seconds when he shifts his gaze from the defendant to the front while driving. The gap in the officer's observations does not cause me concern as it does not distract from the reality that a firearm can be dropped very quickly.

[16] The defence suggests that if the defendant had been trying to conceal the firearm he could have simply thrown it further into the bushes. I am not persuaded by that argument. It makes more sense to try to discretely drop it under the car when suspected of being under surveillance rather than make a grand and obvious gesture by throwing a handgun into the bushes. Alternatively, the defendant could have kicked the firearm further than within arm's reach if he was the one trying to hide the gun. I am not persuaded by that argument either. Just because a suspect could have done a better job of concealing an object does not make it more likely he did not try to conceal the object because of the poor job done. It is unsurprising that the attempt at concealing the gun was not done particularly well under circumstances where a person was trying to think quickly in the heat of the moment and fearing apprehension.

[17] The defence points to the fact the officer said the motel was a high crime area to suggest that other criminal elements may have left the gun under the defendant's car. I can take judicial notice that, fortunately, firearms are not so common that they are regularly found discarded under random vehicles. Firearms remain highly sought after and expensive commodities. I can infer they are not routinely disposed of in parking lots. I find the proposed explanation for the existence of the firearm under the vehicle to defy common sense and human experience. In my opinion, the mere possibility that someone else placed the firearm there is speculation at best and does not raise a reasonable doubt. Again, I am not shifting the burden onto the defence to prove an alternate explanation. I am simply responding to the suggestion made by defence counsel.

[18] The defence suggests that the defendant's act of dropping his coat is irrelevant to determining his guilt because it did not hide the firearm. At best, this is a neutral factor. It is odd that the defendant's reaction to being told he would be handcuffed is to immediately take off his coat on a cold late December evening and drop it to the ground. Even if he was told he was being put in the cruiser — which he was not — it is odd behaviour. It may have been in furtherance of a distraction. However, even if the business of dropping his coat is not inculpatory evidence, neither is it exculpatory. It does not assist one way or the other.

[19] The defence points to the fact that someone else's DNA was found on the firearm, whereas the defendant's fingerprints and DNA were not. This, it is argued, leads to the inference the defendant did not possess the firearm. I find that argument unconvincing. The fact that more than one person touched the firearm does not rule out that the defendant also possessed it. That is even assuming that the DNA on the firearm came from an instance of direct deposit and not as a result of the process of transference. The body worn camera showed the defendant wore gloves when approached by the police. There are countless reasons why the defendant's DNA and fingerprints were not found on the item. The lack of fingerprints or DNA are not exculpatory facts, and neither is the presence of that of an unknown person. Given that the presence of someone else's DNA does not rule out the defendant was in possession, I find that little weight can be placed on this piece of evidence in the greater analysis of whether the Crown has proven the case beyond a reasonable doubt.

[20] At the end of the day what I'm left with is as follows:

a) The officer drove past the defendant while looking at him breaking the law.

b) Given their physical positions, the lighting, the untinted windows and windshield, and the few vehicles in the parking lot, the defendant had the opportunity to identify the driver as an officer.

c) The defendant was alone in his car.

d) No one else was near the vehicle when the officer approached.

e) No one else was in a position to discard the firearm while the officer was present.

f) The defendant kneeled by the driver's side after the defendant had the opportunity to identify the officer.

g) A handgun is a dangerous and highly valuable item that is only discarded in similar circumstances when people fear imminent investigation.

h) The firearm was found under the defendant's car moments after he bent down and attempted to walk away from the vehicle.

[21] Given all those facts, I find that the Crown has proven beyond a reasonable doubt that the defendant was in possession of the firearm.

[22] I have carefully considered the possibility that someone else had left the firearm under the car, either before the defendant parked in the spot or once it was parked. As the Court said in Villaroman, the Crown may need to negate other reasonable possibilities. However, it does not have to negate, "... every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused. [citation omitted] 'Other plausible theories' or 'other reasonable possibilities' must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation." [5]

[23] Given the facts as I have described, I find the alternate possibility that a stranger placed the firearm under the defendant's vehicle to defy common sense and human experience. In my opinion, the mere possibility that someone else placed the firearm there is speculation at best and does not raise a reasonable doubt.

[24] Consequently, I find the defendant guilty of the charges.

Released: December 17, 2025

Signed: Justice Christopher K. Assié

Footnotes:

[1] *R. v. Lifchus*, [1997] 3 S.C.R. 320 (reasonable doubt instructions).

[2] *R. v. Villaroman*, 2016 SCC 33.

[3] The officer drew diagrams indicating the location of both vehicles at various points and the trajectory he drove.

[4] Exhibits 3 and 4.

[5] Supra note 2, Villaroman at para 37.