ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO .: 721/10
DATE : 20120309

B E T W E E N:

Her Majesty the Queen - and - Derval Mitchell

Tara Brun for the Crown
Jason dos Santos for the Accused

HEARD: December 13, 14, 15, 2011 and February 24, 2012

Backhouse, J.

[ 1 ] The applicant is charged with possession of a prohibited firearm with ammunition, careless storage of a firearm, carless storage of ammunition, unauthorized possession of a prohibited device, possession of a firearm contrary to a prohibition order and fail to comply with probation.

[ 2 ] On the 10 th day of February, 2010 a search warrant was obtained and executed at the home of the accused located at 1179 Jane Street, Unit 703 in Toronto. Shortly after 19:55, officers searched what was believed to be the bedroom of the accused and located a loaded Cobray machine pistol between the mattress and boxspring of the bed in the bedroom. The firearm had a 30 round magazine with numerous rounds of 9 mm luger ammunition. The firearm was one and a half feet in height by one foot or more. Officer Peacock testified that the firearm was not visible until the mattress was lifted and that it was closer to the outside edge of the bed. There was a television on in the bedroom in which the firearm was located with a live feed to the lobby.

[ 3 ] Police officers had 1779 Jane Street, Unit 703 under surveillance in anticipation of obtaining a search warrant. At 18:40, Officer Linquist observed the accused and another individual leave 1779 Jane Street. They were observed going to a variety store and returning to the lobby of the building. They were next seen approximately 15 minutes later inside a green Honda in the underground parking with a third male.

[ 4 ] After the search warrant was obtained, the accused was removed from the vehicle and detained, along with the 2 other individuals who were identified as Mohammed Asson and B.Barry. The accused was compliant and provided no resistance. In response to questions from Officer Linquist, he said that he lived in apartment 703 with his father, that only the two of them lived there, there were two bedrooms and his bedroom was the one on the left as you go down the hallway. No objection was taken to the voluntariness of these statements. Officers Linquist and Steeves testified that the accused did not express surprise or disbelief when he was told he was being arrested for possession of a firearm. The premises were entered using the accused’s key. No one was present in the residence when the search warrant was executed. Pictures were taken before and after the search.

[ 5 ] The accused claimed a Section 8 Charter violation and sought to exclude the evidence of the firearm and ammunition. I n my ruling of January 12, 2012, I concluded that the firearm and ammunition should be admitted.

[ 6 ] In his closing submissions, counsel for the accused submitted that the accused did not dispute that the bedroom in which the firearm was located was his bedroom.

[ 7 ] The accused and his father both testified at the trial.

[ 8 ] Mr. Mitchell Senior testified as follows. The accused was living with him at 1179 Jane Street, Unit 703 at the time of arrest on these charges. He first testified that the accused had slept at his apartment the night before his arrest and then testified that could not remember where the accused stayed the night before his arrest. Mr. Mitchell Senior worked full-time as a forklift operator. Sometimes the accused would leave the door to the apartment unlocked but when questioned about this, he said that he did not go far, just next door or down in the lobby. Mr. Mitchell Senior allowed the accused’s friends to come to the apartment. He described an occasion around December, 2009 when he arrived home and one of the accused’s friends was there alone. He said that the accused had just left. Because Mr. Mitchell Senior knew this person, he said that this was okay. Mr. Mitchell Senior was in charge of cleaning and organizing the apartment and if he saw something on the floor he would pick it up. He had contacted the accused at school the day of his arrest and asked him to go to the apartment to get him a telephone number which his father had left there. The accused did this. Otherwise, the accused would have gone to this mother’s residence after school.

[ 9 ] The accused’s evidence was as follows. He first testified that he lived mainly at his mother’s residence. He stated that he went back and forth between his parents’ homes. On cross-examination, he acknowledged that he mainly lived with his father at the time of his arrest. The night before his arrest, he slept at his mother’s residence. On the day of his arrest, he came to his father’s apartment from school around 4 p.m. He had intended to go to Ontario Ministry of Health to get a new health card but his father had asked him to go to the apartment to get him a telephone number which his father had left there. The accused complied. His friend, Mohammed, who lives in the building, came over to smoke marijuana. They went to the variety store to get a Century Sam to use to smoke the marijuana. When they came back to the apartment, the accused went on the computer in the kitchen and Mohammed went into the accused’s bedroom for 4 to 5 minutes to roll the joint. They then went to the underground parking to smoke the marijuana. Shortly after they started to smoke, undercover officers rushed out of their vehicle with guns and removed the accused and the other 2 individuals from Mohammed’s vehicle in which they were sitting. The accused expressed disbelief to the police when he was told he was being arrested for possession of a firearm. Mohammed never showed the accused a gun. After the accused was in jail, he telephoned Mohammed. Mohammed said he would come to court and say he put the gun under the mattress in the accused’s bedroom. Mohammed did not say that it was his gun and the accused did not ask him. The accused never told the police about this or about his suspicion that the gun that was found belonged to Mohammed.

[ 10 ] The Crown filed on consent the following:

a) a lifetime firearm prohibition order;

b) a two year probation order dated July 21, 2008 that the accused not carry or possess weapons;

c) an affidavit of Terri Ann Duarte that there is no record of a firearms certificate or license being issued to the accused;

d) an affidavit of Manon Savard that there is no record of a registration certificate issued to the accused under Part III of the Criminal Code and Firearms Act ;

e) a certificate of analysis that the firearm in question is a “prohibited firearm” as defined in Section 84 of the Criminal Code .

Finding

[ 11 ] The accused was not a credible witness. Despite his assertion that he was living mostly at his mother’s residence at the time of his arrest, there can be no doubt that he lived at his father’s apartment at 1179 Jane Street Unit 703. The accused admitted this to the police officers. This is consistent with Mr. Mitchell Senior’s evidence. The accused contradicted himself and admitted in cross-examination that he lived mainly with his father. It is conceded that the firearm was found in the accused’s bedroom.

[ 12 ] It is also highly impobable that without the accused knowing about it, Mohammed hid the firearm under the accused’s mattress. This was not a small handgun but a machine gun which was one and a half feet by one foot or more. No reason suggests itself as to why Mohammed, who lived in the building, when he was coming over “to smoke a joint”, would be carrying such a large firearm and then hide it and leave it in the accused’s apartment. The accused did not tell the police about his suspicion of Mohammed at the time of his arrest although he testified that he was suspicious at that time. He did not tell the police about this later when Mohammed said that he would come to court and say the firearm was his. It is far more likely that the accused owned the firearm and kept it in his bedroom at the apartment where he lived. The firearm would not have been visible to his father, according to the evidence of Officer Peacock. Contrary to the assertion of the defence that its position closer to the outside edge of the bed was consistent with Mohammed leaving it there in a hurry, I find that this loaded firearm was left at the outside edge by the accused to be readily accessible

[ 13 ] As I have said, I do not believe the accused. The Crown’s evidence satisfies me beyond a reasonable doubt that the accused owned the firearm and kept it in his bedroom at the apartment. Neither the accused’s evidence nor his father’s who was a credible witness, raises any reasonable doubt in my mind. I find that the Crown has proved beyond a reasonable doubt that the accused was in possession of a loaded prohibited firearm and ammunition, that he was not the holder of an authorization or license or a registration certificate, that he was prohibited from doing so and that he is in breach of a probation order.

Released March 9, 2012

Backhouse, J.

COURT FILE NO .: 721/10
DATE : 2012/03/09

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:

Her Majesty the Queen

and Derval Mitchell REASONS FOR JUDGMENT Backhouse, J.

Released: March 9, 2012