COURT FILE NO.: 11-10000369-0000

DATE: 20120402

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NORADIN RAGE

Defendant

S. Sood, for the Crown

A. Pollard, for the Defendant

HEARD: March 26, 27, 28, 30, 2012

J.M. WILSON J.

REASONS FOR JUDGMENT

The Charges

[1] Noradin Rage is charged with three counts involving the possession of a loaded, prohibited, unlicenced semi-automatic firearm pursuant to sections 95(1), 91(1) and 92(1) of the Criminal Code. He is also charged with unsafe storage of a firearm pursuant to section 86(3) of the Criminal Code, as well as possessing a firearm in contravention of a section 109 order. Finally, he is charged with possessing a firearm knowing that it was obtained by the commission of an offence in Canada, pursuant to section 96(1) of the Criminal Code.

The Incident

[2] At 4:37 a.m. on February 19, 2010 the Emergency Task Force (the ETF) executed a warrant to search for narcotics at 25 Polson Avenue in the City of Toronto. This is an industrial building that the police believed was being used for the sale of narcotics by gang members. Mr. Rage was not one of the two targeted individuals named in the warrant.

[3] The ETF forced entry to the premises after some initial difficulty gaining entry. There were approximately thirty police officers involved in executing the warrant and in assisting, including eight members of the ETF, a drug squad, a Tavis team as well as members from 51 Division.

[4] After gaining entry, the ETF discovered in the interior of the cavernous building a small, dark, crowded studio music room. There were approximately 8 to 10 black males listening to loud music and drinking, when the two members of the ETF burst into the room. They shouted commands, “police, get on the floor, show your hands”.

[5] PC Waters, one of the two ETF officers, almost immediately observed that one male was non compliant as she could not see his hands. When she came closer she observed that he was holding a firearm.

[6] At issue in this proceeding is whether the crown has proved beyond a reasonable doubt that Mr. Rage was the person who was in possession of the firearm. PC Waters did not arrest the individual with the firearm, but left that task for others to do after indicating from whom the firearm came.

Position of the Crown and the Defence

[7] The defence asserts that the firearm was located by the police after the 8 to 10 occupants of the studio were escorted to another larger room and they had been arrested for possession of narcotics. The defence argues on any view of the evidence that the Crown cannot identify Mr. Rage as the person who may have been in possession of the firearm in the studio room.

[8] The Crown relies upon the evidence of the three officers who observed the firearm shortly after the ETF burst into the studio room as proof that the firearm was located by the police while the occupants were still in the studio room. The Crown relies upon a chain of identity involving four different officers to identify Mr. Rage as the person who possessed and then discarded the firearm in the studio room.

The Evidence

[9] PC Waters and PC Letsche were members of the ETF who entered the studio room shouting commands to the occupants to show their hands, and go to the floor. PC Waters was responsible for the left side of the room and PC Letsche was responsible for the right side.

[10] The studio room was small, dark and crowded with loud music blaring. The witnesses estimated the size of the room to be similar to the jury box in our courtroom, which I would estimate to be approx 10 by 18 feet.

[11] PC Waters observed that one male in the group sitting on a chair was not compliant as he was not showing his hands in response to the shouted commands. She moved closer and observed that the male was holding a firearm. She got control of the discarded firearm and got the male to the floor face down. She yelled “Gun gun”, which her partner PC Letsche did not hear, probably because of the loud music in the studio room, or because PC Letsche was also shouting commands and was very concentrated on his task.

[12] The ETF called for backup shortly after they gained access to 25 Polson Ave, approximately one to two minutes after 4:37 a.m. entry. Some 20 plus officers waiting outside the premises converged into the building to assist.

[13] Detective MacIntyre and PC Freeman were part of this group. These two officers arrived at the studio door together, but heard and observed different things. The differences in their observations concern me, not as to their truthfulness as witnesses, but as to the reliability of their evidence as the situation was fluid, and fast moving, and the circumstances for making accurate observations were difficult.

[14] Both Detective MacIntyre and PC Freeman testified that PC Waters was located just by the doorway of the studio. Detective MacIntyre described observing PC Waters taking someone to the ground and standing over that person. PC Freeman looking through the same doorframe saw from that same vantage point at the same time 3 or 4 people already lying face down in close proximity to each other “like sardines”. He confirmed that PC Waters was standing by the door, not that she was standing over somebody. He could not tell whether those on the floor were male or female.

[15] Both versions of what Detective MacIntyre and PC Freeman testified that they observed cannot be accurate.

[16] There were also some discrepancies in the evidence of PC Waters about where she was located in the room in her evidence at the preliminary hearing compared to her evidence at the trial. Her evidence at the trial placed her closer to the door, in conformity with the observations of the other officers, whereas her evidence at the preliminary hearing placed her in the middle of the studio room.

[17] Both officers confirmed that PC Waters, wherever she was standing, was holding a mini glock pistol, that was not police issued.

[18] Detective MacIntyre described PC Waters as moving around as she was responsible for several individuals.

[19] PC Waters could not identify Mr. Rage either then or now presumably because of her fleeting involvement with the situation, the dim lighting, and as she did not effect the arrest. She did notice a distinctive white pattern on the pant pockets that she observed when the person with the firearm was lying face down on the floor along with the other occupants in the studio room.

[20] PC Waters testified that she felt the “tap up” on her shoulder which was the sign she was waiting for to know that she was covered by at least two other officers. She then passed the firearm in her hand to Detective MacIntyre with the words “from him” indicating a person lying face down on the ground in front of her. She testified that she did not look back and continued with her ETF responsibilities to sweep the building. She did not say anything to Detective MacIntyre about distinctive pants worn by the individual with the firearm.

[21] PC Freeman was also present in the doorframe when PC Waters was speaking. He did not note or recall what she said. She was holding a firearm that she located from one of the individuals in the room. She may have pointed to a prone individual on the floor but he was not sure. PC Freeman did not say that he was told by PC Waters that the individual from whom he seized the gun had white writing on his pants.

[22] Detective MacIntyre had the firearm for a second or two before passing it to PC Freeman. PC Freeman testified that he did not get any verbal information from Detective MacIntrye although Detective MacIntyre stated that “I must have told him”. “I can only assume that I said it was from that guy on the ground.”

[23] Again it is not disputed that nothing was said between the two officers about any distinctive pants.

[24] Neither of these officers arrested Mr. Rage for possession of a firearm. Nor did they instruct another officer to effect the arrest.

[25] Detective MacIntyre was in and out of the studio room as his responsibility was to make sure that operations ran smoothly and there was not excessive overtime accumulated by the officers at the scene.

[26] PC Freeman was focused on the firearm. He made observations of the firearm, rendered the gun safe and wrote down the serial number before putting the firearm, ammunition and magazine in his pocket. He was then involved in another aspect of the investigation involving breaking a deadbolt lock.

[27] Other officers then attended in the studio room to escort the 8 to 10 occupants into a larger room to be arrested and searched.

[28] It is not known who escorted Mr. Rage out of the studio room and whether Mr. Rage was immediately arrested along with all the other occupants for possession of narcotics for the purpose of trafficking. It is an admitted fact that all those present in the studio room were charged with narcotic offences.

[29] When Mr. Rage was being escorted out of the studio room PC Freeman testified that he recognized Mr. Rage from other police dealings.

[30] I accept PC Freeman’s evidence that he recognized Mr Rage from previous dealings. However, I am not satisfied beyond a reasonable doubt that Mr. Rage was the individual that PC Waters testified was in possession of the firearm based upon his distinctive pant pockets. PC Freeman was busy with rendering the firearm safe. He chose not to arrest Mr. Rage and testified that he was involved with another aspect of the investigation involving a lock. There were several black men and many police officers in a confined space in the studio room making accurate observations difficult.

[31] PC Freeman did not inform the unidentified officer who escorted Mr. Rage to the larger room that Mr. Rage was the person who had previously been in possession of the firearm.

[32] Detective Margeson was in charge of the entire operation and was giving instructions to the various officers.

[33] Detective MacIntyre did not report any incident to Detective Margeson about the location of a firearm and a suspect.

[34] PC Freeman did report something to Detective Margeson. It is not clear what PC Freeman told Detective Margeson about the firearm and the suspect, and at what time PC Freeman may have made the report. There was no evidence that PC Waters reported to Detective Margeson.

[35] PC Barnes was the final officer who had involvement with Mr. Rage. He testified that when he arrived at the large room at 4:39 a.m. the 8 to 10 occupants were already handcuffed and under arrest for possession of narcotics.

[36] PC Barnes was assigned to search Mr. Rage by Detective Margeson. He was not told anything initially about any firearm charges.

[37] Mr. Rage testified that the occupants from the studio room were placed face down on the floor handcuffed and searched. He heard snapping, like the sound of rubber gloves. He described a search where his belt and pants were removed, and where drugs were found in his anus. I have some difficulty with believing the evidence of PC Barnes that the drugs were evident when the police simply conducted a pat down, field search. Mr. Rage testified that he observed the other prone individuals face down with their pants down when was taken to be strip searched. In any event Mr. Rage acknowledged to PC Barnes that the 6.5 gm of cocaine “found in his ass belonged to him and no-one else”. PC Barnes charged Mr. Rage at 5:05 p.m. with what he testified was an additional charge of possession of narcotics for the purpose of trafficking.

[38] A strip search was then conducted by PC Barnes at 5:26 a.m. Nothing else of interest was located.

[39] PC Barnes described the white lettering on the pocket of the jeans worn by Mr. Rage as looking like vines. He did not observe anyone else with such lettering on clothing.

[40] After the strip search and on the way to escorting Mr. Rage to the scout car at 5:51 a.m. PC Barnes was advised by Detective Margeson that a firearm had been located, and PC Barnes was instructed to charge Mr. Rage with possession of a firearm.

[41] In response to questions from defence counsel about the timing of being informed of the firearm charges, Detective MacIntyre testified that he did not believe that Mr. Rage was told so much later after the incident about the possession of a firearm charge.

[42] Detective Margeson who was in charge of the operation did not testify.

[43] There was no reliable evidence about the clothing worn by the other occupants of the room other than generally everyone was wearing dark clothing and the officers who testified did not notice any white markings on the clothing of the others who were arrested. What were others wearing, and was there stitching or light markings on the pockets of others? I have not seen any image of these apparently distinctive pants, so important in establishing the finding of identity of Mr. Rage as the person possessing the firearm.

[44] Mr. Rage testified. He denied ever touching a gun that morning and did not observe any guns. The defence relies on the absence of any forensic proof linking Mr. Rage to the firearm. Mr. Rage was barehanded, but no fingerprints or DNA were located on the firearm.

[45] Mr. Rage was candid about his possession the narcotics for the purpose of sale. He has a criminal record which does not enhance his credibility. I do not accept that the large quantity of cash in excess of $700 was for rent coming from his welfare cheque. I am mindful of the link between guns and drugs. But having said these things, Mr. Rage’s evidence combined with the inconsistencies and problems with the rest of the evidence, raises a reasonable doubt about the identity of Mr. Rage as the person in possession of the firearm in the studio.

The Conclusions

[46] I accept as proved beyond a reasonable doubt that the firearm was located by PC Waters shortly after she entered the studio room and that she passed the firearm to Detective MacIntyre, who in turn passed in on to PC Freeman.

[47] The glock 40 calibre semi-automatic firearm bearing serial number BPX769 was clearly, meticulously identified by both PC Waters and PC Freeman with each of them taking the time to identify and record the serial number of the firearm using their flashlights. PC Waters took the time to use her flashlight so she could see the serial number, and to write it down on a sticky paper before she passed the firearm on to Detective MacIntyre. This is good practice.

[48] Steps to identify the accused as the person with the firearm were less than meticulous.

[49] The chain of identity of Mr. Rage as the person in possession of the firearm is based upon a distinctive design upon Mr. Rage’s pants pockets not observed on the pants of the other people arrested, coupled with the fact that PC Freeman recognized Mr. Rage from previous police dealings. Without these two pieces of evidence there is no evidence linking Mr. Rage to the firearm.

[50] Applying the three-part test in R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 [W.D.], the presumption of innocence and the high standard of proof of beyond a reasonable doubt, I conclude that the Crown has not proven beyond a reasonable doubt that Mr. Rage was the person that PC Waters observed in the possession of the firearm. I have no difficulty concluding that Mr. Rage is likely, or probably the person who PC Waters saw holding a firearm. However, considering the evidence as a whole, and in particular the third prong of the W.D. test, I conclude that the evidence of identity is not sufficient to meet the Crown’s burden of proof beyond a reasonable doubt.

[51] Notwithstanding the fluid nature of the dynamic situation, I am concerned about why there was such a delay and such a number of individuals involved between the time a firearm was discovered, shortly after 4:37 a.m. and when Mr. Rage was finally arrested for a firearms offence at 5:51 a.m. by an officer who had no knowledge whatsoever of the incident.

[52] In this case, the ETF was executing a warrant in tense, potentially dangerous circumstances. PC Waters, the ETF officer who discovered the firearm in the presence of a person did not pause to effect the arrest due to her perception of her other responsibilities and her instructions from the team leader to continue to sweep the rest of the building.

[53] She waited for the “tap up” on her shoulder signaling coverage by two other officers. She moved on without looking back after saying “from him” to Detective MacIntyre as she passed him the firearm. “From him” referred to a person lined up with others on the floor face down in a crowded dark room.

[54] PC Letsche saw and heard nothing, and confirmed that the ETF are taught the discipline for safety reasons not to be distracted from their specific tasks.

[55] Detective MacIntyre then passed the gun on to another officer standing beside him, PC Freeman, without a word of explanation.

[56] Neither of these officers arrested Mr. Rage.

[57] Both PC Waters and Freeman were scrupulously cautious about taking appropriate steps to identify the serial number on the firearm to ensure continuity. They should take such careful steps to ensure that a suspect is immediately identified.

[58] When the situation is fluid, dynamic or chaotic as the case may be, the police officer who identifies an individual as the person in possession of the gun should either effect the initial arrest or ensure that an officer in the immediate vicinity is properly and clearly instructed to effect the arrest to ensure the continuity of the identity of the person is accurate.

[59] The two officers who observed and handled the gun - PC Freeman and Detective MacIntyre - could have arrested the person if that person had been clearly identified as the person in possession of the firearm. They chose not to do so. The arrest took place some significant time later by another officer who had no direct involvement in the location of the firearm, based upon instructions from his supervisor. That supervisor did not testify to explain the delay in the arrest and what was the basis for giving instructions to arrest Mr. Rage for possession of the firearm.

[60] As we know, identification evidence has its unique frailties. Honest, well-meaning people can make mistakes. This was clearly a chaotic, tense, fast-moving situation involving a large number of individuals in a crowded dark room. It is not sufficient to meet the stringent burden of proof beyond a reasonable doubt to delegate proof of identity of an accused person through a chain involving various officers and significant delays with the only major significant link for identity being a design on a pant pocket which I have never seen.

[61] For these reasons, I conclude that the Crown has not proved the identity of Mr. Rage as the person in possession of the firearm beyond a reasonable doubt.

[62] Mr. Rage is therefore acquitted on all charges.

J.M. Wilson J.

Released: April 2, 2012