COURT FILE NO.: CR-11-903-00
DATE: 20121115
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
J. Prenger, for the Crown
Crown
- and -
Yul Styles-Lyons
T. Boutzouvis, for the Defence
Defendant
HEARD: September 18, 19, and 20, 2012
REASONS FOR JUDGMENT
Daley J.
[1] The accused, Yul Styles–Lyons, pleaded not guilty to five charges related to the alleged possession of a prohibited firearm under sections 88(1), 91(2), 92(1), 94(1), 95(1), 117.01(1) of the Criminal Code and that he was in unlawful possession of marijuana contrary to section 4(1) of the Controlled Drugs and Substances Act.
[2] These charges arise from a police investigation and vehicle stop which occurred on December 29, 2009 in the City of Mississauga. The accused was a passenger in the vehicle and was in the company of three other males at the time.
[3] In the course of the police investigation and the search of the vehicle a loaded handgun with ammunition and quantity of marijuana was found and all four individuals were charged with gun and drug offences.
[4] The charges against the accused's three companions were stayed following a preliminary hearing.
[5] The parties entered into an agreed statement of facts for trial, which in summary, and not including all of the facts agreed to, did include the following facts:
(1) Peel Regional Police stopped the driver of an Acura SUV on December 29, 2009;
(2) the police found a .25 calibre semiautomatic handgun in a sock holster within the vehicle;
(3) the accused was in the company of three other males, namely Otis Watson (“Watson”), Craig Savory (“Savory”), and Andre Powell (“Powell”);
(4) the hand gun was found with one round chambered and ready to be fired along with four additional rounds in the gun's magazine;
(5) the police found a small amount of marijuana in a grinder within the Acura SUV and also found 2.8 g of marijuana in a baggy in the center console of the vehicle. The passenger, Savory, was later found to be in possession of 1.7 g of marijuana;
(6) the police also located marijuana roaches in the vehicle’s ashtray;
(7) the firearm was a .25 calibre handgun with a barrel length of 62 mm, plus or minus and s. 84 of the Criminal Code provides that a gun with a barrel length equal to or less than the 105 mm in length is a prohibited firearm;
(8) the accused had no licence, registration or ownership related to any handgun;
(9) DNA samples were taken from each individual detained by the police, including the accused, which were submitted to the Center of Forensic Sciences for analysis;
(10) DNA was obtained from a cut-out of the sock holster and compared by representatives of the Center of Forensic Sciences to the accused's DNA profile;
(11) DNA samples that were obtained from Watson, Savory and Powell were also provided to the Center of Forensic Sciences for analysis and comparison;
(12) Watson, Savory and Powell were all excluded as the source of the major DNA profile that came from the cut-out of the sock holster, that had contained the seized hand gun; and
(13) the accused was subject to a s. 110 weapons prohibition order on December 29, 2009.
[6] The accused did not testify at the trial and no defence evidence was called.
[7] Apart from the charge related to the alleged possession of marijuana by the accused, the primary issue at trial was whether the Crown had proved the accused's knowing possession of a firearm and a measure of control over the weapon at the material time.
The Police Stop Investigation and Arrest:
[8] Peel Regional Police Constable Makin was in uniform and a marked police cruiser on the evening of December 29, 2009 at approximately 11:35 p.m.
[9] At this time he observed an Acura SUV parked adjacent to a nightclub in the area of Airport Road in Mississauga, facing eastbound in a westbound lane. He testified that as he drove past this vehicle it left the area and proceeded onto Torbram Road at a speed which he described as aggressive and as such, he formed the belief that the occupants of the vehicle did not want to be in contact with the police.
[10] Given his observation that this vehicle had been located in front of a licensed liquor establishment, he determined that that he would follow the vehicle and make observations as to the driver’s sobriety.
[11] While following the vehicle he noted that it was travelling 95 kph in a 80 kph zone.
[12] He pulled up beside the SUV with his vehicle in the curb lane at an intersection on a red traffic signal and observed a male driver and passenger in the SUV. He had formed the decision to stop the vehicle and he allowed the vehicle to cross the intersection on a green light, whereupon he activated his siren and emergency lights and then directed the vehicle over to the curb lane.
[13] He stopped and parked his cruiser behind the SUV.
[14] He exited his cruiser and walked up to driver side of the SUV and as he was approaching the vehicle at a distance of approximately 50 feet he noted the smell of burnt marijuana. Although the vehicle’s windows were closed, he believed the smell of marijuana was coming from the SUV as no other vehicles were in the area.
[15] He tapped on the rear driver's-side passenger window, however, there was no immediate response and he then proceeded to the driver’s door whereupon the window came down and a cloud of freshly burning marijuana smoke came out of the vehicle.
[16] He advised the driver, Powell, that he was being stopped in regard to concerns for alcohol use and driving. He requested production of Powell's driver's licence. He noted a marijuana grinder located on the front console of the vehicle between the front seats.
[17] During his contact with the driver, Powell, he also noted two males in the back seat of the vehicle. He then proceeded back to his cruiser, requested back-up assistance, and then returned to the driver’s door side of the SUV and requested that Powell get out of the vehicle. He took him to the curb side and placed him under arrest for possession of marijuana.
[18] At 11:51 p.m. Constable Forget arrived at the scene.
[19] Constable Makin removed Watson, the rear passenger-side passenger from the vehicle and placed him under arrest for possession of marijuana. Constable Forget was asked to assist him in the arrests and he proceeded to the driver’s side door, where the accused was located in the rear passenger seat immediately behind the driver’s seat.
[20] The front passenger Savory was also removed the vehicle and placed under arrest. Constable Makin recalled that Savory was the last of the four occupants removed from the vehicle.
[21] Constable Makin testified that in the course of conducting a search on the driver’s side of the vehicle and while looking for marijuana and related paraphernalia, he then proceeded to the rear seat area immediately behind the driver's seat, where the accused had been located, and he searched the seats, floor area and the pouch located on the rear of the driver’s seat.
[22] He noted that the pouch on the back of the driver's seat appeared to be full and as such, it was somewhat forced open near its top. He described the pouch as being 12" x 12" and that the top was open about 2 to 3 inches.
[23] On searching the pouch he noticed a gray sock which he removed from the pouch and which he noted appeared heavy. He dropped the contents of the sock on the vehicle seat and observed what he thought was a "cigarette lighter gun" fall from the sock. He determined that this object was in fact a firearm which is now the subject of the present charges.
[24] Constable Makin testified that looking straight at the pouch on the rear of the driver’s seat he could not see into it but looking from above or over it, he could see down into the pouch. However, he agreed in cross-examination that if he looked over the pouch in the back of the driver's seat, without the interior vehicle light on or without the aid of a flashlight, he could not see inside the pouch. He had made no note in his notebook as to where in the pouch the sock was located.
[25] Constable Makin could not recall what other items were found in the seat pouch or where the sock and firearm were located. He did not make an inventory of the other items located as a result of his search.
[26] Upon locating the firearm, he called for additional back-up at approximately 12:02 a.m. and three more officers shortly arrived at the scene.
[27] Constable Makin testified that it was his belief, upon observing the SUV, prior to stopping the vehicle that the driver of the SUV was endeavouring to distance himself from the police. While stopped at the traffic light, prior to pulling over the SUV, he noted that the driver and front passenger were staring straight ahead and in his opinion they were trying to be inconspicuous.
[28] When Constable Forget arrived at the scene he was requested by Constable Makin to remain at the curb side with the driver of the vehicle, Powell. Constable Makin then proceeded to remove the front and rear seat passengers from the passenger side of the vehicle namely Savory and Watson.
[29] At 11:53 p.m. Constable Forget proceeded to the driver's-side rear door of the vehicle and he removed the accused and placed him under arrest. Contrary to the evidence of Constable Makin that Savory was the last person removed from the vehicle, Constable Forget testified that the accused was the last person removed from the vehicle, however, he had no record of this in his notebook.
[30] Upon the removal of the accused from the driver's-side rear passenger seat, Constable Makin conducted a search of the vehicle and at approximately 12:00 a.m. Constable Forget was advised by him that a firearm had been located in the vehicle.
[31] Constable Forget initially testified that Constable Makin's search of the vehicle took about seven minutes, however after refreshing his memory by a review of his evidence from the preliminary inquiry, he stated that the search took between three to seven minutes.
[32] Constable Shaun Stanley arrived at the scene at approximately 12:07 a.m. whereupon Constable Forget turned over the accused to him. All persons who had been in the vehicle were removed prior to his arrival. He was advised by Constable Makin at 12:10 a.m. that he had located a handgun in the vehicle.
[33] Constable Stanley conducted a further search of the vehicle on the passenger side where he located a tool like an ice pick and a small clear bag of marijuana.
[34] Savory testified that he was the front seat passenger in the SUV. Although he acknowledged knowing the driver, Powell, for approximately three years, he could not recall his name. He had seen Powell once or twice a week.
[35] He had known the accused since they were children and they had lived across the street from each other.
[36] He had met Watson on one occasion prior to the night in question.
[37] Savory was picked-up by Powell on the evening in question and he was the first person to join Powell in his vehicle. They then proceeded to pick-up the accused and Watson.
[38] Savory acknowledged that he brought marijuana into the vehicle that evening which he smoked and that he passed it around to the others in the vehicle.
[39] After they attended a bar and he had one beer, they then proceeded to a strip club near the airport where they parked in front of the club for 15 to 20 minutes while speaking with two young women. The police cruiser, driven by Constable Makin, pulled into the parking lot near Powell’s vehicle.
[40] Savory testified that he told the driver, Powell, that he wanted to get out of the vehicle but he drove off. He stated that it appeared that the driver was in a rush to leave the area.
[41] After they had travelled a distance westbound on Derry Road the police cruiser pulled-up beside them. He noted that Powell sprayed cologne in the vehicle.
[42] Savory testified that he had been in Powell's vehicle several times, the last time being just prior to Christmas, 2009.
[43] At the time Powell’s vehicle was stopped by Constable Makin, Savory testified that he did not recall any conversation within the vehicle nor did he recall making any observation of any particular movement by anyone in the vehicle. Savory acknowledged being in possession of marijuana and that he turned it over to the police.
[44] He testified that he was shocked to learn of the presence of the firearm within the vehicle. He had never observed the accused or Powell with a gun at anytime.
[45] At no time while he was in the vehicle did he hear any discussion about the presence of a firearm nor did he observe the sock that was located in the vehicle.
[46] Savory testified that he did not notice any panicking or fidgeting on the part of either the accused or Watson, who were seated in the rear of the vehicle at the time of the police stop, nor was he aware of anyone stuffing anything into a seat pouch in the back of the vehicle.
[47] As to his relationship with the accused and Powell, he testified that they were both his friends and that he saw them both over Christmas of 2009 and he had been with them at the accused's girlfriend's place.
[48] In cross-examination Savory agreed that he, the accused and Powell would hang out and drink at the accused's girlfriend's place and he further stated that he possibly recalled taking shelter with the accused in Powell's vehicle on an occasion during a rainstorm.
[49] Watson readily acknowledged having a vague memory of the events of the day in question.
[50] He testified that Powell was the only person in the vehicle that he really knew, although he had met Savory once previously. He had never met the accused prior to the day in question. He was the last person to enter the vehicle and he sat in the right rear seat with the accused sitting to his left.
[51] He did not pay much attention to the accused's movements or activities while in the vehicle. He recalled that all were smoking marijuana in the vehicle that evening.
[52] At the time of the police stop, he recalled that the driver Powell was taken from the vehicle first followed by Savory, himself and then the accused.
[53] Watson had no information about the presence of a gun in the vehicle. He testified that he saw no one place anything in the pouches in the back of the seats, nor did he observe any nervousness on the part of the accused.
[54] Watson acknowledged a criminal record dating from 1996 through to 2003 which included convictions for assault, theft and robbery, the particulars of which are fully set out in his record which was marked as Exhibit 7.
[55] Powell, who was in custody at the time of this trial, on other matters, testified on behalf of the Crown.
[56] Powell acknowledged knowing Mr. Watson for approximately 18 years at the time of the events in question.
[57] He claimed to have met the accused on one prior occasion, while in the company of Savory, who he had known for about a year. In his evidence he referred to Savory as the "other guy" and indicated that he did not know him well.
[58] In spite of this evidence, he acknowledged that Messrs. Watson, Savory and the accused were with him on the evening in question. He confirmed as well that they were all smoking marijuana in his vehicle.
[59] At the time of the police stop, he admitted to Constable Makin that they were smoking marijuana. He testified that when asked for permission by Constable Makin to search the vehicle, he stated that he granted him permission to do so.
[60] Powell testified that he had no knowledge of a gun being present in his vehicle. He had cleaned the vehicle that day or the day prior.
[61] He testified that he recalled looking into the pouch on the back of the driver’s seat on the date of the events in question or the day prior while cleaning the vehicle and he did not observe a sock.
[62] Powell denied owning the sock which was located and further denied ever seeing the gun.
[63] Powell acknowledged that as of the date of this trial he faced three sets of outstanding charges including a charge from August of 2011 involving possession of narcotic for the purpose of trafficking, charges dating from July 2012 of aggravated assault, possession of a weapon dangerous to the public peace and breach of recognizance.
[64] He also has outstanding charges from September, 2012 relating to assault, threatening and breach of recognizance.
[65] Powell's criminal record was entered into evidence and was marked as Exhibit 8.
[66] In cross-examination Powell conceded that he had been convicted or pled guilty to several offences including uttering of threats.
[67] He agreed that in October of 2008 that he was found guilty, after a trial, of uttering threats, possession of a weapon dangerous to the public peace as well as two counts of assault and that one of the allegations made during the course of that trial related to an occurrence in July of 2007 where he was found to have stated to a complainant: "don't you think I won't put the gun down your throat." Powell claimed that he was wrongfully convicted but he did not file an appeal.
[68] He was also convicted of assault which involved choking of a complainant, however, Powell referred to the incident giving rise to the charges in July 2007 as "just a domestic case."
[69] As to his contact with the accused, and Savory, Powell testified that they were both within his vehicle for the first time on the day of the events giving rise to the present charges. He denied ever hanging out with these individuals previously.
[70] With respect to Powell's encounter with the police on the evening in question, he testified that it was just a coincidence that he was leaving the area in front of the nightclub when Constable Makin arrived. He denied accelerating away from the area and denied having any concerns about being stopped by the police.
[71] At the time his vehicle was pulled over by Constable Makin, he acknowledged that he did not hear or sense anyone in the back of the vehicle fidgeting or hiding anything in the seat.
[72] Powell denied placing the sock and handgun in his vehicle.
[73] Dr. W. Trevor Claxton of the Center of Forensic Sciences was offered as an expert witness on behalf of the Crown with respect to bodily fluid identification, DNA analysis and interpretation.
[74] On considering this witness' curriculum vitae and evidence as to his education, training and experience, I accepted this witness as an expert qualified to testify and offer opinion evidence in these areas.
[75] Dr. Claxton agreed with the accuracy of the facts set out regarding DNA in paragraph 9 of the Agreed Statement of Facts for Trial.
[76] Although the handgun and magazine were examined by a representative of the firearms section of the Center for Forensic Sciences they were not examined by the biology section.
[77] The sock, within which the firearm was found, was examined for hair, blood and DNA. Although a hair was found on the sock, it was not suitable for DNA testing. Further, no blood was detected on the sock.
[78] The sock was also subjected to mag light examination for the purpose of detecting any bodily fluid such as saliva or semen. Dr. Claxton testified that although mag light examination is not a definitive test, no body fluids were detected through this examination method.
[79] Dr. Claxton testified with respect to the examination of the sock as conducted by Wendy Lalonde of the Center for Forensic Sciences and regarding her report results following her examination.
[80] Ms. Lalonde cut out a piece of sock for the purpose of DNA testing and she selected an area from the inside cuff of the sock in order to obtain a wearer profile where the cuff of the sock may have rubbed on the skin of the wearer and where there may be more likelihood of finding DNA.
[81] Dr. Claxton testified that the DNA analysis conducted by Ms. Lalonde involved essentially three steps namely the extraction and separation of DNA material from the sock fabric, secondly quantification to determine that there was an adequate amount of DNA suitable for testing and thirdly the DNA profiling assuming an adequate quantity of DNA was obtained.
[82] Dr. Claxton testified that he reviewed the work carried out by Ms. Lalonde and in his opinion all of the required procedures and considerations were followed by her.
[83] As to the quantity of DNA identified, Dr. Claxton testified that 7.3 ng of DNA was detected and that a sample amount, 1 ng, was used for testing.
[84] Dr. Claxton testified that there was a sufficient amount of DNA available for proper DNA profiling to be carried out.
[85] Nine locations were identified in the DNA sample tested and the profile indicated there were three contributors of DNA material on the sock fabric specimen examined, of which one was suitable for comparison as a major male profile. The other two minor contributors of DNA were not suitable for comparison.
[86] Dr. Claxton testified as to the results of the DNA profile prepared by Roger Frapier of the Center for Forensic Sciences. He stated that the DNA sample obtained from the sock material that was suitable for examination was of an intermediate amount and that it resulted from more than "casual contact" and would have been transferred from the wearer.
[87] Dr. Claxton testified that Mr. Frapier obtained a blood sample from the accused which was used for comparison purposes with the DNA sample obtained from the sock.
[88] It was Dr. Claxton's opinion that the accused could not be excluded as a source of the DNA detected on the sock fabric and he further stated that the probability of coincidence in matching the accused's DNA with the DNA found on the sock was 1 in 16 trillion.
[89] Dr. Claxton agreed that the biological source of the DNA material could not be determined nor could it be determined when in point of time it was deposited on the sock fabric. He also agreed that he could not exclude the possibility that the DNA was deposited on the sock from saliva produced by spitting, talking, sneezing or coughing or as a result of dandruff.
[90] Although it was suggested to this witness in cross-examination that DNA could be transferred to the sock from saliva off a cigarette passed between persons, Dr. Claxton stated that there would be a reduction in the presence of saliva in the course of each transfer of the cigarette and as a result there would have to be a significant amount of saliva on the cigarette in order to result in the quantity of DNA detected in this case.
[91] Dr. Claxton agreed that he could not rule out the possibility that the DNA identified was deposited on the sock by a person other than the wearer of the sock.
Analysis:
[92] As Powell acknowledged that the drugs located within his vehicle belonged to him, counsel for the Crown indicated that the drug charge in Count 1 would not be pursued and as such, that charge is dismissed.
[93] The remaining six counts in the indictment all arise from the accused's alleged possession and control of the hand gun.
[94] As to the charge in Count 7, under s. 117.01(1) of the Criminal Code, the accused has admitted in the Agreed Statement of Facts that at the time of the offences alleged, he was subject to a s.110 weapons prohibition order.
[95] This is an entirely circumstantial evidence case for the Crown.
[96] It is incumbent upon the Crown to establish beyond a reasonable doubt that the accused was in possession of a handgun in respect of counts 2, 3, 5, 6 and 7 of the indictment.
[97] With respect to the charge in count 4, of the Crown must prove beyond reasonable doubt that the accused knew, as an occupant of the motor vehicle, that the handgun was within the motor vehicle.
[98] The elements of "possession" are set out in s. 4 (3) (a) (i) (ii) of the Criminal Code which provides as follows:
Possession
s.4 (3) For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(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.
[99] Possession must coexist with knowledge of what the thing is and some intentional act of control over the object: R. v. Marryshow, [2003] O.J. No. 1332 at para. 24.
[100] In crimes of unlawful possession is not necessary for the Crown to prove the requisite knowledge by direct evidence, as it may be inferred from the surrounding circumstances: R. v. McIntosh, [2003] O.J. No. 1267 at paras. 43- 44.
[101] As to the requisite elements of proof of possession, it was noted by Hill J. in R. v. Anderson-Wilson, 2010 ONSC 489, [2010] O.J. No. 377, at para. 68:
Proof of possession requires the Crown to establish two distinct elements of knowledge and control: R. v. Robinson, 2009 ONCA 626 at para. 22; R. v. Chalk (2007), 2007 ONCA 815, 227 C.C.C. (3d) 141 (Ont. C.A.) at para. 19. Control refers to power or authority over the item whether exercised or not: R. v. Mohamad (2004), 2004 CanLII 9378 (ON CA), 182 C.C.C. (3d) 97 (Ont. C.A.) at para. 60-1; R. v. Savory (1996), 1996 CanLII 2001 (ON CA), 94 O.A.C. 318 (C.A.) at para. 7 (leave to appeal refused [1997] S.C.C.A. No. 189, [2007] 2 S.C.R. xv); R. v. Chalk, supra, at para. 19. Criminal liability for voluntary occupancy in a vehicle knowing there is a weapon in the conveyance does not, unlike a possession charge, require proof of control: R. v. Swaby (2001), 2001 CanLII 2829 (ON CA), 54 O.R. (3d) 577 (C.A.) at para. 17-20; Criminal Code s. 94(1).
[102] Thus in respect of the offence alleged in Count 4 of being in a motor vehicle and knowing of the presence of a firearm, proof of knowledge of the weapon's presence is required, however, there is no element of control involved.
[103] In circumstances where the weapon is "not readily visible," knowledge cannot be inferred without direct or sufficient circumstantial evidence to satisfy the court that such an inference is the only reasonable one to be drawn from the evidence: R. v. Green; R. v. Rawling, [1993] O.J. No. 1346 (Ont. C.A.); R. v. Bullock, [2000] O.J. No. 798.
[104] As the evidence offered by the Crown is entirely circumstantial, it must be examined to determine on the whole of the evidentiary record what inferences may reasonably be drawn.
[105] In Anderson-Wilson, Hill J. carefully considered the required self-instruction for the trier of fact on circumstantial evidence at para. 72-73 as follows:
[72] The essential component of self-instruction on circumstantial evidence is that the trier of fact must be satisfied that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Griffin; R. v. Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.) at para. 33.
Circumstantial evidence must be viewed as a whole and not each piece individually: R. v. Warkentin et al. (1976), 1976 CanLII 190 (SCC), 30 C.C.C. (2d) 1 (S.C.C.) at 20. “[T]he mere existence of any rational, no-guilty inference is sufficient to raise a reasonable doubt”: R. v. Griffin; R. v. Harris, supra, at para. 34.
[73] The Crown may seek to establish the existence of a fact in issue by submitting that an inference may reasonably and circumstantially be drawn from the primary facts – there exists an inferential gap between the primary fact and the fact to be proved: R. v. Arcuri (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.) at 31-2; R. v. Cinous (2002), 2002 SCC 29, 162 C.C.C. (3d) 129 (S.C.C.) at 172-3. Whether the inference is a reasonable one to draw usually involves an application of “human experience and common sense” (R. v. Figueroa et al., 2008 ONCA 106, [2008] O.J. NO. 517 (C.A.) at para. 33; U.S.A. v. Huynh (2005), 2005 CanLII 34563 (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.) at 307).
Circumstantial inferences are ones which “can be reasonably and logically drawn from a fact or group of facts established by the evidence”: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at 209. A trier of fact “cannot be invited to draw speculative or unreasonable inferences: R. v. Figueroa et al., at para. 35, 42. Most cases “will involve hiatuses in the evidence which can be filled only by inference”: Lamenman v. Canada (Attorney General), 2006 ABCA 392, [2006] A.J. No. 1603 (C.A.) at para. 87. “The process of drawing inference from evidence is not, however, the same as speculating even where the circumstances permit an educated guess”: U.S.A. v. Huynh, at 307.
[106] Included in the circumstantial evidence offered by the Crown in this case, significant reliance is placed on the DNA evidence related to the sock which contained the firearm.
[107] Like fingerprint evidence, DNA evidence must be assessed as to its probative value in the context of all of the evidence proffered including potentially exculpatory evidence: R. v. Mars, 2006 CanLII 3460 (ON CA), [2006] O.J. No. 472 (Ont. C.A.); R. v. D.D.T. 2009 ONCA 918, [2009] O.J. No. 5486 (Ont. C.A.).
[108] As to findings of fact, I accept the facts as agreed to by the Crown and the accused, as set out in the Agreed Statement of Fact including the fact that the gun is a prohibited firearm.
[109] As to the DNA evidence obtained from the sock fabric, I find as a fact that the accused's DNA was found on the fabric specimen taken from the sock as tested by the representatives of the Center for Forensic Sciences.
[110] I reach this conclusion based on the evidence of Dr. Claxton, which was not in any way undermined in cross-examination, as to the presence of the accused's DNA on the sock.
[111] As to the surrounding circumstances of the alleged offences, as noted by Hill J. in Anderson-Wilson, at para. 74, the following circumstances have been considered relevant in weapon prosecutions:
(1) the physical proximity of the firearm to the accused;
(2) the degree of visibility of the firearm;
(3) the degree of communal use of a vehicle containing the firearm;
(4) the size, nature and number of weapons in a particular space; and
(5) the nature of other items located proximate to the firearm capable of providing context for inferences of knowledge and control.
[112] I make the following findings of fact in regard to these considerations:
(1) the sock holding the firearm was located by the police in the pouch, located on the back of driver’s seat and the accused was seated in the rear driver's side passenger seat. As such he was in close proximity to where the firearm was found at the time of the police investigation;
(2) as to the degree of visibility of the firearm, I find that it was not readily visible. None of the witnesses for the Crown observed the firearm and Constable Makin testified that the firearm was located by him inside the sock within the seat pouch. While he testified that the top of the pouch was open by approximately 2 inches, he agreed that without the aid of a flashlight or the interior vehicle light, one could not see clearly down into the pouch so as to identify the sock and handgun;
(3) as to the use of the motor vehicle, I find that Powell was the owner of the vehicle. The vehicle was not driven by the accused. Although Powell testified that the accused had never been within the motor vehicle prior to the night in question, and that he only met him once previously, the witness Savory offered contrary evidence that he, Powell and the accused had in the past hung out and drank together. I found Powell's evidence wholly unreliable for the reasons more fully detail below and as such, I reject it as it relates to his past contact with the accused; and
(4) as to the size of the weapon, I find, as agreed by the Crown and the accused, that the firearm had a barrel length of 62 mm being far less than the lawful minimum length of 105 mm is provided for in s. 84 of the Criminal Code. It was a small hand gun which was easily hidden.
[113] In addition to these findings of fact I further find that there is no evidence by way of fingerprints or DNA connecting the accused directly to the handgun. Further, there is no direct evidence that the accused had knowledge of the presence of the handgun within the motor vehicle.
[114] The evidence of the Crown witnesses Powell, Watson and Savory was consistent in that they all denied knowledge of the firearm within the vehicle, they did not observe the accused in possession of a firearm, they saw no actions on the part of the accused that would be connected with concealing the handgun and further they noted nothing in the accused’s demeanour while in the vehicle that was unusual in the circumstances.
[115] Further, while I have determined that the DNA identified as taken from the sock, is that of the accused, there is no evidence as to how long the DNA was present on the sock nor how it was placed on the sock.
[116] Although it was urged on behalf of the accused that several alternative scenarios could give rise to the presence of the accused's DNA on the sock, such as from saliva as a result of talking, spitting coughing or sneezing or through the passing of a marijuana joint with saliva on it or from dandruff, and although Dr. Claxton agreed that these scenarios could not be excluded as possible sources of DNA, there was no underlying evidence to support these scenarios.
[117] Each of the Crown civilian witnesses has a significant criminal record, the most notable being Powell. As well, these witnesses are former co-accused’s with this accused.
[118] As to the credibility and reliability of the witness Powell, I have determined that his evidence must be examined very cautiously given his lengthy criminal record, his prior status as a co-accused and as the owner of the vehicle in which the handgun was located: R. v. Vetrovec (1982), 67 C.C.C. (2d).
[119] It was clear from his manner and demeanour that Powell was a reluctant witness and that he wished to distance himself as much as possible from the persons and events giving rise to these charges.
[120] While Powell testified that he had no connection with firearms, he acknowledged that he was convicted of offences related to circumstances where he threatened to use a handgun on his girlfriend.
[121] Further, Powell's evidence conflicted with Mr. Savory's on a significant point - namely his past contact with the accused.
[122] While Powell endeavoured to distance himself from the accused and stated that he had met him on one occasion previously and that he had never been in his vehicle prior to the night in question, Savoy testified that he, Powell and the accused had been together on a number of occasions and that the accused had been in Powell's vehicle. Where Powell's evidence conflicts with that of Mr. Savory on these points, I prefer and accept the evidence of Savory.
[123] Although the accused did not testify nor offer defence evidence, in my view, the principles enunciated in R. v. S. (W.D.) 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521 must be considered by me in making credibility findings and in doing so I must consider the exculpatory aspects of the evidence offered by the Crown witnesses: R .v. B.D., 2011 ONCA 51.
[124] As noted by Doherty J.A. in Mars, the probative value of identification evidence such as a fingerprint or in this case DNA will depend on the totality of the evidence.
[125] In Mars Doherty J.A. stated at para. 4:
[4] When assessing the reasonableness of a verdict, the appellate court must have regard to the burden of proof applicable in a criminal case. Where, as here, the Crown’s case depends on inferences drawn from primary facts, the question becomes: could a trier-of-fact acting judicially be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence? The totality of the evidence refers to evidence that is potentially exculpatory as well as evidence that supports the Crown’s case against an accused. In this case, the assessment of the reasonableness of the convictions, which were based entirely on the inculpatory potential of the fingerprint evidence, had to take into account the largely exculpatory identification evidence given by the Crown witnesses.
[126] This statement is most apt in the circumstances of this case.
[127] While the accused was sitting in close proximity to the location where the sock, containing the handgun, was found, there is no evidence connecting him directly to the handgun. There is neither fingerprint nor DNA evidence related to the handgun.
[128] Although these are suspicious circumstances, I conclude that the Crown has not established that the only reasonable inference to be drawn from the totality of the circumstantial evidence, including the DNA evidence, is that the accused was in knowing possession and control of the handgun or knowingly within the motor vehicle which contained the handgun.
[129] There remains an inferential gap in the circumstantial evidence offered such that I cannot conclude beyond a reasonable doubt that the accused is guilty of the offences charged.
[130] In the result, the charges in respect of all of the counts in the indictment are dismissed.
Daley J.
Released: November 15, 2012
COURT FILE NO.: CR-11-903-00
DATE: 20121115
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Crown
- and –
Yul Styles-Lyons
Accused/Defendant
REASONS FOR JUDGMENT
Daley J.
Released: November 15, 2012