COURT FILE NO.: 117/12

DATE: 20121207

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

COADY DUHAMEL

Rebecca M. Edward, for the Crown

Ariel Herscovitch, for the accused

HEARD: October 22-30, 2012

Mr. Justice Kenneth L. Campbell:

I Introduction

[1] The accused, Coady Duhamel, has pled not guilty to two indictments, containing a total of 13 separate charges alleging a variety of firearms, ammunition, and drug-related offences. The main issue is whether the Crown has established beyond a reasonable doubt that it was the accused that was in possession of the loaded restricted firearm, ammunition, and cocaine that was recovered by the police during the execution of a search warrant.

[2] In the early morning hours of December 1, 2010, a large team of Toronto Police Service officers forcibly entered premises located on Beresford Avenue in Toronto to execute a search warrant. Just as the Emergency Task Force (ETF) officers on this team were making their entry, a plastic shopping bag was thrown from the upstairs deck of the premises. When the police entered the upstairs bedroom adjoining this deck just seconds later, they found Mr. Duhamel and 18-year-old Wesley Sommers. The police also discovered the accused’s girlfriend, Caitlin Sommers, in the upstairs bedroom at the opposite end of the premises.

[3] When the police recovered the plastic bag that had been quickly jettisoned from the upstairs deck, they found that it contained, amongst other things, a fully loaded “Hi-Point” .45 calibre semi-automatic handgun with detachable magazine, approximately 137 grams of cocaine, and other drug paraphernalia. During their search of the apartment the police also found a large quantity of Canadian currency ($2,055) located in the bed-side table in the bedroom occupied by Caitlin Sommers.

[4] The Crown contends that the evidence establishes that, before the arrival of the police that night, the accused and Caitlin Sommers had been sleeping together in her bedroom. According to the Crown’s theory, when the accused saw the police at the premises in the middle of the night, he grabbed the plastic bag containing the contraband, and ran to the other end of the apartment and into the bedroom occupied by Wesley Sommers. Wesley’s bedroom provided the only access to the deck. The Crown argues that, once outside on the deck, the accused quickly threw the plastic bag over the fence around the deck, hoping not to be caught with the contraband. The accused had just returned to Wesley Sommers’ bedroom from the deck when the police entered his bedroom.

[5] In advancing this position, the Crown relies upon the police evidence as to their findings during the search and the testimony of the two Sommers siblings. Caitlin Sommers testified, essentially, that just before the police forcibly entered the premises, the accused woke her, telling her that the “cops” were there. At that point, the accused had a white plastic bag in his hand, and he quickly raced out of their bedroom. Wesley Sommers, who occupied the bedroom adjoining the deck, testified, essentially, that just before the police came through their front door, the accused came into his room carrying a black and white plastic bag. The accused told him that the “cops” were there, and then went out the door to the deck. When the accused returned to Wesley’s bedroom seconds later, he no longer had the bag. Both Wesley and the accused were still in Wesley’s bedroom when the police arrived and arrested them.

[6] The accused did not testify or call any contradictory evidence. The defence contends, however, that the Crown has not established the alleged guilt of the accused beyond a reasonable doubt. In advancing this position, the defence relies on the reality that the two key civilian witnesses called by the Crown, namely, the two Sommers siblings, still face the same pending criminal charges as the accused. The defence argues that their obvious personal interest in ultimately avoiding prosecution for these criminal charges provides them with powerful motivation to falsely incriminate the accused. Their evidence, the defence argues, should not be believed, especially given the distinct possibility that Wesley Sommers may have actually been the one who threw the plastic bag of contraband from the deck.

II The Police Evidence

A. The Forcible Entry of the Premises

[7] On the evening of November 30, 2010, Toronto Police Service officers connected to the Major Crime Team began to prepare for the execution of a search warrant for this upstairs apartment on Beresford Avenue in Toronto. They anticipated that they would be searching for an illegal firearm and cocaine. Even before the search warrant was issued, officers were detailed to the premises to conduct surveillance of any persons entering or leaving the premises. It was anticipated that ETF officers would be involved in the planned forced entry of the premises.

[8] After the search warrant was signed, and the teams of officers appropriately briefed, the officers involved attended at the Beresford Avenue address. There were more than 20 officers engaged in this process, nearly half of them tactically trained ETF officers. At 1:07 a.m. on December 1, 2010, the ETF officers forcibly breached the ground floor of the premises. Inside the front door was a set of stairs that led to the second floor of the building where the Sommers siblings had their apartment. A loud and bright “distraction device” was deployed into the upstairs landing area, and the officers quickly proceeded upstairs. At the top of the stairs, some officers headed north towards the bedroom occupied by Wesley Sommers, and some went south towards the bedroom occupied by Caitlin Sommers.

B. The Police Observations in Wesley Sommers’ Bedroom

[9] When the ETF officers entered Wesley Sommers’ bedroom, with their guns drawn, within seconds of breaching the front door, they saw two males on the bed. Wesley Sommers was in the bed, sitting up against the far wall, and entirely under the covers. It looked like he was trying to hide under the covers. The officers could not see his hands, and had to pull back the covers themselves when he did not immediately comply with their demands.

[10] Mr. Duhamel was sitting on the middle of the bed on top of the sheets, with his legs hanging down over the side of the bed. When the accused did not immediately get on the floor as ordered, one of the ETF officers grabbed him by his t-shirt, and directed him to the ground. He placed his hands on his head when put to the ground in this fashion.

[11] Both Mr. Sommers and Mr. Duhamel were wearing boxer shorts and t-shirts. They were quickly handcuffed. Following their arrest, they were advised of their right to counsel and cautioned regarding making any statements to the police.

[12] The police noticed the door inside the bedroom that led to the deck. It was closed. However, being concerned that perhaps someone might be outside on the deck, the ETF officers checked outside. No one was there. As already mentioned, this door in Wesley Sommers’ bedroom provided the only means of accessing the deck area.

[13] Once the ETF officers had secured the premises, the Major Crime team officers began their search of the premises at 1:17 a.m.

C. The Results of the Execution of the Search Warrant – Other Police Observations

[14] The deck area was completely fenced in by a wooden privacy fence some five or six feet high. The deck itself consisted of plank flooring made of pressure-treated lumber. It had been raining heavily that night and, as there was no awning or roof covering deck, it was quite wet. The width of the deck, between the bedroom wall and the wooden fence, was approximately three meters.

[15] The adjoining property to the west belonged to the Hydro Electric authority. This property was entirely fenced in for obvious security and safety reasons. At the top of the high chain-link fence surrounding the property was barbed wire fencing. This Hydro fencing was just a couple of feet from the deck fencing, and was within reach of the deck. The Hydro fencing extended, however, a couple of feet higher than the deck fencing.

[16] When the police searched the south bedroom used by Caitlin Sommers, they found, on top of an approximately seven foot high book case, a black Crossman .177 calibre pellet gun. Also in this bedroom, on the floor, the police discovered a Blackberry and “disclosure” materials belonging to Mr. Duhamel in relation to one of his other matters.

D. The Plastic Foot Locker Bag – Firearm, Cocaine and Drug Paraphernalia

[17] Detective Constable Dick and Constable Poulimenos were detailed to, among other things, conduct surveillance around the back of the Beresford Avenue premises at the time of the execution of the search warrant. It was their responsibility to ensure that no one escaped out the back of the premises.

[18] Essentially, these two officers testified that, just after hearing a loud “bang” and officers yelling “police” from the front of the premises, they saw a medium-sized black and white shopping bag come flying through the air from the southern portion of the deck at the rear of the premises. The bag had been thrown over the top of the wooden fenced area of the deck, but got caught in the barbed wire fencing connected to the Hydro area. Once the bag was caught in this fencing, the officers noticed some items falling from the bag into the Hydro field area.

[19] Detective Constable Dick immediately accessed the Hydro area and, at 1:10 am, located a “squash ball” size plastic bag containing what appeared to be crack cocaine. He also located a small “marble” size plastic bag containing a stone of what he also thought was crack cocaine. He also located a small digital scale. These items had fallen from the thrown bag.

[20] Constable Poulimenos retrieved the plastic bag itself. He managed to climb up on top of the roof of a small shed attached to the building. From there, he scaled the fence, which was approximately 20 feet high. Ultimately, he was able to seize a black and white plastic Foot Locker shopping bag. It had been hanging in the barbed wire fencing about five meters from the door leading into Wesley Sommers’ bedroom, and just far enough off the deck that it could not be reached from the deck.

[21] Inside the Foot Locker bag, Constable Poulimenos discovered another bag, a white Brown’s Shoe bag with two black straps. This was a better quality bag. Inside the Brown’s Shoe bag, Constable Poulimenos found a clear, glass measuring cup, a silver butter knife, a silver spoon, some other bags, some small loose pieces of a white, rock-like substance (admittedly crack cocaine), a blue ceramic bowl with a white residue, one 9 mm luger bullet covered in a white residue, and a firearm.

[22] The firearm in the bag was a black Hi-Point semi-automatic handgun, Model JHP, manufactured by Haskell. The ejection port was on the right side of the firearm. The firearm was fully loaded with seven bullets in the magazine in the handle, and one additional bullet in the firing chamber. In short, the firearm was ready to fire. These were all .45 calibre S & B “auto” bullets. There was no serial number on the weapon. Indeed, by the numerous scratch marks on the underside of the firearm where the serial number had been located, it appeared that someone had obliterated the serial number of the firearm.

III The Evidence of the Sommers Family

A. The Background – Larry Sommers – The Father.

[23] Larry Sommers, the father of the two Sommers siblings, testified that he had used the upstairs Beresford Avenue apartment for about eight years. His business premises, where he works on a daily basis, were on the ground floor of the building. His father owns the entire building and lives in a ground floor apartment in the building.

[24] Mr. Sommers testified that, for a time, he had lived in the apartment with his children, Caitlin and Wesley. However, since September of 2010, when he began dating a woman from out of town, he had not regularly been in the upstairs premises. He still had some of his clothes and furnishings there, but he did not sleep there overnight on a regular basis. He did, however, still come to work in the same building every day.

[25] Larry Sommers testified that he saw his children every day. They were both in high school at the time and he talked to them about school. They had rules to follow, but Mr. Sommers admitted that he did not monitor their compliance very well. They had considerable independence. Wesley was underage and, accordingly, was not allowed to consume alcohol. Also, there were to be no drugs in the residence. Mr. Sommers explained that he was not “drug-friendly.” He had conversations with his children about staying away from drugs, and he would have been very upset if there had ever been cocaine in the apartment. He was not aware of any drug use by his children. More specifically, he was unaware of their marihuana use. Since their arrest, he has had a “tighter rein” on his children and a more open relationship with them.

[26] Mr. Sommers testified that he had never met Mr. Duhamel, but had learned he was dating his daughter Caitlin about a month before the police arrived. Mr. Sommers did not know much about the accused, and did not know that Mr. Duhamel frequently slept in the Beresford Avenue apartment overnight with his daughter. However, he had noticed the accused leaving the upstairs apartment some mornings.

[27] Larry Sommers testified that he has been a gun owner for over 30 years. He uses his guns for hunting and target practice. He has licenses for all of his guns. He has six handguns. He keeps all of his guns safely and securely stored, in “pristine” condition, in a safe at his cottage home in Gravenhurst. Mr. Sommers testified that he never had a gun at the Beresford Avenue premises. He also testified that all of his guns have serial numbers, as it is illegal to try to remove a serial number, and illegal to own a firearm without a serial number.

[28] Mr. Sommers testified that part of his handgun collection included a .45 calibre, semi-automatic, Springfield Arms, TPR model. This was the only .45 calibre weapon he has ever owned. When shown the firearm seized by the police, Mr. Sommers testified that he had never seen that firearm before. He was not familiar with the Hi-Point description, and had never owned a firearm like that. He observed that the firearm seized by the police had not been taken care of, and must have been owned by someone who never learned about firearms. He testified that, given the poor condition of the firearm, he would never fire such a weapon for fear that it might “blow up in his hand.”

[29] Mr. Sommers testified that he taught his son, Wesley, how to deal with firearms, and how to properly clean firearms after their use.

[30] Mr. Sommers testified that, while his children came to the cottage home in Gravenhurst on many weekends in the summer of 2010, they could never have accessed any of his guns as he never told them the combination for his storage locker or gave them the key. The storage locker for his guns is locked both by a key and a combination lock. The key must be used to unlock the locker before accessing the combination lock.

[31] Mr. Sommers testified that the pellet gun that the police found in the bedroom of the Beresford Avenue premises occupied by his daughter belonged to him. That had been his bedroom when he lived and slept in the apartment. The pellet gun was, essentially, an “air pistol” that he had used for target shooting. It did not fire bullets, but rather shot a .177 calibre lead pellet. He explained that pellet guns like this are not firearms. He kept the pellet gun on the top shelf of the book case. He thought it may have been used at one point to chase away raccoons. Mr. Sommers testified that he did not believe his children knew about the pellet gun. He estimated that the pellet gun had been there for probably a year or two prior to the police search of the premises.

[32] Finally, Mr. Sommers testified that the quantity of cash that the police found in the bed-side table in Caitlin’s bedroom was not his money. Indeed, he testified that he had never kept cash there, or even seen cash there. He explained that, when he gave his children money for their living expenses, he gave them a cheque, not cash.

B. The Testimony of Caitlin Sommers

1. The Background Facts

[33] Caitlin Sommers is now 22 years old. She is engaged in paralegal studies at college. In December of 2010, she was 20 years old and attending high school. She was living in the upstairs apartment unit on Beresford Avenue with her brother Wesley. She had begun living there in the summer of 2010. It was her father’s apartment but, as already mentioned, he was living elsewhere with his girlfriend. Accordingly, Ms. Sommers was living alone with her brother. She slept in her father’s old bedroom at the south end of the apartment, while Wesley slept in the bedroom at the opposite end of the apartment.

[34] Ms. Sommers testified that, as her father still had many of his things in the bedroom, she kept most of her clothes and shoes in the “storage room” next to the bedroom. However, she used a couple of the dresser drawers in the bedroom for some of her things.

[35] Ms. Sommers testified that she started dating Mr. Duhamel in mid-October of 2010. They met through a mutual friend. When they first started dating, they would go out together a couple of times a week. But, as their relationship progressed, Mr. Duhamel began to come over to the Beresford Avenue apartment. Sometimes he would stay for a few hours, and sometimes he would stay with her overnight. Ms. Sommers testified that whenever the accused stayed overnight, he slept with her in her bedroom. He never stayed in her brother’s bedroom. Indeed, according to Ms. Sommers, her boyfriend never had any reason to be her brother’s bedroom.

[36] Ms. Sommers explained that access to the apartment was controlled by a combination padlock, not a key. Mr. Duhamel did not have the combination to this lock, but she would let him into the apartment. Sometimes Mr. Duhamel would be alone in the apartment. Sometimes she would have to leave early in the morning and the accused would just stay in the apartment without her. In such circumstances, he would be able to unlock the apartment and come and go as he pleased.

[37] Ms. Sommers testified that the accused spent a lot of time in the apartment, and had access to the entire unit. Indeed, at one point, a few weeks before they were arrested, Mr. Duhamel brought over a big garbage bag full of clothes. He left most of them in the nearby storage room, but some of his things were elsewhere around the apartment.

[38] Ms. Sommers testified that she was not familiar with firearms. She had no guns, nor any license to possess firearms. She knew that her father kept his guns at their Gravenhurst cottage, but she was not aware of any guns at the Beresford residence. She was unaware of her father’s pellet gun on top of the bookshelf in her bedroom. While she had no idea whether Mr. Duhamel or her brother had any firearms, she did not think there were any guns at the Beresford apartment. She had never seen Mr. Duhamel with a gun, and he had never spoken to her about having a gun.

[39] Ms. Sommers testified that she did not use the bed-side night table in her bedroom. Neither she nor her father kept cash in the drawers of this night table. If she was getting any money from her father, he would leave it for her in the kitchen and tell her about it. She was not sure if Mr. Duhamel was using the night table.

[40] Ms. Sommers testified that she recognized the blue ceramic bowl that was seized by the police from inside the white plastic bag. It was one of a set of such bowls from their kitchen in the Beresford Avenue apartment. She used to cook with those bowls. She had never seen them contain cocaine. Everyone in the apartment had access to the bowls, but she never noticed one missing. She did not, however, recognize the measuring cup.

2. The Night the Police Arrived

[41] Ms. Sommers testified that, on November 30, 2010, she got home from school at approximately 4:00 p.m. She watched television and did her homework. At some point that evening Mr. Duhamel arrived. After dinner, they may have watched television in the living room with her brother Wesley. She did not think that her brother had any friends over that night. Later, Ms. Sommers and Mr. Duhamel retired to her bedroom to watch television. She had a cold and was not feeling well, and they stayed in her bedroom the rest of the evening. Eventually, she dozed off to sleep.

[42] Ms. Sommers testified that later that night she was awakened by the accused. He shook her awake by the arm. He told her he thought the “cops” were there. He had a “plain white bag” in his hand, but was covering much of it with his arms. Mr. Duhamel was then “gone in a flash.” Within a second he was out of the bedroom.

[43] In cross-examination, Ms. Sommers agreed that, in her initial statement to the police following her arrest, she had also described this plastic bag as a “plain white bag.” Ms. Sommers also agreed that, in her evidence at the preliminary inquiry, she had described this bag as a white plastic Foot Locker bag. She conceded, however, that she had only described the bag this way because the police had described it that way “like a million times” at the time of her arrest, and were “flashing it around” the premises all night. She agreed at the preliminary inquiry that all she could personally say was that she had seen Mr. Duhamel holding a “white plastic bag” under his arm that night.

[44] In re-examination at trial, Ms. Sommers confirmed that all she personally remembered was that Mr. Duhamel was holding a “white plastic bag” that night. She did not know it was a Foot Locker bag until after the police had found it.

[45] Ms. Sommers testified that, after Mr. Duhamel woke her, told her about the “cops” being there, and left the room, she got out of bed and went to the window. She saw that, indeed, the police were downstairs at their residence. She went to answer the front door, but before she could get down more than a few stairs, the police came through the front door. She testified that she was “scared” and had no idea why they were at her residence.

[46] Ms. Sommers testified that she was arrested in her bedroom, but was eventually moved into the living room area. She had no opportunity to talk to either her brother Wesley Sommers or Mr. Duhamel, as they were kept in separate rooms. Eventually, she was transported to the police station. She was not able to speak to her brother until they were released from jail.

3. Her Prior Drug Use

[47] Ms. Sommers testified that she no longer uses any drugs, but that in December of 2010 she was using marihuana on a regular “everyday” basis. She would buy $10 or $20 worth of marihuana at a time. Ms. Sommers admitted that she probably smoked marihuana on the night she was arrested.

[48] Ms. Sommers admitted that she owned a digital scale for weighing her marihuana purchases. She could not “eyeball” the amount she was buying and did not want to be short-changed. Ms. Sommers denied, however, that the scale seized by the police at the time of the execution of the search warrant was her digital scale, as hers was different.

[49] Ms. Sommers denied ever using cocaine, and testified that, to her knowledge, her brother never used cocaine. She had no idea if Mr. Duhamel ever used cocaine, but she had never seen him with cocaine or crack cocaine.

4. The Outstanding Criminal Charges

[50] Ms. Sommers confirmed that she is still charged with these same criminal offences. However, she has not yet had a preliminary hearing or a trial, and is not aware of any dates having been set yet in relation to those charges. At the time of her testimony, she thought that her next court appearance was on November 2, 2012.

[51] Ms. Sommers also testified that she was aware of the fact that, under the Charter of Rights, her testimony could not be used against her in her own proceedings. She believed that her own lawyer confirmed this understanding of her rights before her testimony at the preliminary inquiry.

[52] Ms. Sommers testified that, as an accused, she has seen the disclosure of the Crown’s evidence against all three people facing these charges.

C. The Testimony of Wesley Sommers

1. The Background Facts

[53] At the time of his testimony, Wesley Sommers was 19 years of age. When he was arrested in December of 2010, he had just turned 18 years of age a week or two earlier. He was attending high school.

[54] Wesley Sommers testified that he lived with his sister Caitlin at the Beresford Avenue apartment. He slept in the sun room that had been converted to a bedroom at the north end of the apartment. His sister slept in the bedroom at the south end of the apartment.

[55] Mr. Sommers confirmed the testimony of the police officers that the only door out to the upstairs deck was through his bedroom. To get out to the deck, one had to come into his bedroom, and then exit through another door on the west side of his bedroom out to the deck. His bedroom did not have a functioning lock, but the door outside to the deck was locked. According to Mr. Sommers, he accessed the deck once or twice a week, but not with Mr. Duhamel.

[56] Mr. Sommers testified that he got to know Mr. Duhamel when the accused became his sister’s boyfriend in the fall of 2010. They would occasionally talk in the living room, but they did not really “hang out together.” He did not know what the accused did for a living, or whether he went to school. Mr. Sommers testified that the accused was at the apartment often, and frequently stayed overnight with his sister in her bedroom. He had never seen Mr. Duhamel with a firearm or cocaine. Indeed, he thought that Mr. Duhamel as a pretty good boyfriend for his sister.

[57] Mr. Sommers testified that, while his sister was usually in the apartment when the accused was there, the front door of the apartment was usually unlocked.

[58] Mr. Sommers testified that he had fired guns in the past with his father. At the time, he had possessed a license permitting him to do so. He stated, however, that he did not have access to the secure vault in Gravenhurst where his father stored his firearms. He had neither the key nor the combination to the locks on his father’s gun vault.

[59] Mr. Sommers also testified that the pellet gun found on the premises belonged to his father, but that he was unaware of the pellet gun being there until he was advised of its presence subsequent to the police search. He did not know why his father had the pellet gun at the apartment. Mr. Sommers testified that the pellet gun did not look like a real gun, but more like a toy. Mr. Sommers confirmed that his father did not keep any firearms at the Beresford premises. Indeed, as far as he was aware, there were no firearms at the premises at all.

2. The Night the Police Arrived

[60] Mr. Sommers testified that on the evening of November 30, 2010, he and a friend played video games until approximately 11:00 p.m. or 12:00 a.m., when his friend left. Caitlin and Mr. Duhamel were home, in her bedroom. They had exchanged greetings earlier in the evening. According to Mr. Sommers, he went to sleep in his bedroom when his friend left to go home.

[61] Initially, Wesley Sommers testified that he woke up to a noisy commotion in the house. Within two or three seconds of the noise, Mr. Duhamel came into his bedroom. Mr. Sommers was still “fuzzy” as he was waking up. Indeed, Mr. Duhamel may have shaken him to wake up, but he was not sure. The accused told him repeatedly that the “cops” were there.

[62] As he looked up from beneath his blankets, Mr. Sommers saw the accused go outside onto the deck. He recalled hearing the accused “jiggling” the lock on the door handle leading outside. But Mr. Duhamel was only outside very briefly, perhaps five seconds, and then he quickly came back inside.

[63] Subsequently, after reviewing his preliminary inquiry transcript to refresh his memory, Wesley Sommers testified that he recalled that it was Mr. Duhamel that woke him up that night. He only heard the “breaking glass” from the police entry into the premises after Mr. Duhamel entered his bedroom.

[64] Mr. Sommers testified that when Mr. Duhamel came into his room he had a black and white striped plastic bag. He had no idea what was in the bag at the time. He took this bag out to the deck, but when Mr. Duhamel came back inside, he no longer had the bag.

[65] In cross-examination, Mr. Sommers was referred to his preliminary inquiry testimony as to the nature of this plastic bag. In his evidence in-chief at the preliminary inquiry, Mr. Sommers described it as a “white plastic bag.” In cross-examination, however, Mr. Sommers elaborated that it was “obviously” the “same” plastic Foot Locker bag the police officers had shown him on the night of his arrest. He admitted that, the police seemed adamant that night that the bag belonged to Mr. Duhamel and told them that it had contained a firearm and cocaine. Mr. Sommers explained that, he was unable to see the “markings” or “writing” on the bag when it was being held by Mr. Duhamel as he obscured the bag with his body, and the bag was “mostly covered.” Accordingly, it looked like it was “just plain white” from the “back side.” Mr. Sommers testified, however, that he believed that the bag he saw Mr. Duhamel holding and the bag the police showed him later that night were the “same” bags. Indeed, he recognized this plastic bag as one that he had received when he had shopped at Foot Locker approximately a week earlier. Mr. Sommers had taken his new shoes from the bag, and stored the bag in the kitchen area where they kept all of their bags.[^1]

[66] In re-examination, Mr. Sommers maintained that he was sure that the plastic bag he saw in the possession of Mr. Duhamel in his bedroom was a black and white striped plastic bag. He indicated that, from his experience shopping, he knew that Foot Locker bags were plain white on the back, but were black and white on the front with the Foot Locker logo. He testified that he was sure that the bag he saw was black and white as he had been thinking about it “24/7.”

[67] Mr. Sommers testified that, after the accused came back inside his room, without the bag, the police entered his room. They had flashlights and shone them into his face. He “dove” under the covers. At that point, he thought Mr. Duhamel was in front of his television on the floor. At the preliminary inquiry, Mr. Sommers testified that it had appeared to him that, Mr. Duhamel had looked out the bedroom door, had seen the police officers coming with their flashlights, and had turned around and moved back into the bedroom.

[68] Mr. Sommers testified that Mr. Duhamel did not say anything to him when the police came into his room that night. Police officers remained between them the rest of the night. Mr. Sommers testified that he was shocked and surprised to see the police that night. Once they were under arrest, the police took Mr. Sommers and the accused out into the living room area. Later, a police officer came into the room with a black and white striped plastic Foot Locker bag and asked them questions about the bag. The police indicated what the bag had contained and they seemed “pretty adamant” that the bag belonged to the accused. Later, they were all transported to the 14 Division police station.

3. His Drug Use

[69] Mr. Sommers admitted that, at the time of his arrest, he frequently smoked marihuana. His sister also smoked marihuana and, occasionally, they would smoke together. He got his marihuana from school. He admitted that he recalled smoking marihuana the night he was arrested, at approximately 6:00-7:00 p.m. He admitted that he still smoked marihuana occasionally.

[70] Mr. Sommers denied ever using cocaine, and he had no idea how cocaine got into his house that night. He testified that he knew that his sister Caitlin did not use cocaine. He was close with his sister and “guaranteed” that he would have known if she was using cocaine.

4. The Outstanding Criminal Charges

[71] Mr. Sommers testified that both he and his sister remained charged with these offences, although he has never had a preliminary inquiry. He agreed that being arrested for these offences was a big event and was confusing for him. He had never before been in trouble with the law.

[72] Mr. Sommers testified that he was still on a curfew which prevented him from travelling and doing things with his friends. He agreed that this had caused him inconvenience in his everyday life and a great deal of ongoing stress as the charges had been hanging over his head for close to two years. He indicated he was aware of the gravity of the alleged offences and knew that, if convicted, he could face several years in jail. He admitted that, if the Crown were to withdraw the charges against him, it would be a “huge relief.”

[73] Mr. Sommers agreed that he had declined to provide the police with a statement at the time of his arrest and first provided his evidence in this matter, under subpoena, at the preliminary inquiry. There, like at trial, he had no choice but to testify.

[74] He also admitted that he had reviewed the disclosure materials from the Crown with his lawyer. He testified that he has not been promised anything in return for his testimony.

[75] Mr. Sommers testified that he was not really aware of whether his testimony could be used against him later at his own trial. He testified that, as far as he was aware, he had to answer the questions posed to him, and to answer the questions honestly. Mr. Sommers testified that, if he had to provide evidence that might be used later to convict him, he would. If he had been the person that threw the plastic bag containing the firearm and cocaine from the deck, he would have admitted it. But he knows that neither he nor his sister did it.

[76] Mr. Sommers testified that he had been warned about talking about this case with his sister, so they had really not discussed the case “too much.” They had been driven back to the police station separately after their arrest and were placed in separate cells. He admitted, however, that he had spoken to his parents when he was released from custody. His sister was not there at the time. His parents apparently spoke to each of them individually after their released on December 2, 2010. Mr. Sommers testified that he was not privy to his sister’s statement to the police. If he has been given a copy, he does not remember it.

5. His Denial

[77] The defence contends that Wesley Sommers was actually the person who threw the plastic bag of contraband from the deck. The essence of this theory was put to Mr. Sommers in cross-examination by defence counsel, but Mr. Sommers unequivocally denied ever going out onto the deck that night, or throwing away the plastic bag of contraband.

[78] Mr. Sommers agreed that it had been “pouring rain” outside on the evening the police arrived at the Beresford apartment. He also agreed that his feet were visibly wet that evening, and that a police officer had asked him about his wet feet. Mr. Sommers explained that he had a medical condition that caused excessive sweating, and that he had explained this to the police on the night he was arrested. When questioned on this issue by defence counsel, Mr. Sommers held up both of his hands and observed that, even right then, his hands were “sheening.” When Mr. Sommers held up his hands in this way, his hands did appear shiny.[^2] Mr. Sommers mentioned that, at one point, there had been discussions of him getting “botox” injections to try to stop him from sweating.

IV The Positions of the Parties

A. The Non-Contentious Issues

[79] In their closing arguments, the parties accepted that, in the early morning hours of December 1, 2010, as the police were forcibly entering the Beresford Avenue premises, someone threw the white and black plastic Foot Locker shopping bag from the upstairs deck. Indeed, two police officers independently saw the bag being thrown from that area.

[80] The parties also appeared to accept that whoever threw the plastic bag from the upstairs deck is guilty of the various firearms and drug-related offences. Given the contents of the bag, and the fact that it was quickly jettisoned from the upstairs deck just as the team of police were forcibly entering the premises, it is apparent that whoever threw the plastic bag away did so because they did not want to be caught with the contraband contents of the bag in their possession.

[81] The parties also appeared to accept that the plastic bag could only have been thrown from the upstairs deck by either Wesley Sommers or Coady Duhamel. They accept that it could not have been thrown by Caitlin Sommers. This only makes sense given that, within seconds of the bag being thrown from the upstairs deck, Wesley Sommers and Coady Duhamel were discovered by the police in the bedroom adjoining the deck, the only room in the apartment with a door accessing the deck, while Caitlin Sommers was found in her bedroom at the opposite end of the apartment.

B. The Position of the Crown

[82] On the key factual issue in the case, the Crown argued that it had been established beyond a reasonable doubt that it was, in fact, Mr. Duhamel who had thrown the plastic Foot Locker bag of contraband from the upstairs deck.

[83] The Crown, Ms. Edward, argued that Wesley and Caitlin Sommers were credible witnesses whose evidence was mutually corroborative, especially given that they had been instructed not to discuss their evidence and had not collaborated on their testimony. Their testimony was also corroborated by the evidence of the police officers.

[84] The Crown argued that while there might have been an objective motivation for the Sommers siblings to fabricate their evidence against the accused, as they both face the same outstanding criminal charges as Mr. Duhamel, they both were, in fact, forthright and honest witnesses. They had no choice but to testify as they had been subpoenaed by the Crown, but they were truthful in their evidence. The Crown noted that neither of the Sommers siblings had any criminal record or previous involvement with the law. The Crown contended that, by their demeanour and the content of their evidence, they were fair and candid witnesses, admitting their own marihuana use, and agreeing that neither had ever before seen Mr. Duhamel with cocaine or firearms. They were also clear that they had been promised nothing for their testimony.

C. The Position of the Accused

[85] Defence counsel argued, on the other hand, that the Crown had failed to establish the alleged guilt of the accused beyond a reasonable doubt. While Mr. Duhamel was admittedly found by the police in the bedroom with Wesley Sommers, the defence argued that it was apparent that he had only gone there to advise Mr. Sommers of the arrival of the police, just as he had advised Caitlin Sommers moments earlier that the police were at the residence. Defence counsel argued that the Crown’s case effectively turned upon the credibility of Wesley Sommers.

[86] Defence counsel, Mr. Herscovitch, emphasized how dangerous it would be to rely upon the testimony of either of the Sommers siblings, noting that, among other things: (1) they had been effectively deprived of their right to remain silent and forced to testify by way of subpoena; (2) by means of the disclosure process, they had been provided with detailed information about the police investigation; (3) at the time of their arrest, their evidence was tainted by virtue of the fact that the police told them of the contents of the Foot Locker bag and alleged that it belonged to Mr. Duhamel; (4) they both were charged with the same offences, which had been hanging over their heads for two years, and they must have known that it was in their own personal interests to incriminate Mr. Duhamel, so that the charges against them would finally be dropped; and (5) they were not clearly advised by the police or the Crown that their testimony was not subsequently admissible against them, and so would likely be trying to protect themselves in their evidence.[^3] These circumstances, defence counsel argued, created a “perfect model of an unreliable witness.”

[87] Moreover, defence counsel argued that, given the frailty of their testimony, and the various inconsistencies in their evidence, it would be dangerous and wrong to use the testimony of one of the Sommers siblings to corroborate the evidence of the other.

[88] Further, defence counsel argued that the evidence suggested that it was Wesley Sommers who had thrown the plastic bag from the upstairs deck. In this regard, counsel noted that: (1) there was evidence that Wesley Sommers had wet feet, which could have been from the rain on the deck when he went outside to throw away the plastic bag; (2) when the police entered the bedroom, it appeared that Wesley Sommers was trying to hide himself under the covers; (3) the blue ceramic bowl with the cocaine residue that was found inside the plastic Foot Locker bag belonged to the Sommers, and the remainder of their set of these bowls was in their kitchen; (4) Wesley Sommers was personally knowledgeable about firearms, and his personal interest in firearms made him the more likely candidate to possess the illegal firearm found in the plastic bag; and (5) Wesley Sommers is the person who is more likely to want to throw away the contraband articles given that he was the one who resided in the Beresford Avenue residence.

V Analysis

A. The Presumption of Innocence – The Burden of Proof on the Crown

[89] In this case, like all criminal cases with very few exceptions, the starting point for any analysis is the presumption of innocence and the burden of proof upon the Crown. According to the constitutional guarantee in s. 11(d) of the Charter of Rights, Mr. Duhamel is presumed to be innocent. That presumption of innocence remains with him throughout the trial, from beginning to end, and unless and until the Crown establishes his guilt with respect to any and all of the alleged offences beyond a reasonable doubt. That is a heavy burden of proof and it never shifts. The accused has no obligation whatsoever to establish his innocence.

[90] During the course of her closing arguments, the Crown observed that the accused had not given evidence in this case. In such circumstances it is important to appreciate the very limited significance of this fact.

[91] Recently, in R. v. Prokofiew, 2012 SCC 49, the Supreme Court of Canada re-affirmed the important principle that the silence of the accused in a criminal trial is “not evidence,” and “cannot be used as a makeweight for the Crown” in the determination of whether the Crown has proven its allegations beyond a reasonable doubt. In other words, as Moldaver J. stated, in delivering the majority judgment in R. v. Prokofiew, at para. 4, 9-11, if the trier of fact, after considering the whole of the evidence, is not satisfied that the Crown has proven the charge against the accused beyond a reasonable doubt, the trier of fact “cannot look to the accused’s silence to remove that doubt and give the Crown’s case the boost it needs to push it over the line.”

[92] At the same time, however, in assessing the credibility and reliability of the evidence called by the Crown, the trier of fact is entitled to take into account, among other things, the fact that the evidence stands uncontradicted. Of course, this does not mean that the trier of fact must accept the uncontradicted evidence. It means only that there is no other evidence to consider. See also: R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at para. 72, 76-77.

B. Issues of Credibility and Findings of Fact – The Sommers Siblings

1. Their Testimony Must be Approached With Great Caution

[93] I entirely agree with Mr. Herscovitch, that the evidence of Wesley and Caitlin Sommers must be approached with tremendous caution for all of the reasons he has so persuasively outlined. Without repeating all of those reasons again, it will suffice to observe that calling these two individuals as Crown witnesses, while they are still charged with the same criminal offences as Mr. Duhamel, places them and their testimony in a very precarious situation. In such circumstances, these witnesses have an obvious self-interest and familial-interest in providing testimony that exculpates themselves and incriminates Mr. Duhamel. Moreover, they have been provided, by the police and the Crown, with the information to permit them to do precisely that. While the Crown has made no express promises to them about what may become of their own pending criminal charges if Mr. Duhamel is convicted, the absence of such a promise does not significantly diminish the inherent risk that the Sommers siblings will testify as if their incriminating testimony against Mr. Duhamel had, in fact, been “purchased” in this way by the Crown. See: R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811.

[94] This does not mean that their testimony cannot be accepted and must be rejected. But it does mean that their testimony must be examined with the greatest scrutiny and the utmost caution. Prudence and common sense would certainly dictate that, given the inherent circumstantial frailties of their testimony, the evidence of both of these key witnesses should be very carefully reviewed and examined to determine the extent, if any, their testimony is corroborated or confirmed by other evidence. A trier of fact may, however, still find an accused guilty in the absence of any support or corroboration for such testimony, provided the clear danger of doing so is fully understood, and provided the trier of fact is satisfied beyond a reasonable doubt that the witnesses are telling the truth. See: R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at para. 17-19; R. v. Sauvé and Trudel (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont.C.A.) at para. 70-100; Leave denied: [2005] 1 S.C.R. xv; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 31-48.

[95] I must say that it is difficult to understand why the Crown has left these criminal charges hanging over the heads of Caitlin and Wesley Sommers all this time without taking any steps to either move the cases against them forward or withdrawing the charges against them. In her closing submissions, Ms. Edward accepted that, according to the evidence, it was unlikely that more than one person was involved in the commission of these crimes. At the same time, she argued that I ought to accept as honest and truthful the testimony of the two Sommers siblings, who testified that they had no knowledge of any firearm or cocaine on their premises, and who implicated Mr. Duhamel in these alleged criminal offences. In such circumstances, it is hard to understand how the Crown can still have a “reasonable prospect of conviction” in relation to the outstanding criminal charges against the Sommers siblings. Of course, in the absence of such a reasonable prospect of conviction, the Crown is obliged, by its own policy, to terminate the proceedings against them.[^4] By failing to do so, the Crown appears to have undermined the objective reliability of its own witnesses.

[96] Nevertheless, having approached the testimony of Wesley and Caitlin Sommers with this very high degree of caution, and having carefully assessed the details of their testimony, as viewed against all of the other evidence in this case, I accept their testimony for all of the following reasons – in no particular order.

2. Honest and Truthful Witnesses

[97] First, both Wesley and Caitlin Sommers struck me as honest and truthful witnesses. Both of them are young people who were attending high school at the time of the events in question. Neither of them have any criminal record or any previous involvement with the police. They both candidly admitted that, at the time, they were regular users of marihuana. I watched them very carefully as they gave their testimony. I observed them to be articulate, thoughtful and intelligent. They were openly responsive to questions both in examination-in-chief and in cross-examination. They were not inclined to exaggeration, and did not go out of their way to provide evidence incriminating Mr. Duhamel. Indeed, quite to the contrary, both Caitlin and Wesley Sommers fairly indicated that Mr. Duhamel had never behaved in any way that would suggest he was involved with cocaine or an illegal firearm. In terms of their earlier personal relationships, Caitlin Sommers was, of course, Mr. Duhamel’s girlfriend at the time. She obviously thought highly of him. Wesley Sommers candidly admitted that he thought that Mr. Duhamel was a good boyfriend for his sister.

[98] I appreciate that untruthful witnesses can often appear very credible and trustworthy, and one must be careful not to place much weight on the observed demeanour of witnesses. However, given the young age of the Sommers siblings and their obvious nervous inexperience in giving evidence in court, one might have anticipated that, if they were in fact being untruthful, and falsely implicating Mr. Duhamel to save themselves, there might have been some hint of that in their evidence. There was not. Instead, they both struck me as very credible and honest witnesses who were telling the truth.

3. Logically Consistent and Supported by the Police Evidence

[99] Second, in my view, the testimony of Wesley and Caitlin Sommers has a logical consistency that meshes cohesively and in a common sense way with all of the police evidence.

[100] As already mentioned, Caitlin Sommers testified, essentially, that upon learning of the arrival of the police, Mr. Duhamel woke her up, told her of the impending raid by the police, and then dashed out of her bedroom with the plastic bag. Clearly, he was quickly headed to her brother’s room. Wesley Sommers similarly testified, essentially, that Mr. Duhamel ran into his room, told him about the arrival of the “cops” and quickly went out onto the deck and disposed of the plastic bag he was carrying. As subsequent events revealed, this plastic bag was, in fact, the plastic Foot Locker bag with the contraband. When the police burst into the premises, they found Mr. Sommers and Mr. Duhamel in the bedroom adjoining the deck.

[101] If Mr. Duhamel was the person with the plastic bag of contraband that night, his actions in trying to quickly jettison the contraband make perfect sense. Fearing that the police would catch him with the firearm, cocaine and other drug paraphernalia, he wanted to quickly distance himself from his contraband.

[102] If Mr. Duhamel was not the person with the plastic bag that night, however, Mr. Duhamel’s actions that night make little sense. If he had nothing to hide from the police, why did he flee from Caitlin Sommers’ bedroom upon discovering the police outside the premises? One might have thought he would have simply remained in the bedroom with his girlfriend to await the imminent arrival of the police.

[103] Even more difficult to understand, however, is the reason Mr. Duhamel went to Wesley Sommers’ bedroom at the opposite end of the apartment. Unless he was headed to the deck to dispose of the contraband off the upstairs deck, he had no reason to be in Wesley Sommers’ bedroom in the early hours of the morning. According to the evidence, Mr. Duhamel was clearly sleeping with Caitlin Sommers in her bedroom. That was where he had been keeping his things. He never slept in Wesley Sommers’ room, nor did he keep any of his clothing or other personal effects in Wesley Sommers’ bedroom. As Caitlin Sommers testified, Mr. Duhamel simply had no reason to be in her brother’s bedroom that night. I do not accept the speculative suggestion that perhaps Mr. Duhamel went to Wesley Sommers’ bedroom that night to tell him about the arrival of the police.

[104] It is also important to recall the respective physical positions of the two young men when the police entered Wesley Sommers’ bedroom. As already noted, the police saw Wesley Sommers still in bed, sitting-up against the north wall, and entirely under the covers. However, Mr. Duhamel was sitting on the middle of the bed, on top of the sheets, with his legs hanging down over the side of the bed. From their respective physical positions in the bedroom, it would seem much more likely that it was Mr. Duhamel who had just been outside throwing the plastic bag off the deck.

4. Testimony Supported by the Location of the Drug-Money

[105] Third, the testimony of the Sommers siblings is supported by the location of the drug-money. When the police searched the Beresford Avenue premises, they found $2,055 in the bed-side table in the bedroom occupied by Caitlin Sommers and Mr. Duhmel. On the basis of all of the evidence in this case, the inference is irresistible that this money belonged to whoever it was from the Beresford premises that was involved in the cocaine business. It was the proceeds of that crime. In other words, this significant quantity of money was tied directly to the plastic bag of contraband.

[106] This location of the drug-money supports the argument that it was Mr. Duhamel who threw the plastic bag of contraband over the fence of the upstairs deck.

[107] While the drug money was found in the bedroom occupied by Ms. Sommers, it is clear that she could not have thrown the plastic bag of contraband from the deck. The defence did not suggest otherwise. After all, she was discovered by the police in her own bedroom at the opposite end of the premises. Further she testified that she did not use the drawers of the bed-side table and that the money was not hers. Her father, Larry Sommers, also testified that this money did not belong to him.

[108] The only other person with a connection to that bedroom is Mr. Duhamel. He was the only other person who slept in the bedroom where the drug-money was discovered. As Mr. Duhamel always slept with Caitlin Sommers when he stayed overnight, it would make sense for him to want to store his drug-money in the bed-side table right next to where he slept. On the other hand, if the drug-money belonged to Wesley Sommers, it is hard to understand why he would decide to store his $2,055 in a bed-side table in a bedroom at the opposite end of the apartment where it would be immediately accessible to both Mr. Duhamel and his sister.

[109] Recall that whoever was in the drug business, that person apparently needed a loaded semi-automatic firearm to securely conduct his business. Presumably such a person would want to maintain the financial proceeds of their illicit drug trade relatively close at hand for security reasons. If Wesley Sommers was the person in the drug trade, his curious decision to leave his drug-money in his sister’s bedroom where Mr. Duhamel regularly sleeps would be a striking and obvious breach of wise financial security.

[110] As I have indicated, in my view, the location of the drug-money supports the testimony of the Sommers siblings that it was Mr. Duhamel who threw the plastic bag of contraband from the deck.

5. The Testimony of the Sommers Siblings is Mutually Supportive

[111] Fourth, I find that the testimony of the two Sommers siblings is mutually supportive. There is no legal rule which prevents such witnesses from corroborating each other. Indeed, the appellate court authorities are clear that, in the absence of collaboration or collusion between them, such witnesses may provide mutual support for their respective testimony. See: R. v. Winmill (1999), 1999 CanLII 1353 (ON CA), 42 O.R. (3d) 582 (C.A.), at para. 95-121; R. v. Pollock (2004), 2004 CanLII 16082 (ON CA), 187 C.C.C. (3d) 213 (Ont.C.A.), at para. 157-162; R. v. Naicker (2007), 2007 BCCA 608, 229 C.C.C. (3d) 187 (B.C.C.A.) at para. 34; R. v. Illes (2007), 2007 BCCA 125, 217 C.C.C. (3d) 529 (B.C.C.A.) at para. 33-37; Reversed on other grounds: 2008 SCC 57, [2008] 3 S.C.R. 134; R. v. Roks (2011), 2011 ONCA 526, 274 C.C.C. (3d) 1 (Ont.C.A.) at para. 63-71.

[112] Moreover, I am satisfied that there was no collaboration or collusion between Wesley and Caitlin Sommers with respect to their testimony. I accept their evidence that they had earlier been told not to discuss the details of their evidence, and that they had, for the most part, followed this instruction. In any event, I am satisfied that, whatever brief, general discussions they may have had about the case, they did not, in effect, intentionally put their heads together in collaboration or collusion with respect to their testimony in order to falsely implicate Mr. Duhamel.

[113] It is only fair to observe, however, that given the circumstances surrounding their arrest, and their mutual involvement as accused in the criminal justice system, they certainly were apprised of most, if not all aspects of the police investigation, and they may well have been put in legal possession of each other’s testimony through the disclosure process. As Mr. Herescovitch has correctly argued, as a matter of common sense, this must significantly reduce the weight of the corroborative effect that their testimony might otherwise have had.

[114] Nevertheless, I am still satisfied that there are certain aspects of the testimony of the Sommers siblings that provide some mutual confirmation and support of their testimony. Most obviously in this regard, both Caitlin and Wesley Sommers testified that, just before the police forcibly entered their Beresford Avenue residence, it was Mr. Duhamel who was in possession of the plastic bag that, ultimately, was found to contain the contraband after it was quickly jettisoned from the upstairs deck of the premises.

[115] Their description of the plastic bag was not identical. Caitlin Sommers described it simply as a “plain white plastic bag,” noting that much of it was covered by Mr. Duhamel’s arms. She consistently described the bag in this way – in her statement to the police upon her arrest, in her preliminary inquiry testimony, and in her trial testimony. She candidly admitted, when she described it as a Foot Locker bag at the preliminary inquiry, that she had only described it that way as a result of what the police had said and done that night. In his trial evidence Wesley Sommers testified that it was a black and white striped plastic shopping bag that the police had retrieved. He recognized it as a Foot Locker bag.

[116] What is important, however, is not the exact description of the bag provided by the Sommers siblings. After all, the police did retrieve two different bags that night. There was a white bag inside the black and white Foot Locker bag. What is important is that both Caitlin and Wesley Sommers saw the accused, just as the police were about to burst into their premises, in possession of the plastic bag(s) that were thrown from the deck and, ultimately, were found to contain the contraband. In this key respect, I am satisfied that the testimony of the Sommers siblings is mutually supportive.

[117] Indeed, the fact that the Sommers siblings described this plastic bag somewhat differently supports, in my view, the honesty and sincerity of their testimony. Had they been fabricating their evidence to incriminate Mr. Duhamel, based on their personal knowledge of the case (from the night of their arrest, any potential discussions they may have had about the case, or from the disclosure from the Crown), one might well have expected to see a greater similarity in their evidence on this point. After all, both Caitlin and Wesley Sommers knew that the bag seized by the police that night was, in fact, a black and white striped plastic Foot Locker shopping bag. If they were fabricating a story to wrongly implicate Mr. Duhamel, it would have been easy enough for them to have described the bag in precisely that fashion.

[118] I appreciate that, as Fish J. stated, in delivering the judgment of the majority of the Supreme Court of Canada in R. v. Khela, at para. 39, as a matter of common sense, not all generally supportive evidence is capable of confirming the testimony of an impugned witness. The supportive evidence must be material and independent. To be material, the evidence need not implicate the accused, but it must give comfort to the trier of fact that the impugned witness can be trusted in their claim the accused is the guilty party. In order to be independent, the supportive evidence cannot be “tainted” by its connection to the impugned witness. See also: R. v. Sanderson (2003), 2003 MBCA 109, 180 C.C.C. (3d) 53 (Man.C.A.) at para. 45-64.

[119] In my view, the fact that the Sommers siblings each testified that they saw Mr. Duhamel with a plastic bag in different bedrooms of the apartment just seconds before the police burst into their apartment meets this modern, common sense approach to corroborative evidence. The evidence clearly meets the materiality requirement. Indeed, their testimony actually incriminates the accused. The evidence meets the independence requirement as it is not “tainted” by its connection to the impugned witness. There is no doubt that others have provided the Sommers siblings with information and disclosure with respect to the nature of the police investigation in this case. While this certainly impacts upon the overall weight of the evidence, it does not “taint” the evidence as the witnesses themselves have not engaged in “collaboration or collusion amongst themselves. See: R. v. Roks, at para. 76.

6. Their Testimony Explains Other Aspects of the Case

[120] Fifth, there are no aspects of the evidence that are left unexplained or inconsistent with the evidence of Wesley and Caitlin Sommers. Indeed, their evidence explains and supports the other significant evidentiary aspects of the case. For example:

• According to their testimony, Mr. Duhamel had liberal access to the Beresford premises, and could easily have brought the illegal firearm and illicit cocaine into the residence in a variety of ways and on a variety of occasions without anyone noticing. Further, the firearm and drugs would have been easy to hide somewhere on the premises.
• On the evidence of the Sommers siblings, Mr. Duhamel had regular access to the kitchen in the Beresford residence and could easily have selected one of the set of blue ceramic bowls for his drug preparations. Given that the Sommers had a complete set of these bowls, it was unlikely that one of them would be missed by anyone. Even if someone noticed that the set was incomplete, it is hardly something that would have been seen as an issue of any consequence.
• If Mr. Duhamel was involved in the illegal drug trade, the Beresford Avenue premises were an ideal location from which to operate. He had liberal access to the premises and could largely come and go as he pleased. The residence was inhabited only by two teenagers in high school, who were left virtually without parental presence or supervision. As Mr. Duhamel did not reside at the premises, if there were any problems with the police, he might well be able to avoid being implicated in any criminal activity.

C. Applying the Burden of Proof - Beyond a Reasonable Doubt

[121] Accordingly, for these reasons, I accept as honest and truthful the testimony of Caitlin and Wesley Sommers. Notwithstanding the clear and obvious dangers inherent in their testimony given the various circumstances and factors outlined by defence counsel, and the tremendous caution that must be employed in the consideration of their evidence, I accept the key testimony of Wesley and Caitlin Sommers.

[122] Moreover, in all of the circumstances of this case, their testimony, combined with the evidence of their father and all of the police officers, satisfies me beyond a reasonable doubt that it was, in fact, Mr. Duhamel who threw the plastic Foot Locker bag containing the contraband off the deck area of the Beresford Avenue premises. Accordingly, I am satisfied beyond a reasonable doubt that it was Mr. Duhamel that was, in fact, in possession of the firearm, the cocaine, and the drug paraphernalia contained in the bag.

[123] I reject the defence suggestion that Wesley Sommers was the person who threw the bag off the upstairs deck. When the suggestion was put to him directly, he unequivocally denied it, and I accept his evidence in this regard. Both his position in the bed and his conduct on the evening in question strike me as that of a young high school student shocked and scared by the wholly unexpected appearance of an armed team of ETF officers in his bedroom in the middle of the night. Hiding under the covers and sweating is what might well be expected of a young man in those unusual circumstances, especially for someone who sweats excessively naturally. In any event, in all of the circumstances of this case, I accept as truthful his testimony that he was not the one that threw the plastic bag of contraband off the deck. The defence suggestion to the contrary, that Mr. Sommers was actually the guilty party, does not cause me to have any reasonable doubt as to the guilt of the accused.

[124] To the extent that any suggestion was impliedly advanced that the firearm that was recovered from the plastic Foot Locker bag may have come from the collection of Mr. Larry Sommers, I reject that argument. In this regard I accept the testimony of Mr. Sommers Sr. that he had licenses for all of his guns, that he kept them securely stored in a safe in his Gravenhurst residence, and that his guns were all in pristine condition with serial numbers. The firearm in the present case was obviously in poor condition and was missing a serial number. Moreover, when shown the firearm seized by the police in the present case, Larry Sommers testified that he had never owned that firearm, and persuasively explained why he could confidently make that assertion. As I have indicated, I accept his evidence in this regard.

D. The Specific Charges Against the Accused – The Verdict

1. Introduction

[125] Having concluded that I am satisfied beyond a reasonable doubt that it was, in fact, Mr. Duhamel who threw the bag of contraband off the deck of the Beresford Avenue premises just before the police forcibly entered the apartment in the early morning hours of December 1, 2010, it still remains important to assess how that factual conclusion impacts upon the appropriate verdicts in this case given the specific charges against the accused.

[126] There were two indictments filed against the accused in this case, namely, a provincial “firearm indictment” and a federal “drug-related” indictment. I propose to consider each count of these indictments individually in reaching the appropriate verdicts in this case.

2. Unlicenced Possession of a Firearm

[127] The first two counts of the “firearm indictment” charge the accused with possession of a firearm while knowing that he was not the holder of a license for the firearm, contrary to ss. 91(1) and 92(1) of the Criminal Code, R.S.C., 1985, chap. C-47.

[128] I have found that Mr. Duhamel was in possession of this firearm. The defence has formally admitted that the accused never had a licence of any kind for this firearm. Accordingly, I am satisfied beyond a reasonable doubt that the accused is guilty of both of these counts.

3. Possession of Loaded Prohibited Firearm

[129] Count three of the “firearm indictment” charges the accused with possession of a “loaded prohibited firearm” together with readily accessible ammunition, while not the holder of any authorization, license or registration certificate for the firearm, contrary to s. 95(1) of the Criminal Code.

[130] Again, I have concluded that Mr. Duhamel was in possession of this firearm, and the defence has formally admitted that Mr. Duhamel has never had a licence for the firearm. However, the Certificate of Analysis of Tony Dwyer of the Toronto Police Service clearly certifies that this firearm is “not a prohibited firearm,” but is rather a “restricted firearm.” In addition, the parties have drafted admissions that state, in part, that the gun seized by the police in this case is a “restricted firearm” within the meaning of s. 84 of the Criminal Code.

[131] There is no question that, if the Crown had drafted the indictment more broadly to allege that the accused was in possession of “a loaded prohibited firearm or restricted firearm,” thereby simply tracking the language used in s. 95(1) to create the offence, Mr. Duhamel could properly be found guilty on the evidence in this case. As Blair J.A. stated in R. v. Williams (2009), 2009 ONCA 342, 95 O.R. (3d) 660 (C.A.), at para. 16, this portion of s. 95(1) of the Code “creates only one offence, the gravamen of which is the possession of a loaded firearm,” and it matters not whether the firearm is “prohibited” or “restricted.” The offence is the same in any event and the required mens rea “is simply knowledge by the offender that he or she is in possession of a firearm … that is loaded.”

[132] In this case, however, the indictment alleged only that the accused unlawfully possessed a “loaded prohibited firearm,” and the evidence unequivocally established that the firearm the accused possessed was not a prohibited firearm. Accordingly, on the charge as specifically drafted, the accused could not properly be found guilty. See: R. v. Montgomery (2009), 2009 BCCA 41, 241 C.C.C. (3d) 469 (B.C.C.A.) at para. 1-4, 45-70.

[133] At no point during the course of the trial proceedings, however, did either party raise or address this issue. The Crown did not seek to amend the indictment to conform to the evidence, and the accused did not contend that he should be acquitted (either at the close of the Crown’s case, or at the conclusion of the entire case) because the evidence did not establish that the accused was in possession of a prohibited firearm. Indeed, this entire case was tried by the parties, start to finish, solely on the question of whether the Crown had established beyond a reasonable doubt that it was the accused who was in possession of the firearm in question. It was only during my own deliberations at the conclusion of the case that I recognized this issue. In these circumstances, given that the parties had not had an opportunity to comment on this issue, I sought their further assistance in relation to this issue.

[134] In her submissions on this issue, the Crown acknowledged the drafting error in the indictment, but sought an amendment of this count, pursuant to s. 601(2) of the Criminal Code, to conform with the evidence, to either: (1) charge the accused with the unlawful possession of a “loaded prohibited or restricted firearm;” or (2) charge the accused with simply the unlawful possession of a “loaded restricted firearm.” The Crown argued that such an amendment would cause no prejudice to the accused given that the only issue at trial had been whether it was the accused who was in possession, and no issue had been raised as to whether the firearm was a prohibited or restricted firearm.

[135] Counsel for the accused opposed this suggested amendment. He argued that, if this amendment of the indictment was permitted the accused would be prejudiced. He could not, however, with respect, persuasively articulate what that prejudice might be. In any event, I reject this submission. In my view, this is an appropriate case in which to amend the indictment. More specifically, the third count of the “firearms” indictment shall be amended so as to charge the accused with the unlawful possession of a “loaded prohibited or restricted firearm.” In my opinion such an amendment is fair and appropriate for the following reasons:

• The amendment does not change the nature of the offence alleged against the accused, but rather only enlarges the allegation with respect to the legal character of the firearm allegedly possessed by the accused.
• The amendment does not in any way change the jeopardy faced by the accused in terms of the potential punishment for the offence. With the amendment, the accused still faces a charge contrary to s. 95(1) of the Criminal Code.
• The parties agree that, in light of the decision in R. v. Williams, at para. 16, the law is clear that the offence created by s. 95(1) of the Code is, essentially, one of being in unlawful possession of a firearm that is loaded, and that it matters not whether the firearm is prohibited or restricted.
• I can discern no prejudice at all, let alone any irremediable prejudice, that the accused might suffer as a result of this amendment. As I have indicated, the only issue raised at trial was whether the accused was the person in possession of the firearm in question. The accused never raised any issue as to the legal character of that firearm and defended this case as if that issue was of no consequence. See: R. v. Montgomery, at para. 66-69; R. v. Montague, 2010 ONCA 141, [2010] O.J. No. 710 (C.A.) at para. 42-43; Mr. Justice E.G. Ewaschuk, Criminal Pleadings & Practice in Canada (2nded., 2012), vol. 1, § 9:12090 et seq.
• To refuse the proposed amendment would gift the accused with an acquittal based upon the most technical of grounds, based upon an obvious inadvertent drafting error on the part of the Crown.

[136] Having made the amendment to the indictment sought by the Crown, I am satisfied beyond a reasonable doubt that Mr. Duhamel is guilty of this third count of the “firearm indictment.”

4. Careless Storage of Firearm

[137] Count four of the “firearm indictment” charges the accused with “careless storage” of a firearm, contrary to s. 86(1) of the Code.

[138] While there was no direct evidence as to where the firearm in question was “stored” by the accused on the Beresford premises, defence counsel conceded that keeping the firearm in plastic bags in any location on the premises constituted careless storage of the firearm. I agree, and I am satisfied beyond a reasonable doubt as to the guilt of the accused on this count.

5. Possession of Firearm With Missing Serial Number

[139] Count five of the “firearm indictment” charges the accused with possession of a firearm knowing that the serial number on it has been removed, contrary to s. 108(1)(b) of the Code.

[140] The Certificate of Analysis of the firearms expert, states that the “serial number on the firearm was removed.” When the firearm was manufactured, a serial number was placed on the underside of the firearm just in front of the trigger guard. That serial number is no longer there. It appears to have been scratched off the firearm.

[141] Pursuant to the presumption outlined in s. 108(4) of the Criminal Code, where this offence is charged, and the Crown establishes, as it has in this case, that the serial number of the firearm has been “wholly or partially obliterated,” the possession of the firearm by the accused is proof, in the absence of evidence to the contrary, that the accused possessed the firearm knowing that the serial number on it has been altered, defaced or removed.

[142] I am satisfied beyond a reasonable doubt that the original serial number has been removed and that the accused was in possession of the firearm. As there is no evidence to the contrary, I am obliged to act on the statutory presumption under s. 108(4) of the Code and find that the accused was in possession of the firearm knowing that the serial number on it has been removed. Therefore, the accused will be found guilty of this offence.

6. Possession of Weapon for Purpose Dangerous to the Public Peace

[143] Count six of the “firearm indictment” charges the accused with possession of a weapon (i.e. a handgun) for a purpose dangerous to the public peace, contrary to s. 88(1) of the Criminal Code. In all of the circumstances, I am satisfied beyond a reasonable doubt that the accused was, indeed, in possession of this firearm for a purpose dangerous to the public peace. As defence counsel did not suggest any different result, I find the accused guilty of this offence.

7. Prohibited Possession of Firearm and Ammunition

[144] Counts seven and eight of the “firearm indictment” charge the accused with possession of a firearm and possession of ammunition while prohibited from such possession by virtue of a court order, contrary to s. 117.01(1) of the Criminal Code.

[145] Again, I have found Mr. Duhamel in possession of the firearm and ammunition in this case. Further, the defence has formally admitted that, on December 1, 2010, the accused was subject to a Prohibition Order, made by Caputo J. on April 30, 2010, pursuant to s. 109(3) of the Code, that required the accused to refrain from the possession of any firearm, cross-bow, restricted weapon, ammunition, or explosive substance. Accordingly, based on this evidence, I am satisfied beyond a reasonable doubt as to the guilt of the accused in relation to these two offences.

8. Failing to Comply With Recognizance

[146] Count nine of the “firearm indictment” charges the accused with failing to comply, without lawful excuse, with the condition of a recognizance requiring him to “abstain absolutely” from the possession or use of “non-medically prescribed drugs or narcotics,” contrary to s. 145(3) of the Code.

[147] I have concluded that Mr. Duhamel was, indeed, in possession of the cocaine that was in the plastic Foot Locker bag. The defence has formally admitted that, as of December 1, 2010, the accused was bound by a recognizance of bail in relation to charges of theft, possession of stolen property and obstructing justice, that required him to, among other things, “abstain absolutely from the possession and/or use of non-medically prescribed drugs or narcotics prohibited by the Controlled Drugs and Substances Act.” Based on this evidence, I am satisfied beyond a reasonable doubt that the accused is guilty of this offence.

9. Careless Storage of Ammunition

[148] Counts ten and eleven of the “firearm indictment” charge Mr. Duhamel with the careless storage of ammunition, contrary to s. 86(1) of the Criminal Code. While count ten does not specify the particular type of ammunition in question, count eleven expressly alleges that it was the 9 mm ammunition that Mr. Duhamel stored carelessly. As was the case with respect to the firearm, while there was no direct evidence as to where the ammunition in question was “stored” by the accused on the Beresford premises, defence counsel conceded that keeping the ammunition in the firearm and loosely in the plastic bags in any location on the premises amounted to careless storage of the ammunition. Therefore, I am satisfied beyond a reasonable doubt as to the guilt of the accused in relation to these offences.

10. The Drug-Related Indictment

[149] With respect to the “drug-related indictment,” the accused is charged with: (1) possession of a controlled substance, namely, cocaine, for the purposes of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, chap. 19; and (2) possession of the property or the proceeds of property, namely, $2,055, knowing it was obtained by crime, contrary to s. 354(1)(a) of the Criminal Code.

[150] I am satisfied beyond a reasonable doubt that the accused was in possession of the drugs contained in the plastic bag thrown from the deck of the Beresford Avenue premises. The Certificates of Analysis filed, on consent, establish that the substances were in fact cocaine. Given the quantities of this drug and the circumstances in which it was found, I am satisfied beyond a reasonable doubt that the accused possessed this drug for the purposes of trafficking. Accordingly, I find the accused guilty of this offence.

[151] As I have already indicated, I am also satisfied beyond a reasonable doubt that the $2,055 that was found in the drawer of the bed-side night table in Caitlin Sommers’ bedroom belonged to Mr. Duhamel, and that this was cash associated with his possession of cocaine for the purposes of trafficking. More particularly, I am satisfied beyond a reasonable doubt that this money was proceeds of crime. Accordingly, I find the accused guilty of this offence.

VI Conclusion

[152] In the result, the accused is found guilty of all counts of both indictments. The verdicts should be recorded accordingly.

Kenneth L. Campbell J.

DATE: December 7, 2012

COURT FILE NO.: 117/12

DATE: 20121207

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• and -

COADY DUHAMEL

REASONS FOR JUDGMENT

Kenneth L. Campbell J.

Released: December 7, 2012

[^1] Mr. Sommers explained that he and his sister had a dog at the apartment and so needed plastic bags for “obvious reasons”. They kept their plastic bags in one location in the kitchen at the top of the stairs. Everyone had access to these bags.

[^2] His father, Larry Sommers, confirmed that Wesley Sommers suffers from this excessive sweating medical condition. They had seen a doctor about the condition.

[^3] The Supreme Court of Canada has now made it clear that, according to the protection provided by s. 13 of the Charter of Rights, where an accused gives compelled and incriminating evidence in an earlier proceeding, that testimony is not subsequently admissible against them in a criminal case for any purpose, except in a prosecution for perjury or giving contradictory evidence. See: R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; R. v. Dubois, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350; R. v. Noël, 2002 SCC 67, [2002] 3 S.C.R. 433; R. v. Nedelcu, 2012 SCC 59.

[^4] According to the governing Crown Policy Manual directive on “Charge Screening” dated March 21, 2005, the Crown, in determining whether or not to continue a prosecution, must decide if there is a reasonable prospect of conviction. This objective standard must be applied to all cases without exception. If the Crown determines that there is no reasonable prospect of conviction, at any stage of the proceedings, then the prosecution of that charge must be discontinued. No public interest, however compelling, can warrant the prosecution of an individual if there is no reasonable prospect of conviction. See: www.attorneygeneral.jus.gov.on.ca/english/ChargeScreening.pdf