SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 12-70000580-0000
DATE: 20130422

RE: R. v. Clement Appiah, Dwayne Brock, Kirenia Lindsay and Senami Dosu

BEFORE: Backhouse J.

COUNSEL:
J. Cisorio for the Crown

S. Fattal for Mr. Appiah

M. Luft for Mr. Brock

G. Holder for Ms. Lindsay

B. Moss for Ms. Dosu

HEARD: Motion for directed verdict heard April 18, 2013

Reasons for Decision of Backhouse, J. on Directed Verdict Motion released April 22, 2013

[1] The accused Clement Appiah, Dwayne Brock, Kirenia Lindsay and Senami Dosu are jointly charged that they were occupants of a motor vehicle in which they knew that there was at the time a firearm (Count 1). Mr. Appiah and Mr. Brock are also charged with transporting a firearm (Count 2), possessing a firearm (Count 3), possessing a loaded prohibited firearm (Count 4), possessing a firearm knowing that it was obtained by the commission in Canada of an offence (Count 5) and possession of an ammunition magazine (Count 6).

[2] After the completion of the Crown’s evidence, all defence counsel moved for a directed verdict. The test for a directed verdict is as set out in R v. Charemski, [1998] I S.C.R. 679: “If at the end of the Crown’s case the Crown has not presented a prima facie case, accused persons are entitled, on application, to a directed verdict of acquittal.”

[3] In order for there to be a prima facie case, there must be “evidence in the record upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt.” This test from R v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702 at p.53, represents a refinement of the classic Sheppard test from United States v. Sheppard, 1976 8 (SCC), [1977] 2 S.C.R. 1067. In the context of this matter, the following observations of McLachlin, J. in Charemski, supra, quoted in Fontaine, supra, are particularly relevant:

“… “sufficient evidence” must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to “sufficient evidence” is incomplete since “sufficient” always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case. [Emphasis added]”

[4] On November 6, 2011, the 4 accused were all occupants of a Dodge Caravan in which a loaded Taurus firearm was found. The small handgun was found on the back bench seat of the

vehicle after all of the occupants had been removed. Officer Stoica testified as follows. He stopped beside the van at a red light and got a good look at the occupants. He observed a person later identified as Mr. Brock in the driver’s seat with an alcoholic beverage in his hand and persons later identified as Mr. Appiah in the front passenger seat, Ms. Lindsay in the middle bucket seat behind the passenger’s seat and Ms. Dosu in the middle bucket seat behind the driver’s seat. The women realized a police officer was observing the occupants of the van. The driver put down his drink. The van turned down a side road at the first opportunity. Officer Stoica followed the van which was travelling slowly. It came to a stop in a dark parking lot. A white male fled the van, climbed a fence and got away. Officer Stoica had not seen the white male inside the van. By process of elimination, the white male had to be seated in the back bench seat of the van where the firearm was found.

[5] Officer Stoica testified that after the van stopped and by the time he approached the van, the accused had all changed their positions in the van, Mr. Appiah going into the back row and then to the middle bucket seat, the females into the front seats and Mr. Brock into a middle bucket seat. Ms. Lindsay, who had a valid Ontario driver’s license, was in the driver’s seat. Officer Stoica testified that they appeared nervous. When Officer Stoica removed Mr. Brock from the van, he testified that Mr. Brock appeared impaired. Both males had their hands between the seats and there was a lot of movement in the van. Ms. Dosu’s purse was on the back row seat. Srgt.White was right beside her when she retrieved her purse to get her identification. There was no hesitation in her locating her purse. He testified that if she had attempted to remove anything from her purse, he would have seen this. He did not see the firearm at that time. Her purse was located where the firearm was later found or in close proximity. An open rum bottle with 1½ cm. of fluid left and 4 full vodka mudshakes were found behind the driver’s seat. An empty vodka mudshake bottle was found underneath the van. A backpack with papers and medications belonging to Mr. Brock was found in the middle of the back row seat.

[6] Mr. Brock’s driver’s licence was suspended. The van was rented. None of the occupants of the van were parties to the rental agreement.

[7] The defence submits that the Crown has not adduced evidence in this case upon which a reasonable jury properly instructed could come to a conclusion of guilty. The defence submits that the evidence adduced by the Crown is incapable of reaching the standard of supporting the charges beyond a reasonable doubt.

[8] The Crown submits that the following pieces of evidence allow a reasonable inference to be drawn that all the accused had knowledge that the gun was in the van:

1. The movement which took place in the van;

2. The nervousness of all of the occupants;

3. The location of the firearm, being underneath or in close proximity to Ms. Dosu’s purse, not secreted in an compartment or inside a bag;

4. The evasive manner of driving after the occupants became aware that they were being observed by police;

5. The location of a knapsack with personal items belonging to Mr. Brock in the middle of the back row seat;

6. The location of Ms. Dosu’s purse in the middle of the back row seat of which she seemed to be aware because there was no hesitation in locating it when she retrieved it to get her identification.

[9] The Crown submits that the following pieces of evidence allow a reasonable inference to be drawn that Mr. Appiah and Mr. Brock had control of the firearm:

1. Mr. Brock was the driver of the van in which the firearm was located;

2. Mr. Brock’s evasive driving after he was aware that he was being observed by Officer Stoica;

3. The presence of Mr. Brock’s knapsack beside or very close to the firearm;

4. Mr. Appiah moving briefly to the back row seat.

Analysis

[10] The issue of whether the accused knew the gun was in the van is an essential element of each of the counts. The evidence of knowledge is circumstantial. It is common ground that an inference of knowledge does not arise simply from occupying a vehicle where a firearm is located. The unusual feature of this case is that one occupant of the van fled the scene. This person was seated in the back row where the firearm was found. No rational basis for excluding this person as the party in possession of the firearm who abandoned it when fleeing was suggested. There was no evidence that this person was acting in concert with the other occupants or, if the firearm was this person’s, that any of the other occupants knew of its presence in the van.

Count 1-Ms. Lindsay and Ms. Dosu

[11] Ms. Lindsay and Ms. Dosu’s movement from the middle seat into the front seat can be rationally explained by their wanting to help Mr. Brock avoid being charged with driving without a license and impaired driving. He had a suspended licence and had been consuming alcohol. Ms. Lindsay had a valid driver’s licence and there was no evidence that either of the women had been drinking. There was no evidence that either of them moved into the back row or made any movements towards the back row where the gun was found. As for their appearing nervous, it is normal for people to be nervous when stopped by the police. This would be even more the case where there was open liquor and an unlicensed, impaired driver. There is no evidence that they had any control over the manner in which Mr. Brock drove. The firearm was found under where Ms. Dosu’s purse was on the back seat or near to there. However, there was

no evidence that the firearm was in that location at the time the purse was placed there. The firearm was found in an area occupied by the person who ran away and was not apprehended. The inference arises that it was his gun and that he left it under or near Ms. Dosu’s purse on the backseat before he fled the vehicle.

[12] Accepting for the purposes of this motion the Crown’s evidence that Mr. Appiah moved briefly to the back row seat prior to taking a seat in one of the middle row bucket seats, an alternative inference arises that Mr. Appiah put the firearm under or near Ms. Dosu’s purse. The firearm does not appear to have been in plain view and there is no evidence that Ms. Lindsay or Ms. Dosu saw the firearm or were aware of its presence. Even accepting all of the Crown’s evidence as true, there simply is not evidence upon which a jury acting reasonably could find that it had been proved beyond a reasonable doubt that either Ms. Lindsay or Ms. Dosu had knowledge of the firearm being present in the van. Their application for a directed verdict on Count 1 is granted and they are acquitted.

Counts 1-6 Mr. Appiah and Mr. Brock

[13] In addition to having to prove knowledge of the firearm being present in the van for Count 1, the Crown must prove that Mr. Appiah and Mr. Brock had control of the firearm which is a common essential element of the other counts they are facing. As with the evidence of knowledge, the evidence of control is circumstantial. As with Ms. Lindsay and Ms. Dosu, the fact that Mr. Appiah and Mr. Brock were in the van, that they were nervous or indeed that Mr. Brock was the driver and that he drove evasively, without more, does not prove knowledge or control of the firearm. As with Ms. Dosu’s purse, there is no evidence that the firearm was already on the back seat when the knapsack with Mr. Brock’s personal items was placed there. Mr. Brock’s move from the driver’s seat to the bucket seat in the second row, his hand movements and his evasive driving can be rationally explained by his wanting to evade getting charged with driving without a license, impaired driving or offences under the Liquor Licence Act. There was no evidence that he moved anything into the back seat or got into the back seat. There is no evidence that he saw the firearm or was aware of its presence.

[14] The most likely inferences are that the firearm was left by the person who fled the vehicle or by Mr. Appiah, accepting for the purposes of this motion the Crown’s evidence that he moved briefly to the back row seat. In the case of Mr. Brock, accepting all of the Crown’s evidence as true, there is not evidence upon which a jury acting reasonably could find that it had been proved beyond a reasonable doubt that he had knowledge or control of the firearm. His application for a directed verdict on all counts is granted and Mr. Brock is acquitted.

[15] As I have said, if I accept Officer Stoica’s evidence that Mr. Appiah moved briefly to the back row seat prior to taking a seat in one of the middle row bucket seats, one inference that arises is that Mr. Appiah did this to hide the firearm there. Another reasonable inference is that without leaving the van, it would be difficult for the occupants in the front seats to move to the middle seats without someone temporarily moving into the back row. Moreover, as already noted, there is another inference equally compelling that the person who fled the van left the firearm there. Mr. Justice Fish in Fontaine, supra, at para.53, notes:

“Accordingly, as McLachlin, J. explained in Charemski, supra, the case against the accused cannot go to the jury unless there is evidence in the record upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt.”

[16] In my opinion, given the unusual circumstances, a jury could not rationally conclude that Mr. Appiah is guilty beyond a reasonable doubt. In the result, his application for a directed verdict on all counts is granted and he is acquitted of all charges.

Released April 22, 2013 ________________________________

Backhouse, J.