ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 0152/12-12-12-70000276-0000

DATE: 20130703

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JAFSA BROWN

E. Pancer, for the Crown
L.K. Wildman, for the Accused

HEARD: June 18 & 26, 2013

REASONS FOR SENTENCE

GARTON J.:

Introduction

[1] After a trial by this Court sitting without a jury, the accused, Jasfa Brown, was found guilty of a number of firearms offences, carrying a concealed weapon, to wit, a knife, and possession of crack cocaine. The knife and handgun, which was a fully loaded .38 calibre revolver, were seized by police from Mr. Brown’s jeans pockets following a traffic stop on January 26, 2011. Mr. Brown was arrested and transported in a scout car to 54 Division. Shortly thereafter, the police found 5.49 grams of crack cocaine in the back seat of the car. I found that Mr. Brown had placed the drugs there.

[2] The counts in the indictment on which Mr. Brown has been found guilty are as follows:

(i) Count 1: Possession of a loaded restricted firearm with ammunition, contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, c. C‑46;

(ii) Count 2: Possession of a firearm without a licence, contrary to s. 91(1) of the Code;

(iii) Count 3: Possession of a firearm knowing that he was not the holder of a licence under which he could possess it, contrary to s. 92(1) of the Code;

(iv) Count 5: Being an occupant of a motor vehicle in which he knew that there was a firearm, for which no occupant of the vehicle was the holder of a permit under which he may lawfully have had that weapon in his possession in the vehicle, contrary to s. 94(1) of the Code;

(v) Count 6: Carrying a concealed weapon, to wit, a knife, contrary to s. 90(1) of the Code; and

(vi) Count 9: Possession of a controlled substance, to wit: cocaine, contrary to s. 4(3) of the Controlled Drugs and Substances Act, S.C. 1996, c.19.

The Circumstances of the Offences

[3] On January 26, 2011, at around 3:15 p.m., Mr. Brown was driving northbound on O’Connor Drive in Toronto when he was stopped by P.C. Pershin for a “tinted windows” offence, contrary to s. 73(3) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”). As the driver’s window was lowered, the officer immediately detected a strong and pungent smell of fresh, dried, unburned marijuana. He spoke to Mr. Brown about the smell and then asked him to produce his driver’s licence, vehicle ownership and insurance card. As soon as P.C. Pershin saw the insurance card, he suspected that it was fake. He returned to his scout car and, after about ten minutes, was able to confirm that the card was, in fact, invalid.

[4] P.C. Pershin walked back to Mr. Brown’s car, advised him that he could not drive the vehicle because it was uninsured, and told him to arrange for a tow truck. P.C. Pershin returned to his scout car, where he conducted a computer search regarding Mr. Brown’s background and made out five summonses with respect to the “tinted windows” offence and driving without insurance, contrary to the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C.25 (“CAIA”).

[5] At about 3:30 p.m., two other officers, P.C. Perks and P.C. Kung, arrived on scene and spoke briefly to P.C. Pershin, who asked them to stand by. They parked behind P.C. Pershin. After completing the summonses, P.C. Pershin turned his mind to investigating the offence of possession of marijuana. He walked back to where Officers Perks and Kung were parked and advised them of certain matters regarding Mr. Brown’s background and the smell of marijuana emanating from Mr. Brown’s car. He also told them that he wanted to get Mr. Brown out of the car so that he could search the area of the driver’s seat. P.C. Pershin, followed by Constables Perks and Kung, then approached Mr. Brown’s car.

[6] P.C. Pershin handed Mr. Brown the summonses and asked him to step out of his car so that he could search it. Mr. Brown exited the vehicle and was escorted by Constables Perks and Kung to P.C. Pershin’s scout car. Both Constables Perks and Kung decided to conduct a pat down search of Mr. Brown for officer safety reasons.

[7] P.C. Kung told Mr. Brown that he was under investigative detention with respect to the offence of possession of marijuana and that he would be patted down for weapons. He asked Mr. Brown, “Any weapons?” Mr. Brown replied, “No.”

[8] P.C. Kung patted Mr. Brown’s left jacket pocket and then his left front jeans pocket. In order to pat down the back jeans pockets, P.C. Kung lifted up the jacket. He felt something hard in the left back pocket but concluded that “it wasn’t anything.” He then lifted up the right side of the jacket and observed a black folding pocket knife protruding from Mr. Brown’s right back jeans pocket. It was clipped into the pocket. P.C. Kung removed the knife and put it in his own pocket.

[9] One or two seconds after the discovery of the knife, P.C. Perks lifted up Mr. Brown’s shirt and observed the handle of a gun protruding from Mr. Brown’s right front jeans pocket. He asked Mr. Brown, “Is that a gun?” Mr. Brown replied, “Yes.” Mr. Brown was immediately handcuffed to the rear. P.C. Perks, who described himself as “kind of stunned” upon seeing the firearm, removed it from Mr. Brown’s pocket.

[10] P.C. Kung performed a search incidental to arrest and removed other items from Mr. Brown’s pockets, including $441.83 in cash, a cell phone and three bandanas.

[11] P.C. Perks was unsuccessful in his attempts to remove the ammunition from the firearm. P.C. Kung and P.C. Pershin were also unsuccessful in this regard. As a result, P.C. Perks ended up carrying the fully loaded revolver in the front seat of the scout car as he and P.C. Kung transported Mr. Brown to 54 Division. Upon their arrival at 3:51 p.m., another officer took possession of the gun and proved it safe.

Discovery of the crack cocaine

[12] In accordance with police protocol, P.C. Kung had checked the back seat of the scout car at the start of his shift at 3:00 p.m. that day and found no contraband present. The officers left the station at 3:24 p.m. and at 3:30 p.m. arrived at the scene of the vehicle stop. Mr. Brown was the first and only person to occupy the rear seat of the scout car after P.C. Kung’s earlier search of it.

[13] After arriving at the police station, Mr. Brown was asked to step out of the scout car, which he did. Seconds later, P.C. Kung decided that it would be a good idea, in light of the weapons that had been found on Mr. Brown’s person, to check the back seat in Mr. Brown’s presence. Upon reopening the rear door, P.C. Kung noticed a two-inch gap between the seat and the back rest. Upon lifting up the seat, he discovered the crack cocaine.

Mr. Brown’s testimony

[14] After the dismissal of the defence application pursuant to s. 24(2) of the Charter to exclude the firearm, knife and crack cocaine as evidence, Mr. Brown testified at the trial proper and explained how he came into possession of the loaded .38 calibre revolver. In my reasons for judgment, I reviewed Mr. Brown’s testimony in detail and rejected his explanation as fabrication.

[15] Briefly, Mr. Brown maintained that he had found the gun in an alley by happenstance that day. He testified that he picked it up and put it down the front of his pants with the intention of taking it to the police. However, he decided to first pick up his son at school. He was on his way to the school when P.C. Pershin pulled over his car for the “tinted windows” offence.

[16] In my reasons for judgment, I found that Mr. Brown was not a credible witness. I rejected his evidence as to how he happened upon the firearm and his various explanations as to why he took no steps to report it to the police before it was discovered during the pat-down search. I found that had Mr. Brown found the gun in the circumstances that he described, and if he were as ignorant as he said he was about firearms, there is no way that he would have risked injury to himself by putting a fully loaded revolver in his pants pocket. At the very least, he would have put it in the trunk or some other part of his car. He would not have kept it on his person. I rejected Mr. Brown’s testimony that he was unaware that the gun was loaded as the bullets were obvious and could not have been missed, even if he had only casually glanced at the firearm. His initial testimony that he was unaware that a firearm is discharged by pulling the trigger stretched credulity.

[17] I am satisfied that Mr. Brown loaded the gun himself and that he had it on his person for protection, no doubt in connection with his purchase of crack cocaine, as well as a result of his having been the victim of a shooting incident in 2009 in which he lost an eye.

[18] Mr. Brown was charged and convicted of simple possession of cocaine, as opposed to possession of cocaine for the purpose of trafficking. The fact that Mr. Brown was also found in possession of $440 in cash raises the suspicion that he may have been involved in trafficking. However, that is all it is – a suspicion. I make no such finding for the purpose of imposing sentence.

[...continued exactly as in the original text...]

GARTON J.

Released: July 3, 2013

COURT FILE NO.: 0152/12-12-12-70000276-0000
DATE: 20130703

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

JAFSA BROWN

REASONS FOR SENTENCE

GARTON J.

Released: July 3, 2013