Court File No.: CR-12-40000530-0000

Date: 2013-08-12

Ontario Superior Court of Justice

Between:

Her Majesty the Queen (Respondent)

– and –

Nadel Johnson (Applicant)

Counsel: Craig Harper, for the Crown Donald McLeod, for the Applicant

Heard: July 2, 3, 4, 5 and 6, 2013

Reasons for Decision

R. Clark J.:

Introduction

[1] The accused was tried by this court sitting without a jury on an indictment charging a number of offences relating to the possession of a firearm and a controlled substance.

[2] On July 9, 2013, I found the accused was guilty on all but two counts. Inasmuch as I had not had time to set out completely my reasons as of that date, I indicated that I would release written reasons as soon as time permitted; these are those reasons.

The Crown’s Evidence

[3] The Crown called two witnesses, Detective Constable (“D/C”) Adam Lourenco and D/C Charnell Pace. A third officer, D/C Michael Lane, was ill at the time of trial; so, on consent, the Crown filed Lane’s testimony from the preliminary inquiry in this matter pursuant to s. 715 of the Criminal Code, R.S.C. 1985, c. C-46. The following facts emerge from their evidence.

[4] On Saturday, October 22, 2011, shortly before 8 p.m., the three officers were on general patrol in the area of Finch Ave. West and Jane St., in the City of Toronto. As they passed a Honda Accord that was stopped in the turning lane of Finch Ave. West, waiting to turn left onto Sentinel Dr., Lourenco, the driver of the police vehicle, noticed that the driver of the Honda was not wearing his seat belt. Lourenco did a U-turn, caught up to the vehicle and pulled it over.

[5] The accused was driving the Honda. Also in the car were two other men, Andrew O’Neill, seated in the front passenger’s seat, and Turrel Tomlinson, seated in the back.

[6] After learning the names of the accused and his passengers, Lourenco went to his vehicle to do some computer checks. As Lourenco was doing that, Pace saw what he thought was a bottle of open liquor in the Honda. As a result of what Pace considered to be an infraction of the Liquor Licence Act, Pace and Lane decided to search for other liquor. The occupants were asked to get out of the car and remain nearby.

[7] In the course of the search, Lane discovered a small bag of what he suspected was cocaine in the front cup holder of the two holders molded into the console between the front seats. He discovered the baggie as he was replacing a bottle that he had removed. Upon making that discovery, Lane told the three men that they were under arrest for possession of cocaine. Under the auspices of a search incident to that arrest, the officers continued searching the vehicle.

[8] After completing his inquiries, Lourenco returned to the Honda and joined in the search. As he searched the driver’s area of the car, he noticed that a panel in the dashboard was not properly secured. Being aware from past experience that people frequently hide illegal drugs under panels in automobiles, this aroused Lourenco’s suspicions. When he lifted the panel, he observed the butt of a handgun in the underlying recess. The handgun was lying athwart the vehicle, with the butt nearest the driver and the muzzle pointing toward the passenger’s side of the car.

[9] The weapon was a Taurus 40 calibre handgun. It was loaded with 14 rounds of ammunition in the magazine and one in the firing chamber. Later test-firings, using some of the seized ammunition, confirmed both that the weapon was fully functional and the ammunition was live.

[10] Exhibit 11 is the certificate of analysis of Tony Dwyer, designated a Weapons Examiner by the Toronto Police Service. Dwyer stipulates that the seized pistol is, by virtue of its barrel length, a prohibited firearm and the magazine is, by virtue of its large capacity, a prohibited device. The certificate was entered on consent, without the need to call Dwyer viva voce. Neither allegation is disputed by the accused.

[11] Exhibit 12 is the certificate of Nena Sharan, a senior Firearms Examiner, stipulating that Mr. Johnson does not possess a certificate by means of which he might lawfully possess the firearm. The certificate reflects a date of birth that is not Mr. Johnson’s, but defence counsel took no issue with the Crown’s assertion that, despite the error, the certificate does pertain to the accused.

[12] Exhibit 13 is the certificate of Wendy Davis, a Firearms Officer, stipulating that there is no record of a certificate ever having been issued to anyone respecting the firearm at issue in this case.

[13] As for the suspected cocaine, Exhibit 15 is the certificate of Rosol Al-Hakim, an analyst, stipulating that the substance seized is not cocaine, but, rather, another controlled substance, Ketamine. This is not disputed by the defence.

[14] As for count 8, which alleges that the accused possessed the weapon in question in breach of a prohibition order, Exhibit 16 is a certificate confirming that the accused is prohibited from possessing any firearm by virtue of an order made pursuant to s. 110 of the Criminal Code by Bigelow J. of the Ontario Court of Justice on March 10, 2011.

[15] As well as direct evidence that the accused was operating the vehicle on the day in question, there is ample circumstantial evidence to establish that, although he is not the registered owner, the accused is the principal driver of the Honda. Since that fact is not disputed, I will not recount that evidence.

The Defence Evidence

[16] The accused called three witnesses.

[17] Sokhoeun Kheng, the accused’s girlfriend as of late 2011, said she was frequently a passenger in the Honda. She said that the only person she ever saw drive the car was the accused. She said that she never noticed anything unusual about the dashboard area of the vehicle.

[18] Margaret Johnson, the accused’s mother, testified that the car was owned by her husband, but used principally by the accused. She said that Andrew O’Neill, the front seat passenger at the time of her son’s arrest, is a good friend of both of her sons and that she had known O’Neill for at least 15 years. She also indicated that she was aware that O’Neill also drove the Honda and that he had driven her to and from work on several occasions in 2010, when her car was in the shop.

[19] Mrs. Johnson also spoke of O’Neill being a passenger in the car on various occasions when her son drove her to work on his way to his own employment. She also said that in October 2011 O’Neill drove her son to work, following which he would keep the car and go “downtown”. I pause to note the obvious, namely, that she would have had no direct knowledge of what O’Neill did with the car when she was not present. Despite that fact having been brought to her attention numerous times in cross-examination, Mrs. Johnson insisted on telling the court things of which she had no direct knowledge.

[20] In examination-in-chief, Mrs. Johnson said that her son worked near Lawrence Ave. and Dufferin St., in Toronto, but later said, in cross-examination, that he worked at Dufferin St. and Allen Rd. I find that curious, since she contends that he drove her to work on more than one occasion and, from her address on Sentinel Dr., those two destinations lie in different directions.

[21] Mrs. Johnson said that her son worked Monday to Friday. She made no mention of her son working on weekends. As noted above, October 22, 2011, was a Saturday.

[22] Andrew O’Neill also testified. He said that the gun found in the dashboard of the Honda was his and, further, that the accused did not know of its presence in the car on October 22, 2011. As for the drugs, he did not acknowledge that they were his or that he knew of their presence in the car.

[23] O’Neill said that he frequently drove the accused to work in the accused’s Honda. He said that, because he, O’Neill, lived in Brampton, the accused would allow him to take the car home with him at night, provided he picked up the accused at his home in the Jane and Finch area of Toronto and drove him to work the following morning in time for a 7:30 start. The accused would then allow him to keep the car for the rest of the day, he said, provided he picked up the accused after work and drove him home.

[24] O’Neill said he was a drug dealer. He said that, as well as using the accused’s car during the day to run errands, he also used it to deal drugs. He was very clear that the accused knew that he used the vehicle to facilitate his drug deals.

[25] O’Neill said it was he who had loosened the plate on the dashboard of the Honda for the specific purpose of hiding drugs in the recess beneath. He did this, he said, without prior consultation with, or permission from, the accused, but added that he made the accused aware of the modification and its purpose after the fact.

[26] O’Neill said that because drug dealing is inherently dangerous and because there had recently been a number of shootings in the Jane and Finch area of Toronto, he purchased the firearm in question in order to protect himself. He said that, as well as storing drugs in the dashboard of the Honda, he also put the firearm in the recess on occasion. He said that he only carried the firearm to do his drug deals.

[27] In terms of the accused’s knowledge of the firearm, O’Neill said that he told the accused that he wanted to buy a gun for protection and, once having done so, approximately three weeks before October 22, 2011, according to O’Neill, he told the accused he had purchased the gun.

[28] In terms of the accused’s attitude toward the fact that O’Neill had a gun, in examination-in-chief O’Neill said that when he told the accused that he wanted to buy a gun the accused indicated that he did not want anything to do with it. In cross-examination, O’Neill said “he didn’t want to be around it; he was panicking, like…”. Later in cross-examination, O’Neill said that the accused was “angry” that he, O’Neill, had a firearm and “didn’t want to be around it.”

[29] As a result of what he said was the accused’s attitude toward the firearm, O’Neill said that, if he had the gun with him at a time when the accused would be in the car, it would be “put away”. He explained that he meant by that that he would deposit the pistol in the recess beneath the panel in the dash, before the accused came to be in the car.

[30] O’Neill said that on October 22, 2011, he dropped off the accused at work, went home to Brampton to get his gun and then returned to Toronto. He said that he did “a couple of deals”, after which he picked up the accused from work, but could not remember what time he did so.

[31] O’Neill said, in cross-examination, that the accused knew that he was going to be dealing drugs that day and knew that he always carried a pistol to do his drug deals. He also acknowledged that, in the approximately three weeks since he had told the accused he had it, he had never told the accused that he had divested himself of the pistol.

[32] O’Neill said that he picked up the accused from work and drove him home. He said the accused had a shower, following which they went to O’Neill’s house in Brampton. He said they stopped once on the way back to Toronto and then were en route back to the accused’s home when they were stopped by the police. As for the presence of the pistol, O’Neill says that he simply forgot that it was in the car.

Discussion

Motions to Amend the Indictment

[33] At the request of the Crown, and with the consent of the accused, I amended all counts in the indictment to correct the spelling of the accused’s middle name.

[34] Count 7 was carelessly drafted. After alleging illegal possession of ammunition, the count specified the firearm as the item possessed instead of particularizing the type and/or number of rounds of ammunition. At the request of the Crown, and with the consent of the accused, I amended count 7 by inserting the words “15 rounds of ammunition for” following the words “to wit:” and preceding the words “a Taurus .40 calibre semi-automatic pistol”.

Withdrawal of Count 3

[35] At the outset of the trial, the Crown agreed not to proceed on count 3 for the reason that the mens rea the Crown must establish to prove that count is coextensive with that of count 4, such that the rule against multiple convictions for the same delict would preclude registering convictions for both. Accordingly, that count was noted withdrawn.

Directed Verdicts

[36] At the request of the Crown, I entered an acquittal on count 9 because the Crown could not prove the existence of the order the accused is alleged to have breached.

[37] For his part, the accused sought a directed verdict on the remaining counts for want of proof of knowledge on the part of the accused of the presence of the weapon or the controlled substance in the vehicle. Being of the view that the evidence would support a finding that the accused had constructive possession of both the weapon and the drug, I denied the motion.

Matters Not In Issue

[38] In light of the fact that none of these items are contested by the accused, on the evidence I am satisfied beyond a reasonable doubt of the following:

(i) the pistol seized is a Taurus semi-automatic;

(ii) when seized, the pistol was fully loaded, with 14 live rounds in its magazine and one live round in the firing chamber;

(iii) the pistol was fully operative;

(iv) by virtue of its barrel length, the pistol is a prohibited firearm within the meaning of s. 84 of the Criminal Code;

(v) by virtue of its capacity, the pistol’s magazine is a prohibited device within the meaning of s. 84 of the Criminal Code;

(vi) the accused was not the holder of a permit by means of which he could lawfully possess the pistol;

(vii) the accused was not the holder of a licence for the pistol;

(viii) the accused was prohibited from possessing any such weapon by virtue of an order made under s. 110 of the Criminal Code; and

(ix) the white powder seized was Ketamine, a controlled substance as set out in Schedule I of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

Contested Issue

[39] In the face of the foregoing findings, the only issue for this court to determine is whether the accused was in constructive possession of the firearm. Although Mr. McLeod did not make a formal concession in this behalf, the entirety of the argument dwelt on the issue of knowledge. If the accused knew of the presence of the gun in the car and had control over it, then he is guilty on all counts relating to it; if not, then he is entitled to acquittals on all counts. The same questions pertain to the drug.

General Principles

[40] In R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17, Fish J. set out the following requirements for constructive possession, as described in ss. 4(3)(a) of the Criminal Code:

[C]onstructive possession is … complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keep [sic] the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person.

[41] As Hill J. stated in R. v. Anderson-Wilson, 2010 ONSC 489, at para. 71, constructive possession can be proven indirectly:

In crimes of unlawful possession, it is “not necessary for the prosecution to prove the required knowledge by direct evidence ... it could be inferred from the surrounding circumstances”: R. v. Aiello (1978), 1978 2374 (ON CA), 38 C.C.C. (2d) 485 (Ont. C.A.) at 488 (aff’d 1979 31 (SCC), [1979] 2 S.C.R. 15); see also R. v. Pham (2005), 2003 C.C.C. (3d) 326 (Ont. C.A.) at para. 18 (aff’d 2006 SCC 26, [2006] 1 S.C.R. 940); R. v. Anderson, 1995 1338 (BC CA), [1995] B.C.J. No. 2655 (C.A.) at para. 15-16. Frequently then, such cases are proven by circumstantial evidence: see R. v. Meggo, [1998] O.J. No. 2564 (C.A.) at para. 1. This includes proof of unlawful possession of a firearm: R. v. Ali, 2008 ONCA 741 at para. 3-7.

[42] At paragraph 72 of Anderson-Wilson, Hill J. stated:

The essential component of self-instruction on circumstantial evidence is that the trier of fact must be satisfied that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Griffin; R. v. Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.) at para. 33. Circumstantial evidence must be viewed as a whole and not each piece individually: R. v. Warkentin et al. (1976), 1976 190 (SCC), 30 C.C.C. (2d) 1 (S.C.C.) at 20. "[T]he mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt": R. v. Griffin; R. v. Harris, supra, at para. 34.

[43] At paragraph 74, Hill J. went on to say:

Possession cases are fact-driven inquiries. Where proof is dependent upon circumstantial evidence, some facts will have more probative value than others. It is the cumulative effect of relevant circumstances which must be assessed in determining whether proof beyond a reasonable doubt exists. In weapons prosecutions, the following circumstances have been considered relevant:

(1) the physical proximity of the firearm to the accused;

(2) the degree of visibility of the firearm;

(3) the degree of communal use of a vehicle containing the firearm;

(4) the size, nature and number of weapons in a particular space; and

(5) the nature of other items located proximate to the firearm capable of providing context

for inferences of knowledge and control. [Citations omitted.]

[44] I appreciate that for the circumstances to amount to constructive possession, the accused must be more than quiescently aware of the presence of the contraband and must have some measure of control over the item he is said to have possessed: R. v. Pham (2005), 2005 44671 (ON CA), 77 O.R. (3d) 401 (C.A.), at para. 15, aff’d 2006 SCC 26, [2006] 1 S.C.R. 940; R. v. Grey (1996), 1996 35 (ON CA), 28 O.R. (3d) 417 (C.A.), at pp. 421-23; R. v. Caldwell (1972), 1972 ALTASCAD 33, 7 C.C.C. (2d) 285 (Alta. S.C. (A.D.)), at pp. 290-91.

[45] I further appreciate that in circumstances where a firearm is “not readily visible” knowledge cannot be inferred without a sufficient body of direct or circumstantial evidence to satisfy the court that the only reasonable inference to be drawn is that the accused knew of the presence of the weapon: R. v. Green; R. v. Rawlins, [1993] O.J. No. 1346 (C.A.); R. v. Bullock, [2000] O.J. No. 798 (S.C.), at para. 9.

The Defence Advanced vis-à-vis the Pistol

[46] As stated above, the defence advanced vis-à-vis the firearm is that it belonged O’Neill, that the accused had told O’Neill that he wanted nothing to do with the gun, that O’Neill put the gun behind the dash on the occasion in question and that the accused had no knowledge of it being there. I do not, however, believe O’Neill’s account.

[47] Before dealing with the reasons for which I disbelieve O’Neill, I wish to make two points.

[48] First, I place no reliance whatsoever on answers O’Neill gave in cross-examination concerning Crown disclosure he received in connection with the charges he faced in relation to this same incident. In fairness to the Crown, the prosecutor, Mr. Archer, made a point of asking me to ignore that evidence in deciding the question of O’Neill’s credibility.

[49] Second, proof of the accused’s prior conviction for the offence of attempting to possess a firearm was adduced into evidence, without objection, in support of count 8, which alleges that he breached a s. 110 prohibition order.[^1] In deciding this case and, more particularly, in deciding whether to accept O’Neill’s evidence concerning what he says was the accused’s attitude toward his possession of the firearm, I have banished from my mind any consideration of the underlying offence giving rise to the prohibition order.

[50] Turning to the evidence I have considered, I disbelieve O’Neill for the following reasons.

[51] First, notwithstanding their long friendship, it strikes me as highly unlikely that O’Neill would presume to physically modify a motor vehicle that the accused did not actually own, but merely operated, without the accused’s knowledge, much less his permission.

[52] Second, the accused started work at an early hour. I do not accept that the accused would, on a regular basis, risk being late for work by depending on O’Neill coming all the way from Brampton in rush hour traffic to ferry him to work, also in rush hour.

[53] Third, even if it meant having a car for the day, I do not accept that someone who apparently was not industrious enough to seek legitimate employment, preferring to deal drugs instead, would regularly get up early enough to travel from Brampton to Toronto in time, in turn, to drive the accused to work by 7:30 a.m.

[54] Fourth, I do not believe that the accused would have given O’Neill his car with the regularity of which O’Neill spoke. It makes no sense to me that the accused would want someone to be putting all that wear and tear on the vehicle.

[55] Fifth, on October 22, 2011, according to O’Neill, after dropping off the accused at work, he drove to Brampton and got his gun in anticipation of doing drug deals that day. He said that he returned to Toronto and did a drug deal at Yorkgate Mall. After that, he said, he went to Vaughan Mills, following which he came back to Toronto. He said he remained in Toronto for the rest of the afternoon until it was time to pick up the accused from work. He specifically mentioned that he did not want to go all the way back to Brampton, only to have to turn around and come back to Toronto to pick up the accused from work. It was, however, according to O’Neill, his practice not to take the gun with him in the car when he knew the accused was going to be in the vehicle because the accused had indicated he wanted nothing to do with the firearm. If all that had been true, given that (according to O’Neill):

(i) after dropping off the accused at work, he went all the way from Toronto to Brampton for the express purpose of picking up the gun in order to do his drug deals;

(ii) having come all the way back to Toronto, he then did the drug deals; and

(iii) having expressly thought of going back to Brampton, he decided against it because it was too far in light of the need to return to Toronto to pick up the accused after work;

it simply defies belief that the presence of the firearm in the car could have “slipped [his] mind.” While I appreciate that it is easy to forget things, the notion that O’Neill simply forgot that he had the firearm in the car flies in the face of his contention that he was careful to ensure that he did not bring the gun in the car when he knew the accused would be in it.

[56] It also defies belief that, once stopped by the police, the fact of the gun being in the car still did not occur to O’Neill until the police had actually found it. O’Neill was very clear that he had “totally forgotten” about the presence in the car of a gun that he acknowledged having carried every day, five days a week for a month, and, further, that he was “surprised” when the police indicated that there was a gun in the car. If there were any truth to his account, it seems obvious to me that the fact of the gun being in the vehicle would have occurred to him the moment the police endeavoured to pull them over, or, failing that, at least as soon as the police started to search the vehicle.

[57] Moreover, if O’Neill were to be believed when he says that he did not bring the gun in the car with him when the accused was going to be present, he would have had to make the trip back to Brampton every day he had the car, in order to get the weapon from his home so as to be armed, and hence protected, when he did his drug deals. It makes no sense to me that O’Neill would routinely come all the way to Toronto, without the gun, to drive the accused to work, then go all the way back to Brampton to get his gun, only to immediately turn around and come back to Toronto to do his drug deals.

[58] The same applies to picking up the accused from work. If it were true that O’Neill endeavoured never to have the gun in the car when the accused was in it, he would have had to return to Brampton each afternoon after doing his drug deals to divest himself of the gun, and then drive all the way back to Toronto to pick up the accused from work.

[59] Sixth, O’Neill’s contention that he only had the firearm when he was doing drug deals flies in the face of his initial assertion that the danger inherent in drug dealing was only part of his rationale for getting a gun in the first place. The other reason was, as noted above, the recent spate of shootings in the Jane and Finch area. It makes no sense to me that, if O’Neill felt he needed a gun for protection in general, he would only carry it when dealing drugs and would not carry it when in company with the accused, which, I gather from the evidence, was much of the time. In this regard, it bears repeating that the accused lived in the Jane and Finch area.

[60] Seventh, October 22, 2011, was a Saturday. That is important because the accused’s mother, whose evidence on this point I accept, said that the accused worked Monday to Friday, but made no mention of the accused working on weekends.

[61] When O’Neill was asked in examination-in-chief about whether he drove the car, he said that he drove it “often”. He was then asked:

Q. If we were to say, uh, say that there’s seven days in a week, uh, would you drive it how often during the week?

A. Monday to Friday.

Q. Did you ever drive it on weekends?

A. Yes, I drove it on weekends.

As the above quoted passage makes clear, initially O’Neill indicated that he drove the vehicle on week days. That corresponds to the mother’s evidence that the accused worked Monday to Friday. Although the second question quoted above is not suggestive in its form, against the backdrop of the immediately preceding answer, I consider it to be leading. It was only in response to that leading question from defence counsel that O’Neill stated that he drove the vehicle on weekends.

[62] Interestingly, as the following passage reveals, notwithstanding that O’Neill agreed with the suggestion in examination-in-chief that, in addition to driving it on weekdays, he had also driven the car on weekends, in cross-examination, he agreed with Crown counsel’s suggestion that he used the car on weekdays:

Q. Now you used the car in part to do drug deals?

A. Yes; and errands.

Q. No, fair enough, but I’m just saying in part you used it to do drug deals?

A. Not most…yes; yes.

Q. And you told us that you would drive Mr. Johnson to work in the morning, take the car, you would then either do errands or you’d do drug transactions during the day. Is that right?

A. Yes.

Q. And you would do that, Monday to Friday, you told us?

A. Yes.

[63] A few moments later, when dealing with the question of how long prior to October 22, 2011, O’Neill had been using the car, Crown counsel asked the following question and received the following answer:

Q. Okay, so Mr Johnson, for a month let you use it five days a week.

A. Yes; sometimes six.

In fairness, then, looking at this last exchange, O’Neill did indicate that he used the car six days a week, as opposed to five. The fact is, however, that he agreed with Crown counsel not once, but twice, that he used the car Monday to Friday. Looking at his evidence overall, and comparing it to the evidence of the accused’s mother, I conclude that he only said he used it on the weekends in examination-in-chief because it was suggested to him. I further conclude that he only said, on the second occasion it was raised in cross-examination, that he used it “six days” a week because he realized, when he agreed, not once but twice, with the Crown’s suggestion that he used it five days a week, that he had been inconsistent with his earlier response to defence counsel.

[64] Eighth, O’Neill purported to know, and would have had to have known, the hours the accused worked, were there any truth to his account of routinely picking up the accused after work. Yet, at one point in his evidence, O’Neill said he could not remember what time he picked up the accused after work on October 22, 2011. In examination-in-chief, he said that the accused “worked Saturday, like half that day or whatever”. But his assertion that the accused only worked a half day on October 22 is inconsistent with his evidence that, after returning from Vaughan Mills, he remained in Toronto for the rest of the day because, in light of the fact that he had to pick up the accused from work, he felt it was not worth going back to Brampton, as he had contemplated at one point. Bearing in mind that the accused’s regular working day was from 7:30 a.m. to 3:30 p.m., the assertion that the accused worked a half day on October 22 is also inconsistent with O’Neill’s later assertion, in cross-examination, that he in fact picked up the accused at “maybe 3:30 or 4:30”, which would have been the time he finished work after a full day.

[65] Ninth, when the men were en route to Brampton, O’Neill would have had to have realized that he had not made the trip earlier in the afternoon and thus the pistol was still in the car. If that were so, then presumably he would have dropped off the firearm at home before returning to Toronto just prior to being stopped by the police. Against that backdrop, I do not believe that he could have forgotten the presence of the gun. Indeed, just as was the case with going back to Brampton in the morning to pick up the gun, the need to go back to Brampton for a second time during the day to drop off the gun would have had to have been a daily occurrence.

[66] Tenth, O’Neill says that when he and the accused left the accused’s house for the evening, they went to O’Neill’s house in Brampton just to hang out. He was not asked when they left for Brampton, but if he had picked up the accused from work at 3:30 or 4:00 p.m., and they had gone to the accused’s house so he could have a shower, then it would have been very late in the afternoon before they even left for Brampton. Nor was O’Neill asked how long they stayed there or when they left to return to Toronto. Be that as it may, it makes little sense to me that the men would want to go all the way to Brampton for what must have been a very short time, judging by the fact they were pulled over shortly before 8:00 p.m., at which time, according to O’Neill, they were on their way back from Brampton to the accused’s home, having made a stop along the way.

[67] Quite apart from what their inclinations might have been, I do not accept that the men would have been able to drive all the way to Brampton, stay long enough to make the trip worthwhile, and then come all the way back to Toronto, making a stop along the way, in time to be stopped by the police shortly before 8:00 p.m.

[68] Moreover, since the following day was Sunday, and no one contends that the accused worked on Sunday, if O’Neill were to have gone home that evening, it would, of necessity, have involved yet another trip to Brampton for the accused to take O’Neill home.

[69] Eleventh, O’Neill gave at least two, and arguably three, different accounts of when he first noticed the police car that ultimately pulled them over. In examination-in-chief, he first said that the police had been following them for approximately 15 minutes before pulling them over. Still in examination-in-chief, O’Neill then said that he did not notice the police car until its lights were activated. Then he said that he noticed the car as they were stopped at the light at Sentinel Dr., waiting to turn left.

[70] It seems to me that O’Neill’s second and third answers cannot refer to the same time because Lourenco indicated that he had to execute a U-turn in order to pursue the accused’s vehicle, such that in all likelihood the accused no longer would have been at the light by the time Lourenco activated his lights. If O’Neill’s answers refer to different times, then that is a further inconsistency in O’Neill’s testimony. However, since Lourenco was not asked exactly when he activated his lights, it is possible, although unlikely, that the accused still had not turned left onto Sentinel Dr. by the time Lourenco put his lights on. That said, I will give O’Neill the benefit of the doubt on this score. Even so, he is inconsistent on this point.

[71] Twelfth, O’Neill is a drug dealer, by his own admission and as demonstrated by his criminal record, which consists of two convictions for conspiracy to traffic in a controlled substance. As such, he is a disreputable person. He also has a conviction for failure to comply with a recognizance. While by no means dispositive in itself, his low moral character detracts from his credibility.

[72] Thirteenth, he is a long-time friend of the accused and, thus, has a strong interest in the outcome of the trial. While I caution myself that this is true of many witnesses and does not necessarily mean that O’Neill was being less than forthright, it is, nonetheless, one factor that, taken together with others, contributes to my disbelief of his evidence.

[73] In summary, then, I reject O’Neill’s evidence concerning the ownership of the gun, how it came to be in the car and the accused’s attitude toward the firearm and it does not raise a reasonable doubt in my mind.

Wilful Blindness

[74] In R. v. Briscoe, 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 21-23, Charron J. held:

Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. As Sopinka J. succinctly put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?”

Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness. The emphasis bears repeating. As the Court explained in Sansregret (at p. 584):

... while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry. [Emphasis added.]

It is important to keep the concepts of recklessness and wilful blindness separate. Glanville Williams explains the key restriction on the doctrine:

The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge …. [Citations omitted; emphasis in original.]

[75] In R. v. Duong (1998), 1998 7124 (ON CA), 39 O.R. (3d) 161 (C.A.), at pp. 168-69, Doherty J.A. held:

These authorities make it clear that where the Crown proves the existence of a fact in issue and knowledge of that fact is a component of the fault requirement of the crime charged, wilful blindness as to the existence of that fact is sufficient to establish a culpable state of mind. Liability based on wilful blindness is subjective. Wilful blindness refers to a state of mind which is aptly described as “deliberate ignorance”. Actual suspicion, combined with a conscious decision not to make inquiries which could confirm that suspicion, is equated in the eyes of the criminal law with actual knowledge. Both are subjective and both are sufficiently blameworthy to justify the imposition of criminal liability. [Citation omitted.]

[76] I am satisfied that, in relation to offences arising from unlawful possession of a firearm, the doctrine of wilful blindness applies as a means by which to attribute criminal liability: see R. v. Llewellyn, 2007 51792 (Ont. C.A.), at paras. 15-17; and R. v. Balasuntharam, [1997] O.J. No. 6517 (Gen. Div.), at para. 35, aff’d 1999 1979 (Ont. C.A.). I hasten to add that, as distinct from wilful blindness, mere recklessness will not suffice as a basis of liability: R. v. Sandhu (1989), 1989 7102 (ON CA), 50 C.C.C. (3d) 492, at pp. 497-98.

[77] Indeed, defence counsel acknowledged that the court must consider wilful blindness, but argued that the court should accept O’Neill’s evidence that the accused told him that he did not want anything to do with the firearm. If the court were to believe that evidence, or be left with a reasonable doubt that it might be true, then, according to Mr. McLeod, the accused could not be said to have been wilfully blind because there would have been no reason for the accused to suspect that there might be contraband in the car.

[78] I do not believe O’Neill’s evidence on this point for two reasons.

[79] First, according to O’Neill, the accused knew that he, O’Neill, was armed with an illegal handgun in part for the purpose of doing his drug deals and yet was nonetheless prepared to countenance O’Neill using his car to do drug deals on virtually a daily basis for a period of approximately five weeks. In so doing, he would have been a party to the drug dealing by aiding O’Neill. If the accused were “panicking”, to use O’Neill’s word, about O’Neill having a pistol, it defies common sense that he would allow his car to be used in connection with an activity in which he knew O’Neill routinely, if not invariably, carried the pistol.

[80] Second, because O’Neill said he told the accused, the accused knew that O’Neill also wanted the gun because of the shootings in the neighbourhood. That danger, as earlier noted, transcends the danger peculiar to drug dealing and would, presumably, exist any time O’Neill was in that part of the city, which is where the accused lived. Therefore, there would be no good reason why the accused would feel assured that O’Neill would not have the gun on his person at times when he was with the accused.

[81] More importantly, even if I did believe O’Neill or I were left with a reasonable doubt on this issue, after considering the doctrine of wilful blindness I have concluded, for the following reasons, that O’Neill’s evidence would not avail the accused.

[82] As outlined above, O’Neill said that:

(i) he had told the accused he intended to buy a firearm;

(ii) he bought the firearm approximately five weeks before October 22, 2011;

(iii) the accused knew, because O’Neill had told him, that, while he was at work, O’Neill used his car to travel to the sites of his drug deals;

(v) he was doing his “drug transactions” every day and had the pistol with him when he was doing these transactions;

(vi) the accused knew, because he had told him, that he used the recess behind the panel in the dash to store drugs;

(vii) the accused knew, because he had told him, that he routinely carried the pistol when he was engaged in drug dealing; and

(viii) the accused knew that he had been in possession of the car that very day.

[83] To my mind, those facts, if accepted, would form a basis upon which the accused ought to have strongly suspected that at any given time, including the day in question, O’Neill might be using the compartment to store drugs and/or the firearm. In those circumstances, if they in fact existed, the accused would have been obliged to make inquiries. He cannot avoid liability simply by telling O’Neill on one occasion that he wanted nothing to do with any firearm. To quote a portion of the passage from Briscoe, at para. 23, “it can almost be said that the defendant actually knew.” O’Neill’s evidence is such that, if true, the accused must, of necessity, have suspected that the compartment might contain drugs and/or the gun. He would have realized the probability that such was the case but deliberately refrained from making inquiries or checking for himself because he wanted to be able to deny knowledge.

Case for the Crown

[84] In R. v. McIntosh, 2003 41740 (O.N.S.C.), at paras. 62-63, Hill J. stated:

A vehicle driver who knows a legally prohibited item is in a vehicle is not in the same position as a passenger who may merely acquiesce to another’s, i.e. the driver’s possession. A driver, operating the vehicle with the owner’s consent, determines what is permitted to enter and stay in the vehicle and can “control access to the vehicle and exclude others from the vehicle”.

On the evidence here, I am satisfied that the only reasonable or rational conclusion is that either the accused owned and concealed the firearm and crack cocaine or Leighton Bonnick introduced the items into the Explorer with the accused’s consent and, given the status of Mr. McIntosh as the vehicle operator with the permission of Evans, he had control as well given his right to grant or withhold consent to the items being in the conveyance. I am left without a reasonable doubt, on the totality of the evidence, that the prosecution has proven knowledge on Mr. McIntosh’s part in fact and law. [Citations omitted.]

[85] In this case, the weapon was secreted behind a panel in the dash. D/C Lourenco’s evidence was that the fact that the panel was not secured to the vehicle was obvious to him by virtue of his experience as a drug officer.

[86] D/C Pace said that he did not notice anything unusual about the panel at first and, when he did look at it, the panel had already been lifted up by Lourenco. Defence counsel suggested that this should create a doubt whether the accused would have noticed that it was not firmly secured to the dash. I am not surprised, however, that Pace would not have noticed it before Lourenco did because Pace was concerning himself with looking for liquor at that point.

[87] The accused’s girlfriend, Ms. Kheng, said that she had ridden in the vehicle many times without noticing anything unusual about the dash area of the car. That said, she acknowledged that the occasions she had been in the car were around the time she was pregnant and just after she had given birth to her child and that, certainly on the latter occasions, she was for the most part preoccupied with the child. Hence, there would be no reason in particular why she would notice the condition of the dashboard.

[88] The evidence that the accused was the principal driver of the Honda, that he drove the car regularly and that he was the driver on the occasion in question supports the conclusion that he had a greater measure of control over it and its contents than the other occupants: R. v. Sanghera, 2012 BCSC 733, at para. 94.

[89] I am satisfied on the Crown’s evidence that the accused must have been aware of the fact that the dash panel was loose and must have known of the cavity beneath it. O’Neill’s evidence, if it were accepted, would confirm that the accused knew of the recess.

[90] On the basis of Hill J.’s analysis in McIntosh, which I adopt, it is clear that the accused had control over the car and, as a part of that control, the right to grant or withhold consent to items being in the car. On that basis, I am satisfied beyond a reasonable doubt that the only rationale conclusions on the evidence before me are that the accused concealed the firearm or, in the alternative, if O’Neill introduced the items into the car, he did so with the accused’s knowledge and consent.

[91] Further, for the reasons set out above, even if I had a reasonable doubt on the issue of the accused’s actual knowledge, which I do not, I am satisfied that the accused was, at the very least, wilfully blind to the presence of the pistol.

[92] As for the allegation that the firearm was loaded, I am satisfied beyond a reasonable doubt that the only reasonable inference is that the accused knew the weapon was loaded either:

(i) because he himself put the gun there or,

(ii) because, if O’Neill put it there, then, given the reasons for which O’Neill said he had the firearm in the first place, it would only be sensible to infer that it would be loaded.

The Defence Advanced vis-à-vis the Controlled Substance

[93] Turning to the drug charge, it is not enough to show that the accused was in possession of the drug to be guilty; he must also know that the substance is a controlled substance: R. v. Beaver, 1957 14 (SCC), [1957] S.C.R. 531, at pp. 541-42. That said, as long as an accused knows that a substance is a controlled substance, it need not be shown that he knew the precise nature of the drug: R. v. Williams, 2009 ONCA 342, 95 O.R. (3d) 660, at para. 19; R. v. Blondin, 1970 1006 (BC CA), [1971] 2 W.W.R. 1 (B.C.C.A.), at pp. 13-14, aff’d 1971 1411 (SCC), [1972] 1 W.W.R. 479 (S.C.C.).

[94] Little time was spent in argument discussing this count.

[95] As distinct from his evidence concerning the firearm, O’Neill never contended that the drugs belonged to him or that he even sold this type of drug. It is not contested that the accused was the operator of the car and that the drugs were in close proximity to him. Accordingly, I find as a fact that he knew of the presence of the substance and its character. Against that backdrop, by virtue of the accused being the de facto owner of the car, the principles from McIntosh apply equally here.

Result

[96] For the foregoing reasons, I have reached the following conclusions respecting the remaining counts on this indictment.

Counts 1 and 4

[97] On counts 1 and 4, the evidence reveals and I find as a fact:

(i) that the accused had constructive possession of the pistol;

(ii) that it was loaded with live ammunition; and

(iii) that he was not the holder of either a licence or an authorization by means of which he might lawfully possess it.

Accordingly, I find the accused guilty on both counts. I will deal with the question of whether the rule against multiple convictions applies to these two counts on the sentence hearing.

Counts 2 and 7

[98] On counts 2 and 7, the evidence reveals and I find as a fact:

(i) that, at the time he had constructive possession of the pistol, the accused was the driver of a motor vehicle; and

(ii) that the accused knew the pistol was in that motor vehicle and loaded with live ammunition.

Accordingly, I find the accused guilty on both counts.

Count 5 and 6

[99] On counts 5 and 6, the evidence reveals and I find as a fact:

(i) that the pistol was fully loaded with live ammunition, including one round in the firing chamber; and

(ii) that it was stored in a place that, at the risk of stating the obvious, was never intended to store anything, much less a firearm.

There having been no argument that that these findings would not suffice to prove careless storage of the firearm, and having been satisfied on the issue of possession, I find the accused guilty on these counts.

Count 8

[100] On count 8, the evidence reveals and I find as a fact that on October 22, 2011, the accused was bound by the prohibition order imposed upon him by Bigelow J. on March 10, 2011. Accordingly, having found that the accused had constructive possession of a prohibited firearm, I find him guilty on this count.

Count 10

[101] On count 10, the evidence reveals and I find as a fact that the accused was in possession of a controlled substance, namely, Ketamine. Accordingly, I find him guilty on this count.

R. Clark J.

Released: August 12, 2013

[^1]: Exhibit 16 is a certified copy of the prohibition order. Exhibit 7-H and Exhibit 7-I are copies of the order and a Notice of Fine, respectively, in relation to the conviction. These latter two documents were seized from the accused’s car on the night he was arrested on the charges at issue in this case. Exhibit 7-H and Exhibit 7-I were entered into evidence during the Crown’s case as circumstantial evidence tending to establish that the accused was the principal operator of the vehicle.