Ontario Superior Court of Justice
Court File No.: CR13300002610000
Date: 20131212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NIKKO BASSOO-NARINE
Defendant
Joseph Hanna, for the Crown
David Bayliss, for the Defendant
HEARD: November 4-18, 2013
REASONS FOR JUDGMENT
HAINEY J.:
Overview
[1] Nikko Bassoo-Narine is charged with the following offences that are alleged to have occurred on August 5, 2012 in the City of Toronto:
Unlawful possession of a loaded firearm contrary to section 95 (1) of the Criminal Code;
Unlawful possession of a prohibited firearm contrary to section 91 (1) of the Criminal Code;
Being an occupant of a motor vehicle in which he knew there was a firearm contrary to section 94 (1) of the Criminal Code; and
Possession of a firearm while he was prohibited from doing so because of an order under the Youth Criminal Justice Act contrary to section 117.01 (1) of the Criminal Code.
[2] Mr. Bassoo-Narine pleaded not guilty to all charges and was tried by me without a jury.
[3] At the commencement of trial Mr. Bassoo-Narine applied for an order pursuant to sections 8, 9 and 24(2) of the Canadian Charter of Rights and Freedoms excluding a firearm that was seized by the police as a result of violations of his rights.
[4] I found that Mr. Bassoo-Narine’s rights under section 9 of the Charter had been violated when he was arrested. Crown counsel conceded that his rights under section 8 of the Charter had also been violated.
[5] I concluded that the firearm seized by the police should not be excluded under section 24(2) of the Charter.
[6] Following my ruling under section 24(2) of the Charter, counsel agreed that most of the evidence on the Charter application would apply to Mr. Bassoo-Narine’s trial.
[7] All of the charges relate to events that are alleged to have occurred around 2:47 a.m. on August 5, 2012 in a parking lot located at 1320 Danforth Road in the City of Toronto. Mr. Bassoo-Narine was a passenger in the front seat of a car that was parked there.
[8] At the time Mr. Bassoo-Narine was under police surveillance as a result of information police had received from a confidential informant that he was in possession of a firearm. A warrant to search Mr. Bassoo-Narine’s residence had been obtained. Mr. Bassoo-Narine had been under police surveillance over the previous two-day period.
[9] When the car in which Mr. Bassoo-Narine was a passenger entered the parking lot the police officers were ordered to “take it down” and arrest Mr. Bassoo-Narine.
[10] A number of police officers approached the parked car. Mr. Bassoo-Narine was forcibly removed and placed under arrest. A loaded gun was located on the ground beside the front passenger door of the car after Mr. Bassoo-Narine had been removed and handcuffed by the police.
[11] There is a dispute about how Mr. Bassoo-Narine was removed from the car and how the gun ended up on the ground beside the car.
[12] According to the police officers’ evidence, D.C. Magee was the first officer to arrive at the front passenger’s window of the car. He pointed his gun and a flashlight at the passenger’s window of the car and yelled “police, don’t move”. He testified that he observed the butt of a gun in the waistband of Mr. Bassoo-Narine’s pants through the partially-opened front passenger’s window. He immediately opened the front passenger’s door and removed Mr. Bassoo-Narine from the car and forced him onto the ground.
[13] According to D.C. Magee, as he was removing Mr. Bassoo-Narine from the front passenger seat, the gun fell from Mr. Bassoo-Narine’s waistband onto the ground. D.C. Magee kicked it away so that Mr. Bassoo-Narine would not fall onto it. The gun ended up beside the car where it was later seized by the police. It was fully loaded.
[14] Detective Constables D’Onofrio, Fougere and McKernaghan, who were near D.C. Magee when he removed Mr. Bassoo-Narine from the car, testified that as D.C. Magee removed him from the car through the open front passenger’s door, they heard an object hit the ground. They later determined it was a gun.
[15] Mr. Bassoo-Narine testified that shortly before the police arrived at the parked car the driver threw an object out of the front passenger’s window. The object hit the car parked next to them and landed on the ground next to their car. Mr. Bassoo-Narine later determined that the object the driver had thrown out of the window was a gun. He had no idea that the driver had been in possession of a gun before this happened.
[16] Mr. Bassoo-Narine testified that immediately after the driver threw the object out of the window he saw a police officer pointing a gun and a flashlight at him outside the car. This startled him. He immediately raised his hands and yelled that he was not resisting. His seatbelt was buckled up. He asked permission to unbuckle it. The officer let him reach down to unbuckle his seatbelt. The officer then reached through the window, grabbed him by the shoulder and pulled him out of the car through the partially-opened front passenger’s window. The officer then forced him onto the ground beside the car. He was handcuffed and then moved beside an adjacent vehicle where he saw the gun on the ground beside the car.
[17] He denied that he had a gun tucked into his waistband at any time or that a gun fell onto the ground from his waistband as he was being removed from the car. He also denied that he was removed from the car through the open front passenger’s door.
Issue
[18] The only issue I must decide is whether Mr. Bassoo-Narine was in possession of the gun seized by the police. Mr. Bayliss concedes that all other elements of the offences charged have been established beyond a reasonable doubt.
General Principles
[19] I must decide this case on the basis of many well-established principles. The first is that a criminal trial is not a credibility contest between witnesses. The second is that Mr. Bassoo-Narine is presumed to be innocent. The third is that the onus of proving the case beyond a reasonable doubt rests at all times with the Crown. Accordingly, even if I find that the evidence establishes a likelihood of guilt, or a probability of guilt or even a strong probability of guilt on the part of Mr. Bassoo-Narine, he must be acquitted of the charges as that level of proof is insufficient to meet the standard of proof beyond a reasonable doubt.
[20] Further, in assessing the evidence in this case I am bound by the Supreme Court of Canada’s decision in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. If I believe Mr. Bassoo-Narine’s evidence I must acquit him. If I do not believe his evidence but I am left with a doubt by it, I must acquit him. Even if I am not left in doubt by Mr. Bassoo-Narine’s evidence, I must be convinced beyond a reasonable doubt on all of the evidence that I do accept that Mr. Bassoo-Narine is guilty. If I am unsure where the truth lies I must acquit Mr. Bassoo-Narine.
Positions of the Parties
[21] Crown counsel, Mr. Hanna, submits that Mr. Bassoo-Narine’s possession of the firearm has been established beyond a reasonable doubt. Mr. Hanna argues that I should accept the four police officers’ testimony about what happened when Mr. Bassoo-Narine was removed from the car by D.C. Magee. Mr. Hanna submits that this leads to the inescapable conclusion that he had been in possession of the gun. He relies upon D.C. Magee’s evidence that he saw the butt of the gun in Mr. Bassoo-Narine’s waistband when he was seated inside the car. He also relies on the four officers’ evidence that the gun fell onto the ground from Mr. Bassoo-Narine as he was being removed from the car. Mr. Hanna further submits that Mr. Bassoo-Narine’s testimony was inconsistent and did not make sense. He argues that I should reject his evidence for these reasons.
[22] Defence counsel, Mr. Bayliss, submits that when I assess Mr. Bassoo-Narine’s testimony in accordance with the requirements of R. v. W. (D.)., I should be left with a reasonable doubt that he was in possession of the gun because his version of events could reasonably be true. He argues that I should draw an adverse inference against the Crown for failing to call the driver of the car as a reply witness. Further, he argues that certain aspects of the police officers’ evidence are not credible and that their evidence cannot satisfy me beyond a reasonable doubt that Mr. Bassoo-Narine was in possession of the gun.
Analysis
[23] I reviewed the evidence in detail in my reasons for decision on the application concerning the alleged section 8 and section 9 Charter breaches. I do not intend to repeat it other than to refer to the evidence that is relevant to Mr. Bassoo-Narine’s possession of the gun. I will deal first with the police officers’ evidence and then Mr. Bassoo-Narine’s evidence.
The Police Officers’ Evidence
[24] D.C. Magee testified that he received Detective Reid’s instructions to takedown the vehicle and arrest Mr. Bassoo-Narine. He pulled into the parking lot at 1320 Danforth Road and ran toward the parked car. Mr. Bassoo-Narine was seated in the front passenger’s seat. He believed that Mr. Bassoo-Narine was armed. D.C. Magee had his gun drawn in his right hand and a flashlight in his left hand.
[25] He approached the passenger side of the car and shone his flashlight through the partially-opened front passenger’s window. He pointed his gun at Mr. Bassoo-Narine who was seated inside. He yelled “police, don’t move”. This appeared to startle Mr. Bassoo-Narine who immediately raised his hands to his face. D.C. Magee then saw the butt of a gun in the left side of Mr. Bassoo-Narine’s waistband. The handle of the gun was pointed toward the front passenger’s door of the car.
[26] D.C. Magee started yelling “gun” as soon as he saw the gun in Mr. Bassoo-Narine’s waistband. He then opened the front passenger’s door quickly and pulled Mr. Bassoo-Narine out of the car and onto the ground. As he was pulling him out of the car, the gun fell out of Mr. Bassoo-Narine’s waistband onto the ground. D.C. Magee kicked the gun away so that Mr. Bassoo-Narine would not fall on it. Mr. Bassoo-Narine was then handcuffed while he was on the ground. The gun was later located on the ground beside the car where D.C. Magee had kicked it.
[27] P.C. Fougere testified that he received instructions from Detective Reid to takedown the vehicle and arrest Mr. Bassoo-Narine. He pulled into the parking lot at 1320 Danforth Road and observed other police officers running toward the parked car.
[28] He ran to the passenger side of the car and saw D.C. Magee pulling Mr. Bassoo-Narine out of the front passenger’s seat of the car. The front passenger’s door of the car was open. As D.C. Magee pulled Mr. Bassoo-Narine out of the car, P.C. Fougere heard a “clinking” sound as something hit the ground. After Mr. Bassoo-Narine was brought to the ground P.C. Fougere saw a gun on the ground beside the car.
[29] Under cross-examination he testified that he did not see D.C. Magee kick the gun when it fell to the ground. He also did not hear D.C. Magee yell “gun”.
[30] D.C. D’Onofrio testified that he received Detective Reid’s instructions to takedown the vehicle and arrest Mr. Bassoo-Narine. He ran toward the parked car in which Mr. Bassoo-Narine was seated in the front passenger seat. He saw D.C. Magee at the front passenger’s door of the car pulling Mr. Bassoo-Narine out of the car through the open front passenger’s door. He assisted D.C. Magee to pull him out and force him onto the ground. As Mr. Bassoo-Narine was being brought out of the vehicle, D.C. D’Onofrio heard a weighted object hit the ground. He also heard D.C. Magee yell “gun”. Once Mr. Bassoo-Narine was on the ground, D.C. D’Onofrio handcuffed him and moved him beside an adjacent vehicle.
[31] Under cross-examination D.C. D’Onofrio testified that he could not say whether he heard D.C. Magee yell “gun” before or after he heard the object hit the ground. He agreed that at the preliminary inquiry he testified that he had heard D.C. Magee yell “gun” after he heard the object hit the ground.
[32] D.C. McKernaghan testified that he also participated in the takedown of the vehicle. He pulled into the parking lot at 1320 Danforth Road. He got out of his car and ran towards the parked car. When he arrived at the passenger side of the car, D.C. Magee and D.C. D’Onofrio were there. D.C. Magee opened the front passenger’s door of the car. He pulled Mr. Bassoo-Narine from the front passenger’s seat. As he did, D.C. McKernaghan heard a “tinny scraping sound” of something hitting the ground. At the same time he also heard D.C. Magee yell “gun”. He then saw D.C. Magee kick a black object on the ground to the right. When he looked at the object he saw that it was a gun.
[33] In my reasons for decision on the Charter application with respect to the alleged breaches under sections 8 and 9 of the Charter I addressed Mr. Bayliss’ submissions regarding the police officers’ lack of credibility. In particular I considered his submissions regarding the following issues:
• The police officers’ notes;
• The call out takedown;
• The police officers’ demeanour;
• D.C. Magee’s observation of the gun in plain view.
[34] I do not intend to repeat my analysis of these issues. For the reasons I have already given on the Charter application I accept the police officers’ evidence. I found them to be credible and reliable witnesses.
Mr. Bassoo-Narine’s Evidence
[35] Mr. Bassoo-Narine testified that shortly after they had parked in the parking lot at 1320 Danforth Road he heard a screeching noise and looked over his right shoulder. He saw a silver pick-up truck he had seen earlier driving slowly outside of the Zoom bar. He testified that the driver of the car he was in then threw a gun out of the front passenger’s window.
[36] According to Mr. Bassoo-Narine he had no idea that the silver pick-up truck was being driven by a police officer. He agreed that there had been no discussion among any of the occupants in the car about the police being present before the driver threw the gun out of the window. He described the driver of the car as someone he saw a few times a month whose name is Daniel. He does not know his last name. He had his cell phone number. He was unaware that Daniel was in possession of a gun that night. Mr. Bassoo-Narine had no discussion with Daniel at any time about a gun that night.
[37] Almost immediately after Daniel threw the gun out of the window Mr. Bassoo-Narine saw a police officer outside the front passenger’s window of the car. He was pointing a gun and a flashlight at him. The officer said “freeze get out of the car”. Mr. Bassoo-Narine put his hands up and said “I’m not resisting, my seatbelt is on”. Mr. Bassoo-Narine then reached down and undid his seatbelt. The police officer then reached through the partially-opened window and grabbed him by the shoulder. He pulled him through the front passenger’s window and forced him onto the ground beside the car.
[38] Mr. Bassoo-Narine testified that he was then handcuffed and moved beside the car parked next to them. He then saw the gun on the ground near the front wheel well of the car he had been in.
[39] He testified that he did not have a gun in his waistband and that the gun on the ground beside the car had been thrown there by Daniel. He was adamant that he had no idea that Daniel had a gun that night.
[40] In my reasons for decision on the Charter application I concluded that Mr. Bassoo-Narine was not a credible witness. I set out the reasons why his testimony troubled me and why I did not accept it. I will not repeat those reasons but they apply to my assessment of his evidence at his trial.
[41] I find that his version of events is not plausible. It does not make sense that D.C. Magee would have allowed him to lower his left arm to undo his seatbelt and then reach inside the partially-opened passenger’s window and pull Mr. Bassoo-Narine out of the vehicle through the window. It also does not make sense that he would do so by grabbing onto Mr. Bassoo-Narine’s shirt with either one or two of his hands and pulling him through a space of only approximately 12 to 14 inches. Mr. Bassoo-Narine’s shirt was not ripped. He suffered no injuries to his chest or stomach. He could not recall feeling any pain when he was pulled through the window. This does not accord with common sense. It is not consistent with his description of how forcefully he was pulled through such a small opening in the window.
[42] It also does not make sense that Daniel would throw a loaded gun out of the passenger window of the car for no apparent reason. Further, Mr. Bassoo-Narine’s description of how Daniel did so is inconsistent and is not credible.
[43] For these reasons I do not believe Mr. Bassoo-Narine’s evidence that he was not in possession of the gun before he was removed from the car. His evidence does not leave me with a reasonable doubt that he was in possession of the gun. I am satisfied beyond a reasonable doubt on all of the evidence, and in particular the police officers’ evidence that I believe and accept, that he was in possession of the gun. I find that Mr. Bassoo-Narine had the gun tucked into the waistband of his pants and that it fell onto the ground as he was removed from the car.
Conclusion
[44] I am satisfied beyond a reasonable doubt that Mr. Bassoo-Narine was in possession of the gun. Since it is conceded that all other elements of the offences have been established I find him guilty of the four charges before the court.
HAINEY J.
Released: December 12, 2013
COURT FILE NO.: CR13300002610000
DATE: 20131212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NIKKO BASSOO-NARINE
Defendant
REASONS FOR JUDGMENT
HAINEY J.
Released: December 12, 2013