R. v. Moshe Erlich, 2015 ONSC 1678
COURT FILE NO.: CR-13-40000 355-0000
DATE: 20150313
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MOSHE ERLICH
Daniel De Santis, for Her Majesty The Queen
Dennis S. Morris, for the accused
HEARD: March 9-11, 2015
DUNNET J.: (Orally):
Reasons for Judgment
[1] The accused Moshe Erlich has been charged with unauthorized possession of a loaded prohibited firearm; possession of a firearm knowing that the serial number has been defaced; possession of a firearm knowing that its possession is unauthorized; and carrying a firearm in a careless manner.
[2] Erlich agrees that he had possession of the firearm, but submits that his intention was to surrender it to the police.
The Evidence
Police Officer Spencer Fraser
[3] On December 2, 2011, Police Officer Spencer Fraser was with Police Officers Walker and Coutts in street clothes in an unmarked vehicle conducting observations of the main entrance to the National Banquet Hall at 1000 Finch Avenue West in Toronto. They had received information from a confidential informant about a man with a gun named Moshe who was described as white, Russian, in his fifties, with grey hair.
[4] Fraser observed a white man with grey hair stick his head out of a door leading from the kitchen area of the Banquet Hall to the parking lot. The man did this a couple of times, looking around from side to side; he appeared to be nervous.
[5] At eleven o’clock p.m. Fraser heard a 911 call over the radio about two or three people trying to start a fight with each other at the Banquet Hall. There were no weapons involved. Fraser told the dispatcher that they were already on scene. He was aware that Police Officers Lloyd and Alexiou were en route to the Banquet Hall and that Alexiou had a photograph of the man.
[6] Coincidental with the 911 call, Fraser saw the man who had been looking out the kitchen door enter the parking lot. He was wearing a black jacket and dark blue jeans. He was holding a cell phone in his left hand and speaking to someone on the phone. The officer noticed that the man’s jacket was undone and the right side of the jacket was hanging lower than the left side. The man touched and grabbed the right side pocket of his jacket with his right hand three or four times. There appeared to be something heavy on that side of the jacket. Fraser concluded that the man was displaying the characteristics of an armed person.
[7] He got out of the vehicle and approached the man, who was still talking on the phone. He stood in front of the man and said, “How’s it going?” The man replied, “Good” and Fraser thought that he had a Russian accent. At the same time, Fraser noticed Alexiou walking towards him giving an affirmative nod that this was the man for whom they had the description.
[8] Fraser displayed his badge, identified himself as a police officer and asked the man his name. He replied, “Mike.” Fraser grabbed the right front pocket area of his jacket and felt a heavy metal object. From his experience, he knew that the object was a firearm and yelled “gun” to alert the other officers.
[9] At 11:05 p.m. Fraser arrested Erlich for possession of a firearm. Walker and Coutts took hold of his arms on each side. Fraser could not remove the gun from inside the right pocket, so he removed the jacket while holding onto the pocket with the gun. The other officers held the man’s arms. Fraser testified that Erlich was not combative and he was cooperative.
[10] Erlich was handcuffed, placed into a police vehicle and transported to the station. Fraser testified that he had to use a knife to cut the lining of the jacket in order to reach inside the pocket and remove a palm-sized handgun. There is no issue that that the gun is a Raven Arms, Model P-25, .25 auto calibre centre-fire semi-automatic handgun with a detachable box cartridge magazine. The serial number on the gun had been removed. Inside the magazine were six cartridges of .25 auto calibre centre-fire ammunition. Inside the jacket was $760 in cash and a wallet containing a driver’s licence for Moshe Erlich with a birthdate of May 9, 1953, credit cards and a Firearms Acquisition Certificate.
[11] The police applied for a warrant to search Erlich’s residence and the application was denied at 6:20 a.m. on December 3, 2011. At 7:50 a.m. Erlich signed a formal consent to search his residence. Police located ten long guns, one handgun, one crossbow and ammunition. All of the firearms were lawfully registered.
[12] In cross-examination, Fraser testified that, as he had a duty to protect the confidential informant, he claimed privilege for questions posed to him about what information was provided to the police, how long they were conducting observations, when he first made observations of Erlich, when he was made aware that Alexiou had a photograph of the man, and whether anything happened in the parking lot before the arrest.
[13] Fraser testified that when Erlich was in the parking lot, he did not see anyone else in the lot or observe any vehicle pulling up to the kitchen door. He was not aware of any problems in the kitchen. He agreed that Erlich could have been waiting for someone to arrive in the parking lot.
[14] Fraser acknowledged that when he first approached Erlich, he did not tell him that he was a police officer. After he arrived at the station, Erlich was held in an interview room until morning and Fraser did not know why an audio- or videotaped interview of Erlich was not conducted. He denied that he was not interested in a thorough investigation. He said, “I was one hundred per cent interested in getting the gun off the street.”
Police Officer David Walker
[15] Police Officer David Walker was in street clothes in the unmarked vehicle with Fraser when he saw a person fitting the description of the man that Fraser had given him. The man was popping his head out the kitchen door and appeared to be looking for someone.
[16] Walker saw the man enter the parking lot. As he walked alongside a black SUV motor vehicle, the man was talking on his cell phone in his left hand and appeared to be looking around for someone or something.
[17] The officer described the man as white, fifty to sixty years old and wearing a black leather jacket and dark blue jeans. The jacket was hanging low on the right side as if something heavy was in the pocket. He described it as “very noticeable”. His right hand patted the pocket area two times on the right side of the jacket where the heavy object appeared to be. He testified that the man displayed characteristics of being armed.
[18] Walker said that they got out of their vehicle and calmly approached the man who was standing near the rear bumper of the SUV. Coutts approached from the left, Fraser from the front, and Walker from the right. Walker said that it appeared as if the man was unaware that they were approaching. The man took the cell phone in his right hand and continued to talk. Fraser said to him, “How’s it going?” and he said, “Good.” Walker detected a Russian accent. Fraser displayed his badge and asked, “What’s your name?” and he answered, “Mike.” Fraser clutched the right jacket pocket, said, “Gun” and arrested him.
[19] Walker grabbed the man’s right wrist and held his arm out and away from the jacket pocket. Fraser was unable to remove the gun from the pocket and they decided that it was easier to remove the jacket. After the jacket was removed, Coutts applied handcuffs and Walker did a pat-down search. Walker testified that Erlich did not resist and was very cooperative at all times.
[20] In cross-examination, Walker agreed that en route to Erlich’s residence the following morning, he recorded in his notes that Erlich said: “Two guys were fighting and he stepped in and took a gun off one of them. If we were in uniform, he would have given the gun to us. He worked part time there as a handyman and he was waiting for a plumber to show up as they had a water backup in the kitchen.” Walker did not remember whether he mentioned the conversation to any other officer.
Sergei Shatohin
[21] Sergei Shatohin testified on behalf of the Crown. On December 2, 2011, he was the bartender manager at the Banquet Hall. He testified that Erlich was a friend of the manager, Albert Abromovich. He came to the Banquet Hall to help out his friend because Abromovich was losing his vision.
[22] That night there was a big problem with the drain in the kitchen floor. Water was coming from the drain onto the floor and Erlich called a plumber. Abromovich arrived at eleven o’clock p.m. and told Shatohin to call the police.
[23] He called 911 and said that two people were trying to pick a fight inside the Banquet Hall. There were no weapons or injuries.
[24] In cross-examination, Shatohin said that Abromovich arrived at the Banquet Hall about ten or fifteen minutes before he told him to call the police. Abromovich looked worried, but he did not tell him why. Shatohin testified that Abromovich did not normally call the police and when he told him to do so, Shatohin did not ask why.
[25] He testified that Abromovich did not tell him what to say to the police, so he had to come up with something right away. He remembered that around ten o’clock some people were having an argument and started to fight inside the restaurant and the fight “went outside.” He recalled that Erlich was inside the Banquet Hall when the men were arguing before they went outside. He did not see any guns.
[26] In re-examination, Shatohin said that Erlich arrived at the Banquet Hall at about eight o’clock that night and he was in the kitchen helping out with the water and sewage coming from the drain. Erlich said nothing to him about the fight that happened between the two men. The only conversation they had was about getting a plumber and Erlich spent most of the evening outside waiting for the plumber to arrive.
Albert Abromovich
[27] Albert Abromovich testified that he has known Erlich for twenty years. He frequently came to the Banquet Hall to drive him places and assist him with shopping.
[28] At 10:29 p.m. on December 2, 2011, Abromovich received a telephone call at home from Erlich who said that there was a problem with a leak in the kitchen drain at the Banquet Hall. When he arrived ten or fifteen minutes later, Erlich was waiting for him outside by the kitchen door. He told Abromovich that he had called a plumber. He also told him that there was a fight. He had taken a gun from one of the men and he wanted Abromovich to call the police to give them the gun.
[29] Abromovich went immediately to the kitchen to check on the drain problem and told Shatohin to call the police. He did not tell Shatohin about the gun. An employee told Abromovich later that he saw the police take Erlich away. Abromovich did not know why.
[30] In cross-examination, Abromovich said that when Erlich telephoned him at home, he did not tell him that, aside from the flooding, there was a problem that he wanted to discuss with him. Abromovich testified that as soon as he arrived at the Banquet Hall, Erlich told him about the fight that started in the lobby. He said that after he took the gun away from one of the men, they ran outside.
[31] Abromovich testified that after he spoke with Erlich, he ran into the kitchen and saw that the water was five to six centimetres high. It was preventing the employees from preparing the food. After that, he told Shatohin to call the police. He testified that he did not say anything about the gun because Shatohin was just an employee and he did not want anyone in the restaurant to know about it.
Moshe Erlich
[32] Moshe Erlich testified with the assistance of a Russian interpreter. He was born in Moldova and obtained a high school education before serving in the Russian and Israeli armies. He came to Canada in 1987 and became a Canadian citizen. He was married for twenty-six years and is the father of four children. He has been gainfully employed as a truck driver and has no criminal record. He has been a hunter for forty years and has a Firearms Acquisition Certificate for all of the weapons that he owns.
[33] Erlich has been a friend of Abromovitch for twenty-two years. When the latter’s eyesight began to fail, Erlich went to the Banquet Hall two or three times a week to act as his driver and make purchases on his behalf for the restaurant.
[34] On December 2, 2011, Erlich was at the Banquet Hall when he learned that water rising from the kitchen drain was flooding the kitchen. He called a plumber between 8:30 p.m. and 9:00 p.m.
[35] Between 10:00 p.m. and 10:30 p.m., Erlich saw two men between the ages of twenty-five and thirty-five years shouting at each other and pushing each other. He approached them and said, “This is a restaurant. Take it outside.” They started walking towards the front doors shouting at each other and he followed them.
[36] When they reached the foyer, one man pushed the other man towards the front door. When the man turned around, the pusher pulled out a gun. Erlich was standing one foot away from him. He grabbed the gun from the top with his right hand and moved it in such a way that if it fired, it would fire into the wall. At the same time, he hit the man’s right elbow hard with his left hand and the gun ended up in Erlich’s hand. He testified that he thought he may have broken the man’s arm.
[37] The men went outside along with three other men who had been watching the incident inside the foyer. Erlich opened the front door and saw the two men continuing to push each other. He shut the door immediately and put the gun inside the zippered pocket on the right side of his jacket. Then he called Abromovich. Telephone records indicate that the three minute call was placed at 10:29 p.m. Erlich testified that he told Abromovich to come to the Banquet Hall as soon as possible because of the plumbing situation and other problems.
[38] While waiting for Abromovich to arrive, Erlich went back to the kitchen to check the leak and he telephoned the plumber again at 10:34 p.m. He testified that he was looking out the kitchen door because he was waiting for the plumber to arrive.
[39] His evidence was that when Abromovich arrived, “I told him there was a fight and I grabbed the gun and we need to call the police.” He said that he wanted Abromovich to make the call because his English was not good enough.
[40] When he went outside to the parking lot, he was approached by a man who asked for his name. Other men came over and grabbed him and twisted his arms back. Then Fraser showed him his badge and asked for his name. They took off his jacket, applied handcuffs and put him inside a police car. Erlich testified that the men who approached him were in civilian clothes and he did not realize what was happening. He was in shock.
[41] In cross-examination, Erlich testified that fifteen minutes after the men went outside, the man who had been pushed against the front door returned to the Banquet Hall.
[42] When he was asked why he did not call the police himself, he said that he expresses himself in English in a simple way, not a professional way. He knew that Abromovich was working with the police and knew how to deal with them.
[43] He said that before Abromovich arrived, Erlich told no one about the gun. He did not want people in the restaurant to know that someone had been there with a gun. He said that Abromovich was his friend and people would stop coming to the Banquet Hall if they heard about guns. He was nervous having someone else’s gun in his pocket, but Abromovich had told him that he was on his way.
[44] He maintained that he did not tell Abromovich about the gun on the telephone. After he told him about the flooding, he said, “We have another big problem.” As soon as Abromovich arrived, Erlich met him outside and explained what had happened during the gun incident. He told Abromovich to call 911 and he understood that his friend was going to do so.
Crown’s Position
[45] The position of the Crown is that there was no fight in the Banquet Hall that led to Erlich taking the gun.
[46] The Crown submits that Erlich’s evidence that he risked grabbing the gun while it was being aimed at another person defies common sense. Also, it defies common sense that after he took away the gun and possibly broke the arm of the gunman, the men left and continued the fight outside. Erlich could not say whether the men who witnessed the fight in the foyer were with the men who were fighting. It is submitted that a reasonable person would have realized the potential for retaliation and called the police to prevent matters from escalating.
[47] Moreover, because Erlich did not have a financial interest in the Banquet Hall, his concern that the patrons’ knowledge of the presence of a gun could hurt the business does not make sense.
[48] It is the Crown’s contention that if the disposition of the gun was urgent, Erlich could have told Abromovich about it on the telephone and Abromovich could have called the police before he arrived at the Banquet Hall. Further, he could have told Shatohin and asked him to call 911. The Crown states that Erlich’s explanation that his English was not good enough does not make sense because he was able to communicate with the police the next morning.
[49] The Crown submits that the evidence of Abromovich should not be believed. It is asserted that it does not make sense that Abromovich told Shatohin to call the police without telling him why. The Crown contends that Abromovich did not tell Shatohin about a gun because Erlich said nothing about a gun to Abromovich.
[50] The Crown accepts that there was a fight that night and that Shatohin called 911. However, Erlich was not in innocent possession of the gun. He was carrying a loaded prohibited firearm in his pocket, knowing that he did not have authorization to possess it.
The Position of the Defence
[51] The defence submits that this fifty-seven-year-old Canadian citizen and father of four has had no brushes with the law since his arrival in Canada twenty-four years before this incident. He has been gainfully employed, enjoys hunting, and possesses lawful authorizations for his weapons.
[52] The position of the defence is that Erlich was targeted by police for criminal activity as a result of information they received from a confidential informant and from their observations that he was displaying characteristics of an armed man. After his arrest, the police made no effort to take an official statement from him and Erlich did not have an opportunity to proclaim his innocence. It was only after he consented to a warrantless search of his residence that he interacted with Walker and told him how he came into possession of the gun. There is no evidence that the police did anything with the information that he provided. The defence asserts that the police had “a bird in the hand” and were satisfied that there was no need to pursue further leads.
[53] The defence submits that the evidence of Abromovich and Shatohin has the ring of truth. Moreover, Erlich’s explanation should be believed: after he came into possession of the gun, his intention was always to give it to the police. At the time of his arrest, he was anxiously waiting for the plumber to arrive to deal with the flood and, having told Abromovich to call the police about the gun, he assumed that he had done so.
Analysis
[54] There is no issue that Erlich had a loaded firearm in his pocket when he was arrested by the police. His evidence as to what occurred during his interactions with the police was not significantly different from their testimony.
[55] The issue is whether the defence of innocent possession is available to Erlich. There are circumstances where a person has the requisite knowledge and custody of a thing, but no intent to exercise control over the thing. The requisite mens rea is lacking to establish the crime. It is important to take his conduct into account as well as the length of time the person maintains control over the thing in his possession.
[56] The police had information from a confidential informant about a man with a gun. They had a description and a photograph of the man. They saw Erlich popping his head out of the kitchen door. He appeared to be looking for someone or something.
[57] When he entered the parking lot, the police noticed that his jacket hung lower on the right side and he was touching and patting the right side of his jacket as if there was something heavy inside the pocket. They concluded that he was displaying characteristics of an armed man and arrested him at 11:05 p.m. Inside the pocket was the firearm.
[58] There is no evidence that Erlich was given an opportunity to explain to the police why he had the firearm. There was no audio- or video-taped statement. The following morning, in general conversation in the vehicle on the way to search his residence, Erlich told Walker that two guys were fighting and he stepped in and took a gun from one of them and he would have given the gun to the police if they had been in uniform when they approached him.
[59] Walker did not remember if he mentioned the discussion to anyone. Fraser also heard the conversation and denied that he was not interested in a thorough investigation. He said that his interest was in getting the gun off the street.
[60] During the trial, Erlich demonstrated how he was able to disarm the gunman by instinctively grabbing the top of the gun and pointing it downwards at the same time as he hit the gunman’s elbow, causing him to release the gun. Given Erlich’s military background in the Russian and Israeli armies, I conclude that he would have been trained in hand-to-hand combat and was also well aware of the dangers posed by the presence of a gun in such a large establishment.
[61] The Crown’s evidence is that when they searched his home, Erlich had registration certificates for all of his weapons. In my view, his conduct in carrying a loaded unauthorized weapon in his pocket is inconsistent with his practice as a hunter to ensure that he was in lawful possession of his weapons.
[62] Erlich’s evidence was that the fight started sometime between 10:00 p.m. and 10:30 p.m. He was able to disarm the man quickly and put the gun inside his zippered pocket so that it would not fall out. He telephoned Abromovich at 10:29 p.m. and told him to come to the Banquet Hall right away because of the plumbing issue and “other problems”.
[63] Ten or fifteen minutes later, Abromovich arrived at the Banquet Hall and Erlich was waiting for him outside. Erlich and Abromovich both testified that they discussed the seizure of the gun as soon as Abromovich arrived. He told Abromovich to call the police and assumed that he did so.
[64] Although Abromovich did not remember Erlich telling him on the telephone that there was another problem, both Erlich and Abromovich testified that the seizure of the gun was discussed as soon as Abromovich arrived at the Banquet Hall. Any differences in their recollection can be explained by the passage of more than three years since this incident occurred.
[65] Erlich told no one about the gun, including Shatohin, because he did not want the patrons to know that there was someone with a gun inside the Banquet Hall. I accept his explanation.
[66] Coincidental with the fight and the concern about the gun was the significant and ongoing concern expressed by Erlich, Shatohin and Abromovich about the flooding in the kitchen and the need for the plumber to arrive and deal with the problem.
[67] The police relied on informer privilege throughout their testimony and gave guarded answers about their time of arrival and the exact times they observed Erlich.
[68] Erlich was hesitant to convey the information about what had happened during the fight to the police because he lacked sufficient facility with the English language. He knew that Abromovich had experience with the police and it was his establishment. He said, “I disarmed the man, but the owner had to sort it out.”
[69] The evidence of Shatohin and Abromovich was straightforward, internally consistent and supported by other evidence. When Abromovich was told about the gun, he asked Shatohin to call the police. It is clear from his evidence that his main concern was the flooding issue in his kitchen and the inability of the staff to prepare food for his patrons.
[70] Shatohin called the police because Abromovich had just arrived and asked him to do so. He testified, “He was worried about something big time, but he did not tell me.” He did not question his employer. He knew that there had been a fight and he used that as an excuse.
[71] Erlich’s testimony was concise, consistent and not challenged on cross-examination. He gave a wholly plausible explanation for having the gun in his pocket. The gun was in his possession for less than one hour as he waited for Abromovich to arrive and call the police. I have no hesitation in accepting his testimony as credible. I find that it was always his intention to turn over the gun to the police. He had the gun in his possession for an innocent purpose.
[72] Taking into account the length of time he had control of the gun and his conduct with respect to handling the gun, I find that the requisite mens rea is lacking.
Disposition
[73] Accordingly, the Crown has not proved beyond a reasonable doubt that Erlich had the intent to exercise control over the gun. His possession of the gun was not unlawful and he is acquitted on all charges.
DUNNET J.
Released: March 13, 2015
COURT FILE NO.: CR-13-40000 355-0000
DATE: 20150313
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MOSHE ERLICH
REASONS FOR JUDGMENT
DUNNET J.
Released: March 13, 2015