SPIES J. (orally)

Overview

[1] The defendant Tyrel Gibson is charged with four offences related to his alleged possession of a 9mm Smith & Wesson firearm (the “firearm”) without a licence or a registration certificate. He re-elected trial by judge alone and pleaded not guilty to all charges. At the time of his arrest Mr. Gibson was living with Sarah Jwelag in an apartment she leased.

[2] During the execution of a search warrant the firearm was found. It was not loaded and the serial number was scratched off. No magazine or bullets were found in the apartment. It is admitted that the firearm is operable which I presume is in the sense that it was capable of being made readily operable. It, therefore, meets the definition in the Criminal Code of a firearm.

[3] The Crown’s alleges that the firearm was found along with personal papers belonging to Mr. Gibson in an inside pocket of one of his jackets. Ms. Jwelag was originally charged with possession of this firearm as well but after giving an exculpatory statement to police, the charges against her were stayed. She was called as a Crown witness along with the officers who conducted the search. Mr. Gibson testified in his own defence. It is his position that if the firearm was in the jacket he has no idea how it got there. Both Ms. Jwelag and Mr. Gibson denied any knowledge of the existence of the firearm in the apartment.

[4] Counsel cooperated to narrow the issues resulting in an efficient trial focusing on the central issue to be determined: was the firearm in Mr. Gibson’s possession? That issue turns on whether or not he had knowledge of it.

Evidence and Preliminary Findings of Fact

The arrests of Ms. Jwelag and Mr. Gibson

[5] On November 1, 2012, Officers Mills and Wilson of the Major Crime Unit, 51 Division of the Toronto Police Service (“TPS”) were in plainclothes and hidden in an alcove on the 29th floor of 200 Wellesley Street making observations of apartment # 2911 (the “apartment”), as they were going to execute a search warrant there. They had not yet obtained the warrant and were there to confirm information from a confidential informant. The named accused in the warrant for that apartment was Sarah Jwelag.

[6] At about 5:15 p.m. the officers observed Ms. Jwelag, her four-year-old son and Mr. Gibson exit the apartment. They had not expected anyone to exit the apartment and because they had been noticed and to avoid Ms. Jwelag and Mr. Gibson realizing why they were there; they decided to arrest Ms. Jwelag on an outstanding warrant for fraud under $5,000 and failure to attend court that they were aware of. They tried to act as if that arrest was what they were there for to avoid Ms. Jwelag and Mr. Gibson thinking that they were there to execute a search warrant. Neither Ms. Jwelag nor Mr. Gibson testified that they knew there would be a search of the apartment. Ms. Jwelag was taken into custody and her son was left with Mr. Gibson.

[7] Later that night at about 11 p.m., officers executed a search warrant for the apartment. The firearm was found in the master bedroom of the apartment. As a result Ms. Jwelag was also arrested for possession of this firearm and Mr. Gibson was arrested for the offences before the court.

The relationship between Mr. Gibson and Ms. Jwelag

[8] Mr. Gibson was incarcerated at the Toronto Don Jail from January 23rd, 2012 until April 20th, 2012. He met Ms. Jwelag in May 2012 and a couple of weeks later he moved in with her and her son into the apartment, which was a subsidized apartment rented by Ms. Jwelag. Although the lease provided that she could not let any other person occupy the apartment without the prior written approval of the landlord, there is no doubt from the agreed facts and the evidence of both Ms. Jwelag and Mr. Gibson that soon after they met Mr. Gibson moved in with at least some of his clothing and other belongings and that he was living with Ms. Jwelag and in an intimate relationship with her until her arrest. There is also no dispute that Ms. Jwelag gave Mr. Gibson a key to the apartment soon after he moved in. She and Mr. Gibson were the only people with keys to the apartment.

[9] Ms. Jwelag became pregnant right away with Mr. Gibson’s child and she was six months pregnant when she was arrested. She and Mr. Gibson were still in a relationship that Mr. Gibson described as “good” at the time of her arrest.

[10] In cross-examination Ms. Jwelag testified that she is very protective of her children and they are number one in her life. Mr. Gibson agreed that Ms. Jwelag is a really good mother and that she loves her children. These facts will become important to my analysis.

Seizure of evidence

[11] Although there were no formal admissions, Mr. Gibson did not dispute that the items seized by police and introduced into evidence, save for the firearm, were found in the apartment. The items seized were turned over to Officer Pattersol who was in charge of the exhibits and continuity was admitted. Officer Pattersol was not called as a witness. The chart below sets out those items. As identified in the chart, there is an issue about the location of where some of the items were found and in a few cases which officer seized them.

Item Seized and by Whom	Location Where Found and by Whom	Evidence
Blue plaid and navy leather jacket with a large “P” initial on left front (“Jacket”) with at least one inside pocket, with a quilted navy lining. It appears to be the weight of a spring or fall jacket.	Master bedroom closet Officer Gillan	Mr. Gibson admitted bringing this Jacket with him when he moved into the apartment. Since the Jacket was not seized there is no further evidence about the number of inside pockets, the size of the Jacket or any items suitable for DNA analysis that might have been found in the Jacket.
Paperback copy of the New Testament (“Bible”)	Inside pocket of Jacket Officer Gillan	It is admitted that this kind of Bible is provided to inmates at the Don Jail and that it would be part of an inmate’s property when they leave the institution. Mr. Gibson admitted this Bible belongs to him but did not admit that it was found in the Jacket pocket.
Unloaded 9mm Smith & Wesson with no magazine or bullets and with the serial number scratched off.	Inside pocket of Jacket Officer Gillan	Both Ms. Jwelag and Mr. Gibson denied all knowledge of this firearm. Neither challenged the evidence of Officer Gillan that the firearm was found in the inside pocket of the Jacket.
An envelope and a two-page letter addressed to Tyrel Gibson from his brother Marcus.	Found with the Bible Officer Gillan Mr. Gibson admitted this envelope and letter was in the Bible	It is admitted that this envelope was received by Mr. Gibson at the Toronto Don Jail on February 21st, 2012 and that it was part of his property when he left the jail on April 20th 2012. According to the description in the joint exhibit binder the letter was inside this envelope but the letter refers to events in Marcus’ life on March 28 and 31 and that he was going to put money in Mr. Gibson’s canteen on “Wednesday” and so this letter could not have been in the envelope when the envelope was received at the jail. Presumably whatever letter was in the envelope when it was received, it was not found with Mr. Gibson’s papers. Furthermore, if money was put into Mr. Gibson’s canteen account in April, if he was given a receipt, it was also not found with his papers. Nothing turns on this.
Receipt for payment in the amount of $100 for Tyrel Gibson dated January 30, 2012 for the canteen at the Don Jail	Found with the Bible Officer Gillan	This receipt was issued on January 30, 2012 and it would have been a part of Mr. Gibson’s property when he was released.
Court reminder dated December 14, 2011 for an appearance in Courtroom 505 on January 10, 2012 at 9 a.m. to set a date for trial	Found with the Bible Officer Gillan	Mr. Gibson’s name is not on this document but it is agreed that he was in court on December 14, 2011 and was remanded to attend January 10, 2012. He therefore must have been given this reminder on December 14, 2011. It is admitted that Mr. Gibson had a court appearance at College Park in 505 court at 9am on January 10th, 2012. His brother Marcus Gibson also had a court appearance in the same court on the same date, however, his appearance was for 10 a.m. Given the correct time is stated there is no doubt that the reminder found with the Bible belonged to Mr. Gibson.
Small photo of Mr. Gibson with Ms. Jwelag. Mr. Gibson is wearing an Oakland Raiders blue and white baseball cap. A cap looking like this was also seized.	Photo - on mirror of bedroom dresser Baseball cap Officer Wilson
14 colour photographs taken of Mr. Gibson and others on the field during an Argos game.	Inside top right dresser drawer in master bedroom Officer Wilson	Mr. Gibson admitted these photographs belong to him. He said they were taken when he was 20. Each photo contains a photo of Mr. Gibson wearing a white baseball cap and a black t-shirt that states “Don’t Front”.
Marijuana in two plastic bags tied in a knot.	Locked cabinet in the master bedroom. Officer Wilson	Officer Wilson testified he could smell the marijuana before and after he opened the cabinet. Ms. Jwelag admitted that this marijuana belonged to her and that she was the only one who had a key and had access to this armoire, which she kept locked. Mr. Gibson’s evidence that he never went into this cabinet was not challenged.
Small digital scale	Back of same shelf where marijuana was found inside the locked cabinet. Officer Wilson	Ms. Jwelag denied knowledge of the scale. Mr. Gibson was not asked about it.

[12] Neither the Jacket nor any other clothing belonging to Mr. Gibson was seized, save for the baseball cap.

Utterances made by Ms. Jwelag upon arrest for possession of the firearm

[13] Mr. Chernovsky introduced the utterances made by Ms. Jwelag to police after she was arrested for possession of the firearm into evidence when he cross-examined her and Officer Mills. Essentially he was trying to establish that Ms. Jwelag made incriminating statements and did not suggest that the firearm must have belonged to Mr. Gibson. I will consider this evidence now and then its admissibility in my analysis.

[14] Officer Mills testified that Ms. Jwelag was arrested at 5:15 p.m. but because they had to wait for uniformed officers to arrive to take her to the station she was not given her rights to counsel until 5:55 p.m. Ms. Jwelag said that she did want to call her lawyer Robert Valentine and he was called and a voice message was left for him but he didn’t call back. Ms. Jwelag then spoke to duty counsel at 9:05 p.m.

[15] Officer Wilson testified that Ms. Jwelag was rearrested for possession of the firearm and marijuana at 1:40 a.m. He testified that he felt it was reasonable for him to give Ms. Jwelag some background information before arresting her for possession of the firearm given she had been arrested for something relatively minor. He remembers telling Ms. Jwelag about the investigation at her place and the fact that a firearm had been found stored in the apartment. He testified that he has an independent recollection that Ms. Jwelag was surprised, upset and angry when he told her that a firearm had been located in the apartment. He recalled that she claimed to know nothing about it. His interpretation of her reaction was that Ms. Jwelag was completely caught off guard and in shock that they had found a firearm. When asked why this information about Ms. Jwelag’s reaction was not in his notes Officer Wilson said that he does record what is said with respect to the rights to counsel verbatim because he knows it’s important. He agreed that he should have noted this as well and that he failed to.

[16] Officer Wilson testified that when Ms. Jwelag was given her rights to counsel this time and asked whether she understood she answered “Yeah, that I’m fucked”. When she was asked if she wished to call a lawyer she said, “No it doesn’t matter, I am fucked”.

[17] When asked why Ms. Jwelag was arrested given what she had communicated to him, Officer Wilson said that he was not the officer in charge and so it was not his decision. He could not recall if he told the officer in charge about Ms. Jwelag’s shock and surprise at finding the firearm. When asked why he did not arrange for her to tell her side of the story right away, Officer Wilson answered that there was a lot to do to ensure that she got off to court on time and that this was not up to him but rather the officer in charge.

[18] Ms. Jwelag testified that when she was told that a search warrant had been executed in her apartment, her first reaction was to tell police that the “weed” was hers. The police told her that they didn’t care about that but that she had bigger problems. They then told her about the firearm that had been found and she was charged with possession of the firearm.

[19] Ms. Jwelag insisted that when she was arrested she told police she had no idea about the firearm. When this was challenged she said she asked police “What are you talking about?” and that the police then told her that they knew it wasn’t hers and they wanted her to tell them that it was Mr. Gibson’s. She said she couldn’t tell them it belonged to someone when she had no knowledge of the firearm. She went on to say she would never let anyone bring anything like that into her house and that it’s not her house but her children’s house.

[20] Ms. Jwelag admitted that when she was told she had the right to call a lawyer that she responded to police she told police what Officer Wilson testified to. She testified that she told the police she was “fucked” because she knew she was responsible because it was her apartment she would be held responsible for what was in it. Ms. Jwelag also admitted that she is aware of the fact that if she knew about the firearm she would be responsible as it is her house. I have considered this knowledge in assessing her credibility.

[21] Ms. Jwelag also admitted at trial that that night she didn’t say anything about Mr. Gibson. She also testified that she did not need to call a lawyer as she had a lawyer and knew her mother would call him. I di did not find this to be significant.

[22] Mr. Chernovsky submitted that I should not accept the evidence of Officer Wilson that Ms. Jwelag was protesting her innocence when she was arrested because Officer Wilson made no note of this and did not tell his supervisor about this or take a statement at the time from Ms. Jwelag. I do not accept that submission. Despite the fact it is not in his notes, I accept the evidence of Officer Wilson which is corroborated by the evidence of Ms. Jwelag concerning her reaction to the news a firearm had been found and that she made a spontaneous utterance that she did not know anything about it. I will come back to the significance of this evidence.

Ms. Jwelag’s statement to police

[23] Ms. Jwelag gave a videotaped statement to police under oath on February 28, 2013. She testified that she had not been promised anything by police and that everything she told them was the truth.

[24] Ms. Jwelag admitted at trial that she had received her disclosure before she gave her statement to police. She said that when she received it, she looked over it for five to ten minutes including the pictures, while her mother was driving her to her lawyer’s. She then dropped it off with her lawyer.

[25] Before she gave her statement to police Ms. Jwelag was told by her lawyer or police; she could not recall which, that Mr. Gibson’s position was that he was not living with her, that she was not pregnant with his child and that the firearm belonged to her or the last guy that she was “fucking”. I was concerned about solicitor client privilege but understand that this area had been explored at the preliminary inquiry.

[26] In cross-examination Ms. Jwelag confirmed the accuracy of her evidence in her statement where she testified that her lawyer told her to go to the police station and give her statement on the very day that she gave her statement. She testified that her lawyer told her to go into the station and tell the truth; that it was not her jacket, that he [Mr. Gibson] was living there and had the keys and that he is her baby’s father; “boom finito”. When asked what she meant by “boom finito” she testified that she wouldn’t have to say anything more and that she did not have to say anything about the firearm because she had no knowledge of it. She also said that she understood that her lawyer and the Crown would then “work at it” which she said meant that her lawyer would do his job and work the case.

[27] Ms. Jwelag denied the suggestion that by “boom finito” she was referring to the charges being withdrawn. She eventually did go to court but the charges were not withdrawn; they were stayed for a year. She thought she would have to get a pardon eventually but then admitted since it’s been two years that she is free and clear now. I accept this evidence since Ms. Jwelag never wavered on this point and given the charges were not withdrawn, at least not initially.

[28] Ms. Jwelag was cross-examined about the fact she did not refer to Mr. Gibson in her statement she answered with a question: “how can I say it belongs to someone or to anybody when I didn’t know about it?” I expect that this may have had more to do with the fact that any admission of knowledge would be tantamount to an admission of guilt. Furthermore, I am sure Mr. Gibson is aware of this as well. I, therefore, do not take much from this denial even though Ms. Jwelag never said that the firearm “must” belong to Mr. Gibson which presumably she could have said without admitting she knew about it.

[29] Ms. Jwelag denied the suggestion that her lawyer told her to go in and say it was Mr. Gibson’s firearm. Mr. Chernovsky seemed to accept this but then put it to Ms. Jwelag that she knew that if she said it was Mr. Gibson’s firearm it meant that she knew that he had it. Although she had already acknowledged this in connection with her statements to police when she was arrested, she became very argumentative and frustrated at this point and when she finally answered the question she said she would not be responsible as it was not her property. I will discuss this point and its relevance in my assessment of Ms. Jwelag’s credibility.

Analysis

The Law

[30] I now turn to my analysis. Since Mr. Gibson testified, the principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.)[^1] apply. I must acquit Mr. Gibson if I believe his evidence or, even if I do not believe his evidence, I am left in a reasonable doubt by it. If I am not left in doubt by his evidence, then I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence, of his guilt. In my analysis, I am not bound by the strict formulaic structure set out in W.(D.), but rather must adhere to the basic principle underlying the W.(D.) instruction that the burden never shifts from the Crown to prove its case beyond a reasonable doubt.[^2]

[31] In considering the evidence, I am entitled to believe all, some, or none of each witness’s evidence. Further, in assessing the evidence of Mr. Gibson, I am entitled to consider it in the context of all of the other evidence.[^3] However, I must remind myself that this is not a credibility contest.[^4] W.(D.) prohibits me from concluding that the Crown has met it burden simply because I might decide to prefer the evidence of Ms. Jwelag to that of Mr. Gibson.[^5] As I am faced with contradictory versions of what happened in this case, I would add that if, after considering all of the evidence, I am unable to decide whom to believe, I must acquit.[^6]

[32] The Crown’s case against Mr. Gibson with respect to the charge that he was in possession of the firearm found in the pocket of the Jacket is entirely circumstantial. There is no direct evidence of Mr. Gibson ever handling the firearm in question. There is, for example, no forensic evidence, such as fingerprints, DNA or gunshot residue, linking Mr. Gibson to the firearm. As such after assessing and weighing the evidence, I may only enter a verdict of guilty if the only reasonable inference from the facts is that Mr. Gibson knew that the firearm was in the Jacket and as such in his possession. There would then be no issue that he had control over the firearm. If any of the Defence inferences raise at least a reasonable doubt about the Crown’s theory, Mr. Gibson must be acquitted.

[33] This approach was confirmed by the Supreme Court of Canada in R. v. Griffin[^7] where an appeal was brought based on a trial judge’s instruction to a jury during which he stated that they should acquit if they found that there was “an equally reasonable inference which would indicate an innocent purpose.” The court upheld the finding of guilt primarily because the trial judge recalled the jury and offered a correction that read,

…in order to render a verdict of guilt, based on circumstantial evidence, the guilt of the accused would have to be the only rational inference that you could draw from the circumstantial evidence.

If there’s any other rational inference you can draw from the evidence that would mean that you would not be able to render a verdict of guilty based on circumstantial evidence, because there would be – at best you would have reach maybe a probability or a likelihood of guilty, but not have reached that higher standard of proof beyond a reasonable doubt. (at paras. 28-34

[34] I recognize that the Crown cannot negate every possibility and is not required to prove its case with absolute certainty. As stated by our Court of Appeal in R. v. Torrie,[^8] the requirement that the Crown prove its case beyond a reasonable doubt does not mean that “the Crown must negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused.”

[35] In reviewing the evidence I also accept that I must not subject every separate item of circumstantial evidence to scrutiny as to whether Mr. Gibson’s guilt is the only rational inference that could be drawn from that piece of evidence. I must consider the entire body of circumstantial evidence before me; see R. v. Medina[^9], 2010 ONCA 261, [2010] O.J. No. 1416 at para. 4.

[36] In determining what reasonable inferences can be made from the evidence and an explanation of what an inference is, Watt’s Manual of Criminal Evidence[^10] is helpful. There, Watt J.A. states that:

An inference is a deduction of fact which may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that may, not must be drawn in the circumstances. …The boundary that separates permissible inference from impermissible speculation in connection with circumstantial evidence is often a very difficult one to determine.

[37] As Doherty J.A. stated in R. v. Morrissey[^11], an inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation. The process of drawing inferences from evidence is not the same as speculating even where the circumstances permit an educated guess. See: U.S.A. v. Huynh.[^12]

Credibility of Ms. Jwelag and Mr. Gibson

[38] Before I turn to the disputed evidence and make my findings of fact I will consider the credibility and reliability of both Ms. Jwelag and Mr. Gibson. Issues concerning the reliability of their evidence were not raised. The main issue is their credibility.

[39] Mr. Chernovsky submitted that a Vetrovec warning applies to the evidence of Ms. Jwelag because she was also charged with possession of the firearm and, therefore, she had a motive to shift the blame to Mr. Gibson and that I should so instruct myself and consider her evidence with great caution. Ms. Pancer disagreed that the Vetrovec caution should be applied to Ms. Jwelag’s evidence.

[40] I do not propose to review all of the relevant law to determine whether or not the evidence of Ms. Jwelag requires a formal Vetrovec caution since this is not a jury trial. I am well aware of the risks of adopting her evidence as true without more. The fact that Ms. Jwelag would naturally have wanted to avoid prosecution for this offence and the consequences that would have followed must be considered as I recognize those facts might undermine her credibility. She admitted being aware of the fact that even if she only admitted knowledge of the firearm that she would also be guilty although she later tried to back off that position.

[41] I accept that when Ms. Jwelag was arrested, given she admits that she knew knowledge of the firearm would make her responsible for it and given the fact that she was also charged with possession of that firearm that she would have a motive to deny knowing anything about the firearm. Ms. Jwelag testified that she knew the Children’s Aid Society would get involved but insisted that she was not worried about them taking her son from her. I find that evidence difficult to believe. In addition, Ms. Jwelag had been living in this subsidized apartment for about four and a half years and she was naturally concerned that she would lose the apartment as a result of her arrest. Clearly she had a lot at stake with respect to these charges although the same can be said of Mr. Gibson.

[42] Ms. Jwelag is 31 years old and her criminal record consists of one youth conviction although I did not hear what that was for. At the time of her arrest she was also wanted for fraud under $5,000 and a charge of failure to attend court and she knew there was a warrant out for her arrest. Ms. Jwelag admitted that she knew from discussions with her lawyer that she had to go in and deal with this but she had not yet done so. She was asked in cross-examination about the circumstances of the fraud charge. She testified that she had been given a credit card by a former boyfriend and tried to use it at a Zellers store to purchase $530 of merchandise. When the cashier ran the card she panicked and told the cashier that she didn’t want the merchandise and left. She was then detained by security and later charged. Given the admission of this conduct, it is a factor in my assessment of Ms. Jwelag’s evidence as it was a dishonest act, but it is important that she tried to back out of what she had intended to do.

[43] Mr. Chernovsky made a number of submissions suggesting that Ms. Jwelag lied when she gave her statement to police. He submitted that Ms. Jwelag tailored her statement to police to fit the disclosure she had received and that she was enraged when she made her statement because as far as she knew Mr. Gibson was taking the position he was not living with her and he was not the father of her unborn child. Ms. Pancer submitted that Ms. Jwelag did not tailor evidence and that she told police what they already knew.

[44] I do not accept the submission that Ms. Jwelag was motived to hurt Mr. Gibson and as a result was prepared to lie when she gave her statement. Had that been the case I would have expected her to actually say that the firearm must have belonged to Mr. Gibson. She could have pointed the finger at him without admitting that she knew of the existence of the firearm. Since her statement is generally consistent with her evidence, I will review her evidence and determine if and to what extent she was lying. I find there is no evidence that she tailored her evidence to what she saw in the disclosure.

[45] Ms. Pancer submitted that I can consider Ms. Jwelag’s statement to Officer Wilson when she was arrested and her “shock and denial” as a spontaneous utterance and admitted for its truth. Mr. Chernovsky conceded that Ms. Jwelag’s utterances to Officer Wilson could be used to rebut the defence of recent fabrication, i.e. that she made up her evidence later when she gave her statement, but queried how reliable this evidence was. As I have already found, I accept that Ms. Jwelag did make this statement.

[46] Counsel did not provide me with any case law. My understanding is that since Ms. Jwelag was charged at the time with the same offences, this spontaneous utterance is not strictly evidence of the truth of what was said but is evidence of the reaction of Mr. Jwelag which is relevant to her credibility and as circumstantial evidence that may have a bearing on her guilt or innocence: see R. v. Edgar[^13].

[47] I do not accept Mr. Chernovsky’s submission that the fact police did not take a statement from Ms. Jwelag the night that she was arrested is significant and somehow means that her later statement to police should be given less weight. I see no significance to the timing of the statement save for the argument that Mr. Chernovsky advanced that as a result Ms. Jwelag had an opportunity to look at the disclosure before giving her statement. Given the evidence of Ms. Jwelag her opportunity to review the disclosure was limited and in any event as I understand the nature of her statement, she denied knowing anything about the firearm.

[48] Mr. Chernovsky conceded that there may well have been no inducements to Ms. Jwelag in exchange for giving her statement but he submitted that she clearly hoped and desired that her charges would be dropped. I agree with that as it is a matter of common sense but as I have already said, I do not accept his submission that this is what Ms. Jwelag was referring to when she said “boom – finito”. I interpret that in a way consistent with what she said; she was giving a statement to police but did not want to be questioned further or say anything else.

[49] Mr. Chernovsky submitted that Ms. Jwelag was evasive in her testimony and that she was not truthful when she said she wasn’t selling drugs. He submitted that I should also not believe her when she disavowed any knowledge of the firearm. Ms. Pancer submitted that the marijuana that was found was “two tiny bags” and that it was for personal use. As she pointed out no baggies were found that would be associated with drug dealing.

[50] I have no evidence as to whether the marijuana found was consistent with personal use but for reasons I will come to I do find on all of the evidence that it is likely that Ms. Jwelag was doing some small scale trafficking of marijuana given that she had what appears to be a not insignificant amount of fairly fresh marijuana and a scale in the locked cabinet. I accept her evidence, which is confirmed by Mr. Gibson, that once she found out she was pregnant that she reduced her personal use of marijuana as much as possible. She testified that she found out that she was pregnant within a couple of weeks of getting pregnant so on that basis had she reduced her use of marijuana I would not have expected a significant quantity of marijuana to still be in her cabinet and to still be fresh. It is significant that Ms. Jwelag was not truthful about this but I find, as Mr. Gibson testified, that she was only selling to people that she knew. Her denial of this behavior as he fairly acknowledged is likely linked for concern about whether she could be found to be an unfit mother. Nevertheless she was not honest when she denied dealing in drugs and denied that the scale was with the marijuana in the locked cabinet. That fact significantly undermines her credibility.

[51] In terms of her demeanour, Ms. Jwelag’s presented as an honest and sincere witness during her evidence in chief and at least initially during the course of the cross-examination she was forthright and very matter of fact in answering Mr. Chernovsky’s questions and did not seem hostile or evasive. That changed and Ms. Jwelag became very upset and frustrated that she was a witness when Mr. Chernovsky turned to her statement to police and questioned her about her appreciation of the fact that if she said the firearm belonged to Mr. Gibson that this would suggest she knew about it and she would be responsible for it as well. Ms. Jwelag saw the questioning by Mr. Chernovsky as Mr. Gibson “turning against me,” making her look “like the bad guy” and “throwing me under the bus” and that that was “not fair that he [Mr. Gibson] is putting me in this position” and that “I shouldn’t even be here”. Their exchange became heated and she became argumentative and she started to answer his questions before he finished the question and sometimes she was not responsive to the question.

[52] I do not suggest that Mr. Chernovsky was unfair in his questioning; he was doing his job. Normally this type of change in behavior would be telling and suggest the witness was not being truthful. In this case I find it has less relevance because I believe it was in part because of Ms. Jwelag’s strong personality and the fact that she saw his questioning as an attack by Mr. Gibson. I am concerned that it seemed to be provoked by Mr. Chernovsky’s focus on her knowledge of the firearm but it also may be that she perceived it as an attack on her as a good mother. In fact when Mr. Gibson testified he referred to her reaction and his evidence suggested that he understood her reaction to the questioning. Although it is of some concern I have decided that I should not rely on it very much in making any findings one way or the other as to Ms. Jwelag’s credibility as a witness. Furthermore, a witness’ demeanour in giving evidence should not be given undue weight.

[53] In summary there are reasons to proceed with caution in considering Ms. Jwelag’s evidence and making my findings of fact.

[54] Mr. Gibson is 29 years old. He has an extensive criminal record mostly in Youth Court. His convictions include assault with intent to steal and fail to comply with recognizance in January 2000, break and enter with intent, uttering threats and fail to comply with an undertaking in June 2001, and three more convictions later that year for failure to comply with undertaking. These convictions were all in Halifax where Mr. Gibson was living at the time. He admitted that although they are not on his record he had two other failures to comply with undertakings in February 2000 and April 2001.

[55] In April 2005 Mr. Gibson was convicted of attempt murder, robbery and possession of property obtained by crime under $5,000. He testified that he was 16 when he committed these offences and that he was 19 when he was sentenced. Based on the CPIC Report he received a sentence of two years and an additional year under supervision in the community on each charge concurrent. In March 2007 Mr. Gibson was convicted of being unlawfully at large and in March 2009 he was convicted again of failure to comply with recognizance. He also has a recent conviction for possession of marijuana that is not yet reflected in the Report. Although I recognize that most of these convictions result from conduct as a youth, they are cause for concern in considering Mr. Gibson’s credibility as a witness although it is notable that he admitted to convictions that were not showing on his record. His record includes traditional crimes of dishonesty such as the robbery conviction, numerous convictions for breach of court orders which relate directly to his integrity and his respect for the courts and a very serious conviction for attempt murder.

[56] Ms. Pancer submitted that Mr. Gibson’s story continuously changed and that I should disregard all of the evidence of Mr. Gibson unless it is corroborated. For the most part that was not my impression and I certainly do not find that his evidence must be corroborated if it is to be believed.

[57] Ms. Pancer referred first of all to the fact that Mr. Gibson testified that he got to wear his own clothes and that his family brought certain clothing when he was in Sprucedale. When it was pointed out to him that he had said he had brought his own clothes, he testified that his grandmother had to buy new clothes for him. Ms. Pancer then commented that Mr. Gibson had not said this earlier and moved on in her questioning. I am not convinced that that was a change in his evidence or significant to Mr. Gibson’s credibility. First of all his answer was correct that the clothing was his in the sense it belonged to him. Furthermore, his evidence that the clothing had to be new makes sense since that could well have been a matter of security.

[58] Ms. Pancer also referred to Mr. Gibson’s evidence that he received $800 from a program to help him integrate back into society before he moved in with Ms. Jwelag and suggested that was inconsistent with other evidence. This issue came up during her cross-examination of Mr. Gibson about his purchase of new Air Jordan running shoes and it was definitely confusing but I do not accept the submission that this was a change in Mr. Gibson’s evidence. If I understood it, he said that when he was with Ms. Jwelag he had no income and was not on welfare although he did admit to selling marijuana. The reference he made to the $800 was for the time he was living with the girlfriend he moved in with when he was released from jail and he said it was for his rehabilitation. I have no reason to disbelieve that evidence.

[59] I have very carefully considered Mr. Gibson’s evidence about whether he was wearing a jacket when he was arrested in January 2012 and despite some inconsistencies in that evidence I have not found that it detracts from Mr. Gibson’s credibility as a witness.

[60] I have found that Mr. Gibson was telling the truth about Ms. Jwelag selling marijuana on a small scale. Ms. Pancer submitted that Mr. Gibson would have had to sell a lot of marijuana to buy the shoes that he had and argued that he was not selling marijuana but something more lucrative. This, however, was never put to Mr. Gibson and so I disregard that submission. I do not have enough evidence to find that because of his possessions that he was dealing drugs on a larger scale than he admitted to.

[61] There were times when I did find it difficult to accept Mr. Gibson’s evidence. His evidence that he never bought marijuana before his purchase from Ms. Jwelag is difficult to accept since he admitted he was a user. I would not expect a younger brother to provide him with marijuana at no cost. Overall on the central issue however, as Mr. Chernovsky submitted, Mr. Gibson maintained his position that he knew nothing about the firearm despite a very vigorous cross-examination by Ms. Pancer. His demeanour did not change during cross-examination and he was not hostile or evasive in answering Ms. Pancer’s questions. Mr. Gibson also made admissions against his interest including the fact that he brought the Jacket to the apartment and that he was dealing in marijuana and that even this firearm could be used to scare people. Although demeanour should not be given undue weight, throughout all of his evidence Mr. Gibson presented as an honest and sincere witness. I appreciate however, that like Ms. Jwelag, he appreciated that even acknowledging any knowledge of the firearm would be fatal to his defence.

The Disputed Evidence and Findings of Fact

(a) Locking of the apartment door

[62] There is a dispute in the evidence as to what exactly happened when Ms. Jwelag, her son and Mr. Gibson exited the apartment just before her arrest. Officer Mills, who was the affiant for the information to obtain the search warrant, gave detailed evidence corroborating the evidence of Officer Wilson, that Mr. Gibson locked the door with a key. Ms. Jwelag gave some evidence that she and Mr. Gibson switched keys and that Mr. Gibson locked the door with her keys. This evidence was not challenged further and did not turn out to have any significance save that it corroborated the evidence of the officers that it was Mr. Gibson who locked the door. Mr. Gibson denied locking the apartment door when they left but admitted having a key in his possession.

[63] On this point I prefer the evidence of the officers given they were there for the purpose of surveillance of the apartment and who had access to it would be important to them. At the time, who locked the door would not have been significant for Mr. Gibson and so he may simply be mistaken.

[64] Neither officer could recall Ms. Jwelag son’s running towards them, saying “Daddy, daddy there’s two men here”, which Mr. Gibson said occurred, and in fact Officer Wilson denied that this happened. I did not find this dispute in the evidence material. This could have occurred and not be something the officers still recall given they would have been more focused on what the adults were doing.

(b) Were Ms. Jwelag and Mr. Gibson dealing in marijuana?

[65] Ms. Jwelag testified that after she had major surgery on her ankle she was taking either Percocet or marijuana for pain. She was going to get medicinal marijuana but never had a chance to fill out the forms completely. She gradually stopped smoking marijuana when she found out she was pregnant. She admitted that she told police that she stopped smoking marijuana when she “got” pregnant. She found out that she was pregnant in June. Ms. Jwelag testified at trial that she cut down on marijuana and stopped completely by September or so. Ms. Jwelag was taken to another place in her police statement where she told police she had less than two ounces of weed and that it was nothing anyway and “like I smoke weed, you can test me, you guys can see it’s in my blood”. When this was put to her by Mr. Chernovsky she said that her understanding is that THC stays in your blood for a very long time. When it was pointed out that she didn’t say that she used to smoke marijuana Ms. Jwelag said that it was a misprint but in any event she considers herself a person who smokes weed. Given the police had found the marijuana in her apartment and the evidence that Ms. Jwelag admitted to police that the marijuana was hers I did not find this inconsistency in her evidence to be material. Mr. Gibson confirmed her evidence. Furthermore, Mr. Gibson confirmed that once she got pregnant Ms. Jwelag was not smoking marijuana as much. He also agreed that she didn’t want her son to be near marijuana, which is why she kept it in a locked cabinet.

[66] Ms. Jwelag testified that the scale was not hers and she denied that the scale was in the closet with the marijuana. I accept Officer Wilson’s evidence about finding the scale and so I find that that evidence is false. Ms. Jwelag was also cross-examined about the fact that she told police that she doesn’t allow drugs or firearms in her apartment and yet she had marijuana in the cabinet. She said marijuana is not a drug and by drugs she meant crack cocaine and heroin.

[67] Ms. Jwelag was not asked whether or not Mr. Gibson was smoking any of her marijuana. When Mr. Chernovsky put to her in cross-examination that she was a drug dealer, dealing in marijuana, she expressed surprise and as he pursued this she became quite upset. Ms. Jwelag also denied that Mr. Gibson first met her to buy marijuana or that she stayed in the house to distribute marijuana and that Mr. Gibson was on the street getting buyers for her. In fact she said that she only went out to take her son to school and that she did not have many visitors.

[68] Mr. Gibson testified that she supplemented her income by selling a little marijuana here and there for pocket money. He testified that when they first met he asked her where he could get some weed and that he bought $20 worth from her. Once they were living together he sold marijuana to anyone that he knew in Regent Park and gave her the money. Mr. Gibson said that he never sold marijuana out of the apartment but testified that Ms. Jwelag had one or two clients that came to get marijuana when he was there. As far as he knew the people that Ms. Jwelag was selling to were people that she knew; she never sold marijuana to strangers as far as he knew.

[69] Mr. Gibson testified that he had never paid anyone for marijuana before, as he would get it from his cousins and his brother Marcus. Before he approached Ms. Jwelag he had been told that she sold marijuana. That transaction was the first time he bought marijuana. He also denied selling drugs prior to meeting Ms. Jwelag.

[70] Mr. Gibson testified that he told Ms. Jwelag to watch what she was doing. She had a child on the way and it didn’t make any sense since she was going to get caught. He didn’t tell her not to sell but he said it could be a problem if she kept on selling. When it was put to him that this evidence did not make any sense given that he was selling marijuana on the street, he admitted that it was more dangerous for him to sell on the street but that it gave them some extra money for food and clothes. He was also doing it to help Ms. Jwelag get rid of her product.

[71] Officer Wilson, who found and seized the marijuana, testified that it smelled like fresh marijuana. He did not say, however, how marijuana would smell if it was a couple of months old and whether that would make it “stale”. I also have no evidence as to the quantity of marijuana found save for what I can glean from the photographs taken by police. In cross-examination Ms. Jwelag was taken to her police statement where she told police she had less than two ounces of weed but she was not asked if this evidence was true. I, therefore, do not have any evidence as to the quantity of marijuana that was seized.

[72] I heard some evidence about the sources of cash for both Ms. Jwelag and Mr. Gibson as it was relevant to credibility and in particular whether or not they were dealing in drugs and if so at what scale. In her evidence in chief Ms. Jwelag testified that she was on social assistance and when she was cross-examined about how she could then afford the items visible in the pictures like the flat screen TV and the DVDs etc. she said that she paid for them from income that she had saved or that she put money down and made the payments. There was a discrepancy in her evidence as to how much she received in social assistance but he was not questioned about it. Since it could be because of a child allowance I did not consider this inconsistency.

[73] Ms. Jwelag testified that she had no idea what Mr. Gibson did for a living and testified that he never gave her any money although he bought her a couple of gifts. She said that Mr. Gibson would get himself ready in the morning and leave. Sometimes he would come back during the day as many as four times. She was taken to her statement to police where she said that it was not like he was in her house “going in and out, in and out”. Ms. Jwelag testified that what she meant by that was constantly coming in and out every two seconds and she said it was not like that. She was then taken to her police statement where she said that Mr. Gibson would come in 50 times a day. She said she was obviously exaggerating when she said this but that Mr. Gibson would come in and change his clothes. He was very particular about his clothing. Mr. Gibson was not asked about his comings and goings during the course of a typical day but he did admit that he changed a couple of times a day.

[74] Mr. Gibson was cross-examined about the fact that the photographs show that he owned six new pairs of Air Jordan running shoes. Mr. Gibson testified that he bought a couple of pairs of Air Jordan’s when he was with Ms. Jwelag. He also brought some that he had from before he moved in with her. When he was questioned as to how he could afford the ones that he had before he moved in with Ms. Jwelag he testified that he was getting $800 from the government to help him reintegrate into society, which was to cover rent, food, etc. He later said it was only $500 and the discrepancy was not explored. It may have been that the difference was rent. In any event he implied that this is where he would have had money to buy Air Jordan’s. At this point Ms. Pancer put to him that he had bought $600 worth of Air Jordan’s but that was not his evidence. He testified that he bought them in a 2-for-1 deal for $309 and that he bought two pairs of Air Jordan’s before he moved in with Ms. Jwelag and another pair after he moved in with her. He said that he was not receiving welfare at this time and had proceeds from selling marijuana.

[75] I found some of this evidence confusing partially because I believe Mr. Gibson was talking about some sort of financial assistance when he was first released from jail that presumably he no longer had once he moved in with Ms. Jwelag. I did not find this evidence of assistance in assessing his credibility.

[76] Mr. Gibson denied Ms. Pancer’s suggestion that he was selling more marijuana than what he had suggested in his evidence to afford to pay for these shoes. He denied needing a firearm for protection if he was selling on the street and said that you would need bullets and clips for this firearm. He admitted however, that if someone pulled out something that looked like a firearm he would be scared. This was another example of where he gave evidence that suggested he was being truthful and not just advancing his defence.

[77] I accept the evidence of Mr. Gibson and find that he was selling small amounts of marijuana to people he knew on the street and Ms. Jwelag was doing the same but from inside the apartment.

(c) Location where the Bible, documents and firearm was found

[78] There is no admission that the Bible, the documents or the firearm were found in the inside pocket of the Jacket and so I must review that evidence. Officers Wilson and Gillan searched the master bedroom. According to the officers, Officer Gillan searched the master bedroom closet and Officer Wilson searched the rest of the room.

[79] Officer Wilson started by searching the locked cabinet and on the middle shelf he found a red purse and inside that purse was a red pencil case and inside that there was a Ziploc bag with two plastic bags of marijuana. A digital scale was on the same shelf but at the back and hidden by other purses. There were multiple baseball hats on the wall and one matched a photograph that was jammed into the corner of the mirror of Ms. Jwelag and Mr. Gibson. As a result he seized the photograph and the hat. In a small two-drawer dresser next to the big dresser Officer Wilson found various documents belonging to Ms. Jwelag and in her name and the stack of photographs of Mr. Gibson attending an Argos game with friends.

[80] Officer Gillan had no recollection of the closet being organized in a particular way. He testified that he found the Jacket hanging in the closet. He was unable to say if the Jacket was hanging at the back or front of the closet. His notes only state that it was on a hanger in the closet. He could feel that it was heavy and found the firearm inside the left breast pocket. The firearm was not visible from outside the Jacket nor was it visible when you opened the Jacket. This evidence was not challenged and I find that this is where the firearm was located in the apartment.

[81] Officer Gillan testified that he also found the Bible in the pocket of the Jacket as well as the documents which were either beside the Bible or inside it. He believed he found the documents in the same pocket as the firearm as he would have made a note if they were found in a different pocket. Officer Gillan testified that he turned the documents over to the Exhibits Officer. He didn’t look at the Bible in depth as he was more focused on the firearm. He acknowledged it was a mistake that he did not seize the Jacket. He did not think of this at the time.

[82] Officer Mills was present during the search but remained in the living room and did not search or seize or find evidence. He did receive information at some point from Officer Gillan about the firearm. He has in his notes that Officer Wilson had located documents from Mr. Gibson and he testified that this was his understanding of it. He couldn’t say, however, if another officer had given these documents to Officer Wilson, as he was not assisting the Exhibits Officer. When it was put to him he denied knowing that the theory of the police in this case is that Officer Gillan found the documents with the firearm. He didn’t know if he was aware at the time of the Jacket and he did not remember seeing it.

[83] Although in his closing submissions Mr. Chernovsky suggested that the evidence of the officers was inconsistent as to who seized the Bible and the documents, he did not challenge either Officer Wilson or Officer Gillan when they testified by suggesting that it was in fact Officer Wilson who found the documents and that the documents were not in fact in the pocket of the Jacket. Officer Gillan’s evidence that he found the firearm in the pocket of the Jacket was not challenged. The only issue raised in cross-examination was whether or not the Jacket was hanging in the closet or folded and inside the blue shelf hanger. Furthermore, it was never put to either officer that they planted the Bible and documents in the pocket of the Jacket. Furthermore, Officers Wilson and Gillan were not asked about the note made by Officer Mills that I have just referred to.

[84] Although Mr. Chernovsky did not call contrary evidence which would clearly have been a significant breach of the rule in Browne and Dunn[^14] had he put this suggestion to the officers I expect the evidence of the officers would have remained firm. However, they may have been able to provide an explanation for why Officer Mills recorded this in his notes as he did. In any event Officer Mills did provide an explanation for why his notes were recorded as they were and why they might not be accurate in terms of who actually seized the Bible and the documents. Given he was not there for the purpose of seizing or assisting the Exhibits Officer I find, based on the unchallenged evidence of Officers Wilson and Gillan, that the firearm and the Bible with the documents were found by Officer Gillan in the inside pocket of the Jacket where the firearm was found.

[85] Mr. Gibson did not admit this fact but his evidence does not directly challenge it. He testified that he wrote his phone numbers in the Bible when he was in jail because the guards could take a phonebook from him but not his Bible. When he was released he moved the phone numbers to his phonebook. He did not know where he put the Bible then but had no recall of seeing it again. He did not think he put the Bible and the papers inside the Jacket pocket, when Ms. Pancer asked how he could explain the Bible and the documents all being in the Jacket pocket, Mr. Gibson said that that was the “ironic part” because he couldn’t say that he didn’t put the Bible inside the pocket of the Jacket since he could not remember where he put the Bible. All he knew was that there was nothing in the Jacket when he got it from Marcus.

[86] Even though Mr. Gibson has no recall of putting them the Bible and these documents in the inside pocket of the Jacket after he was released, he admitted that he could have. Mr. Chernovsky agreed there is a reasonable inference to draw from the evidence that Mr. Gibson put all of the documents in the pocket of the Jacket. In my view there are no other reasonable inferences to be drawn from the evidence. There would have been no reason for Ms. Jwelag to collect these particular documents and put them inside the Jacket pocket. Given my finding that the documents were not planted by police, Mr. Gibson is the only one in my view who would have had reason to put the documents in the pocket of the Jacket, even if he only wore it once. I find that the only reasonable inference to be drawn is that Mr. Gibson is the one who put the documents and the Bible in the pocket of the Jacket. Since the Bible and the documents were part of Mr. Gibson's property when he was released from jail they were likely put into the pocket of the Jacket either upon his release, if the Jacket in fact belongs to him, or on his evidence once he borrowed the Jacket from his brother right after his release before he went back to his former girlfriend’s home. Accordingly the presence of the Bible and the papers in the Jacket does not assist in helping to decide if the Jacket belonged to Mr. Gibson or not.

(d) The Jacket

[87] Ms. Jwelag testified that the Jacket is not hers and she never wore it. She said that it belongs to Mr. Gibson and he brought it with the other clothing and belongings to her apartment.

[88] Mr. Gibson testified that when he was released from jail on April 20, 2012, it was windy and a little chilly and so he went to his brother’s Marcus’s house, which was near the jail and his brother loaned the Jacket to him. He said that he then wore the Jacket to his girlfriend’s place where he was living at the time and that he never wore it again because Marcus is “way bigger than me” and the Jacket was “way too big for me” and not his style. Mr. Gibson testified that he likes fitted clothes not baggy clothes. Unfortunately there is no evidence about the size of the Jacket.

[89] Mr. Gibson admitted bringing the Jacket along with other jackets, hats, shoes and clothing to the apartment when he moved in with Ms. Jwelag. He said that he was only able to take about half of his clothing and shoes when he moved in with her because of an argument with his former girlfriend. He took the Jacket because it belonged to his brother and his brother might ask for it back.

[90] Mr. Gibson had baseball hats, shoes and clothing in the master bedroom. His hats and shoes were primarily stored outside the closet in the master bedroom. Ms. Jwelag testified that she gave Mr. Gibson the left side of her closet in the master bedroom although she had most of it. Mr. Gibson’s side of the closet was to the left of what she called the “blue thingy” which could be described as a hanging series of shelves made from blue cloth (the “blue shelf hanger”). Ms. Jwelag saw the Jacket inside the closet but couldn’t say where in the closet or if it was hanging.

[91] Two of Mr. Gibson’s jackets were hanging on the doors to the closet; one a puffy red down winter jacket and the other a baseball style jacket with another jacket used as a liner. Mr. Gibson testified that these jackets were the ones he wore frequently. Ms. Jwelag testified that these jackets did not fit in the closet.

[92] The evidence of Officer Gillan that the Jacket was hanging in the closet is disputed by Mr. Gibson. Unfortunately the clothing that was located in the left side of the closet was not photographed by the police, nor was the location of the Jacket. The Jacket was photographed outside of the closet.

[93] Mr. Gibson testified that the Jacket was not hanging up in the closet. He said that he folded up the Jacket and put it in the closet and that it could be seen among a pile of clothes inside the closet. He pointed to some blue plaid cloth that appears to be between other clothing on one of the cloth shelves of the blue shelf hanger. Ms. Pancer challenged this evidence by putting to Mr. Gibson that “if” Ms. Jwelag testified that she put her scarves, jewelry and her stuff in this blue shelf hanger was he still going to say this is where he put the Jacket. Ms. Jwelag never gave this evidence. In any event Mr. Gibson did not waiver from his position.

[94] Ms. Jwelag was not asked about this piece of plaid nor was she asked if any of Mr. Gibson’s clothing was in the blue shelf hanger. She was shown a picture of the closet that shows the blue shelf hanger when it was empty after the search and she testified that she stored her belts in it. Based on the photograph of the closet before the search it seems that this blue shelf hanger was stuffed with clothing but I can’t tell if it is all female items or not.

[95] Although there is a piece of plaid that is visible in the closet that is lying on the shelf of the blue shelf hanger, and that plaid seems similar to the Jacket, it does not seem to be bulky enough to be the Jacket. However, even hanging, the Jacket could have been at the back of the closet when it was found. All that I am able to determine about where the Jacket was is that there is no evidence on this point to suggest recent or frequent use. It is not the case for example, that the Jacket was hanging on a closet door in the master bedroom like the other two jackets belonging to Mr. Gibson or over a chair in the dining room like one of his jackets which would clearly suggest recent use.

[96] During my deliberations I noticed in one of the photographs (Exhibit #1C), a different jacket, also made from a blue plaid material with a navy blue quilted lining, lying over the back of the couch in the living room. I did not notice this during the trial. In the Exhibits Binder that went in on consent, this photograph is described as “Living room facing the balcony”. When Ms. Pancer took me through the binder she described it in the same way as the view from the front door and she made no mention of this jacket. I do not recall either counsel referring to the jacket in the photograph at any point in the trial. That is unfortunate because the plaid is very similar to the plaid of the Jacket and it has the same type of lining so it would also be worn in the spring or fall.

[97] I am not sure what to make of this. If this jacket belonged to Mr. Gibson it could suggest that he liked plaid or more likely that he would have no need of two plaid jackets. In the absence of any evidence about this jacket I have concluded that I cannot draw any inferences from this evidence.

(e) Did Mr. Gibson wear the Jacket before his arrest and on his release from jail on April 20, 2012?

[98] It is Ms. Pancer’s position that Mr. Gibson is lying about borrowing the Jacket from his brother and that it is his Jacket and he in fact wore it three times before including when he was arrested on January 23, 2012 and again when he was released from jail on April 20, 2012. The specifics of this theory were put to Mr. Gibson and he denied it and remained firm that the Jacket was borrowed from Marcus and that he wore it once, coming home from jail and that he never wore it again.

[99] Mr. Gibson testified that when he was arrested, which would have been a reference to his arrest on January 23, 2012, the police did not seize any of his clothing as evidence and that whatever he was wearing would have gone with him when he was booked and then to jail as part of his property and returned to him upon release.

[100] All of the documents found with the Bible save for the court reminder slip were received by Mr. Gibson after he went to jail on January 23, 2012. They, therefore, do not assist me on this issue. The court reminder slip, however, was given to Mr. Gibson before his arrest and so the fact that it was found in the Jacket pocket with the rest of his papers is important.

[101] Ms. Pancer put to Mr. Gibson that he wore the Jacket on December 14, 2011 when he got the court reminder slip, but he denied this. I have no reason not to accept his evidence on this point. There is no evidence to establish that because the court reminder slip was given to Mr. Gibson on December 14th for a court appearance on January 10, 2012 that he would have kept it in a pocket. That is certainly possible but he could have as easily kept the slip on a bedside table and put it back in a pocket when he went to court on January 10th.

[102] What I can infer is that by the court attendance on January 10th although the slip was no longer relevant to Mr. Gibson he clearly did not throw it out then. This court attendance was 13 days before Mr. Gibson was arrested and he must have had it in his possession when he was arrested as that is the only way it come have become part of his property upon release from jail.

[103] For this reason what Mr. Gibson was wearing when he was arrested became an important factual issue. I should say that I heard about the charges but disregarded that information save that I understand the charges were withdrawn.

[104] Mr. Gibson was released from the Don Jail on April 20, 2012 and Mr. Chernovsky asked him when he went into jail. He could not remember when he went in and when he was asked what he was wearing when he went into jail he said it was “something like” a t-shirt and pants and he said the pants were “bushy pants” and that it was hot. His reference to “bushy pants” was not followed up on and Mr. Gibson then agreed with Mr. Chernovsky’s suggestion that because it was hot it must have been the spring or summer when he went into jail. That was a leading question and was not objected to. This suggestion to Mr. Gibson was also clearly not correct because it is agreed that he went into jail on January 23, 2012. Given Mr. Gibson’s evidence that it was hot outside it seems that he was not actually recalling his arrest on January 23, 2012. He was firm that he was not wearing the Jacket when he was arrested. Mr. Chernovsky did not ask him about the court attendance slip.

[105] In cross-examination Mr. Gibson agreed with Ms. Pancer’s suggestion that he had testified that when he was released on April 30th he was wearing jeans and a t-shirt. I do not believe that was his evidence; he testified it was pants. Furthermore, Ms. Pancer did not follow up on his reference to “bushy pants”. In any event I have concluded that he was wearing pants with pockets given his other evidence I will come to.

[106] In cross-examination Mr. Gibson admitted that he was at a sports bar when he was arrested on January 23, 2012. Ms. Pancer put to Mr. Gibson that he would have worn a jacket to the bar because it was cold and in his first response Mr. Gibson agreed. When Ms. Pancer then asked Mr. Gibson if the jacket went with him to jail as his property he asked her if he “got bail on that charge”. This question seemed sincere; Mr. Gibson clearly was not remembering what happened after this arrest which was consistent with his responses to Mr. Chernovsky’s questions. When Ms. Pancer put it to Mr. Gibson again that he would not go to a bar without a jacket in January and have to line up outside he answered that he was not going to lie and that he could not remember if he had a jacket or not.

[107] I appreciate that this was inconsistent with Ms. Gibson’s earlier answer but it seemed to be as a result of Mr. Gibson’s confusion or lack of memory about what he was wearing. At this point Ms. Pancer had not linked this jacket to “the Jacket” and given that Mr. Chernovsky did not ask Mr. Gibson about that it seemed to me that Mr. Gibson seemed genuinely confused. I had no sense that he appeared to realize the significance of this evidence about a jacket.

[108] Mr. Gibson testified that he had been outside the bar smoking a cigarette and that when he came inside he was arrested. However, he denied the suggestion that he would have worn a jacket to go outside and smoke. At this point Ms. Pancer put to Mr. Gibson that in the synopsis for the charges of January 23, 2012, the police said that he was wearing a jacket and he put something into an inside pocket of the jacket. Mr. Gibson said the police were lying and that he did not put anything into an inside pocket and that he only had his health card and wallet in his back pocket.

[109] When Ms. Pancer put to Mr. Gibson again that he was arrested wearing a jacket he responded again that he did not remember if he was wearing a jacket that night or not but that his girlfriend just lived up the street and they drove to the sports bar and that he could have had a sweater. At this point Mr. Gibson did admit that since it was January that there was no way that he would have worn only a t-shirt.

[110] Unfortunately Ms. Pancer did not lead evidence about Mr. Gibson’s booking at the time of his arrest, which would have shown whether or not he was wearing the Jacket nor did she call any evidence as to what clothing he had when he went to jail or upon his release. Furthermore, I did not hear from any of the officers who arrested Mr. Gibson on January 23rd. He may have worn a jacket to the bar and not had it with him when he was arrested since he said he did not put on a jacket when he went outside. He was not asked whether or not if he had a jacket, the officers did or did not let him wear it. I appreciate they would likely have permitted him to put on a jacket unless they seized it and he did not recall any of his clothing being seized. However, I do not know the circumstances of his arrest. Furthermore, Mr. Gibson was not asked where they parked the car and whether he left a jacket in the car or brought it into the bar. I have no evidence as to how cold it was on the day of his arrest. In the face of Mr. Gibson’s firm denial that he was not wearing the Jacket when he was arrested these are all important questions in my mind.

[111] There is no evidence from Mr. Gibson that he had a sweater when he came out of jail or that he had any other jacket in his property. However, whether or not he was wearing a jacket when he was arrested is a more difficult factual issue. Despite the fact Mr. Gibson’s evidence was not totally consistent on this point, he was firm that he was not wearing the Jacket and absent other evidence, I find that I cannot decide if that assertion is true or not.

[112] This is not the end of this issue as Ms. Pancer submitted it is not a reasonable inference from the evidence to find that Mr. Gibson had this reminder slip on his person if he was only wearing a t-shirt and jeans when he was arrested. She submitted it was unlikely that he wore the same jeans for 13 days and that the only inference to be drawn from the evidence is that he put the reminder slip in the Jacket when he was in court on January 23rd and that he was wearing the Jacket when he was arrested and that the Jacket was taken as his property to the jail and when he was released he put the reminder slip back in the pocket of the Jacket.

[113] Mr. Chernovsky submitted that Mr. Gibson could have put the court reminder slip in his jean pocket and he could have worn the same jeans to court and at the time of his arrest. Ms. Pancer submitted that this could not be true as it would mean that Mr. Gibson wore the same jeans for 13 days. I agree with Mr. Chernovsky that this court reminder slip could have been in jeans Mr. Gibson wore to court and on the day of his arrest. The evidence from both Ms. Jwelag and Mr. Gibson is that he changed a few times during the day so I agree it is not likely that he wore the same jeans for 13 days. However, it is certainly possible that he wore various pants in this timeframe and happened to be wearing the jeans he wore to court when he was arrested at the bar. I have no evidence about those jeans but it is reasonably possible that they were a good pair of jeans or a favourite pair that Mr. Gibson wore to court and then again 13 days later when he was arrested at the bar.

[114] Ms. Pancer also challenged Mr. Gibson on the fact that all these months after his release from jail he had not returned the Jacket to his brother. According to Mr. Gibson, his brother never asked for the Jacket back and never came to visit Mr. Gibson as he was on house arrest at the time. Mr. Gibson also testified that he did not go to visit his brother in this timeframe. He was not asked why and so I do not know if it was because of the conditions of his brother’s release which could be why. It may be then that the fact Mr. Gibson still had the Jacket is not inconsistent with his position.

[115] Ms. Pancer did challenge Mr. Gibson’s evidence that he did not wear baggy clothing and took him to the photographs, which show what he was wearing at the time of the Argos game. Mr. Gibson had already testified that at this time he was in the Sprucedale Youth Centre in Simcoe, Ontario and that he was able to wear his own clothes there. He had also admitted that all of the clothes that he was wearing at the time as shown in the photos were his. When Ms. Pancer put to him that the t-shirt and jeans he was wearing at that time were very baggy he said that they were far from what he wore when he got out of jail. He also testified then that his grandmother bought the clothing for him and that he had to have brand new clothing for this institution. Ms. Pancer’s position is that this was a change in his evidence. As I have stated I do not accept that submission.

[116] Mr. Gibson denied Ms. Pancer’s suggestion that the white shirt shown in the photographs of him and Ms. Jwelag is a baggy shirt and testified that it was a muscle t-shirt. Although I can’t tell if the shirt is tight on him, it certainly does not look baggy as suggested by Ms. Pancer. Ms. Pancer also pointed out to Mr. Gibson that the red winter jacket was not fitted as he said he liked his clothing but I do not take much from that since it is a down jacket.

[117] I am left then with two possibilities, one that Mr. Gibson put the reminder slip in the Jacket, wore it the night he was arrested and as such it went with him to jail and that, therefore, the Jacket is his Jacket as the Crown contends. Alternatively, Mr. Gibson was not wearing the Jacket or any jacket when he was arrested and he had the reminder slip elsewhere on his person when he was arrested, likely a pocket of his jeans where he said he had his wallet and health card, that he had worn those same jeans to court and accordingly the reminder slip was part of his property while he was in jail and released to him when he left the jail. In my view both inferences are reasonably possible and so I have concluded that the presence of the court reminder slip in Mr. Gibson’s property does not assist me in determining whether or not he was wearing the Jacket when he was arrested and that the Jacket belonged to him. Furthermore, in the absence of further evidence about the Jacket which I will come to, I cannot determine if it belonged to Mr. Gibson or his brother.

(f) Did Mr. Gibson wear the Jacket after his release from jail?

[118] Although I am not able to decide whether or not Mr. Gibson was wearing the Jacket when he was arrested and then when he was released from jail, I must still consider his evidence that he borrowed it from his brother and he only wore it once after his release. Clearly if he had worn the Jacket with the firearm in the pocket he would have noticed it and it would undermine his evidence that he did not like the style of the Jacket and that it was not his.

[119] Ms. Jwelag testified that Mr. Gibson changed three to four times a day and what he was wearing was not her priority. She did not remember Mr. Gibson wearing the Jacket and could not say if Mr. Gibson ever wore the Jacket or not after he brought it to her apartment. She added that it was a fall jacket and it was the summer and then in November it was winter. This part of her answer was not clear.

[120] In any event there is no evidence of Mr. Gibson wearing the Jacket after his release from jail that contradicts his evidence that he did not do so.

(g) Did Mr. Gibson need to access the Bible and his personal papers after his release from jail?

[121] I have also considered whether or not it is likely that Mr. Gibson would have wanted to access his Bible and documents that were in the pocket of the Jacket. I reviewed the Bible and the pages before page 3 and pages 13-14 are missing. There is a phone number on page 5. Accordingly Mr. Gibson’s evidence that he had removed the pages from the Bible where he wrote down the phone numbers appears to be true. Given the nature of the other documents that were in the Jacket pocket I find that there was no reason why he would have needed to refer to any of them after his release from jail and as such he would not have had any particular reason to access the Jacket pocket again for the Bible or the documents. As a result, Mr. Gibson might have forgotten about the Bible and the documents and his evidence that he did not go into the pocket of the Jacket after his release from jail could reasonably be true.

Has the Crown persuaded me beyond a reasonable doubt that Mr. Gibson was in “possession” of the firearm?

[122] Having reviewed the evidence and made these findings of fact, I turn to the central issue: has the Crown persuaded me beyond a reasonable doubt that Mr. Gibson was in possession of the firearm? In this case the issue is his knowledge of the firearm. There is no doubt that if he was aware of it, it was in his control.

[123] Before turning to this I must address the many submissions made by Mr. Chernovsky criticizing the police investigation in this matter. This included the decision not to seize the Jacket, the lack of documentation as to where the Jacket was found, the failure to photograph where the Jacket was found and the failure of the Crown to obtain records from the Don Jail as to what clothing Mr. Gibson had with him when he was admitted and then released. I share some of this frustration and would add that evidence from the arresting officers and the booking video at the time Mr. Gibson was arrested at the sports bar would likely have determined once and for all whether or not he was wearing the Jacket. However, whether or not the police investigation fell short is not an issue that I must determine. As juries are instructed, I must decide this case on the basis of the evidence that I do have and whether or not considering all of the evidence and the lack of evidence the Crown has met her burden of proving the charges beyond a reasonable doubt.

[124] In his closing submissions Mr. Chernovsky submitted that because Mr. Brown had no knowledge of the firearm, it could have been planted by police. The difficulty with that submission is that it was not put to any of the officers that the firearm was planted by an officer in the Jacket. Furthermore, there is absolutely no evidence from which I could reasonably infer that an officer planted the documents or the firearm in the Jacket as submitted by Mr. Chernovsky. I have, therefore, not considered this submission.

[125] Mr. Chernovsky also submitted in closing that the firearm could have belonged to Ms. Jwelag but it was never put to Ms. Jwelag that the firearm in fact belonged to her. Although Mr. Gibson did not take this position, as a matter of fairness, in my view this should have been put to Ms. Jwelag in cross-examination. Nevertheless, I have no doubt that had that been specifically put to her that she would have denied it given her other evidence.

[126] In my view then there are three possibilities that I must consider; one - that the firearm belonged to Ms. Jwelag and she hid it in the Jacket, two - that the firearm belonged to Mr. Gibson and he hid it in the Jacket or three, that they both knew about the firearm that was hidden in the Jacket. Since they both denied knowledge of the firearm I will focus on the first two possibilities. The fact these are possibilities does not of course mean that a reasonable inference can be drawn from the evidence to support either or both of these possibilities.

[127] I begin with the primary facts that I have found that are relevant to this determination.

The firearm was found in the inside pocket of the Jacket inside the closet of the master bedroom of Ms. Jwelag’s apartment which she was sharing with Mr. Gibson at the time They were living together in an intimate relationship at all material times.
The Bible and the documents that were located and seized by Officer Gillan were with the firearm in the same inside pocket of the Jacket.
I am unable to determine if the Jacket belonged to Mr. Gibson or not.
I have not been able to determine that Mr. Gibson wore the Jacket at the time he was arrested in January 2012 and as such that he must have had it when he was released from jail in April 2012.
Although it is Mr. Gibson’s position that he borrowed the Jacket and that it belongs to his brother, he admitted bringing it to Ms. Jwelag’s apartment and putting it in the master bedroom closet. As such he has admitted that he was in possession of the Jacket but denies knowing anything about the firearm.
There is no evidence that contradicts the evidence of Mr. Gibson that he did not wear the Jacket beyond the one time he admits after he left the jail. In particular, Ms. Jwelag had no recall of Mr. Gibson wearing the Jacket. He had both a winter jacket and a lighter jacket hanging on the doors to the closet which he said are the jackets that he wore. I have no reason to reject that evidence.
The firearm was safe to handle in that it did not have a bullet in the chamber or a magazine nor was a magazine or ammunition found in the apartment by police. Although it is admitted that the firearm was operable, as it was found it could only have been used to scare people into believing that it could be fired.
Ms. Jwelag kept marijuana in a locked cabinet that only she had access to.
Both Ms. Jwelag and Mr. Gibson were selling marijuana on a small scale. They were both selling for the most part to people they knew although Mr. Gibson did so on the street whereas Ms. Jwelag sold to people she knew that came to her in the apartment.
As Ms. Pancer submitted from the photographs and the evidence of Ms. Jwelag she had gone to great lengths to decorate her apartment. It is clear that she is a good mother and loves her son and would go to great lengths to protect him. Mr. Gibson agreed with this.

[128] I come then to what inferences can reasonably be made in light of all of the evidence. Ms. Pancer submitted that the inference of Mr. Gibson’s knowledge of the firearm is the only rational non-speculative inference from these primary facts. Mr. Chernovsky admitted that as between Ms. Jwelag and Mr. Gibson it is more likely that the firearm belonged to Mr. Gibson but that the Crown could not prove its case beyond a reasonable doubt. He submitted that another reasonable inference to draw from the evidence is that the firearm belonged to Ms. Jwelag.

[129] Mr. Gibson was firm that he did not know anything about the firearm and had never seen the firearm in his life. He said it was not in the Jacket that Marcus loaned him when he wore it the one time. Mr. Gibson said he has no idea how the firearm got into the pocket of the Jacket and he maintained his position that he did not put a firearm in the pocket of the Jacket. He said he was not saying that he ever saw Ms. Jwelag with the firearm and he admitted he was not saying that the police planted the firearm in the Jacket pocket. When it was put to him that he was unlucky because it was there he repeated that it was “kind of ironic” although I do not believe he was using this word with its usual meaning. However, his evidence must be assessed in the context of all of the other evidence.

[130] There is no doubt that at a minimum either Mr. Gibson or Ms. Jwelag knew about the firearm. As between the two of them I agree that the firearm probably belonged to Mr. Gibson but that clearly does not mean that the Crown has proven beyond a reasonable doubt that he was in possession of that firearm. In my view what this case comes down to is whether or not a reasonable inference could be drawn from the evidence that the firearm belonged to Ms. Jwelag and that she hid it in the pocket of the defendant’s Jacket.

[131] Ms. Jwelag denied ever seeing the firearm or the Bible before. She denied that the firearm was hers and this evidence was not challenged in cross-examination. In cross-examination she testified that she did not know that the firearm was in her house. Ms. Jwelag denied going through Mr. Gibson’s belongings and testified that if she knew Mr. Gibson was bringing anything like that into her house he would never have entered her apartment.

[132] In cross-examining Ms. Jwelag, Mr. Chernovsky never directly suggested to her that the firearm belonged to either her or a former boyfriend. In his closing submissions he submitted that there is a reasonable inference from the evidence that the firearm belongs to Ms. Jwelag. Although in fairness he should have put this to Ms. Jwelag so I could assess her reaction to this suggestion, Ms. Jwelag was aware that this has been Mr. Gibson’s position because of what her lawyer told her. I have no doubt that if this suggestion had been put to her she would have vigorously denied it.

[133] Mr. Chernovsky argued that it was a reasonable inference that Ms. Jwelag was dealing drugs out of the apartment and wanted to protect herself with this firearm. He submitted that the firearm was readily available in the closet if she ran into trouble. Ms. Pancer argued that Mr. Gibson was out on the street dealing marijuana and so he would have had more need of a firearm.

[134] Everyone agrees that Ms. Jwelag would not have exposed her son to any risk of danger. Although Ms. Pancer conceded that the firearm would have been safe if Ms. Jwelag’s son had handled it, she submitted that she wouldn’t have wanted her son to touch it whether it was loaded or not. Ms. Jwelag testified that she would not have knowingly allowed Mr. Gibson to bring a firearm into her apartment but she was not questioned about the fact that this particular firearm had no magazine or ammunition nor whether she would have had the same objection to this particular firearm. I, therefore, cannot conclude that she would have had such a concern about the firearm given its condition that she would not have allowed it into the apartment.

[135] I have found that Ms. Jwelag was dealing in small amounts to people that she knew. I also find that she would not have put herself in a position even when she was selling marijuana where she would feel that she needed a firearm, even one that had no ammunition, for protection because that would put her son at great risk too. Given that she was dealing in small amounts to people that she knew I find that she would not have needed a firearm for protection as a result of this dealing.

[136] Ms. Pancer submitted that Mr. Gibson was out on the street where there was danger and that he was selling more than he admitted and even suggested that he must have been selling hard drugs. The latter submission was not put to Mr. Gibson and there is no evidence to support it. Furthermore, there is no evidence that contradicts Mr. Gibson that he too was dealing to people that he knew. All of this was to support her argument that Mr. Gibson would have wanted to have the firearm for protection. However, given the level of dealing Mr. Gibson admitted to and the fact that he was dealing in marijuana, I do not accept the submission that he would have needed to have the firearm in his possession when he was out on the street. Although the courts often see firearms and drugs go together that is usually in the context of hard drugs like crack cocaine and heroin which are more valuable.

[137] For these reasons I reject arguments advanced by both counsel that Ms. Jwelag or Mr. Gibson had a reason to have access to the firearm or carry the firearm because they were dealing in small quantities of marijuana.

[138] Mr. Chernovsky acknowledged that if the firearm belonged to Ms. Jwelag that it would be more likely for her to keep the firearm in the locked cabinet. However, he submitted that if Ms. Jwelag knew that Mr. Gibson never wore this Jacket it would be a good place to hide the firearm. Mr. Gibson moved in with Ms. Jwelag in the spring and that would also explain why he would not wear the Jacket. He submitted that Ms. Jwelag would have every reason to shift the blame to Mr. Gibson for this firearm. Because of the outstanding warrant Ms. Jwelag knew she could be arrested at any time. She was not asked if she thought police might come to her door but she did testify that she did not carry her identification when she was out on the street.

[139] If the firearm belonged to Ms. Jwelag I appreciate that she might have feared its discovery by police given her outstanding warrant. However, although Ms. Jwelag admitted that she does not recall Mr. Gibson ever wearing the Jacket, she could only give that evidence after the fact. She would have had no way of knowing that he would never wear the Jacket when he first moved in with her. Although she may not have expected him to wear it when he first moved in because it was May, she had no reason to know whether or not he would wear it once it became fall. If she was intent on hiding the firearm and not letting Mr. Gibson know about it, it would not make any sense to hide it in any of his clothing. However, it seems that Mr. Gibson was wearing the jackets hanging on the closet door frequently so she may have considered the Jacket a safe place to hide the firearm. Furthermore, she would have no reason to fear Mr. Gibson finding it.

[140] If the firearm belonged to Ms. Jwelag I also cannot infer she would necessarily have kept it in the locked armoire since the firearm was not a danger on its own. She may have been more concerned about the possibility that the firearm might be found by police and that it would better for her if it was hidden in Mr. Gibson’s clothing.

[141] I have considered whether there is any other reason why Ms. Jwelag would have wanted to have a firearm. Had there been ammunition, I am satisfied that she would not have had the firearm in the apartment for fear her son could be injured. She was not asked if she knew that there was no ammunition found in the apartment. I presume she would have denied that as she denied all knowledge of the firearm. However, the fact remains that the firearm was not capable, as it was, of injuring anyone. As Mr. Gibson fairly admitted it could still give someone a scare. Given Ms. Jwelag’s fierce desire to protect her son, I have found that a reasonable inference could be drawn from the evidence that she would have such a firearm in her possession.

[142] Coming back to a consideration of all of the evidence, as I have already said I do find that as between Ms. Jwelag and Mr. Gibson, it is more likely that he knew of the firearm and is the one who hid it in the Jacket, given that it was a Jacket in his possession and his Bible and personal papers were in the Jacket pocket I also find that if the firearm belongs to Mr. Gibson, that he would certainly not have wanted to take a risk of Ms. Jwelag discovering it as he would not know how she would react even though the firearm had no ammunition. Furthermore, Ms. Jwelag’s reaction and statement when she was arrested is consistent with her position and enhances her credibility on that point.

[143] In considering all of the evidence I cannot conclude that I believe and accept Mr. Gibson’s evidence denying knowledge of the firearm but I find that his evidence could reasonably be true. He has no explanation for why Ms. Jwelag would want a firearm or why she would choose to hide it in a jacket she believed was his. However, given my conclusion that a reasonable inference could be drawn from all of the evidence that Ms. Jwelag was the one who owned the firearm and that she is the one who hid the firearm, his evidence raises a reasonable doubt. Certainly I have not made any findings of fact nor is there any direct evidence that would suggest I should completely reject his evidence. After carefully reviewing all of the evidence in great detail, I am left in a position where I simply cannot decide, as between Mr. Gibson and Ms. Jwelag, who knew about the firearm.

Disposition

[144] Mr. Gibson would you please stand.

[145] For the reasons I have given I find you not guilty of all charges.

SPIES J.

Released: April 1, 2015

Edited decision released: April 2, 2015

CITATION: R. v. Gibson, 2015 ONSC 2151

COURT FILE NO. 14-70000488

DATE: 20150401

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

TYREL GIBSON

Defendant

REASONS FOR JUDGMENT

SPIES J.

Released: April 1, 2015

[^1]: 1991 93 (SCC), [1991] 1 S.C.R. 742. [^2]: See R. v. C.L.Y., 2008 SCC 2 at paras. 7, 9; R. v. J.H.S., 2008 SCC 30 at para. 13. [^3]: See R. v. C.L.Y., ibid. at para. 6; R. v. Mends, 2007 ONCA 669 at para. 18. R. v. Carriere (2001), 2001 8609 (ON CA), 159 C.C.C. (3d) 51 at para. 48 (Ont. C.A.). [^4]: R. v. J.H.S., supra at para. 9. [^5]: R. v. Hull, 2006 26572 (ON CA), [2006] O.J. No. 3177 at para. 5. See also R. v. Van, 2009 SCC 22 at para. 23. [^6]: R. v. H.(C.W.) (1991), 1991 3956 (BC CA), 68 C.C.C. (3d) 146 at p. 155 (BCCA). [^7]: 2009 SCC 28, [2009] S.C. J. No. 28. [^8]: 1967 285 (ON CA), [1967] 2 O.R. 8, at p.9 [^9]: (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at 209. [^10]: Toronto: Carswell, 2013 at p. 108. [^11]: 1995 3498 (ON CA), [1995] O.J. No. 639 at para. 52 [^12]: (2005), 2005 34563 (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.) at 307. [^13]: 2010 ONCA 529 (Ont. C.A.), leave to appeal refused, (2011), 263 C.C.C. (3d) iv. [^14]: (1893), 1893 65 (FOREP), 6 R. 67 (H.L.).

R. v. Gibson, 2015 ONSC 2151

Case Summary