R. v. Green, 2015 ONSC 2996
COURT FILE NO.: 32226/14
DATE: 20150512
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JUSTIN GREEN
Defendant
Erin Pancer, for the Crown
Daniel Moore, for the Defendant
HEARD: April 20 -23, 2015
E.M. Morgan J.
I. Background
[1] The Defendant is charged with 29 firearms offences. Each count relates to a different handgun purchased by the Defendant, although, as will be seen, there are several repeated charges and several that do not fit the weapons purchased by the Defendant. Of the 29 counts set out in the indictment, 23 of them relate to firearms purchased by the Defendant.
[2] Seven of the charges against the Defendant are for transferring a firearm, contrary to s. 99(1) of the Criminal Code. The balance of the charges are for possession of a firearm for the purposes of transferring it, contrary to s. 100(1) of the Criminal Code.
[3] On December 6, 2010, the Defendant was issued a license that authorized him to legally purchase restricted and non-restricted firearms and ammunition. His first purchase of a firearm took place on January 3, 2011, and his final purchase of a firearm was made on September 14, 2012.
[4] The Defendant’s license required his 23 firearms to be safely stored at the Defendant’s father’s house at 7669 Kittridge Drive, Mississauga, which is where he was living at the time his firearms license was issued. The weapons have all gone missing and are not now located there.
[5] Seven of the 23 guns have been either been found at crime scenes otherwise unconnected to the Defendant or seized from persons otherwise unconnected to the Defendant. In short, the Crown submits that the Defendant transferred the 7 recovered firearms knowing that it was illegal to do so, and that he was in possession of the other 16 firearms for the purpose of illegally transferring them. The defense submits that the Defendant intended to keep the 23 firearms as a personal collection, and that they must have been stolen from their place of storage at 7669 Kittridge Drive and were not intentionally transferred to anyone by the Defendant.
[6] The Defendant is 24 years old and a student of philosophy at the University of Toronto. He was arrested in October 2012.
II. The purchases
[7] The parties have entered into an agreed statement of facts which has greatly facilitated the trial process. The following facts are taken from that statement and are therefore not controversial as between the Crown and the defense.
The Beretta 92FS
On January 3rd, 2011 just less than a month after receiving his license, Justin purchased his first firearm, a Beretta 92FSA 9mm luger (serial number J04592Z) from Al Flaherty’s Outdoor Store located at 2066 Dufferin Street, Toronto. In addition to the firearm, he also purchased 1 box of 9mm ammunition. The firearm and ammunition purchases came to a total amount of $914.00. Justin paid with both Visa ($414.10) and Debit ($500).
Because of the firearms regulations, Justin was not authorized to transport the Beretta 92FSA until he received his ATT from the Chief Firearms Office.
That ATT was received 4 days later, on January 7th, 2011.
[8] In May 2012, a year and four months after his initial purchase of the Beretta 92FS, the Defendant began purchasing a series of weapons. Over the next several months he purchased 22 hand guns from four different stores in the greater Toronto area. The agreed statement provides:
May 2012
In May of 2012 Justin obtained a second part time job with Famous Players Theatres. Just like Walmart, Famous Players paid him bi-weekly and deposited his paychecks directly into his TD Canada Trust account (6483515).
In the month of May Justin was paid twice by Walmart ($611.19 on May 11th and $328.23 on May 25th) and once by Famous Players ($379.02 on May 25th). His total income from both of his jobs for the month was $1318.44.
On May 25th, 2012 one year and four months after purchasing his first firearm, Justin returned to Al Flaherty’s Outdoor Shop. While there he purchased 3 firearms: an IWI Baby Eagle 9 mm handgun with serial number 393297162 for $569.00; a Charter Arms Bulldog 357 calibre handgun with serial number 12-07314 for $549.00 and a Bond Arms Ranger II 45 calibre handgun with serial number 84639 for $740.00.
The total amount of these purchases with tax came out to $2133.44. Justin paid with cash. The ATT for the firearms were issued later that same day.
Five days later on May 30th, Justin returned to Al Flaherty’s outdoor store to pick up the firearms he had purchased on May 25th. While there he purchased 3 additional firearms; a Browning Buck Mark Camper 22 calibre with serial number 515ZZ33893 for $318, a Beretta U22 Neos with serial number JU2S45B for $399.00 and a Sig Sauer 1911 22 calibre with serial number F187082.
The total amount of these purchases with tax came out to $1318.70. Justin paid with cash once again. The ATT’s for these three firearms was received on May 31st, 2011.
June 2012
In June of 2012 Justin’s combined income from his two jobs was $1596.05. He was paid on June 8th and June 22nd by both of his places of employment.
On June 15th, Justin returned once again to Al Flaherty’s Outdoor Store. He purchased another 3 firearms for a total amount of $2196. He previously attended at the store and had given a $40 cash deposit as such on June 15th, he paid the rest of the money owing, $2156, and he paid it in cash.
The three firearms he purchased that day were: a Bond Arms Snake Slayer 45 calibre with serial number 84624 for $596.00, a Beretta 92A1 9mm with serial number K06679Z for $695.00 and a Smith and Wesson 9mm with serial number DXT7448 for $649.93.
Because Justin had given his deposit on an earlier occasion the ATT process was started prior to June 15th. As such, on the date he paid for the firearms the ATT for the Bond Arms Snake Slayer 45 calibre with serial number 84624 and the Smith and Wesson 9mm with serial number DXT7448 had already been processed and authorized.
The ATT for the Beretta 92A1 9mm with serial number K06679Z was issued some 10 days later on June 25th.
July 2012
In July of 2012 Justin’s total income from his two jobs was $1481.86.
On July 10th Justin purchased 2 more firearms from Al Flaherty’s; a Beretta 92FS 9mm with serial number M71857Z for $750 and a Beretta HG PX4 9mm with serial number PX1189S for $799.
The total amount paid was $1772.96. Justin had provided a twenty dollar deposit on an earlier occasion in order to once again pre-emptively start the ATT process. As a result of the deposit, his amount owing was $1752.96. He paid $32.96 of that amount on his Visa and then the rest of the amount owing in cash.
Because of the deposit the ATT’s for the two firearms had already been processed and issued for that date, July 10th
On July 27th, Justin purchased 1 Beretta PX4 Storm 9mm with serial number PX9711N from Nicks Sport Shop located at 579 Yonge Street for $950.
He received his ATT for that firearm on August 1st.
On July 30th, Justin attended at Target Sports Canada located at 14 Stalwart Industrial Drive in Gormley Ontario. He purchased three firearms on this occasion and paid a total of $2,255.42.
The three firearms purchased were: a Glock Model 17 Gen 4 9mm with serial number TED143 for $736, a Beretta 92FS 9mm with serial number J72532Z for $760 and a Gersan Yavuz 9mm with serial number B00066 for $499.95.
The ATT for all 3 firearms was issued the next day, July 31st.
August 2012
In August Justin was paid on the 3rd and the 17th of the month from both Famous Players and Walmart. On August 31st he was paid once again by Walmart. His total income from his part time jobs for the month of August totaled $1600.26.
On August 3rd Justin bought 2 firearms from Al Flaherty’s Outdoor Store, a Charter Arms Bulldog 357 calibre with serial number 12-07316 and a Walther P99C 9mm with serial number FAK9925 for $899. The total purchase price for the firearms was $1636.24. He paid $436 of the purchase price with his VISA and the rest was covered by a $1200 cash deposit that he had paid previously.
The ATT’s for those 2 firearms were issued on August 2nd, 2012 as such he was permitted to take the firearms from the store on the date he purchased them.
September 2012
Justin continued working while he was in school however he reduced his hours so that he could focus on his classes. Justin’s total income from Walmart and Famous Player for the month of September was $519.31.
On September 14th, Justin went once again to Al Flaherty’s to purchase a firearm. While there he paid $695 for a Beretta 96A1 with serial number A45675M. He had previously given a deposit of $100 which ensured the ATT application process had commenced. The ATT was issued on September 13th, prior to Justin’s attendance at the store. The balance owing for the firearm was paid in cash on September 14th.
That same day Justin attended at Gagnon Sports located at 385 Bloor Street West, Oshawa. While there he purchased four firearms: a Glock 17 Gen 3 9mm with serial number NPC541 for $649, a Glock Model G17 Gen 4 9mm that came with 3 magazines. The serial number for that firearm was PPM434. In addition to the two Glocks, Justin purchased a Beretta 92FS 9mm with serial number M70978Z for $749 and a Beretta 96A1 40 calibre with serial number A39847M or $699. He was also provided with a pistol case free of charge.
The total purchase amount that day was $3107.45. Justin had attended the store on August 28th and provided a $400 cash deposit for each of the firearms. As such the balance outstanding on September 14th was $2720 that was paid with cash that day
Because Justin had provided a deposit and ordered the firearms on August 28th the ATT for the firearms had been processed and issued on September 13th.
[9] As indicated, the Defendant purchased a total of 23 firearms under his license. He testified that he was aware of the fact that it was impermissible for him to transfer any of the firearms that he purchased, and that an ATT would have to be issued in order for them to be taken anywhere other than 7669 Kittridge Drive.
[10] The 23 firearms cost the Defendant $17,461.84. They have an estimated total street value of between $48,200 and $54,200.
III. The Defendant as gun collector
[11] The Defendant testified that at one point in late high school he developed a desire to become a lawyer, and then while at university he had an ambition to open his own school of philosophy. He also said that he is a gun collector. Indeed, he presents himself as not just a student of philosophy, but as a self-taught student of firearms. He stated that he has acquired substantial knowledge about weaponry over the years, and that obtaining a firearms license made him feel like an expert.
[12] He apparently became fascinated with weaponry as a youth while playing video games for hours on end. He testified that this fascination continued into his adulthood, and motivated him to become a licensed firearms owner. As he put it on the witness stand, “Philosophically speaking, I always liked the idea of firearms.”
[13] To be clear, there is no evidence that the Defendant is much of a firearms user. Although there is some confusing testimony as to whether the Defendant ever belonged to a gun club or firing range, neither the Crown nor the defense says that the Defendant is in the habit of firing his weapons very often, if at all. He has not characterized himself as an avid target shooter or gun sports enthusiast. Indeed, he testified that in the summer of 2011, after he had his license and had bought his first gun, he contemplated applying for a job with Brinks as a security guard, but that he is a poor shot and could not qualify.
[14] Rather, the Defendant has characterized himself as a passionate firearms collector. It was clear from the Defendant’s testimony that he has studied up a bit on the firearms he purchased. He expressed admiration for various details of the weaponry in an effort to demonstrate that he is an enthusiastic collector and a handgun aficionado. He testified that, “I look at firearms as being beautiful. I definitely like the aesthetic beauty that goes with firearms.”
[15] Although the Defendant made a point of speaking like a firearms devotee, he did not relate the title of any particular book about firearms or their use and history that he has read, nor did he tell of any museum he has visited, or historical exposition or even contemporary gun show that he has attended. There is no evidence that he ever purchased any firearm other than a currently manufactured, mass produced handgun. His professed aesthetic interest does not extend to antiques, rare or unique weapons, or any other type of collectibles.
[16] The Defendant indicated that much of what he learned about firearms came from discussing his various purchases with the clerk in the gun shops where he shopped. The agreed statement of fact, however, contradicts that testimony. It provides evidence from Andy Giraldi, the salesman at Al Flaherty’s Outdoor Store where the Defendant bought 15 of his 23 firearms, to the effect that, “Justin Green knew what gun he was looking for, Mr. Giraldi didn’t have to show him multiple guns he appeared to know what gun he wanted and asked for it specifically.”
[17] The agreed statement also summarizes the store clerk’s perception of the Defendant’s purchasing habits: “He recalled that Justin Green would come into the store, buy a couple of guns, and leave. He said that he was not a customer who stayed for a long period of time.”
[18] Without putting too fine point on it, the Defendant’s knowledge of firearms is not exactly what one would call encyclopedic. Rather, it is what one might call Wikipedic. He has enough knowledge about the weapons he purchased to suggest that he has carefully read an internet-style blurb on each one. He could therefore explain, in brief, what makes them distinctive or potentially attractive to an owner.
[19] By way of illustration, he stated that he didn’t realize the cost, but he was anxious to get his first firearm so he bought the Beretta 92FS on January 3, 2011, only weeks after receiving his license. Although he may not have known that the price tag at the store would be over $900, he was able to advise the court that the Beretta had a “time proven design”. He also stated confidently that this firearm had a recovery time that was very fast.
[20] He likewise had some information about each of the items he acquired in his second batch of purchases on May 25, 2012. He explained that one attractive feature of the Bond Arms Ranger 2 was that after firing the hammer jumps back into a half-cocked position for safety. He stated that it is also easier to clean because of the internal locking mechanism, although he conceded that he has never actually fired this gun and does not have any cleaning materials.
[21] As indicated, the Defendant testified that he is not very experienced at shooting his weapons and only occasionally goes to a firing range with the guns. He testified that he preferred to keep them in pristine condition so that they would be more valuable to his collection.
[22] Another of the guns that he purchased on May 25, 2012 was a Jericho Baby Eagle, which he was able to describe as the smaller version of a more well-known firearm, the Jericho Desert Eagle, made by the same manufacturer. On this occasion he also purchased a Charter Arms Target Bulldog, which he described as having a classic look, with a rubber grip and stainless steel finish. He testified that Charter Arms is known for high quality at affordable prices, and that this gun had a simplistic design and has a reputation for being trouble free operationally.
[23] The Defendant’s testimony went on much like this, providing some information for each of the 23 guns he bought. The Browning Buck Mark Camper purchased on May 30, 2012 was described as having “a crisp, clean trigger with easy pullback”. The Defendant testified that he knew that this particular handgun was featured in Nazi-era propaganda which he said he learned about in history class. The Sig Sauer, which he also purchased on May 30, 2012, had what the Defendant described as “a lot of features that made it a very personal model for me.” These included a double diamond grip, scales above the grip making it easier to handle when racking it, and a cheap price for a high quality weapon.
[24] The Smith & Wesson M&P 9 that he bought on June 15, 2012 was an interesting one, according to the Defendant. He testified that this is a very efficient gun, which is known to offer no surprises. He explained that this manufacturer is a huge and reliable company. In the Defendant’s words, “Smith & Wesson is the Microsoft of the gun companies”. They make very large deals, he added, and gave the example of a deal apparently made with Bill Clinton, although he did not elaborate on what Smith & Wesson’s negotiations with the former president entailed.
[25] On June 15 and July 10, 2012 the Defendant purchased three more Berettas similar to the first one he had bought, although two of these were chrome coloured rather than black. The Defendant testified that he contemplated mounting two of them in crossed fashion for display on a wall somewhere. On July 10, 2012 he also purchased a Beretta Px4 Storm, which he said had a lighter magazine than his other Berettas and was known for having good ergonomics. He also explained that this model Beretta has a rotating barrel, which is a different style than the several Beretta 92FS’s that he already had.
[26] On July 27, 2012, the Defendant purchased yet another Beretta Px4 Storm. There appears to be nothing different or special about this one that distinguished it from the one he had bought two weeks earlier, but this gun was purchased at Nick’s Sport Shop on Yonge Street downtown rather than at Al Flaherty’s where he had bought the previous one. He testified that he “just wanted to try something different. Change of scenery.” The difference, to be clear, was the store, not the gun.
[27] On July 30, 2012, he bought a Glock 17 Gen 4, which he indicated has a “double spring guide-ride system” that reduces the recoil. He testified that this “helps the shooter get back to the target quicker.” He also testified that, “You can consider a Glock to be one of the safest action pistols of all of them”, and explained that the gun is designed with a special safety grip. On the same day he also purchased a Girsan Yavuz 16, which he described as a less expensive clone of the Beretta 92FS.
[28] On August 3, 2012, the Defendant went back to Al Flaherty’s and purchased yet another Charter Arms Target Bulldog, which he explained by saying he was thinking about putting the two identical handguns together up on a plaque. That day he also purchased a Walther P99, which he described as being featured in many James Bond movies and in the James Bond Goldeneye video game.
[29] He also testified that, “When Hitler committed suicide, a Walther was found next to his body.” On the witness stand the Defendant explained that, without meaning to offend, Hitler was a very famous man. As he put it, “I take pride in being a man of history.”
[30] On September 14, 2012, the Defendant went on a final shopping trip. Early in the day he went to Gagnon Sports and bought four handguns. The first two were both Glocks: a Glock 17 Gen 3 that he described as having a thinner grip than the Gen 4 he had previously purchased, and another Glock 17 Gen 4 that he said was for the firing range so that he could keep his first one in mint condition. Interestingly these were used firearms, which one would think would be of little interest to a collector even if he intended to shoot one of them at a firing range.
[31] At this time he also bought yet another Beretta 92FS, which he said was also for the firing range. In addition, he purchased a Beretta 96A1 which he said was a 40 calibre weapon like his Smith & Wesson and that he wanted to have one for the range and one for the collection. That same evening, at 7:32 p.m. according to the receipt, he purchased another Beretta 96A1 at Al Flaherty’s. It is hard to identify the aesthetic appeal of this second 40 calibre Beretta of the day.
[32] In cross-examination counsel for the Crown confronted the Defendant with the fact that these were dangerous weapons and not collectible works of art or historic relics. The Defendant stayed true to his academic discipline, and gave a dialectical, if sometimes overused response to Crown counsel’s line of questioning:
Q: Your guns are dangerous, right? They can kill people?
A: I don’t know if this is the forum to get into a philosophical discussion of whether guns kill people or people kill people.
IV. The Defendant’s finances
[33] The Crown produced the Defendant’s bank records from TD Canada Trust, and they form an exhibit at trial. The portions of the agreed statement of facts set out in Part II above make it clear, and the bank records confirm, that from his known sources of income the Defendant could not afford the firearms purchases he made during 2012. As outlined in the agreed statement, he worked part time at Walmart and at Famous Players Theatres for most of the relevant months.
[34] During the heavy firearms purchasing months of May-September 2012, he never earned more than slightly over $2,000 per month from his employment, and during the May-September buying spree he spent more on firearms each month than he earned, to say nothing of his other expenses in life. He spent a total of $16,547.84 on firearm purchases during this five month spree.
[35] The Defendant testified that there are two sources of income that do not appear in his bank records. The first of these are welfare cheques which he managed to receive by hiding from the government his employment status. He testified that he received $685 per month from welfare from January 2011 to July 2012, when he was not eligible because of his part-time employment. In all, he received 19 welfare cheques for total of $13,015 in income. None of these funds appear in his TD Canada Trust account.
[36] Shortly after buying his first firearm in January 2011, the Defendant moved to his Uncle Alphonso Smith’s residence located at 20 Chipmunk Avenue in Scarborough. He testified that he did not want his uncle, with whom he was residing at the time, to know that he was collecting welfare, and so he went to great efforts to always check the mailbox before anyone else got there. In his examination in chief he stated that he had taken his uncle’s mailbox key and had made his own copy so that he could check the mail himself.
[37] In cross-examination, Crown counsel put to the Defendant the mailbox key that the police seized from him upon his arrest. At that point, the Defendant had to concede that this was, in fact, an original key with the Canada Post markings on it. He then changed his story slightly, and indicated that he just remembered that he took his aunt’s key since she rarely used it, and had not in fact made a copy of his uncle’s key.
[38] The second source of invisible income that he says that he earned is from casino gambling. The Defendant testified that he became a very good card player, which he first learned by playing online. He indicated that he got into the habit of frequenting Fallsview Casino in Niagara Falls. At one point he said that he was seriously considering becoming a professional poker player. He testified that poker is easier than working. Curiously, this ambition seems to have run concurrently with his interest in philosophy.
[39] The Defendant stated that he had unrecorded and unreported winnings from the casino, and that this explains his having in 2012 substantially more purchasing power than his income would have allowed, even taking into account the welfare payments. In his testimony, he played up the invisibility of this income, as if it were a trump card that the Crown was powerless to counter.
[40] In effect, however, the casino story was more like a house of cards, and it folded under cross-examination. In order to give the story any credence, one would have to believe that the Defendant drove to Niagara Falls on a regular basis without anyone knowing (except the first time when he said he went with his cousin and a friend, neither of whom came to testify), that he never filled his car with gas or ate anywhere that provided a single receipt, was never seen or recognized by anyone while winning thousands of dollars, consistently came out ahead at casino games, never got a casino card for the casino’s free drinks and meals, and spotted himself for his own first gambling stake by drawing $500 on his visa card and then forever afterward played with his winnings.
[41] Crown counsel suggested, with some cogency, that the casino story seemed tailor-made to fit his need for an untraceable financial explanation. In my view, there was little credibility to this entire aspect of his testimony. The Defendant would have no reason to hide any Niagara Falls trips, and yet they were unusually invisible and unverifiable. Moreover, if I can put it this way, the odds are very much against anyone having the supposed gaming prowess that the Defendant claims for himself. In my view, in trying to explain where the money came from to finance his firearms purchases, the Defendant overplayed his hand.
V. Storage of the firearms
[42] According to the Defendant, all of his guns were stored at all relevant times in a proper firearms storage safe in the basement of his father’s house at 7669 Kittridge Drive. This was the address at which the Defendant resided with his father and three siblings when he received the license, and was the only place in the province that the Defendant’s firearms license allowed them to be stored. The Defendant testified that the weapons were stored under lock and key as the applicable safety regulations require.
[43] The agreed statement of fact indicates that the Defendant’s firearms were never legally moved from the address at which they were stored:
Because the license was issued to 7669 Kittridge Drive, any firearm that was purchased by Justin was required to be properly stored at that address. If Justin wanted the firearms moved to another address, he was required to call the Chief Firearms Office and advise them of the address change. He then had to make an application to obtain an Authorization to Transport (hereinafter ATT) which would allow him to lawfully transfer the firearms to the new designated address.
From the time he obtained his firearms license, up until the date of his arrest Justin Green never once called the Chief Firearms Office to change the registered address for his firearms license. Nor did he ever call the Chief Firearms Office to make an application for an ATT to transfer any of the firearms that he had purchased to a location other than 7669 Kittridge Drive.
[44] As indicated above, in early 2011 the Defendant began residing at his uncle’s house. The agreed statement narrates this relationship as follows:
Justin had had some trouble in high school. He hadn’t finished enough classes to graduate and many of the marks for the classes he had completed weren’t high enough to get him into university.
With his uncle’s help, Justin managed to upgrade his marks and get his GED. He took night school classes and was able to get his marks up to a level where he could apply for university and reasonably expect to get in.
While Justin lived with his uncle, he maintained his residence at his dad’s house on paper. His driver’s license, car insurance, etc. were all registered to his dad’s Kittridge address and at no point did he seek to change them.
Further, after taking up residence with his Uncle in 2011, at no point did Justin ever advise the CFRO that he had moved residences.
[45] This last point – i.e. that the Defendant had never applied to move the firearms to his new address for storage once he moved out of his father’s house – was put to the Defendant several times in cross-examination and argued strenuously by the Crown in final submissions. In response to the cross-examination questions, the Defendant stated that his move to his uncle’s coincided with his studying for his GED and his application and admission to university. He said that his uncle’s place was akin to his student address, and that he still considered his father’s house to be his permanent home address.
[46] Counsel for the defense pointed out in argument that, in fact, there is no obligation to advise the firearms registry when a licensee moves. The firearms license is issued with respect to a specific address, but it can be the licensee’s home, commercial or work address, warehouse, cottage, or, for that matter, family home (as opposed to the licensee’s current apartment or student residence). Defense counsel appears to be correct on this point. The license requires that the guns not move without permission; it does not require that the licensee not move without permission. If the Defendant left the firearms stored properly at 7669 Kittridge Drive when he moved to 20 Chipmunk Avenue, he did nothing wrong in terms of his license.
[47] That, however, begs the question of whether the guns were in fact stored at the Kittridge Drive residence. No one saw them there. The agreed statement of fact states that the Defendant’s father saw him come home with his first gun in January 2011, and relates their conversation as follows:
- …after Justin purchased his first firearm in January of 2011 he attempted to bring it home to 7669 Kittridge Drive. He advised the officer that he told Justin that under that “under no circumstances would he ever be permitted to bring a firearm into his home. He told Justin to take the firearm away and he never saw or heard anything about it again.
[48] According to the Defendant, the guns were stored in a crawlspace in his father’s basement. He testified that he did not tell anyone about their presence there for the sake of the safety and security of their storage. The Defendant says that they were stored in a firearms storage safe, 5 feet tall by 2 plus feet wide, that he bought at Canadian Tire. He said that he transported the safe from the store and brought it into the house by himself, when no one was home. He has no receipt for the safe. He also said that he brought each of the firearms into the house without anyone seeing them, and that he racked them and locked them in their storage place without anyone hearing or seeing anything.
[49] Again, the Defendant testified that he operated in a way that was utterly invisible to everyone around him. Although he said he was a collector who loved admiring and playing with his firearms, he also said that he stored them in a way that ensured that he could virtually never take them out to even look at them, let alone to display them or take them to a firing range. The guns each came from the store with a lock for storage, and indeed the Defendant had a number of keys for these locks in his possession when he was arrested. However, there were not as many keys as there were firearms.
[50] The Defendant stated that he often checked on his weapons in storage to ensure that they were all there and that everything was in good order. He never noticed that anything was amiss, or that any of his guns were missing, until he was advised that all of them were missing in October 2012.
[51] Toronto police had found a Jericho Baby Eagle handgun in the possession of a suspect during the course of a drug arrest on June 15, 2012. After working for several months to restore the defaced serial number, the police determined that it was the weapon that the Defendant had purchased several weeks previously, on May 25, 2012. On October 22, 2012, a search warrant was issued and executed in respect of 7669 Kittridge Drive and the firearms that were supposed to be stored there. The agreed statement of fact describes the results of this search:
At 5:30pm on October 22nd, 2012 officers executed the warrant. No one was located in the house at the time the search was conducted. Officers searched the house from bottom to top but did not locate any of the remaining 22 firearms that Justin had purchased and registered to that address. There were no trigger locks located, no gun safes present, no receipts from any of the gun stores and not one gun box was found. There was absolutely no evidence that any firearms had ever been brought into that residence or ever stored at that home. In fact, officers were unable to locate Justin’s firearm license.
Shortly after the completion of the search warrant, Police received a phone call from Elvis Green (Justin Green’s father). He advised Police that his son had recently moved to 20 Chipmunk Avenue in the City of Toronto and was attending school at the University of Toronto.
On October 25th, at 10:30pm the warrant was executed at Chipmunk Avenue. Like the warrant at Kittridge 3 days earlier, officers were unable to locate any evidence that firearms had ever been present at this residence either. There were no firearms, trigger locks, receipts from the four gun stores he had purchased the guns from or gun boxes. And, the one safe that officers located in the residence, contained Alphonso’s good shoes that he didn’t want Justin to wear.
In Justin’s bedroom at 20 Chipmunk, police located Justin’s driver’s license, Firearms License (PAL), his passport etc.
[52] According to the Defendant, the guns had vanished, along with the safe and everything else that came with them. He testified that he had no idea what happened to any of it, and that as far as he knew, no one was aware that the firearms had been stored at the Kittridge residence. When asked whether gun cleaning materials were also missing, he indicated that he never had any cleaning materials. As he put it, “I didn’t want to make myself detectable.” He also indicated that he never kept any of the receipts for the gun purchases, because he “didn’t need them”.
[53] Oddly, there were no signs of a break-in or robbery of the Kittridge house other than the missing firearms safe with all of its contents. No one has ever been arrested in respect of any break-in at the house. The agreed statement confirms that, “at no point did Justin Green ever report a break in nor was a break in ever reported at either 7669 Kittridge or at 20 Chipmunk Avenue.”
[54] The Defendant testified repeatedly that every time he bought a new gun he immediately went to 7669 Kittridge Drive and placed it securely in the safe. That way, with each new purchase he was also able to check that the guns that he had already stored there were all present and accounted for. Until the search warrant was executed in October 2012, the Defendant says that he never noticed anything missing or otherwise amiss in his storage safe. He says that as of the date of his final firearms purchase on September 14, 2012, all of his firearms were properly stored as usual.
[55] The Crown points out that the Jericho Baby Eagle was found at a crime scene on June 15, 2012. This was only part way through the Defendant’s buying spree from May to September 2012. As of June 15, 2012, he had purchased only seven guns. He purchased three new guns that very day and testified that he took them to 7669 Kittridge Drive and put them in the safe.
[56] The Defendant’s story is seriously challenged by the fact that one of his firearms was recovered by the police prior to his having purchased the majority of his firearms. It is one thing for the Defendant to say that he did not notice one of 23 weapons missing from the safe; it takes matters to another level of credibility for him to say that he did not notice one of 7 weapons missing.
[57] In any event, in order to account for the Jericho Baby Eagle being missing along with later purchases, there would have to have been not just one break-in, but two. That is rather hard to fathom. It is hard enough to believe that one break-in could occur where a single firearm was removed from a locked safe without anyone noticing; it strains all credulity to think that there could have been two break-ins, the second of which removed not only the rest of the firearms but the entire safe.
VI. The Defendant’s arrest
[58] The circumstances surrounding the Defendant’s arrest in October 2012 are not particularly important in respect of the offenses charged. However, he made a point of testifying about his arrest and his evidence in this regard certainly goes to his credibility.
[59] The search warrant was executed at 7669 Kittridge on October 22, 2012. The Defendant’s father called him to tell him what had transpired and that the police were looking for him. In his examination in chief, the Defendant said that he had a Sociology class, and that he then went to the gym to play some basketball. He was finally arrested three days later, on October 25, 2012. He said that he called everyone he could think of to ask where the guns are, but has come up with nothing.
[60] In cross-examination, the Defendant’s tone and story changed significantly. Crown counsel suggested to him that a person who had just been told that their firearms collection was missing might be worried about where the guns have gone, and that one might expect him to be concerned enough to call the police right away.
[61] The Defendant’s response to this cross-examination replaced the basketball court with the library. He said that when he got the call about the search warrant from his father, he did not immediately call the police because he wanted to first go to the library to educate himself on the legal system and the law relating to bail. He also stated that he had a Sociology exam coming up, and that he was overwhelmed with anxiety about the exam. He testified that he took the exam and got an ‘A’.
[62] When he was arrested, the Defendant was in possession of a cell phone. Counsel for the Crown observes that for a gun collector it is odd that there are no photos on his cell phone of his gun collection. She suggested that for a person who professes to collect firearms for their aesthetics, he does not seem to want to partake of this aesthetic pleasure or to put it on display even through photographs.
[63] In response, the Defendant said that he is just being safe by not advertising that he has a firearms collection at home. That is the same reason that he did not tell his father or brothers about it, even though he says the collection was stored in their own home. He concedes that he deceived them, but says that it was all for safety’s sake.
VII. The recovered firearms
[64] Seven of the Defendant’s guns have now been recovered. The facts surrounding these recoveries are set out in the agreed statement of fact and are therefore considered proven. The recovery by the police of the seven firearms (collectively, the “Recovered Firearms”) can be summarized as follows:
• On June 15, 2012, Toronto Police officers investigating a drug offence seized from an individual a Jericho Baby Eagle with the serial number scratched out. A serial number restoration process revealed the serial number to be 39327162. It was determined that this was the Jericho purchased by the Defendant on May 25, 2012.
• On November 12, 2012 at 7:29 pm, Toronto Police officers from the major crime unit executed a search warrant and seized a Beretta 92FS. The serial number was scratched out, but a restoration process revealed it to be J04592Z. It was determined that this was the Beretta purchased by the Defendant on January 3, 2011.
• On January 13, 2013, a Crime Stoppers tip led police to arrest an individual carrying a Charter Arms Target Bulldog on the grounds of a local high school. The serial number was defaced, but the restoration process revealed it to be 12-07314. It was determined that this was the Charter Arms that the Defendant purchased on May 25, 2012.
• On September 22, 2013, Toronto Police responded to an emergency call regarding a shooting in a nightclub and seized a Beretta PX4 Storm. One of the serial numbers had been removed, but a second serial number was visible and was PX911N. It was determined that this was the Beretta purchased by the Defendant on May 30, 2012.
• On September 24, 2012, Toronto Police responded to a shooting in a barber shop and seized a Browning Buck Mark Camper from one of the shooters. One of the serial numbers had been removed, but a second serial number was visible and was 515ZZ33893. It was determined that this was the Browning purchased by the Defendant on May 30, 2012.
• On December 12, 2012, Toronto Police executed a search warrant as part of a drug and gun trafficking investigation and seized a Glock 17 Gen 4. The serial numbers were removed, but a serial number restoration revealed the serial number to be NPC541. It was determined that this was the Glock purchased by the Defendant on September 14, 2012.
• On January 20, 2014, Toronto Police responded to an armed robbery and shooting and seized from an individual a Bond Arms Snake Slayer 4. The serial numbers had been scratched off, but a serial number restoration revealed the serial number to be 84624. It was determined that this was the Bond Arms that the Defendant purchased on June 15, 2012.
[65] What is controversial between the parties is the fact that there is no evidentiary link, other than the guns themselves, between the Defendant and the persons in whose possession the Recovered Firearms were found. The Defendant testified that he does not know who these persons are, and the Crown has provided no additional evidence that they are known or connected to the Defendant.
[66] That said, the circumstantial evidence is strong. The Recovered Firearms were all purchased by the Defendant, and they had vanished from his possession in very suspicious circumstances. The Defendant had exclusive opportunity to traffic in the firearms. He was the licensed purchaser who had taken possession of each of the firearms, and he testified repeatedly that he was the only person who knew that he had purchased and possessed them. The Crown submits that since he was the buyer and sole possessor of the Recovered Firearms, he must have been the seller and transferor of them as well.
[67] Whereas 7 of the Defendant’s firearms have been recovered, 16 of them are still missing. There is no evidence as to what has become of those 16 missing firearms.
VIII. Approach to the evidence
[68] I must decide this case on the basis of a number of fundamental legal principles. First is that the Defendant is presumed to be innocent, and that the onus of proving the case beyond a reasonable doubt rests with the Crown. If I find that the evidence establishes a likelihood of guilt, or even a strong probability of guilt regarding any of the offenses charged, I must nevertheless acquit as that level of proof does not meet the requisite standard of proof beyond a reasonable doubt.
[69] In a case like this where the Defendant has testified on his own behalf, I must keep in mind that I “need not firmly believe or disbelieve any witness or set of witnesses”: R v W (D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, at para 10. In sizing up the testimony of the Defendant and the evidence presented by the Crown, I must proceed in accordance with the instructions suggested for such a case by Cory J., in W (D), at para 11:
First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[70] The evidence must be considered in its totality. “[M]ere disbelief of the accused’s exculpatory account or a mere preference in favour of the complainant’s account does not equate with guilt”: R v L (CO), 2010 ONSC 2755, at para 6. On the other hand, I must also keep in mind that the standard of proof beyond a reasonable doubt “does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt”: R v Lifchus, 1997 CanLII 319 (SCC), [1997] 3 SCR 320, at para 36 [emphasis in the original]. I may find the Defendant guilty if the evidence allows me to come to a determination “as to exactly where the truth of the matter lay”, R v Nimchuk (1977), 1977 CanLII 1930 (ON CA), 33 CCC (2d) 209, at para 7 (Ont CA).
[71] I did not find the Defendant to be a credible witness. His examination in chief was smooth and sounded well-rehearsed, especially with respect to his knowledge about the individual firearms. However in cross-examination he revealed many contradictions, mistakes, changes of story, and apparent fabrications.
[72] His ability to suddenly “remember” that he had taken his aunt’s original mailbox key and that he had not actually made a copy of his uncle’s key, which he had gone out of his way to explain in chief, was emblematic of much of the cross-examination. In chief he went to play basketball after hearing about the search warrant executed at Kittridge, in cross he suddenly went to the library to study up on the law of bail. In chief he was strictly a collector of firearms, in cross he suddenly realized that he had made a mistake when he answered ‘No’ on the RCMP license application form that asked if he is a collector. His testimony was replete with answers and follow-up answers like these, leaving the impression that the Defendant has an overly clever answer to just about anything.
[73] Most importantly, even where the Defendant has not been specifically contradicted or where he has not attempted to correct or revise his story after the fact, his evidence is simply impossible to believe on a number of crucial points. This is especially the case with respect to the supposed storage and disappearance of the firearms themselves.
[74] In the first place, his income during the crucial May to September 2012 buying spree was $7,072.50, and during this period he spent $16,500 on guns. His explanation with respect to the welfare fraud might be credible, although it reveals a fundamental deceitfulness. But his further explanation about the casino winnings that no one else knows about, and for which there is not a single shred of evidence showing even a fleeting visit to the Niagara Falls area, is so improbable as to lack all credibility. The inevitable conclusion to be drawn from all of the evidence is that he could not afford to buy the guns that he bought.
[75] Furthermore, it may be theoretically possible for a person to have bought, transported, and stored in his family’s home 23 firearms without anyone knowing, but it is highly unlikely. The evidence is that racking a firearm in a storage safe makes a significant amount of noise, and storing 23 firearms properly takes some logistics. In theory it may also be possible, but even less likely, for a person to have bought, transported, and set up in the basement of the house a metal storage safe that was 5 feet tall and 2 feet wide. The Defendant testified that he had use of a car, but he did not have a truck and he would have had a struggle transporting the safe to the house. And that is to say nothing about carrying it into the house and down the basement stairs alone.
[76] What approaches the impossible is that there would be a robbery in which all of the guns in the Defendant’s basement were stolen without him having noticed. The firearms that have been recovered from the Defendant’s ‘collection’ were found at crime scenes and in the hands of unrelated individuals elsewhere in the city; the thieves would not need a regulation safe for storage, and would doubtless dispense with removing from the house something so large and visible when they could simply take the handguns. And if that isn’t enough, it is so improbable as to be virtually impossible to take seriously that the thief or thieves that stole the first gun before or on June 15, 2012 then came for the rest of them on or after September 14, 2012 and even took the safe in which they were stored.
[77] In addition, there is no reason for thieves to try to scratch out the serial numbers of the firearms. Counsel for the defense suggests that the theft may have been by a member of the Defendant’s father’s household, thus explaining the lack of any other signs of a break-in. That is an interesting theory, although it begs the question why the Defendant’s brothers or father who lived at 7669 Kittridge Drive would need a storage safe and where they would put it. More significantly, there is not one shred of evidence in the record to support this theory. The police interviewed the Defendant’s father and conducted an investigation of the household and apparently found no such evidence. Moreover, the Defendant himself insists that neither his father nor his siblings were aware of the guns being in the house.
[78] I also find it very difficult to believe that the Defendant was a collector of firearms in any real sense of that word. In the first place, there is evidence that on the RCMP firearms application form the Defendant ticked the ‘No’ box where it asked if he is a collector. The Defendant says that this was a mistake on his part, but his evidence does not make it look like a mistake. He has the kind of knowledge about the guns he bought that he could have acquired at any time, including just before trial, by perusing the internet for a few minutes on each weapon.
[79] The Defendant bought multiples of various firearms and even bought several of his guns used rather than new. None of the firearms were collector’s items in that they were all modern, mass produced weapons; moreover, the Defendant claims to have stored them in a way which belies being a collector. It strains credulity for a hobbyist collector to say that he operates in absolute secrecy and under circumstances that don’t even allow him to take out the guns or even look at them. He insists that the guns are a hobby collection, but the hobby amounts to virtually nothing.
IX. Conclusion
[80] I conclude from all of the evidence that the Defendant never stored his firearms at his father’s house at 7669 Kittridge Drive. The question that remains is, what did he do with them?
[81] The Crown has demonstrated that seven of the firearms ended up illicitly in the hands of others. While there is no evidence directly linking the Defendant to any of the individuals from whom the Recovered Firearms were seized, the evidence of the Defendant’s conduct establishes that he had purchased the weapons with the intent of re-selling them. This is the only way he could have financed the purchases, and this explains the fact that a large safe has also ‘vanished’ from the Kittridge Drive house – i.e. it was never there to begin with, as the firearms were purchased by the Defendant to be passed on to others and did not need to be stored for long term, if at all.
[82] Counsel for the Crown summed up her position with the curt observation that, “There is no possible explanation for [any of this]... Those guns ended up on our streets because Justin Green sold them.” This is effectively a reiteration of the rule with respect to circumstantial evidence as set out in Hodge’s Case, (1838), 1838 CanLII 1 (FOREP), 2 Lew. C.C. 227, 168 E.R. 1136. As restated by the Supreme Court of Canada in Arsenault v The Queen, 1961 CanLII 103 (SCC), [1961] SCR 410, at 415, the trier of fact must be “satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty.”
[83] In my view, this is an apt description of the Defendant’s conduct here. Given the evidence demonstrating that he could not afford the firearms he bought without re-selling them, that he never stored them and never really had a safe or facility in which to store them, that he did not purchase or display guns like a collector would do, and that the weapons vanished without a trace until seven of them were found in the possession of other persons at crime scenes or in the course of police investigations, there is no other conclusion to be drawn. The Defendant purchased the firearms in order to sell them.
[84] I can do no better than to say as the Supreme Court of Canada has said: “the facts are such as to be inconsistent with any other rational conclusion than that the accused is the guilty person”: R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42, at para 33. I find that the Defendant transferred the seven Recovered Firearms, contrary to s. 99(1)(a) of the Criminal Code.
[85] Given that the Defendant’s other 16 firearms have not been located, there is not conclusive evidence that they have been transferred to anyone. They are missing, and one can deeply suspect that they have been trafficked in much the same way as the Recovered Firearms. They were purchased in the same months-long buying spree by the Defendant, they were registered to him under his license, they were supposed to have been stored at the same location at 7669 Kittridge Drive, and they vanished at the same time.
[86] Without recovery of those weapons or identification of a transferee, however, the most one can say is that the Defendant possessed the 16 unrecovered firearms for the purpose of trafficking. Again, the evidence is capable of only one conclusion: that the Defendant bought all 23 of his firearms with the intent and for the purpose of re-selling them. The 16 missing guns were probably sold by the Defendant, but for all we know he could still be in possession of them somewhere reserved for future sale. The Defendant possessed the 16 unrecovered firearms for the purposes of transferring them, contrary to s. 100(1) of the Criminal Code.
X. Disposition
[87] I find the Defendant guilty on seven counts of transferring a firearm contrary to s. 99(1)(a) of the Criminal Code. I also find the Defendant guilty on sixteen counts of possession of a firearm for the purpose of transferring it, contrary to s. 100(1) of the Criminal Code.
Morgan J.
Date: May 12, 2015
CITATION: R v. Green, 2015 ONSC 2996
COURT FILE NO.: 32226/14
DATE: 20150512
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
GREEN
Defendant
REASONS FOR JUDGMENT
E.M. Morgan J.
Released: May 12, 2015