ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-70000375-0000
DATE: 20150717
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SHAQUILLE ROBICHAUD
Accused
Jessica Smith, for the Crown
Michael Leitold, for the Accused
HEARD: April 13, 14, 15, and May 8, 2015
REASONS FOR JUDGMENT
B.A. ALLEN J.
BACKGROUND TO CHARGES
[1] Shaquille Robichaud is charged with three firearms offences, possession of an unlicensed firearm, careless storage of a firearm and possession of an unlicensed firearm knowing it was not licensed. The accused was also originally charged with possession of cocaine for the purpose of trafficking which at trial was downgraded to simple possession.
[2] On February 1, 2013, Toronto police executed a search warrant on 32 Wakenda Place, Unit 1. They were investigating a robbery that had taken place on January 19, 2013. One of the three suspects in the incident seized the victim’s cellphone. The accused was suspected to be one of the robbers.
[3] The search warrant was executed at 6:05 a.m. and authorized a search for the clothing the accused was alleged to have worn during the robbery and a white iPhone. The police found a shotgun and crack cocaine in a bedroom on the premises as well as $160, a digital scale, two cell phones and clothing.
[4] The Crown called as witnesses the officers involved in the execution of the warrant. No defence was called.
THE LAW ON POSSESSION
[5] Possession is defined under s. 4(3) of the Criminal Code. It is defined similarly under the Controlled Drugs and Substances Act in relation to possession of drugs:
For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
[6] Possession must be decided in relation to both the shotgun and the drugs. The two essential elements of the offence of possession are: (a) control of the thing and (b) knowledge of the thing. Possession involves actual possession or constructive possession of the thing or joint possession by more than one person with the other’s consent. There is no evidence that would support a finding of joint possession with consent.
[7] To have actual possession or custody of a thing is to have physical custody or control of the thing. Constructive possession extends to situations where a person does not have hands-on custody of the thing but has knowledge of the thing and an ability to control it even if they do not have physical contact with it. Constructive possession is a matter to be decided on the facts of each case: R. v. Grey (1996), 1996 35 (ON CA), 28 O.R. (3d) 417 (Ont. C.A.) and R. v. Caldwell (1972), 1972 ALTASCAD 33, 7 C.C.C. (2d) 285, at pp. 290 - 291, (Alta. C. A.).
[8] The element of knowledge can be inferred if there is evidence of actual possession. But drawing inferences to establish knowledge becomes more difficult if the contraband is hidden or not otherwise in plain sight. The Crown must adduce either direct evidence of knowledge or indirect evidence from which knowledge can be inferred: R. v. Pham, 2005 44671, at para. 30, (Ont. C.A.).
[9] Before the trier of fact can base a verdict of guilty on circumstantial evidence, it must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts: R. v. Cooper (1977), 1977 11 (SCC), 34 C.C.C. (2d) 18 (S.C.C.) and R. v. Bui, 2014 ONCA 614, at para. 19, (Ont. C.A.).
[10] Control will not be inferred from mere knowledge or opportunity. To establish the element of control, it is necessary to have evidence establishing that the accused was able to exercise a directing, guiding or restraining power over the drugs: R. v. Cameron, 2002 NSCA 123, at para. 20, (N.S.C.A.). As with the element of knowledge, evidence of control is often indirect, that is, to be inferred in the circumstances of the case.
CONCESSIONS
[11] There are a number of concessions on the firearm charges. With respect to counts 1 and 3, under ss. 91(1)(a) and 92(1), there is no issue that Mr. Robichaud did not hold a license to possess the shotgun and no question that he knew he did not possess a license. On count 2, under s. 86(1), there is no issue that the shotgun was stored carelessly.
THE ISSUES
[12] In dispute therefore is whether Mr. Robichaud had knowledge of the shotgun and crack cocaine and whether he exercised control over these items. The Crown must prove that Mr. Robichaud actually knew about the presence of the shotgun and crack cocaine or had constructive knowledge of the items and exercised a sufficient measure of control over them.
EVIDENCE
[13] Five officers were involved with the execution of the search warrant and the search of the premises. The Crown argues Mr. Robichaud had knowledge of the firearm and relies on the following evidence.
[14] Officer Goodman was the scene of crime officer (SOCO officer) who was assigned to take entry photos of the rooms on the premises after officers secured the rooms for safety. She was also assigned to take photos of the items seized and to then take exit videos. As Officer Goodman confirmed, the purpose of the entry and exit videos is to establish the state of the residence upon entry and exit and to assist the trial court with the task of fact finding.
[15] During the search, Officer Kahnt was charged with the care of a young boy on the premises found in another bedroom on the top floor. Officer Kahnt took the boy to the basement and found another adult male in the basement where she remained with them during the search. Officer Kahnt acted as the exhibits officer with the responsibility back at the station to collect, document and store the shotgun, crack cocaine and the other articles seized at the premises.
[16] Officer Haynes acted as the central note taker. He testified he wrote notes and kept track of the times of entry and exit into the premises and prepared sketches of each room including the location of furnishings in the rooms. Officer Haynes testified he did not recall if Officer Goodman took photos before he did his sketches.
[17] The central notes indicate an entry time of 6:05 a.m. and an exit time of 6:42 a.m. The other officers did not record events and times during the period between entry and exit. Officer Haynes testified the sketches were not to scale and not necessarily completely accurate as to the exact placement of furnishings and the features of the rooms. The sketches were mainly to refresh the officer’s memory.
[18] Officer Forbes was the affiant on the warrant and the lead officer on the search. Officer Duffus and then Officer Forbes entered the bedroom located to the left on the top floor of the residence. That is the bedroom where the police located the shotgun and crack cocaine and where Officer Duffus was the first to encounter Mr. Robichaud.
[19] Officer Duffus testified he entered the bedroom and observed Mr. Robichaud behind the door to the right beside a cabinet. He testified at trial he witnessed Mr. Robichaud drop a black garbage bag containing an object behind the cabinet and that he did not know what the object was.
[20] The defence put to Officer Duffus that the door to the bedroom opened inward and only opened to 90 degrees, because it was obstructed by a wall, which means when Officer Duffus approached the doorway to enter the bedroom, his view of Mr. Robichaud would have been blocked by the door. Officer Duffus denied his view of Mr. Robichaud was blocked.
[21] Defence counsel challenged him that in his preliminary inquiry evidence he testified he did not know what was dropped behind the cabinet. Officer Duffus said he was being dramatic when he gesticulated at trial when he said Mr. Robichaud dropped a black garbage bag behind the cabinet. The object in the bag was later found to be the shotgun. Officer Duffus stated that he did not recall whether a light or television was on in the room and he did not use a flashlight, but he said he could clearly see Mr. Robichaud and could see what he was doing.
[22] Officer Forbes had been clearing the room to the right of the top of the stairs. He came into the room where Officer Duffus and Mr. Robichaud were. Officer Duffus took control of Mr. Robichaud and took him to the ground. When Officer Forbes entered the bedroom he saw Mr. Robichaud face down on the floor and assisted Officer Duffus to cuff him. Officer Forbes took clothing from the floor, not from the closet or a dresser, and gave them to Mr. Robichaud to wear.
[23] In examination in-chief, Officer Duffus said entry photos were done before the search. On cross-examination he said he did not know whether the search was done before the entry photos were taken because he might have been downstairs in the kitchen at the time attending to the mother. Officer Duffus’ evidence was that Ms. Robichaud was shouting and upset so he went to the kitchen and cuffed her to restrain her and left her with Officers Kahnt and Haynes and then returned to the bedroom. Officer Forbes testified the entry photos were taken before they entered the bedroom to search.
[24] Officer Forbes was already searching the bedroom when Officer Duffus returned. Officer Forbes had already found the shotgun wrapped in a black garbage bag behind the cabinet. Officer Forbes testified he originally saw the firearm looking like a pole wrapped in the plastic bag leaning against the wall behind the cabinet. When he moved the cabinet the shotgun fell from a vertical position to a horizontal position on the floor.
[25] Officer Goodman testified she was not in the bedroom when Officer Forbes found the shotgun in the black garbage bag but he was still in the room when she entered to take pictures. She took pictures behind the cabinet of the object wrapped in a black garbage bag. The entry photo shows the object wrapped in plastic lying on the floor behind the cabinet. The bag was removed from behind the cabinet and the object, a shotgun, was removed from the bag. Officer Goodman then took exhibit photos of the shotgun and ammunition. Contrary to Officer Forbes’ evidence and Officer Duffus’ evidence in-chief, Officer Goodman testified she believed the shotgun had already been located before the entry photos were taken.
[26] However, Officer Goodman said she did not know whether the black garbage bag with the shotgun was removed from behind the cabinet and replaced by other officers before she took the pictures. She did not see an officer move the cabinet when she was in the room. The timing on the timestamps on entry photos of the bedroom indicate that the bag would have been removed then replaced behind the cabinet for her to take pictures. Officer Goodman did not accept that suggestion and did not adopt her evidence from the preliminary inquiry that it had been removed and replaced before she took pictures. She simply said she did not recall her preliminary inquiry evidence, despite the fact the transcript confirming that testimony was shown to her.
[27] Officer Duffus and Officer Forbes denied the shotgun in the bag was removed and then replaced.
[28] A substance later tested to be crack cocaine was located in the bedroom on the desk across from the bed. Officer Goodman also took pictures of the drugs before they were seized.
ANALYSIS
Knowledge
The Parties’ Positions and Court’s Analysis
[29] The Crown argues this is a straightforward case. On the issue of possession, the Crown submits it has proven beyond a reasonable doubt the essential elements of the offences before the Court. On the issue of possession, the Crown takes the position it has proven through the police witnesses that Mr. Robichaud knew about the shotgun and drugs and had control over them.
[30] Crown counsel relies on the evidence of Officer Duffus and Officer Forbes. She submits the evidence is clear that Mr. Robichaud had knowledge of the firearm in the bedroom. The police and the mother yelled “police” before the police went upstairs and entered the room. This was a forewarning to Mr. Robichaud. Crown counsel points to Officer Duffus’ evidence that as soon as he approached the doorway of the bedroom, he observed Robichaud with something in his hand which he immediately put behind the cabinet.
[31] In the Crown’s view, that evidence is substantiated by Officer Forbes’ evidence. Moments later, Officer Forbes found the shotgun wrapped in a black plastic bag behind the cabinet, the place Officer Duffus saw Mr. Robichaud drop what he had in his hand as Officer Duffus approached the room. According to the Crown, although the lighting was dim in the bedroom, it was, as Officer Duffus testified, light enough for him to see what was happening in that room.
[32] The Crown’s position is premised on the view that the bedroom Mr. Robichaud was in at the time of the search was his bedroom. Crown counsel submitted Mr. Robichaud would know about and, hence control, the contents of his room including the firearm and drugs that were in plain sight on the desk. I will deal with the control issue below.
[33] Crown counsel argued the evidence overwhelmingly establishes Mr. Robichaud had knowledge of both the shotgun and drugs. Hence, the Crown has proven beyond a reasonable doubt the essential element of knowledge.
[34] The defence argues this case is hardly straightforward on the essential element of knowledge. He enumerated areas of the evidence that in the defence’s view raise a reasonable doubt.
[35] The defence argues that just because the shotgun was found in a bedroom where the police say Mr. Robichaud was located this is not proof that the bedroom was Mr. Robichaud’s. The defence also asserts there is no clear proof Officer Forbes saw Mr. Robichaud with the shotgun in his hand.
[36] Officer Forbes testified he found the shotgun wrapped in a black plastic bag behind the cabinet, first in a vertical position and then lying horizontally on the floor, after he moved the cabinet. In this regard, the defence pointed out the shortfall in the Crown’s proof of the police not preparing any notes of this critical event.
[37] The defence also turned the Court’s attention to the evidence of the police on the order the entry photos were taken in relation to the search. Officers Forbes and Duffus in examination in-chief testified that the entry photos were taken before the search. Officer Duffus attempted under cross-examination to step away from that testimony. However, it became clear during the cross-examination of Officer Goodman that the timestamps on the entry photos, which she testified were accurate, proved the photos of the bedroom were taken after the search.
[38] The defence argues it is not possible therefore to know the status of the bedroom and its contents before the search because the entry photos show the bedroom after some items were disturbed. The defence submitted this poses a problem for the Court appreciating the circumstances of the room before the police conducted their search, which has obvious implications for the Court’s fact finding task.
[39] The defence pointed to an example of proof that the scene was disturbed before the entry photos were taken. When Officer Forbes moved the cabinet the “pole” in the black plastic bag fell from its original vertical position to a horizontal position on the floor. However, the entry photo of the object in the plastic bag did not show the object’s original position. m It showed the object lying on the floor partially behind the cabinet wrapped in the black garbage bag. Officer Goodman did not see the object standing up as Officer Forbes said it originally was.
[40] Another concern addressed by the defence was the approximate 18-minute time gap, as shown through the entry photos, while Officer Goodman and Officer Duffus were dealing with the mother downstairs in the kitchen. This time period was not accounted for by the evidence. According to the defence, this would provide time for Officer Forbes to search the bedroom before Officer Goodman entered to take photos. There was no explanation from Officer Forbes of what he was doing during that period.
[41] The Crown also alluded to the fact that Officer Duffus, the critical witness to establish knowledge, was inconsistent as between his evidence at the preliminary inquiry and trial about what he saw when he encountered Mr. Robichaud. At the preliminary inquiry he stated he did not know what Mr. Robichaud had in his hand. At trial he testified he observed Mr. Robichaud had an object wrapped in a black garbage bag in his hand. There is also the fact the defence pointed out that the door to the bedroom opened inward at only a 90 degree angle which would prevent Officer Duffus from seeing Mr. Robichaud and what he was doing when he walked to the doorway of the bedroom.
[42] There was also no forensic testing on the shotgun, the black garbage bag or the packaging for the crack cocaine, so there is no such evidence connecting Mr. Robichaud to the contraband in the bedroom.
[43] The defence argued that, in addition to the physical obstacle caused by the door, there was also a visibility problem. There were no lights or television on in the bedroom and the officers did not use a flashlight to illuminate the room. It was just after 6 a.m. in February when it would have been dark without lighting.
Conclusion on Knowledge
[44] I am concerned with the evidence of the police. I accept that the entry photo evidence demonstrates that the scene in the bedroom was disturbed before the entry photos were taken. In addition to my concern about the status of the shotgun when the entry photos were taken, I also have little confidence on the whole about the reliability of evidence regarding the general status of the room when the police arrived.
[45] I have some difficulty with Officer Duffus’ and Officer Forbes’ evidence that the entry photos were taken before the search, when the entry photos clearly contradict this. Combined with this, there is the fact there were no notes taken of the times of certain aspects of the search, the times the entry photos were taken, the times the officers entered and left the bedroom and the times the shotgun and the drugs were found and seized. This leaves the Court with a fuzzy picture of the scene of the bedroom and Mr. Robichaud’s connection with the room and its contents.
[46] Evidence of this chronology is important for the trier of fact. Preparing memo notes of important observations and actions during the execution of warrants and ensuring entry photos are taken before the search are standard police protocol. I find the fact these practices were not followed during the search tends to cast a cloud over the facts.
[47] I also found troubling Officer Goodman’s inconsistent evidence on whether the object in the plastic bag had been removed from behind the cabinet and replaced before she took entry photos of it. As noted earlier, the times on the timestamps on the entry photos of the bedroom indicate that the plastic bag would have been removed then replaced behind the cabinet for her to take pictures. Officer Goodman had testified consistently with this at the preliminary inquiry.
[48] It is problematic for Officer Goodman’s credibility that she did not, in the face of proof provided by the timestamps, adopt her evidence from the preliminary inquiry. She rather unreasonably indicated she did not recall her preliminary inquiry evidence in spite of being shown her preliminary inquiry transcripts at trial. I find Officer Goodman as the SOCO officer fell short of her obligation to both the home owner and the trier of fact, to ensure her entry photos depicted the status of the premises before the search and to inform herself if there were any indications the scene had been disturbed before she took the pictures.
[49] I also question, given the minimal light and the obstacle to visibility caused by the door, whether Officer Duffus would have seen Mr. Robichaud immediately upon reaching the doorway as he testified. Mr. Robichaud was behind the door when Officer Duffus approached the doorway with a door that could only open part way. This causes doubt in my mind as it is difficult to imagine how Officer Duffus could have seen Mr. Robichaud put the object in the black bag behind the cabinet which would also have been blocked from sight by the door.
[50] Also, the fact there was no forensic testing on the shotgun, the black plastic bag or the packaging for the drugs weakens the link between those items and Mr. Robichaud.
[51] There is no reliable evidence of Mr. Robichaud having actual knowledge of the shotgun and drugs. There is, I find, also insufficient evidence from which to draw a reasonable inference of his knowledge. I find the evidence of the Crown’s witnesses does not adequately connect Mr. Robichaud to the shotgun and the drugs in any reliable way that could lead to an inference of his knowledge of the shotgun and drugs.
[52] The Crown’s evidence therefore leaves me with a reasonable doubt that Mr. Robichaud had knowledge of the shotgun and drugs.
Control
The Parties’ Positions and the Court’s Analysis
[53] The Crown’s position is the fact that Mr. Robichaud was in the bedroom so early in the morning at 6 a.m. when the police arrived, is evidence it is his bedroom. In the Crown’s view, he would therefore have control of the room and its contents. As well, according to the Crown, the fact that Mr. Robichaud’s clothes were in that room − that Officer Forbes picked up clothes in the room and Mr. Robichaud put them on − is further confirmation of his possession and control of the bedroom. This is further confirmed, in the Crown’s thinking, by the fact the clothing photographed and seized from the bedroom were men’s clothing.
[54] Those facts, according to the Crown, are sufficient proof of Mr. Robichaud’s control over the shotgun and drugs.
[55] I do not agree. I am more in favour of the defence’s view. Much more evidence is required to establish control.
[56] The police routinely obtain from the premises at the time of a search documentation like leases, pieces of identification and bills or mail that contain an accused’s personal information, including their name and address, information that connects them to the premises. The police acquired no such items during the search. A reasonable inference that can be drawn from the lack of this type of evidence is that the bedroom was not Mr. Robichaud’s and therefore he did not have control of the room or its contents.
[57] As well, the clothes Officer Forbes gave to Mr. Robichaud to put on were taken from the floor in the bedroom, not from the clothes closet or dresser. It could be inferred that the clothing in the closet and dressers did not belong to Mr. Robichaud, a possible indication the room did not belong to him.
[58] Some of the case law provided by the defence is instructive on the type of circumstantial evidence that has not been found sufficient to reasonably support an inference of control.
[59] The Ontario Court of Appeal set forth a general principle on how to regard circumstantial evidence and inferences that arise from the facts of a case. R. v. Bui cites the rule in the Hodges case which states that before the trier of fact can find an accused guilty, the trier must be satisfied not only that the facts were consistent with the accused having committed the act, but must also be satisfied that the facts are such as to be inconsistent with any other rational conclusion than that the accused is guilty: R. v. Bui, 2014 ONCA 614, at para. 19, (Ont. C.A.).
[60] Drawing reasonable inferences from circumstantial evidence is a fact driven exercise. However, lessons can be drawn from the application of the R. v. Bui principle in similar cases.
[61] For instance, the Court found in a case where more than one person continuously came to and left a premises that the accused did not have possession of a firearm seized from the premises. This is despite the fact the accused sold and stored marijuana and trafficking equipment on the premises, had a temporary license, a license application and a resume in a room on the premises: R. v. Bailey, 2013 ONSC 4742, at para. 28, (Ont. S.C.J.).
[62] In a case somewhat akin to the case at hand, the Court found the fact of the accused’s presence in the apartment when the gun was found did not raise the inference that the bedroom belonged to him and that he had the requisite knowledge and control of a gun found on the premises: R. v. Brown, 2012 ONSC 6565, at para. 25, (Ont. S.C.J.).
[63] Even in a case where the accused was found standing close to the doorway of a room where a firearm was found and where the accused driver’s license was found on the floor of the room was not sufficient to establish knowledge and control of a firearm: R. v. Turner, 2012 ONCA 570, at paras. 21 and 23, (Ont. C.A.).
Conclusion on Control
[64] It is clear, based on the dearth of evidence establishing Mr. Robichaud’s connection to or control of the bedroom, that a reasonable inference can be drawn that someone else could have occupied and controlled the bedroom where the firearm and drugs were found. The Crown has not satisfied the burden to prove beyond a reasonable doubt the essential element of control.
DISPOSITION
[65] The essential elements of knowledge and control in relation to the three firearm offences and the drug offence have not been proven beyond a reasonable doubt. The Crown has not proven Mr. Robichaud’s guilt of the firearm charges under ss. 91(1), s. 86(1) and 92(1) of the Criminal Code and his guilt of the drug charge under s. 4(1) of the Controlled Drugs and Substances Act.
VERDICT
[66] For the foregoing reasons, I am satisfied the Crown has not proven Shaquille Robichaud’s guilt beyond a reasonable doubt on the four counts on the indictment.
[67] I therefore find Shaquille Robichaud not guilty on counts 1, 2, 3 and 4 on the indictment and acquittals will be entered accordingly.
B.A. Allen J.
Released: July 17, 2015
COURT FILE NO.: CR-14-70000375-0000
DATE: 20150717
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
SHAQUILLE ROBICHAUD
REASONS FOR JUDGMENT
B.A. Allen J.
Released: July 17, 2015