ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 13596/14

DATE: 2015/09/03

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Hassan Ali

Defendant

David Parke, for the Crown

Reid Rusonik, for the Defendant

HEARD: Sept 1, 2, 3/2015

Justice B. Glass

[1] One count pursuant to section 95 (1) of the Criminal Code charges that Hassan Ali with possessing without lawful excuse an unloaded restricted firearm together with readily accessible ammunition that is capable of being discharged in the said firearm without being the holder of an authorization or licence permitting such possession at such place and the holder of a registration certificate for the said firearm.

[2] The firearm and ammunition were seized during the search of a residence in the City of Pickering, in the Province of Ontario, on March 31, 2012.

[3] A search warrant had been obtained following a Facebook disclosure of the brother of Mr. Ali with an apparent firearm.

[4] During the search of the residence, police located the firearm and ammunition in question in the bedroom of the Defendant.

[5] There is no dispute that the firearm is a restricted firearm, that it is capable of being discharged, that there is no authorization or licence held by Mr. Ali for possession of the firearm and that Mr. Ali does not hold a registration certificate for the firearm.

[6] The only issue to be determined at this trial is possession of the firearm and ammunition. Knowledge and control of the firearm and ammunition are disputed by Mr. Ali.

Crown Position

[7] The Crown position is that the items were in Hassan Ali’s bedroom and that he in reality is the person with control of that room. No one else in the home would be expected to have free access to his bedroom

Defence Position

[8] The Defence disputes the Crown position on the basis that there were over a dozen people living in the residence. Anyone could have gone into any room. The Defendant testified that the gun and ammunition were not his and that he had no knowledge of their existence. A set of brass knuckles were found in the bedroom, but they are not part of any charge.

The Facts

[9] The gun was located in a shoe box on a top shelf in the closet. A container of 22 calibre bullets as well as 2 loose bullets were found on the lower shelf in the closet.

[10] When the police arrived to execute a search warrant, they attempted to batter open the front door without success initially. They broke through a front window. During their attempt to enter the house, police were making considerable noise trying to announce that they were police with a search warrant.

[11] The Defendant was asleep in his bedroom clothed. He had been to a friend’s house where he consumed some alcohol for the celebration of his friend’s birthday. The alcohol had some overwhelming influence on the Defendant and he had fallen asleep fully clothed.

[12] Constable Couvillon had come to the bedroom window of the Defendant and could see him lying on the bed. When the noise of police presence aroused Mr. Ali, he got up, went out of his room and came back in and crouched down. One might wonder if he were thinking of trying to hide under the bed, but there was not sufficient room to do so. The officer called to the Defendant and pulled him out through the bedroom window. I might point out that at this point the Defendant did not go to the area where brass knuckles were found or to the closet where the gun and bullets were located.

[13] Mr. Ali told the court that he and his family came to Canada as refugees. When they lived in Pakistan, they had been subject to home invasion. The noise he heard this night when police were trying to gain entry to the Ali residence frightened him.

[14] Mr. Ali did not resist the police at all.

The Location of The Firearm And The Bullets

[15] When the video-recording officer came through the bedroom, he simply recorded all areas of the room including the closet. The officer was Constable Davies who did not see a firearm or bullets initially.

[16] Later, Constables Mackintosh and Thomson searched through this room as well as other areas of the residence. When checking the closet, Constables Mackintosh and Thomson said that they each inspected on one side of the closet. They located on the upper shelf of the closet a shoe box which contained personal papers of Hassan Ali, a baseball cap and a 22 calibre handgun. On the lower shelf of the closet, a container of 22 calibre bullets as well as 2 loose bullets were found.

[17] There is some debate about the location of the bullets. Mr. Rusonik challenged the officers that they did not see the bullets right away if they were in plain view. Counsel suggested that the bullets were located elsewhere and were placed on the shelf by an officer. The officers disagreed with that suggestion.

Analysis

[18] Mr. Ali denied that the gun was his, that he even knew of its presence in his bedroom, or that the bullets were his or that he knew they were there.

[19] The Defendant is a university student without any criminal record.

[20] His brother, Usman Ali, was the person of interest for the police when they obtained a search warrant and came to the residence. There had been a Facebook posting of the brother with a firearm. The police were looking for that brother and his alleged firearm.

[21] Usman had taken the police to a computer tower where he had a pellet gun.

[22] Usman Ali testified that he had been the object of bullying at school and he posted the Facebook image of him with a gun to discourage the bullying. He denied that the gun, ammunition and brass knuckles with respect to the charge against Hassan Ali were his or that he had any involvement with them.

[23] Amair Ali is an older brother who saw Usman at home at mid-day of the Friday when the police came to the house. Usman should not have been home at that time because he was to be in school. When Amair encountered Usman, he saw him in the downstairs hallway at the door of the bedroom occupied by Hassan. He ordered Usman to return to school. Because he was the older brother, Usman followed his directions and went back to school.

[24] I point out that Usman Ali was an obviously reluctant witness called by Mr. Rusonik. He often answered that he did not remember. He was challenged about what he had said at the preliminary inquiry, but he did not catch himself up with conflicting testimony. Questions and answers from the preliminary inquiry he often stated he did not remember.

[25] I have no reason to doubt that Usman was telling the truth that he had been the subject of bullying at school. A reasonable explanation for his Facebook publication with an apparent firearm flows from being the subject of bullying. Once the police learned of the Facebook publication, there is no wonder that the police responded forthwith.

[26] I believe the testimony of Hassan Ali. His reaction to the police noise as they sought to enter the Ali residence is normal for a person who has consumed too much alcohol and fallen asleep. He came to Canada when he was 10 or 11 years old. When the family lived in Pakistan, their home had been invaded by people. Such an experience had been frightening for him. The description of Hassan waking, getting up, going out of the bedroom and returning, and squatting down beside the bed was given by Constable Couvillon. The officer had slid the window open and directed Hassan to come out the window. The Defendant did not try to retrieve the firearm or any ammunition. He did not return to the room or move about the room as if to discard or get rid of a gun or ammunition. If any description might apply to Hassan, it is that he was confused upon being aroused from sleep induced by the consumption of alcohol.

[27] One might have expected that the holder of such a firearm and ammunition would try to get rid of those items upon hearing noise. He woke to see an armed man at his bedroom window with a lot of noise being created by the investigating police officers.

[28] All descriptions of Hassan Ali do not demonstrate a person trying to be evasive with the police. A reasonable assessment of Hassan’s actions is that he was frightened and startled by the noise and police activity.

[29] Although Mr. Ali occupied the bedroom in question, it is not a separate apartment or residence. Over a dozen family members lived in the house. Anyone in the house could enter any of the rooms at will unless stopped by another person. For example, around mid-day on the day of the police entrance, the older brother, Amair, had been home when the younger brother Usman surprisingly appeared. Usman was observed by the older brother standing at the door leading to Hassan’s bedroom.

[30] The one person who is known to have handled a firearm is Usman when he posted his photo with a handgun on Facebook with the purpose of trying to discourage bullies at school. He had access to the rooms in the house and could have placed the items in the bedroom of Hassan.

[31] Male persons older than other males were persons in authority within the family. Amair testified that the family is a patriarchal family whereby the father is the lead person. Everyone is expected to do as directed by the father. Then, if he is not present, the next eldest male has the authority to direct family members. The rooms within the house are not locked. Anyone in the house could enter any room. Any person in authority could enter any room.

[32] The testimony from Hassan Ali is not questionable. I believe him. The evidence of Usman Ali leads to a reasonable doubt that Hassan Ali possessed the items in question contrary to section 95(1) of the Criminal Code of Canada.

[33] There has been an issue about the police officers finding the gun and the ammunition. Mr. Rusonik is concerned that the officers planted the ammunition in the closet from somewhere other than the closet initially. Mr. Parke for the Crown submits that there is no foundation for saying the police planted evidence and further that the ammunition package and the two loose bullets were in plain view so that Hassan Ali could not help but see them in his closet, thereby making his evidence questionable.

[34] I am not persuaded that the police placed the ammunition in the closet or that Hassan Ali is to be interpreted as seeing the ammunition. How the ammunition got to the lower closet shelf is unanswered. Hassan did not have exclusive possession of the room. Any of several people could have entered the room.

Conclusion

[35] The bottom line is that I believe Hassan’s denial of knowing about the firearm and the ammunition being in the room, and I have a reasonable doubt about his guilt based on the access to the room by others together with the evidence of his younger brother, Usman Ali.

[36] Hassan Ali did not have possession of the items within the charge. He had a chance to control them, but he did not have actual control nor did he have knowledge of their existence.

[37] The charge is dismissed.

Justice B. Glass

Released: September 3, 2015