REASONS FOR DECISION

BACKGROUND

[1] An admissibility hearing was held in relation to the firearms, ammunition and an overcapacity magazine seized under a search warrant on July 25, 2013 from a home at 59 Swansea Mews, Toronto (“the home”). I excluded the contraband under s. 8 of the Charter and admitted it under s. 24(2) of the Charter on the grounds that excluding such dangerous evidence would bring the long term interests of justice into disrepute.

[2] At trial, the Crown called four of the police officers who conducted the search and Ms. Alleye Kinghorn, Mr. Allen’s mother. A defence was called. Mr. Allen did not testify but his brother, O’Neil Kinghorn, testified.

THE CHARGES

[3] The police had received information from a confidential informer that a male the source knew as "Chops", later determined to be Mr. Allen, was in possession of a firearm at the target residence. The police conducted surveillance on the home before entry but never observed Mr. Allen at or around the home. They learned on September 25, 2013 that Mr. Allen was in custody in Sudbury. The accused, Isaac Allen, is charged with eight offences related to firearms.

[4] The police seized from the home two prohibited, loaded firearms, a Glock handgun and a Taurus revolver, ammunition and an overcapacity firearm magazine which is a prohibited device. The police also seized a copious quantity of various types of personal documentation connected to Mr. Allen. At the time, Mr. Allen was under several firearms prohibitions and was charged with offences related to the violations.

EVIDENCE

Mr. Allen’s Circumstances

[5] Mr. Allen has a lengthy criminal record connected with several cities in Ontario including Toronto. His criminal activity and incarcerations in these cities caused him to live outside of Toronto for periods of time.

[6] The documents the police seized at the home were taken from two locations. The loaded Glock, some separate ammunition, and the overcapacity magazine were found in the laundry room in a suitcase stuffed between the dryer and a shelf. Some of the documentation was found in that suitcase. The loaded Taurus revolver was found with extra ammunition in a gym bag stuffed between the side of a couch and a cabinet in the corner next to the couch. Other documents were found in the gym bag.

[7] The documents containing Mr. Allen’s name, addresses and dates, were an assortment of correctional facility documents, provincial offence notices, envelopes from personal correspondence addressed to Mr. Allen, copies of driver’s licences, motor vehicle documents, and social assistance documentation. It appears that Mr. Allen was incarcerated in Windsor, Chatham, Sarnia and Toronto for periods during 2010, 2011 and 2012. It appears from the documentation that Mr. Allen was back in Toronto by early 2013.

The Circumstances at 59 Swansea Mews

[8] The evidence is that Mr. Allen did not reside at the home after he was released from custody and moved from Windsor. Mr. Allen’s mother, Alleye Kinghorn, and two other children, Ricardo and Elissa Allen, lived at the address since 2009. Ms. Kinghorn has two other adult children, O’Neil and Alishia Kinghorn, who did not reside at the home but who visited from time to time.

[9] At the time of the search at about 8:20 p.m. on July 25, only Elissa was at home. The police entered through the front door without any need to use force. The screen door did not have a working lock and the main door was ajar when they arrived. Elissa was upstairs in a bedroom when the police arrived. She was escorted to the living room during the search.

[10] After the police had entered, O’Neil approached the home and saw an officer standing inside at the front door. O’Neil fled and the officer pursued him. O’Neil explained he ran because he had $20 in marijuana in his possession and he wanted to discard it. He indicated that at the time he was on a recognizance for a charge the previous week by the Ontario Provincial Police for possession of marijuana and he did not want to get into more trouble. The officer looked for the marijuana but did not find it. O’Neil eventually surrendered.

[11] Elissa and O’Neil were both arrested on firearms charges that day. Days later, Ms. Kinghorn was arrested on the same charges. Their charges were stayed in 2014. Ms. Kinghorn and O’Neil swore statutory declarations that the firearms and ammunition did not belong to them and they had no knowledge about these things.

[12] Ms. Kinghorn testified for the defence. She stated that during the time of the search warrant she did not stay on a regular basis at 59 Swansea. She stayed with a friend, Mr. Watson, at his place and frequently did not return home overnight. She testified Mr. Allen never had a key to the home but each of her other children did.

[13] O’Neil testified for the Crown. Both he and Ms. Kinghorn testified that the children who lived at the home used the laundry room to do their laundry. Ms. Kinghorn testified Mr. Allen’s visits would be short. He occasionally came to do his laundry. Ms. Kinghorn testified that, although Mr. Allen did not live at the home, he would sometimes leave some of his personal belongings there.

[14] Ms. Kinghorn testified she recognized the suitcase where the Glock was found and indicated she had seen it in 2013 and before. She indicated she believed Mr. Allen had used the suitcase. However, she did not specify when Mr. Allen had used the suitcase. Both Ms. Kinghorn and O’Neil testified they had never seen the suitcase stuffed beside the dryer nor the gym bag stuffed beside the couch where the police had found them. They did not know whether Mr. Allen kept his belongings in the suitcase or gym bag. There is no evidence anyone saw Mr. Allen at the home around the time of the search on July 25.

[15] Ms. Kinghorn testified Elissa and Ricardo also had their friends over to the home. The friends would also do their laundry there. Ms. Kinghorn also gave testimony that suggested the home was not secure from others entering. She pointed to the broken lock on the screen door and a tear in the screen mesh in the living room window next to the front door. She said when she forgot her key she could reach in through the torn screen and unlock and open the door. Ms. Kinghorn also stated that she would occasionally leave the door unlocked when she went out for jogs or walks. However, there is no evidence of uninvited people entering the home. Ms. Kinghorn testified there had never been any break and enters.

ISSUE

[16] The main issue to be determined is whether the Crown has proven beyond a reasonable doubt that Mr. Allen was in possession of the loaded firearms, ammunition and the magazine.

THE LAW ON POSSESSION

[17] Possession is defined under s. 4(3) of the Criminal Code as follows:

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 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.

[18] 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.

[19] The contraband was located in a premises leased by the mother. She had never observed, and hence was not aware of, the presence of these items in her home. She did not consent to the contraband being there. There is no evidence to support a finding of joint possession with consent.

[20] Actual possession or custody of a thing means having physical custody or control of the thing. Constructive possession applies 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), 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.)].

[21] The element of knowledge can be inferred if there is evidence of actual possession. 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, at para. 30, (Ont. C.A.)].

[22] 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), 34 C.C.C. (2d) 18 (S.C.C.) and R. v. Bui, 2014 ONCA 614, at para. 19, (Ont. C.A.)].

[23] 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 contraband: [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.

ANALYSIS

[24] I find on the facts of this case, the Crown has not satisfied either essential element. There is no direct nexus between Mr. Allen and the firearms. Mr. Allen did not reside at the home where the contraband was found. He was not present when it was seized. He had not been observed by the police or family members at or in the vicinity of the home around the time of the search. The only evidence that suggests a connection between the firearms and Mr. Allen is very indirect. The contraband was found in a suitcase and gym bag with documents containing Mr. Allen’s personal information.

[25] There is nothing in the facts that indicate Mr. Allen had actual knowledge of the firearms. Evidence of constructive knowledge is also weak to non-existent. There is no evidence from which a reasonable inference can be drawn of Mr. Allen’s knowledge.

Knowledge is a state of mind and short of an admission by a person of his state of mind, it must be found to exist in the same way as intent, by proper inferences from facts proved.

[R. v. Larier (1960), 129 C.C.C. 297, at 312, (Sask. C.A.) and R. v. Kelly, [1967] 1 C.C.C. 215 at 222 (B.C.C.A]

[26] The mother’s evidence only went as far as to say Mr. Allen occasionally made brief visits to the home; she believed Mr. Allen had used the suitcase; Mr. Allen occasionally left some of his belongings at the home. The only evidentiary connection, although a weak one, between Mr. Allen and the contents of the suitcase rests in the documents bearing his personal information. There is no fingerprint or DNA evidence.

[27] There is no evidence of who packed the contraband with the documents. O’Neil’s and Ms. Kinghorn’s evidence indicates it would not have been them. However, any other person could have done this when they were present at or visiting the house. I must say here that I find rather baffling the prospect that Mr. Allen with his extensive criminal background would pack, in high traffic areas like the laundry room and living room, such incriminating and dangerous contraband placing them in such close quarters with documentation clearly identifying him.

[28] Clearly, evidence of control by Mr. Allen over the contraband has not been established. For one thing, Mr. Allen did not have a key to the home. He had to rely on another sibling or his mother to be home to let him in when he wanted to visit. Courts have held that control can be inferred from the fact an accused has a key to premises where contraband is found: [R. v. Fisher 2005 BCCA 444, at para. 41,].

[29] Mr. Allen did not live at the home and only visited occasionally for brief periods. These are not facts that support a finding that he could directly or even indirectly exercise a directing, guiding or restraining power over the contraband. The evidence adduced provides a sufficient basis for the inference of other reasonable explanations of how the contraband ended up where the police located it. It would reach into the realm of conjecture or speculation to draw from the facts that Mr. Allen is responsible for this. The Crown must satisfy the court beyond a reasonable doubt that guilt is the only reasonable inference that may be drawn from the totality of the facts.

In assessing inferences for each piece of evidence the reasonable doubt standard is not applied each time. I am to consider the inference suggested against any other reasonable inference that can be drawn and attribute weight accordingly. All of the evidence that I determine merits weight is then assessed on the reasonable doubt standard.

… that inference must be carefully distinguished from conjecture and speculation and there can be no inferences unless there are objective facts which it is sought to establish.

[R. v. Pham, at para. 30]

[30] I conclude on all the evidence that the Crown did not prove beyond a reasonable doubt that Mr. Allen had possession of the loaded Glock, the loaded Taurus revolver, the ammunition and the overcapacity magazine. I find Mr. Allen not guilty on the eight counts on the indictment.

VERDICT

[31] For the foregoing reasons, I am satisfied the Crown has not proven Isaac Allen’s guilt beyond a reasonable doubt on the eight counts on the indictment.

[32] I therefore find Isaac Allen not guilty on counts 1, 2, 3, 4, 5, 6, 7 and 8 on the indictment and acquittals will be entered accordingly.

B.A. Allen J.

Released: December 3, 2015

CITATION: R. v. Allen, 2015 ONSC 6656

COURT FILE NO.: 15-10000561-0000

DATE: 20151203

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ISAAC ALLEN

Accused

REASONS FOR DECISION

B.A. Allen J.

Released: December 3, 2015

R. v. Allen, 2015 ONSC 6656

Case Summary

REASONS FOR DECISION

BACKGROUND

THE CHARGES

EVIDENCE

Mr. Allen’s Circumstances

The Circumstances at 59 Swansea Mews

ISSUE

THE LAW ON POSSESSION

ANALYSIS

VERDICT

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legislation 1