R. v. Allen, 2015 ONSC 803
COURT FILE NO.: CR-13-10000813-0000
DATE: 20150205
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RICKEY ALLEN
David Mitchell, for the Crown
Craig Bottomley, for Rickey Allen
HEARD: January 26, 27, 28, & 29, 2015
r.f. goldstein j.
REASONS FOR JUDGMENT
[1] One night in the winter of 2013 Brian Provo was driving to a party in Toronto’s Entertainment District. On the way he picked up three people. Rickey Allen was the last person to be picked up. While on Duncan Street in downtown Toronto, Mr. Provo made an illegal left-hand turn. The police stopped the car. They found open bottles of alcohol. They searched the car. They had Mr. Provo open the trunk. They searched it and found a grey bag belonging to Rickey Allen. The bag contained 209 grams of marijuana and a Taurus .45 handgun. The gun was loaded. The magazine contained 10 rounds. The police charged Mr. Allen with possession of the gun and the marijuana. They let the driver and the other passengers go.
[2] Mr. Allen says that the marijuana is his, but not the gun. He says he doesn’t know how the gun got into his bag, although he has his suspicions. He says that he saw the other back-seat passenger pulling his hand from a panel in the middle of the back seat. The panel allows passengers to access the trunk. His counsel, Mr. Bottomley, says that his evidence ought to leave me in a state of reasonable doubt about whether he had knowledge and possession of the gun. Mr. Bottomley says I can infer that the other back seat passenger stashed the gun in his bag when the police pulled the car over, although it is not necessary for me to draw that inference in order to have a reasonable doubt.
[3] For the reasons that follow, I do not believe Mr. Allen. His evidence does not leave me in a state of reasonable doubt. I am satisfied beyond a reasonable doubt that he had knowledge and control of the gun. I find him guilty of all counts in the indictment, save the proceeds of crime count, which the Crown has invited me to dismiss.
FACTS:
[4] On February 10 2013 at around 11:20 pm Brian Provo, a fourth-year student at University of Toronto, left his home in Richmond Hill in his car, an Acura TL. On the way he picked up two friends who lived close by, Brian Fisher and Shaquille Davis. The plan was to go to a party at a downtown club.
[5] After picking up his friends, Mr. Provo drove to Scarborough to pick up Mr. Allen. He picked Mr. Fisher up first. Mr. Fisher sat in the front passenger seat. Then he picked up Mr. Davis. Mr. Davis sat in the rear seat behind the driver. None of Mr. Fisher, Mr. Davis, or Mr. Provo put anything in the trunk.
[6] Mr. Provo testified that when he got to Mr. Allen’s building in Scarborough, Mr. Allen came out carrying a bag. Mr. Allen went to the trunk of the car and tapped on it. Mr. Provo opened the trunk. Mr. Allen then got into the rear passenger seat behind Mr. Fisher. Mr. Allen was no longer carrying the bag. Mr. Fisher also testified that when Mr. Allen came out of the building he was carrying a bag, went to the trunk, and knocked on it. Mr. Fisher did not actually see Mr. Allen put the bag in the trunk but assumed that he did because he did not have it when he got into the car.
[7] Mr. Fisher had an open bottle of alcohol in the car. He testified that it was Brian’s alcohol and that he brought a bottle of water. He testified that he was the only person in the car drinking, but Mr. Provo admitted that he had been. Mr. Allen testified that he was not drinking.
[8] After picking up Mr. Allen, Mr. Provo drove the four of them downtown on the Don Valley Parkway and then westbound on Richmond Street. At Duncan, he turned right, or northbound. By this time it was well after midnight, so the date was February 11 2013. The right turn was caught on the camera in the police car driven by Constable Censoni and Constable Anderson. Much of what follows, therefore, is recorded.
[9] At the intersection of Duncan and Queen Street West Mr. Provo turned left, or westbound, on Queen Street. That was an illegal left-hand turn. Someone in the car mentioned to Mr. Provo that he should not turn left, as there were cops present. The officers followed Mr. Provo’s car, turned on their lights, and then squawked the air horn to get his attention. Mr. Provo then turned north on John Street and stopped just north of the intersection. Constable Censoni, who was driving, pulled in behind. Because the windows of Mr. Provo’s Acura were tinted, the officers were unable to see who was inside. Accordingly, out of an abundance of caution, they called for backup.
[10] Constable Censoni then went to the driver’s side while Constable Anderson went to the passenger side. It was less than a minute after Mr. Provo’s Acura stopped. Both officers then observed open bottles of alcohol in the car. The investigation at that point changed from a highway traffic investigation to a liquor licence violation. A second police car with Constables Youroukos and Rocca arrived.
[11] Each of the four occupants of the Acura were taken out, one by one, and patted down. The scene was not tense, although Mr. Allen clearly became progressively more nervous. The officers then searched the car. They removed the bottles from the Acura and placed them on the roof. The rear bench of the Acura had an armrest in the middle. When it was pulled down, there was a plastic panel separating the back seat from the trunk. Constable Censoni testified that the armrest was partially ajar. He pulled it down and could see the back panel. He opened it and immediately smelled a very strong odour of marijuana. He put his hand into the trunk and could get it partially in.
[12] Constable Anderson also testified about the rear armrest. He said that he pulled it down and that when he did so he could smell marijuana. He said that the armrest was almost like a ski bag that could be used to put long items in the trunk. He said that he could only put his arm about wrist-deep in the trunk. He said that he did it so that he could get into the trunk area.
[13] The officers then asked Mr. Provo to open the trunk. He did so. Constables Censoni and Anderson began to search it. Both officers, as well as Constable Youroukos, testified that the odour of marijuana was even more pungent when the trunk was opened. There was a grey bag in the trunk. It was in the third of the trunk closest to the rear seats. There were other objects in the trunk, but Constable Censoni’s attention was drawn to the bag. He testified that there was a zipper on the bag that was half-closed. There was a plastic bag with what appeared to be the butt of a gun that was visible. He called out “gun”. Seconds before he did so, Mr. Allen made a break for it and began to run. While other officers concentrated on the three other occupants and chased Mr. Allen, Constable Censoni continued to search. He secured the firearm. He also seized marijuana that was wrapped in plastic, and contained in two Tupperware containers. Other police officers apprehended Mr. Allen a short distance away.
[14] Constable Anderson transported Mr. Allen to the station and searched him. He found $2013.72 on Mr. Allen, as well as three cell phones.
[15] The following timeline is taken from the police in-car video camera:
01:10:06 Acura turns right (northbound) on Duncan from Richmond Street.
01:10:21 The Acura makes an illegal left turn (westbound) from Duncan to Queen Street West.
01:10:26 The officers activate their siren for the first time.
01:10:38 The Acura makes a right turn (northbound) through a red light from Queen Street West to John Street; The police activate their siren for the second time as the Acura makes the right turn.
01:10:45 The police car pulls up behind the Acura
01:11:33 The officers exit their vehicle and walk up to the Acura. Constable Censoni is on the driver’s side; Constable Anderson is on the passenger side. Constable Censoni begins to question Mr. Provo, the driver. Constable Anderson appears to interact with the rear passenger, who was Mr. Allen. Constable Anderson then moves to the front passenger window.
01:12:10 Constable Censoni shines his flashlight into the rear passenger area of the Acura.
01:12:35 Constable Anderson takes a bottle out of the car and puts it on the roof of the Acura. Conversation continues.
01:13:21 The police car with Constables Youroukos and Rocca comes into view and parks in front of the Acura. Constables Censoni and Anderson go back into their car to conduct checks on the occupants. Constables Youroukos and Rocca stay outside the Acura and keep a watch on it.
01:23:25 Constables Censoni and Anderson get out of their police car and come back to the Acura.
01:23:45 Mr. Davis, the passenger sitting behind Mr. Provo, exits the Acura under police direction and is patted down by Constable Censoni while one of the other officers looks in the back seat where Mr. Davis had been sitting.
01:24:20 Mr. Provo, the driver, exits the Acura under police direction and is patted down by Constable Censoni.
01:25:08 Mr. Allen, who is sitting in the rear passenger seat, exits the Acura under police direction and is patted down by Constable Anderson.
01:26:57 Mr. Fisher, who is sitting in the front passenger seat, exits the Acura under police direction and is patted down by Constable Youroukos. Constables Anderson and Censoni continue to look in the Acura while the pat-down is occurring. It is at about this time, according to Constable Censoni’s evidence, that he finds the back panel behind the arm-rest, opens it, and smells the strong odour of marijuana.
01:32:59 Mr. Provo opens the trunk of the Acura at the direction of the police. Constables Censoni and Anderson begin searching the trunk.
01:33:20 Mr. Allen pushes Mr. Davis slightly and begins to run away from the scene.
01:33:21 Constable Censoni yells “gun”. Other officers begin to chase Mr. Allen.
[16] The parties agree on the following facts:
• The gun is a prohibited firearm as defined by the Criminal Code;
• The gun was loaded with 11 live rounds of ammunition;
• Mr. Allen is not authorized to possess a firearm;
• The marijuana is a controlled substance and the amount is sufficient to constitute possession for the purpose of trafficking;
• Forensic testing of the toothbrush in the bag found DNA with Mr. Allen’s profile, and the probability that someone else would share that DNA profile is 1 in 49 quadrillion;
• The police did not obtain any fingerprints attributable to Mr. Allen on the firearm, the bullets, or the bag in which the firearm was located.
[17] Crown counsel also filed, on consent, a certified copy of an information and prohibition order indicating that Mr. Allen was on a firearms prohibition on February 11, 2011. Counsel agree that the weight of the seized marijuana is 209 grams.
ISSUES:
[18] In my view, there are three issues that need to be resolved:
(1) Do I believe Mr. Allen?
(2) Does Mr. Allen’s evidence leave me in a state of reasonable doubt?
(3) Am I satisfied beyond a reasonable doubt based on the evidence that I do accept that Mr. Allen is guilty?
ANALYSIS:
[19] In a criminal case, the Crown obviously bears the burden of proving each element of each offence beyond a reasonable doubt. That burden never shifts to the accused. An accused person need not prove a thing, and need not testify. However, where an accused person does choose to testify the basic framework for analysis (using the language of jury instructions) is set out in R. v. W.D., 1991 CanLII 93 (SCC), [1991], 1 S.C.R. 742:
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.
1. Do I believe Mr. Allen?
[20] Mr. Allen testified that he is a drummer and a drum coach, and has also worked at an entertainment company. He also testified that in February 2013 he was a student at University of Toronto. Mr. Allen and Mr. Provo were classmates. He has a criminal record.
[21] At around 12:30 am on February 11 2013 Mr. Provo picked him up at his girlfriend’s apartment building in Scarborough. He had a bag with him. It was the same bag that was seized by Constable Censoni. He went to the car. He could see someone was in the front seat so he went to the rear driver’s side and opened the door. He could see someone was there so he closed the door. He tapped on the trunk. Mr. Provo opened the trunk. Mr. Allen but his bag in the trunk and closed it. Mr. Allen did not really know the other two men.
[22] They drove downtown. Mr. Allen says that he dozed. Both Mr. Provo and Mr. Fisher agreed that Mr. Allen had taken a nap in the back seat. He says that he woke up when there were sirens and honking. Mr. Allen testified that the guy beside him had his hand in the hatch leading to the trunk. He pulled it out and closed the armrest.
[23] Mr. Provo testified that he did not see anyone access the trunk through the backseat panel, in his rear-view mirror.
[24] Mr. Allen testified that the bag in the trunk was his. He said that it had an orange silver hard drive, a silver iPod with headphones, and a toothbrush. All of those items were admitted into evidence, as was the bag.
[25] Mr. Allen also testified that the marijuana was his. He said it was in 6 individual bags and agreed that 209 grams sounded about right. He said that he was supposed to give the marijuana to Mr. Provo that night, prior to heading to the club. He did not, however, get a chance to hand over the marijuana because he did not know the other two men in the car. He said that Mr. Provo purchased marijuana from him every two weeks to a month.
[26] Mr. Provo testified in cross-examination that the plan that night was to go to a club, and have a couple of drinks. It was not his plan to smoke marijuana that night, but he agreed that sometimes that happens. Mr. Provo occasionally smoked marijuana. He agreed that Mr. Allen had previously sold him marijuana, but said that he had no plans to buy from him that night.
[27] Mr. Allen testified that the gun was not his. He did not know how it got into his bag. He said that when he placed the bag in the trunk everything was zipped up.
[28] In cross-examination Mr. Allen indicated that he went to his own supplier that night and purchased the six packages of marijuana for $950.00. He said that he was supposed to sell the entire amount to Mr. Provo for $1200.00. The total amount, he said, was 5 ½ to 6 ounces.
[29] I do not believe Mr. Allen and I do not find him worthy of belief.
[30] After viewing the car video camera and hearing the testimony of the witnesses, I find it highly implausible that Mr. Davis placed the gun in Mr. Allen’s bag. In order for him to do that, he would have had to open the armrest, put his arm through, find the bag in the trunk, unzip one of the pockets, pull his arm back out, take his gun out from wherever it was secreted, and then put his arm back in the trunk. This scenario makes no sense for five reasons:
• First, if Mr. Davis were truly trying to get rid of a gun while the police were pulling the car over, why would he take the time to fish around in the trunk looking for a bag, unzip it, and then put the gun in it? Why not just open the armrest, toss the gun somewhere in the trunk, and then close the arm rest? That would have taken almost no time and required much less obvious twisting around.
• Second, Constable Anderson testified that when he put his arm in the trunk he could not get it much past his wrist. I appreciate that he made no notes of doing this, but his evidence is essentially corroborated by Constable Censoni, and, in any event, his credibility was not challenged.
• Third, it seems very unlikely that Mr. Davis was able to lower the armrest, contort himself in order to get a hand in the trunk to manipulate the bag and the zipper, and then possibly do it again to place the gun in the bag. The human arm does not extend backwards and Mr. Davis was facing forwards in the rear seat. He either would have had to reach around behind him or twist himself around in order to reach in to the trunk and manipulate the bag. These would both have been very awkward movements.
• Fourth, if Mr. Davis had twisted around like that, it seems inconceivable that Mr. Provo or Mr. Fisher did not notice, even if they were seated in the front. It also seems unlikely that Mr. Allen would not have noticed the armrest coming down and Mr. Davis twisting around, even if he was dozing. After viewing the photographs, it seems to me more than possible that Mr. Allen would have felt the lowering of the armrest.
• Fifth, and finally, all this would have happened while Mr. Allen was conveniently asleep. It is true that Mr. Davis and Mr. Provo agreed that Mr. Allen appeared to be dozing in the back seat, but it is also true that he was wearing sunglasses.
[31] I note, as well, that if Mr. Davis did place the gun in the bag, he would have had less than a minute to do so. This simply seems unlikely given the amount of twisting that would have had to happen.
[32] I also find Mr. Allen’s evidence about the marijuana to be implausible. I do so for the following reasons:
• It was agreed that the amount seized was 209 grams, which is 7.46 ounces. It seems highly unlikely that any drug dealer would be so imprecise about the weights, the amounts, and the prices. Basic math works against Mr. Allen. The difference between about 5 ½ ounces and about 7 ½ ounces is anywhere from $400 to $436 on Mr. Allen’s evidence. That is more than the $350 margin that Mr. Allen says he expected to make. Either Mr. Allen’s math is very poor – which is certainly possible – or he was prepared to throw away over $400 in profit. Alternatively, Mr. Allen’s supplier was very generous with the weight, which also seems very unlikely. I agree with the Crown that drug dealers are not normally known for their generosity with their product.
• Mr. Allen seemed to suggest that he was just a middleman who had only dealt with this supplier on the rare occasions that he sold to Mr. Provo. If Mr. Allen was so inexperienced with dealing marijuana, how was able to judge the weight in the Tupperware containers simply by eyeball? Furthermore, he testified that he trusted this supplier – and yet on his evidence this was only the third time that he had dealt with him. Trust is not normally a widely shared commodity in the drug trade. I find this explanation to be concocted.
• In that vein, I find it highly unlikely that Mr. Allen says he simply looked in the Tupperware containers, eyeballed the amounts, and then decided to trust his supplier.
• Mr. Allen’s evidence of selling to Mr. Provo also appears to be inconsistent. He said in chief that he sold marijuana to Mr. Provo every two weeks to a month. Mr. Allen seemed to be saying that he sold to Mr. Provo on a regular basis. In cross-examination, however, he said that he only sold marijuana to Mr. Provo two occasions and this was to be the third. I acknowledge that this inconsistency is not a major one but it is a contributing factor.
[33] Mr. Allen was also arrested with over $2000 in his pocket. If he had already paid his supplier $950 for the drugs, he would have been walking around with something like $3000 in his pockets. Considering the salary that he says he earned, and the expenses that he paid towards supporting his daughter and paying rent at his mother’s place, this was a very unusual amount of money. Mr. Allen’s explanation – that he was going shopping the next day and planned on spending money at the club – is not credible. Mr. Allen did say that he was planning on going to Las Vegas the next day, but he also said that he would be going home to change and pack before getting on the airplane. Why not take a smaller amount and leave the Vegas money at home, rather than risk walking around with that much cash? I find Mr. Allen’s explanation to be implausible and not believable.
2. Does Mr. Allen’s evidence leave me in a state of reasonable doubt?
[34] Mr. Allen’s evidence must be evaluated against the whole of the evidence to determine whether it leaves me in a state of reasonable doubt. Obviously Mr. Allen need not prove anything but I must evaluate the plausibility or his evidence in light of all the other evidence. I must also be careful not to examine each piece of evidence in isolation. In this case, I ask myself whether Mr. Allen’s evidence might reasonably be true, even if I do not believe him.
[35] As I already noted, Mr. Allen’s evidence is inherently implausible. His story is essentially that he has no idea how the gun got into his bag, but he suspects Mr. Davis because he saw him withdrawing his arm from the trunk while the police were in the process of pulling the car over. As noted, I do not believe Mr. Allen’s evidence. Furthermore, I do not think that it might reasonably be true, for the reasons I have already given.
[36] Mr. Bottomley suggested that nobody would simply leave a gun exposed in the manner in which Constable Censoni found it. I agree that it is certainly unreasonable for a person to leave a gun in a manner where it is easily detectable, and that supports Mr. Bottomley’s argument. That said, Mr. Bottomley agreed that Mr. Allen’s plan was clearly half-baked and not reasonable. The phrase “not well thought-out” was used. I agree. That is why I must also reject the argument that it makes no sense that Mr. Allen would leave the gun in a relatively exposed position in the bag. It does not appear that any element of Mr. Allen’s plan that evening was well thought-out. I therefore do not find it implausible or unbelievable that Mr. Allen might have been careless about leaving part of the gun exposed, especially if it is his position that he was careless about the amount of marijuana he purchased (although I am doubtful that he was so careless). In the end, the evidence of the exposure of the gun cuts both ways.
[37] I also do not accept that Constable Censoni’s evidence necessarily corroborates Mr. Allen’s evidence. Constable Censoni testified that the bag was in the third of the trunk closest to the back seat; that the tinted windows prevented the police from seeing what was going on in the car; that it took about a minute for the police to approach the car after pulling it over (thus giving Mr. Davis time to stash the gun); the back panel was slightly ajar; that the bag was unzipped and the butt of the gun was exposed. All that is true, but I do not think it assists Mr. Allen. Constable Censoni’s evidence also cuts both ways. I simply do not accept that Mr. Davis would have been able to stash the gun in the bag in the manner described.
3. Am I satisfied beyond a reasonable doubt based on the evidence that I do accept that Mr. Allen is guilty?
[38] The bag was Mr. Allen’s. He has admitted to possession of the marijuana for the purposes of trafficking and pleaded guilty to that offence at the outset of the trial. After discounting the possibility that Mr. Davis stashed the gun in the bag, it is obvious that the only rational explanation is that Mr. Allen had knowledge and control of it.
[39] I agree with Mr. Bottomley that Mr. Allen’s decision to run away cannot be used as after the fact conduct consistent with guilt. Flight is equally consistent with either possession of the marijuana, or possession of the gun. Accordingly, it would be an error to infer that Mr. Allen ran away because of the gun, rather than the marijuana: R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129.
[40] Furthermore, I have reviewed the sequence of events on the video several times. I find as a fact that Mr. Allen ran one or two seconds before Constable Censoni said “gun”. It is certainly possible that Mr. Allen may have seen the gun and run prior to Constable Censoni saying “gun”, but it is simply impossible to make that finding based on the video.
[41] I also agree with Mr. Bottomley that Mr. Allen’s nervousness cannot be used to infer knowledge of the gun. Mr. Allen clearly was nervous. He paced back and forth. He seemed agitated prior to running away. That said, Mr. Allen’s nervousness can be explained equally by fear of detection of the marijuana or fear of detection of the gun. I cannot infer that Mr. Allen’s evident nervousness was as a result of knowledge that there was a gun in his bag.
[42] I must respectfully disagree with Crown counsel, Mr. Mitchell, that the Crown can rely on the proximity of the marijuana to the gun in order to infer guilt. I obviously accept the submission that guns and drugs and cash frequently go together, but the drugs in question are 209 grams of marijuana and the cash is about $2000.00. In the absence of expert evidence that drug dealers use firearms to protect relatively small amounts of marijuana and cash, I cannot draw that inference. Mr. Mitchell did not call expert evidence and, very fairly, invited me to dismiss the proceeds of crime count based on a lack of evidence. Accordingly, the possession of the marijuana and the cash is not probative enough of knowledge and possession of the gun for me to draw that inference.
[43] Mr. Bottomley does not take issue with the investigation conducted by the officers that night, and neither do I. Mr. Bottomley acknowledges, and I agree, that the four officers seen on video were professional and thorough. He does take issue with two aspects of the investigation, however: he says that it is inexplicable that the SOCO officer was unable to photograph the interior of the trunk, and the police easily could have forensically analyzed the plastic bag containing the gun.
[44] With regard to the SOCO photographs, I agree that it makes no sense that the officer was unable to access the trunk. I do not see, however, how there could have been any utility in photographing the trunk. The search clearly disturbed the contents. If there were any value in taking photographs, it would have been to show the position of the bag in relation to the back panel. We already have Constable Censoni’s evidence, which all parties acknowledge to be credible, that the bag was in the third of the trunk closest to the back seat.
[45] With regard to the plastic bag and the bullets, obviously it would be better if the police investigate every possibility and tie up every lead. That, however, is not realistic in a world of finite resources. The police tried to obtain prints from the gun itself. There is an agreement that Mr. Allen’s prints were not on the gun, and there is no evidence before me that anyone else’s prints were found. The DNA on the toothbrush found in the bag indicated that there was a 1 in 49 quadrillion chance that someone else shared the same DNA profile as Mr. Allen. Witnesses all confirmed that Mr. Allen placed the bag in the trunk. Mr. Allen himself agreed that he placed the bag in the trunk. I do not know how the police could have anticipated Mr. Allen’s defence, and printed the plastic bag containing the gun on the basis that someone else might have handled it. Furthermore, the police were aware that Mr. Allen had a criminal record that included a previous conviction for possession of a firearm, whereas none of the other three occupants of the car had a criminal record. Clearly I cannot use that knowledge to infer guilt, and it also has a very limited use for evaluating Mr. Allen’s credibility. That said, the police were entitled to use that information in conducting their investigation and in making decisions about how to deploy their resources. Even supposing that someone else’s prints were on the plastic bag, and Mr. Allen’s were not, that still might not have been enough to leave me in a state of reasonable doubt, given the basic implausibility of Mr. Allen’s evidence.
[46] I also reject the argument that the police showed tunnel vision. Mr. Provo and Mr. Fisher admitted that the investigating detective had told them that the police were sure that they, and Mr. Davis, did not have possession of the gun. The gun was found in what was admitted to be Mr. Allen’s bag along with a significant amount of marijuana. Mr. Allen also had a large amount of cash on him. He fled from the scene. He had a criminal record for possession of firearm. There is no evidence before me that the police were aware of Mr. Allen’s claim that Mr. Davis may have accessed the trunk. Again, that was the highly equivocal and not very credible evidence of Mr. Allen.
[47] What is the effect that Shaquille Davis did not testify? The Crown is not under an obligation to leave no stone unturned and call every witness. Mr. Davis was not required for the Crown to prove the elements of the offences before the Court. Mr. Davis’s evidence was only required to negative an explanation mounted by Mr. Allen. I do not see how the Crown could have reasonably anticipated Mr. Allen’s explanation – especially since the explanation is unreasonable. Accordingly, I am not prepared to draw an adverse interest against the Crown for not calling Mr. Davis.
[48] In applying the Rule in Hodge’s Case, I must be satisfied that in a circumstantial case guilt is the only reasonable inference: R. v. Mezzo, 1986 CanLII 16 (SCC), [1986] 1 S.C.R. 802.
[49] In my view, although this is a circumstantial case it is about as close to a direct evidence case as a circumstantial case can be. On Mr. Allen’s evidence, and the evidence of the other witnesses, he put his bag in the trunk and nobody else opened the trunk. The gun was in his bag. The only evidence that someone else might have accessed the trunk was Mr. Allen’s highly equivocal and not believable evidence that Mr. Davis was withdrawing his hand from the trunk. This case is circumstantial in the same way that a shooting is a circumstantial case where a witness has his back turned, hears a shot, turns around, and sees a body on the floor and a smoking gun in the assailant’s hand.
[50] Thus, it follows that guilt is the only reasonable inference to be drawn. Knowledge and control of the firearm by Mr. Allen is consistent with guilt and inconsistent with any other rational conclusion.
DISPOSITION:
[51] Mr. Allen is found guilty of all counts on the indictment, save the possession of the proceeds of crime. The Crown invited the Court to dismiss that charge. At sentencing I will deal with the counts that will be stayed pursuant to the rule against multiple convictions for the same transaction.
R.F. Goldstein J.
Released: February 5, 2015
CITATION: R. v. Allen, 2015 ONSC 803
COURT FILE NO.: CR-13-10000813-0000
DATE: 20150205
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RICKEY ALLEN
REASONS FOR JUDGMENT
R.F. Goldstein J.