R. v. Essaga, 2015 ONSC 890
CITATION: R. v. Essaga, 2015 ONSC 890
court file no.: CR/14/40000/1690000
DATE: 20150210
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
RAISSA ESSAGA
Daniel DeSantis, for the Crown
Paul Aubin, for the Accused, Raissa Essaga
HEARD: February 2, 3 and 4, 2015
KELLY J.
REASONS FOR JUDGMENT
[1] The accused, Ms. Raissa Essaga, is charged with a number of offences arising from her alleged possession of a prohibited firearm and ammunition.[1] The firearm was found after she reported a break and enter in the apartment she shared with Mr. Francis Kumi.
The Legal Framework
[2] Crown Counsel’s case consisted of evidence from several police officers, photographs, an agreed statement of facts and documentary evidence regarding the firearm and ammunition.[2] Ms. Essaga testified in her own defence. The facts are not really in dispute. Counsel disagree about what inferences can be drawn from the circumstantial evidence regarding Ms. Essaga’s knowledge of the illegal items.
[3] Since Ms. Essaga testified in her own defence and denied that she had knowledge of the firearm and ammunition found in her apartment, the principles set out in R. v. W.D.[3] apply. I have considered those principles. I have assessed her evidence in light of all of the evidence adduced at trial. Having done so, I find that her evidence leaves me with a reasonable doubt.
[4] Ms. Essaga is acquitted. What follows are my reasons.
The Facts
[5] As I have stated above, there is not much in dispute regarding the facts which may be summarized as follows:
a. Ms. Essaga and Mr. Kumi were roommates in apartment 2105 at 2405 Finch Avenue West in Toronto. On Friday, January 25, 2013 Ms. Essaga left both her bedroom and apartment locked when she went to work. Mr. Kumi left the apartment after she did.
b. When Ms. Essaga returned to the apartment shortly after 8:00 p.m. that night, she noticed that the apartment had been broken into and ransacked. She called police who arrived at approximately 8:35 p.m.
c. P.C. Meghann Samson attended. She walked through the apartment and took a statement from Ms. Essaga. She advised Ms. Essaga that a ‘scenes of crime’ officer would attend to investigate further, take photos and dust for fingerprints. She left Ms. Essaga alone in the apartment.
d. Approximately one hour later, a ‘scenes of crime’ officer (P.C. Jay Pilon) did arrive. He was invited into the apartment by Ms. Essaga at approximately 10:49 p.m. They did a “walk through” of the apartment during which P.C. Pilon observed that the bedroom occupied by Ms. Essaga (as identified by her) was in complete disarray. It had been ransacked with drawers pulled out and emptied, etc.
e. P.C. Pilon took pictures of the scene as he found it and prepared to dust for prints. He went to Ms. Essaga’s bedroom. P.C. Pilon asked Ms. Essaga if there was anything that she did not wish him to touch because the dust he uses can cause quite a mess. Ms. Essaga responded that he could process the scene and that there was nothing he should stay away from while doing so.
f. P.C. Pilon and Ms. Essaga then had an exchange which was essentially as follows:
Ms. Essaga (somewhat nervously according to P.C. Pilon): What would happen if you were to find something illegal in the apartment?
P.C. Pilon (responding “jokingly”): If marijuana or paraphernalia were found, that was something we could deal with and you would not go to jail. But that if an AK-47 was found lying on your table you could be arrested.
Ms. Essaga laughed in response to P.C. Pilon’s comments. Following this exchange, Ms. Essaga went back to the living room while P.C. Pilon continued his investigation.
It was during the dusting process that P.C. Pilon picked up a plastic grey grocery type bag lying on Ms. Essaga’s bed. Because of the feel of the contents (he believed his thumb pushed down on a trigger guard), he suspected the bag contained a firearm. He was right. Inside the bag was a “Glock 26” containing a loaded magazine wrapped in yellow cloth. Also inside the bag was a second loaded magazine.[4] Mr. Kumi had arrived home to the apartment by the time the firearm was located.
g. After the firearm and ammunition were discovered, Ms. Essaga and Mr. Kumi were both arrested for unlawful possession of a firearm and cautioned. Both advised they understood and both asked to speak with counsel.
h. Mr. Kumi expressed that he did not understand why it was alleged that he was in possession of a firearm. P.C. Pilon explained that because the firearm was found in the apartment shared by them, they could be found in joint possession of it. Mr. Kumi was upset and agitated. He explained that the firearm was not his and that he did not know anything about it. It was at this point that Ms. Essaga interjected. She apologized to Mr. Kumi and advised P.C. Pilon: “He didn’t know about it.”
i. Ms. Essaga was then transported to 31 Division and spoke with duty counsel. A little after 2:00 a.m., Ms. Essaga spoke to Det. Rebellato who advised her that Mr. Kumi was also being charged with possessing the firearm and ammunition. After this discussion and at approximately 2:19 a.m., Ms. Essaga gave a videotaped statement. During it she said the following:
i. that Mr. Kumi is simply her roommate, it is just business; and
ii. that he [Mr. Kumi] has “nothing to do with it” [the firearm].
j. During the search of the apartment, a shoebox was located in a closet. Inside the shoebox were various items including gun oil.[5]
k. Following her release from jail, Ms. Essaga spoke to Mr. Kumi in the presence of her then boyfriend. Both apologized to him.
l. Ms. Essaga is licensed to possess restricted firearms. This firearm was not registered with the Canadian Firearms Registry. It is a prohibited firearm.
Analysis
[6] As I have stated above, this case is a circumstantial one. Ms. Essaga testified, denying any knowledge of the firearm in the apartment and provided explanations for her apologies to Mr. Kumi and her protestations that Mr. Kumi was not involved. When that evidence is considered with the whole of the evidence, I do find that such explanations raise a reasonable doubt about her knowledge of the firearm and ammunition in the apartment.
[7] The bases for my conclusion are as follows:
a. Ms. Essaga returned to a ransacked apartment on Friday, January 25, 2013 and called police. If she knew about the firearm inside the apartment, she had time to dispose of it before police arrived. She did not do so.
b. The police did not arrive at the apartment in response to the call for approximately 30 minutes. Again, if Ms. Essaga knew there was a firearm in the apartment, she had approximately 30 minutes to dispose of it before police arrived. She did not.
c. Ms. Essaga was cooperative with P. C. Samson, the first officer who attended on scene. There was no suggestion that she was nervous by the police presence in her apartment at that time and provided information to her. In other words, she did not appear to be hiding anything from police during this initial interview.
d. P.C. Samson left Ms. Essaga alone in the apartment, advising that another officer would be attending to photograph and dust for prints. Ms. Essaga was left in the apartment for another hour during which time she could easily have disposed of the firearm. She did not. Again, this leads to the inference she knew nothing about the firearm and ammunition in the apartment.
e. P.C. Pilon attended at the apartment. Ms. Essaga appears to have been cooperative with him. She attended with him on the walk through, pointing out her bedroom and conversing with him. There is no suggestion that she was nervous during this exchange.
f. The exchange about finding something illegal in the apartment appears to have been a “lighthearted” one. Ms. Essaga testified that she had the exchange with P.C. Pilon about finding anything illegal in the apartment because she knew there was one marijuana joint in her bedroom. A number of pictures were shown to Ms. Essaga during her cross-examination. She was able to point Crown Counsel and the Court to the plastic Ziploc baggie where she says the marijuana joint was located. Although the photos were not perfectly clear, it is certainly possible that there was a marijuana joint in the Ziploc bag as Ms. Essaga submitted giving rise to her inquiry about finding something illegal in the apartment.
g. Ms. Essaga appears to have laughed in response to the suggestion of an AK-47 being found in the apartment. It does not appear that the reference to a firearm by P.C. Pilon triggered any memory that she had a firearm in the apartment, nor does P.C. Pilon appear to have observed any change in her demeanour when he said this. For example, she did not appear to have become nervous or anxious, scurrying around the apartment, rearranging things, following these comments.
h. Further, Ms. Essaga had yet another opportunity to dispose of the firearm if she knew it was there. This time, it was at the suggestion of P.C. Pilon. Before starting with the dusting, P.C. Pilon asked Ms. Essaga if there was anything that she did not wish him to touch because the dust he uses can cause quite a mess. Ms. Essega responded that he could process the scene and that there was nothing he should stay away from while doing so. This is not the response of a person who knows there is a firearm in the apartment. She could have asked to return to the bedroom to secure any items she did not wish police to discover (like a firearm). She did not.
i. The bedroom of Ms. Essaga appears to have been in complete disarray as a result of the break and enter. The firearm was sitting on the bed wrapped in a yellow cloth and inside a plastic grocery bag. It was one of a number of items on the bed. There was nothing in the appearance of the bag that would have suggested to any observer that the bag contained a firearm. P.C. Pilon himself testified that he only became suspicious that the bag contained a firearm when he picked up the bag. It was only because of his experience as a trained and armed officer that he concluded that the contents felt like a firearm.
j. Ms. Essaga denied any knowledge of the contents of the shoebox. The shoebox was clearly for a male because the size of the shoes it once contained was 11.5. Ms. Essaga testified that her shoe size is 8 – 8.5. If one only looks at the shoebox, it is impossible to know what it contains without opening it. There is no evidence that she did so. Ms. Essaga denied that she was aware of the contents of the shoebox, which I accept.
[8] Crown Counsel suggests that Ms. Essaga did not dispose of the firearm and ammunition prior to police attending and thereafter because she “forgot” about its existence in the apartment. He also submits that the inference to be drawn from her apology to Mr. Kumi and her representation that he had nothing to do with the firearm is that she knew the firearm was in the apartment. I reject such submissions.
[9] Ms. Essaga is a 28 year-old woman who is educated and steadily employed. She received a diploma from Seneca College in fashion and has kept a job in the customer service business for several years. She appeared to manage her job and apartment in an orderly way.
[10] I am not persuaded that Ms. Essaga would have “forgotten” about the existence of the firearm and ammunition based on the state of the apartment itself. It is clear from the photos of the kitchen and living room (that remained fairly undisturbed from the break in), that Ms. Essaga kept a tidy home. If there was a firearm in her apartment and she knew it, I am certain that she would not have forgotten about it. She would have been able to locate it quickly and dispose of it before the police discovered it.[6]
[11] Further, Ms. Essaga testified in a poised and thoughtful way. There was no hesitation in her answers and I never got the impression that she was fabricating a response to the questions posed. She was not argumentative and answered the questions respectfully during a rigorous and focussed cross-examination. In light of her presentation as a witness, I fail to accept that she would have forgotten about a loaded firearm in her apartment nor fabricated her suspicions as to how the firearm got into the apartment.
[12] The spontaneous utterance and interjection of Ms. Essaga when Mr. Kumi was speaking with the arresting officer is certainly suspicious and, standing alone, might support an inference of knowledge of the existence of the firearm. How else would she know that Mr. Kumi had nothing to do with it? However, it is impermissible to look at this evidence in isolation. I am required to consider this evidence in the context of the whole of the evidence at trial and I have done so.
[13] Ms. Essaga testified that she apologized to Mr. Kumi when he was arrested because she felt responsible for it. When asked why, she explained that it was she who called police that lead to the discovery of the firearm and their arrests. While this explanation might not seem entirely logical, I am certain that Ms. Essaga did feel some responsibility for the arrest of Mr. Kumi because the firearm was found in her bedroom to which Mr. Kumi had no access, while others did.
[14] Ms. Essaga explained that Mr. Kumi had nothing to do with the firearm on a number of occasions to the police. She did so, she says, because she believed that to be true. One reason is that he did not have access to her bedroom where the firearm was found. Secondly, she had her suspicions as to how the firearm got there and none of those suspicions involved Mr. Kumi.
[15] As one can imagine, a number of things were likely running through Ms. Essaga’s mind as she sat in handcuffs in her own apartment and then in an interview room and cell at the police station. While she sat at the station for hours, it is logical that she would think about how the firearm might have ended up in her bedroom. One theory involved a former boyfriend.
[16] Ms. Essaga testified that she knew little about her former boyfriend but that on occasion, he would either deliver, or he would have somebody else deliver, packages to the apartment she occupied prior to the one she was living in where the firearm and ammunition were found. He asked her not to open the packages and she did not. She recalls one gift bag, in particular, that was delivered by a female to her apartment on this premise. This boyfriend had a key to her former apartment and she does not know if he removed all of his belongings before she moved. She testified that she might unknowingly have packed the firearm and that it moved with her to the new apartment she now shared with Mr. Kumi.
[17] While this explanation involving the former boyfriend sounds tenuous and while Ms. Essaga appears to have been naïve in accepting such packages, I do not find that Ms. Essaga was trying to fabricate it. Rather, I find, she was trying to figure out how the firearm came to be in her bedroom while making efforts to exculpate Mr. Kumi. It is easy, in hindsight, to find this explanation irrational, but it appears that Ms. Essaga was telling the truth about what she thought at the time of her arrest – logical or not.
[18] Ms. Essaga’s suspicions about “a” boyfriend putting a firearm in her apartment appear to have been borne out by what she learned while in jail pending her release and thereafter. Ms. Essaga testified that at the time of her arrest, she had a boyfriend by the name of “Wisdoms Kubansa”. He had a key to her apartment and her room. Mr. Kubansa stayed overnight from time to time and had done so the night before the break and enter. Lastly, Ms. Essaga testified that Mr. Kubansa had access to the apartment and her bedroom when she was not there.
[19] Ms. Essaga testified that while she was detained on these charges, she asked Mr. Kubansa to act as her surety for release. He could not. Why not? Ms. Essaga learned, for the first time, that Mr. Kubansa had a criminal record and could not act as her surety. She testified that she was surprised by this information.
[20] Ms. Essaga learned even more about Mr. Kubansa when she was released from custody. She asked him if the firearm was his. He apologized to her because she got arrested for it. Together they returned to the apartment and met with Mr. Kumi. They both apologized to him for the trouble caused and resulting in his arrest.
[21] Ms. Essaga confronted Mr. Kubansa because she was angry that he left a firearm in her apartment. She asked him why he would do such a thing. She asked him to tell the police that the firearm belonged to him. He would not and he did not. Ms. Essaga discontinued her relationship Mr. Kubansa thereafter.
[22] It was clear that Ms. Essaga appeared to be surprised that her boyfriend had a criminal record and could not assist her in getting released from jail. Following her release, she confronted him about the ownership of the firearm to which he admitted. She apologized to Mr. Kumi, now with the full knowledge that he had nothing to do with it. When testifying, she did not hesitate in providing the boyfriend’s name (“Wisdoms Kubansa”); date of birth (August 16) and where she believed him to work (TD Canada Trust Insurance). If such evidence was fabricated, I would not have expected such personal information to have been disclosed such that the police could investigate him resulting in possible repercussions for her.
[23] Again, while the explanation provided by Ms. Essaga regarding her boyfriend (Mr. Kubansa) and his acknowledging possession of the firearm might appear to be convenient in light of the charges she was (and is) facing, her evidence had the ring of truth. Articulating why a judge finds a witness to be credible is a notoriously difficult task. In this case, I have carefully considered the Crown’s submissions regarding her credibility and carefully scrutinized her evidence. Having done so, I simply cannot reject her evidence and it leaves me with a reasonable doubt. Further, I am not satisfied that the only rational inference that can be drawn from the circumstantial evidence is one of guilt.
Conclusion
[24] For the above-mentioned reasons, Ms. Essaga is acquitted of all charges before the Court.
Kelly J.
Released: February 10, 2015
CITATION: R. v. Essaga, 2015 ONSC 890
court file no.: CR/14/40000/1690000
DATE: 20150210
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
RAISSA ESSAGA
Reasons for Judgment
Kelly J.
Released: February 10, 2015
[1] Specifically, Ms. Essaga is charged with possession of a prohibited firearm with ammunition, unauthorized possession of a firearm, possession of a firearm knowing its possession is unauthorized, possession of a firearm obtained by the commission of an offence, careless storage of a firearm and careless storage of ammunition, all contrary to the Criminal Code, R.S.C., 1985, c. C-46.
[2] The trial commenced with a voir dire regarding the admissibility of Ms. Essaga’s statements. At the conclusion of the evidence, Counsel agreed that certain of the statements were admissible. Ms. Essaga agreed to proceed to trial by way of judge alone. The admissible evidence from the voir dire was applied to the trial.
[3] (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.)
[4] One magazine contained 10 rounds of ammunition. The other magazine contained 9 rounds of ammunition.
[5] Specifically, the shoe box contained 2 cans of gun oil, bore cleaner, a tooth brush, a flashlight, four walkie talkies, a can of WD40 and 2 orange safety vests.
[6] There is evidence that Ms. Essaga had a license to possess a firearm. I find that such a fact is immaterial to any of my findings.