CITATION: R v. Monteiro, 2016 ONSC 1183
COURT FILE NO.: CR-15-779
DATE: 2016-02-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Adam Bernstein, for Her Majesty the Queen
- and -
SHANE MONTEIRO
Patrick Metzler, for Shane Monteiro
HEARD: January 12, 13, 14, 15, 18, 2016
REASONS FOR JUDGMENT
Justice D.L. Edwards
Overview
[1] The accused was charged that on or about April 3, 2013 he had possession of:
a) three prohibited firearms together with readily accessible ammunition capable of being discharged in the said firearm, without being the holder of an authorization or licence under which he may possess the said firearm, contrary to section 95(1) of the Criminal Code,
b) without lawful excuse of a firearm to wit: a semi-automatic pistol knowing that the serial number on it had been altered, contrary to section 108(1)(b) of the Criminal Code; and
c) of a substance included in Schedule II to wit: marijuana, in excess of 3 kg, for the purpose of trafficking, contrary to section(5)(2) of the Controlled Drugs and Substances Act.
[2] As a result of a flood in a residential condominium at Unit 811 Enfield Place Mississauga Ontario, (“unit 811” or “the unit”) the police were called to the unit and discovered firearms and marijuana.
[3] The police interviewed the owner of unit 811, Elontine Hanoman. She told them that in 2012 she entered into an arrangement with the accused whereby he would pay the sum of $1,000 per month to have access to the unit in order to have a quiet place to study. The unit contained two bedrooms. Ms. Hanoman placed a lock on the door of one of the bedrooms, which has been referred to as the master bedroom, and allowed the accused access to the balance of unit 811.
[4] The firearms and the marijuana were discovered in the unlocked bedroom.
[5] A fingerprint of the accused was found on a glass dish containing a dark substance, later determined to be cannabis resin. This glass dish was located in the locked master bedroom.
[6] The Crown produced 14 witnesses. The accused did not testify.
[7] In light of the Agreed Statements of Facts, the issue for me to determine is whether the accused possessed the firearms and marijuana within the meaning of the Criminal Code and the Controlled Drugs and Substances Act.
[8] For the reasons that follow, I dismissed all of the charges against the accused.
Agreed Statement of Facts
[9] The Agreed Statement of Facts was made Exhibit 16. The agreed facts are as follows:
Re: Firearms
a) For the purposes of Count 1 and 2 (which relate to Kel-Tec and Intratec guns), it is admitted that these constitute prohibited firearms; and which were together with readily accessible ammunition capable of being discharged in the said firearm.
b) For the purpose of Count 3 (which relates to the Smith and Wesson), it is admitted that this constitutes a prohibited firearm.
c) For the purposes of Count 4, the Smith & Wesson firearm was in such a state that the possessor of this firearm knew that the serial number had been altered.
Re: Drugs
a) In accordance with the certificates from Health Canada,
(i) the zip-lock packages found on the bed and within the black bags contained marijuana totalling approximately 29 pounds.
(ii) The Phoenix Tears syringe contained cannabis resin.
(iii) The dark substance in the glass dish is cannabis resin.
b) The possessor of the marijuana would have possessed it for the purposes of trafficking [Count 5].
The Evidence
The Flood
[10] I will first examine the events that unfolded at the time of the flood on April 3, 2013.
The Cleaners
[11] David McQuaid testified that on April 3, 2013 he worked for a cleaning company that was contacted to clean up a flood that had started in unit 811 and flooded the units on the floors directly below unit 811.
[12] When he arrived at the building around 3 a.m. the superintendent and the President of the condominium corporation took him into the building. He was shown some units directly below unit 811 that were wet. They worked their way up to unit 811.
[13] The superintendent unlocked the door to unit 811 and gave McQuaid the master key.
[14] When McQuaid entered the unit the source of the water leak had already been shut off.
[15] He did not go into the locked bedroom. He cleaned up the water damage by removing the carpet under-padding. This under-padding acted like a sponge and absorbed the water.
[16] His cleaning partner, Anton Gorchakov arrived around 5:30 am and assisted in the clean up.
[17] While cleaning up McQuaid noticed black hockey-type bags on the bed in the unlocked bedroom. These bags were zipped shut. In-chief he testified that he noticed a smell of marijuana at the door of the unit that got stronger as one went towards the unlocked bedroom. In cross-examination he said that the smell was only noticeable when in the unlocked bedroom.
[18] While cleaning up a couple of drawers in the dresser opened and he saw weird plastic sticks. He also saw a digital scale in the drawer. He did not see guns or any drugs.
[19] He did not report this to anyone. He left the unit, locked it, and returned the key to the superintendent.
[20] Anton Gorchakov was the second cleaner. By agreement his interview with the police on April 5, 2013 was entered into evidence as Exhibit 15 and he did not otherwise testify.
[21] Gorchakov arrived at the building around 5:30 am. He confirmed that he and McQuaid extracted water from the unit by removing the under-padding of the carpet. He smelled drugs and saw some weird needles.
[22] He advised his boss of the smell of “dope” and the weird needles. Once they completed their work they both left and locked the unit.
The Police Arrival
[23] Someone made a 911 call. The message passed on to the responding officers was that the cleaning staff saw guns and drugs.
[24] As a result, Constables, Kwong, Luckhurst, Lukasik and Sergeant Callan responded to the 911 call. The superintendent gave the key to unit 811 to Sergeant Callan. The officers then cleared the unit for safety reasons.
[25] Constables Kwong and Luckhurst both testified that they could smell marijuana at the front door and that the smell got stronger towards the unlocked bedroom.
[26] They breached or knocked down the door to the locked bedroom to ensure that the apartment was safe.
[27] These officers all testified that three hockey bags were located in the unlocked bedroom and one was unzipped. Constables Kwong and Luckhurst stated that they could see zip-lock plastic bags filled with what has subsequently been identified as marijuana in the opened hockey bag.
[28] Sergeant Callan testified that there were 2 hockey bags: one on the bed and one on the floor. One bag was unzipped and the zip-lock plastic bags with marijuana were visible. Further, in plain view was a bag that contained 2 firearms and magazines for those guns. He also saw needles and latex gloves in the top draw of the open dresser.
[29] Next on the scene were Detectives Dykstra and Carrabs. They proved the firearms safe and awaited a search warrant.
[30] Detective Berrigan obtained the search warrant and got to the scene at 6:00 p.m., at which time the search of the unit began.
Search and Processing the Unit
[31] Prior to the actual search of the unit, Constable Tonya Hackenbrook entered the unit alone and photographed the entire unit. Once she was done, the officers searched the unit and processed the items.
[32] Constable Hackenbrook identified 7 fingerprints in the unit.
[33] The first print was located on a liquor bottle and it was later identified to be the print of the police officer who had handled the object.
[34] The second print was located on the hallway mirrored closet door. The print was subsequently identified as belonging to Jonathan Busby, DOB April 20, 1990.
[35] The third print was found on the brass header of the mirrored closet door. The quality was sufficient to only conclude that it was not the fingerprint of the accused.
[36] The fourth print was a tip of a finger in the glass bowl with the cannabis resin. It was positively identified as being the accused’s fingerprint. This glass bowl was located in the locked master bedroom.
[37] The fifth print was on one of the firearms. It was of such quality that it could only be used to confirm that it was not the accused’s fingerprint.
[38] There were two prints on the zip-lock plastic bags in which the marijuana was found. The fingerprints were of such quality that they could only be used to confirm that they were not the accused’s fingerprints.
[39] DNA swabs were taken from the firearms. The swabs were tested. The conclusion was that there was no DNA on several of the swabs and on one swab the DNA was from two individuals, one of whom was a male. A sample of DNA was taken from the accused and compared to the DNA taken from the firearm. The DNA on the firearm was not that of the accused.
[40] There were beer bottles found in the apartment. They were not tested for DNA and there were no useable prints.
[41] Once the police were through processing the unit, they departed. They locked the unit and returned the key to the superintendent, but did not otherwise secure the unit.
[42] On April 8, 2013 Detective Berrigan returned to the unit and seized a cardboard beer box which contained several items, including the glass bowl with the dark substance, subsequently determined to be cannabis resin, and on which the accused’s finger print had been found.
[43] Nothing was found in the unit to connect the accused to the unit, other than one fingerprint. For example, there were no clothes, no pictures, no documents or any other objects found that in any way related to the accused.
[44] Detective Barbara testified that there were two CCTV cameras at the building: one in the lobby and one by the keypad to the underground garage.
[45] The lobby was a common lobby for two condominium towers. The lobby camera caught individuals entering the lobby; the camera by the keypad did not catch individuals in the cars entering the underground parking garage. From the underground garage one could enter the elevator to either tower.
[46] Detective Barbara viewed the CCTV recordings going back 4 to 5 days prior to the flood. He did not see the accused on any of the recordings. He did see briefly an individual that he thought was Kam Alli, who appeared to be exiting from the tower opposite to the tower in which unit 811 is located. Later, I will refer in more detail to Alli.
[47] The police did not interview the building superintendent, the president of the condominium corporation, Kam Alli or Jonathan Busby.
Expert Evidence on Firearms
[48] Constable Stephen Jordan was qualified as an expert in firearms and ammunition.
[49] He testified that he examined the seized firearms, magazines and ammunition.
[50] In his opinion the Kel-Tec and Intratec firearm were both in firing condition; the magazines attached to the firearms were suitable for the firearms and the ammunition found adjacent to the firearms could be discharged in them.
[51] Also, in his opinion the Smith and Wesson firearm was not in operable condition, but the magazine inserted into the firearm was suitable for it and the ammunition found adjacent could be discharged in the firearm.
[52] Finally, in his opinion the serial number had been scratched off the Smith and Wesson firearm.
[53] These conclusions are consistent with the Agreed Statement of Facts.
Rental Arrangement
[54] The arrangement between the accused and Ms. Hanoman, the owner of unit 811, is critical to the Crown’s case.
[55] Ms. Hanoman testified that she purchased the unit in 2005 and her children used it over the years while they attended school in Canada. In fact, it was at school that her son, Harry, met the accused, and as a result he became friends with her family.
[56] In 2012 her children no longer needed the unit. As well, she decided to return permanently to Guyana.
[57] The accused approached her and asked if he could enter into an arrangement with her so that he could use her unit to study. In-chief Ms. Hanoman stated that the accused told her that he wanted the quiet place because his grandmother was bothering him at his family residence. She also testified in chief that the accused said to her that old people were bothering him, and it was easier for him to study in a quiet place. In cross-examination she said that she was not sure if it was a grandmother who was the problem, but that he did want a quiet place to study, and that he was a good student.
[58] The accused’s father, Benedito Monteiro, testified that both of the accused’s grandmothers were living in India in 2012. He confirmed that the accused was a good student with a scholarship to McMaster.
[59] Ms. Hanoman agreed to what she called a loose arrangement with the accused. There was no written lease, no notification to building management of a lease, and no firm details on when payments were to me made.
[60] She said that he agreed to pay $1,000 per month. She gave him a void cheque so that he could deposit the money into her bank account. She testified that she never checked to see if he paid or not.
[61] She gave the accused a fob by which he could gain access to the lobby and a key to the unit.
[62] She bought a passage lockset from Walmart and placed this lockset on the door to her master bedroom. She had three keys. She gave her husband one key and kept the other two keys. The accused did not have a key to this lock.
[63] She arranged with the accused that if she was coming to visit in Canada, she would give him advance notice and he would vacate the apartment so that she would have it to herself. She kept the master bedroom door locked; the accused was not to access the master bedroom.
[64] Her husband’s cousin, Kevin, had a fob and a key to the mail. His responsibility was to clear the mail. He did not have a key to the unit.
[65] Ms. Hanoman was a very credible witness. She testified to what she could recall and admitted what she could not recall. She stated that she did not pay attention to whether the accused paid her or not, and that she had trouble remembering the financial details.
[66] Her bank book was made an exhibit and she was referred to it during her testimony. She had difficulty remembering what various deposits were for, and who made the deposit.
[67] She said that in April 2012 the accused gave her $1,000 that was for half of April and half of May. She thought that the August 13, 2012 deposit of $2,000 was for June and July 2012.
[68] She stated that around October or November 2012 the accused advised her that he did not want to pay for the unit as he was going away. She thought that the accused returned in January or February 2013.
[69] Benedito Monteiro testified that the family, including the accused, went to India for a family wedding, and that the accused did not return to Canada until January 2013.
[70] Ms. Hanoman testified that on November 13, 2012 there was a deposit of $2,000 from the accused.
[71] Finally, there is a deposit of $2,000 on March 15, 2013 that represents money paid to her by the accused. Ms. Hanoman’s evidence on this point was inconsistent. Initially, in chief she said that it was for past money owing to her. Then her statement to the police was brought to her attention in order to refresh her memory. She revised her testimony to say that it was for future rent. However, in cross examination and in re-examination she confirmed that this payment was made by the accused because he owed her money for past rent.
[72] No further payments were made by the accused for the unit.
[73] In chief after her memory was refreshed with her statement to the police she stated that the accused re-commenced renting the unit in March 2013. In cross examination Ms. Hanoman said that she had no knowledge whether the accused was accessing the unit in the spring of 2013.
Departures and Arrivals of Ms. Hanoman
[74] She left Canada in April 2012 and returned in August 2012 to arrange for a citizenship card for her son.
[75] She called the accused to tell him that she was coming to Canada. When she arrived it was late and she went straight to bed. In the morning she discovered that an individual, who she came to know was Kam Alli, was sleeping in the unlocked bedroom.
[76] She called the accused, who told her that Kam was his cousin from the United States and that he would move.
[77] Benedito Monteiro testified that the accused does not have a cousin named Kam Alli.
[78] Ms. Hanoman discovered mail in the unit addressed to Kam Alli. From the type of correspondence, she thought that it was something official, and perhaps Alli was in trouble with the law.
[79] Her locked master bedroom was in the exact state that it was when she left in April 2012.
[80] She went back to Guyana after 8 to 10 days.
[81] Her husband and her son Karl came to Canada in October or November 2012 for her husband’s medical appointment. They stayed in the unit for about 2 weeks.
Contact following the Flood
[82] On April 3, 2013 Ms. Hanoman was called about the flood. She called the accused who said that he was not at the unit. He called her back the same day to tell her that there was “shit” all over the place.
[83] Ms. Hanoman returned to Canada to deal with the flood. The police interviewed her on April 8 2013.
[84] When she came to Canada after the flood, she found mail addressed to Kam Alli. She gave it to the police. Rogers’ invoices and reminders were entered as Exhibits 5, 6A, 6B, 6C & 6D. The letter from the Elizabeth Fry Society dated January 7, 2013 was entered as Exhibit 7.
Keys and Fobs
[85] It is useful to identify who had keys and fobs to unit 811 in April 2013.
[86] The unit key gave access to the door of the unit; the fob gave access to the lobby of the building.
[87] First, clearly Ms. Hanoman had a unit key and fob.
[88] Second, the accused had a unit key and a fob.
[89] Third, Ms. Hanoman testified that her son, Hans, had a unit key and fob stolen from him when he was going to York University. As well, she said that the accused lost a unit key and a fob.
[90] Fourth, the building superintendent had a key to the unit. This key was utilized by the cleaners and the police on April 3, 2013 to access the unit.
[91] Fifth, Ms. Hanoman testified that in October or November 2012 her husband and son stayed at the unit for a period of time. I have no evidence as to whether they had their own unit key and fob, or whether Ms. Hanoman loaned them her own unit key and fob.
[92] Sixth, Ms. Hanoman’s husband’s nephew had a fob and mail key, but not a unit key.
[93] Seventh, I heard evidence that Kam Alli stayed at the unit. I have no evidence as to whose key he utilized to access the unit, or whether he had his own unit key.
[94] The front door lock to unit 811 was never changed while Ms. Hanoman owned the unit.
[95] There were three keys to the locked bedroom door. Ms. Hanoman had 2 keys and her husband had the other key.
The Law
[96] The issue at trial was whether the accused had knowledge and control of the firearms and marijuana found in unit 811, and therefore had them in his possession.
[97] Subsection 4(3) of the Criminal Code defines possession. That section reads:
4(3) 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 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 custody and possession of each and all of them.
[98] Section 4(3) of the Criminal Code therefore creates three types of possession:
a) personal possession as outlined in section 4(3)(a);
b) constructive possession is set out in section 4(3)(a)(i) and section 4(3)(a)(ii); and
c) joint possession is defined in section 4(3)(b).
[99] Section 2 of the Controlled Drugs and Substances Act, S.C. 1996 C. 19 adopts the definition of “possession” described in subsection 4(3) of the Criminal Code.
[100] The courts have held in order to constitute constructive possession there must be knowledge that extends beyond mere quiescent knowledge and discloses some measure of control over the items to be possessed. See R. v. Grey (1996), 1996 CanLII 35 (ON CA), 28 O.R. (3d) 417 (C.A.)
[101] In R. v. Sparing [1998] O.J. No. 107 (Ont.H.C.) at p. 6 Watt J. stated:
(iii) There is no direct evidence of the applicant's knowledge of the presence of narcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common area of the residence, the presence of a scale and a bedroom apparently occupied by the applicant, and; the applicant's apparent occupation of the premises may serve to found inference of the requisite knowledge.
[102] In R. v. Grey, supra, Laskin J.A. commented upon knowledge possession and circumstantial evidence as follows:
There was no direct evidence of the appellant's knowledge. The Crown did not have a witness who could state affirmatively that the appellant knew about the cocaine. Also, the drugs seized by the police were not in plain view-- they were hidden. To find that the appellant had possession of the cocaine, the trial judge had to infer knowledge from the circumstantial evidence. The case against the appellant rested principally on his regular occupancy of Ms. Escoffery’s apartment in the presence of his clothing and other belongings in the bedroom where the crack cocaine was found. The question is whether the trial judge was entitled to infer knowledge from this evidence. In my opinion, he was not.
[103] In R. v. Cantrill 2011 ABQB 273, [2011] A.J.No. 465, Manderschield J. addressed the issue of the standard of proof and the application thereof where the evidence was circumstantial:
...where the case of the Crown is based on circumstantial evidence the standard of proof remains “beyond a reasonable doubt”. The test to be applied is whether “… Before basing a verdict of guilty on circumstantial evidence…” Is the trier of fact “… 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 CanLII 11 (SCC), [1978] 1 S.C.R. 860, 74 D.L.R. (3d) 731
[104] With respect to fingerprint evidence, the Court of Appeal has confirmed that fingerprint evidence will almost always afford cogent evidence that the person whose fingerprint is found on the object, touched it. However, whether the accused touched the object at the relevant time and place so as to connect the accused to the crime will depend upon other evidence. R. v. Mars [2006] O.J. No. 472, 2006 CanLII 3460.
Analysis
[105] In light of the evidence, did the accused possess the firearms and marijuana?
[106] I am satisfied that there is no evidence that the accused personally possessed these items. Therefore, did he constructively possess them?
[107] For the accused to have constructive possession of them, he must have knowledge that discloses some measure of control over these items.
[108] To determine this issue I will first examine the evidence of the cleaners.
Findings regarding initial contact with the Unit
[109] I accept the cleaners’ testimony that they were called by the building management following the flood and that when McQuaid entered unit 811 someone had already entered the unit to turn off the source of the water flood.
[110] I accept their testimony that the hockey bags were zipped shut when they arrived and when they left and that they returned the key to unit 811 to the building superintendent.
[111] I accept Gorchakov’s testimony that he called his boss to report the smell of “dope” and the weird needles.
[112] I accept Sergeant Callan’s testimony that the police received a key from the superintendent and that when the police first accessed unit 811 one hockey bag was open. The zip-lock bags with marijuana and the guns were in plain view.
[113] Taking into consideration the fact that the cleaners testified that the hockey bags were zipped shut, whereas the police testified that one bag was unzipped, I conclude that someone entered the unit between the time the cleaners left and the police entered and that person opened the hockey bags.
[114] I have no evidence upon which to reach a conclusion as to who that might have been.
Findings of the Search Warrant
[115] There is no dispute that the police found in unit 811:
a) a Kel-Tec and Intratec firearm. Adjacent to the two firearms were magazines together with ammunition for these firearms;
b) A Smith and Wesson firearm in a non-operable condition. Adjacent to the firearms was a magazine together with ammunition for that firearm;
c) Marijuana located in zip-lock plastic bags on the bed in the unlocked bedroom and within the black bags, totalling approximately 29 pounds;
d) Phoenix Tear syringe containing cannabis resin; and
e) A glass dish located in the locked master bedroom containing cannabis resin and the fingerprint of the accused.
[116] Of the 7 fingerprints located at the unit, the only print that connects the accused to the unit is his fingerprint located in a glass dish containing cannabis resin. That glass dish was located in the locked bedroom.
[117] Nothing else was located within the unit that would connect, in any way, the accused to the unit.
[118] Nothing on the CCTV camera recordings associated the accused with unit 811.
Findings on Rental Arrangement
[119] I find that in the spring of 2012 the accused approached Ms. Hanoman and requested that they enter into a very loose arrangement regarding the unit.
[120] My interpretation of Ms. Hanoman’s testimony is that she was doing this as a favour for the accused.
[121] First, there was no written rental agreement; there was no notification to third parties; and although the sum of $1,000 per month was discussed, she testified that she really did not check her bank account; she really did not care whether the accused paid her or not. As well, she said that the accused called her “auntie” as a sign of respect.
[122] Second, it was not an exclusive possession arrangement. Ms. Hanoman kept the master bedroom locked for her and her family’s own purposes. Indeed, she utilized it once in the summer of 2012 and her husband and son stayed in the apartment in October or November 2012.
[123] Further, from Ms. Hanoman’s testimony we know that a Kam Alli slept at the unit in the summer of 2012.
[124] Ms. Hanoman testified that in the summer of 2012 the accused told her that Alli would move. However, she did not know by what date he would move, or whether he indeed did move. In fact, Ms. Hanoman testified that when she was there in the summer of 2012 she packed up some kitchen dishes in order to provide Alli with more space. She also cooked some chicken and allowed Alli to eat some of it.
[125] Ms. Hanoman seemed surprisingly unconcerned about Alli’s presence in the unit, and not particularly concerned about when he would leave the unit.
[126] When Ms. Hanoman arrived at the unit in April 2013 she found mail for Alli, including a letter from Elizabeth Fry that was dated January 7, 2013.
[127] I have no evidence as to what key Alli utilized to access the unit or when he ceased to occupy the unit.
[128] Third, there is no evidence that the accused paid rent to Ms. Hanoman for any period after March 2013. Ms. Hanoman’s final position on this issue was that the $2,000 that she received March 15, 2013 for money already owing, rather than for future rent.
[129] Fourth, Ms. Hanoman was unable to state that the accused continued to rent and access the unit in April 2013. In chief, after her memory was refreshed with her statement to the police, she stated that the accused was going to re-commence renting the unit in March 2013. However, in cross-examination she stated that she did not know whether the accused continued to access the unit in the spring of 2013.
[130] Fifth, although Ms. Hanoman contacted the accused once she was advised of the flood, she did not testify that she did so because the rental agreement was in place. She gave no reason why she called and we are left to speculate. It could have been because the rental arrangement was still in place; it could have been because of the special relationship that the accused had with his “auntie”.
[131] Based upon Ms. Hanoman’s testimony, I cannot conclude that the only reasonable inference is that the accused possessed and had control of unit 811 on April 3, 2013.
[132] I turn, therefore, to other factors that might demonstrate that the accused had exercised control over unit 811 into April 2013.
Findings Regarding Actual Occupation of Unit 811
[133] When the police processed the unit, the only thing that was found that would connect the accused to the unit was his fingerprint located in a glass bowl containing cannabis resin. This glass bowl was found in a cardboard beer box located in the locked master bedroom.
[134] All other fingerprints either identified another individual, or were only of sufficient quality to exclude the accused.
[135] The DNA found on the firearm was not the accused.
[136] There were no personal effects, pictures, clothes, documents, of the accused found at the unit.
[137] No mail of the accused was found in the unit. However, mail for Alli was found, including a letter dated January 7, 2013.
[138] The glass bowl on which the accused’s fingerprint was located is a moveable object. We do not know when the accused placed his fingerprint there, or where the bowl was when the accused touched it. The bowl may have been in unit 811 when the accused touched it; it may have been elsewhere and moved into the locked bedroom.
[139] Ms. Hanoman accounted for all of the three keys to the bedroom lock. The accused did not have a key to the locked bedroom door and no evidence that the lock was picked or in any way tampered with.
[140] I find that the accused did not have access to the locked bedroom.
[141] The CCTV recordings did not show the accused accessing the condominium building.
[142] I find that the objects discovered in the unit, and the forensic testing of the unit and its contents did not reveal any direct evidence of the accused controlling or possessing unit 811 on April 3, 2013.
[143] The only evidence upon which one could possibly attempt to infer control and possession of the unit by the accused is his fingerprint. However, I find that his fingerprint on the glass bowl in the locked master bedroom - a room to which he did not have access - is of no assistance in establishing control and possession of the unit by the accused. The glass bowl could have been in or outside of the unit 811 when the accused touched it. There is no evidence to assist me on this issue.
[144] From the objects found and the forensic testing of the unit and its contents I can reasonably infer that:
a) individuals, other than the accused, were in the unit at some time;
b) the accused touched the glass bowl at some time and in some location;
[145] From this evidence I cannot conclude that the only reasonable inference from that evidence is that the accused possessed and controlled unit 811 and the contents therein.
Findings Regarding the Keys to Unit 811
[146] Do the keys to the unit assist in determining whether the accused had control and possession of the unit?
[147] Ms. Hanoman had a unit key. She utilized it to access the premises when she returned to Canada in the summer of 2012 and in April 2013.
[148] Her husband and son had a unit key in October/November 2012 when they stayed in the unit. I have no evidence as to whether they had their own key, or whether Ms. Hanoman loaned her key to them.
[149] Ms. Hanoman testified that a unit key was stolen from her son while he was on a bus going to York University.
[150] The accused had a unit key. As well, he lost a unit key and received another one from Ms. Hanoman.
[151] I infer that at some point Kam Alli had a unit key, as he was sleeping at the unit. I have no evidence regarding when and how he acquired that key. I have no evidence whether an additional unit key was made for him, or whether the accused loaned Alli his unit key.
[152] The building superintendent had a unit key, (likely a master for the building). He loaned it to the cleaners and the police.
[153] The number of people with unit keys and the missing unit keys preclude me from concluding that, because the accused had a key to unit 811, the only reasonable inference that I may draw is that the accused had possession and control of the unit.
Findings on Possession and Control
[154] As I have noted above, the Crown must prove its case beyond a reasonable doubt. I am satisfied that the Crown has not proved with direct evidence that the accused controlled and possessed unit 811 and its contents.
[155] It is clear that this case is based significantly upon circumstantial evidence. I must be satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the facts. R. v. Cooper
[156] In order to establish constructive possession there must be a measure of control of the items to be possessed by the accused. R. v. Grey
[157] The Crown submitted that I should take into consideration the silence of the accused as indicating that he could not provide an innocent explanation and referred me to R. v. Brown, 2015 CarwellOnt 4356.
[158] I disagree. The facts here do not cry out for an explanation. The accused is entitled to remain silent and I draw no adverse inference from that silence.
[159] The Crown submits that the accused lied to Ms. Hanoman when he said that he wanted a quiet place to study because of his noisy grandmother, and that I should infer that he wanted the unit as a stash house. Benedito Monteiro had testified that at that time both of the accused’s grandmothers were in India.
[160] I cannot accept that submission. First, Ms. Hanoman in-chief and in cross-examination stated that she was not sure whether the reason that the accused wanted the unit was due to the accused’s grandmother, or simply loud older people.
[161] Second, both Benedito Monteiro and Ms. Hanoman testified that the accused was a good student. Indeed, he had a scholarship to attend McMaster University. He might possibly have wanted access to the unit in order to study.
[162] In the absence of other supporting facts, and the unclear testimony on this issue from Ms. Hanoman, I am not prepared to conclude that from this evidence the only reasonable inference that I could draw is that the accused possessed and controlled unit 811 in April 2013.
[163] The Crown urges me to infer from his lie about Kam Alli being his cousin that the accused possessed unit 811 for a stash house.
[164] In my view R. v. Han 2006 ONCJ 427, [2006] O.J. no. 4504 is of assistance on this issue. Although in that case the accused testified, whereas here the accused did not, the principle remains the same. Wong J. states:
…It is tempting to conclude that Mr. Han must be hiding something because he was so blatantly dishonest during his testimony. However, such an inference would be an improper application of the law and the burden of proof. I strongly suspect that Mr. Hawn knew what was in the locker and with others had possession of the guns and ammunition. However, criminal cases cannot be decided on strong submission, but proof beyond a reasonable doubt.
[165] Although I might suspect that the accused lied about Alli being his cousin in order to hide something, it would be improper on the basis of that for me to infer that he possessed unit 811 as a stash house. As noted in R. v. Han that would be an improper application of the law and burden of proof.
[166] Viewing all of the evidence collectively, I am not satisfied beyond a reasonable doubt that actual or constructive possession by the accused of unit 811 and its contents, namely the firearms and marijuana, has been proven beyond a reasonable doubt.
[167] Actual possession has not been proven, and the fact that the accused exercised a measure of control over the firearms and drugs sufficient to possess them is not the only reasonable inference that I can draw from the evidence in its totality.
[168] As the Crown has not proved beyond a reasonable doubt the guilt of the accused, I dismiss the charges against the accused.
Justice D.L. Edwards
Released: February 18, 2016
CITATION: R v. Monteiro, 2016 ONSC 1183
COURT FILE NO.: CR-15-779
DATE: 2016-02-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
SHANE MONTEIRO
REASONS FOR JUDGMENT
Justice D.L. Edwards
Released: February 18, 2016