CITATION: R. v. Sauve and Stewart, 2016 ONSC 6896
COURT FILE NO.: CR13-73
DATE: 2016/11/07
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JARRETT SAUVE
AND
JUSTIN STEWART
Respondents
Andre White, counsel for the Crown
Donald W. Johnson, counsel for the Respondent, Jarrett Sauve
John McGowan, counsel for the Respondent, Justin Stewart
HEARD: March 21, 22, 23 and August 8 and 9, 2016
reasons for judgment
LACELLE, J.
Introduction
[1] Jarrett Sauve and Justin Stewart are charged with various weapons offences following the police seizure of a handgun and ammunition in the back pack being carried by Mr. Stewart on April 17th, 2012.
[2] The facts pertaining to the circumstances of the seizure were summarized in an earlier ruling relating to the admissibility of the hand gun and ammunition as evidence in the trial. That summary provides an overview of events giving rise to the charges. I rely on that prior summary, and will not repeat it here.
[3] This is my ruling on whether the Crown has proved the offences charged against each accused beyond a reasonable doubt.
Positions of the parties
[4] While the Crown argues it has met its burden and proved each element of the offences charged beyond a reasonable doubt, each accused argues that the Crown has failed to meet its burden of proof. They have identified particular frailties as applied to each count, chiefly that the Crown has not proved that each of them possessed the handgun and ammunition within the meaning of that term as defined in s. 4(3) of the Criminal Code. They also say that the Crown has not proved certain other elements of various counts. I will review those arguments further in the analysis of the sufficiency of the evidence on each count.
Issue #1: Has the Crown proved that each accused possessed the handgun and ammunition?
[5] The central issue to be decided by the court is whether the Crown has proved beyond a reasonable doubt that each of Mr. Sauve and Mr. Stewart possessed the firearm and ammunition. Accordingly, I commence my analysis with this issue.
The positions of the parties
[6] Crown counsel argues that he has proved each accused possessed the handgun. He says that the Crown has proved either personal or “joint” possession, as these are defined in s. 4(3) of the Criminal Code. He relies on the doctrine of wilful blindness to prove the knowledge element of possession as against each accused. He highlights the portions of the videotaped statement of Mr. Sauve where he is questioned about his knowledge about the item to be picked up in Cornwall, and urges this evidence demonstrates that he was at least wilfully blind. With respect to Mr. Stewart, he points to the larger circumstances which point to smuggling activity, such as the timing of Mr. Sauve coming from the water, which permits an inference the firearm was acquired in a transaction at the river. He also suggests the nervousness demonstrated by Mr. Stewart upon arrest is demeanour evidence that can be considered in the totality of the evidence as supportive of his knowledge he was in possession of the handgun and ammunition. He says that for Mr. Stewart to not make any inquiries about what was in the bag upon receiving it from Mr. Sauve amounts to wilful blindness, such that knowledge he possessed the handgun and ammunition may be imputed to him.
[7] Mr. Sauve argues that assuming the court finds that he did have the backpack containing the handgun and ammunition, there is insufficient evidence that he knew what was in it, and that he had control over it. He argues that the Crown has not proved he was wilfully blind as to what was in the backpack, and says at most, he was reckless. The Crown agrees that recklessness is insufficient to prove the knowledge element of possession in this case. Mr. Sauve says that the Crown’s reliance on his statements in the videotaped interview is misplaced, because they are ambiguous comments brought about by leading questioning by the officer. If the court finds that Mr. Sauve had the requisite knowledge, he says the Crown still has not proved he had control over the items. He emphasizes the evidence that Mr. Sauve only had the backpack for the time it took him to cross the road and pass it on to Mr. Stewart.
[8] Mr. Stewart emphasizes the different factual framework that applies to him in the assessment of this issue. The statement of Mr. Sauve does not serve as evidence against him. He points out that he was not near the river or the men in the boat, and that there is no evidence he knew Mr. Sauve had been in the vicinity of the river in the circumstances described by the officers. He says the evidence is simply that he received a bag from Mr. Sauve, an act which is perfectly lawful. He says there is no evidence he had any knowledge of what was in the backpack he was carrying when he was stopped by police, and that the circumstances in which he received the backpack from Mr. Sauve do not prove he was wilfully blind to what was in the backpack.
The legal principles
The definition of “possession”
[9] Section 4(3) of the Criminal Code provides the definition of “possession” for all proceedings under the Criminal Code. That definition was considered by the Supreme Court of Canada in R. v. Morelli, [2010] 1 S.C.J. No. 8 at paras. 15-17. The court confirmed that knowledge and control were essential elements to both personal possession and constructive possession.
[10] Insofar as personal possession is concerned, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty): Morelli at para. 16, Beaver v. The Queen, 1957 CanLII 14 (SCC), [1957] S.C.R. 531, at pp. 541-42.
[11] As regards joint possession, the language of the statute provides that “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”. Consequently, knowledge of all persons involved, and control by one, must be proved to meet the elements of joint possession.
“Knowledge”
[12] Knowledge must be proved to prove possession. While knowledge includes wilful blindness, it does not include recklessness: R. v. Sandhu, 1989 CanLII 7102 (ON CA), [1989] O.J. No. 1647 (Ont.C.A.); R. v. Johnson, [2013] O.J. No. 3674 (S.C.J.) at para. 76.
[13] The concepts of knowledge, wilful blindness and recklessness were explained by Charron J. in R. v. Briscoe, [2010] SCC 13 at paras. 21-23, as follows:
Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. As Sopinka J. put it in Jorgensen (at para. 103), “[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge”
Court and commentators have consistently emphasized that wilful blindness is distinct from recklessness. The emphasis bears repeating. As the Court explained in Sansregret (at p. 584):
… while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry.
It is important to keep the concepts of recklessness and wilful blindness separate. Glanville Williams explains the key restriction on the doctrine:
The rule that wilful blindness is equivalent to knowledge is essential, and is found throughout the criminal law. It is, at the same time, an unstable rule, because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge …
[14] Phrased another way, “[a]ctual suspicion, combined with a conscious decision not to make inquiries which could confirm that suspicion, is equated in the eyes of the criminal law with actual knowledge”: R. v. Duong (1998), 1998 CanLII 7124 (ON CA), 39 O.R. (3d) 161 (C.A.) at pp. 168-69. Or, “[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?”: R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] S.C.J. No. 92 at para. 103. Deliberately choosing not to know something when given reason to believe further inquiry is necessary can satisfy the mental element captured by the term “knowingly”: Jorgensen at para. 102.
[15] Knowledge (including wilful blindness) may be proved by direct or circumstantial evidence. Where proof of knowledge rests on circumstantial evidence, the trier of fact must be satisfied that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. While circumstantial evidence must be viewed as a whole and not each piece individually, the existence of a rational, non-guilty inference is sufficient to raise a reasonable doubt: R. v. Anderson-Wilson, 2010 ONSC 489 per Hill J.; Johnson at paras. 40-45.
“Control”
[16] As has been observed in some of the cases considering this issue, a person may physically handle an object but not be in possession of it. Some act of control outside of public duty is necessary to prove possession: Morelli, Beaver v. The Queen.
[17] One useful approach to considering the evidence of control was set out by Greco J. in R. v. Bier, [1999] O.J. No. 1652 (S.C.J.) at para. 12. He wrote that
an intent to control, inter alia, refers to an intent to exercise authority over the thing; an intent to exercise dominion over the thing; in a sense to treat the thing as though it were your own; to deal with the thing as the true owner would be able to deal with the thing, to the exclusion of all others. This, of course, unless you are in joint possession with others. What the person intends will normally be evidenced by what he does with the object of concern or what he says about it, or both.
The principles applied to the facts
[18] The question of whether the Crown has proved beyond a reasonable doubt that each accused had knowledge of what he carried in the backpack is determinative in proving possession. Accordingly I commence with a consideration of the evidence on this issue.
Has the Crown proved that Mr. Stewart knowingly “possessed” the handgun and ammunition?
[19] The statement of Mr. Sauve, and his account of Mr. Stewart’s involvement in the alleged offences, is not admissible as evidence against Mr. Stewart. At bottom, the admissible evidence against Mr. Stewart is that he received a backpack from Mr. Sauve while they were together at a gas station, and then walked into the gas station store with the backpack on his back.
[20] There is no evidence that Mr. Stewart knew Mr. Sauve had been across the road. As argued by his counsel, there is no evidence to fix him with the knowledge of the police officers that this was an area where smuggling activity was known to occur, such that he should have been suspicious about being handed a backpack by Mr. Sauve. There is also no evidence that the backpack belonged to Mr. Stewart, and there is no foundation for an argument or inference that he must have known what was in the backpack because it was his.
[21] The Crown says the court can infer from the timing of Mr. Sauve’s presence near the water that the firearm came from the river. As I have indicated, in my view, there is no evidence which establishes that Mr. Stewart knew where Mr. Sauve had gone. There is no evidence as to what Mr. Stewart was doing while Mr. Sauve was observed near the river. As the officers’ attention was fixated on Mr. Sauve at the time, this is not surprising. The officers began their observations of Mr. Stewart at the point when Mr. Sauve approached him and gave him the backpack.
[22] There is no evidence that supports a finding that Mr. Stewart knew that Mr. Sauve was at the water, or that he had any reason to be suspicious about what he might be doing there. The nervousness that Mr. Stewart demonstrated upon being approached by the police officer is equivocal behaviour that even when considered in the context of all the circumstances, does not point toward the specific knowledge the Crown must prove here, which is that he knew the backpack contained a firearm.
[23] The evidence falls short of establishing beyond a reasonable doubt that Mr. Stewart knew or was wilfully blind to the fact that he was in possession of a firearm when he received the backpack from Mr. Sauve and carried it into the gas station store. As possession is an element of each of the offences which must be proved by the Crown, with the exception of count 5, and the Crown has not proved the mens rea element of possession as against Mr. Stewart, he will be acquitted of counts one through four.
Has the Crown proved that Mr. Sauve knowingly “possessed” the handgun and ammunition?
[24] The evidence available to the Crown to prove knowledge on the part of Mr. Sauve is more robust than that pertaining to Mr. Stewart. There is evidence, which I accept, from the police officers about their observations of Mr. Sauve prior to the point when he handed the backpack he was carrying to Mr. Stewart. There is also the evidence provided by his videotaped statement to police, and utterances made to officers at the scene of his arrest.
The videotaped interview
[25] The Crown points to various things said by Mr. Sauve during his videotaped statement as demonstrating that he was at least wilfully blind that he was in possession of a firearm when he carried the backpack. A summary of the key portions follows.
[26] Mr. Sauve initially told the officers how he came to travel from the Ottawa area to Cornwall on his motorbike with his co-accused. He said: “That’s the thing, I don’t really know anything other than I was driving there and I was turning around and I was coming right back once I got there”. He said his co-accused had said they were “going to go pick something up and did I mind going and he said he was paying for gas and everything so I was sure why not”.
[27] Upon arriving at the gas station, Mr. Sauve said “I seen my other buddy across the street who was walking. He said, “Hey, come with me for a second”, so I went over there. He later said he did not know the man across the street, who he called his “other buddy”.
[28] With respect to his knowledge of what was transpiring, he initially said to the officers: “All’s I know he wasn’t going there to get something legal by the sounds of it”, but said he had no idea what they were going to get. He did say Mr. Stewart told him they were going to pick something up, turn right around and come right back. He agreed again later that he had an idea he was picking up something that wasn’t legal. He said “for all I know, it could be anything though”. He initially said Mr. Stewart was “pretty much quiet” about what they were going to pick up.
[29] Mr. Sauve was asked when he got the feeling that what he was picking up “was not a good thing”. He replied: “Right from the get go (giggle) as you could say”. He said this was based on the fact that they were going to Cornwall (a place where he had earlier said he had never been) to pick something up and then turning right around. When asked what he thought they were going to get, at this point he said: “I don’t know, I thought maybe some native smokes or something like that, I don’t know, it could be a billion things, right?”. After some further questioning he said, “No. I really didn’t have any idea of what we were gonna get, sorry man”.
[30] Further on, Mr. Sauve said that Mr. Stewart had said some things in reference to what they were going to get. He said: “Yeah, like I was asking on the way here he’s like it’s not good. Like, like what? Drugs, no, what else could it be. Are getting natives, no, alcohol, no, so …”.
[31] After this exchange, one of the officers asked Mr. Sauve: “Like, did, did the talk about the gun ever come up, was there like listen that’s a piece of whatever, you don’t like, did he mention it in passing or just kinda told you to stay quiet about it or”. Mr. Sauve responded: “Well, no, he said it as a joke at one point of what I thought it was but …”. He said he did not take it seriously. The officer said to him: “But he kinda gave you the impression that it wasn’t smokes, it wasn’t, it wasn’t booze. Did it look like he was pointing towards maybe a piece or”, and Mr. Sauve replied: “It could be yeah, quite easily”. The officer asked if this made him nervous, and he said “Yeah, of course, of course it would”. The officer suggested it would make him nervous too, and said, “You know, you taking a little bit of risk here”. Mr. Sauve replied, “It’s a big risk, yeah.”
[32] Further into the statement, Mr. Sauve said that the backpack belonged to him, and he was sure it was empty “on the way there”. He also talked about contact with people in a car in the vicinity of the gas station as they arrived, and that at one point he went over to the shoreline across the road. He acknowledged seeing the boat in the water.
[33] He later elaborated on these comments. He said the car parked beside them when they pulled into the gas station. Then he said: “Buddy got out of the car, went across the street. He said come with me. I’m like what the fuck, no. I need gas. He says no, just come here for a second. So I walked over to the edge of the road. He said what the fuck are you doing? I’m like, oh, I’m going to get fucking gas. He’s like okay. So I go back. Go towards the car where my bike was parked beside the black car … and gave buddy my bag there …”. He said his “buddy” went into the store and the next thing he knew he was being arrested.
[34] He then said that he had seen his “buddy” go into the black car, after which he went into the store while Mr. Sauve filled his bike up with gas. When he got arrested, by the time he turned around, he said the car was gone.
[35] The discussion returned to Mr. Sauve’s knowledge about the gun at a later point:
Sauve: I honestly did not know exactly what we were coming down here. I had assumptions just
II: For sure
Sauve: anything else but
II: And I don’t think you knew exactly
Sauve: I didn’t (laugh)
II: Exactly, like the exact type of
Sauve: I probably would in a game or something like that ____ was
II: Well listen, I don’t think you knew exactly what type of gun it was but I think you probably had an idea that it was a gun.
Sauve: _____ alright, I could have thought so, yeah for sure.
II: So knowing that, you know what I mean
S: Um, um
II: Like you probably have conversations about it
S: Um, um
II: You’re a young guy
S: I also this I didn’t know whether to take it seriously.
II: So when he told you it was a gun, you weren’t sure
S: (giggle) he didn’t turn around and say, we’re gonna get a gun.
II: Right.
S: Right, I just assume that, that’s probably what it was by the way he was talking and he was making jokes here and there and, I don’t know. … [emphasis added]
[36] The officer asked Mr. Sauve once more to describe his conversation with Mr. Stewart on the bike about what they were going to pick up. Mr. Sauve said: “… I just kept asking what, where, what could it be and he just kept saying, no, no, no. …”. He later said that if he had known for sure what they were going to get, he’d have bailed out. He said he didn’t think Mr. Stewart wanted a gun because he was in danger, and suggested it was probably for the money in re-selling it (something about which he had speculated earlier in the interview), or maybe to do someone else a favor.
[37] Then, there was this exchange:
II: Um, um. So when he tells you that he’s coming to get a gun, does he, like did he tell you the guy he’s meeting up with or how much it’s going to cost him
Sauve: No.
II: to grab it?
Sauve: Absolutely nothing. I was just there for one purpose and that was to drive.
[38] Finally, there was this exchange:
Sauve: I already said that once, I was asking him what are we going to get and he said
II: His answer’s what
Sauve: Well it’s pretty much of, everything I’ve asked him if we’re gonna get was a no.
II: Alright and then eventually did he say like
S: No, he didn’t say anything
II: So how did you assume it would be a gun?
S: Because every questions I was asking him is just no and no and you know and then I left it at the last and then I didn’t bother asking after I just like get it done, right? [emphasis added]
[39] Even later, Mr. Sauve clarified that he was “kind of intrigued” about what they were going to get, and said he was “kind of asking him along what it was and I was asking questions. Are we gonna get drugs, are we gonna get this or that and he’s no, no, so”. He said he did not know exactly what they were going to get until the police officer came out of the store and arrested him for possession of a weapon. He said that he had a “gut feeling” about the questions he was asking and the answers he was getting, and that the “whole thing didn’t feel right” to him.
Analysis
[40] In my view, the statements made by Mr. Sauve during the videotaped statement demonstrate that he was wilfully blind to the fact that he was coming to Cornwall to pick up a firearm. In effect, he had knowledge that this was the item he was picking up.
[41] I arrive at this conclusion without reliance on any of the additional utterances to police prior to the videotaped statement which were admitted into evidence. The videotaped statement, in conjunction with the observations of the officers as to Mr. Sauve’s circumstances and conduct upon first observing him through to his passing the bag to Mr. Stewart, satisfy me beyond a reasonable doubt that he was wilfully blind that he was picking up a gun.
[42] I arrive at this conclusion because it is clear from the statement that Mr. Sauve understood that he was coming to pick up something illegal. It is clear that he made various inquiries about what the item was, and excluded the possibility that it was other types of contraband such as drugs, cigarettes, or alcohol. His statement makes clear that upon being told these were not the items he and Mr. Stewart were going to pick up, he consciously adverted to the probability that the item was a gun, and deliberately chose not to ask for confirmation that this was the item they were going to get. This state of mind is squarely within the formulations of wilful blindness outlined in the case law. In the language of Duong, Mr. Sauve’s statement shows “[a]ctual suspicion, combined with a conscious decision not to make inquiries which could confirm that suspicion”. This is equated in the eyes of the criminal law with actual knowledge, and I find the Crown has proved this element of possession beyond a reasonable doubt.
[43] I arrive at this conclusion after consideration of the argument advanced by Mr. Sauve that the statements he made on video were the product of leading questioning by the officers, and that he may have answered without thinking. While the officers were often leading in their questioning, having considered the statement as a whole, I do not have a reasonable doubt that the statements made by Mr. Sauve about his knowledge of what he was involved in are unreliable because of his suggestibility during the interview. Nor do I find his statements were ambivalent, or unclear. The interview shows Mr. Sauve’s evolving narrative of the extent of his knowledge. He resisted all attempts by the officers to suggest that he and Mr. Stewart must have expressly discussed the gun, and was ultimately both consistent and clear in his account that he arrived at his knowledge about the gun through a conversation with Mr. Stewart where all other illegal items were ruled out by Mr. Stewart after questioning by Mr. Sauve.
[44] I have also considered the defence argument that Mr. Sauve was only reckless, and not wilfully blind. As I have explained, in my view, his state of mind went beyond recklessness. The evidence went far beyond the fact that Mr. Sauve knew he was picking up something illegal. The evidence shows that Mr. Sauve ruled out all possibilities about what he and Mr. Stewart were picking up to the point where, in his own words, he “assumed” he would be picking up a gun, and deliberately did not inquire further upon arriving at that conclusion. As I have said, I find this is tantamount to actual knowledge. This was not recklessness.
Has the Crown proved beyond a reasonable doubt that Mr. Sauve had control over the handgun?
[45] Mr. Sauve urges that if the court finds that he had knowledge of the gun, the Crown has not proved the element of possession because it has not proved beyond a reasonable doubt that Mr. Sauve had control over the gun.
[46] While I have considered that Mr. Sauve had physical possession of the knapsack containing the gun for a brief period of time, I am satisfied beyond a reasonable doubt that during that period of time he had control over both the backpack and the gun. I arrive at this conclusion in view of the following facts. First, the evidence shows that Mr. Sauve owned the backpack in which the gun was found, and his statement confirms that he brought the backpack with him knowing he was coming to Cornwall to pick something up. There is an inference in all the circumstances that he intended to use the backpack, or at least to allow it to be used by Mr. Stewart, to carry the item back to Ottawa. Secondly, the evidence of the officers, which I accept, is that Mr. Sauve had the backpack with him across the road from the gas station on the river embankment, and that he carried it from that location to the gas station parking lot before handing the backpack to Mr. Stewart.
[47] Third, while Mr. Sauve does not admit that he received an item from anyone when he had physical possession of the backpack, I do not believe this account nor does it give rise to a reasonable doubt that the gun was in the backpack when Mr. Sauve physically possessed it. I find the evidence as a whole satisfies me beyond a reasonable doubt that the gun was in the backpack when Mr. Sauve was observed by the officers carrying it up the embankment. The officers observed him handing the bag off to Mr. Stewart, who then proceeded into the gas station store, where the search which located the handgun and ammunition in the backpack occurred. Given the evidence of the officers’ observations, which I accept, there was no time or contact with any other individual which would have permitted an opportunity for the gun and ammunition to be placed in the backpack.
[48] I do not see anything in the evidence which would permit a conclusion that Mr. Sauve was acting pursuant to a public duty, or that he was in innocent physical possession of the backpack. I am satisfied beyond a reasonable doubt that he exerted physical control over the backpack with the knowledge that it contained a gun, and that his conduct in passing the bag to Mr. Stewart was not consistent with an innocent physical possession. Rather, based on his statements in the videotaped interview indicating his knowledge he would be involved in picking up a firearm with and at the request of Mr. Stewart, I find it was consistent with an intention to have joint possession. In the language of Greco J. in Bier, the evidence satisfies me that Mr. Sauve had authority over the backpack containing the gun, and that he treated these items as an owner “would be able to deal with the thing, to the exclusion of all others”.
[49] In view of my findings above, I turn next to whether the additional elements of each of the offences charged have been proved against Mr. Sauve, and as against Mr. Stewart in relation to count 5. I will address the counts as they appear on the indictment.
Issue #2: Has the Crown proved that Mr. Sauve possessed a weapon for a dangerous purpose
[50] Mr. Sauve is alleged to have possessed the handgun for a purpose dangerous to the public peace. The Crown says there is no other reason to have a handgun, and relies on this inference as the basis to find Mr. Sauve had a dangerous purpose in possessing the handgun. The defence argues that the Crown has not proved Mr. Sauve had a dangerous purpose when he possessed the gun.
[51] The Crown has not provided any cases where possession of a weapon in circumstances similar to those at issue here resulted in a conviction. Indeed, a great deal of the case law focuses on what may be inferred based on how the weapon is used.
[52] Here, the gun was not used in any way, nor is there any evidence that Mr. Sauve intended to use it. There is no evidence that prior to taking possession of the handgun, Mr. Sauve had a dangerous purpose: R. v. Proverbs, 1983 CanLII 3547 (ON CA), [1983] O.J. No. 155 (C.A.). To the extent that his purpose in possessing the gun can be determined, it appears that it was to transport the gun to Ottawa. The only evidence adduced as to Mr. Sauve’s purpose suggests he intended that he would assist Mr. Stewart with the transportation of the gun to Ottawa, at which point Mr. Stewart would retain control of the gun.
[53] While Mr. Sauve may have had an illegal purpose for his possession of the handgun, not all illegal purposes are dangerous. I am not satisfied beyond a reasonable doubt that Mr. Sauve possessed the gun for a dangerous purpose. He will accordingly be acquitted on this count.
Issue #3: Has the Crown proved Mr. Sauve possessed a prohibited firearm with readily accessible ammunition without the required authorization or licence
The legal principles
[54] To prove an offence under s. 95 of the Code as framed here, the Crown must prove beyond a reasonable doubt that the accused possessed a prohibited firearm, that there was readily accessible ammunition that could have been discharged in the firearm, and that he or she did not have a license or authorization which permits such possession: R. v. Nur, 2013 ONCA 677, [2013] O.J. No. 5120 (C.A.) at para. 46.
[55] The Court of Appeal confirmed in Nur that “[t]he mens rea of a s. 95 offence, as with most possession-based offences, consists of knowledge or wilful blindness of the existence of the elements of the actus reus”. Where the offence is particularized as in this case, and relates to possession of an unloaded firearm, the Crown must additionally prove that the accused knew or was wilfully blind that useable ammunition was readily accessible: see Nur at para. 48. However, the Crown need not prove that the accused knew how the firearm was classified: R. v. Williams (2009), 2009 ONCA 342, 244 C.C.C. (3d) 138 (Ont. C.A.) at para.18.
The principles applied
[56] As a result of admissions made during the trial, there is no issue that the handgun seized by police is a prohibited firearm. The accused further concedes that he was not the holder of an authorization or licence with respect to any kind of firearm. As the ammunition was found in the same compartment of the backpack as the handgun, I find that the ammunition was readily accessible together with the firearm. Given these findings, the Crown has established the actus reus of the offence.
[57] I am not satisfied beyond a reasonable doubt that the Crown has proved the accused had the necessary mens rea to be found guilty of this offence. I have a reasonable doubt that the accused either knew or was wilfully blind that he was also picking up ammunition in addition to the firearm. While I have found that Mr. Sauve was wilfully blind that he was in possession of a firearm, I am not satisfied that the evidence giving rise to this finding also establishes that he would have known that the firearm would be provided to him unloaded, and with readily accessible ammunition.
[58] I arrive at this conclusion because the officers who questioned Mr. Sauve during his videotaped interview asked no questions about his knowledge of the ammunition, and no evidence was given suggesting that he would have known or been wilfully blind to what additional items might have been given to him along with the firearm. I will comment later in my reasons about the limitations on my findings as to how the gun came to be in Mr. Sauve’s possession. For the purposes of my analysis relating to this issue, it is sufficient to say that given the absence of evidence as to precisely how the firearm and ammunition were received by Mr. Sauve, or any statements during his videotaped statement which would support a finding that he also knew or was wilfully blind that he would be receiving ammunition, I am not satisfied beyond a reasonable doubt that the Crown has proved that Mr. Sauve either knew or was wilfully blind to the fact that he had received the firearm in an unloaded condition, with readily accessible ammunition.
[59] Accordingly, Mr. Sauve will be acquitted on count 2.
Issue #4: Has the Crown proved Mr. Sauve transported a prohibited firearm in an unsafe manner contrary to [s. 86(2)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec86subsec2_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)?
The legal principles
[60] The offence of careless storage may be made out upon proof beyond a reasonable doubt that the accused transported a firearm in a manner contrary to the applicable regulations. Necessarily, the Crown must prove that the accused possessed the firearm.
[61] With respect to mens rea, the offence is one of strict liability: R. v. Porter (2004), 2004 BCSC 1520, 193 C.C.C. (3d) 254 (B.C.S.C.), affd 2007 BCCA 39, 221 C.C.C. (3d) 309 (B.C.C.A.), leave to appeal to S.C.C. refused [2007] 2 S.C.R. vii, 374 N.R. 393n. The Crown need not prove that the accused was negligent. However, the defence may raise a reasonable doubt with respect to mistake of fact or by raising the defence of due diligence in complying with the regulation: R. v. Smillie (1998), 1998 CanLII 7050 (BC CA), 129 C.C.C. (3d) 414 (B.C.C.A.).
The principles applied
[62] I have already found that the Crown has proved Mr. Sauve possessed the handgun. There is no issue that this handgun is a prohibited firearm within the meaning of the Code.
[63] Regulation SOR/98-209 sets out the permissible conditions for transport of a prohibited firearm. I am satisfied beyond a reasonable doubt that the manner of the handgun’s storage in the backpack did not comply with the regulation when Mr. Sauve transported it from the vicinity of the river embankment to the gas station parking lot. In particular, I find that the gun had not been rendered inoperable by means of a secure locking device, and it was not in a locked container. No evidence was led to suggest Mr. Sauve had been diligent in complying with the regulation, and no other defence was advanced by him.
[64] Accordingly, Mr. Sauve will be found guilty on count 3.
Issue #5: Has the Crown proved that Mr. Sauve possessed a prohibited firearm obtained by the commission of an offence
The legal principles
[65] To obtain a conviction under s. 96(2) of the Criminal Code as framed here, the Crown must prove beyond a reasonable doubt that the accused possessed a prohibited firearm, and that he knew that the firearm was obtained by the commission of an offence. The principle of “recent possession” is available to the Crown to prove the accused’s knowledge that the firearm was obtained by the commission of an offence.
The positions of the parties
[66] With respect to the elements of count 4, the defence says there is no evidence the handgun which Mr. Sauve possessed was obtained by the commission of an offence. The Crown says that if I accept there was a transaction at the water by which Mr. Sauve obtained the gun, I should infer that the accused would have to know that the people passing on the weapon acquired it illegally. The circumstances could not allow the accused to think otherwise.
The principles applied
[67] As I have found that Mr. Sauve possessed the prohibited firearm, the issue on this count lies in whether the Crown has proved that he did so knowing that the firearm had been obtained by the commission of an offence.
[68] No evidence was led during the trial that the handgun was stolen, let alone recently stolen. The Crown does not seek to rely on the doctrine of recent possession to support its proof of that element of the offence. There is also no evidence that the handgun was used in any other kind of offence.
[69] The Crown argues that the accused must have known the firearm he was picking up was obtained by the commission of an offence given the circumstances in which he received it. I presume from this argument that the inference suggested is that the accused must have known he was picking up a gun that had been obtained by the offence of weapons trafficking. While that may be a logical inference from the circumstances, it is not the only inference available. In the absence of any additional evidence on this issue, I am left with a reasonable doubt that Mr. Sauve had knowledge that the firearm was obtained by the commission of an offence.
[70] As the Crown has not proved this element of the offence beyond a reasonable doubt, Mr. Sauve will be acquitted on this count.
Issue #6: Has the Crown proved that each accused transferred a prohibited firearm knowing he was not authorized to do so?
[71] In 2012 when the accused were charged, section 99(2) of the Code made it an offence to transfer, whether or not for consideration, a firearm, if that person knew he was not authorized to do so at law.
[72] As regards Mr. Stewart, I have already found that the evidence is insufficient to prove he knowingly possessed a firearm. Given my conclusions in that regard, notwithstanding that possession is not an element of the offence that must always be proved under s. 99 of the Code, I find that in the absence of evidence that proves beyond a reasonable doubt that Mr. Stewart knew there was a firearm in the backpack he received from Mr. Sauve, the evidence is necessarily insufficient in this case to show he participated in a transfer of the firearm, either as a principle or as a party. Accordingly he is found not guilty on count 5.
[73] Given my finding that Mr. Sauve knowingly possessed a firearm in his backpack when he returned across the road to the gas station parking lot, the admissions that the firearm is a prohibited firearm that Mr. Sauve had no authorizations or licences in respect of any firearms, the issue to be determined with respect to this count is whether the Crown has proved beyond a reasonable doubt that Mr. Sauve transferred the firearm.
The legal principles
[74] Section 84(1) of the Criminal Code defines the term “transfer”. According to that provision, “transfer” means “sell, provide, barter, give, lend, rent, send, transport, ship, distribute or deliver”.
[75] The meaning of the term “transfer” has been considered by other courts, including the Supreme Court of Canada. In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, the court found that the simple movement of a firearm from one place to another would not meet the definition of transfer insofar as proof of an offence pursuant to s. 100(1) was concerned. It said that the wording of the section, and the phrase “whether or not for consideration” in describing the transfer, confirmed that Parliament intended to criminalize only transport for purposes that implicated another person: see Grant at paras. 142-147. Consequently, Mr. Grant’s admission that he was “dropping off” the gun he possessed somewhere “up the road”, was not sufficient to prove he was transporting the gun, and therefore engaged in its transfer. The Court expressed reluctance to label his conduct as “trafficking”.
[76] In R. v. Taylor, [2012] O.J. No. 6281 (S.C.J.), a case more similar to the case at bar, Thorburn J. considered whether the Crown had proved the accused had transferred a firearm when he was in the process of handing the gun over to another individual at the time of his arrest. In that case, the accused had agreed to hold two firearms for another individual, and was arrested while in the process of handing them over to a second individual in order to return the firearms to the first man.
[77] Thorburn J. considered the meaning of the words “deliver” and “provide”, both of which are included in the definition of “transfer” in s. 84(1) of the Code. She wrote: “[t]he Oxford English Dictionary defines “deliver” as “bring and hand over (a letter or goods) to the appropriate recipient”. The word “provide” is defined as “make available for use; supply”. Having regard to these definitions, the court found that being in the process of handing the guns over to another person was sufficient to meet the definition of transfer, and convicted the accused under s. 99 of the Code.
The positions of the parties
[78] The Crown says a transfer occurred when Mr. Sauve gave the backpack to Mr. Stewart, knowing that it contained a firearm. In defending against this count, Mr. Sauve relies on his argument that the evidence is insufficient to prove he “possessed” the firearm, which argument I have addressed, and otherwise argues that the Crown has not met its onus of proof.
The principles applied
[79] I am mindful of the contextual and purposive approach suggested in Grant for assessing whether the Crown has proved a transfer has occurred, and I apply it in considering the facts of this case. Given the facts, and considering the evidence demonstrating Mr. Sauve’s knowledge of the nature of the activity he was engaging in, I am satisfied beyond a reasonable doubt that the Crown has proved that Mr. Sauve engaged in a transfer.
[80] I find that after coming up from the river embankment, and crossing the road, Mr. Sauve handed the backpack to Mr. Stewart, knowing that it contained a firearm. I find that he did so pursuant to his agreement to assist Mr. Stewart in picking up a firearm and transporting it to Ottawa. In these circumstances, Mr. Sauve’s act in providing the backpack containing the firearm to Mr. Stewart meets the definition of either “deliver” or “provide”, as discussed in Taylor.
[81] Mr. Sauve’s conduct in providing the backpack containing the firearm to another person distinguishes his conduct from that at issue in Grant, where the firearm was not given to anyone else by the accused. The evidence here is that Mr. Sauve agreed to participate in a plan to pick up a firearm in the Cornwall area, and return with it to Ottawa. While there may be more morally culpable facts to be found in the case law dealing with offences of this kind, these facts place Mr. Sauve’s conduct squarely within the wheelhouse of weapons trafficking. Unlike in Grant, I am unable to conclude that Parliament did not intend for Mr. Sauve’s conduct to be considered weapons trafficking.
[82] In view of my finding that the evidence supports a finding that Mr. Sauve is liable as a principal, it is unnecessary to address additional argument to the effect that Mr. Sauve is guilty as a party because he aided and abetted the individuals in the boat in the commission of the offence of weapons trafficking.
[83] While this means that findings of fact regarding when and from whom the gun was obtained are not strictly necessary in the circumstances, for the sake of clarity, and for the purposes of sentencing and/or appellate review, I confirm that I am satisfied that given Mr. Sauve’s comments in his videotaped statement, at least two scenarios for the acquisition of the firearm are possible. Mr. Sauve talks in his videotaped statement about meeting another individual in a car who parks at the gas station when they first arrive there. His statement indicates that at some point, he was asked to go across the road with the person from the car. I am unable to conclude on the evidence before me precisely when, or from whom, Mr. Sauve received the firearm. While it may be a logical inference, I am unable to conclude beyond a reasonable doubt that Mr. Sauve must have obtained the firearm from the individuals in the boat given that an additional person appears to have been involved in the transaction. I am satisfied, however, that he received the firearm from one of these individuals, after his arrival at the gas station, and prior to being observed by the officers.
[84] To summarize my findings of fact as they pertain to Mr. Sauve, I am satisfied beyond a reasonable doubt based on Mr. Sauve’s statements in his videotaped interview that he and Mr. Stewart were travelling to the Cornwall area for the purpose of picking up the firearm, and that they did not carry it with them from Ottawa. As I have explained previously, I am satisfied beyond a reasonable doubt that by the time the officers observed Mr. Sauve coming up the river embankment and crossing the road to the gas station, Mr. Sauve possessed the firearm.
[85] Notwithstanding that the Crown has not proved precisely how Mr. Sauve received the firearm, for the reasons I have given, I find that the Crown has proved all the elements of the offence under s. 99 of the Code beyond a reasonable doubt. Accordingly, Mr. Sauve is found guilty on count 5.
Madam Justice Laurie Lacelle
Released: November 7, 2016
CITATION: R. v. Sauve and Stewart, 2016 ONSC 6896
COURT FILE NO.: CR13-73
DATE: 2016/11/07
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JARRETT SAUVE
- and –
JUSTIN STEWART
Respondents
REASONS FOR JUDGMENT
Madam Justice Laurie Lacelle
Released: November 7, 2016