CITATION: R. v. Foster, 2016 ONSC 7914

COURT FILE: CRIMJ(P) 112/14

DATE: 2016 12 19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. D. D’Iorio, for the Crown

• and -

TROY FOSTER

A. Monaco, for the Defence

HEARD: October 12, 17-20, 24-25, 31, 2016 at Brampton

REASONS FOR JUDGMENT

HILL J.

INTRODUCTION

[1] Troy Foster stands charged with unlawful possession of a firearm (s. 91(1) Code) and with carrying a concealed weapon (s. 90(1) Code) – allegations to which he pled not guilty.

OVERVIEW

[2] When Troy Foster, a passenger in a minivan, was arrested by the police, he had a loaded firearm tucked into the waistband of his pants.

[3] The accused’s position at trial was that he was not in possession, as a matter of fact and law, of the restricted firearm – the weapon was suddenly put in his custody by the vehicle driver at the time that the police stopped the van.

[4] The prosecution called as witnesses at trial the minivan driver, Hubert Gordon, and seven police witnesses. Mr. Foster testified on his own behalf and called Tracy Archer as a defence witness.

[5] The evidence at trial centered on two venues – a house party at a residence in Brampton and a vehicle stop minutes away by four police cars.

THE FACTUAL CONTEXT

The House Party

[6] Sixty-three-year old Hubert Gordon testified that, because of various illnesses, he has been on a disability leave from his employment as a forklift operator. To the witness’ recall, in August of 2013, he was on social assistance before being granted disability compensation. The witness agreed in his evidence that he gambles. He claimed to have no gambling debts.

[7] Hubert Gordon informed the court that on August 10/11, 2013, he attended a house party in Brampton where Rohan Taylor lived. He picked Troy Foster up at his home and drove him to the party. Although he had been to the accused’s residence before, the witness could not at trial recall the address. Gordon testified that he was driving a van operated by his brother-in-law, Chuck Cleverdon. The vehicle was older and silver-gray in colour. He had operated the van previously. He was certain that the van’s windows were not tinted.

[8] On Gordon’s evidence, he and the accused had been friends for some years – they talked, met with friends, and they cooked and drank together. Mr. Gordon testified in-chief that he and the accused had never worked together.

[9] As to the suggestion in cross-examination that he went to the party alone, Mr. Gordon said to defence counsel: “You’re amazing … Don’t make up story”.

[10] Mr. Gordon was unable to recall when he and the accused arrived at the party although it was before midnight. Rohan Taylor was a friend of theirs.

[11] According to Mr. Gordon, while at the party he was talking to people in the backyard and drinking alcohol. He has no recall as to what he was drinking or in what quantity. He was not drunk. He did not eat food on this night. He has no recall whether there was a dinner at the party. He knew some people at the party. While he did not remain in Mr. Foster’s company during the party, he spoke to him a few times during the evening.

[12] Cross-examined as to the limits of his recall of the night of August 10/11, 2013, Mr. Gordon acknowledged that he cannot recall all that occurred because he is “old” and on account of the passage of time. Consumption of alcohol at the party, in his view, has not interfered with his memory.

[13] Mr. Gordon informed the court that because it was getting late, perhaps about 3:00 a.m., he sought out the accused telling him that they should “roll out”. The only reason for leaving was because it was late. The accused agreed and they got into the van, parked on the street, with Mr. Gordon driving. He intended to drive the accused home. Under cross-examination, Mr. Gordon rejected the suggestion that after he argued with Mr. Taylor he was asked to leave.

[14] In cross-examination, Mr. Gordon denied that during his gambling he met unsavoury persons and as a result had a firearm for his personal protection. He had no knowledge that persons he associated with had guns. The witness maintained that on August 10/11, 2013, he did not have a firearm in his possession while at the party.

[15] In cross-examination, Mr. Gordon variously stated that he had no prior criminal record, could not recall whether he did, and, that he was convicted of a domestic assault and spent 90 days in jail and was fined on another occasion for a domestic assault for which he pled guilty although innocent of the charge.

[16] In his testimony, 32-year-old Troy Foster acknowledged a prior criminal record for fail to comply with a recognizance (2006), robbery (2006), as well as a fraud ‘over’ and uttering a forged document (2011). Mr. Foster informed the court that he has operated his own construction business since 2009.

[17] Mr. Foster testified that during the day of August 10, 2013, “an acquaintance”, Rohan Taylor, called to invite him to the birthday party for his daughter, Ronique. He took a taxi to the party stopping on route to purchase a bottle of brandy. He did not accompany Hubert Gordon to the party. To his knowledge, Gordon did not know where he resided.

[18] The accused testified that he first met Hubert Gordon through Rohan Taylor. The witness described Gordon as an acquaintance, not a good friend. He considered Gordon to be a non-stop partier who was always drinking. He would chill with old-school gangsters who all liked to act tough. According to the accused, in August 2013, Mr. Gordon gambled daily at an off-track betting facility. It was the witness’ belief that Gordon owed people a lot of money from borrowing money to gamble. On one occasion, Gordon borrowed $100 from him which was never repaid.

[19] Under cross-examination, Mr. Foster suggested that while “everyone knows” that Gordon is a gambling addict, he had only personally seen him betting a handful of times over the years.

[20] Mr. Foster informed the court that at times when Hubert Gordon was desperate and looking for work, he would employ him for odd jobs.

[21] Mr. Foster testified that when he arrived at the birthday party at about 9:00 p.m. he saw about four male persons out front who he knew including Mike, the owner of the house at 51 Garden Ave.

[22] According to the accused, he spent time talking to persons he knew. People were mingling about. He went downstairs at one point with Mike to discuss a possible basement renovation. He observed Hubert Gordon and other older males sitting and talking at the rear of the residence. After “chilling” there for 10 to 15 minutes, he headed to the side of the house in the area of the shed where younger guys his age were drinking and smoking marijuana. He also obtained food from the barbeque on the deck in the backyard.

[23] In his in-chief evidence, Mr. Foster stated that he was drinking alcohol. He eventually became “tipsy”. In cross-examination, the witness stated that after drinking for hours he was drunk. At the party, he smoked two marihuana blunts and became “high”. Mr. Foster agreed that his alcohol consumption will have negatively impacted his memory of some events of the night.

[24] According to Mr. Foster, at some point as late as midnight to 1:00 a.m., when he saw Melissa, Mike’s sister, coming along the side of the house toward the front, he pulled her in to chat by the shed. They “chit-chatted” for a bit and began kissing. In Mr. Foster’s words, “I was trying to get laid that night”. They continued making-out in the shed with some of the younger guys having moved away to give them privacy.

[25] Mr. Foster rejected the suggestion in cross-examination that he was in possession of a loaded firearm at the party.

[26] On Mr. Foster’s evidence, at a point he heard a loud shout come from the backyard and an argument in Patois. Words shouted included, “Fuck you. Leave me alone. I’m not drunk”. It was his belief that this was said by Hubert Gordon who has a crusty-sounding voice. Running to the rear of the house, he observed Gordon on the deck waving his hands and shouting through the rear sliding door. An argument appeared to be underway. The accused testified that he heard Taylor shouting, “Get out of here. You’re drunk”. Both Gordon and Taylor looked really angry.

[27] Mr. Foster testified that believing that a fight was imminent, he decided to lead Gordon away and to break up what was going on. He grabbed hold of Gordon, attempted to calm him down, and said words to the effect: “We have to go. Let’s get out of here.”

[28] On the accused’s evidence, he walked Gordon to the front of the house and to the parked van, essentially forcing him to leave. Seeing Melissa by her car, he raised his arms gesturing to her, in an apologetic-like shrug, to indicate that he could not go to her house which had been their plan.

[29] Mr. Foster testified that they entered Gordon’s Dodge Caravan vehicle which was an ugly purplish or purple-green colour. The witness testified “I don’t know colours” and also informed the court that because it was so long ago he could not really remember the colour. Subsequently, in his evidence, the witness appeared to be sure the van was purple. He recalled the van having tinted windows with the back windows being a little darker. This was regular tinting as one could buy the vehicle “off the lot” – the tinting “wasn’t that dark”. The van had regular front seats with headrests. These seats had 12 to 18 inches of separation. There was no centre console.

[30] In his in-chief evidence, Mr. Foster stated that he did not want Hubert Gordon driving when he was drunk. In cross-examination, the witness gave this evidence:

Q. You didn’t care very much about Mr. Gordon as of August of 2013 did you?

A. No.

Q. He was not a person who mattered a great deal to you?

A. No.

Q. It doesn’t matter to you what Mr. Gordon’s doing. It’s not like you’re responsible for him or you brought him to the party, as I understand it.

A. That’s true. I didn’t bring him to the party, yep. That’s true.

Q. You don’t think very highly of him? You don’t think he’s a very decent, upstanding person?

A. No.

Q. At this point in time?

A. No.

Q. I think you said you didn’t feel very strongly about him one way or the other?

A. Yeah, I guess you could say that.

[31] In cross-examination, Mr. Foster added that he had no ill feeling toward Mr. Gordon. He wanted to diffuse the situation by taking Gordon away from the party. In his view, Gordon was also drunk, but not very drunk:

I had seen him operate his car drunk. I’ve seen him operate drunk so very intoxicated, I don’t think it was very intoxicated but he was intoxicated.

He wasn’t the soberest guy but he wasn’t very, very drunk where he couldn’t drive …

This guy drives like this all the time… He does this all the time.

[32] Mr. Foster was unable to say whether he or Gordon was more drunk. He decided to be “a good friend” and make sure that Gordon got home. He was concerned about Gordon’s safety – by talking to Gordon on the drive he would keep him from falling asleep. In cross-examination, Mr. Foster gave this evidence:

Q. So it’s more important that Mr. Gordon gets home safe, despite the fact that he’s driving drunk than it is for you to go off and enjoy an evening of being intimate with Melissa. That’s your evidence?

A. Yes. You can say that, yes.

[33] Tracy Archer, a 26-year-old, currently employed as a part-time receptionist for an optometrist, attended the house party at 51 Garden Ave. on August 10, 2013. Ms. Archer has a prior criminal record, principally for shoplifting thefts which she explained as stealing to eat when she was younger and living on her own.

[34] Ms. Archer’s boyfriend, Neal Jones, had worked for a time for Troy Foster. Mr. Jones died of a heart attack in May 2016.

[35] According to Ms. Archer, she only briefly met Mr. Foster a couple of times. She had seen Hubert Gordon’s name and picture on her boyfriend’s FaceBook page and was introduced to “Gordon” at Caribana on the first weekend of August 2013.

[36] On the August 10 date, Ms. Archer and Mr. Jones attended the birthday party of Rohan Taylor’s daughter. It was to be a “stop by” for a short time before the couple went out for drinks.

[37] Ms. Archer’s recall is that they arrived at the party at about 11:30 to 11:40 p.m. on August 10, 2013. She knew no one there except Rohan. Adults and children were present.

[38] Ms. Archer testified that after spending a few minutes on her own, she went to the home’s kitchen to get an ice tea. While there, she heard a commotion or argument at the back of the residence. When she moved to the living area to see what was going on, she observed an ongoing argument between Rohan and Hubert Gordon.

[39] Ms. Archer informed the court that Rohan was inside the home looking out through a sliding door to an outside back deck where Gordon was standing. The screen part of the door was partially open. When she moved to secure an unobstructed view, she saw Mr. Gordon, who she described as an old and angry individual, drunk and wasted and incoherently slurring his words, speaking loudly in Patois directed toward Rohan. He said words to the effect of, “Why me … Why are you bothering me?” She clearly saw the black or gray handle of a handgun outside Gordon’s pants and the outline of the rest of the firearm in his pants. She was certain of what she was seeing. She was in shock and stared hard for about five seconds, unable to believe her eyes.

[40] Ms. Archer testified that with the ongoing angry and accusatory tones of the argument, “it didn’t look good”. It was a bad situation. She was concerned that anything could happen including people starting to shoot. As a result, she found her boyfriend at the front of the house and said words to the effect of, “We’re leaving. This guy has a gun”.

[41] The witness informed the court that she had not seen Mr. Foster at the party before she departed with Mr. Jones at what she described as “12:0 something”. They had only been at the house for a total of about 20 minutes.

[42] Ms. Archer testified that after going for drinks with her boyfriend at a location about 20 minutes’ drive from the Garden Ave. residence, and staying at the bar for 30 to 40 minutes, they returned back to his apartment by about 2:00 a.m.

Police Surveillance of the House Party

[43] On August 10, 2013, at 11:58 p.m., Detective Sean Gormley, a supervisor in the Peel Regional Police Service (PRPS) Street Crime and Gang Unit, received information from PRPS Constable Rodney who related information he had received from a confidential informant.

[44] Included in the information conveyed by Const. Rodney was that there was reason to believe that two male persons at a house party at 51 Garden Avenue, in Brampton were believed to be in possession of a firearm. A description of these individuals was also provided. In addition, these circumstances were linked to the firearm perhaps being in a vehicle with Ontario licence plate # BRAF 830.

[45] Det. Gormley phoned PRPS Const. Brady McEachern of his unit and requested that he undertake database checks relating to the targets and vehicle.

[46] Shortly after midnight, Det. Gormley quickly assembled what was described in the evidence at a STEP (Strategic Tactical Enforcement Policing) deployment of six PRPS officers to assist in the investigation. This included McEachern as well as PRPS Consts. Phil Hintzen, Lawrence Lowe, Damien Savino, Brent Wozny, and Sean Osborne. Some of these officers were borrowed from PRPS Criminal Investigation Bureau offices.

[47] Det. Gormley drove alone to the scene of the Garden Ave. address in a residential area of north Brampton arriving at 12:15 a.m. on August 11, 2013. The officer was operating a “low profile” police vehicle, a Toyota Venza, described as a SUV cross-over, in which occupants sit higher off the road surface than in an ordinary sedan. The vehicle was not readily recognizable as a police car although it contained a police radio, a siren, and was equipped with red and blue emergency flashing lights in the front grill and in a bar on the visor passenger side of the windshield. The toggle switches for the emergency equipment were readily accessible to the operator, generally in the front console area of the vehicle.

[48] Three two-officer low profile police vehicles, similarly equipped, also arrived in the immediate area of the Garden Ave. residence. Consts. Hintzen and Lowe were partnered in a Mazda 6, a small car. Consts. Savino and Wozny had been assigned to a Hyundai Sonata, a mid-sized four-door passenger sedan. Consts. McEachern and Osborne drove a GMC Traverse, a full-sized SUV, sitting high off the roadway but not as high as a pickup truck. This vehicle had emergency lights in its rear window.

[49] Const. Osborne described the back and side windows of the Traverse as tinted but not heavily tinted. One could see into the vehicle and he did not believe that the tinting really affected his ability to look out. Const. McEachern considered that the tinting, perhaps a 5% reduction from normal, only impacted a minor degree of his ability to see through the vehicle windows.

[50] While the other police vehicles remained nearby, only Det. Gormley kept direct surveillance on the detached house at 51 Garden Ave. from 12:15 a.m. to 2:01 a.m. He observed the vehicle of interest, a minivan, parked on the street just east of the residence. The officer observed vehicles parked on the street and lots of activity at the residence including people out front. He concluded that a function of some sort was underway at the home.

[51] The four police vehicles were in ongoing radio contact while waiting for a sign of the investigative targets.

[52] At 2:01 a.m., Consts. Hintzen and Lowe relieved Det. Gormley, taking up covert surveillance of the subject residence. Const. Hintzen observed the vehicle with plate # BRAF 830 parked near the home. It was a green Dodge Caravan. The officer had no note or recall as to whether any of the vehicle’s windows were tinted. Const. Lawrence recalled the minivan to be teal or green in colour. The constable noted lights on inside and outside of 51 Garden Ave., people milling about outside, and a number of vehicles parked at the home, all consistent with an ongoing house party.

[53] At 2:42 a.m., Consts. Hintzen and Lowe alerted other members of the surveillance team that the targets had left the residence and entered the minivan. Const. Hintzen observed an older male, who was not yelling or stumbling from apparent alcohol consumption, enter the driver’s seat of the van without any problem or difficulty. The officer saw the accompanying second person, a younger male, enter the front passenger seat. Const. Hintzen observed no evidence of a firearm being carried. Const. Lowe observed two black-skinned males leave the residence driveway. They appeared to match the descriptions he had been given of the targets.

Pursuit of the Minivan

[54] According to Mr. Gordon, it seemed like he had only driven “a few seconds” when his vehicle was stopped – “it happened so quickly” … “it happen[ed] so fast I didn’t know it was cops”. The van was deliberately boxed in by a number of cars. The witness did not think he had yet reached Williams Parkway. He saw no one in uniform and no flashing lights.

[55] Mr. Gordon recalled being pulled from the driver’s seat after he opened his door and ending up face down on the asphalt where he was handcuffed. To the witness’ recall, no police officer said anything to him during this event. He had no knowledge of a firearm in the van. He did not see a gun. He had not seen Troy Foster with a gun. He at no point passed a firearm to Troy Foster prior to the vehicle stop. He did not direct Foster to put the firearm in the glove compartment. In cross-examination, Mr. Gordon gave this evidence relating to an aspect of his post-arrest statement to the police:

Q. ...when the officer was reading the charges to you and your response was, “You didn’t catch me with a firearm...”

A. No they did not.

Q. You knew....

A. No I did not.

Q. Now, hold on a sec, sir, let me finish my question because I think you’re misinterpreting. You knew enough, in your head, from your own experience I guess, or whatever, that in order to be charged with possession of a firearm, you got to be found with a firearm, right?

A. Yes.

Q. So you knew that?

A. Yes. Who wouldn’t knew that? Even a baby would know that.

Q. All right. So you knew that to be charged with a firearm you had to actually have it on you.

A. If – if the cop hold you with a firearm you have to be charge. If you they don’t hold you with a firearm how can they charge you for the firearm – charge you with a firearm?

[56] The police vehicles, on Det. Gormley’s authorization, took up rotating surveillance of the minivan once it became mobile. At all times, the subject vehicle was kept in sight as it drove east on Garden Ave., north on Murray Street and then out of the subdivision eastbound on Williams Parkway.

[57] The operational plan was to execute a high-risk takedown with a box-stop leading to the arrest of the van’s occupants for unlawful possession of a firearm. A box-stop, a manoeuvre practiced by PRPS officers, involves a synchronized movement of police vehicles to surround a targeted vehicle in order to bring it to a forced stop. The intention was to execute the coordinated stop safely and quickly using the element of surprise to allow the police team to then rapidly swarm the van on foot to extricate its occupants before a firearm could be accessed and potentially used to resist the arrest team.

[58] In his testimony, Det. Gormley described the plan as dependent on the element of surprise – to get to the target vehicle occupants so quickly that they would have “no time” to become a threat to officer safety (“The advantage you have is the element of surprise and you don’t provide any time or opportunity for the occupants to do anything” that would endanger anyone’s safety). Any undue delay could risk an occupant accessing a firearm – a circumstance which would require the team to revert to a “call-out” procedure whereby a Tactical Team would be summoned to execute the extraction of the vehicle occupants or the officers initially on scene would order the occupants from the stopped and barricaded vehicle at gunpoint, command them to walk backwards to the officers who had taken cover, where the suspects would be put to ground for handcuffing and protective searches.

[59] Between 2:30 and 3:00 a.m., there was negligible traffic on Williams Parkway, a divided road with two eastbound and two westbound lanes. To the south of the eastbound lanes was a grass area and fencing beyond at the rear of residential backyards. Const. Wozny described the area as fairly dark. Detective Gormley testified that there were standard street lights on Williams Parkway.

[60] From Main Street (Highway #10) onward during the eastbound travel, Det. Gormley drove behind the minivan. Looking through the rear window of the van, the officer observed the “silhouettes” of the two occupants – their heads and shoulders. Being concerned about the risk posed by a firearm in the van, the detective paid attention to the occupants. He saw nothing out of the ordinary. If he had seen movement, this would have been significant to him.

[61] At 2:45 a.m., Det. Gormley called for the takedown when the van was east of Centre Street and still west of Kennedy Road.

[62] Immediately before the stop, with some ongoing radio communication, Const. McEachern moved the Traverse ahead of the minivan as it travelled in the curb lane. Det. Gormley’s vehicle was immediately behind the van and to his rear was the vehicle with Consts. Wozny and Savino. Const. Hintzen drove in the passing lane off the left rear corner of the van.

The “Take Down”

[63] Const. McEachern testified that, when he was approximately two car lengths ahead of the van with all police vehicles in position, he applied his brakes and almost simultaneously activated his vehicle emergency lights to get the driver’s attention. The constable described these LED lights as creating “a significant light source” amplifying what he could see. According to the witness, in a time period not exceeding 10 seconds the van was brought to a controlled stop. As he executed his role in the stop, using his rear view mirror the officer kept near uninterrupted focus upon the van and its occupants to ensure that “nothing crazy” was happening implicating officer safety:

I want to make sure that the vehicle doesn’t do anything to manoeuvre out of the box that we’re creating for it. It’s complying with our lights, it’s stopping. And like I said, the officer safety issues that you know no one’s pulling anything out and – and pointing guns at us, for example, or no one’s running away from the vehicles or not one’s throwing anything out the window so my focus I would suggest is 99 percent on what’s happening behind me at that time.

[64] Const. McEachern informed the court that in this few seconds, as he watched the van occupants from their mid-chest up, he just saw them sitting. He could see the driver’s left hand on the steering wheel. Questioned about the driver’s right arm, the constable gave this evidence:

A. As – as far as I can tell from where he was sitting he was facing straight in the vehicle and was focused on my vehicle in front of him. I didn’t – I didn’t see his arms move away from the centerline of his body.

Q. Okay. And is the centerline of his body where the steering wheel was?

A. Right. So anywhere between shoulder to shoulder, his arms remained within that area in front him.

Q. If he had – he had done anything with his arms or moved his body in any way, would that have been significant to you? Would that have been relevant to you?

A. Yeah. Well, I mean my focus was on him in relation to him possibly having or being in possession of a firearm. So if he were to reach down or reach across behind him I would have – I would have seen it. I didn’t see any movements like that from him, no.

[65] Insofar as McEachern’s observations of the van passenger, the officer testified in-chief as follows:

Q. … I’m going to ask you from your vantage point looking through the rear view mirror, what parts of the passenger’s body were visible to you?

A. Again, I would suggest from the mid-chest line upwards.

Q. Okay. And so in terms of his hands and his arms I guess if you could see that you can – can you tell us can you see those – those hands and arms or not? I guess if it’s at the side, you wouldn’t, but if they’re up, you would. So…

A. Right. I didn’t …

Q. … where were they?

A. I didn’t see his hands up. I would have seen from mid-bicep upwards, and again, from looking at him in, in the rear view I didn’t see his arms break the plane from outside of his shoulders.

Q. Okay. If they had done so if his shoulders, arms had moved outside of the plane of the centre of his body, would that have been significant to you? Would that have been relevant to you?

A. It would have and – and for the same reasons against with the drivers I didn’t – I didn’t notice him break that plane, no.

Q. Okay. But were you watching to see if he did?

A. Yes.

Q. And he did not?

A. Correct.

[66] In cross-examination, the witness stated:

Q. … But if I were to push something over or have something in my hand and toss something without any exaggerated movements or change of plane, I think that was your terminology, you wouldn’t have seen that?

A. If you’re referring to chest height or mid-chest downwards if there was – I don’t know how you would being separated like that but if – I don’t know without seeing the actual movement itself, I wouldn’t be able to tell you …

Q. Right.

A. … if it was anything that was from here upwards, I would have seen. I didn’t see anything. Not to over exaggerate it, but I didn’t see any movement from the driver or the passenger that would have suggested to me that something was being passed.

Q. Right. But it’s fair to say also that you couldn’t see anything from mid-chest down?

A. That’s correct.

[67] Const. Osborne confirmed that McEachern flipped on their vehicle’s emergency lights as he began braking. During the braking and prior to the stop, a period of less than 10 seconds, Const. Osborne was turned looking over his left shoulder at the minivan as the two-car-length separation decreased, and calling out to his partner what he observed. He was seated at a height about the same as the occupants of the minivan. The officer had in mind that officers could be shot at in a box-stop. Const. Osborne maintained uninterrupted observations of the van and its occupants. He was able to see the heads of the driver and passenger and their upper torsos. He could see the driver’s right hand.

[68] In his in-chief testimony, Const. Osborne provided this description of what he was seeing of the passenger:

Q. All right. And can you see what he’s doing with his arms or hands …

A. Yes.

Q. … or shoulders even?

A. Yes.

Q. And why are watching for that? What is that important to you?

A. Again, it’s an officer safety concern and to see if anything’s being discarded or attempt to be concealed.

Q. Okay. And what if anything do you see the passenger do? What’s he doing with his hands?

A. Nothing.

Q. Okay. If – if he was doing something, would that have been important to you?

A. Yes.

Q. Okay. And – and you see him do nothing that is – that is significant?

A. Yes.

Q. All right. So in that period of time that it takes the vehicles to come to a stop, does anything of significance happen in that front area of the Dodge Caravan?

A. No.

[69] In cross-examination, the witness gave this evidence:

Q. Okay. And you indicated that you were able to see about chest high of the driver?

A. Yes.

Q. At least the right hand?

A. Yeah.

Q. And chest high for the passenger?

A. Yes.

Q. Would it be fair to say that you were unable to see anything from the chest down?

A. Yes.

Q. Okay. Would it be fair to say then if one arm was stretched out, or one arm grabbed something, or one arm leaned over, you couldn’t have seen that?

A. No.

[70] In re-examination, the officer stated:

Q. And lastly, sir, Ms. Monaco asked you some questions about the period of time that you were, I guess, looking back at the vehicle and – and were able to see the two men from the chest up. And she asked you during that period of time if one arm leaned over, you wouldn’t have seen that and you said, “Yes”. At any point, did you lose – you said at least the right hand of the driver was on the wheel during this period of time. At any point, did you lose sight of the right hand of the driver?

A. No.

Q. And if you had, would that have been significant to you?

A. It would have.

Q. And why?

A. I would have been concerned that something was being moved in the motor vehicle or attempt to be concealed especially since we’re dealing with a firearm scenario.

[71] To Const. Hintzen’s recall, as he moved his vehicle at a 45˚ angle toward the driver’s side of the van, he activated his vehicle’s siren and emergency lights. As he quickly accelerated alongside the minivan, looking into the windows on the driver’s side of the van, he could the driver’s hands on the steering wheel. It seemed to the officer that the van driver was unaware that his vehicle was about to be pulled over.

[72] Const. Hintzen informed the court that, in his view, there was no time for the driver to have tossed anything to his passenger – “it would be very difficult to do that” without the witness noticing as he remained “hyper-focused on the situation” believing that there was a firearm in the minivan. It was important to know in this dynamic encounter whether a firearm was becoming visible. Apart from brief “eye glances” everywhere around him, the constable kept his attention on the vehicle and its occupants except for milliseconds.

[73] Const. Lowe testified that at the stop light at Centre Street, looking through the back window of the van, he was able to see the top part of the driver and passenger. With the van’s headrests, he was seeing the roundness of the tops of the occupants’ heads. They were just sitting. The officer was unable to see movements below their ear-level. As Const. Hintzen drew alongside the van, Const. Lowe’s unobstructed and focused observations were through the van’s side windows. He was concerned about a firearm being passed, or used to shoot at the officers, or that an occupant might seek to flee from the van or jump out with a gun. In the three to four seconds between the McEachern/Osborne vehicle braking and the stop of the minivan, Lowe was watching for “any lean out or shift across”.

[74] At the point of the minivan coming to a stop, the four police vehicles had activated their emergency lights.

[75] Following the full stop of the minivan, the plan was for the officers to jump out of their respective vehicles simultaneously, rush the van, and immediately secure control of the occupants of the van. Const. Hintzen testified that the box-stop was executed without the driver of the van striking any police vehicle. Det. Gormley described the van being pulled over fairly quickly and without incident.

[76] Det. Gormley described the front seats of the Dodge Caravan as captain chairs, not bench seating. The witness testified that the front minivan seats were standard seats with about 18” separation between them.

[77] Once Det. Gormley saw that McEachern’s vehicle was in position ahead of the minivan, he activated his emergency lights. These LED lights enhanced visibility. This light source, together with the officer’s vehicle headlights, allowed him a clear view through the rear window of the van. The officer kept his continuous focus on the heads and shoulders of the van’s occupants. Det. Gormley, who described himself as having the best vantage point upon the suspects, was concerned that one of them could reach for a firearm. As he remained focused on the occupants, Det. Gormley saw nothing out of the ordinary occurring in the van. According to the detective, had he seen movement in the vehicle as his team set out to rush the van, he would have ordered a retreat and execution of a call-out extraction. However, in this case, “we were up to the vehicle so quickly that the occupants were kind of surprised”.

[78] In cross-examination, it was suggested to Det. Gormley that, given his limited view of the bodies of the occupants of the minivan, unable to see below their shoulders, he would not have been able to determine what may have occurred in the 18-inch separation between the van’s two front seats. The witness responded in this way:

A. …I was very cognizant of what was going on in that van. I did believe there was a firearm inside of that vehicle. In my experience, if movement had happened inside that vehicle, I would have seen it. I didn’t see any movement that suggested to me that anything was being moved around in the car.

Q. But you couldn’t see anything below the shoulders, right?

A. No, but it’s very difficult in my experience for someone to move without their shoulder … moving … I didn’t see anything in that car that … I didn’t see anything that would have suggested movement. If I did see anything, I would have made notes of that.

[79] Const. Savino ran, firearm in hand, to the driver’s door of the van. He was the first officer there. Const. Lowe, also with his service firearm drawn, arrived very soon after as did Const. McEachern and Det. Gormley. During his approach, Const. Savino kept his focus on the driver and his hands as hands are “the delivery system” for weapon use. He needed to see the driver’s hands as this is “where control begins”. Const. Lowe too remained focused upon the driver although he saw the passenger “briefly” – he was not doing anything.

[80] Const. Savino testified that the driver appeared surprised and shocked by the stop. As the officer tried to open the driver’s door, he said, “Police. Show me your hands”. Finding the door locked, he commanded the driver to, “Open the door”. The driver unlocked the door. At no point did Const. Savino question the driver as to where the firearm was.

[81] Const. Lowe observed the driver pivot to his left seeming to note what was happening outside his vehicle. According to the officer, there was not a lot of yelling and he heard no officer say, “Where’s the gun?”. Detective Gormley, who was part of the extraction of the driver, heard no officer shouting words to the effect of, “Show me the gun” or “Where’s the gun?”. If this had occurred, the witness was of the view that he would have remembered such statements. Const. McEachern heard no officer say, “Where’s the gun? Where’s the gun?” The witness identified their training as a command: “Police. Don’t move. Show me your hands”. This is what he shouted and what he heard from other officers at the scene.

[82] The driver, subsequently identified as Hubert Gordon, was pulled from the van and ordered to lay on the asphalt with his hands down. Gordon was compliant. He was immediately handcuffed to the rear. In Const. Savino’s opinion, Gordon was a bit confused but cooperative and non-resistant. To Const. Lowe’s recall, Gordon was confused and somewhat irate, questioning what was going on. Const. Lowe did not note any odour of alcohol or symptoms of alcohol consumption upon Gordon.

[83] Const. Wozny, having quickly exited his vehicle, was first to arrive at the front passenger door of the minivan. He was aware that Const. Osborne was nearby “providing cover” as he dealt with the passenger. Osborne had his firearm drawn. Const. Hintzen also ran to the passenger side.

[84] Const. Wozny focused on the passenger’s hands. Once at the passenger door, he called out, “Get out of the vehicle. Show me your hands”. As the passenger, later identified as Troy Foster, complied, he ordered him to his knees and then onto the ground. Const. Osborne only recalls hearing the command, “Get out of the car”. Const. Hintzen gave no commands and has no recall of any given by fellow officers.

[85] Const. Wozny testified once Mr. Foster was on the ground, this exchange occurred:

Q. Do you have anything on you?

A. In my waistband.

The officer then shone his flashlight to the area of the accused’s waist and observed the butt of a black handgun on the right side of his jeans tucked into his belt, also described as between the suspect’s waistband and his belt at the inner right side of the suspect’s hip. After rolling the accused’s body a bit, the constable drew the gun out and, at 2:46 a.m., placed it a few feet away on the grass.

[86] Const. Wozny described Troy Foster as wearing jeans and a belt, a dark-coloured shirt, and a jacket.

[87] Const. Osborne handcuffed and arrested Troy Foster.

[88] Troy Foster testified that as Hubert Gordon drove east on Williams Parkway toward Highway 410, with neither of the van occupants wearing seatbelts, a black vehicle ahead of them suddenly braked. Believing a crash would occur, he instinctively braced himself with one hand on the passenger door and a palm on Gordon’s chest as he said, “Brake. Brake. Brake.” Gordon’s hands were on the steering wheel. The minivan then struck the rear bumper of the car in front hard enough that he assumed there would be damage caused in what he considered to be a minor collision.

[89] According to Mr. Foster, after becoming aware of flashing lights from behind, he looked over his left shoulder directly through the van’s rear window at which point he saw two officers walking toward the van with their outstretched arms pointing service firearms. At this point, he said, “There’s cops behind us. What the hell”.

[90] According to Mr. Foster’s in-chief evidence, before he turned back he felt a weight on his leg – something landed on his leg. When he looked to see what it was, he observed a firearm – he had no idea if it was real or fake. Gordon had his left hand still on the steering wheel of the stopped van. Mr. Foster further testified that he had no idea where the gun came from. Hubert Gordon then twice “screamed”, “Put the gun in the glove compartment”. In cross-examination, Mr. Foster stated that Gordon was pointing to the glove box.

[91] In his in-chief evidence, the accused stated that he did not know what was going on – he was “freaking out” and scared. An officer “was right there” – at the blind spot to his right between the front and rear doors of the van. He attempted to open the glove box – “I was moving around, like you know, trying to open the glove compartment”. It was locked. He was “frozen” and, as “a reaction”, he put the firearm in his waistband. In response to questioning from his counsel, Mr. Foster provided this information:

A. I’m freaking out now. I didn’t know what’s going on. This guy just threw a gun in my lap. The cops are basically at my door … like they’re basically there …

A. I was scared and out of reaction because the cop was right there, I put it in my waistband.

Q. When you say the cop was right there, where is “right there”?

A. Like, what’s considered your blind spot. He was right there between like the, the, the, like my door and the back door … and the sliding door so between the passenger and the back door is “right there”.

He was in the middle window closer to my door so if you should split the middle window in half, he would be at the front half closest to my door.

[92] In his in-chief account, Mr. Foster was certain that there was “a lot” of movement on his part as he turned to see the officers with guns drawn approaching from the rear and as he tried to open the van’s glove compartment. He did not want to “hit it [the firearm] off” his leg and have the gun “go off” and, with the cops “right there”, he put the firearm in his pants with his jacket “kind of just floating over it”. In Mr. Foster’s words, when guns are pointing at you, “you sober up pretty quick”.

[93] In cross-examination, Mr. Foster estimated that from the point of bracing himself for impact with the vehicle in front of the van to the point of an officer being at his door was 8 to 9 seconds. During this period there was “a lot of movement by both” himself and Gordon. He made “fast panicked movement”. There was light flooding into the van (“It’s all over”) from all side from the police vehicles’ flashing lights.

[94] According to the accused, from the collision impact to the point of feeling something hitting his left leg as he was looking backward was a period of about 3 to 4 seconds. Once he turned forward, high and drunk, he was mentally frozen – it then took him a second or two to realize that there was a gun on his lap during which he raised his hands up with his palms out saying “Whoa, what the …”. In Mr. Foster’s words:

At a – at a brief moment of mental and psychological – I was in a psychological state where I was – I couldn’t, like, literally, like I couldn’t – I couldn’t think. Right? But I was still going, like, what the, like – you know what I mean but I wasn’t there, like – I was like I couldn’t think, right, so?

[95] Mr. Foster stated in cross-examination, and demonstrated more than once in the witness box, that when he turned his head and upper body to look through the rear window of the van, he made a 150-to-180-degree turn with the back of his head facing the windshield. Gordon was then in his blind spot to his right.

[96] In cross-examination, Mr. Foster stated that he did not want to touch the firearm. When Gordon directed him to put the gun in the glove compartment, without “even thinking”, he reacted and reached to open the receptacle with his right hand:

I tried once and whenever it’s locked … the cops are already there or right here.

… I tried the glove compartment, it didn’t work. At that time the officer was right here in my blind spot.

[97] Over a dozen times during his evidence, when using an expression such as “right here”, Mr. Foster would raise his right hand even with, and just behind, his right ear:

Q. … you showed us with your right hand up in the air by about the area of your ear, he’s right towards your right side, right?

A. Yes.

Q. He’s very close, right?

A. Yes.

[98] Mr. Foster was cross-examined as to his thought process from the point of realizing a firearm was on his left leg:

A. I didn’t think about it. I just reacted, man. Like I had no time to even think of what I wanted to do. This guy’s telling me to put it in the glove compartment. I’m reacting to what he’s telling me. I’m just like – then the cop – officer’s right here in my - in my blind spot with his flashlight. I’d – I had no time to think …

A. I didn’t make a – I didn’t make a decision. I reacted to what he was telling me and I just did it. Like I didn’t plan to put it – I didn’t know anything about the glove compartment, I just reacted to it. So I didn’t - I didn’t think and plan, “Oh, I’m going to hide this in here”, no. He just told me and I reacted because I just want to get it out of my lap, out of my way, out of my possession.

Q. That was your intention in reaching out towards the - the latch was to open the glove compartment, put the gun in there and close it. That was your intention, correct?

A. That’s a fair assumption, yeah.

Q. And had the glove compartment not have been locked, it’s precisely what you would have done, correct?

A. Yes.

Q. And you understood that the purpose of opening the glove compartment was so that the gun can be hidden, that’s why you tried to touch the glove compartment latch, right?

A. Yes.

Q. This was a purposeful act on your part as opposed to you just you know flailing out without any intention at all, right?

A. I didn’t want to get shot, right? I was – I had never been in a high-risk takedown like that. I didn’t want to get shot so I was reacting to what he told me and I did what he asked me to do.

Q. So one of the things you’re thinking is if I hide this gun in the glove compartment successfully then I won’t get shot for you know pointing a gun at the police for something, right?

A. That’s correct, yeah.

[99] Questioned by Mr. D’Iorio as to why he didn’t simply brush the gun off his leg, or toss it back to Gordon, who he assumed was the source of the weapon, Mr. Foster replied:

A. There was no time for that. I didn’t want to – I didn’t want the officers to be there and have a gun in my hand or a gun in my possession and end up getting shot. It was – it .... [i]t was a quick – quick situation. It was very fast like the officer was there.

Q. So we were discussing … what was and wasn’t going through your head at the time before you put the gun in your waistband, all right? And when you’re aware of it to when you say you put it in your waistband, what’s going through your head? What thoughts are travelling through your head?

A. I can’t remember that.

Q. Well, one of the things that you said was that there was no time to throw the gun under the seat. That’s what you said in your evidence this afternoon.

A. Yes.

Q. Are you’re telling us you maintain there was no time to put the gun under the seat?

A. Yes.

Q. But there was time to – assuming the glove box wasn’t locked, open the glove box, put the gun in the glove box and then close the glove box without the officer coming in – as – as he’s coming in, in time to see that happening, right?

A. Yeah.

Q. You’d agree with me it takes more time to open a glove box, pick up the gun from your lap, put it in the glove box, sh[ut] the glove box than it takes to simply throw the firearm either beside you, underneath you or behind you or even beside you on the other side, anywhere away from you so that it’s not in your immediate actual possession, right?

A. No, I don’t agree.

Q. So you think it takes more time to simply throw the gun – let’s talk about the empty space that’s between you and Mr. Gordon. You could simply have thrown it down into that empty space perhaps towards Mr. Gordon’s chair. You could have done that, right?

A. I didn’t have enough time.

Q. My question is are you maintaining that it takes more time to - to simply toss an item to the side than it does open a glove box, put something inside and then close the glove box back up again?

A. I don’t – I can’t make that determination, I’m not a professional. I don’t – I can’t make that determination.

Q. Sir, it takes very little time to pick up an item and simply toss it in a direction, right?

A. If you say so.

Q. It’s a one-step process – or maybe two steps. You take it in your hand and you make a movement with your arm and you let it go with your hand and it – it goes in the direction that you toss it, right? That’s what it means to toss something. You don’t need to be a professional to tell us that, right?

A. I know how to toss something, yes.

Q. Yeah. It’s a very quick process, right?

A. I’m not a professional. I don’t know that.

[100] Pressed on this timing issue in further cross-examination, Mr. Foster appeared to back the police up to a point further away:

A. Well, when I was reach for the glove box, they’re a lot further away from when I put it in my waist, a lot further away so they’re a lot further away.

Q. But you thought you had enough time to open the glove box, put something inside and close it back up again, right?

A. The officers were further away at that point.

A. The officers were much further away at that point.

[101] Mr. Foster testified that a thought running through his mind was that he did not want to be shot by the police:

Q. And you have the choice between simple toss [the firearm] or opening a compartment, putting it in and closing the compartment, right?

A. Yes.

Q. The officer comes while you’re opening the compartment, the gun’s in your hand; that’s bad, right?

A. Yes.

Q. The officer comes and sees you putting the gun into the compartment, the compartment opened; that’s bad, right?

A. Yes.

Q. And even if the officer sees after you put it in the compartment, you closing the compartment up again as he comes up to where you are; that’s still bad too, right? You don’t want the officer to see that, right?

A. That’s correct yes.

Q. Well, after you realized that putting the gun in the glove compartment is not going to work for you, you have to come up with another idea, right?

A. At that point, officer is right here in my rear-view and that’s when I put it in my waist.

Q. Is he – are you seeing him in the rear view mirror? Or is he right almost to your immediate right?

A. No, he’s in my blind spot and he has his flashlight.

Q. He’s only a few feet away from you, right?

A. Yeah, you can say that.

Q. Two feet, three feet away?

A. Two feet, a foot – feet.

Q. He’s only a foot away?

A. He’s right here. He’s like right by my shoulder.

Q. Okay.

A. If this....

Q. You’re indicating, like, with your....

A. If I was – if I was – if the door was open, I could have touched him.

Q. So he’s – that officer, with his gun and his flashlight in his hands drawn out for you - to fire if he needs to, is so close that if the door was open, you could actually reach out and touch him...

A. Yeah.

[102] Turning to the accused’s self-described conduct of putting the firearm in his waistband, tucked into his pants with the handgrip exposed between his leather jacket and his white t-shirt, Mr. Foster provided these details under cross-examination:

Q. And this is at moment when you come to the realization the glove compartment is locked, right?

A. When I reached for it, I looked up it was right there so I guess, yeah.

Q. Okay. At this point and time, is it your evidence the firearm is still in that same spot that it’s been since you were aware of it? You haven’t moved it yet?

A. No.

Q. Still sitting in the same spot you showed earlier when you stood up, right?

A. Yes.

Q. So within, probably, less than a second that officer’s going to see that gun precisely where you say you saw it for the first time, correct?

A. A little bit more than a second.

Q. He’s - he’s so close that you could reach out and touch him?

A. The windows are tinted.

Q. So it’s your evidence that somebody standing outside of the vehicle by the front passenger window can’t see inside? Is that your evidence?

A. They can see but it was dark that night, how can you? It was dark. It was a dark area.

Q. So you’re saying, at this point in time where the officer’s so close who’s coming to - coming out with his gun towards you, you could touch him. The firearm is still in the same spot it’s been since when you first were aware, right?

A. No. At that time, I’m – I’m putting it in waist.

Q. We’ll go piece by piece here though. At the moment that you realized that the glove compartment is locked, the officer is so close you can touch him, right, if the door was open?

A. The backdoor, yes.

Q. Are we talking about your front passenger door?

A. No, the back – it’s the – the back door, sliding door.

Q. You could have – you’re showing us reaching out and touching, that’s how close he is. He’s closer as you said to your front passenger window than he is to the – to the center point of the sliding door, correct?

A. Of the window, yes.

Q. Okay. So he’s within arms reach in terms of distance at the time you realize that the glove compartment is locked, correct?

A. No, I – I realized it was locked a little bit before that like when I tried it...

Q. Yeah.

[103] In an effort to clarify the timing of the act of concealing the firearm vis-à-vis the police officer’s presence beside him, Mr. Foster gave this evidence in cross-examination:

Q. I want to freeze the moment when you are aware of the officer’s so close you can touch him. At that point, you haven’t done anything to change where the gun is yet, right?

A. No, the gun’s already going in my groin. I – right after I tried it, because they’re moving fast...

Q. Yeah.

A. ...they slowed down after – after they got to my door. I’m assuming because they’ll be more cautious now.

Q. All right.

A. So when I tried it, I was like the hell – and then that’s when I take it up and put it in my waist.

Q. The time you actually first, on your evidence, take that gun in your hand for the first time, is the officer so close you can touch him? You can touch him if the front – if the sliding door was open?

A. Walking up to it, yes.

Q. So he’s – so the officer within....

A. He’s – He’s walking – he’s walking up now, right?

Q. So....

A. So by the time I get – by the time I get here in my waist, he’s already – he’s there like trying to open the door kind of.

Q. I’m not asking about the time you put in your waist. I’m talking about when you first take it in your hand. Okay, at this point you’ve already established that the glove compartment can’t be opened, correct?

A. Mm-hmm.

Q. At this point in time, is it still your evidence the officer’s within arms reach?

A. Yes.

Q. And it’s while he’s within arms reach that you take that gun in your hands for the first time and you decide to hide it on your own person as opposed to somewhere else in the vehicle, correct?

A. Yes.

Q. By putting the gun with – and the officer – by the time you actually start the process of hiding the gun in your clothing, the officer is so close you could reach out and touch him, right?

A. Yes.

Q. And you’re afraid of being shot, correct?

A. Yes.

Q. And so it was your thinking, at this point in time, that accessing the inside of your clothing with a gun in your hand with a police officer close enough to touch you, this gun approaching drawn, that this was a good way to avoid getting shot? That was your thought process? That’s your evidence?

A. I didn’t get your question. What’s your question?

Q. Your thought process was since I’ve got this officer approaching with his gun drawn, flashlight out and gun, right? And he’s close enough to touch me. The best thing for me to do in this situation is to be putting a firearm into my clothing?

A. No. When I try the glove compartment, I looked up the officer’s right there. I just want to get it out of – like I was – didn’t want the officer to see the gun or – and shoot me so I just put it the closest possible place to get it out of trouble. I didn’t want to move it. I just put it in my waist. The reason why I did that ‘cause the officer’s right there, I didn’t want any more – just to get more – more – more dangerous than it really is already.

Q. So to not get in trouble, you decided that concealing the gun on your person was the best option for you at the time...

A. Yes.

A. The officer – I seen the officer and I just want to get it out of sight. So the officer was right there, and I put it in my waist. Like I was afraid, I don’t want to get shot. I knew I was in like – basically the situation’s already really bad and I didn’t want any shoot out or any – anyone get shot, so I put it in my waist when officer’s there. I reacted to the officer being there. I was - I was - I was actually thinking I can get shot but I was like you know surprised.

Q. So you thought it made you chances of getting shot less if you had a firearm sticking out of your waistband then if the firearm was tossed under your seat or tossed away from you. That’s your evidence?

A. Yes.

Q. It took a matter of some seconds, I’m going to suggest to you, to conceal the firearm in your pants. It takes a moment to do, doesn’t it?

A. Yes.

A. I was not trying to conceal a firearm. I was trying to prevent a problem from happening so I stuck it wherever I found it. I wasn’t trying to conceal it. I keep telling you that. I was – stuck it – the officer was right there, I didn’t want to get shot so I stuck it wherever the closest spot and that was it.

Q. And because you didn’t want to get shot, you figured the way to make – to – to protect yourself from that risk was to make the gun not visible to the police anymore, right?

A. Yes.

Q. Taking something that’s visible and making it no longer visible is hiding, right?

A. Okay.

Q. Do you agree with me?

A. No.

Q. Okay. It’s your evidence that despite – you were trying to make something that was visible no longer visible anymore, but you weren’t trying to hide it?

A. No.

Q. So what do you say is the distinction between those two things?

A. I didn’t want to get shot so I put it there.

A. I reacted to what Gordon said and I opened – tried to open the glove compartment, yes.

Q. And when that didn’t work – the next thing that you decide to do is put it in your pants.

A. When the officer....

Q. The little part of it sticking out against your white t-shirt in your waistband. That’s what you decide to do with it, right?

A. In the end, yes.

Q. Once you do that, the officer who was, as you were putting it into your waistband, was only within the distance to reach out and touch you is now immediately at your window, correct?

A. Yes.

Q. And it takes a couple of seconds to do, right? You have to pick it up in your hand, take your pants out and put it in and get it in there, right?

A. In a second or two, yeah.

Q. And that takes no more time than it would take to throw it under the seat or throw it over your shoulder or throw it to your side, correct?

A. I guess, yes.

[104] Mr. Foster testified in-chief that a police officer knocked on his window with a flashlight. Hubert Gordon’s door then opened and then his door was opened “right after”. After he heard an officer “loudly” repeating to Gordon, “Where’s the gun?”, he (Foster) put his hands up even with his head and said, “Bro. I have the gun and it’s not my gun. The guy just tossed it on my lap.” The accused gave this in-chief account:

Q. How long did you have that gun in your waistband?

A. Two seconds.

Q. And how soon after the door opened on the driver’s side, did you advise the officers as to how you received the gun?

A. As soon as they asked Gordon, “Where’s the gun?”

Q. How soon?

A. Right after … the words came out of his mouth … like a second after.

[105] On the accused’s evidence, at gun-point, he was pulled from the van onto the ground and handcuffed. In his in-chief evidence, Mr. Foster stated that after he was dragged out of the van, he was asked, “Where’s the gun?” to which he replied, “On my left side … on the left side of my groin area”. He was then rolled to his side and an officer removed the firearm.

[106] In cross-examination, Mr. Foster described his disclosure to the police of the firearm’s location in these terms:

A. When the officer and I heard him talk about gun, I said, “Hey, listen, it’s not my gun. This guy just threw it on my lap.” That’s what I told the officer. I – I told – confessed from the car. I confessed when he opened and I heard gun, I confessed to him. I told him I had it on me, and that’s my evidence.

Q. You were directing this comment towards a particular officer?

A. When I heard him saying that, “Where’s the gun? Where’s the gun?” with the gun at Gordon’s head, I had a gun on my head too. I yelled out in the open, “I have the gun. This guy just threw it on my lap. I have the gun.”

Q. So you weren’t directing it to one particular officer like the officer who asked the question or the officer pointing a gun at your head, you’re just sort of saying it as – as a comment out in the open to all to hear, correct?

A. Yes.

Q. All right. But it was responsive to the officer who opened the door on Mr. Gordon’s side, correct?

A. Yes.

Q. I’m going to suggest to you that the conversation, went as we heard from Constable Wozny, which was after you’re out he says to you do you have anything on you, and you say in my waistband. You disagree with that evidence from Constable Wozny?

A. Yes, I disagree with that.

Q. Constable Wozny, and you say, didn’t ask you any questions rather he had already heard you say, “I have the gun. It’s in my waistband. He threw it towards me” and so on as you’ve described, correct?

A. Yes.

Q. You said that very loudly I take it?

A. Yes.

Q. And you wanted the police to know that you had the gun?

A. Yes.

Q. You wanted the police to be aware of the fact that you were armed, correct?

A. No. Yes, I was armed at the time if you - yes.

Q. You wanted the police – the reason you told them is so you want the police to know, right?

A. Yes.

Q. And that’s despite the fact that you had just made two efforts to try and hide the gun so the police wouldn’t find it?

A. I wasn’t hiding the gun from the police, I was hiding the gun from the trouble that was – that could possibly lead up to them seeing the gun. I wasn’t hiding it from the police officer because I told the officer I had it.

Q. Mr. Foster, you could’ve swept the gun right off of your lap with the – with the slightest brush with the back of your hand and it would’ve fallen either to your feet or your side and not been immediately within your reach, true?

A. Yes.

Q. You could even have – you didn’t have your seatbelt on, you could even have stood up or – or moved your – moved your torso and have it gone flying off of your lap, correct?

A. You’re trying to get me shot, that’s what you’re trying to do. Any officer sees any movement like that in the car, they’re probably going to shoot.

Q. Is that on your mind when you’re doing what you’re doing prior to dealing with the police?

A. That’s just a logical thing. That’s – like cops come and put guns out, you’re doing sudden movements, you’re going to places like that’s just logical I’m assuming.

Gordon in Custody

[107] Const. Savino testified that he transported Hubert Gordon to PRPS 22 Division. During the booking process, he could smell alcohol on the arrestee’s breath. The officer could not recall if he also smelled alcohol on the ride to the Division. Const. Hintzen, who interviewed Hubert Gordon on videotape at 4:11 a.m., described him as having a strong accent and appearing drowsy given the time of day. In the officer’s view, Gordon was not “quite impaired”.

[108] At trial, Mr. Gordon was unable to recall speaking to the police at the police facility or an interview phone ringing. Replay of brief excerpts from a police videotape during his cross-examination revealed these events to have occurred. Mr. Gordon described himself as fatigued in the interview room given that it was after 4:00 a.m. As Mr. Gordon speaks with a heavy accent and appeared tired in the video, his speech did not necessarily indicate a high degree of impairment.

The Firearm

[109] The handgun seized from Troy Foster was a Hi Point Firearms Model CF380 which is a restricted firearm.

[110] The firearm was loaded with one round in the chamber and 4 rounds in the magazine. Police testing established that the firearm functioned properly and was capable of discharging the ammunition with which it was loaded.

[111] Troy Foster was not the holder of any licence or authorization under which he could lawfully possess the firearm. He was not the holder of the registration certificate for the firearm. He was not authorized under the Firearms Act to carry a concealed firearm.

POSITIONS OF THE PARTIES

The Crown

[112] Mr. D’Iorio submitted that the charges have been proven beyond a reasonable doubt. There is no real factual dispute that Troy Foster was found to have custody of the seized firearm concealed in his pants. Crown counsel submitted that the trial evidence established the accused to be in actual knowing possession and control of the weapon.

[113] As to Hubert Gordon, he denied having possession of the firearm or of transferring the firearm to Mr. Foster. The witness had a domestic assault criminal record but not for crimes of dishonesty or for weapons. While Gordon may have gambled, there was no evidence that he was regularly armed. Mr. Foster deliberately exaggerated Gordon’s negative qualities.

[114] For a variety of reasons, it was argued, the court should reject Mr. Foster’s evidence as incredible. The accused has a prior criminal record for dishonesty. His account of how he came to have custody of the firearm is itself implausible and unbelievable. This evidence is contradicted by not only Gordon but also by multiple, credible police witnesses.

[115] It was submitted that the accused’s account of why he was in the van with Gordon made no sense. Why would he pass up an opportunity to join Melissa at her home? On the accused’s evidence, he did not come to the party with Gordon, he was not friends with Gordon, and he did not particularly care about him. If he had safety concerns about Gordon, why were seatbelts not being worn?

[116] Mr. D’Iorio submitted that the evidence supports a finding that Gordon and the accused came to the party together and intended to leave together. Even accepting Tracy Archer’s testimony that at some point Gordon possessed the firearm, although it has its own problems with her description of the timing of the Taylor/Gordon argument, the credible evidence at trial established that Mr. Foster had actual possession of that weapon for more than the fleeting few seconds described in his evidence.

[117] In the brief time preceding the setup of the box stop, and in the few seconds between the police alerting the van occupants to their presence and their immediate attendance at the doors of the stopped van, the van occupants were under constant police surveillance. While no one officer may have had a constant or full view of the van occupants, as a group, the police witnesses kept continual and focused scrutiny upon the occupants. Their safety depended on a close watch. Night-time conditions and window-tinting did not diminish the officers’ surveillance capabilities.

[118] Mr. D’Iorio noted that Mr. Foster’s evidence committed to exaggerated and frantic movements on his part once the flashing lights went on and the box-stop was being executed. No police officer saw this.

[119] It was also submitted that Mr. Foster’s timing does not work out. The police rushed the vehicle to surprise and take control of the van occupants. There was no time for the accused, as he claimed, to turn to look out the rear window of the van for some seconds, to turn back, to stare briefly at the firearm, to try the glove compartment opener, to pick up the firearm, and to conceal it in his pants.

[120] It also made no sense that instead of brushing the firearm off his leg, Mr. Foster, who claimed to be concerned about being shot by the police, would pick up the weapon and conceal it in his pants with a police officer “right there”.

[121] Crown counsel accepted that if the court were to find that Mr. Foster, when the vans doors opened, made the statement he described in his testimony, that evidence would be substantively admissible. However, apart from the contents of this statement not being directly put to Gordon and the police witnesses in cross-examination, on the whole of the evidence, including the reply evidence, no such statement was made.

The Defence

[122] Ms. Monaco submitted that the prosecution failed to prove that Mr. Foster had unlawful possession of the firearm in terms of knowledge of what the item was and intentional assumption of control of the weapon. In effect, on the evidence which the court should accept, the accused has a “hot potato” defence – unexpected custody of the firearm for a few seconds without turning his mind to accepting and maintaining control of the weapon.

[123] Counsel described Hubert Gordon as an incredible and unreliable witness. Gordon had a criminal record, was an addicted gambler and was drunk on August 10/11, 2013. As a witness, Gordon was confrontational when pushed in cross-examination, professed to have no recall respecting many matters, and failed to answer directly at times.

[124] Ms. Monaco noted that Mr. Gordon was contradicted on several matters by unchallenged evidence. For example, Gordon was in error in suggesting that the arrest was before midnight and not on Williams Parkway. The witness, contrary to all the evidence, claimed that there were no flashing lights from the police vehicles. He was wrong about speaking to the police once in custody and the phone ringing in the interview room.

[125] It was submitted that Ms. Archer’s evidence puts Mr. Gordon in possession of a firearm at the house party. It is evident from Gordon’s testimony, that he believed that a person is not criminally liable for possession if a firearm is not discovered on their person. When Hubert Gordon became aware of the police efforts to stop the van, he quickly passed the firearm to the accused to hide in the vehicle’s glovebox.

[126] Counsel submitted that a firearm could be passed a short distance between the van’s front seats quickly and without any readily observable motion of the upper part of the transferor’s body. The police surveillance had its limitations given the tinted windows of the van, the distance and angles of sight of the officers, and the officers’ restricted view of only the shoulders and heads of the van occupants.

[127] It was submitted that Mr. Foster’s evidence ought to be accepted, or at least raise a reasonable doubt, that he was thrust into a rapidly evolving and fluid situation by Gordon passing the firearm without notice or the accused’s consent. Concerned that he might be shot, he only touched the firearm briefly pulling it out of sight before the police were beside the passenger door of the van. He had no time to think. He was mentally frozen. He reacted to an unanticipated event.

[128] It was submitted that Mr. Foster’s immediate announcement, when the van doors opened, of having the firearm from Gordon supports his account that, only moments before, Gordon disarmed himself making his problem Mr. Foster’s problem. There was no plan or conscious decision-making on Mr. Foster’s part to take real control of the firearm. He sought to surrender the item right away. The officers may not have heard the accused’s statement prior to removal from the van, given their shouts of who they were and commands to the occupants.

ANALYSIS

[129] The parties were in agreement that this is a fact-driven case highly dependent upon the trier of fact’s views as to the credibility and reliability of the testifying witnesses. It is accepted that the court may accept some, none or all of a particular witness’ evidence. As well, the beyond-a-reasonable-doubt burden of proof cast upon the prosecution in a criminal case requires the court to analyze the evidence bearing in mind the prescriptive approach in R. v. W.D. (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.); see also R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 47 (leave to appeal refused [2007] S.C.C.A. No. 69).

[130] Certain facts are not in dispute as to the circumstances which existed when Mr. Foster was arrested:

(1) a firearm was in his pants

(2) he knew that the item was a firearm

(3) he had no lawful authority to possess the firearm.

[131] Central to resolution of this case is the legal concept of “possession” and its application to facts as found by the court.

[132] Section 3(4)(a) of the Criminal Code provides that “a person has anything in possession when he has it in his personal possession”.

[133] The constituent elements of personal or actual possession are well known as described in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 15-16:

15 For the purposes of the Criminal Code, "possession" is defined in s. 4(3) to include personal possession, constructive possession, and joint possession. Of these three forms of culpable possession, only the first two are relevant here. It is undisputed that knowledge and control are essential elements common to both.

16 On an allegation of personal possession, 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): Beaver v. The Queen, 1957 CanLII 14 (SCC), [1957] S.C.R. 531, at pp. 541-42.

(emphasis of original)

[134] What will constitute proof of an act or measure of control, sufficient to attract criminal liability, will of course vary with the factual circumstances of each case. To this end, a body of jurisprudence has grown up addressing instances of temporally brief manual handling of various items. Some of these authorities include the following.

[135] In R. v. Vance and Nichols, [1977] O.J. No. 1103 (C.A.), the court reversed a conviction for possession of a narcotic for the purpose of trafficking. As Vance was pursued by the police, he passed a bottle containing 120 tablets of phencyclidine (PCP) to Nichols. As the police approached Nichols, he dropped the bottle to the ground. In setting aside Nichol’s conviction, Brooke J.A. stated at para. 7:

As to Nichols, we are unanimously of the view that his appeal must be allowed, and his conviction set aside and an acquittal entered. There was no real conflict in the evidence as to what occurred, and whether one accepted the evidence of the witness or the appellant, the bottle of drugs was in the appellant's hands for the briefest time. This was a "hot potato" case. The bottle was passed to Nichols unexpectedly, with the police in pursuit of Vance. There was no agreement between Vance and Nichols, no plan that Nichols should take the drugs in an emergency or otherwise, and there was no suggestion that he had any interest in them. True, he suspected that what his acquaintance had passed to him was a drug. But the time during which he had them in his hands, was hardly time for the making of a conscious decision to accept them so that one could find he had possession of them in law. A passage in the dissenting judgment of Lord Morris of Borth-y-Gest in Warner v. Metropolitan Police Commissioner (1968), 52 Cr. App. 373 at 403 is apt:

... In my view, in order to establish possession the prosecution must prove that an accused was knowingly in control of something in circumstances which showed that he was assenting to being in control of it; they need not prove that in fact he had actual knowledge of the nature of that which he had.

[Emphasis added]

In our view the evidence fell short of satisfying the onus on the Crown of proving that this appellant accepted the drugs, and that he assented to being in control of them.

[136] In R. v. York (2005), 2005 BCCA 74, 193 C.C.C. (3d) 331 (B.C.C.A.), the court stated at paras. 11-13, 15-16, 20:

11 Thus, the offence of possession is made out where there is the manual handling of an object co-existing with the knowledge of what the object is, and both these elements must co-exist with some act of control. The classic definition of possession was stated by O'Halloran J.A. in R. v. Hess (No. 1) (1948), 1948 CanLII 349 (BC CA), 94 C.C.C. 48 (B.C.C.A.), wherein he stated:

To constitute "possession" within the meaning of the criminal law it is my judgment, that where as here there is manual handling of a thing, it must be co-existent with knowledge of what the thing is, and both these elements must be co-existent with some act of control (outside public duty). When those three elements exist together, I think it must be conceded that under s. 4(1)(d) [of the Opium and Narcotic Drug Act, 1929 (Can.), c. 49] it does not then matter if the thing is retained for an innocent purpose.

That view of the law was approved by the Supreme Court of Canada in Beaver v. The Queen (1957), 1957 CanLII 14 (SCC), 118 C.C.C. 129.

12 In Hess the facts were as follows. A girl found a parcel on a sidewalk by a sign post. She brought it home. Her mother suspected drugs and telephoned the police. The police removed most of the drugs and put the parcel back at the same spot and kept watch from a distance. The following afternoon, the police observed the appellant, who was with another man, pick up the parcel that was in plain view. He commenced to open it when the police rushed the two men, knocking the appellant down. The parcel flew out of his hands. The court allowed the appeal from conviction for having drugs in his possession and entered an acquittal on the grounds that "there is nothing whatever in the record from which it may be legitimately inferred that Hess knew what was in the parcel before he picked it up" and further, that he did not exercise any act of control over the parcel.

13 It is apparent from the court's reasoning that had Hess, with the full knowledge that the parcel contained drugs, conveyed it to a third party or retained it for his own use, he would have been guilty of possession. However, had Hess, with the full knowledge of the parcel's contents, given it to the police, he would not have been guilty of possession even though he may have exercised control with full knowledge because he would have been fulfilling a public duty to take drugs to the police and explain how he had come into possession of them. In Hess, the appellant's intent to deal with the parcel in some prohibited manner was not in issue.

15 The presence of the essential elements of manual handling, knowledge and control may not in all cases be sufficient to warrant a conviction. Such was the case in R. v. Christie (1978), 1978 CanLII 2535 (NB CA), 41 C.C.C. (2d) 282 (N.B.S.C.A.D.). The facts are worth noting. The accused had lent her car to the daughter of a friend. She said it was her practice to leave the keys in her car so that her daughter could use it as well. When the car was returned to her, she noticed a brown paper bag in the trunk containing marihuana. She slammed the trunk door closed. She clearly knew that the bag contained drugs. She said she wished to seek advice from friends as she feared her daughters' involvement. She drove around the city looking for her friends when she got involved in an accident. The accused's explanation for her conduct was that she was in a state of panic and feared her daughters' involvement with the drugs. Hughes C.J.N.B. for the Court of Appeal in upholding the acquittal relied on Hess, supra, and stated:

In my opinion, there can be circumstances which do not constitute possession even where there is a right of control with knowledge of the presence and character of the thing alleged to be possessed, where guilt should not be inferred, as where it appears there is no intent to exercise control over it. An example of this situation is where a person finds a package on his doorstep and upon opening it discovers it contains narcotics. Assuming he does nothing further to indicate an intention to exercise control over it, he had not, in my opinion, the possession contemplated by the Criminal Code. Nor do I think such a person who manually handles it for the sole purpose of destroying or reporting it to the police has committed the offence of possession.

[Emphasis added]

[by BCCA]

16 Similarly, in R. v. Glushek (1978), 1978 ALTASCAD 175, 41 C.C.C. (2d) 380, the Alberta Court of Appeal in upholding an acquittal stated that a brief handling of stolen goods with full knowledge of their character solely for the purpose of getting rid of them does not constitute possession within s. 3(4)(a) of the Criminal Code since the respondent's conduct was inconsistent with retaining or dealing with the goods. Possession is not made out where there is physical control without any co-existing intention to deal with the object in some deliberately personal manner. See also R. v. Spooner (1954), 1954 CanLII 398 (BC CA), 109 C.C.C. 57 (B.C.C.A.) per O'Halloran J.A. at 61. This is because conduct may be characterized as criminal only where the Crown proves the existence of a blameworthy state of mind.

20 I think the law can be summarized as follows. Personal possession is established where an accused person exercises physical control over a prohibited object with full knowledge of its character, however brief the physical contact may be, and where there is some evidence to show the accused person took custody of the object willingly with intent to deal with it in some prohibited manner. The judge convicted the appellant on the grounds that the appellant knew that the goods were stolen, and that he exercised physical control over them without notifying the police or the rightful owners. The blameworthiness of this conduct fell short of that required for a conviction for a crime of dishonesty. The circumstances here are not all that dissimilar to those in Christie, supra. The appellant's conduct was inconsistent with any intention to retain or deal with the goods.

[137] In R. v. Hall (1959), 1959 CanLII 472 (BC CA), 124 C.C.C. 238 (B.C.C.A.), at p. 239, the court observed:

But control within the meaning of Beaver v. The Queen and R. v. Spooner necessarily (if reasonable doubt is to be invoked) excludes a casual or hasty manual handling of the subject-matter under circumstances, as in the evidence here, not consistent with one's own purposes or use for "a fix". Of course each case has to be decided on its own evidence; cf. R. v. Smith (1855), 6 Cox C.C. 554 and R. v.Parker, 1941 CanLII 359 (BC CA), 77 Can. C.C. 9, [1942] 1 D.L.R. 645, 57 B.C.R. 117.

See also R. v. Glushek (1978), 1978 ALTASCAD 175, 41 C.C.C. (2d) 380 (Alta. C.A.), at paras. 48-55; R. v. Spooner (1954), 1954 CanLII 398 (BC CA), 109 C.C.C. 57 (B.C.C.A.), at pp. 59-64; R. v. Hess (No. 1) (1949), 1948 CanLII 349 (BC CA), 94 C.C.C. 48 (B.C.C.A.), at pp. 51-54; R. v. Lewin, [1998] O.J. No. 2929 (S.C.J.), at paras. 4, 13-18; R. v. Cantera, [1981] A.J. No. 125 (Q.B.), at paras. 2, 4-6; R. v. Young, 2006 ABPC 36, at paras. 9-10, 26.

[138] Hubert Gordon, an illiterate 63-year-old, was a feisty and blunt witness. He was verbally combative in cross-examination. He was admonished more than once by the court to answer in a non-editorial, non-argumentative fashion. The witness has a minor record other than for crimes of dishonesty. Mr. Gordon quite forcefully rejected suggestions by Ms. Monaco that he possessed a firearm at the Garden Ave. party or that he subsequently offloaded the weapon onto Mr. Foster as the police surrounded his minivan.

[139] Mr. Gordon’s evidence must be evaluated with caution with the trier of fact to be guided by the presence of confirmatory evidence before accepting aspects of his testimony. This is so for at least three reasons.

[140] First, there are questions as to the reliability of the witness. Many of his answers were vague or advanced a lack of recall. For example, he equivocated about having a prior criminal record, he was unable to recall what he was drinking at the party or in what quantity, he was clearly in error as to when he left the party, and he had no recall of speaking to the police or of a phone ringing in the police interview room. While the evidence was not uniformly consistent as to his degree of impairment, some witnesses (Archer, Foster) considered Gordon to be drunk on August 10/11, 2013.

[141] Second, Tracy Archer’s evidence of Hubert Gordon having a firearm at the house party cannot be easily dismissed. Although the witness had a prior criminal record for offences of dishonesty, and although her account of the timing of the Taylor/Gordon argument differs from the timing described in Mr. Foster’s evidence (unless there were two arguments), the witness was clear in her testimony to seeing Gordon with a firearm in his pants. She was not seriously challenged in cross-examination as to the accuracy of her reported observations. On her unchallenged evidence, Ms. Archer had only met Mr. Foster on a couple of occasions. She did not see him at the party. At one point, her deceased boyfriend had worked for the accused. There was no suggestion that Ms. Archer had a motive to assist the accused or to fabricate a story inculpating Gordon.

[142] Third, Mr. Gordon was himself arrested on August 11 for unlawful possession of a firearm and taken into custody. The charge was subsequently withdrawn. In light of these circumstances, and Ms. Archer’s evidence, a trier of fact must be sensitive to the risk that Hubert Gordon is prepared to shift blame for any possession of the seized firearm entirely onto Mr. Foster.

[143] I am prepared to accept that the evidence of Mr. Foster must be assessed on the basis that Hubert Gordon was not forthright with the court in denying possession of a firearm while present at the Garden Ave. party. Put differently, this view of the case may be seen as adding support for Mr. Foster’s evidence that he was a transferee of the firearm from Gordon.

[144] The more focused issue becomes when and in what circumstances did the accused receive actual custody of the firearm.

[145] On the whole of the evidence, the court is left without a doubt that the transfer of the firearm to Mr. Foster did not occur during the box-stop of the minivan. Whether, for example, the firearm changed hands at the side of the Garden Ave. residence as Gordon and the accused walked toward the van, or immediately after the van occupants entered the van on Garden Ave., the court cannot say. Whether the firearm belonged to Gordon, to Mr. Foster, or was a shared item, the court cannot say. However, what can be determined with certainty, as discussed below, is that there was no “hot potato” transfer. Gordon’s testimony in this regard is cogently confirmed by the evidence of the police witnesses.

[146] Mr. Foster did not present as a credible witness in his manner of giving evidence or in its testimonial content. Mr. Foster strained, unconvincingly, to provide an account of a few seconds of unthinking and reactionary custody/manual handling of the firearm as the police descended upon the minivan. His evidence was implausible, characterized by inconsistencies and, on material points, inconsistent with the evidence of the police witnesses which is accepted by the court.

[147] I reject the accused’s evidence that he joined Gordon on the drive away from the Garden Ave. residence simply out of concern that Gordon get home safely. The more persuasive view of the evidence is that the accused and Gordon came together to the party and intended, as they did, to leave together. Mr. Foster’s account of abandoning Melissa made little sense particularly in light of the accused’s evidence that he did not think highly of Gordon or consider him to be a friend. The accused’s version of two drunks, not wearing seatbelts, heading off in the van hardly reinforced the account of a safety scenario.

[148] Much more significant, however, is that Mr. Foster’s evidence as to what transpired at the time of the box-stop fatally stumbles in the face of credible and compelling testimony from the police witness. This is so for a number of reasons including upon these subjects:

(1) the degree of movement on the part of the accused in the van

(2) the available time for Mr. Foster to undertake all the actions he described

(3) the plausibility of the accused’s account in terms of what he maintains transpired

(4) what the police said to Gordon when the driver’s door was opened

(5) what Mr. Foster said before his removal from the minivan.

[149] The police witnesses believed a firearm was in the minivan. A high-risk take down was planned and executed. Officer safety was critical. A shoot-out was to be avoided. Any movement in the subject van suggesting that its occupants were aware that a box-stop was about to occur, or suggesting that a firearm was being actively accessed, would elevate safety concerns and raise the prospect of the need to resort to a call-out-extraction.

[150] I accept the evidence of the police witnesses that window tinting, to the extent that it existed in their own vehicles or in the minivan, did not materially impair the ability to see into the van. On his own evidence, the accused described the tinting of the van windows as not that dark.

[151] While it was night-time and dark outside, and at least one police officer used a flashlight on his approach to the stopped van, there were standard street lights on Williams Parkway, and once the van was stationary, the flashing police vehicle LED lights created a significant light source acknowledged by the accused to be providing light “all over”.

[152] The officers were hyper-focused upon the occupants. The police officers were only able to see parts of the van occupants’ bodies, and some less than more. As the box-stop was being executed, Consts. Hintzen and Lowe saw no motion in the van suggesting a firearm was passed between the occupants. Det. Gormley held a similar view. While only heads and perhaps shoulders were visible as the police vehicles moved into position, once the van was stationary, Const. McEachern was observing the occupants from “mid-chest” and up and Const. Osborne too was watching the “upper torsos” of the occupants. Neither officer saw any movement on the part of the accused or Gordon.

[153] Though unable to see the entirety of the van occupants’ bodies, the police witnesses had different angles of observation upon the van occupants. None saw a motion suggesting that a firearm was being handled in some manner.

[154] Of significance is that Mr. Foster maintained in his evidence that he performed several accentuated physical actions including (1) extending his arms to the left and right to brace against impact with the McEachern/Osborne vehicle (2) swinging his head and body around 150 - 180˚ between the van’s captain chairs to face toward Det. Gormley’s vehicle (3) raising his arms and hands, palms out, when he observed a firearm on his leg (4) trying to open the van glove compartment.

[155] The accused testified to “a lot of movement” and “fast panicked movement on his part”. The accused testified that there was also a lot of movement on Gordon’s part including passing a firearm and pointing to the van glove box. It is not remotely possible that none of these actions would not have been seen by any of the police witnesses who presented their evidence in a clear, independent, and impartial manner.

[156] Turning to the timing issue, various witnesses provided estimates of the time period from the stop, with lights flashing, to the opening of the van doors. While no one had a stopwatch, what is clear is that the fundamental premise of a box-stop and direct extraction of suspects is that the police act very quickly. Their safety, perhaps their lives, depend upon speed and surprise and rushing a stopped vehicle avoiding its occupants from engaging in armed resistance to apprehension. The stop of the van to the opening of its doors was but a few seconds – Mr. Foster’s estimate was 8 to 9 seconds. The accused described his activities during this time period as turning in his seat to face backwards for 3 to 4 seconds, turning back in his seat to face forward, staring in disbelief at the firearm on his leg for 1 or 2 seconds, trying unsuccessfully to open the glove box for “some” seconds, then taking 1 or 2 seconds, also described as “some seconds”, to place the firearm in his waistband. Quite apart from being able to undertake these actions unnoticed, it is highly improbable that Mr. Foster could perform all these tasks in the time it took the police officers to jump out of their cars and to get the van doors opened.

[157] Mr. Foster’s “hot potato” account is implausible for a number of reasons. He described Gordon as “scream[ing]” more than once for him to put the firearm in the van glove box while the officers approached on foot. How likely is this? In cross-examination, the accused could not sensibly explain why he did not simply brush the firearm from his left leg onto the space between the van’s two front seats – the gun might go off, there was no time, it would take longer to do that than to place it in the glove compartment, he was reacting to Gordon and not thinking.

[158] Claiming that he did not want to be shot, on Mr. Foster’s evidence, as the police approached his door with their firearms drawn, he reached for the glove compartment latch with the police variously described as (1) “right here” (2) at his right side “very close” (3) “ a lot further away” (4) “[a] little bit more than a second” from being able to see the gun on his leg. In describing the act of placing the firearm in his pants, the accused variously described the timing vis-à-vis the location of the police as (1) “two feet, a foot” away (2) “right by my shoulder” (3) “if the door was open, I could have touched him” (4) when the officer was close enough to be touched by the accused, the firearm was “already going in [his] groin … because they’re moving fact” (5) “by the time I get here in my waist, he’s already – he’s there like trying to open the door kind of” (6) when he first picked up the firearm to place it in his pants, the officer was in arms reach (7) “as you were putting it [the gun] into your waistband, was only within the distance to reach out and touch you is now immediately at your window”.

[159] Leaving to the side that Mr. Foster’s descriptions in this regard were not entirely consistent, what can be drawn from his testimony is that, not wanting to be shot by the police, he reached for the glove box and then placed the firearm in his pants with the police essentially on top of him. This is entirely unbelievable. If anything, these actions on the part of the suspect, invited a very real risk of being shot.

[160] Turning to Mr. Foster’s evidence that the police officer who opened the driver’s door of the van “loudly” repeated to Gordon “Where’s the gun?”, this testimony too is untrue. I accept the evidence of Const. Savino that the commands he issued were: “Police. Show me your hands. Open the door” without questioning Gordon as to where the firearm was. Consts. Lowe and McEachern, also present at the driver’s door, did not hear any officer ask Gordon, “Where’s the gun?”

[161] Finally, there was no disagreement between the parties that if Mr. Foster, when his door was opened by the police, immediately spoke words to the effect of: “Bro. I have the gun and it’s not my gun. The guy just tossed it on my lap” (or “I have the gun. This guy just threw it in my lap. I have the gun”), this would be substantively admissible whether described as a res gestae or Edgar statement (2010 ONCA 529 (leave to appeal refused [2010] S.C.C.A. No. 466)) supportive of the accused’s ‘no control’ defence.

[162] However, I specifically reject the accused’s evidence that he spoke these words. Const. Wozny was clear in his testimony that his command to the accused was: “Get out of the vehicle. Show me your hands”, with no discussion of anything which might be on the accused until he was prone on the ground. Const. Osborne, also located on the passenger side of the van, only heard Wozny direct “Get out of the vehicle”. This is not an instance of a suspect simply saying words to the effect of “Not mine” or “It’s his”, but, on the accused’s version, the utterance of a couple of sentences, with highly significant content – and, according to the accused, not just saying or mumbling words, but words which were loudly “yelled out in the open”. If the words described by the accused were shouted out at the scene prior to his extraction from the van, they would have been heard by more than one police officer and noted for their significance. They were not because the words were never spoken.

[163] When apprehended, Mr. Foster was, in law and fact, in possession of a firearm without being the holder of a licence entitling him to lawfully possess it. On the entirety of the evidence, this allegation has been established beyond a reasonable doubt.

[164] As to the second charge of unlawfully carrying a concealed weapon contrary to s. 90(1) of the Code, counsel advanced no submissions apparently content to focus their argument on the “possession” issue. The evidence accepted by the court supports the conclusion that this charge too has been proven beyond a reasonable doubt.

[165] The term “carry” conveys the ordinary meaning of transporting on one’s person or in a conveyance. The meaning of “concealed” engages the notion of taking steps to hide an item so that it will not be observed or come to the notice of others: R. v. Felawa, 1993 CanLII 36 (SCC), [1993] 4 S.C.R. 199, at para. 45; R. v. Coates, [1991] O.J. No. 3296 (C.A.), at para. 1.

[166] While aspects of Mr. Foster’s testimony indicated that he was not making efforts to hide or conceal the firearm, I would note that even on his account (rejected by this court) that he received the firearm only seconds before his arrest, he also gave evidence that he felt his best option was “concealing the gun” on his person making it “not visible to the police”. The evidence accepted by the court establishes that Mr. Foster, some time before the box-stop, had commenced carrying what he knew to be a firearm, having concealed it in his pants with his jacket “floating” over top.

CONCLUSION

[167] The accused is found guilty of count #’s 1 and 2 in the indictment.

Hill J.

DATE: December 19, 2016

CITATION: R. v. Foster, 2016 ONSC 7914

COURT FILE: CRIMJ(P) 112/14

DATE: 2016 12 19

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: R. v. TROY FOSTER

COUNSEL: D. D’Iorio, for the Crown

A. Monaco, for the Defence

REASONS FOR JUDGMENT

Hill J.

DATE: December 19, 2016