COURT FILE NO.: CR-17-10000284-0000 DATE: 20170428 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – JASON ANGELES

Counsel: Elizabeth Nadeau, for the Crown Jeremy Wilton, for the Jason Angeles

HEARD: April 24-25, 2017

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT

BACKGROUND

[1] On January 9, 2015 three men went to Apartment #8 of 812 Broadview Street, in Toronto. Ronald Carpenter lived there. He was at home. The three men were Jean-Rene Sebastian Cals, Winkle Lejarde, and Jason Angeles. At 12:59 pm the three men went into the building and to Mr. Carpenter’s apartment. Video surveillance cameras recorded the three men entering the building, walking down the hall, and entering Mr. Carpenter’s apartment one minute later, at 1:00 pm.

[2] Mr. Carpenter testified that Mr. Cals and another man came into his apartment. He was tired from a recent trip to Newfoundland. He certainly knew Mr. Cals. They, along with Mr. Cals’ girlfriend, had lived together for seven months. He had purchased methamphetamine from Mr. Cals. He also knew Mr. Angeles. He recognized Mr. Angeles’s voice although he testified that he did not see him on that occasion. He knew Mr. Angeles because he had purchased methamphetamine from him in the past as well. He did not know Mr. Angeles’s name. Mr. Cals asked if he could store some bags in the apartment. Mr. Carpenter agreed. They had a friendly relationship.

[3] Video surveillance evidence shows that Mr. Cals and Mr. Lejarde left the apartment at 1:04 pm. Mr. Angeles did not leave the apartment. Mr. Cals and Mr. Lejarde returned one minute later. Mr. Cals was carrying a garment bag. Mr. Lejarde was carrying a long plastic case (which I will call a gun case) and a smaller case. The smaller case appeared to be for a musical instrument, such as a violin (I will refer to it as a violin case although it was sometimes called a guitar case during this trial). Mr. Carpenter testified that he told Mr. Cals that he could leave the items in the back of the closet. He testified that he was so tired that he did not even turn around and look when Mr. Cals came into the apartment. He laid on his bed facing the wall.

[4] Mr. Carpenter testified about an incident once where Mr. Cals and others came to his apartment and watched television. He testified that they watched Citypulse. Mr. Cals switched shoes and the other men changed into clothing that Mr. Carpenter gave them.

[5] Mr. Carpenter’s recollection is not quite correct. Video surveillance cameras show that at 2:19 pm Mr. Cals, Mr. Lejarde, and Mr. Angeles left Mr. Carpenter’s apartment wearing clothing that was different from what they wore when they got there. In other words, they came to the apartment, Mr. Cals and Mr. Lajarde went and retrieved the bags, they watched Citypulse, and then they left about 1 ¼ hours later. This was actually not a separate event.

[6] Mr. Carpenter soon had some second thoughts about the items. He slept and took a shower. Then he looked in the garment bag and saw the gun. He could not open the gun case as it had a padlock. It looked to him like a gun case. He was familiar with gun cases. He knew people in Newfoundland who hunted. He also saw a gun in the violin case. He took the items out of the closet and stacked them. He was afraid that if one fell it might go off.

[7] Mr. Carpenter then contacted someone he knew in the Toronto Police. The police seized the following weapons and ammunition:

• A Norinco semi-automatic 7.62 calibre rifle;
• A Squires Bingham Model M-16 .22 calibre rifle;
• A Simonov semi-automatic 7.62 calibre rifle;
• Four magazines each capable of holding 30 rounds of 7.62 calibre ammunition;
• One magazine capable of holding 20 rounds of 7.62 calibre ammunition;
• One drum magazine capable of holding 100 rounds of 7.62 calibre ammunition;
• Thirty-five rounds of 7.62 calibre ammunition;
• Ten rounds of 22LR calibre ammunition.

[8] The police seized the Norinco rifle from the garment bag; the police seized the other two rifles from the violin case. The police broke open the padlock on the gun case. The ammunition and magazines were seized from it.

[9] Mr. Carpenter did not want Mr. Cals to know that he had contacted the police. He expressed a concern to the officers about protecting his identity. They agreed to stage a break-in at his place. Mr. Carpenter gave the police permission to trash his place when they removed the weapons. The police did so. Mr. Wilton, for Mr. Angeles, does not criticize the police for this action. Neither do I. As I commented during submissions, although perhaps an unusual police tactic, it also seemed to me rather clever.

[10] On January 11, 2015 at 5:54 am Mr. Angeles returned to Mr. Carpenter’s apartment. Video surveillance captured him going into the building and then the apartment. He was looking for the items that had been left two days earlier. Mr. Carpenter explained that the items had been stolen in a break in and pointed out the state of his apartment. He testified that Mr. Angeles stated: “The boss man is going to be pissed”. Video surveillance then showed Mr. Lejarde heading into the apartment at 5:57 am. At 6:00 am he left the building. At 6:02 am Mr. Lejarde re-entered the building with Thien Hoang and an unknown male. At 6:07 am Mr. Hoang left the building, followed by the unknown male at 6:09 am and Mr. Lejarde and Mr. Angles at 6:11 am.

[11] The police executed a search warrant at Mr. Angeles’s address on January 17, 2015. The police did not find anything illegal. Mr. Angeles was arrested at the same time and charged with the following offences:

• One count of possession of a prohibited firearm (the Norinco rifle) with readily accessible ammunition without being the holder of an authorization or licence and registration certificate, contrary to s. 95(1) of the Criminal Code;
• One count of possession of a firearm (the Squires Bingham rifle) knowing that he was not the holder of an authorization or licence and registration certificate, contrary to s. 92(1) of the Criminal Code;
• One count of possession of a firearm (the Simonov rifle) knowing that he was not the holder of an authorization or licence and registration certificate, contrary to s. 92(1) of the Criminal Code;
• One count of possession of a prohibited weapons (the over-capacity magazines) knowing that he was not the holder of licence, contrary to s. 92(2) of the Criminal Code.

[12] Crown counsel, Ms. Nadeau, concedes that the Crown cannot prove beyond a reasonable doubt that Mr. Angeles had knowledge of the readily accessible ammunition. Accordingly, she only asks that the Court enter a conviction on Count 1 for the lesser and included offence under s. 92(1).

[13] Mr. Cals was arrested on a separate matter on January 9, 2015 and was in custody on January 11, 2015. He pleaded guilty to possession of these firearms and ammunition on March 3, 2016 and received a sentence of three years. Mr. Hoang pleaded guilty to possession of these firearms on October 18, 2016 and was sentenced to five years.

[14] The Norinco rifle is a prohibited firearm as defined by the Criminal Code. The Squires Bingham and Simonov rifles are non-restricted firearms as defined by the Criminal Code. The six magazines are over-capacity and therefore prohibited weapons as defined by the Criminal Code. It is agreed that Mr. Angeles, Mr. Cals, Mr. Lagarde, and Mr. Hoang did not have a licence or authorization or registration certificate for any of these weapons.

ANALYSIS

[15] Ms. Nadeau argues on behalf of the Crown that this case is one of constructive possession. Mr. Angeles had possession of the weapons and ammunition in the custody of another person with his knowledge and consent: Criminal Code, s. 4(3). While acknowledging that this is a circumstantial case, Crown counsel argues that the totality of the circumstances prove beyond a reasonable doubt that Mr. Angeles had knowledge and control of the firearms. It would have been virtually impossible for someone in contact with the garment bag not to know that it contained a gun. The men in Mr. Carpenter’s apartment watched the news for over an hour on January 9, 2015, and then left the apartment in different clothing (or at least, in the case of Mr. Angeles, with his vest inside out and his baseball cap turned around). Mr. Cals was arrested that same day. It is a reasonable inference that the men were up to no good, and Mr. Angeles well knew it. There was knowledge and a measure of control: R. v. Anderson-Wilson, 2010 ONSC 4989 at paras. 69-70.

[16] I respectfully disagree. Certainly the actions of Mr. Angeles were highly suspicious. It seems highly likely that he was indeed up to some kind of criminal activity on January 9, 2015 along with Mr. Cals and Mr. Lejarde and possibly others. I find, however, that the evidence does not satisfy me beyond a reasonable doubt that Mr. Angeles had specific knowledge of the firearms. As this is a circumstantial case, I must find that guilt is the only reasonable inference: R. v. Mezzo, [1986] 1 S.C.R. 802; R. v. Yowfoo, 2013 ONCA 751 at para. 6. I cannot find that guilt is not the only reasonable inference available.

[17] I am not satisfied that the evidence shows beyond a reasonable doubt that Mr. Angeles had knowledge of the items in the garment bag, the violin case, or the gun case. I agree that it would have been obvious to anyone who handled the garment bag that it contained a gun. That said, there is no evidence that Mr. Angeles actually handled the garment bag or even touched it. Mr. Cals and Mr. Lejarde carried the items into Mr. Carpenter’s apartment. Mr. Carpenter testified that Mr. Cals brought the items into his bedroom. I agree that Mr. Carpenter had a small apartment, but there is simply no evidence as to whether Mr. Angeles actually got close to the weapons.

[18] The whole sequence of events is certainly highly suspicious. Mr. Angeles was almost certainly involved in some form of criminal activity. I have no difficulty finding that the only reasonable inference is that Mr. Angeles knew that there was something illegal, such as drugs or proceeds of crime, was in the bags. There certainly is evidence that Mr. Cals and Mr. Angeles are drug dealers. I am aware that commercial drug traffickers sometimes use weapons for protection and intimidation. That said, I have difficulty finding that the only reasonable inference is that Mr. Angeles specifically knew that the bags contained weapons. It is impossible from the evidence before me to tell where Mr. Angeles was on the criminal hierarchy. Given his comment about “the boss” it seems reasonable to infer that he was closer to the bottom than to the top. I do agree that it is likely that Mr. Angeles was aware of the presence of the weapons. The problem with a circumstantial case is that it is just as likely that Mr. Angeles was aware of the presence and nature of the weapons as it is that he was told that he was providing security for some other kind of contraband or cash.

[19] I do find that Mr. Angeles did utter the words “the boss is going to be pissed”. This finding depends on the credibility and reliability of Mr. Carpenter. Mr. Carpenter has numerous health problems. He is a crystal meth addict, although he testified that he has been clean for some time. He is HIV-positive, and also has cancer. I found Mr. Carpenter to be a truthful witness but with some problems. He backtracked, for example, on the issue of whether he was high when Mr. Cals came to his apartment. I also think that some of his health issues, and especially his addiction issues, have affected the reliability of his evidence. He was unable to completely keep dates straight. Furthermore, he testified that only two men were in his apartment on January 9, 2015. The video surveillance clearly shows that there were three. The video surveillance did, however, confirm much of his evidence.

[20] The comment “the boss is going to be pissed” is consistent with any manner of criminal activity. Again, I have no difficulty drawing the inference that Mr. Angeles was involved in criminal activity. I cannot, however, find that it enables me to draw the inference beyond a reasonable doubt that he had the specific knowledge that the garment bag, the gun case, and the violin case contained weapons and ammunition.

[21] Moreover, the problem with his comment is that it was uttered on January 11, 2015. Even if he had specific knowledge of the firearms on that date, the relevant date is January 9, 2015. That is the date the firearms were stored in Mr. Carpenter’s apartment.

[22] The Crown relies on R. v. Balasuntharam, [1999] O.J. No. 4861 (C.A.). The Court described the facts this way:

This is a common sense case. Four young men were driving along in a small car with tinted windows shortly before midnight when their vehicle was stopped by a member of the Peel Regional Police. The officer stopped the car because he thought that the tinted windows violated the Highway Traffic Act, but when he smelled alcohol on the driver's breath and saw beer bottles in the back seat, he searched the car. An AK-47 rifle and two 17-round clips lay in a bag in the foot well of the cramped back seat. Another bag, containing a loaded sawed-off shotgun, was in the trunk. As the trial judge observed, human experience tells us that property of this nature simply would not be the subject of unknowing possession.

[23] There is considerable merit to Ms. Nadeau’s argument, but I must respectfully disagree. There was no doubt that the four individuals in the car were involved in a joint criminal enterprise. The circumstances were such that everyone in the car would have understood the presence of the weapons. Everyone in the car was in close proximity to the weapons. That distinguishes this case.

[24] The Crown also relies on R. v. Bains and Pannu, 2015 ONCA 677, 127 O.R. (3d) 545, where Watt J.A. observed:

As with other offences, Crown counsel may prove the essential elements of constructive possession by direct evidence, by circumstantial evidence or by a combination of direct and circumstantial evidence. Where the subject matter of which an accused is alleged to be in possession is a controlled substance of significant value, it may be open to a trier of fact to infer not only knowledge of the nature of the subject, but also knowledge of the substance itself… It is a reasonable inference that such a valuable quantity of drugs would not be entrusted to anyone who did not know the nature of the contents of the bag or other container. [Citations omitted]

[25] Bains was driving Pannu’s car when the police arrested him. The police searched the car and found a bag containing one kilogram of heroin. While Bains was under arrest the police noticed Pannu drive by slowly. Pannu was driving Bains’ car. While Bains was under arrest Pannu called him constantly on his cell phone. There were texts suggesting a joint enterprise. The Crown theory was that they were in joint possession of the heroin.

[26] Again, Ms. Nadeau’s point is well-taken, but in my respectful view Bains and Pannu is also distinguishable. Bains was the only person in a car with over a kilogram of heroin. Pannu was very interested in the fate of the item in the car, making it reasonable to infer he was well aware of what was in the bag and in constructive possession of the heroin in it.

[27] Crown counsel also relies on R. v. Allen, 2015 ONSC 803, a case I decided. Mr. Allen was picked up by a friend and given a lift. He put a bag in the trunk. The police stopped the car for a traffic violation and saw an open bottle of alcohol. They opened the trunk. As they did so, Mr. Allen ran away. The police found a gun in the bag. That case is also distinguishable. The bag belonged to Mr. Allen. It contained his personal items, including a toothbrush with his DNA on it. There was no credible evidence that someone else had put the gun in Mr. Allen’s bag. Guilt, in that case, was the only reasonable inference. In my view that case is distinguishable.

[28] At the end of the day, this is a case where the evidence falls just short of establishing the requisite knowledge, notwithstanding a very professional police investigation. The charges are dismissed.

R.F. Goldstein J. Released: April 28, 2017