Court File and Parties

COURT FILE NO.: CR/17/10000/1790000 DATE: 20170510 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN - and - eric coplin-duran

Counsel: Emily Marrocco, for the Crown Daniel Michael, for Mr. Coplin-Duran

HEARD: April 10, 11, 19 and 20, 2017

KELLY J.

Reasons for Judgment

[1] Mr. Eric Coplin-Duran has been charged with a number of offences arising from a R.I.D.E. stop on July 5, 2014 in the City of Toronto. After an Ontario Provincial Police (“OPP”) officer smelled marijuana, Mr. Coplin-Duran (the driver) and Mr. Nathaniel Bell (the passenger) were removed from the car, a Honda vehicle. Found hidden in the console on the passenger side, were two loaded firearms and 29 grams of marijuana. Smaller amounts of marijuana were found in the side pocket of the driver’s side door. Both were charged.

[2] Mr. Bell absconded a number of months before trial and was arrested on April 6, 2017 – four days before this trial began. Mr. Bell’s charges were severed and Mr. Coplin-Duran proceeded to trial before me, sitting alone. He was tried on the following offences:

Count	Charge	Criminal Code Section
1	Possession of a loaded prohibited weapon: a Lorcin L25.	95(1)
2	Possession of a loaded prohibited weapon: an Iver Johnson, Model – Safety Hammer Automatic revolver.	95(1)
3	Occupy a motor vehicle in which he knew there was a prohibited firearm: an Iver Johnson, Model – Safety Hammer Automatic revolver.	94(1)
4	Occupy a motor vehicle in which he knew there was a prohibited firearm: a Lorcin L25.	94(1)
5	Possession of a firearm (an Iver Johnson, Model – Safety Hammer Automatic revolver) knowing that it was obtained by the commission of an offence.	96(1)

[3] Mr. Coplin-Duran is also charged on a separate indictment with two counts of unlawfully possessing a firearm while prohibited pursuant to a s. 110 order made on September 19, 2013. The offences are alleged to have been committed contrary to s. 117.01 of the Criminal Code.

[4] At trial, several OPP officers testified. Mr. Bell (the former co-accused) testified and an Agreed Statement of Facts (“ASF”) was filed. Mr. Coplin-Duran did not testify. No other witnesses were called by the defence.

[5] The issue to be determined in this case is whether Crown Counsel has proven beyond a reasonable doubt that Mr. Coplin-Duran had knowledge of the two firearms in the Honda. I find that he did.

[6] Mr. Coplin-Duran is convicted of all charges. What follows are my reasons.

Analysis

[7] As I have stated above, the real issue to be determined in this case is whether Crown Counsel has proven beyond a reasonable doubt that Mr. Coplin-Duran had knowledge of the two firearms in the Honda. All of the other essential elements of the offences have been proven beyond a reasonable doubt, mainly as a result of the ASF filed. I have attached a copy of the ASF as Appendix “A” to these reasons.

The Primary Facts

[8] This is a circumstantial case and as such, I will start with my analysis of the primary facts from which I draw my inferences. (The letters in each title below correspond to the primary facts in paragraph 23 that follows.)

a. Messrs. Coplin-Duran and Bell were acquaintances.

[9] There is no doubt that Messrs. Coplin-Duran and Bell were acquaintances of some sort. Mr. Bell testified that as of the date of trial, they had known each other for a period of approximately two years. They had met through a mutual friend. On occasion, Mr. Coplin-Duran would drive Mr. Bell to and from various locations. That is what happened that day. Mr. Coplin-Duran had driven Mr. Bell to the hospital because he had injured his hand. Mr. Bell got his own ride home. Hours later, Mr. Coplin-Duran picked up Mr. Bell. They had something to eat. When stopped by R.I.D.E., they were on their way to see a friend.

b. Mr. Bell’s hand was bandaged.

[10] Mr. Bell testified that, on the date in question, he had cut the base of his thumb. He had attended at the hospital and he required stitches. He said that he was in a cast for about 2-3 weeks. I accept this evidence as true. One of the OPP officers observed the bandaging.

c. On the date in question, Mr. Coplin-Duran was driving a Honda, Mr. Bell was the passenger. Both were nervous.

[11] Various officers testified about arresting both Messrs. Coplin-Duran and Bell after being stopped by R.I.D.E. Mr. Coplin-Duran was driving the Honda. Mr. Bell was sitting in the front passenger seat. OPP Officer Tara Bolstad noticed that Mr. Bell was bent over at the waist. She could not see his hands and what he was doing.

[12] Officer Bolstad described both Messrs. Coplin-Duran and Bell as nervous, although Mr. Bell was more so. Mr. Bell was “shaking uncontrollably”. Mr. Coplin-Duran appeared “generally nervous” which she conceded is typical when someone is being arrested.

d. Mr. Coplin-Duran is the registered owner of the Honda.

[13] Mr. Coplin-Duran was the registered owner of the Honda at the time of his arrest. The ASF states as follows:

A search of Ontario Ministry of Transportation documents conducted on April 11 2016 showed that the Honda vehicle with licence plate BTMW 129 was at that time registered to Eric M. Coplin [the defendant], with an address of 607-40 Falstaff Avenue, Toronto Ontario M6L 2E1. This vehicle was also registered to Mr. Coplin-Duran on July 5 2014.

e.-j. Marijuana and firearms were found in the Honda

[14] Mr. Bell testified that there was marijuana in the Honda. I accept this evidence as true.

[15] At the R.I.D.E. stop and when the window of the Honda was rolled down, the officers said that they “smelled” or “saw” weed (marijuana). The ASF confirms this and provided as follows: “The green leafy substances and flakes seized in the car were all sent to Health Canada for analysis, and all tested as marihuana.”

[16] I also accept the evidence of P.C. Vincent Hick, a member of the OPP Canine Unit. That night, he was working with his dog “Cash”. He and Cash were called to the scene of the R.I.D.E. stop in an effort to detect narcotics. Cash is also qualified to detect firearms. That is what he did when he entered the Honda. Cash found both marijuana and firearms in it.

[17] When Cash entered the Honda, the following occurred:

a. Cash picked up on the scent of two bags of marijuana in the pocket of the driver’s side door. P.C. Hick retrieved the bags containing 8 and 9 grams of marijuana respectively. b. Cash picked up on the scent of a second firearm located in the cavity of the centre console on the passenger side, closest to the passenger seat: the Iver-Johnson. When P.C. Hick pulled back the plastic from the base of the console, he was able to retrieve the firearm that was facing barrel down. c. Cash picked up on the scent of a firearm in the cavity of the same centre console, but closer to the passenger side foot well underneath the glove box. When P.C. Hick tugged at the corner of the console from the bottom, another firearm fell out. Again, its barrel was pointing down. d. Lastly, Cash picked up on the scent of another bag of marijuana in the cavity of the same centre console. It was closer to the back of the passenger seat. P.C. Hick opened the console, again from the bottom, and a third bag of marijuana was found. It contained 29 grams.

[18] These facts lead to the conclusion that there were two firearms and marijuana found in the cavity of the centre console in three different locations. Marijuana in two smaller amounts was found in the driver’s side door.

k. Mr. Bell’s DNA was found on a firearm.

[19] Mr. Bell’s DNA was found on the Iver-Johnson firearm located in the console, closest to the passenger seat (as opposed to the foot well). The ASF provides as follows:

i. DC Tibay swabbed the guns for DNA and sent the samples to the Centre of Forensic Sciences (the “CFS”). The samples were analyzed by biologist James Currie, who produced a report dated November 9, 2015. ii. Biologist Currie determined that there was DNA suitable for comparison on the Iver Johnson firearm. Biologist Currie concluded that the probability that Nathaniel Bell was not the contributor of this DNA was a 1 in 12 quadrillion chance. In plain language, he concluded that Nathaniel Bell’s DNA was on the Iver Johnson firearm.

[20] When Mr. Bell was asked how his DNA was found on one of the firearms in the Honda he provided an explanation. He testified that his thumb was bleeding when he was picked up by Mr. Coplin-Duran. When he put his seat belt on, the blood dripped from his injury and that is how his DNA got on the firearm. He further testified that he did not see any firearms in the Honda that night so he could not have touched them.

[21] Neither counsel asked me to accept Mr. Bell’s evidence regarding the DNA as reliable. I agree and I do not. Mr. Bell’s evidence as to how the DNA got on the firearm is illogical. It is also contradicted by a subsequent finding of biologist Currie that was provided to the Court following the completion of Mr. Bell’s evidence.

[22] Crown Counsel advised that biologist Currie “weighed in” on the issue as to whether or not the DNA got on to the firearm because a drop of blood dripped from Mr. Bell’s injured hand. He confirmed that the DNA profile on the firearm was not amplified by a blood sample.

[23] Based on the abovementioned analysis and the ASF, the following are the primary facts which I accept:

a. Messrs. Coplin-Duran and Bell were acquaintances. b. On the date of arrest, Mr. Bell had suffered an injury to his hand and it was bandaged. c. At the time of the R.I.D.E. stop, Mr. Coplin-Duran was driving the Honda. Mr. Bell was in the passenger seat and bent over. Both appeared nervous but Mr. Bell appeared more so. d. A Honda motor vehicle was registered to Mr. Coplin-Duran at the time. e. There were two loaded firearms found in the cavity of the centre console of the Honda: on the passenger side of it. One was found adjacent to the passenger seat. The second was found closer to the foot well on the passenger side. f. The two firearms were within arm’s reach of both Mr. Coplin-Duran from the driver’s seat and Mr. Bell from the passenger seat. g. Both firearms were loaded. One had a bullet in the chamber. h. The firearms were accessed, by the OPP who searched the Honda, from the base of the centre console. i. The two firearms had their barrels facing down when located. j. Marijuana was found in the side pocket of the driver’s side door and the cavity of the centre console. Flakes of marijuana were also found in plain view. k. One of the firearms (the Iver-Johnson) has traces of DNA from Mr. Bell.

The Inferences to be Drawn from the Primary Facts

[24] The evidence in this case is circumstantial. As such, I can only convict Mr. Coplin-Duran if I am satisfied that the only reasonable inference to be drawn from the circumstantial evidence is guilt. I am so satisfied.

[25] In coming to my conclusion of Mr. Coplin-Duran’s guilt, I remind myself of the principles that I must consider in a case such as this. [1] Because circumstantial evidence requires inferential reasoning, it is important that I consider the reasonable alternative inferences in assessing the strength of the circumstantial evidence. In doing so, I remind myself of the following principle: am I satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty? [2] Any inference I draw must be one that can be “reasonably and logically drawn; it cannot depend on speculation or conjecture, rather than evidence, to bridge any inferential gaps”. [3]

[26] Further, I remind myself that circumstantial evidence is not to be evaluated piece by piece, but rather it is to be considered cumulatively. A trier of fact’s application of logic, common sense and experience to the evidence engages consideration of both inherent probabilities and inherent improbabilities and, not infrequently, eliminating the likelihood of coincidence. [4]

[27] I also adopt the wisdom of McEachern C.J.B.C. in the case of R. v. To. He stated as follows:

It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof especially for inferences consistent with guilt, but it does not demand certainty. I do not think it can be properly said that the inferences of knowledge in this case would be unreasonable or unsupported by the evidence. [5]

[28] Counsel for Mr. Coplin-Duran submits that there is a reasonable inference to be drawn from the primary facts that lead to the acquittal of Mr. Coplin-Duran. That is this: when Mr. Bell realized the Honda was being stopped by the R.I.D.E. program, he immediately secreted the firearms in the cavity of the centre console. This is consistent with Officer Bolstad who saw him bent over while seated in the front passenger seat and a firearm being found in the foot well. The Iver Johnson was found near the gear box adjacent to Mr. Bell’s hands and knees. I do not accept this submission.

[29] To accept Mr. Coplin-Duran’s submission would be to accept the following: Mr. Bell, with one hand injured and in a cast, entered the Honda with two loaded firearms. He possessed them as they dined in one location and got into the Honda to go to a friend’s – all while in the company of Mr. Coplin-Duran and unnoticed by him. When they saw the R.I.D.E. program, Mr. Bell took the two firearms off his person. He pulled out the plastic of the centre console and placed one firearm in the cavity next to him and one in the cavity near the foot well of the Honda. This does not make sense.

[30] Mr. Bell would have to know that the cavity of the console was hollow and that it could be retracted to insert and hold the firearms. He would have had to secret the items between the time they saw the OPP, were pulled over and the OPP officer approached ‑ all while wearing a cast on one of his hands. He would have had to place the firearms individually in the console because they were found in two different locations.

[31] I find that the reasonable inference to draw from the primary facts is that the firearms were put in the cavity of the console and that Mr. Coplin-Duran had knowledge of them. I agree that not everyone who drives a motor vehicle with concealed objects necessarily knows of the presence or nature of the items concealed in it. More than simple proximity is required. [6] There is more in this case:

a. Mr. Coplin-Duran is the owner of the Honda. He was driving it at the time and his passenger was his acquaintance, Mr. Bell. Mr. Bell had a cast on one hand resulting from an injury attended to at the hospital earlier that day. It would have been difficult for Mr. Bell to secret the firearms in two different locations during the time between seeing the OPP and the approach by the OPP officer, especially with one injured hand. b. The firearms were located close to Mr. Coplin-Duran, even if they were in the console closer to the passenger side of the Honda where Mr. Bell was seated. c. There was marijuana found in the pocket of the driver’s side door in two separate packages, in two small quantities (8 and 9 grams respectively). There was a larger bag of marijuana (29 grams) found in the same cavity as the two loaded firearms. The inference to be drawn is that Mr. Coplin-Duran had knowledge of both. d. The proximity of the firearm to the marijuana might suggest that the firearms were meant to protect a drug dealer from the loss of the drugs and the proceeds of sale. The firearms and marijuana were next to Mr. Coplin-Duran as he drove the Honda. e. The manner in which the firearms were secreted together with the marijuana was designed to keep all three items out of view while maintaining access to them. Although concealed, the three items were readily accessible to an occupant of the Honda. [7] The items had to be secreted by a person who knew the cavity was hollow. Mr. Coplin-Duran was the owner and driver of the Honda at the time.

Conclusion

[32] In my view, the only reasonable inference to be drawn from the above noted facts is that Mr. Coplin-Duran had knowledge of the firearms secreted in the Honda. As such, he is guilty of all counts on the indictment.

Kelly J.

Released: May 10, 2017

Appendix “A”

To the Reasons of Kelly J. dated May 10, 2017 R v Eric Coplin-Duran

DRAFT Agreed Statement of Facts

Vehicle Ownership

1. A search of Ontario Ministry of Transportation documents conducted on April 11 2016 showed that the Honda vehicle with licence plate BTMW 129 was at that time registered to Eric M. Coplin, with an address of 607-40 Falstaff Avenue, Toronto Ontario M6L 2E1. This vehicle was also registered to Mr. Coplin-Duran on July 5 2014.

The Two Seized Firearms

2. The Lorcin L25 semi-automatic handgun and Iver Johnson revolver both contained ammunition upon discovery, making them “loaded firearms” or “firearms with ammunition” within the meaning of the Criminal Code. The ammunition in the firearms was tested and found to meet the Criminal Code definition of “ammunition”.

3. Continuity of the seized firearms is not in issue.

4. Both firearms were tested and found to be functional, in proper working order.

5. Both firearms were examined and found to be “prohibited firearms” within the meaning of the Criminal Code.

6. Mr. Coplin-Durran and Mr. Bell do not have an authorization, licence or registration certificate that would allow either one to lawfully possess, own, handle or transport firearms.

The Iver Johnson Firearm

Break and Enter

8. Sometime between the hours of 8 pm on Tuesday March 10 2009 and 10 am on Wednesday March 11 2009, a break and enter occurred at the residence of 1 Dow Ave, in the City of Hamilton.

9. Police investigated and spoke to the home owner Gary Geddes (now deceased), who advised that a number of items had been stolen from the residence, including coins and money, a camera, a diamond ring and three handguns that he had stored in a safe.

10. One of the stolen handguns was the Iver Johnson Model –Safety Hammer Automatic that was found in Mr. Coplin-Duran’s vehicle on July 5 2014.

11. A fingerprint located at the scene of the break and enter matched a known offender by the name of Matthew Whaley, who was subsequently arrested for that break and enter, and admitted in a video statement to stealing the Iver Johnson firearm.

12. Police are not aware of any connections, links or associations between Mr. Whaley or Mr. Geddes and either of Mr. Coplin-Duran or Mr. Bell.

DNA

13. On July 9 2014, DC Tibay of the OPP obtained the two seized firearms –the Lorcin and the Iver Johnson.

14. DC Tibay printed the guns for fingerprints, but no fingerprints were found.

15. DC Tibay swabbed the guns for DNA and sent the samples to the Centre of Forensic Sciences. The samples were analyzed by biologist James Currie, who produced a report dated November 9 2015.

16. Biologist Currie determined that there was DNA suitable for comparison on the Iver Johnson firearm. Biologist Currie concluded that the probability that Nathaniel Bell was not the contributor of this DNA was a 1 in 12 quadrillion chance. In plain language, he concluded that Nathaniel Bell’s DNA was on the Iver Johnson firearm.

17. There was no DNA suitable for comparison on the swab submitted from the Lorcin firearm.

Marihuana

18. The green leafy substances and flakes seized in the car were all sent to Health Canada for analysis, and all tested as marihuana.

Footnotes

[1] See: R. v. Al-Kisadi, 2011 ONSC 6412 where I considered these principles in a circumstantial case. [2] See: R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.) at paras. 33-34 [3] See: R. v. Alexander, 2006 ONSC 26480 (SCJ) at para. 29 [4] See: R. v. Consulo, 2011 ONSC 1349, [2011] O.J. No. 4204 (S.C.J.) at paras. 234 and 235 [5] R. v. To, 1992 BCCA 913, [1992] B.C.J. No. 1700. See also: U.S.A. v. Huynh (2005), 2005 ONCA 34563, 200 C.C.C. (3d) 305 (Ont. C.A.) [6] See: R. v. Amado, 1996 BCSC 2961, [1996] B.C.J. No. 1943 (S.C.) at para. 33 [7] See: R. v. McIntosh, [2003] O.J. No. 1267