CITATION: R. v. Smith, Wynter, 2017 ONSC 4995
COURT FILE NO.: CRIMJ(P) 1413/16
DATE: 2017 09 19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Christopher Presswood, for the Crown
Respondent
- and -
SABASTIAN ST. PATRICK SMITH
Corey Nishio, for Sabastian St. Patrick Smith
and
OWAYNE WYNTER
Olabode Odetoyinbo and Gurpreet Singh for Owayne Wynter
Applicants
HEARD: August 1, 2 and 3, 2017
JUDGMENT
Justice Thomas A. Bielby
INTRODUCTION
[1] On the indictment before me there are six counts arising from the September 23, 2014, seizure of a 45 caliber loaded handgun.
[2] As a result of my pre-trial rulings, at the request of the Crown, the charges against Sabastian Smith have been stayed.
[3] The accused, Owayne Wynter, was charged with the following,
possession of a restricted firearm contrary to section 91(1) of the Code,
possession of a restricted firearm while knowingly not being the holder of a license permitting such possession, contrary to section 92(1) of the Code,
possession of a restricted firearm, at 7 Fairlawn Boulevard in Brampton without being the holder of an authorization or licence permitting such possession at that place contrary to section 95(1) of the Code,
possession of a restricted weapon, knowing that such firearm had been obtained by the commission of an offence, contrary to section 96(1) of the Code,
storage of a firearm in a careless manner, contrary to section 86(1) of the Code, and
storage of ammunition in a careless manner, contrary to section 86(1) of the Code.
[4] In the early hour morning of September 23, 2014, the Toronto police executed a search warrant of a house, located at 7 Fairlawn Blvd. in Brampton.
[5] The accused resided there along with his parents and two brothers, one of whom was a minor.
[6] The handgun was discovered, wrapped in a blue t-shirt, on a shelf of a piece of furniture described as a TV stand (the unit) stored in the garage.
EVIDENCE
[7] The Crown's evidence consists of the testimony of three City of Toronto police officers, all members of the guns and gangs unit.
[8] The police, as a result of a tip from a confidential informant (CI), were conducting surveillance on Sabastian Smith and his home at 19 Ridgefield Court, Brampton. The tip also referred to an associate of Smith who lived nearby and 7 Fairlawn is a nearby address.
[9] On September 21, 2014, at 5:30 pm the silver Mercedes Benz automobile (the car) owned and operated by Smith pulled into the driveway of 7 Fairlawn Blvd. An unknown male, later identified as the accused, and Smith got out of the car and walked up to the front door. The accused entered the home and Smith returned to his car and left.
[10] At 6:05 pm the car returns to the driveway at 7 Fairlawn Blvd. and the accused exited the house and got into the car.
[11] At 6:10 pm the car was observed at a Royal Bank branch. Both Smith and the accused entered the bank, exiting at 6:12 pm.
[12] They were observed again at 6:30 pm driving southbound on Airport Road.
[13] At 6:38 pm the car stopped at 8 Coachwhip Road and both Smith and the accused got out of the car and went into the residence. At 6:41 pm the two men left the house, got back in the car and drove away, northbound on Coachwhip Road.
[14] No investigation was conducted to determine who resided at 8 Coachwhip Road. The accused testified that he had family residing at either 10 or 11 Coachwhip Road.
[15] At 10:54 pm on September 22, 2014, the car was observed pulling into the driveway of 7 Fairlawn Blvd. The accused was in the front passenger seat. He got out of the car and went into the house. He opened the garage door from the inside and Mr. Smith then exited the car and walked into the garage. The officer could not see what the two men were doing in the garage. At 11:01 pm Smith returned to his car and left.
[16] None of the officers ever saw a handgun in the hands or possession of either Smith or the accused. No officer saw any exchange of any kind between Smith and the accused.
[17] The handgun was first observed by the police when it was discovered during the search.
[18] Search warrants were executed at 2:10 am at both 19 Ridgefield Court and 7 Fairlawn Blvd. Detective Constable Bishop was tasked with searching the garage at 7 Fairlawn Blvd. He located the handgun, as noted, wrapped in a blue t-shirt in the unit. The unit had been pushed up against the exterior garage door to cover a rather large hole in the door.
[19] As a result of what was found, the accused, along with his father, Edward, and his adult brother She-Vohn, were arrested and transported to the police station. Shortly thereafter Edward and She-Vohn were released.
[20] During the search of the Ridgefield address Smith was arrested and a number of pictures (Exhibit 3) were downloaded from Smith's cell phone. The pictures were of Smith in the Wynter garage at 7 Fairlawn Blvd. Some of the pictures were "selfies". The accused was not in any of the pictures.
[21] Two of the pictures show what appears to be the handle of a handgun protruding from the right front pocket of Mr. Smith's jeans.
[22] In regards to the handgun and the blue t-shirt, there was no fingerprint or forensic evidence obtained. Officer Bishop testified that he could not say who owned the t-shirt.
[23] Constable Bishop testified that after discovering the gun he examined it and noted that there was no bullet in the chamber but there were five rounds in the magazine.
[24] Officer Bishop had no interaction with the accused and never saw him with a gun or storing a gun.
[25] The interior of the garage was described by the officer as a disaster and it was his opinion that all the occupants of the home contributed to the disaster.
[26] After locating the handgun, pictures were taken and the officer continued his search of the garage. Numerous documents were noted including some addressed to the accused. Other documents were the property of other occupants of the home.
[27] Detective Constable Bishop, as well as searching the garage was tasked with taking photos of the 7 Fairlawn Blvd. residence. Through this witness was entered Exhibit 5, being a series of photographs taken by this officer. A number of the pictures are interior shots of the garage. The pictures, in part, focused on the documents, correspondence and papers found in the garage.
[28] The pictures also identified what was likely a seating area in the garage, that is to say, three chairs in close proximity.
[29] The accused testified on his own behalf. He was born September 16, 1990, and was married in June of 2017. He had completed his schooling as a plumber and is working full time. He continues to live with his wife and family at 7 Fairlawn Blvd. They are expecting their first child in December.
[30] In 2014 he was living there with his parents and his two brothers.
[31] The accused testified that he never owned a gun nor did he ever have a gun in his possession. He has never controlled a firearm.
[32] The accused testified that he never stored a handgun for a friend in his garage. His first knowledge of a gun in his garage is when the gun was discovered and he was charged.
[33] He testified that he never gave Smith permission to store anything in the garage.
[34] The accused described the garage and its contents as a mess.
[35] The accused explained that after they are done with their mail and bank statements or any other papers they do not just throw them out. They store them in the garage until they can be shredded.
[36] He testified that the garage is never locked and it can be accessed by opening the exterior garage door or even by using the hole in the door, although you would have to push the unit out of the way. The garage can also be accessed through an interior door.
[37] The accused testified that the blue t-shirt in which the handgun was wrapped was not his.
[38] He testified that all the member of his family had access to the garage and so did anyone visiting their home. In 2014 his then fiancée, now wife, and her friends would use the garage.
[39] When shown the pictures (Exhibit 3) he said he did not know who took them (other than the selfies) and that he had never seen them before.
[40] On cross-examination the accused acknowledged that he knew Mr. Smith and that at first they were friends. The accused testified that at some point he decided to turn his life around and registered to return to school in September, 2014.
[41] He acknowledged that the police surveillance had put him together with Mr. Smith three times between September 21st and 22nd. The accused testified that he did not know anyone at 8 Coachwhip Road but, as noted previously, that he had family at number 10 or 11 Coachwhip Road.
[42] In regards to the observation made of him going into the house and opening up the garage from inside, the accused testified that Smith asked about smoking (marijuana) but was told by the accused that he did not have any. Smith then went home.
[43] Mr. Wynter conceded that he and Mr. Smith sometimes smoked marijuana together.
[44] In regards to the chairs noted in the garage pictures, the accused testified that he sat in those chairs whenever someone came to see him. When he smokes pot he did so either in the garage or the backyard.
[45] As to other users of the garage, Mr. Wynter spoke of Bryan, Antonio and Andre.
[46] She-Vohn uses the garage with his friends.
[47] The accused denied the Crown's suggestion that he stored the handgun and had knowledge and control of it. He denied any knowledge that the gun was located in the garage.
[48] Eulette Wynter is the accused's mother and testified for the defence.
[49] She and her family have lived at 7 Fairlawn Blvd. since 2006.
[50] When questioned by the police she confirmed the evidence of the accused that other persons used the garage on occasion.
[51] She confirmed the interior condition of the garage and testified that much of the paper was waiting to be shredded however her shredder was broken.
[52] Eulette testified that she did not put the blue t-shirt, in which the gun was wrapped, in the garage. She testified that she has never seen Smith in the garage by himself.
[53] Eulette testified that she knew the accused smoked marijuana but she did not approve of it. He smoked with his girlfriend (now his wife) but she was not aware he smoked with Smith.
[54] On cross-examination she testified that in the days leading up to September 23, 2014, a lot of people used the garage.
[55] She testified that she recalls that on the Sunday before the search, during the day, Smith hung out a bit in the garage.
SUBMISSIONS
[56] Counsel for the accused submits that this is a circumstantial case and that the Crown has failed its burden to prove the guilt of the accused beyond a reasonable doubt.
[57] Counsel submits that the accused's evidence ought to be accepted. He described his client's answers as forthright, candid and credible. There were no inconsistencies or contradictions in his testimony.
[58] It is submitted that his evidence as to the use of the garage is corroborated by the evidence of the accused's mother.
[59] It is submitted that there is no direct evidence of the accused holding or being in possession of a gun. No exchange was witnessed between the accused and Smith.
[60] It is submitted that the police have failed to establish that the accused was in possession of the weapon in issue. The accused had neither knowledge nor control over the handgun.
[61] The weapon was discovered in the garage, a part of the house that was easily accessible by other members of his family or even friends.
[62] While the accused and Smith and others used the garage on occasion to smoke, he certainly did not have control over the space. While there was significant paper in the garage related to the accused, there were other documents and cards in the name of other members of the family.
[63] Counsel for the accused submits that the evidence leads to multiple inferences resulting in, at the very least, a reasonable doubt.
[64] Defence counsel provided me with the authority, R. v. Tyrell 2014 ONCA 617, specifically paragraphs 29 and 30, which noted that the crime of possession of a prohibited loaded firearm is a mens rea offence requiring knowledge that an accused is in possession of a loaded firearm.
"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..."
[65] Counsel for the accused submits there is at least a reasonable doubt that his client had possession of the handgun and in regards to all the counts in the indictment, a finding of not guilty should be entered.
[66] Crown counsel submits that the accused ought to be found guilty of all the counts and that the evidence establishes his guilt beyond a reasonable doubt. The accused had possession of the handgun.
[67] He refers to the police surveillance of the accused and Smith in the garage at 7 Fairlawn Blvd. just before 11:00 pm on September 22, 2014. In the short period of time during which the police conducted surveillance, the accused and Smith were seen together on three occasions.
[68] The Crown submits that the accused is lying when explaining what transpired. He submits that the accused spends more time in the garage than any member of the family. He submits that the accused therefore had some control over the garage.
[69] The Crown submits that the only reasonable conclusion that can be inferred is that the accused had possession of the handgun. He had knowledge and control.
[70] The Crown argues that no one would store or hide such a weapon at anyone else's house unless he trusted the person and would know that it is safe.
[71] R. v. Balasuntharam [1999] O. J. No. 4861 is a decision of the Ontario Court of Appeal. The accused therein was the subject of a traffic stop. The officer detected a scent of alcohol and noted beer bottles in the car. He searched the vehicle and found weapons. The accused was convicted at trial.
[72] The Crown asks the court to consider paragraph 2 which reads:
"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-roung 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."
[73] The Crown submits that the subject of the matter before me (the gun) is property of such a nature that it would not be the subject of, unknowing possession.
[74] I do note a distinction. Having found weapons in the interior of a small car which is occupied by four individuals, it would be much easier to establish knowledge.
[75] R. v. Gagliardi 2005 CarswellOnt 1543, is a decision of Sproat J. of this court and is another weapons possession case in which knowledge was in issue. From paragraph 45 I quote,
"Now, the handgun in question here in the Toyota Tundra, certainly much more so that an AK-47 in a small car, could be the subject of unknowing possession. Having said that though, in my opinion, there is considerable force to the Crown argument that a loaded handgun is a valuable item. It is also a dangerous item for anybody who might come upon it unexpectedly in the vehicle. And it is also an item that had attached to it penal consequences. This handgun is not something that a criminal would be likely to deal with casually or carelessly. To paraphrase Justice Hill, it is improbable that a criminal would let this valuable asset out of his control risking discovery and loss."
[76] In the Gagliardi case the police discovered a handgun and knife in the console of the accused's truck. The accused was charged and convicted on multiple counts of possession of a prohibited weapon.
[77] It was determined that the only reasonable conclusion to be drawn from the evidence it that the accused was in possession.
[78] R. v. Fredericks [1999] O.J. No. 5549, is a decision of the Ontario Court of Appeal. The appellant had been convicted of possession for the purpose of trafficking. The appellant had stayed at the apartment of a man named Rudd who had a large quantity of drugs and cash in the apartment. The trial judge inferred that Rudd would not leave such a large quantity of drugs and cash unguarded and that the appellant was entrusted to be the keeper of the drugs.
[79] The appeal was dismissed. The inferences drawn by the trial judge were supported by the appeal court. From paragraph 3 I quote,
"Having regard to the totality of the evidence, we are of the view that there was sufficient circumstantial evidence form which the trial judge could properly conclude that the appellant had both control and knowledge of the drugs found in the apartment...The trial judge drew the further inference, that, given the circumstances of the appellant's arrival at the apartment and his presence in the apartment with this quantity of drugs and money, the appellant was entrusted to be the keeper of the drugs."
[80] The Appeal Court ruled that the inferences drawn by the trial judge were supported by the evidence.
[81] The Crown believes the handgun belonged to Smith and was being stored for him by the accused. The Crown relies on the following circumstantial evidence:
Smith and the accused are friends and associates.
The accused has access to the garage in which the handgun was discovered.
The pictures (Exhibit 3) show Smith in the accused's garage with what appears to be a handgun in his right front jean pocket.
The accused and Smith use the garage regularly to smoke marijuana.
ANALYSIS
[82] When this matter started, two pre-trial applications brought on behalf of both accused were heard and rulings were made.
[83] The trial proceeded thereafter in regards to the remaining accused.
[84] Given the nature of the charges, if I conclude that the accused was in possession of the loaded handgun then he is guilty of all the counts.
[85] The issue is, on these facts, whether or not the only reasonable inference to be drawn is that the accused was in possession of the handgun. Is it reasonable to conclude that he had knowledge of the weapon being stored in the garage and an element of control over it?
[86] As a first step in my analysis I have concluded that I do not believe the evidence of the accused.
[87] The primary reason for this is that I do not think the accused was upfront in regards to his relationship with Smith. The surveillance was only conducted over two days and the accused and Smith were observed together at least three times.
[88] I also have difficulty accepting the accused's evidence, and that of his mother, in regards to how paper was stored for shredding. Perhaps it is just a function of poor housekeeping but I would expect that such paper would be stored in bags at least, not just strewn around the garage. Their evidence on this point was nothing less than bizarre.
[89] Overall, the evidence of the accused was less than persuasive.
[90] The defence evidence however raises a reasonable doubt.
[91] In regards to the papers and documents noted in the garage, certainly a significant portion thereof related to the accused. However, these discoveries do not support a conclusion that the accused, while he had some control over the garage, had exclusive use of and/or control over the garage. Other materials and paper relating to other members of the household were also noted.
[92] Apart from the storage of papers and documents it is likely that other adult members of the household, along with others, made use of the garage.
[93] There is no direct evidence that the accused was seen in possession of a gun, or of any exchange of anything between the accused and Smith.
[94] There is no evidence to establish that the handgun seen in the pocket of Smith was the same weapon that was discovered by the police.
[95] The garage was never locked and could be accessed either through the large garage door or an interior door from the house into the garage. There was no fingerprint evidence or forensic evidence. The ownership of the t-shirt is unknown.
[96] Any consideration of what the accused and Smith were doing in the garage, as noted in the surveillance, is nothing more than speculation. The surveillance conducted by the police in which the accused was observed lasted only two days and fell short of linking the accused to Smith and the handgun.
[97] I acknowledge the theme of the authorities relied upon by the Crown in regards to the value of such a weapon, and that a person who owns the weapon is not going to leave it somewhere, or with someone, which or who does not have his trust. Such trust would likely require knowledge of the person with whom the weapon was stored.
[98] However, as I have noted, we do not have evidence to establish ownership of the gun. Further, because of his regular attendance at the garage with the accused, it is possible that Smith, if in fact the handgun was his, could have wrapped it in a blue t-shirt and placed it on a shelf in the unit, without the accused knowing he did so. Given his association with the accused and his regular attendance at 7 Fairlawn Blvd., such an act would not have been a matter of carelessness or overly casual.
[99] I cannot conclude that the only reasonable inference to be drawn is that the accused had knowledge of and control over the handgun and thereby possession of the handgun. There is a reasonable doubt in that regard.
[100] As a result thereof the accused, Owayne Wynter, is found to be not guilty in regards to all the counts on the indictment.
Bielby J.
Released: September, 19, 2017
CITATION: R. v. Smith, Wynter, 2017 ONSC 4995
COURT FILE NO.: CRIMJ(P) 1413/16
DATE: 2017 09 19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
SABASTIAN ST. PATRICK SMITH and OWAYNE WYNTER
Applicants
REASONS FOR JUDGMENT
Bielby J.
Released: September 19, 2017