CITATION: R. v. Brown, 2017 ONSC 5023
COURT FILE NO.: CrimJ(P) 1200/15
DATE: 20170824
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MATTHEW BROWN
Defendant
V. Aujla, for the Crown
D. Brown, for the Defendant
HEARD: July 24, 25, and 26, 2017
REASONS FOR JUDGMENT
Ricchetti, J.:
THE CHARGES
[1] A summary of the Mr. Brown’s charges are as follows:
COUNT #1: On July 9, 2014, possessing a firearm, without being a holder of a license to possess one, contrary to s. 92(1) of the Criminal Code;
COUNT #2: On July 9, 2014 altering a serial number on a firearm, contrary to s. 108(1)(b) of the Criminal Code;
COUNT #3: On July 9, 2014, possessing a prohibited weapon with readily accessible ammunition without being a holder of a license to possess one contrary to s. 95(1) of the Criminal Code;
COUNT #4: On July 9, 2014 possessing a prohibited weapon without being a holder of a license to possess one, contrary to s. 91(2) of the Criminal Code; and
COUNT #5: On July 9, 2014 storing a prohibited weapon and device in a careless manner contrary to s. 86(1) of the Criminal Code.
[2] At the conclusion of the trial, Crown counsel agreed that an acquittal should be ordered on Count #2.
[3] The only issue advanced by the Defence on the remaining charges was whether the Crown had proven beyond a reasonable doubt that Mr. Brown had knowledge of the firearm and related items in his apartment.
THE FACTS
[4] On July 9, 2014, the police executed a search warrant at 80 Scott Street, apartment 415, in Brampton. This is the one bedroom apartment of Mr. Brown. Mr. Brown was not in the apartment at the time of the execution of the search warrant.
[5] Mr. Brown is the sole tenant of this apartment. Many personal items belonging to Mr. Brown were found in the apartment.
[6] Mr. Brown has a key to his apartment.
[7] There is only one other known key to the apartment. Mr. Brown had broken up with his girlfriend approximately one week prior to July 9, 2014. He took back the other key and placed it in his apartment, he believes in a bowl.
[8] During the search, the police located, under the mattress in Mr. Brown's bedroom, a semi-automatic rifle and rounds of ammunition.
[9] The police located, in the bedroom closet, a tactical vest and a towel containing ammunition for the semi-automatic rifle and another firearm.
[10] Mr. Brown testified at the trial.
[11] Mr. Brown denied having knowledge of the firearm or the related items in his bedroom.
[12] Mr. Brown acknowledged he was the only person residing in the apartment up to July 6, 2014. On the evening of July 6, 2014, Mr. Brown went into a drug rehab program.
[13] On Saturday July 5, 2014, some friends dropped by Mr. Brown's apartment. They drank and consumed drugs with Mr. Brown. Mr. Brown believes he may have passed out that night. Everyone left Saturday evening or early Sunday morning.
[14] On Sunday, July 6, 2014, Mr. Brown remained in his apartment throughout the day. Later the same day, his business partner and ex-girlfriend came to his apartment. They insisted that Mr. Brown immediately go into a drug rehab program. Mr. Brown left the apartment with them that night and went into a drug rehab program.
[15] When released from the rehab program, Mr. Brown went to a police station. He was arrested.
[16] Upon his arrest, Mr. Brown gave a videotaped statement to the police.
[17] Mr. Brown testified he never returned to the apartment.
[18] Mr. Brown couldn’t say whether his girlfriend’s key remained where he had put it in his apartment. There is no evidence on this point, one way or the other.
[19] Mr. Brown’s apartment superintendent testified for the Defence. The superintendent testified that Mr. Brown regularly changed the locks to his apartment and would eventually give her a key to the changed lock. On the occasion leading up to the execution of the search warrant, Mr. Brown had changed the locked but she did not have a key to Mr. Brown’s apartment because Mr. Brown had not yet given her a key.
POSITION OF THE PARTIES
[20] The Crown submits that the evidence establishes beyond a reasonable doubt that Mr. Brown had knowledge and control of the firearm and related items as it is the only reasonable inference to be drawn from all the evidence.
[21] The Defence submits that there is a reasonable doubt that Mr. Brown knew of the firearm and related items.
THE LAW
[22] Section 4(3) of the Criminal Code provides:
For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
[23] Knowledge need not be proven by direct evidence. It may be established by inference drawn from circumstantial evidence. As Justice Hill wrote in the decision of R. v. McIntosh, [2003] O.J. No. 1267 at para. 43;
In crimes of unlawful possession, it is "not necessary for the prosecution to prove the required knowledge by direct evidence ... it could be inferred from the surrounding circumstances": R. v. Aiello (1978), 1978 2374 (ON CA), 38 C.C.C. (2d) 485 (Ont. C.A.) at 488; see also R. v. Anderson, 1995 1338 (BC CA), [1995] B.C.J. No. 2655 (C.A.) at para. 15-16. Frequently then, such cases are proven by circumstantial evidence: see R. v. Meggo, [1998] O.J. No. 2564 (C.A.) at para. 1.
[24] However, for the Crown to establish knowledge beyond a reasonable doubt, the only rational inference to be drawn from all the evidence is that the accused had the requisite knowledge. In R. v. Mullings, [2011] O.J. 1833 (Sup. Ct.) the court stated at paras. 25 and 41:
- In other words, if there are other rational conclusions to be drawn from the evidence, the Crown will have failed to prove its case (R. v. Bullock [2000] O.J. No. 798; R. v. Anderson, 1995 1338 (BC CA), [1995] B.C.J. No. 2655 (B.C.C.A.); R. v. Chualna, C.C.C. (3d) 192 (B.C.C.A.); R. v. Green; R. v. Rawlins, [1993] O.J. No. 1346 (O.C.A.).
ANALYSIS
Mr. Brown’s evidence that he had no knowledge of the firearm and related items?
[25] I reject the entirety of Mr. Brown’s evidence at trial. Mr. Brown’s evidence is neither credible nor reliable.
[26] Mr. Brown’s evidence was inconsistent, evasive and, his explanation as to how some other person might have gained access to his apartment to leave the firearm and related items without his knowledge, is entirely speculation.
[27] Let me provide a number of examples:
a) Mr. Brown denied he knew of the firearms and related items. Yet, when questioned by the police in August 2014 he made statements such as:
• relating to the firearm: “it wasn’t supposed to be there, put it that way” and relating to the vest: “Oh, I know what you mean”;
• when asked for an explanation, Mr. Brown said “I’m in the wrong place at the wrong time”;
• When asked: “So what-, I think what I’m hearing from you is it’s not yours, you’ve already said that, you know what, it’s not mine, I’ve got it wrapped up in it. It’s not mine. What I think is you’re holding it?” Answer: “Yeah, pretty much. Now I’m left holding the bag”;
• Later, in the interview, Mr. Brown said “It was supposed to be gone by now, put it that way”.
Mr. Brown’s explanation for these incriminating statements to the police was little more than he was tired and on medication - he didn’t know what he was saying. The voluntariness of Mr. Brown’s statements to the police was not challenged at trial. Mr. Brown did not appear tired, confused or impaired in the videotaped police interview. When asked in cross-examination, Mr. Brown confirmed that he understood what was being asked during the videotaped interview and conveyed what he wanted to say to the officer. These statements of Mr. Brown during the police interview, by themselves, go a very long way to establish Mr. Brown’s knowledge of the firearm and related items;
b) After initially suggesting that the firearm and related items could have been placed in his bedroom without his knowledge before or after July 6, 2014, Mr. Brown changed his evidence and suggested that someone must have done so after July 6, 2014. It was clear that a large semi-automatic rifle under the only mattress in the apartment could not go unnoticed if one slept in the bed. Neither could missing a large bullet proof vest in the bedroom closet go unnoticed for very long;
c) Mr. Brown admitted that, not only was he addicted to drugs at the time, he was also selling drugs to his friends. Selling drugs and firearms sometimes go hand in hand;
d) Mr. Brown denied that he changed the locks to his apartment on a regular basis. However, the other defence witness, the superintendent, was firm and unshaken on Mr. Brown’s habit of regularly changing the locks to his apartment. Such conduct would be consistent with someone having illegal items in his apartment; and
e) Mr. Brown speculated that the key he retrieved from his girlfriend a week earlier and put in the bowl, had been used by some unknown person in the brief period of time between July 6 and July 9, 2014, leaving illegal and valuable items in his apartment without Mr. Brown's knowledge or agreement. Even Mr. Brown agreed his version of events “sounds ridiculous”. It does.
[28] I reject Mr. Brown’s evidence that he did not know the firearm and related items were in his apartment.
Having rejected Mr. Brown’s evidence, does it nevertheless create a reasonable doubt as to Mr. Brown’s knowledge?
[29] For the reasons set out above, Mr. Brown’s evidence that he didn’t know about the firearm and related items, does not raise a reasonable doubt on this issue. The Defence theory is entirely speculation. Speculation based on a possible theory, which makes no sense and no evidentiary support, does not constitute a reasonable doubt.
Does the evidence establish beyond a reasonable doubt that Mr. Brown had knowledge of the firearm and related items?
[30] I am satisfied that the evidence establishes beyond a reasonable doubt that Mr. Brown had knowledge of the firearm and related items in his apartment.
a) Mr. Brown’s statements to the police are consistent with and describe his knowledge of the firearm and related items in his apartment. It matters not whether the firearm and related items belong to Mr. Brown. Mr. Brown admitted he had control over the apartment including who was allowed in and thereby had control over the firearm and related items;
b) The evidence discloses that Mr. Brown was the only one with a key to the apartment. As for the key he took back from his girlfriend, it would be entirely speculation to conclude that someone else retrieved that key from his apartment. It would be even further speculation that the same person later used the key without Mr. Brown's knowledge to leave the firearm and related items in the apartment;
c) The fact that Mr. Brown had changed the locks to his apartment and had not given a key to the superintendent, is a logical precaution someone would take if they knew they had illegal items in his apartment;
d) It makes no sense that some unknown person would have gone into his apartment in the intervening 3 days by some means (obviously using a key since the door had to be broken into by the police) and left valuable and illegal items not knowing when and if Mr. Brown would return. This theory, with absolutely no evidence to support it, is nothing but wild conjecture. This does not constitute another reasonable inference.
[31] I am satisfied that the only rational inference to be drawn from all the evidence is that Mr. Brown had knowledge of and control over the firearm and the related items in his apartment.
CONCLUSION
[32] Mr. Brown is guilty of Counts #1, #3, #4 and #5.
[33] Mr. Brown is acquitted on Count #2.
Ricchetti, J.
Released: August 24, 2017
CITATION: R. v. Brown, 2017 ONSC 5023
COURT FILE NO.: CrimJ(P) 1200/15
DATE: 20170824
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MATTHEW BROWN
REASONS FOR JUDGMENT
Ricchetti J.
Released: August 24, 2017