R. v. Quinn, 2017 ONSC 5812

R. v. Quinn, 2017 ONSC 5812

CITATION: R. v. Quinn, 2017 ONSC 5812

COURT FILE NO.: CJ8557

DATE: 2017-09-29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ROBERT QUINN

Leila Mehkeri, for the Crown

Talman Rodocker, for Robert Quinn

HEARD: September 25, 26 & 27, 2017

The Honourable Justice C.D. Braid

REASONS FOR JUDGMENT

I. OVERVIEW

1Early one morning, Robert Quinn went to a construction site to work as a bricklayer. Officers were conducting surveillance on Mr. Quinn throughout the day. In the afternoon, Mr. Quinn was working at the back of a house. Police arrested Mr. Quinn on outstanding warrants and seized a CCM gym bag from a garage at the partially constructed house next door. The police found a loaded handgun in the CCM gym bag.

2The sole issue at trial is whether the Crown has proven, beyond a reasonable doubt, that Mr. Quinn was in possession of the firearm.

II. CHARGES AND ADMISSIONS OF FACT

3Mr. Quinn faces nine charges, all related to the firearm:

i) Possession of a firearm without a licence;

ii) Possession of a firearm while prohibited by a court order;

iii) Possession of a loaded restricted firearm;

iv) Carry a firearm in a careless manner;

v) Possession of a weapon for a dangerous purpose;

vi) Possession of a firearm knowing that the serial number had been altered;

vii) Carry a concealed weapon;

viii) Being an occupant in a motor vehicle in which he knew there was a firearm; and

ix) Possession of a firearm knowing that he was not the holder of a licence.

4At trial, the following facts were agreed on:

i. That the .357 Magnum Revolver is a firearm as defined in the Criminal Code;

ii. That the recovered bullets were ammunition;

iii. That the firearm is capable of discharging the ammunition found loaded in the .357 Revolver;

iv. That the serial number on the firearm was defaced or altered;

v. That Mr. Quinn is not the holder of a firearms licence;

vi. That Mr. Quinn is subject to a s.109 order of prohibition that prohibits him, for life, from possessing any firearm;

vii. The continuity of the firearm is not in issue from the moment of seizure and thereafter;

viii. There were no fingerprints located on the firearm; and

ix. There was no DNA located on the firearm.

5In light of the admissions that have been made, counsel agree that the sole issue at trial is whether the Crown has proven, beyond a reasonable doubt, that Mr. Quinn was in possession of the firearm.

III. FACTS

6Having heard the evidence at trial, I make the findings of fact set out in the paragraphs below.

7On the morning of May 28, 2015, at approximately 6am, the Waterloo Regional Police began conducting surveillance at a residence at 1 Westview Court, Floradale. Officers observed Mr. Quinn getting into a motor vehicle and followed the vehicle to a McDonald’s parking lot in Waterloo.

8Cst. Joseph Morelli was part of the team of officers who were following Mr. Quinn. At approximately 6:53AM, Cst. Morelli saw Mr. Quinn in the McDonald’s parking lot in Waterloo. Mr. Quinn got out of the passenger side of a vehicle. He had a small dark gym bag in his hand. He put this bag into the trunk area of a black Kia Forte. Cst. Morelli was unable to provide any additional description of the small gym bag and made no observations of any markings on it.

9Mr. Quinn got into the passenger seat of the Kia Forte. The officers followed Mr. Quinn to a construction site in Kitchener. New homes were being built in the area, and were at various stages of construction. Numerous tradespeople were working in the area.

10At 7:15am, Cst. Brian Serapiglia saw Mr. Quinn get out of the passenger side of the black Kia Forte and move toward the trunk area of the vehicle. The officer drove past, turned his vehicle around, and drove by again. At this point, Cst. Serapiglia observed Mr. Quinn smoking. A CCM duffel bag was on the ground beside him. He did not see anyone else with Mr. Quinn.

11Mr. Quinn was working as a bricklayer on a new set of townhomes. There were three or four other bricklayers working close by. Mr. Quinn worked on scaffolding. In the morning, Mr. Quinn bricked one house; after lunch, he moved to work at the back of a townhouse at lot 99. These were single family townhomes with single car garages. Although the homes were still under construction, they had plywood exteriors so that one could not see the interior of the house.

12Steven Gregorio and Jose Gomes were working with Mr. Quinn that day. In the morning, all three of them worked at one house. After lunch, Mr. Quinn and Mr. Gomes moved to another house.

13Mr. Gregorio stated that Mr. Quinn had previously brought tools with him on an earlier workday, and had left them at the work site. Mr. Gregorio recalled that Mr. Quinn had a lunch bag and that they would leave their lunch bags in a garage or on top of a porch. He did not provide a description of Mr. Quinn’s lunch bag.

14Mr. Gomes testified that, when he and Mr. Quinn moved to a new location after lunch that day, they brought their tools and lunch boxes. They put these items inside the garage of the house beside the one where they were working. Mr. Gomes described Mr. Quinn’s lunch box as “like a travel bag”. He did not see anyone going into the travel bag other than Mr. Quinn, although he was unable to keep an eye on the lunch boxes while he was working laying bricks.

15Photos taken by the surveillance team show that Mr. Quinn purchased food from a canteen truck, and then ate food with other workers on the porch of one of the houses. Mr. Quinn did not have a bag beside him in those photos.

16At 11:40am, Cst. Morelli observed Mr. Quinn working on scaffolding. He was laying bricks over a garage opening. He stopped, got down, and took a small gym bag to the garage area of lot 98. Mr. Quinn returned to where he was originally working, got a black jacket and put it into the same garage. Cst. Morelli stated that Mr. Quinn did not have the bag when he was up higher on the scaffolding; however, when he got down, he had the bag. Cst. Morelli did not see where Mr. Quinn got the bag from. None of the photos of Mr. Quinn working on scaffolding depict a bag beside him.

17Mr. Quinn left the garage and went to work at the back of the house on lot 99. The garage of the house at lot 98 had a large opening at the front that did not have a door on it. It is common for a garage to have an entry door from the interior of the house to the garage, but the police were unable to say whether such a door existed for the garage of lot 98.

18At 3:15pm, Cst. Morelli observed Mr. Quinn working on the scaffolding at the rear of the houses on lots 98 and 99. He observed that Mr. Quinn was able to move through a space between these two houses. Mr. Quinn went to the area where he had been initially working that morning, got a drink from a water cooler, and then returned to the rear of the houses on lots 98 and 99.

19At 3:21pm, Mr. Quinn was arrested on the strength of outstanding warrants. A team of five ERU officers approached Mr. Quinn at the back of lot 99 from opposite directions. They were dressed in tactical uniforms and had their weapons drawn.

20Although the police were conducting surveillance of Mr. Quinn throughout the day, the police did not maintain constant surveillance of the garage at lot 98. Apart from the observations of Cst. Morelli at 11:40am, the Crown has not introduced evidence of any surveillance of this garage area.

21A short time after Mr. Quinn was arrested, Cst. Brent Gerber located a CCM bag in the garage of lot 98. Cst. Morelli came into the garage and seized the CCM bag, which has been entered into evidence at trial. The CCM bag is a black and navy gym bag. It has CCM written in large white letters at two ends. It has white piping along the edges, and a small CCM logo on one of the sides of the bag. It has a shoulder strap and zippered pockets.

22Cst. Morelli searched the CCM bag and found a silver loaded .357 magnum revolver that was wrapped in three thin white plastic bags. All identifiers, including the manufacturer’s symbol and the serial numbers, appeared to be ground off the revolver. Cst. Morelli believed that the barrel of the gun had been cut shorter. Four live rounds of ammunition were in the cylinder. The hammer was sitting on a cylinder with a round in it. There was no safety mechanism on the gun.

23The CCM gym bag also contained items of men clothing and other items. The firearm was in the main pocket of the CCM gym bag underneath the clothing. No evidence was provided regarding whether the zipper on this main pocket was open or closed when police found it. The police did not find any names or identifiers on any of the items in the bag.

24Cst. Morelli stated that the size of the CCM gym bag was consistent with the size of the bag that he saw Mr. Quinn carry to the Kia forte vehicle in the McDonald’s parking lot at 6:53am. When he saw the bag at 6:53am, he did not see any distinctive features such as a CCM logo or white piping.

25Cst. Morelli stated that the small gym bag that he saw at 11:40am was roughly the same size and style as the CCM bag. When he saw the bag at 11:40am, he did not see any distinctive features such as the CCM logo or white piping. Cst. Morelli conceded that there was uncertainty about whether the bag that he saw was the CCM bag, especially considering that the bag that Mr. Quinn carried from the scaffolding area was possibly a tool bag.

26Multiple photos and short videos were taken during the surveillance by two different officers. None of the photos or videos show Mr. Quinn with the CCM bag. None of the photos depict the inside of the garage of lot 98 before the CCM bag was removed by police.

27Mr. Quinn did not call any evidence at trial.

IV. ANALYSIS

28The sole issue at trial is whether the Crown can prove, beyond a reasonable doubt, that Mr. Quinn was in possession of the firearm. Proof of possession requires the Crown to establish the two distinct elements of knowledge and control: see R. v. Beaver 1957 CanLII 14 (SCC), [1957] S.C.R. 531.

29This is a circumstantial case that must be decided on the facts. In cases involving unlawful possession, knowledge can be inferred from the surrounding circumstances through the introduction of circumstantial evidence. The trier of fact must be satisfied that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: see R. v. Harris (2009) 2009 SCC 28, 244 CCC (3d) 289 (SCC).

30The Crown argues that there is ample evidence of Mr. Quinn’s possession of the CCM bag throughout the day. She argues that knowledge can be proven through circumstantial evidence and asks the court to make common sense inferences.

31Mr. Quinn was not seen in actual possession of the firearm. The Crown submits that Mr. Quinn was in constructive possession of the firearm; and that he kept it in a place for his use or benefit.

32The CCM gym bag has distinctive white markings on a dark background. However, Cst. Morelli did not observe those markings during his two sightings of a bag in Mr. Quinn’s possession earlier in the day. Cst. Morelli’s observations of a small gym bag are insufficient to establish, with any degree of certainty, that the bag that he observed was the CCM bag. It would be dangerous to assume that the bag that Cst. Morelli saw was, in fact, the CCM bag.

33In my view, the officers were extremely fair in giving their evidence. They did not embellish details. They conceded points of evidence where appropriate. Notably, Cst. Morelli conceded that there was some uncertainty as to whether the bag that he observed in Mr. Quinn’s possession was the CCM bag.

34Neither Mr. Gregorio nor Mr. Gomes were shown the CCM bag. They did not identify the CCM bag as Mr. Quinn’s lunch bag.

35The only confirmed sighting of the CCM bag was by Cst. Serapiglia at 7:15am, who saw the bag at Mr. Quinn’s feet at the roadside shortly after he arrived at the construction site. At that time, Mr. Quinn was not holding, carrying, reaching into or otherwise handling the bag.

36The CCM bag was in an open area at a worksite. Other workers had access to the area where the CCM bag was found. Mr. Gregorio described how workers sometimes put their lunch boxes in a garage area. Mr. Gomes testified that he had placed his lunch box in the same garage where Mr. Quinn put his lunch bag. However, apart from describing stacked cardboard boxes and an orange juice box, the officers did not describe any other items in the garage where the CCM bag was found.

37The CCM gym bag was stored in an open area that Mr. Quinn could not see from where he was working. Although it was not a great distance from the location where he was working, it certainly was not within his reach or his line of sight.

38The CCM bag contained no evidence of any identification. The police did not obtain any fingerprints, DNA, or other identification evidence from the CCM bag or its contents.

39The Crown argues that the court can make common sense inferences that Mr. Quinn was in control of the CCM bag and had knowledge of its contents. However, these inferences are not adequately supported by the evidence. Having considered the entirety of the evidence, I find that the evidence falls short of any reasonable inference that Mr. Quinn was exercising control over the CCM bag, or that he had knowledge of its contents.

40In light of the absence of proof of knowledge and control, I find that the Crown has not proven that Mr. Quinn was in possession of the CCM bag and the firearm.

V. CONCLUSION

41In the result, Robert Quinn is found not guilty on all charges.

Braid J.