R. v. Loots-Scott, 2017 ONSC 7217
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RYAN LOOTS-SCOTT
Defendant
COUNSEL:
C. Nadler, for the Crown
M. Macchia, for the Defendant
HEARD: September 25, 26, 27, 28, 29, October 2, 3, 4, 10, 11, 12, 2017
REASONS FOR JUDGMENT
TZIMAS, J.
INTRODUCTION
1On June 29, 2015 Ryan Loots-Scott was charged with the possession of a loaded prohibited firearm without being a holder of a license, and possessing ammunition, contrary to sections 92, 95(1), 108(1)(b), 117.01(01), 145(3), and 733.1 of the Criminal Code of Canada, R.S.C., 1985, c. C-4. He was also charged with the unlawful possession of methylenedioxyamphetamine (MDNA) and marijuana, contrary to the Controlled Drugs and Substance Act, S.C. 1996, c. 19. Ryan pleaded not guilty to the six charges related to the unlawful possession of the firearm and ammunition. He pleaded guilty to the charges related to the possession of marijuana and MDMA.
2The only issue before this court is whether Ryan knew about the existence of the prohibited firearm, which was found in a black Dickies jacket in his bedroom closet, and the ammunition, which was found on the floor of the same closet.
3Ryan denied any such knowledge. He testified that neither the gun nor the ammunition belonged to him. He had no idea of their existence in his bedroom closet and he did not know how those items came to be there. Sometime after his arrest, he learned that the items belonged to his friend Nick. Ryan explained that Nick specifically undertook to come to court to take responsibility for the items and “to make things right”.
4The Crown’s case was constructed entirely on the basis of circumstantial evidence. The Crown submitted that Nick’s evidence could not be believed, by extension Ryan could not be believed, and therefore, the only reasonable inference that could be drawn from the evidence before the court was that the firearm and the ammunition belonged to Ryan and that he concealed them in his closet.
5For the reasons that follow, I believe Ryan’s testimony that he did not have any knowledge of the firearm and ammunition located in his bedroom closet. I therefore find him not guilty of all the firearm and ammunition-related charges.
BACKGROUND
Agreed Facts
6In June 2015, Ryan lived at 42 Cannon Crescent, together with his mother, his five brothers and sisters, his uncle, and a family friend, Megan. The home was a two-storey residence with an attached garage and an unfinished basement. Although the parties disagreed on whether Legend and Nick also lived at this location, there was agreement that these two individuals spent significant time there. On the evening of June 29, 2015, Mr. Clarke was there, as was his car. Legend had moved out of the residence on the day of the police raid.
7Ryan was subject to a recognizance of bail in relation to charges for robbery with a face-mask. He entered into that recognizance on July 30, 2014. His mother, Ms. Jennifer Loots was his surety. One of the terms of his bail was that he not possess any weapons as defined by the Criminal Code. The police raid occurred on Monday, June 29, 2015. As of the preceding Friday, when Ms. Loots searched Ryan’s bedroom, she did not see any firearms, drugs, or ammunition there.
8Ryan was also subject to a two-year probation order made by Justice Schwarzl in relation to convictions for assault and uttering threats from January 24, 2014. One of the terms of his probation was to not possess any weapons as defined by the Criminal Code. In addition, Justice Schwarzl imposed a ten-year weapon prohibition pursuant to section 109(1) of the Criminal Code. This order prohibited Ryan from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.
9Members of the Peel Regional Police Street Crime and Gang Unit, (SCGU), had reason to believe further to information from a confidential informant that Ryan was in possession of a firearm and ammunition. The police obtained a search warrant for the residence of 42 Cannon Crescent to be executed on June 29, 2015 between 1:59 p.m. and 11:59 p.m. to search for firearms, ammunition and identification.
10The SCGU conducted surveillance on the residence during the day of June 29, 2015, prior to its execution of the warrant. At 11:07 a.m., a black male, 18-22 years old, with a blue shirt and an afro, walked into the residence. Prior to entering, this male stopped on the lawn and proceeded to look back and forth down the street numerous times. At 11:13 a.m., two different males exited the residence from the front door. Neither of them was Ryan. At 11:34 a.m. a dark skinned male arrived at the residence on a bicycle. This male met with and spoke to another male who had previously exited the residence.
11At approximately 12:40 p.m. Cst. Luc Perreault observed Ryan’s brother, Kyle, engage in a drug transaction. He observed a GMC vehicle pull up to the curb in front of the residence. A white male driver exited the vehicle and approached Kyle. He gave Kyle money and Kyle gave the white male a small Ziploc baggie. The male then drove away and pulled into a driveway down the street, around the corner. A heavy-set white male was also observed going into the Loots-Scott residence at 5:59 p.m.
12At Ryan’s direction Kyle also sold $5 worth of marijuana to a neighbour, Serge. Ryan told Kyle that he needed $10 for gas money. He asked Kyle to get some marijuana from the top of his dresser in his room. Kyle complied with the request.
13The police observed Ryan come home at approximately 7:47 p.m. on June 29, 2015. The police also observed people coming and going from the residence, as well as children playing at the front of the residence.
14The SCGU obtained the assistance of the Tactical and Rescue Unit, TAC, to enter and clear the residence because of the concern that there were risks associated with the entry. The entry was considered risky for a number of reasons: the police would be searching for a firearm; Ryan had a criminal record that related to violent crimes; there was information that there may be dogs in the residence; and there were young children in the residence.
15Two of Ryan’s brothers, Nathan and Kyle, who were outside of the residence when TAC approached the residence were detained by the police while other officers entered the home. TAC entered the home at 8:14 p.m. A large ram was used to force open the door of the residence. When the first two officers entered the residence, a large German Shepherd appeared and approached the police. Ultimately, two officers shot and killed the dog.
16When TAC entered the house they saw Ryan at the top of the stairs. Ryan came down without resistance and was taken into custody by Cst. Hesson. He was then handed over to Cst. Ian Holder of the SCGU. When Cst. Paradis searched Ryan he found $675 in cash on his person.
17TAC cleared the rest of the residence. A black male, who identified himself as Nicholas Clarke, also came down the stairs from the second floor. Jeremy Loots, Ryan’s 14 year old brother came up from the basement. Ryan’s 10 year old sister was present in the home on the main level and witnessed the shooting of the dog. She was ultimately taken to a neighbour’s residence. There was nobody else at the residence.
18The SCGU officers proceeded with the search of the residence at 8:40 p.m. Cst. Earl Scott rounded up the people associated with the residence in the living room while other SCGU officers searched the residence. Those individuals included Ryan’s three brothers, his uncle Ken Loots, and Nicholas Clarke.
19Cst. Daniel Young was the Exhibits’ Officer who organized and itemized the evidence. Immediately following TAC’s clearance of the residence, Daniel Young photographed the rooms of the residence. Cst. Young confirmed that there was a padlock on the door to Ryan’s bedroom and it seemed to be “broken” or not functioning.
20Cst. Holder searched Ryan’s room. There, he located four bags of marijuana, three of which contained approximately 29 grams of marijuana, and one with 4.4 grams, with a total value of $914. He also found, five smaller plastic bags containing MDMA (methylenedioxyamphtetamine), for a total weight of 2.6 grams, with a value of $260. He also found, a drug scale, Glad baggies for drug packaging, mail with Ryan’s name and home address listed, Ryan’s SIN card, other photo ID and a red construction vest.
21In the closet of Ryan’s bedroom, the officer found a black Dickies jacket. Concealed in the left hand pocket was a firearm. The firearm was removed from the pocket and, secured. Later, the cylinder was examined. The officer found five rounds of ammunition inside the gun. None of the rounds had been fired. Subsequent examinations of the gun confirmed that the gun was a Smith and Wesson .38 caliber prohibited revolver. The serial number to the firearm was scratched off to the point of being unidentifiable.
22In addition to the firearm, Cst. Holder found two boxes of .38 caliber “Winchester” live ammunition and one box of Centaur .38 caliber live ammunition. This ammunition was contained in a white and blue bag from the “LeBaron” store which was a hunting and fishing outdoor goods store. In a yellow plastic grocery bag located near the blue and white “LeBaron” bag, Cst. Holder found more ammunition, namely two boxes of .22 caliber “thunderbolt” ammunition.
23There was no dispute that Ryan did not have a firearms acquisition certificate or a licence. Nor did he hold a registration certificate issued under the Firearms Act, S.C. 1995, c. 39, or the Criminal Code.
TESTIMONY
a) Crown Witnesses in-Chief
24In addition to the agreed facts, the court heard evidence from several officers who were involved with, the surveillance of the Loots-Scott residence, the entry into the home, the search of the home, and Ryan’s arrest.
i. Cst. Tobias Mullinder
25Cst. Tobias Mullinder conducted some surveillance on the residence and then attended at the LeBaron store where he verified that the store carried .38 caliber Winchester ammunition. He was unable to obtain any information about when the particular ammunition might have been purchased.
ii. Detective Earl Scott
26Detective Earl Scott was the supervisor of the particular investigation and operation. He described the roles of the various officers. With respect to his own involvement he described how he went into the living room, searched for firearms, and then remained there with the other residents of the home who were brought there and asked to stay there. Detective Scott learned that Nick Clarke was Ryan’s friend. He said that he took statements from Ryan’s uncle, Ken Loots, and Ryan’s mother. He also said that he asked Nick to identify himself and confirmed that Nick lived there. He said that the entire team left the residence at 10:07 p.m.
iii. Cst. Jean-Luc Perreault
27Cst. Jean-Luc Perreault was part of the surveillance team and witnessed Kyle’s drug transaction activities during the day of June 29, 2017. He explained that the TAC team was briefed at 7 p.m. With respect to his own role during the raid, he explained that he arrested Kyle for possession and trafficking of a narcotic. He said that Kyle was a “very polite and co-operative kid”. Cst. Perreault also testified that he took the firearm and ammunition from Cst. Young.
iv. Cst. Adam Westbrook
28Cst. Adam Westbrook also participated in the surveillance of the residence. He watched as the TAC unit entered the residence. He heard a bang and then some popping sounds. Those sounds were ultimately identified as the police shooting of the dog. He later met two male individuals. The first was Nick, who told him that his home address was 122 Banting Court in Milton, his car was in the driveway, and provided him with his driver’s licence.
29The other individual was Jeremy Loots. At one point Jeremy was on his cell phone. Cst. Westbrook could hear yelling coming through the phone. He took the phone from Jeremy and heard a female voice tell him that she was his mother and the/ owner of the residence. He described the exchange as getting a verbal beating from the woman on the phone for ten minutes. Cst. Westbrook tried to explain the reason for the police’s presence at the house and to reassure her.
30Ms. Loots arrived at the house a few minutes later. According to Cst. Westbrook she was very angry. When she was shown the gun, Cst. Westerbrook said that she did a complete “180” and redirected her anger from the police to Nick. He said that Ms. Loots “lost it” and was upset that her son would have to face jail. He had to stand between Nick and Ms. Loots. Nick stood there shaking his head and denied any connection to the gun.
31Speaking generally about the finding of the firearm, Cst. Westbrook said that everyone was talking openly about the gun, although he could not verify if anyone showed the gun to Nick. Cst. Westbrook also did not know if anyone took a statement from Nick. He explained that from his own interaction with Nick he did not believe that he had anything to offer to the investigation. Based on his understanding of the search warrant, the response from Nick that he did not live there, and Nick’s very strong objections to Ms. Loots’ accusations against him, Cst. Westbrook concluded that there was no need to take a statement from Nick. Cst. Westbrook acknowledged that he did not have any detailed notes of his exchange with Nick but he did recall Nick telling him that he was a family friend.
32Once he left the residence, Cst. Westbrook went to 22 Division where he interviewed Ryan. He confirmed that Ryan was still wearing his work shirt, which was orange and had a label that read “Forest”.
33Speaking generally about the Loots-Scott family, Cst. Westbrook said that the police had many prior dealings with this family. He could not recall any specific details but he thought there were occurrence reports that related to one or two of Ryan’s brothers. He also recalled that after Ryan’s arrest on June 29, 2015, Ms. Loots had contacted another officer, who then passed the call to him. He scheduled a meeting with Ms. Loots but she subsequently cancelled the meeting.
v. Cst. Marc Kyle
34Cst. Marc Kyle was part of the TAC unit and was the first person to enter the residence. He saw a young female teen within about 15 feet. He was also confronted by a dog who displayed aggressive behaviour: his tail was dropped, he was showing his teeth and he was growling. Both he and Cst. Wannamaker shot at the dog.
35Cst. Kyle saw Ryan coming down the stairs from the second floor of the house. He also saw a black male come down from the top of the stairs. He was wearing black and yellow road crew wear. He thought that Cst. Hess took him into custody.
36Next Cst. Kyle cleared Ryan’s bedroom. He could not recall if the bedroom door was open or closed. He also could not recall any lock mechanism although he believed that the door was unlocked. He said that his notes did not indicate having to break into the room. He said that when TAC clears a room the door is typically left open. He also explained that any searches by TAC are limited to looking for people who may be hiding in the area. He recalled that Ryan’s bedroom had a small closet. He looked through it but did not find anyone there.
vi. Cst. Ian Holder
37Cst. Ian Holder took custody of Ryan from TAC. He said that Ryan identified himself as “Ryan” and that he was very quiet and nervous. Cst. Holder read him his rights and caution and explained to him that he would be taken to 22 Division. He then turned Ryan over to another officer and turned his attention to Ryan’s bedroom.
38Cst. Holder was the one to locate the firearm, the ammunition, and the drugs in Ryan’s room. He explained that the door to the bedroom was closed and that there was a padlock that was entirely on the body of the door. He did not see any mechanism attached to the padlock. He turned the doorknob and pushed the door in. He said that there was a strong smell of marijuana, some old food and that generally the room was dirty. Cst. Holder found a baggy on the dresser that contained MDMA. He also found a small scale on the floor behind the nightstand. He then opened the drawer and found marijuana in baggies. He left the baggies in the drawer until the Exhibits Officer could come to take pictures.
39Next, Cst. Holder identified a bundle of documents. He thought they were loose items that were found in the second dresser drawer. On cross-examination he agreed that some of the letters might have been on the floor instead of in the drawers. He explained that he propped up a bed to create space in the room. He found a red vest that had a TD VISA, an Ontario Photo ID, and two hand-written notes, one of which had Ryan’s name on it.
40With respect to the closet, the officer confirmed that he removed the sliding doors to facilitate the search. In the closet he found a black jacket. In the left pocket he saw a grey bag with a gun sticking out. In the right pocket he found a number of paystubs from Forest Contractors for the pay periods covering May 9 through to June 20.
41Cst. Holder then proceeded to search the floor to the closet where he found the bags with the ammunition. The jacket was hanging directly above the bags. He was shown a picture of the floor and verified its appearance before he moved anything. The picture depicted a mess on the floor.
vii. Cst. Daniel Young
42Cst. Daniel Young, the Exhibits’ Officer described his involvement in this matter. He explained that he took pictures of the exterior and interior of the Loots-Scott residence. He said that he photographed every room and that he was also called in to photograph the evidence that was found in Ryan’s bedroom. Speaking specifically about the door and the lock attached to it, Cst. Young explained that he closed it so that he could photograph the door and the lock. He said that in his initial go around through the various rooms, he would not have touched or moved anything. He also confirmed that he took pictures after the search as items were found, and before they were moved out of the residence.
43With respect to the drawers in the bedroom, Cst. Young thought that they were closed prior to the search. He did not have a picture of any closed drawers. Similarly, regarding some envelopes, Cst. Young could not recall if they were moved in or out of the drawer or if there were any on the floor.
44Regarding the discovery of the firearm in the jacket pocket, Cst. Young said that he was present when the gun was found. He recalled there were some documents in one of the jacket pockets. Cst. Young also said that he was not in the bedroom when Cst. Holder began the search of the closet. He said that Cst. Holder called him to the closet. He noticed that the closet doors that were previously there had been removed. He said that the jacket in question was on a hanger and hung on the bed that was propped up by the wall. He identified a series of photographs he took in sequence of the firearm, the jacket, the ammunition, and the plastic bags. He confirmed that the firearm and the paystubs were turned over at 9:20 p.m.
viii. Cst. Michelle Pflug
45Cst. Michelle Pflug was qualified as an expert in the area of friction ridge analysis. She gave evidence on the collection, identification and comparison of fingerprint evidence. She received and analyzed the firearm, the five boxes of loose ammunition, a grey plastic Walmart bag, a plastic LeBaron bag and a yellow Giant Tiger shopping bag. Out of all these items, Cst. Pflug found two single-digit prints on the LeBaron bag that she said belonged to Ryan. The downward orientation of fingerprints suggested a grip by a hand.
i. Defence Witnesses Ryan Loots-Scott
46Ryan testified in his own defense. He denied knowing anything about the firearm and ammunition being in his closet. He told the court that he came to learn soon after his arrest that the firearm and the ammunition belonged to Nick.
47Ryan testified that in June 2015 he was living at 42 Cannon Crescent with his mother, his five siblings, his two friends, Nick and Legend, and his brother’s girlfriend. His uncle Ken also lived at the home from time to time.
48Legend had been living with them in the basement for several months prior to June 29, 2015. He lived there because he had difficulties in his relationship with his mother. Ryan believed that Legend was in the process of moving out on June 29, 2015 and was not at the residence at the time of the police raid.
49Nick was living at Ryan’s place since November 2014. Ryan explained that he had known Nick for a number of years. For some time he lived in London, Ontario. In the summer of 2014 he returned to Milton. In November 2014, Ryan got him a job at Forest Contracting. Ryan was also working there. It was his uncle who helped him get that job. Nick had a car. The two decided that Nick would live at Ryan’s place, and in exchange, Nick would provide the transportation for both him and Ryan to and from work. Ryan said that his mother agreed with this arrangement.
50By June 29, 2015, Ryan and Nick had been working at Forest Contractors for almost a year. The work was seasonal. They would work between 50 to 60 hours, Monday through Saturday. Typically, they would get up at 4:45 a.m., make their lunches, and leave for work by 5:00 a.m. They would return home anywhere between 6:00 and 9:00 p.m. Initially, the two worked together as labour hands. The foreman, however, did not like them working together and placed them on different crews. If the two had the same shifts, they would travel back and forth together. When Nick finished ahead of Ryan, Nick would return home early and Ryan would take public transportation back home. Sometimes, Nick would pick him up at the bus station.
51Ryan explained that they would get paid every Friday and their earnings averaged in between $800 to $1,100 per week. After work, Nick would drive Ryan to the bank where he would make a deposit, either in his own account, or his mother’s account. He then stored his pay-stubs in the bottom of his drawer. He admitted that occasionally he would keep his pay stubs in his coat pocket.
52With respect to the accommodation and sleeping arrangements for Nick, Ryan explained that he shared his room with him. When his uncle Ken was staying at the house, Ryan would share his queen-sized bed with Nick. The two slept horizontally at opposite ends of the bed. When Ryan’s uncle was away from the house, Ryan would sleep in the room that his uncle used and Nick would remain in his room.
53On the subject of the padlock on the bedroom door, Ryan explained that he attached the padlock because some valuable jewelry, clothes and shoes had gone missing from his bedroom. The lock he bought came with two keys. He kept one key for himself and gave the other to his brother, Kyle. Ryan admitted that the lock mechanism was not reliable. Although it was not easy to unlock the lock without a key, it was possible to simply unscrew one part of the lock mechanism and disconnect the latch so as to gain access to the room. He said that Kyle and Legend did just that if they wanted to enter the room in his absence. Ryan elaborated that there was a time when Kyle was upset with him and had returned the key to the lock. As a result, if Kyle needed to access Ryan’s room he would unscrew the lock mechanism.
54Ryan admitted that he was a drug dealer and that he kept the drugs in his room. He explained that from time to time he would ask Kyle to sell drugs for him. When he was not home, Kyle could either use the key to enter the bedroom to obtain the drugs, or if he did not have the keys, he would unscrew the padlock.
55Neither Legend nor Nick had keys to Ryan’s room. Legend would enter the room to watch television on the flat screen. Ryan would leave the key in Nick’s car for Nick to use. Alternatively, Nick would ask Kyle for the key to the room.
56Regarding the clothes in his bedroom closet, Ryan explained that about half of the clothes in there were his and the other half belonged to Nick. He expressly denied that the black Dickies jacket belonged to him. He also did not think it belonged to Nick; in fact, he did not know to whom the jacket belonged.
57On the evening of June 29, 2015, Ryan explained that he came home on his own. Nick was already at home. Although he admitted to not recalling many details, he believed that he finished work between 4:30 and 5 p.m. that day, and made his way home using public transportation. He was wearing black jeans, a red work shirt issued by Forest, and work boots. The work location was at Highway 50 and Highway 7. Someone dropped him off at the bus station and he took public transportation from there.
58When he got home, he removed his work boots, put on his slippers and went up to his bedroom. He checked his phone and went onto social media. He found the door to his bedroom open but he did not know who had opened it. He recalled that in the morning when they left, he had locked the door. On his return home the lock was by the television stand. Ryan was not concerned about the unlocked door because he knew that Nick was already home. He said that the hinge to the lock mechanism that matched the trim was also there. Ryan recalled that when he got home, Nick was using the washroom located in the master bedroom.
59Ryan said that he was in the process of getting ready for a shower when he heard a loud bang and then he heard his dog. He saw the Tactical Officers come through the main entrance and then he heard shots. He was instructed to turn around and to come down and he complied. When he got to the bottom of the stairs Ryan said he was grabbed and put in zip-ties. Ryan recalled that he remained in his slippers He was told that he was arrested for possession of a firearm, and he was brought to a police cruiser where he was read his rights.
60As noted above, Ryan denied having any knowledge of the firearm and ammunition. He also said he had no knowledge of the LeBaron bag and could not explain how his fingerprint would be found on the bag. He said that he never went to the LeBaron store. Ryan went on to explain that on the day of his arrest, June 29, 2015, he did not have any explanation as to how the firearm and the ammunition came to be stored in his closet.
61About a month following his arrest, Ryan explained that he learned that the firearm and ammunition belonged to Nick. Ryan explained that he confronted Nick and asked him if he knew anything about the gun and his arrest. Nick offered an explanation that sought to implicate Legend. He told Ryan that he and Legend hid the items in Ryan’s bedroom closet. Eventually, Ryan learned that until the weekend before his arrest, Nick had kept the gun at an apartment where his friend, Alan Gonsalves was staying. Alan was in a relationship with Danielle Crawford and lived at her place. On the weekend of June 27, 2015, Alan had a domestic dispute with Danielle which resulted in his arrest. Following Alan’s arrest, Ryan was told that Danielle, who was also the mother of a young child, called Nick and asked him to come and retrieve the gun. Nick complied with the request and went with Legend to retrieve the gun and the ammunition.
62Ryan explained that he was suspicious of Nick’s initial explanation, especially given his attempt to place some of the blame on Legend. He explained that it did not make any sense that Legend would own a gun because Legend was not working at the time and he would not have been able to afford one. When he confronted Legend about this matter, Legend told him about the call that Nick received from Danielle and he reported Danielle’s request that Nick come to get the gun. Legend told Ryan that he accompanied Nick to Danielle’s place. Ryan understood that Legend picked up the gun and Nick picked up the ammunition but he also said that he was not entirely certain. Ryan went on to explain that eventually, based largely on what he heard from Legend, he “connected the various dots” and concluded that the gun must have belonged to Nick.
63Although Ryan said that he was initially very angry with the situation and with Nick, once Nick undertook to come to court “to make things right”, Ryan was prepared to forgive him. Nick did not say anything about going to the police with his admission and Ryan said that he did not ask Nick to go to the police. He said he was satisfied with Nick’s commitment to come to court. When asked if he did not mind being in jail for two years until his trial, when his name could have been cleared immediately, Ryan said that he did not mind waiting because he was already in jail on other charges. On October 2015, he was convicted of robbery and received a four-year sentence. In other words, one way or another he would still be in jail. He also said that he did not know that he could go to the police with the information he learned from Nick, and in any event he did not believe it would make a difference.
64Ryan also testified that he had a brief encounter with Alan on June 30 when he was brought to court. Although it was not entirely clear as to when he actually talked to Alan, Ryan said that he asked Alan about what happened. Alan confirmed that a firearm was located at Danielle’s apartment until his own arrest. He did not know what happened to the gun after his arrest. Ryan expressed disappointment about Alan’s troubles with Danielle.
65Ryan agreed that when he was first arrested on the evening of June 29, 2015, he lied to the police about his drug usage and related activities. He believed that if he admitted to owning and using the drugs, the police would treat that as an admission to owning everything in the room, including the impugned items. He had just witnessed the shooting of his dog, he was in shock by the situation, and he doubted that admitting to the drugs would make a difference to his situation. Rather, he feared that it would only reinforce the police’s view that because of his drug activities, the gun and ammunition also belonged to him.
66In cross-examination, Ryan was confronted with a picture of himself from his Facebook page and some rap lyrics. The Crown suggested to him that his hand gesture resembled the holding of a gun and an implied a warning to others that he had a gun. Ryan said that he was showing off his ring. The rap lyrics were by Rico Recklezz. Ryan said he did not intend anything in particular when he posted those lyrics.
ii. Ms. Dolores Clarke
67Ms. Dolores Clarke is Nick’s mother. She testified that her son and Ryan were friends for approximately 10 years. She knew that Ryan got her son the job at a company that had a name that started with the letter “F”. Until he got the job, Nick lived with her in Milton. Then he and Ryan worked out an arrangement that would have Nick give Ryan a lift. In exchange, Nick would stay at Ryan’s house. She said that Nick kept his clothes at Ryan’s home. He did not keep anything at her home. She did not know if Nick kept any valuable items or clothes in the trunk of his car. She did confirm that Nick owned an Altima vehicle.
68Ms. Clarke said that she had seven children. Five of the children live with her and two live elsewhere. She said that she only came to know Ryan five years into her son’s acquaintance with him. She said that she was concerned about the guys’ well-being and she arranged for a licensed pastor to come to the house to counsel both of them about getting out of bad activities and doing good things.
69With respect to Nick’s anticipated testimony, Ms. Clarke testified that she had no knowledge of such an intention until Nick was subpoenaed the previous week. When the police officer brought the subpoena, she received it and left it on Nick’s dresser. When she asked him about why he was needed in court, Nick told her that he would be going to Ryan’s trial. He did not tell her anything else about his intentions; he told her that she would hear everything in court.
iii. Mr. Nicholas Clarke
70Nick testified that the gun and the ammunition was his. He said that he brought it to the house on the Saturday night before Ryan’s arrest. He said that Ryan did not know anything about the gun or the ammunition. He explained that he bought the gun in 2014 when he was living in London. He wanted to have a gun for protection because two years prior to the purchase he was robbed while walking on the street. He did not report the robbery because he did not want to be labeled a snitch. The individuals that robbed him took $200 in cash and his cell phone. Nick would have been approximately 16 years old at the time of the incident.
71Nick was 18 years of age when he bought the gun. He provided the names of the individuals who arranged for him to buy the gun, which he said he bought for $2,000. Although he was vague on the specific timeline, he described how he bought the ammunition at a later time. He said that in addition to the ammunition that he needed for the gun, the person who sold him the bullets also gave him a box of .22s “for no reason”. Nick then explained that eventually he realized that the person wanted to get rid of those other bullets.
72When Nick moved back to Milton he said that he brought the gun with him but felt uncomfortable about keeping it at his mother’s place because of his younger siblings. He kept it in his car trunk for a while but then asked his friend, Alan if he could leave the gun with him. Alan agreed and Nick brought it to the place where Alan was living and stored it in the bathroom ceiling. Nick was aware that the apartment belonged to Danielle, Alan’s girlfriend but he was not aware that a young child also lived there; he never saw any child when he visited. He understood that Danielle, who was Alan’s girlfriend at the time, had a child but believed that the child lived with Danielle’s mother. His initial plan was to leave the gun there only for a few days until he could find a better place to store the gun. The few days extended to several months, largely because Nick said that he was working constantly and felt less threatened. He also said that he had not figured out where else he could take the gun.
73On the Saturday before Ryan’s arrest, Nick testified that Danielle called him at around 8 p.m. and asked him to come and get the gun because Alan had been arrested. She told him that she was scared about the gun being discovered and was worried about her child. She said she did not want to have anything to do with Alan anymore. Nick explained that he was in the basement with Legend when he received the call. Ryan was in his bedroom upstairs talking to a girl. Nick agreed to go get the gun. Legend wanted to go for the ride. When asked about why he brought Legend with him Nick said that he was not thinking. He also said that Legend knew that he was going to get the gun, so he did not think that Legend going with him was a problem.
74When he got to Danielle’s apartment he went straight to the bathroom, lifted the ceiling tile and removed the gun and the ammunition. He thought the gun was loaded with six bullets. Ryan explained that he put the gun under the driver’s seat. With respect to the ammunition he double-bagged it with bags that he had in his trunk.
75Nick said that by 10 p.m. he and Legend were back at the house. Ryan was still in the master bedroom. Mr. Clarke brought the gun and the ammunition to Ryan’s bedroom and hid the gun in the pocket of a black Dickies jacket and the ammunition under a pile of dirty clothes. He said that he chose that particular jacket because he did not believe that it belonged to Ryan. It had been in the closet for some time and he had never seen Ryan wearing the jacket. He said that the coat pocket was deep and he tucked the gun in so that it would not be seen. Nick was certain that Ryan would not see the gun.
76Speaking generally about Nick’s relationship with Ryan, he explained that he met Ryan Mr. when they were both 14 years old. He said that he moved to London in 2011 but returned back to Milton in mid-June 2014. He testified that Ryan helped him get a job at Forest Contractors in the fall of 2014 and he continues to work there. He explained that they both worked six days a week and arranged it so that in exchange for living at Ryan’s place, he would drive Ryan to work. He also testified that initially Ryan and he worked together. After two months, the employer became concerned that they were slacking off and placed them in separate crews.
77As a labour worker, Nick said that he was responsible for raking and shoveling. He also used small machinery. He described a daily routine that started at around 5:00 a.m. He would work until 5:00 to 6:00 p.m. and would have Sundays off. He explained that although he and Ryan would go to work together they would often finish at different times. When that occurred Ryan would either take the bus to return home on his own, or he would call Nick to pick him up at the bus station.
78His description of the other residents at Ryan’s home and the rooms that they occupied coincided with the evidence given by Ryan and the evidence of certain police officers. He explained that although he did not pay any monthly rent, he would help Ryan if he needed it. He could not recall any further specifics about the help he may have extended.
79Regarding his car, Nick said that he had a car though the registration was in his father’s name. He said that although he lived at Ryan’s place he had not bothered to change his address on his driver’s licence. His licence continued to show the Milton address. He also said that he kept his licence in his car.
80With respect to the living arrangements at Ryan’s home, Nick explained that he shared Ryan’s bedroom. When Ryan’s uncle was not staying at the house he testified that Ryan would sleep in the master bedroom and he would remain in Ryan’s room. When Ryan’s uncle was at the house, Ryan and he slept on the same bed in Ryan’s bedroom but at opposite ends of the bed and in a horizontal position. Nick moved out of the house one week following Ryan’s arrest.
81Nick identified his clothes in the bedroom closet, with the bulk of his clothes being on the right of the closet and Ryan’s on the left. He said that he would have stored his shoes and some documents in the closet. He also kept some of his valuables and his work clothes in the trunk of his car.
82Nick confirmed that there was a lock on the bedroom door. If he got home ahead of Ryan, either Ryan’s brother would let him in or he would unscrew the hinges to the lock. He admitted that he smoked weed but that he did not sell any drugs either for himself or for Ryan. He testified that Kyle sometimes sold drugs for Ryan. When shown a picture of the bedroom, Nick agreed that the bedroom was messy but he did not consider it too messy.
83Nick also recalled that Legend lived at Ryan’s home, although he believed that Legend was in the process of moving out of the home and that he was not there on the evening of June 29, 2015 when Ryan was arrested.
84On the evening of Ryan’s arrest, Nick thought that he probably came home at around 5:30 pm and that Ryan came home about 15 to 20 minutes later. When he got home, he asked Kyle to let him into Ryan’s bedroom and Kyle complied. He said that he relaxed and waited for Ryan to arrive. Their plan was to go to the gym. When the police arrived he was in the master bedroom. Ryan was in his room and was in the process of changing.
85Nick said that everything happened very fast. He heard the dog barking, he looked down from the top of the stairs and saw the front door fly open and the police come in. Then he saw the police shoot the dog. He went back to the master bedroom and became scared and nervous. He saw Ryan being taken out of the house. He recalled that Ryan did not have shoes on and had not had time to change out of his work clothes. He thought that Ryan was still wearing his steel boots.
86Nick then explained that everyone was asked to come out of the house. He said that as soon as he came down the police zip-tied him and one of the officers asked him for his car keys. Nick gave the police his keys but he said that he did not give the police any permission to search his car. He recalled Ms. Loots arriving at the house after Ryan’s arrest. She was angry and blamed him for what was going on.
87Initially, Nick waited inside the house but he recalled that he and the other residents were taken across the street until the house was cleared. Then they were brought back into the house. Nick testified that he did not speak to any police officer and that no police officer asked him for his name. He also said that nobody took his driver’s license from him. Finally, he said that he was never asked to provide the police with any statement. He was adamant that none of the officers asked him for his name and said he was taken by surprise when one of the officers indicated that he knew his name. Mr. Clarke did not recognize the name of Cst. Westbrook.
88Nick admitted that he did not say anything to the police about the gun but stayed quiet. He explained that he was in shock over the shooting of the dog, he was sad, he was nervous and he did not know what to do. He admitted that he expected the police to find the ammunition and the gun and indeed he learned that the police found these items. He also admitted that when the police asked him about the situation he said he did not know anything. In his testimony, Nick said that he did not think that it would change anything if he spoke up. He believed that Ryan would still be arrested.
89Finally, Nick testified on the circumstances of his admission to owning the gun and his discussion with Ryan. He said that he finally told Ryan about his involvement after Ryan was sentenced for the robbery conviction in November 2015. He said that he went to visit Ryan at Maplehurst. He said that he realized that he had made a mistake and wanted Ryan to forgive him for what he did.
90Nick said that in the very beginning, when he spoke to Ryan he was scared to tell him the truth and lied. He had some early conversations with Ryan but he did not admit to his involvement. In those conversations, Ryan was angry with him. Nick said that he did not tell Ryan that the gun belonged to him. He also did not say that the gun belonged to Legend but he implied that Legend was involved and connected to the gun. He told Ryan that he and Legend went and got the gun from Alan’s place and brought it to the house.
91Nick said that on November 23, 2015, he decided to come clean and admit to his ownership of the gun. At first, Nick said that Ryan was very angry with him. Nick also said that Ryan did not ask him to come to court. He said that he offered to come to court to tell the truth. He said that he only told Ryan about this intention. He said nothing to his mother. He did not say anything to the Crown because he said he felt uncomfortable.
92Nick admitted to knowing that whatever he said in court at this trial could not be held against him if he were to be charged. He said he learned of that protection only after he spoke to Ryan. Nick denied knowing that he would not have such protection if he came forward with his admission to the police. When asked in re-examination what he thought would happen if he did come forward to the police he explained that he did not believe that it would result in Ryan’s release. All it would accomplish would be to have him join Ryan in jail. He also said that even though Ryan was a good friend he did not think that he should step up in advance of the trial and it did not occur to him to speak to the police.
93Nick noted that he was in the courthouse when the Preliminary Inquiry took place and he knew that Kyle testified. He said that it was only at that time that he learned about the pay stubs being located in the opposite jacket pocket. He also said that he was not called to testify at the Preliminary Inquiry.
iv. Legend Phillips
94Before I turn to Legend Phillips’ testimony, I note that the defense was unable to locate Mr. Phillips and had given up on calling his evidence. The court heard that neither Ryan nor Nicholas knew of his whereabouts and had limited contact with him since the summer of 2015. The Crown tracked down and summonsed both Legend Phillips and Danielle Crawford. When Crown counsel decided that she would not be calling Legend because of her concerns over his reliability, defense counsel asked and with the Crown’s consent, was granted leave to re-open the defence and call on Legend to testify.
95Legend confirmed that he lived at Ryan’s place for a period of about four months. He said that he had not had any conversations about the trial with Nick. After Ryan’s arrest, he and Nick went their separate ways. He said that he still considered Ryan his best friend. He said that after Ryan’s arrest they did not talk much because he could not contact him while Ryan was in custody.
96Legend testified that he lived in the basement at Ryan’s house and paid $300 monthly for rent. He shared the space with one of Ryan’s brothers. On the day of the Ryan’s arrest, Legend attended at the house, well prior to the incident with his social worker and removed all of his stuff from the basement. He confirmed that Ryan had a lock on his bedroom door but he would use a screwdriver to unscrew the lock mechanism and gain access to the room. He said he would go there for a smoke and to play video games. He understood that Ryan placed the lock on the door because “people were apparently stealing” from his room.
97Legend was shown a photo of the closet in Ryan’s room. He identified Ryan’s clothes on the left side of the closet and Nick’s clothes on the right. He also knew that Nick would get his clothes dry cleaned and he identified some of those items on the right side of the closet. With respect to the black Dickies jacket where the gun was concealed, Legend said that the jacket belonged to Nick. He agreed that the jacket could belong to Ryan but he strongly doubted that because he was quite certain that he had seen Nick wearing it.
98Regarding Danielle, he said that he met her through his friend Alan. He did not know Alan’s last name. When the name “Gonsalves” was suggested to him he thought that the name sounded like his last name. He recalled that in the time period of Ryan’s arrest, Alan was living at Danielle’s apartment. He also knew that Danielle had a child. He was not certain if Alan was arrested in June of 2015. He thought that he might have heard something about an arrest.
99Legend testified that on the Saturday before Ryan’s arrest, he was hanging out in the basement. Nick was there with him when he got a call from Danielle. Nick asked him if he wanted to go to “Dee’s house”. He did not ask him about the purpose of the visit. He said that Danielle was alone at home. Nick went directly to the washroom.
100Legend then explained that eventually he put two and two together as that concerned Ryan’s arrest and the gun that was found in his house. He said that he and Nick were at Danielle’s place for not more than three to four minutes. He saw Nick put the gun in his pants and then adjust his pants. Legend said that at the time he did not know what Nick did with the gun. They drove back to Ryan’s house in silence. He did not ask any questions about the gun because he did not think it was his business. When he got home he went straight back to the basement.
101Legend described how Ryan contacted him about a month after his arrest to ask him about where the gun came from. Legend said that initially he thought that Ryan was arrested because of his drug activities. Legend told Ryan he did not know anything about the gun and that he did not put anything in his room. Legend also said that when Ryan approached him, he did not know that the gun was found in Ryan’s room.
102Legend admitted that Ryan told him about the gun being found in his room. He thought that somebody also told him that the gun was found in the bedroom closet but he was vague on this point and could not recall any other details. He also had no knowledge of the existence of any ammunition. He said he did not see any ammunition and did not recall seeing anything. He thought it was possible that there was also ammunition in the room but he had no recollection. He also said that nobody said anything to him about any ammunition. Legend also said that Ryan was very upset with the situation and was trying to figure out what happened and how the gun came to be in the bedroom. Legend said he told Ryan that Nick picked up the gun from Danielle’s place.
103Legend added that he had a second conversation with Ryan about two to three months prior to the trial. During this second conversation Legend asked Ryan how he was doing and when he thought he might get out. Ryan told him that he did not know. Legend also said that during this call they did not talk about the gun or about Nick. He said that he had no conversations with Nick about the case though he agreed that he spoke to Nick a couple of times from June 29, 2015 to the present. He said that he used to have Nick’s phone number but he lost it. He denied that he ever asked Nick about why he had the gun. He reiterated that it was none of his business and that there was nothing to ask.
104Legend admitted that he would sell weed for Ryan from time to time. At the time of his testimony he said that he had a steady job at Canada Bread and was no longer selling drugs. He thought that Ryan kept the weed in the drawers in his room but he was not entirely certain. He also admitted to a having a criminal record. In December 2015 he was convicted of assault and received a suspended sentence and was on probation.
105Ultimately, Legend said that he did not know who owned the gun. He also said that the gun did not belong to him. Legend was challenged about not going to the police with the information concerning the gun. He said that he had many things going on in his personal like and that he did not think he could do anything about the situation. He was adamant that the gun was not his and it was none of his business. He did not ask any questions of Nick because he knew that the gun came from Danielle’s place.
iii. Crown’s Reply Evidence
a) Danielle Crawford
106The Crown subpoenaed Danielle to give reply evidence. Danielle was a most reluctant witness largely because she was very concerned about how saying anything about her knowledge of this case might impact on her custody of her young five year old son. At some point during her testimony she became very hostile and refused to answer any questions.
107Danielle confirmed that she was in a relationship with Alan for a period of two years. She also admitted that Alan was arrested as a result of a disagreement with her. She said that during her relationship with Alan they shared a bedroom but he was not the father to her son. She explained that in 2015 her son lived at mother’s place. Alan had half his stuff at her place and the other half at his mother’s place.
108Danielle could not recall how she met Ryan but she said they were not close friends. Ryan and Nick were friends with Alan. She also said that she barely knew Legend though eventually she said that she may have met Legend in a group home.
109Danielle denied knowing that there was ever a gun in her apartment. She said that she would never have agreed to storing a firearm because she stood to lose custody of her son if she were to agree to do that. She said that there was a vent in the bathroom that could be unscrewed. She denied ever calling Nick to come to get a gun from her house. She also denied that Nick and Legend ever came to her place in Alan’s absence. She denied seeing them remove anything from her place in a bag.
110Finally, Danielle was asked if she spoke to Ryan on the Friday prior to her attendance in court on this trial. She admitted that she spoke to somebody by the name of Brandon. She also agreed that Brandon’s brother was serving time in Maplehurst. She denied that Brandon passed the phone to somebody by the name of Peter Rego.
v. Sur-Reply Evidence
111Danielle’s evidence concerning her conversation with Brandon resulted in an unexpected need for sur-reply evidence by the defense.
112Cst. Perrault, who served the summons on Danielle, through her parents, was recalled to confirm the content of his conversation with Danielle when he served the summons. He confirmed that he told her that somebody by the name of Nick Clarke mentioned her name in court. According to Cst. Pereault, Danielle told him that she had nothing to do with the subject of the trial. Cst. Perreault told her to come to court and say just that. He denied telling her that her child would be taken away from her if she failed to come to court. He also denied making any threats at all. Cst. Perreault denied breaching the witness exclusion order when he spoke to Danielle. He explained that he did not provide any details but felt he had to give some context as to why Danielle was being summoned to court. He recalled Danielle telling him that everyone involved in the gun case was part of a group but that he had nothing to do with it.
113Ryan was also recalled to shed some light on the phone call that was said to have occurred on the preceding Friday. Ryan testified that he spoke to Danielle on Friday at some point between 6:00 and 6:10 p.m. He said that in a conversation with a fellow inmate, Peter Rego, he learned that Peter’s brother, Brandon, knew Danielle. Peter offered to facilitate a phone call through his brother. When Ryan spoke to Danielle he said he did not tell her anything about what was going on in the trial but he simply asked her to come to court and to be truthful. Ryan testified that Danielle told him that she would come to court and said that she knew “nothing about nothing”. She expressed her concern that if she said anything or admitted to anything, the Children’s Aid Society would remove her son from her care.
114Ryan was cross-examined on why he would attempt such a call and not involve his lawyer. Ryan explained that his lawyer was away and he felt that he had to take matters in his own hands. He said he had not been able to reach out to Danielle before because he did not have her number. When he learned that Danielle was telling Brandon about the summons and that she did not know what to do, Ryan asked his friend to set up a call so that he could talk to Danielle.
ANALYSIS
a) Legal Principles
115The only question before this court is whether Ryan had any knowledge of the firearm that was found in the jacket pocket of a black jacket that was located in his bedroom closet and of the ammunition located in two plastic bags that were on the floor of the same closet. There is no issue that Mr. Loots-Scott controlled the access to his bedroom.
116The determination of this question and more particularly whether the Crown has proven the charges against Mr. Loots-Scot beyond a reasonable doubt are to be guided by the following principles.
117To begin with, the Crown bears the burden of proving that the accused is guilty of each offence beyond a reasonable doubt. Proof to a mathematical certainty is not required as that would be virtually impossible to achieve: R. v. Liftchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320. Moreover, where there are multiple counts in the indictment, the evidence in relation to each count must be considered as it relates to each count to determine whether or not the Crown meets its burden of proof.
118Next, it is open to a court to believe all, none or some of a witness' evidence: R. v. Francois, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at para. 14; D.R. et al. v. The Queen (1996), 1996 CanLII 207 (SCC), 107 C.C.C. (3d) 289 (S.C.C.) per L'Heureux-Dube J. (dissenting in the result), at p.318; R. v. M.R., 2010 ONCA 285, [2010] O.J. No. 15478 at para. 6; R. v. Hunter, [2000] O.J. No. 4089 (C.A.), at para. 5; R. v. Abdullah, 1997 CanLII 1814 (ON CA), [1997] O.J. No. 2055 (C.A.)(QL), at paras. 4-5. It follows that a trier of fact is entitled to accept parts of a witness' evidence and reject other parts. The trier of fact may also accord different weight to different parts of the evidence that the trier of fact has accepted: R. v. Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.)(QL), at para.44.
119In addition in assessing Ryan’s evidence, the court is entitled to consider his evidence in the context of all the evidence, see R v. J.H.S. 2008 SCC 30 [2008] 2 S.C.R. 152 at para. 13, R v. C.L.Y. 2008 SCC 2 at para. 6; R v. Mends, 2007 ONCA 669 [2007] O.J. No. 3735 at para. 18 and R v. Carriere 2001 CanLII 8609 (ON CA), [2001] O.J. No. 4157 at para. 48. That said, a determination of guilt or innocence must not devolve into a credibility contest between two witnesses, as it would erode the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: R. v. W.(D.) [D.W.] 1991 CanLII 93 (SCC), [1991] S.C.J. No. 26 (S.C.C.), at p. 409; Avetsyan v. The Queen 2000 SCC 56, [2000], S.C.J. No. 57 (S.C.C.), at pp. 85-87; and R. v. S.M., [2012] O.J. No. 3868.
120With these general principles in mind, and remembering that Ryan testified, credibility is to be assessed on the basis of the following three steps, as first laid out in W. (D.), (para. 28):
First, if I believe Ryan, I must acquit.
Secondly, if I do not believe Ryan, but I am left in a reasonable doubt by it, I must acquit.
Thirdly, even if I am not left in any in doubt by Ryan’s evidence, I must ask myself whether, on the basis of the evidence, which I do accept, I am convinced beyond a reasonable doubt by that evidence of Ryan’s guilt.
121When working through the process of assessing credibility, it is crucial to note that the mere disbelief of the accused's evidence will not satisfy the burden of proof upon the Crown: see W.(D.), at p. 409. To use the disbelief of the accused's evidence as positive proof of guilt would be an error: R. v. Dore [2004], O.J. No. 4009 (C.A.), at p. 527 (leave to appeal refused, [2004] S.C.C.A. No. 517; R. v.S. H., [2001] O.J. No. 118 (C.A.), at paras. 4-6. Moreover, if after considering all the evidence I am unable to decide whom to believe, then I must acquit. In short, the court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused's guilt.
122The other principle to bear in mind is that the Crown’s case against Ryan is based entirely on circumstantial evidence. There was no evidence that Ryan ever handled the firearm in question. The closest the Crown came to supporting the case with any direct evidence, was the fingerprint that was lifted from the top part of the LeBaron plastic bag. As such, when it comes to weighing and assessing the evidence before this court, I may only find Ryan guilty of the charges connected to possession of the firearm and the ammunition if the only reasonable inference from the facts before the court is that Ryan knew that the firearm was hidden in the left hand pocket of the black Dickies jacket and that the ammunition was contained in plastic bags under dirty clothing on the closet floor. If any of the defence inferences raise at least a reasonable doubt about the Crown’s theory of the case, then Ryan must be acquitted, see: R v. Gibson, 2015 ONSC 2151 [2015] O.J. No. 1667 at para. 32.
123Insofar as the meaning of a reasonable inference, I note Watt J.A.’s definition in Watt’s Manual of Criminal Evidence:
An inference is a deduction of fact which may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that may, not must be drawn in the circumstances. … The boundary that separates permissible inference from impermissible speculation in connection with circumstantial evidence is often a very difficult one to determine.
124In R v. Morrissey, 1995 CanLII 3498 (ON CA), [1995] O.J. No. 639 (C.A.) at para. 52, Dohery J.A. stated that an inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation. The process of drawing inferences from evidence is not the same as speculating even where the circumstances permit an educated guess.
Application to Facts
125In my review of all the evidence before the court, I believe Ryan when he says that he had no knowledge of the loaded firearm found in the jacket pocket and the ammunition on the closet floor. I come to this conclusion for the following reasons.
126First, Ryan testified in a candid and truthful manner. He was forthright and clear. He did not try to embellish, exaggerate, or give conflicting evidence. Much of his evidence was not challenged and indeed was corroborated by others. Where Ryan was challenged, he offered explanations that were clear and reasonable.
127In addition to his testimony, there was no evidence to suggest that he had any knowledge of the existence of the firearm and the ammunition. For example, in his actions, he did not do anything that was different from his daily routines. There was no evidence that he went anywhere unusual or different that might reveal a location from where he might have obtained the impugned items.
128Finally, there was no evidence on how or from whom he might have obtained the impugned items or when he might have brought them to the house. In contrast to those deficiencies in the evidence, the court was faced with a clear admission by Nick that the firearm and the ammunition belonged to him.
129Before I review these conclusions in some detail, it bears noting that it is not the role of the court to investigate or to solve the question of who actually owned the gun and the ammunition. The court is only concerned with the charges as they relate to Ryan. Therefore the court’s task is to determine whether the Crown has satisfied this court beyond a reasonable doubt that Ryan knew about the gun and the ammunition and therefore is guilty of the charges against him as those relate to the gun and the ammunition.
130In my consideration and analysis of Ryan’s testimony, my point of departure rests with the agreed fact that as of the Friday prior to Ryan’s arrest, Ryan’s mother had searched Ryan’s room and had not found any gun or any ammunition. That tells me that whoever brought the gun to Ryan’s room, did so after Friday. It also tells me that with regular searches by his mother, it would be unlikely that Ryan would be concealing a firearm and ammunition in a place where his mother could find them. There was no evidence before the court that would raise concerns about Ms. Loots’ credibility or diligence in her inspections.
131Secondly, the work arrangements between Ryan and Nick, the living arrangements at 42 Cannon Crescent, the condition of the room, the existence of the lock, and the facility with which that lock could be breached, all as described by Ryan, were corroborated by a number of witnesses.
132Beginning with the lock to Ryan’s bedroom, the police saw the lock mechanism and took several pictures of its curious position. Legend and Nick verified Ryan’s evidence that they could unscrew the lock mechanism and enter the room in Ryan’s absence.
133Ryan was challenged on the wisdom of having a lock that could easily be breached. Ryan admitted it was not a smart thing to do but in any event, I fail to see the relevance of Ryan’s wisdom as that might extend to the concealing of the gun and the ammunition. If anything, it might suggest that if Ryan had a gun and ammunition he would not hide it in a space that could be accessed by others or where others could find them.
134The work hours, as corroborated by Nick but also as reflected by the time recorded on the surveillance on the fateful Monday evening when Ryan came home, confirm Ryan’s testimony that he was working very long hours. The fact that Ryan would get his brother to do the drug dealing for him is a further indicator that Ryan was working long hours and was away from home. This would also suggest very little opportunity to obtain a firearm and ammunition.
135The sleeping arrangements in Ryan’s bedroom sounded cramped and uncomfortable to say the least, but by and large, Ryan’s description of the arrangements matched the descriptions that Nick and Legend offered to the court. The photographs taken by the police also reflected a cramped and messy living arrangement. Admittedly, there were variations in the descriptions but they were minor. The similarities in the evidence of Ryan, Nick and Legend were far more remarkable and significant.
136Similarly, Ryan’s evidence concerning the clothing in his closet was confirmed by Nick and Legend. All three witnesses were shown the same picture of the closet with the clothing in it and all three were able to identify which clothes belonged to Ryan and those that belonged to Nick. The picture was taken and tendered as evidence by the police. There was no evidence that the witnesses spoke among each other during the trial to suggest that their evidence on this point might have been tainted.
137Regarding the ownership of the jacket, Ryan, Nick and Legend all agreed that it did not belong to Ryan. I accept Ryan’s evidence that it did not belong to him. For starters, although the jacket was produced at the trial, nobody asked Ryan to try it on to see if it even fit him. On my own inspection of the jacket, it looked too small to belong to either Ryan or Nick. Secondly, the furry lining in it would suggest that it was a jacket to be worn in the winter months but certainly not at the end of June. Thirdly, it is not clear where the jacket was actually located. By the time it was photographed, it had either been moved or removed from its original location. Exhibit 13, which was the photograph with everything in situ, before the discovery of the gun, did not show the jacket at all. Exhibit 27, looked remarkably tidy with the black jacket to the side. If the jacket were there all along, it should have been visible in Exhibit 13. Other photos of the jacket were taken when the jacket was propped on the bed.
138Having regard for the evidence that the closet was shared and that others came into Ryan’s room, I have no reason to disbelieve Ryan’s evidence that the jacket did not belong to him. I reject the submission that it was “preposterous” that neither Nick nor Ryan knew the owner of the jacket when they knew about the other items in the closet. I also disagree with the submission that in light of Nick’s evidence that the jacket was not his the only reasonable inference to be drawn about it was that the jacket belonged to Ryan. Such an argument ignores Nick’s evidence that he chose to conceal the gun in a jacket that he knew did not belong to Ryan. The Crown suggested that to hide a gun in a jacket was careless in that somebody could grab the jacket to go out. I would observe that the selection of an old winter jacket from a closet full of other outerwear options more appropriate for June temperatures lends credibility to Nick’s explanation concerning the particular jacket; it might not have been that careless. It actually makes sense that Nick would choose a jacket that was neither his nor Ryan’s and that given its furry lining would not likely be retrieved by anyone who might access the bedroom.
139The location of the paystubs in the right pocket and the firearm in the left pocket, as photographed by the police was suspicious. Ryan admitted that he would occasionally put the paystubs in his jacket pockets after he went to the bank. But he also said that generally speaking he would keep his paystubs in the bottom of his drawer in his room until he completed his tax returns. I believe Ryan when he says that he does not know why or how the paystubs were in the particular pockets. If they paystubs were in a jacket pocket, they would not be in a winter jacket since they were related to work for the months of May and June. If they were on the floor or the drawer, then the only reasonable inference is that somebody stuck them into the black Dickies jacket.
140More significantly, it makes no sense that Ryan would leave the paystubs in the same jacket as the one where he would conceal a firearm. If the intention were to conceal the gun, it makes no sense that Ryan would also include identification documents in the same jacket that would betray his connection to the prohibited weapon.
141About the concealed firearm, the gun’s positioning in the left jacket pocket in a way that made the handle visible was rather curious. Consistent with Nick’s description of how he concealed the gun in the pocket, in my examination of the pocket, I note that it was deep and that the gun would have fallen to the bottom of the pocket so that it would not be visible just by looking at the jacket. I question how the gun was propped in the pocket for the purposes of the photographing by the Exhibits Officer. For my purposes, the only significant observation is that the gun could be concealed quite comfortably in the coat pocket and would not arouse any suspicions to somebody just looking into the closet.
142The concealing of the ammunition on the floor of the closet does suggest that the gun and the ammunition were moved there at the same time. The location of one fingerprint belonging to Ryan on the LeBaron bag did cause the court to pause and question how Ryan might have come into contact with a specialty bag from a store that sells, among other things, bullets. However, having regard for the totality of the evidence, the existence of the fingerprint was insufficient to reject Ryan’s testimony as incredible or to secure a conclusion that the only reasonable inference to be drawn was that Ryan knew about the gun and the ammunition.
143Ryan’s willingness to admit to lying to the police about his drug activities on the night of his arrest actually enhanced his credibility. Without meaning to condone Ryan’s dishonesty, or the activity of lying, Ryan’s explanation that he was scared, in shock by the shooting of his dog, and his doubt that it would make a difference to his situation, has to be examined in the context of Ryan’s frame of mind at the time and his situation. Ryan knew that he was subject to a recognizance that included a term that he not possess any weapons. He was also subject to a two-year probation order and a ten-year weapon prohibition. With his mother as his surety, her regular inspections of his room, and his knowledge of his drug activities, it made sense that he would be scared.
144Furthermore, his fear that an admission to drug dealing would merely enhance the police’s conclusion that he must also be the owner of the firearm and the ammunition, was borne out by the Crown’s cross-examination that as a drug dealer he must have had a need for a gun to protect himself. The Crown persisted with this theory, so much so that she attempted to link an image on Facebook of Ryan making a hand gesture that could look like a gun that also included some provocative rap lyrics. Ryan steadfastly denied any such connection and explained that in his picture he was showing off his ring. I accept Ryan’s explanation of the Facebook image and reject the Crown’s inference that the photo and rap lyrics were Ryan’s message to the world that he had a gun that he would not hesitate to use. In Ryan’s circumstances and restrictions, it makes no sense that he would broadcast to the world that he had a gun and run the risk that a probation officer would be one of those people who saw the posting.
145I find that Ryan was candid about his fears and his shock. His attempt to distance himself from the firearm in his initial statement was a manifestation of that fear.
146What is left to consider is Ryan’s evidence concerning Nick’s admission to owning the gun and the ammunition and the reasons for which he believed Nick and Legend. To begin with, Ryan’s chronicling of how and when he confronted Nick and Legend about the gun was corroborated by Nick and by Legend. Both Nick and Legend agreed that when Ryan first confronted them about his predicament and the finding of a gun in his room, Nick tried to place the blame on Legend. Nick corroborated Ryan’s evidence that it was only months later that Nick came clean about the gun and the ammunition belonging to him.
147Secondly, Ryan did not set out to blame his friends or cast aspersions in a hypothetical way. If that were his modus operandi, he could have blamed his friends immediately upon his arrest. Legend was not at the house but Nick was. It would have been very easy for Ryan to tell the police that the gun belonged to Nick, but he did not do that. This for me is one more reason to find that Ryan was stunned by the discovery of the impugned items and that he did not know how they got there.
148Ryan’s evidence that the gun and ammunition belonged to Nick followed on Ryan’s own inquiries of his friends. The way he went about this inquiry suggested to this court that he was prudent and not willing to accept just any explanation. This was most evident in the way he scrutinized Nick’s initial explanation as that related to Legend.
149I believe him when he says that he did not ask Nick to come forward to admit to the ownership of the firearm and the ammunition. There was no evidence of any fabrication of a story by Ryan or by the other witnesses concerning the ownership of the impugned items. There was no evidence of any efforts by Ryan to require his friends to fabricate a story. There was also no evidence to explain why Nick would want to come forward to admit to owning the gun and the ammunition if those items did not belong to him. There was even less evidence to explain why Legend would be motivated to admit to his participation in the movement of the gun from Danielle’s place, if in fact he never went there.
150On the substantive explanation as to how the gun and the ammunition came to be concealed in Ryan’s room, I begin by making the observation that even if I were to reject as untrue the evidence given by Nick and Legend, my disbelief of their evidence could not amount to any positive proof of Ryan’s guilt. I do note however that Ryan’s explanation of “the dots” he said he connected to conclude that Nick owned the gun and the ammunition made sense on the totality of the evidence and served to reinforce my assessment of Ryan’s credibility.
151As I noted above, given Ms. Loots’ inspection of Ryan’s room and the negative result three days before Ryan’s arrest, my first important “dot” begins with my finding that the gun was brought into Ryan’s residence and his room more specifically, sometime after Friday and before Ryan’s arrest on Monday.
152The second important “dot” relates to Alan’s arrest. Danielle denied Nick’s Legend’s attendance on the Saturday evening to pick up the firearm and the ammunition. She also denied making any phone call to Nick to come and get the gun. It was evident to this court that Danielle was prepared to lie to the court and to risk being found in contempt in order to protect her custody of her son. It also became evident that she would do whatever she could to distance herself from any possible connection to this case. It bears noting that the only reason I did not find Danielle in contempt was because I accepted her fear and her frustration at being drawn into a situation from a troubled past that might resurrect, at least in her mind, is the issue of her son’s custody.
153Danielle’s behavior put the court on guard over Danielle’s reliability. However, even with such concerns, Danielle made a number of crucial admissions that support the finding that Nick had to move the gun once Alan was arrested. First, Danielle admitted that Alan spent significant time at her place in the months leading up to Ryan’s arrest. She also agreed that Nick, Legend and Ryan were Alan’s friends and that they hung out together. This lined up with the evidence from Ryan, Nick and Legend on their relationship with Alan. Most importantly, although she refused to give a date, she confirmed that Alan was arrested for a domestic dispute. She also agreed that at the time of Alan’s arrest, her son was living with her mother.
154These last two admissions are particularly important because they helped to situate Alan’s arrest and they confirmed that there was no child living at the apartment where the gun was said to be concealed. Alan’s arrest lined up with Ryan’s indication that Alan was arrested on the weekend that preceded his own arrest and his encounter with Alan at the courthouse on June 30. It also corroborates Nick’s and Legend’s evidence of their understanding that Alan was arrested on the Saturday before Ryan’s arrest. Danielle’s admission that her child resided with her mother in June 2015, lined up with Nick’s indication that he was never aware of a child living at Danielle’s place and his further evidence that he understood that the child was staying with his grandmother. This admission offered a complete answer to the Crown’s challenge to Nick about storing a gun at a place where a child was living. There was no child living at Danielle’s place in the material period.
155Finally, in the face of her admission of Alan’s arrest on June 27, 2015, Danielle’s subsequent denial of Nick and Legend made no sense but rather served to underscore her deliberate attempt to distance herself from anything that might bring her closer to the firearm.
156The third and crucial “dot” relates to the transfer of the gun to Ryan’s residence. In light of the preceding dots, Ryan’s explanation, as he received it from Legend and Nick also makes sense. I recognize that aspects of Nick’s explanation on his motivation to obtain a gun, how he obtained the gun, and his knowledge of the related ammunition raised questions about his credibility. It was evident that Nick did not have a clear memory of all the details, particularly as those related to the number of ammunition boxes and the number of bullets in the gun. But these difficulties also served to underscore Nick’s inexperience, his young age, and his carelessness.
157I have no difficulty finding that Nick was not responsible with the storage of the gun and the ammunition. Nick’s inexperience was reflected in his actual conduct. But that does not mean that he lied about the gun or should not be believed. If anything, his explanations viewed from the perspective of somebody who is inexperienced made sense. Whatever motivated him to buy a gun, Nick clearly did not think about its storage. However he obtained the gun, it is evident that he became complacent with its temporary storage location. I accept his evidence that with his long work hours he almost forgot about the gun. I find that Nick would not have moved the gun if Alan were not arrested on the Saturday before Ryan’s arrest.
158In the same vein, his indication that he did not check to see if the gun and the ammunition were in the closet when he returned from work on Monday was not surprising. As far as Nick was concerned both were well concealed. Exhibit 13 shows the closet in its condition before anything was searched by the police. In Nick’s mind it was evident that he was not concerned.
159In Legend’s case, his evidence lined up with what Ryan told the court about Legend’s involvement and how Ryan went about with his questioning of Legend. The Crown questioned why Nick would be bringing Legend along to pick up the gun. In my review of Legend’s evidence, apart from accompanying Nick to Danielle’s place, which I find did take place, I doubt that Legend saw very much at all. His explanation of what occurred was weakened by his inability to remember many details. I accept his evidence that once they picked up the gun, he went back to the basement and did not ask any questions. His limited involvement underscored Ryan’s own scrutiny and suspicions over Nick’s original explanation of Legend’s involvement.
160I also accept his explanation that he did not believe it was his business to ask questions. Legend had troubles of his own with the law and therefore it is understandable that he would go silent. More significantly, although the reasons for his departure from Ryan’s place were not fully explored, I find it significant that he arranged to leave the premises on the Monday morning, well before the raid.
161Having regard for the three “dots” I find that there was no gun or ammunition on Friday, those items were stored offsite until June 28, 2015, and Nick then transferred them to 42 Cannon Crescent, where he stored them temporarily, without Ryan’s involvement or knowledge.
CONCLUSION
162In the result, I conclude that the Crown has failed to prove beyond a reasonable doubt the charges against Ryan as they related to the unlawful possession of a loaded firearm and ammunition. He is therefore not guilty of those charges. In accordance with his guilty plea, Ryan is guilty of possessing MDMA and marijuana.
Tzimas J.
Released: December 11, 2017