CITATION: R. v. Sault, 2017 ONSC 7299
COURT FILE NO.: CR-17-50000551
DATE: 20171207
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
GEORGE SAULT
Accused
Scott Arnold, for the Crown
William Caven, for the Accused
HEARD: October 2, 3 & 4, 2017
B.A. ALLEN J.
REASONS FOR JUDGMENT
BACKGROUND
The Charges
[1] The accused, George Sault, stands charged with 28 counts arising from a robbery he is alleged to have committed on December 16, 2015.
[2] On December 15, 2015, Officer Ryan Balazs, an officer with the Ontario Provincial Police, was a guest at the Crown Plaza Hotel which is located near the Pearson International Airport in Toronto. At about 9:00 p.m. on that day he parked an OPP issued unmarked police vehicle in the parking lot of the hotel, a blue GMC pickup truck. When he arose the next morning and went to his vehicle at about 8:38 a.m. he discovered it had been broken into. The rear passenger door window had been broken.
[3] Officer Balazs had placed under the back seat of the truck a gun box which he discovered had been broken into. The latch holding the lock had been broken and the main contents of the gun box stolen. Robbery charges and possession of weapons and prohibited devices charges were laid.
[4] Officer Balazs testified that the gun box had contained the following items that were stolen: a C-8 rifle (count 2); a Sig Sauer handgun (count 3); .223 and .40 calibre ammunition (count 4); five over-capacity magazines (count 5); a can of oleo capsicum (pepper spray) (count 6); an OPP issued computer laptop (count 7); two OPP issued USB memory sticks (count 8); an OPP issued note book (count 9); and police identification (a police badge) (count 10).
[5] Mr. Sault is also charged with damaging the police vehicle (count 1). He is further charged with being an occupant of a motor vehicle knowing that a restricted weapon (a C-8 rifle) (count 15) and a prohibited weapon (a Sig Sauer handgun) (count 16) were in the vehicle.
[6] Counts 11 to 14 and 17 to 24 were brought in relation to the unregistered and/or unlicensed possession of a restricted rifle, a prohibited handgun, five prohibited magazines and a prohibited can of pepper spray. Mr. Sault is also charged with possession of the C-8 rifle magazine, the Sig Sauer magazine and the can of pepper spray knowing they were obtained by the commission of a criminal offence (counts 25, 26 and 27).
[7] The defence concedes, if the court finds Mr. Sault guilty of possession of the weapons and over-capacity magazines, that Mr. Sault was not licensed or authorized to have possession of those items.
[8] Mr. Sault was bound by a probation order when he was arrested on December 18, 2015. On count 28, he is charged with failure to comply with the order. The defence concedes this charge if Mr. Sault is found guilty.
THE EVIDENCE
Officer Balazs’s Evidence
[9] Officer Balazs testified that he had not previously encountered Mr. Sault.
[10] The Officer stated that, in addition to the items detailed above, he had a knapsack containing a package of paper which he had left on the rear seat of the cab of the vehicle. The knapsack was missing after the robbery. A scene of crime photograph shows the package of printer paper in a wrapper on the front passenger seat of his truck. He testified he did not have a portable printer in his truck and did not recall when he got the paper.
[11] On cross-examination at trial Officer Balazs testified he did not recall seeing the package of paper in the truck when he returned to his vehicle the morning after the robbery. But he had not made notes in his memo book about the missing knapsack and package of paper. He said he had not mentioned during his police interview that the package of paper had been in his knapsack because he thought it was irrelevant at the time.
[12] Defence counsel then pointed to his police statement where he said he found the package of paper on the front seat of the truck. He admitted he told the police that information because it would mean the paper had been moved by the robbers. Officer Balazs changed his view admitting he reported the circumstances with the paper because it was an important fact. However, he stated at the time of trial looking back that he did not recall seeing the package of paper after the robbery. At his preliminary inquiry Officer Balazs gave a list of several items that were in his knapsack before the robbery but again he did not mention the printer paper.
[13] Mr. Sault’s handprint was found on the wrapper of the paper, the only piece of evidence with forensic findings linked to Mr. Sault. That package of paper as will be seen holds some mystery in this case.
[14] Officer Balazs also testified about photographs of the can of pepper spray. He stated that the pepper spray is the type issued by the police service. He was shown a can of pepper spray seized by the police days later. He pointed out tiny dents on the back of the can near the label that he said gave him no doubt the pepper spray seized was the one issued to him by the police service and stolen from his vehicle.
[15] Officer Balazs testified that while police service administration provides officers with serial numbers for some equipment no serial number was provided for the pepper spray. Therefore, the pepper spray seized cannot be identified by a serial number. Officer Balazs stated that in 2013 officers stopped recording numbers for pepper spray. He indicated he could not recall when he last used the pepper spray.
[16] As will be seen, a can of pepper spray of the type that is police issued was found in a vehicle Mr. Sault was driving days later on December 18, 2015.
[17] When an OPP officer is issued a firearm, serial numbers are recorded for the firearm. No serial numbers are recorded for magazines. The magazines seized therefore cannot be identified by serial numbers.
Mr. Sault and the Green Minivan
[18] Mr. Sault did not come into the picture until December 18, 2015. He is a resident of the Brantford Six Nations Reserve located southeast of Brantford. On that day, OPP Officer Jason Butler and Six Nations Officer Robert Henry were in separate unmarked police vehicles travelling along a road in Tuscarora Twp., just outside Brantford. Those officers were involved in a project called “Project Shutdown” which had as its objective to address the problem of stolen vehicles on the Six Nations Reserve.
[19] The Officers observed a green Dodge minivan travelling northbound along the road. Officer Butler was driving behind the minivan. Officer Henry was travelling southbound on his way to investigate a residential alarm. They both noticed that the front end of the minivan was dragging on the road. The minivan broke down. The Officers agreed that Officer Butler would investigate the minivan.
[20] Officer Butler thought the minivan had been in an accident. He left his vehicle and went over to the driver’s side of the minivan. He observed two occupants, a male driver and a female passenger. Officer Butler identified himself as a police officer and asked the driver for identification and the driver indicated he did not have identification. He gave Officer Butler the name “Robert Olson”. He then asked the Officer if he had any jumper cables. The female passenger identified herself as “Laura Lea Martin”.
[21] Officer Butler noted that the driver’s side mirror was on the ground and that the vehicle had no signal lights. He observed the ignition was punched, meaning smashed in. This, he testified, is an indicator that someone did this in order to steal the vehicle.
[22] Officer Butler returned to his vehicle and ran the license plate of the green minivan. He found it was owned by “Ronald James Abbott”. It had been stolen from Brampton. While Officer Butler was still in his vehicle the male driver began to walk away. The Officer got out of his vehicle. He heard the male yell out that the house up the hill is his grandfather’s home and he was going there to scrap the minivan. The Officer got back into his vehicle to radio for help. The male continued walking. The Officer yelled for the male to come back. The Six Nations Officer Henry appeared on the scene in response to a radio call from Officer Butler.
[23] Officer Butler and another officer, Officer Kapshey, searched the green minivan. Officer Butler seized a spray paint can, a gas can and a baseball bat from the front of the vehicle. Officer Butler also testified he found what he said were tools used by thieves for breaking~~-and-~~entering ̶ a mallet, a pick and vice grips. The parties agree that Officer Kapshey retrieved from a green canvas bag on the rear passenger side of the minivan: a box of .40 calibre Winchester ammunition, a Lancer L5 magazine and a Sig Sauer handgun magazine.
[24] Officer Butler testified that while Mr. Sault was in the minivan, he did not observe him nervously look back, reach into, mention or go near the rear passenger side of the minivan. There was no identification or anything with Mr. Sault’s name on it located in the minivan.
[25] I turn back to Mr. Sault’s whereabouts after he walked away. A female, Sherry Hill, came out of a nearby house and yelled that the male was named George Sault and that he had been on her property. She knew Mr. Sault because she had been his foster mother. She pointed in the direction of her daughter’s home at 223 Second Line Rd. and said Mr. Sault had walked over there. Officer Henry went to investigate whether the home was the male’s grandfather’s home. The Officers found it was not the grandfather’s home. Officer Butler requested a check on Mr. Sault and found he was subject to a warrant in Hamilton.
[26] Officer Butler received a call that there had been a break~~-and-~~enter at 223 Second Line Rd. Officer Henry attended at the address. Other uniformed officers arrived at the home. The officers, including Officer Henry, kicked the door open and entered. They found Mr. Sault in a small freezer in the basement. He was removed from the freezer, put to the floor and cuffed. He was told he was under arrest.
[27] Mr. Sault was searched incident to the arrest. The parties agree that a can of pepper spray, the type police use, was retrieved from Mr. Sault’s pocket. Officer Henry identified the can of pepper spray filed as an exhibit as the one retrieved from Mr. Sault, the same one Officer Balazs identified as stolen from his pickup truck. A canine unit was called in to look for the firearms. None were found in the area. In February 2016 the C-8 rifle was recovered on the Six Nations Reserve based on information from an informant.
Forensics
[28] The parties have basic agreement on the forensic findings.
[29] The Toronto Police Service had fingerprint analysis conducted on items found in Officer Balazs’s vehicle. Fourteen latent prints were found: ten latent prints were eliminated as being from Officer Balazs. One print, lifted from the wrapper of printer paper retrieved from the front seat, came from the palm and fingers of one of Mr. Sault’s hands. Three prints were not identified. It was not determined whether those prints came from the same person or different persons.
[30] None of Mr. Sault’s prints were found on the Sig Sauer handgun magazine, the Lancer 5 rifle magazine or the box of Winchester ammunition. No prints from Mr. Sault were found on or inside Officer Balazs’s police vehicle. There is no evidence that Mr. Sault’s prints were found on the contents of the green minivan.
ANALYSIS
The Law of Possession
[31] Fifteen of the 28 charges are possession offences. Those offences relate to possession of: a restricted firearm being a C-8 rifle; a prohibited firearm being a Sig Sauer handgun; prohibited devices being five over-capacity magazines; and a prohibited weapon being a can of pepper spray. To establish guilt on those charges the Crown must prove the facts in Mr. Sault’s circumstances satisfy the legal requirements of possession.
[32] Possession is defined under s. 4(3) of the Criminal Code. The two essential elements of the offence of possession are control of the thing and knowledge of the thing. Possession involves actual possession or constructive possession of the thing or joint possession by more than one person with the other’s consent. There is no evidence that would support a finding of joint possession with consent.
[33] Both knowledge and control must be proven beyond a reasonable doubt. The essential elements can be proven directly or indirectly through circumstantial evidence.
[34] To have actual possession or custody of a thing is to have physical custody or control of the thing. Constructive possession extends to situations where a person does not have hands-on custody of the thing but has knowledge of the thing and an ability to control it even if they do not have physical contact with it. Constructive possession is a matter to be decided on the facts of each case: [R. v. Grey (1996), 1996 CanLII 35 (ON CA), 28 O.R. (3d) 417 (Ont. C.A.) and R. v. Caldwell (1972), 1972 ALTASCAD 33, 7 C.C.C. (2d) 285, at pp 290-291, (Alta. C. A.)].
[35] The court may draw appropriate inferences from the evidence that the contraband is found in a place under the control of an accused in circumstances where there is also evidence from which a proper inference may be drawn that the accused was aware of the presence of the contraband: [R. v. Pham, 2005 CanLII 44671 (ON CA), [2005] O.J. No. 5127, at para. 18, (Ont. C. A.); R. v. Sparling, [1988] O.J. No.1877 (Ont. C.A.) and R. v. Chambers, 1985, C.C.C. (3d) 440 at 448 (Ont. C.A.)].
[36] Earlier case law took the view that the Crown must satisfy the court beyond a reasonable doubt that guilt is the only reasonable inference that may be drawn from the totality of proven facts. The Supreme Court of Canada in a more recent case, R. v. Villaroman, dispensed with that requirement:
At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts.”
Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.
[R. v. Villaroman, [2016] 1 S.C.R. 33, at para. 35, (S.C.C.)]
Application of Law to the Facts
The Possession Charges
The Items Seized
[37] This is a purely circumstantial case. The Crown must prove Mr. Sault had both knowledge and control of the rifle, the handgun, the five magazines and the pepper spray. We are looking at actual possession of the pepper spray and constructive possession of the other items.
[38] Before Mr. Sault was arrested he was driving the stolen green minivan registered to someone not involved in this case. Looking at the items among those seized that appear to correspond with items for which he was arrested there is only a Sig Sauer handgun magazine found in the green minivan contained in a green canvas bag on the back seat of the minivan and a can of pepper spray found in Mr. Sault’s pocket. The can of pepper spray is the type issued to police.
The Sig Sauer .40 Calibre Magazine and the Can of Pepper Spray
[39] Mr. Sault is charged with possession of the Sig Sauer .40 calibre magazine and the can of pepper spray and with possession of those items knowing they were obtained by crime.
[40] Between the Sig Sauer .40 calibre magazine and the pepper spray, the pepper spray is more connected to Mr. Sault as having been seized from his person.
[41] Regarding the magazine, there are two chain of custody problems with it as evidence of possession. The magazine seized did not contain any forensic evidence linking it to Mr. Sault. Further, the fact that there were no identifying serial numbers recorded for any of the magazines seized offers the Court no confidence that the Sig Sauer magazine seized from the green minivan was the one stolen from Officer Balazs’s police vehicle.
[42] There are also knowledge issues. The magazine was seized from a green canvas bag found on the back seat of the minivan. Being canvas the bag was opaque. That was evident from the scene of crime photos shown at trial. The magazine would not therefore have been in Mr. Sault’s plain sight.
[43] From a contextual standpoint Mr. Sault’s actions, when Officer Butler approached the minivan and spoke to him, do not to my mind, indicate consciousness of guilt about the contents of the canvas bag. On cross-examination, Officer Butler agreed with defence counsel that Mr. Sault did not look furtively backward to the back seat or go towards the back door when he got out of the vehicle. He did not mention or take the canvas bag. He just walked away.
[44] A further fact that detracts from consciousness of guilt is that Mr. Sault made the unusual request when Officer Butler first approached as to whether Officer Butler had jumper cables he could use to start the stalled minivan. I do not think, when confronted by the police, that would be a priority concern for a person who knows he is carrying an over~~-~~capacity magazine and ammunition in a bag on the back seat of his vehicle.
[45] The question then is: Why did Mr. Sault give the police a false identity, leave the scene of the minivan, walk up the hill toward Sherry Hill’s home and ultimately hide in a freezer in her daughter’s basement?
[46] There is a reasonable alternative inference to consciousness of guilt about the contents of the canvas bag that can reasonably be drawn from Mr. Sault’s actions. What I am referring to is that Mr. Sault would have known he was driving a stolen vehicle given that the ignition was punched. He also would have known he was in breach of probation being in a stolen vehicle. Mr. Sault could reasonably have left the scene to avoid his identity being discovered and then being arrested for car theft and breach of probation.
[47] Regarding the can of pepper spray, while knowledge and control can be established through its presence in Mr. Sault’s pocket, I find there is a chain of custody problem. Neither Mr. Sault’s finger prints nor DNA was found on the can. There is no serial number that can offer confidence that the pepper spray seized is the one stolen from Officer Balazs’s police vehicle. The only evidence linking the seized pepper spray to the stolen one is Officer Balazs’s evidence that he recognized the seized pepper spray can by the tiny dents on its back near the label.
[48] I am not prepared to find guilt for possession of the pepper spray based on that evidence by Officer Balazs. This is particularly so when I consider it in light of his less than persuasive evidence about the package of paper and the dubious handprint evidence.
[49] Officer Balazs admitted on cross-examination that he did not recall the last time he used the pepper spray which I take to mean he did not use it frequently or recently. I have some difficulty accepting that a detective constable, an officer for over 16 years, busily involved at the time in the work of the OPP’s Organized Crime Bureau, would have committed to memory tiny dents on the back of a pepper spray can he rarely used.
[50] There is no indication of any other forensic evidence except Mr. Sault’s handprint being found on the wrapper of the paper. This is the only forensic evidence connecting Mr. Sault to the police vehicle and its contents. Of course, this alone falls far short of proof that Mr. Sault had possession of any of the contents of the truck including the Sig Sauer magazine and pepper spray found in the green minivan. At best the handprint shows contact with the package of paper.
[51] I have some difficulty accepting the handprint evidence. I find it rather peculiar. The forensic analysis of the paper wrapper depicts a flat imprint of a palm and four fingers on one side of the wrapper. It is somewhat strange that the form of the print is a flat handprint. I say this in view of Officer Balazs’s evidence that he was certain he left that paper in his knapsack and that someone removed it during the robbery.
[52] It is a matter of common sense that one would not expect a flat handprint if someone took the paper from the canvas bag with their hand. It is more reasonable to expect a print that shows the package was grasped at one of its four edges which would leave a thumbprint on one side of the wrapper and the print of four fingers on the other side.
[53] The handprint is questionable from another perspective. That was the only print from Mr. Sault found anywhere connected to the police vehicle and its contents. Common sense compels the question: If Mr. Sault used a bare hand to retrieve the package of paper from the knapsack, why were none of his hand or fingerprints found anywhere else on or inside the vehicle or on any of the vehicle’s other contents?
[54] I give no weight to the handprint evidence.
[55] There is no issue that Mr. Sault was not licensed to possess the prohibited .40 calibre magazine and the prohibited can of pepper spray. I find the Crown has not established to my satisfaction Mr. Sault’s possession of the .40 calibre Sig Sauer magazine (count 23) knowing it was obtained by crime (count 26) and possession of the can of pepper spray (count 24) knowing it was obtained by crime (count 27).
The C-8 Rifle, the Sig Sauer Handgun and the Other Four Magazines
[56] Mr. Sault’s connection to the above items is even more tenuous.
[57] A C-8 rifle was seized on the Six Nations Reserve months after it was stolen. There is nothing, no forensics, linking Mr. Sault to that rifle.
[58] As well, there is no evidence a Sig Sauer handgun or any of the four other magazines were ever located.
[59] I find the Crown has not established beyond a reasonable doubt Mr. Sault’s guilt on the charges related to possession of the C-8 rifle (counts 11 and 13) and the Sig Sauer handgun (counts 12 and 14).
[60] The Crown has not established beyond a reasonable doubt Mr. Sault’s guilt of the charges related to possessing the four over-capacity magazines (counts 17, 18, 19, 20, 21 and 22) (excluding the Sig Sauer magazine) or of possessing the C-8 over-capacity magazine knowing it was obtained by crime (count 25).
The Robbery Charges
[61] Mr. Sault is charged with theft under $5,000.00 in relation to a C-8 rifle (count 2), a Sig Sauer handgun (count 3), .223 and .40 calibre ammunition (count 4), five over~~-~~capacity magazines (count 5), a can of oleoresin capsicum spray (count 6), a laptop computer (count 7), two USB memory sticks (count 8), a notebook (count 9) and police identification (count 10).
[62] As I found above, there is no cogent or credible evidence that even places Mr. Sault at the scene of the robbery of Officer Balazs’s police vehicle. There is no reliable evidence that demonstrates that it was Mr. Sault who took any of the items that were stolen. Clearly, someone else could have committed the robbery.
[63] I find the Crown has not established beyond a reasonable doubt Mr. Sault’s guilt of stealing the items on counts 2, 3, 4, 5, 6, 7, 8, 9 and 10.
The Vehicle-Related Charges
[64] Mr. Sault is charged with doing wilful damage to a motor vehicle (count 1). The rear passenger window of Officer Balazs’s police truck was smashed during the robbery. There is no evidence except the handprint on the paper wrapper that points to Mr. Sault being at the scene of the robbery. Even if I accepted that the handprint is cogent evidence of Mr. Sault’s presence at the robbery, this would not provide proof that he did the damage to the truck. Clearly, someone else could have done this.
[65] I find the Crown has not established beyond a reasonable doubt that Mr. Sault willfully damaged Officer Balazs’s police vehicle.
[66] Mr. Sault faces two separate charges of being an occupant in a motor vehicle knowing that the vehicle was carrying a restricted firearm and a prohibited firearm. There is no direct evidence, or evidence from which a proper inference can be drawn, that Mr. Sault was the occupant of any motor vehicle carrying firearms and therefore there is also no direct or indirect evidence of him knowing there was a restricted C-8 rifle (count 15) and a prohibited Sig Sauer handgun (count 16) in a vehicle.
[67] I find the Crown has not established beyond a reasonable doubt Mr. Sault’s guilt of being an occupant in a vehicle knowing there was a restricted firearm and a prohibited firearm in that vehicle.
Breach of Probation Charge
[68] The Crown has not succeeded in proving Mr. Sault’s guilt in relation to any of the offences charged. I therefore find him not guilty on count 28, failure to comply with a probation order made on March 27, 2015.
VERDICT
[69] I find George Sault not guilty on counts 1 to 28 inclusive on the indictment. Acquittals will be entered accordingly.
B.A. ALLEN J.
Released: December 7, 2017
CITATION: R. v. Sault, 2017 ONSC 7299
COURT FILE NO.: CR-17-50000551
DATE: 20171207
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
GEORGE SAULT
Accused
REASONS FOR JUDGMENT
B.A. ALLEN J.
Released: December 7, 2017