REASONS FOR JUDGMENT

SCHRECK J.:

[1] Adebowale Adedokun’s friend pulled out a gun during a fight he was having with another man in a restaurant. Mr. Adedokun took the gun from his friend, ran out of the restaurant, and put the gun under a seat in a nearby rented limousine. He then returned to the restaurant and pulled his friend out of the fight. They and other friends they were with then left in the limousine. A short while later, they were stopped by the police, who had been notified about the gun by a waiter who had witnessed the altercation. The police found the gun under the seat.

[2] As a result of taking the gun from his friend, Mr. Adedokun has been charged with a number of firearm possession offences as well as with obstructing a peace officer. He submits that he possessed the gun as part of a public duty with the intention of preventing it from being used to harm anybody and did not intend to obstruct the police. The Crown submits that Mr. Adedokun was not motivated by any public duty. Rather, he wished to prevent his friend from getting into trouble. Even if Mr. Adedokun initially acted pursuant to a public duty, the Crown submits that his failure to turn the gun over to the police or take further steps to keep it from his friend disentitles him from relying on the public duty defence.

[3] The following reasons explain why I am finding Mr. Adedokun not guilty of the charges.

I. EVIDENCE

A. The Case for the Crown

(i) The Events in the Restaurant

[4] at about 2:40 a.m. on May 25, 2015, Adebowale Adedokun and his friend, André Evariste, entered the New Ho King restaurant in downtown Toronto together with another man, Felton Jones, and two women. There were a number of security cameras throughout the restaurant which recorded the events and the times at which they occurred.

[5] Mr. Adedokun and his friends sat at a table at the back of the restaurant. Soon after, a second group of men entered the restaurant and sat at a nearby table. At about 3:27, a verbal altercation broke out between the two groups. The members of the two groups are seen on the video standing very close to each other and appear to be arguing. However, they soon disperse and at 3:29, Mr. Adedokun and his friends left the restaurant.

[6] At 3:36, Mr. Adedokun, Mr. Evariste and Mr. Jones returned to the restaurant. Mr. Evariste walked back to the table where he had been sitting. Two men from the other group approached him. At 3:37:03, a physical altercation began between Mr. Evariste and one of the men. Mr. Adedokun can be seen on the video standing nearby.

[7] At 3:37:50, Mr. Evariste produced a gun from the back of his waistband. At 3:38:04, the other man grabbed him and they began to struggle. At 3:38:13, Mr. Evariste dropped the gun. It fell to the floor, where it was knocked about by the two men struggling.

[8] Mr. Evariste managed to pick the gun up. At 3:38:22, Mr. Adedokun walked up to the two men struggling, took the gun from Mr. Evariste’s hand, put it into the waist of his pants, and left the area. At 3:38:29, he left the restaurant and then came back in, without the gun, at 3:39:40. He returned to where Mr. Evariste was and pulled him away from the other man. They both left the restaurant at 3:40:05 and got into an SUV that was waiting nearby.

[9] Kwok Fai Lee, a waiter at the restaurant, saw the gun and called 911. He saw Mr. Adedokun and Mr. Evariste get into the SUV and was able to tell the 911 operator the licence plate number.

(ii) The Vehicle Stop

[10] At 3:42 a.m., Cst. Jamie Breau and Cst. Michael Kolankowski received a radio call resulting from Mr. Lee’s 911 call. As they drove towards the restaurant, they saw an SUV matching the description that they had been provided with. They caught up to the vehicle and effected a “high risk takedown” at 3:45 a.m. With their firearms drawn, the officers approached the SUV and instructed its occupants to put their hands out of the windows. Two other officers, Cst. Christopher Suhkdeo and Cst. Richard Hopton, arrived soon after.

[11] The SUV had three rows of seating. When the police stopped the vehicle, Mr. Evariste was seated on the driver’s side of the second row. A woman was seated beside him and another woman was directly behind him in the third row. Mr. Adedokun was also seated in the third row.

[12] A handgun was found on the floor under the middle of the second row, under the seat that was beside where Mr. Evariste was seated. There is no issue that the firearm was loaded and functional and that the serial number had been removed. No fingerprints were found on the gun. However, there were traces of blood belonging to Mr. Evariste on it. Mr. Evariste’s hand was bleeding at the time of his arrest. Mr. Evariste later pleaded guilty to a number of charges related to the possession of the firearm.

[13] It was admitted that Mr. Adedokun was not licensed to own or possess firearms and did not have a registration certificate for any firearm.

B. The Defence Case

[14] Mr. Adedokun testified. At the time of trial, he was 33 years old and employed operating his own event management company. He had a criminal record consisting of convictions for drug trafficking, obstruct peace officer and failing to comply with a recognizance from 2006 and uttering a forged document in 2011.

[15] Mr. Adedokun testified that he knew both Mr. Evariste and Mr. Jones from the neighbourhood where he grew up. On the evening of May 24, 2015, he, Mr. Evariste and Mr. Jones went out to some nightclubs, where they drank alcohol and danced. Later in the evening, two women who were friends of Mr. Jones joined their group. At no time during the evening did Mr. Adedokun see Mr. Evariste with a weapon, nor was he aware that Mr. Evariste was in possession of one.

[16] In the early morning hours of May 25, the group decided to go to the New Ho King restaurant to eat. According to Mr. Adedokun, he had consumed a significant amount of alcohol by this point and was somewhat intoxicated. They were driven to the restaurant in a rented limousine by a driver they had hired for the night.

[17] After Mr. Adedokun and his friends ate and were preparing to leave, a man at another table said something disrespectful to one of the women in Mr. Adedokun’s group. As a result, Mr. Adedokun and the man exchanged “a few choice words”. However, Mr. Adedokun and the other man turned out to have a mutual friend, so they “talked it out” and then apologized to each other. Mr. Adedokun and his friends then left the restaurant.

[18] As the group was driving away from the restaurant, Mr. Jones realized that he had forgotten two liquor bottles at the restaurant. He insisted that they return to retrieve them. The driver accordingly turned the car around and drove back to the restaurant. Mr. Adedokun, Mr. Jones and Mr. Evariste then went inside. Mr. Adedokun denied that their purpose in returning to the restaurant was to continue the altercation with the other group. The video shows that Mr. Jones did pick up two bottles and leave with them.

[19] Once they were back in the restaurant, Mr. Evariste became involved in an argument with a man from the other group that soon developed into a physical altercation. Mr. Adedokun testified that his initial reaction was to simply stand back as he did not wish to become involved. However, he then saw that Mr. Evariste had produced a gun. The gun ended up on the floor and the two men appeared to be rolling around on top of it. It appeared to Mr. Adedokun as if they were both fighting to grab the gun. Mr. Adedokun testified that this caused him to panic. His instinct was to “grab the gun and get out” so that nobody was hurt. He walked over, picked up the gun, and took it out of the restaurant. He put the gun into his pants because he did not want to walk through the restaurant holding a gun in plain view.

[20] Mr. Adedokun testified that after he grabbed the gun, his “brain was moving a thousand miles an hour”. He did not know what to do with the gun. He did not see a garbage can nearby, so he concluded that the safest place for the gun was under the seat of the rented limousine, which is where he put it. When asked in cross-examination why he did not call the police, Mr. Evariste said that it had not occurred to him to do so.

[21] When he saw that his friends had not left the restaurant, Mr. Adedokun went back inside. He grabbed Mr. Evariste by the jacket and said “let’s go.” They all then left the restaurant and got into the car. It was suggested to Mr. Adedokun that once Mr. Evariste was out of the restaurant, there was no more danger of anybody being harmed. He replied that he was concerned that the other man may come out and continue the fight with Mr. Evariste.

[22] Mr. Adedokun testified that once they were all in the car, he was feeling “angry and confused” about the whole situation. He said “What the fuck were you doing? What were you thinking?” or words to that effect to Mr. Evariste. Mr. Evariste asked him where the gun was. Mr. Adedokun did not answer him because he was “pissed off” and did not want to “deal with him anymore.” Mr. Adedokun testified that at this point, he had not formed a plan as to what to do with the gun. He “just wanted to get out of that situation.” Very soon after that, the vehicle was stopped by the police.

II. ANALYSIS

A. Overview – the “Public Duty” Defence

[23] The genesis of the doctrine of innocent possession or the existence of a “public duty” defence in Canadian criminal law appears to be the Supreme Court of Canada’s decision in R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531, where the Court adopts (at pp. 541-542) the definition of possession found in R. v. Hess (1948), 1948 CanLII 349 (BC CA), 94 C.C.C. 48 (B.C.C.A.), at pp. 50-51, as requiring knowledge “co-existent with some act of control (outside public duty)”. The development of the defence since then was explained by Green J. in R. v. Loukas, 2006 ONCJ 219, at para. 12:

The notion of “public duty” is somewhat ambiguous. At narrowest, it suggests that the exemption (if such it is) from criminal liability applies only to those, such as the police and court officers, who are required to occasionally possess legally prohibited items in the execution of their professional responsibilities. However, the facts in [Hess (1948), 1948 CanLII 349 (BC CA), 94 C.C.C. 48 (B.C.C.A.)] suggest a broader application. As explained by the Ontario Court of Appeal in R. v. Ormerod 1969 CanLII 210 (ON CA), [1969] 4 C.C.C. 3, at 16: “The concept of ‘public duty’ in the Hess case ... relates to the handling of things only for the purpose of turning them over to the police, and not with even any momentary intention of keeping or using them.” Subsequent jurisprudence has further enlarged the compass of this defence to include, at its most expansive, those situations where control over the unlawful goods is exercised solely for a worthy public purpose and without any intention of keeping, using or otherwise personally benefiting from the property. In these circumstances, and consistent with the values enshrined in s. 7 of the Charter, the law is not prepared to infer a criminally blameworthy state of mind or, put otherwise, to punish the “morally innocent”.

[24] Loukas was cited with approval by Doherty J.A., writing for the Court in R. v. Chalk, 2007 ONCA 815, 88 O.R. (3d) 141, at para. 25:

I agree with the analysis described above. There are cases where an individual has the requisite control and knowledge, but cannot be said to be in possession for the purpose of imposing criminal liability. These cases will include cases in which a person takes control of contraband exclusively for the purpose of immediately destroying the contraband or otherwise placing it permanently beyond that person’s ability to exercise any control over the contraband. In such cases, the intention is solely to divest oneself of control rather than to possess. Like the other appellate courts whose discussions are referred to above, I do not think that criminal liability should attach to that kind of brief, “innocent” possession: see e.g. [R. v. Glushek (1978), 1978 ALTASCAD 175, 6 Alta. L.R. (2d) 351 (S.C.A.D.)]; [R. v. York, 2005 BCCA, 2005 BCCA 74, 193 C.C.C. (3d) 331].

B. The Crown’s Position

[25] Crown counsel takes no issue with the existence of the public duty defence. However, he submits that it does not apply in this case or, if it did, that Mr. Adedokun’s conduct after leaving the restaurant negated the operation of the defence. I will deal with each submission in turn.

(i) The Accused’s Motivation

[26] The Crown’s primary position seems to be that Mr. Adedokun’s primary motivation in taking the gun from Mr. Evariste was to protect Mr. Evariste and prevent him from getting into trouble. There are two reasons why I cannot accept this submission.

[27] First, I believe Mr. Adedokun’s evidence that he took the gun from Mr. Evariste because he did not want anybody to get hurt. In my view, the Crown’s suggestion that Mr. Adedokun was trying to help Mr. Evariste by disarming him during the middle of a fight makes little sense. Mr. Adedokun had no way of knowing if the person Mr. Evariste was fighting with was armed, yet he took Mr. Evariste’s weapon, thereby leaving him potentially vulnerable.

[28] Second, even if Mr. Adedokun was motivated by a desire to prevent Mr. Evariste from getting into trouble, this does not mean that he was not acting for the public good. Regardless of the motivation, preventing a person from committing a crime serves the public interest.

[29] In my view, accepting the Crown’s submission would undermine the purpose of the public duty defence. Mr. Adedokun could have stood by and done nothing. No criminal liability would have attached to him had he chosen to do so, even if the struggle for the gun had resulted in the death of either of the individuals fighting or an innocent bystander. To convict Mr. Adedokun for his actions, which may well have prevented a senseless death, is to send the message that people who find themselves in his position are better off doing nothing. Such a message does not advance the public good. Mr. Adedokun’s actions were brave, not criminal.

(ii) The Requirement for a Concrete Plan

[30] The Crown’s second argument is that even if the public duty defence applied to Mr. Adedokun’s actions in removing the gun from the restaurant, his subsequent action of getting Mr. Evariste to enter the car where the gun was disentitled him from relying on the defence. According to the Crown, once Mr. Adedokun got into the car where the gun was, he had knowledge and control of the gun and, as he admits, no plan as to what to do with it. He was therefore in possession and no longer acting in accordance with a public duty. As well, once Mr. Adedokun began to act in accordance with a public duty, that duty required him to take further steps, such as turning the gun over to the police or disposing of it.

[31] There are a number of reasons why I do not accept these submissions. First, I doubt that Mr. Adedokun was in possession of the gun when he returned to the vehicle. While he had knowledge of it, he no longer exercised any control over it. The gun was under the front part of the middle seat and Mr. Adedokun was seated in the back, where he could not reach it. The Crown makes the somewhat surprising submission that Mr. Adedokun exercised control over the gun by refusing to tell Mr. Evariste where it was. I have some difficulty in accepting that by choosing not to allow Mr. Evariste to regain possession of the firearm, Mr. Adedokun somehow exercised control over it and thereby engaged in criminal conduct.

[32] Second, even if Mr. Adedokun was in possession of the firearm during the brief period that he was in the car, in my view the public duty defence still applied. Mr. Adedokun’s evidence, which I accept, was that Mr. Evariste was asking for the gun and he was refusing to tell him where it was. Mr. Evariste had clearly demonstrated that he was willing to use the gun in a dangerous manner. Keeping it away from him served the public good.

[33] The Crown’s submission that the fact that Mr. Adedokun did not have a concrete plan with respect to what to do with the gun somehow disentitles him from relying on the public duty defence is not supported by the caselaw. In R. v. Christie (1978), 1978 CanLII 2535 (NB CA), 41 C.C.C. (2d) 282 (N.B.C.A.), the accused, like Mr. Adedokun, did not have a plan as to what to do with drugs in her possession. The Court held (at p. 287):

In the instant case the accused contended, under oath, that she was panic stricken and did not know what she should do when she found the narcotic in the trunk of her car, and that she drove around the City for about an hour before the accident in an attempt to find some of her friends from whom she might obtain advice as to what she should do with it. While the evidence is extremely suspicious, I cannot say that the learned trial Judge erred in failing to convict the accused if he had a reasonable doubt as to whether she intended to exercise dominion or control over the narcotic.

[34] Crown counsel points out that Christie is not binding on me. While this is true, the case has been cited by the Ontario Court of Appeal and Ontario trial courts on numerous occasions: Chalk, at para. 23; R. v. Farmer, 2014 ONCA 823, 318 C.C.C. (3d) 322, at paras. 31-33; R. v. Foster, 2016 ONSC 7914, at para. 136; R. v. Markoff, 2015 ONSC 7741, at para. 133; R. v. Le, 2015 ONCJ 295, at para. 22; R. v. Richardson, 2011 ONSC 3897, at para. 44. The lack of a concrete plan was also held not to be fatal to the defence in R. v. Gibson, 2011 ONSC 3416, at para. 146.

[35] The Crown relies on R. v. Mete, [2009] O.J. No. 287 (S.C.J.). In that case, the accused testified that he found a gun, which he put in his car’s trunk so that it “didn’t get into the hands of children”. Although he intended to give it to a police officer he knew, he did not do so right away because he was scared and “frazzled”, which was also why he did not mention it to the police officers who stopped him shortly thereafter. The Court held (at paras. 253-254):

In a case such as this, had the evidence been that Mr. Mete found the gun, he immediately called the police, during the time it took for the police to arrive Mr. Mete took precautions to prevent it from falling into other hands then this defence might have been made out.

That is not the case here. I have rejected Mr. Mete’s evidence that he “found” the gun. In any event, even if I had accepted Mr. Mete’s evidence that he found the gun, Mr. Mete’s own conduct makes it clear he took possession of the gun. He put the gun with his personal belongings, didn’t immediately call the police, chose to drive around with the gun in the trunk with his friends in the vehicle, and didn’t disclose it to the Constables when stopped. I would have rejected this defence in any event.

With respect, I do not believe that this conclusion is consistent with the authorities cited above. If the accused’s real purpose in taking possession of the gun had been to keep it away from children and eventually bring it to the police, in my view the fact that he did not do so immediately would not disentitle him from relying on the public duty defence. In any event, given that the evidence of the accused was rejected, the legal conclusions in Mete are obiter dicta.

[36] In my view, the Crown’s argument creates an artificial distinction between the events in the restaurant and the events in the vehicle after Mr. Adedokun and his friends leave. This was a continuous sequence of events which unfolded very quickly. The time between when Mr. Adedokun took the gun from Mr. Evariste and when the entire group left the restaurant to enter the limousine was under two minutes. Given that Mr. Adedokun was reacting to an unanticipated and dynamic situation, his conduct should not be held to a standard of perfection. I agree with counsel for Mr. Adedokun that the approach to be taken in this case is akin to that taken with respect to a police officer’s decision to make an arrest in a dynamic situation, as described in R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), at para. 18:

The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer’s decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford.

Similarly, it is well established that a person acting in self-defence is not required to “weigh to a nicety the exact measure of his necessary defensive action”: R. v. Baxter (1975), 27 C.C.C. (3d) 96 (Ont. C.A.), at p. 111; R. v. Hope, 2016 ONCA 623, at para. 93.

C. Conclusion Respecting the “Public Duty” Defence

[37] As explained in Loukas, the public duty defence exists to ensure that the law does not punish the “morally innocent”. I see Mr. Adedokun as falling into this category. There is no evidence that he intended to keep the gun or use it for any prohibited purpose. There is no evidence that he was attempting to assist Mr. Evariste’s unlawful possession of the gun. To the contrary, he took the gun away from Mr. Evariste while he in the course of using it to intimidate somebody and then refused to tell him where it was. The only intention he had with respect to the gun was to prevent it from causing injury to anybody. The fact that he could have taken better steps, such as turning it over to the police, does not change this.

D. The Individual Counts

(i) The Firearms Charges

[38] For the reasons I have explained, the public duty defence applies to the firearms possession charges (Counts 1, 2, 3 and 5). It also applies to Count 4, the charge of being the occupant of a motor vehicle in which he knew there was a restricted firearm, contrary to s. 94(1) of the Criminal Code. I accept Mr. Adedokun’s evidence that he put the gun into the vehicle to keep it from Mr. Evariste and that he and Mr. Evariste left in the vehicle in order to prevent the other man from continuing to fight with Mr. Evariste. In my view, all of Mr. Adedokun’s actions over the few minutes between when he first picked up the gun and when he was stopped by the police were part and parcel of his attempt to keep Mr. Evariste and the gun apart and to remove Mr. Evariste from the restaurant.

(ii) The Obstruct Peace Officer Charge

[39] The Crown’s theory with respect to the obstruct peace officer charge (Count 6), as I understand it, is that Mr. Adedokun knew that the police would likely attend once Mr. Evariste produced a gun and that he removed the gun from the scene in order to prevent the police from finding it, thereby obstructing the anticipated police investigation. However, I accept Mr. Adedokun’s evidence that his purpose in removing the gun from the scene was to prevent it from being used and not to hide it from the police.

III. DISPOSITION

[40] Mr. Adedokun is found not guilty on all counts.

Justice P.A. Schreck

Released: April 3, 2018.

R. v. Adekokun, 2018 ONSC

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ADEBOWALE ADEDOKUN

REASONS FOR JUDGMENT

P.A. Schreck J.

Released: April 3, 2018

R. v. Adedokun, 2018 ONSC 2138

Case Summary

REASONS FOR JUDGMENT

SCHRECK J.:

I. EVIDENCE

A. The Case for the Crown

(i) The Events in the Restaurant

(ii) The Vehicle Stop

B. The Defence Case

II. ANALYSIS

A. Overview – the “Public Duty” Defence

B. The Crown’s Position

(i) The Accused’s Motivation

(ii) The Requirement for a Concrete Plan

C. Conclusion Respecting the “Public Duty” Defence

D. The Individual Counts

(i) The Firearms Charges

(ii) The Obstruct Peace Officer Charge

III. DISPOSITION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 1

Legislation 1