LINDSAY COURT FILE NO.: CR-17-195-00

DATE: 20190211

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KRISTOPHER GODWIN

Defendant

R. Griffin, for the Crown

D. Hodson, for the Defendant

HEARD: December 10, 11, and 12, 2018

REASONS FOR DECISION

Delivered Orally

DE SA J.

Overview

[1] The accused is charged with 4 counts on the indictment. The counts are as follows:

1. Between June 1, 2016 and June 23, 2016 did unlawfully possess a prohibited firearm, to wit: a sawed-off shotgun, knowing that he was not the holder of a licence under which he may possess it and a registration certificate for the firearm, contrary to Section 92(1) of the Criminal Code;

2. On or about June 23, 2016 did possess a firearm, to wit: a .22 calibre rifle knowing that he was not the holder of a licence under which he may possess it and a registration certificate for the firearm, contrary to Section 92(1) of the Criminal Code;

3. Between June 1, 2016 and June 23, 2016 did unlawfully possess a prohibited firearm, to wit: a sawed-off shotgun, without being the holder of a licence under which he may possess it and a registration certificate for the firearm, contrary to Section 91(1) of the Criminal Code;

4. On or about June 23, 2016 did possess a firearm, to wit: a .22 calibre rifle without being the holder of a licence under which he may possess it and a registration certificate for the firearm, contrary to Section 91(1) of the Criminal Code.

[2] Mr. Godwin’s trial proceeded before me in December of 2018. At the conclusion of the trial, I reserved my decision.

[3] This is my judgment and the reasons for my decision.

The Arrest

[4] On June 23, 2016, police were engaged in a firearm investigation involving the accused. The address under investigation was 13 St. Paul Street, Lindsay. Police had information that there was a firearm in the address. The police believed the address to be occupied by three males, namely, Michael Gallow, Lincoln Fortier, and the accused, Kristopher Godwin.

[5] Police watched the accused leave the address and enter a taxi. The taxi briefly stopped at a Tim Horton’s and then proceeded to a Mister Transmission which was the accused’s place of employment. At 8:06 a.m., the accused was arrested just shortly after exiting the taxi.

[6] At the time of his arrest, a cellphone was seized from the accused’s pocket. A subsequent search of the cellphone revealed various photos of a sawed-off shotgun. Officer Cox, the officer searching the phone, testified that the cellphone was searched for officer safety in the hopes of identifying other occupants of the address. The search of the cellphone has not be challenged.

[7] One of the pictures on the phone was a picture of the accused holding a sawed-off shotgun. There was no geo data obtained for the photos, however, the time/date stamps revealed that the photos of the shotgun were taken on June 1, 2016.

[8] Police continued surveillance on the address. Just before 10:00 a.m., another male was observed exiting the address to walk some dogs. The male was also arrested and determined to be Michael Gallow.

[9] At about 3:25 p.m., Shauna Fortier and Gary Hicks (Lincoln Fortier’s parents) were observed walking up to the front of the address. They spoke briefly with Lincoln Fortier for about 10 minutes and left.

[10] At 4:53 p.m., officers tried calling Lincoln Fortier’s phone to have him exit the address but no one picked up. At 5:03 p.m., Lincoln Fortier exited and was arrested. A female (Cheyenne Budarick) was arrested a short while later, as was another male who exited the rear of the address (Adam Reeves).

The Search

[11] At 5:14 p.m., police cleared the address and at 6:10 p.m., police commenced their search. Police seized a .22 calibre rifle from what was believed to be the accused’s closet. In addition, .22 calibre bullets and 12 Gauge bullets were located in various locations in the accused’s bedroom.

[12] Police also located a 12 Gauge, 2¾ inch single-shot break-action shotgun (Make: Baikal, Model: IJ-18M) in the backyard of the address. It was wrapped in a curtain and found just outside a broken window of the house. The firearm was a “sawed-off shotgun” and appeared to be much like the shotgun in the pictures located on the accused’s cellphone.

[13] A clip containing bullets for the .22 calibre rifle was also found secreted in the drawer inside Lincoln Fortier’s bedroom.

Firearm Evidence

[14] There is no issue that the modified 12 Gauge 2¾ inch single-shot break-action shotgun (Make: Baikal, Model: IJ-18M) seized by police (the “sawed-off shotgun”) is a “Prohibited Firearm” as defined in Section 84 of the Criminal Code.

[15] The .22 Long Rifle seized by police (the .22 calibre rifle) is a “Firearm” as defined in Section 2 of the Criminal Code.

[16] Both of the firearms were examined by CFS and confirmed by to be capable of discharging projectiles that are capable of causing serious bodily injury or death to a person.

[17] It was also confirmed that the accused did not have a licence or registration certificate with respect to either of the firearms located in the address. Lincoln Fortier, and Michael Gallow also did not have a licence or registration certificate to possess either of the firearms.

Evidence of Lincoln Fortier

[18] Lincoln Fortier was called by the Crown as a witness at trial. He testified that he was living at 13 St. Paul Street together with the accused and Michael Gallow. Mr. Fortier would pay the accused cash for rent. He believed that the accused was paying the rent to a landlord. He and the accused stayed in the bedrooms downstairs, and Mr. Gallow would sleep in the bedroom upstairs. He had been living at the address for around four months.

[19] At the time of the warrant, Cheyenne Budarick was also at the address (Mr. Fortier’s girlfriend). Adam Reeves had also come over. Mr. Fortier testified that when the police executed the warrant in the evening of June 23, 2016, he had just woken up. He heard the car doors of the police car and saw the lights. He had a marijuana plant in his room which he hid in a closet, and then went out to the front door.

[20] Mr. Fortier confirmed that the closet, and bedroom where the .22 calibre firearm and bullets were located belonged to the accused. The accused would keep toys in that same closet because he had a young son.

[21] Mr. Fortier knew the guns (both the .22 calibre and the 12 Gauge shotgun) were in the house. He had seen them once before in the kitchen. He was told that he would not be hurt by them, and that he did not have to worry about them. Mr. Fortier would not be more particular about the nature of these discussions. He did not identify who he spoke with regarding the firearms.

[22] He testified that he never witnessed anyone using the gun. On the day of the warrant, he never saw the gun or handled it.

[23] He testified that they would all do drugs in the house, but they would generally stay in their own rooms.

Analysis

[24] The evidence is clear that the accused did not hold a licence for either of the two firearms in the address. The other two occupants of the address (Mr. Gallow and Mr. Fortier) also did not possess a licence for the firearms. The main issue to be determined is whether or not the accused was in possession of either of the firearms that are listed in the indictment.

[25] The onus is on the Crown to prove the accused had possession of the firearms beyond a reasonable doubt. This can be established by direct and/or circumstantial evidence. R. v. Sparling, [1988] O.J. No. 1877, 31 O.A.C. 244 (C.A.)

[26] Possession can be established in three ways as outlined in Section 4(3) of the Criminal Code: either by way of personal possession, constructive possession, or joint possession.

[27] Proof of physical possession of a prohibited item is not required to prove constructive or joint possession under Section 4(3). The Crown, however, is still required to prove beyond a reasonable doubt that the accused had knowledge of the nature of the prohibited item or substance and some measure of control over it.

[28] In R. v. Chambers, 1985 CanLII 169 (ON CA), 20 C.C.C. (3d) 440 (C.A.) at p. 448, Martin J.A. noted that in determining possession, the court may draw appropriate inferences from evidence that the contraband (guns/drugs) is found in a room under the control of the accused.

[29] In this case, the .22 calibre rifle was found in a closet area that was clearly under the control of the accused. This is not disputed by the defence. The firearm was also in clear view when the police entered the closet. From the pictures, I am satisfied that the firearm would be evident to anyone entering the closet. It is not concealed in any way.

[30] The defence suggests that Lincoln Fortier may have hid the firearm in the closet when the police arrived. The defence argues that the loaded clip found in Mr. Fortier’s bedroom suggests that it was Mr. Fortier that possessed the firearm. Accordingly, I should be left in doubt as to whether the accused knew about the firearm or had control over it.

[31] Mr. Fortier specifically denied that he moved the firearm or ever touched it in any way. I recognize the concerns with placing excessive reliance on the evidence of a Vetrovec witness like Mr. Fortier. I also recognize the concerns raised by the fact that a clip containing bullets for the same firearm was found in Mr. Fortier’s bedroom. However, I reject the suggestion that Mr. Fortier transferred the firearm to the accused’s bedroom just prior to the police entry. The bullets for the .22 calibre in the accused’s bedroom, together with the location of the firearm in his closet at the time of the warrant satisfies me beyond a reasonable doubt that the accused possessed the firearm.

[32] With respect to the 12 Gauge shotgun, the firearm was wrapped in a curtain and found just outside a broken window of the house. The defence points out that there was the sound of breaking glass heard when the police executed the warrant. According to the defence, this is evidence to indicate that any one of the occupants could have thrown the firearm out the window.

[33] The defence argues there is nothing connecting the accused to the 12 Gauge shotgun. The defence maintains that the firearm in the pictures on the accused’s cellphone is not the same firearm that was located in the backyard by the police. The defence also argues that the firearm in the picture being held by the accused cannot be established by the Crown to be a working firearm.

[34] I disagree with the defence. I have carefully examined the actual firearm and I have also examined the photographs of the firearm on the accused’s cellphone. Having examined them carefully, I am certain that the firearm pictured with the accused on his cellphone is the exact same sawed-off 12 Gauge shotgun that was located in the backyard. An examination of the item in conjunction with the photographs demonstrates that the wear spots and damage on the shotgun are identical to those in the photo. Moreover, the overall appearance of the gun itself is unique.

[35] On the basis of the pictures of the firearm on the accused’s phone and the bullets for the 12 Gauge shotgun located in the bedroom, I am satisfied beyond a reasonable doubt that the accused was also in possession of the 12 Gauge shotgun. The pictures of the accused holding the firearm were taken on June 1, 2016. The bullets for a 12 Gauge shotgun were located in the accused’s bedroom at the time the warrant was executed. Even if the firearm was thrown out during the execution of the warrant by another occupant, that would not change my assessment with respect to the accused’s possession of the firearm.

[36] A reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence. But those inferences must be “reasonable” given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense. As the Supreme Court explained in R. v. Villaroman, [2016] 1 SCR 1000, 2016 SCC 33 at paragraph 35:

When assessing circumstantial evidence, the trier of fact should consider “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

The basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. [Emphasis added]

[37] Having regard to the evidence as a whole, I am satisfied beyond a reasonable doubt that the accused was in possession of both firearms.

[38] Accordingly, I find the accused guilty of counts 1 and 2 on the indictment. Counts 3 and 4 will be stayed under R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

Justice C.F. de Sa

Released Orally in Court: February 11, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

KRISTOPHER GODWIN

Defendant

RULING

Justice C.F. de Sa

Released Orally in Court: February 11, 2019