Court File and Parties

Court File No.: CR-18-50000320 Date: 2019-02-25 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Damion Lewis

Counsel: Patrick Travers, Alana Page, for the accused

Heard: November 13, 14, 15, 16 and 20, December 3 and 20, 2018, and January 30 and February 8, 2019

Before: Favreau J.

Introduction

[1] The defendant, Damion Lewis, is charged with two counts of uttering a threat, one count of using a firearm while uttering a threat, one count of theft of a piece of mail and four different counts related to the possession of a firearm.

[2] The first four charges arise from incidents around January 10, 2017, and on February 6, 2017, when Mr. Lewis allegedly threatened the complainant, Berta Cabral, and took a piece of mail from her house. The last four charges arise from a firearm that was found on Mr. Lewis on February 6, 2017 at the time of his arrest.

Overview of trial procedure

[3] The trial proceeded in two phases.

[4] During the main part of the trial, the Crown called the complainant, Ms. Cabral, and Officers Green, Poltavets and Frederick, who were involved in Mr. Lewis's arrest. The Crown's evidence also included video surveillance taken from the front of Ms. Cabral's house on February 6, 2017, and a certificate of analysis and two affidavits relating to the firearm found on Mr. Lewis at the time of his arrest.

[5] The defence called one witness, who was a police officer involved in the investigation of a break-in at Ms. Cabral's house in January 2017. Mr. Lewis did not testify.

[6] As detailed in a decision reported as R. v. Lewis, 2018 ONSC 7678, during closing arguments, defence counsel argued that the Crown had not proven the firearm charges because the Crown did not prove that Mr. Lewis was not authorized to possess a firearm. In particular, the defence argued that the Crown had not proven that the date of birth used to search Mr. Lewis's name in the database containing information about Firearms Acquisition Certificates and Licences was in fact his correct date of birth. In my decision, I ruled that the Crown could reopen its case for the narrow purpose of proving Mr. Lewis's date of birth.

[7] As a result of this ruling, the Crown called three officers to testify, namely Officer Green who had testified in the first part of the trial, Officer Comeau who was the booking officer at the time of Mr. Lewis's arrest and Officer Soljic who was the officer in charge of the investigation. Through these witnesses, the Crown introduced the booking video taken when Mr. Lewis was first brought to the police station after his arrest. Mr. Lewis provided his date of birth at that time.

[8] The defence did not call any witnesses in response to this additional evidence. However, the defence argued that Mr. Lewis's statement about his date of birth should not be admitted because the Crown had not proven that it was voluntary and because its admission would be contrary to Mr. Lewis's right against self-incrimination as protected by section 7 of the Canadian Charter of Rights and Freedoms.

Fundamental principles

[9] Mr. Lewis is presumed innocent, and, before I can find him guilty, I must be satisfied that the Crown has proven the charges against him beyond a reasonable doubt.

[10] I assessed all of the evidence before determining whether I am satisfied beyond a reasonable doubt about whether Mr. Lewis is guilty of the charges against him. In assessing the witnesses' evidence, I considered the plausibility of their evidence, the inconsistencies within their evidence, and the way in which each witness's evidence fits within the other evidence at trial.

[11] As is his right, Mr. Lewis did not testify in his own defence. I have not drawn any inferences or conclusions from Mr. Lewis's decision not to testify.

[12] The evidence and issues that arise from the first four charges against Mr. Lewis are distinct from the evidence and issues that relate to the last four charges against him. The first four counts relate to Mr. Lewis's interactions with Ms. Cabral, and depend primarily on Ms. Cabral's evidence and video evidence from February 6, 2017. In contrast, the last four charges relate to the firearm found on Mr. Lewis at the time of his arrest on February 6, 2017, and are narrowly focused on the issue of whether the Crown has proven that Mr. Lewis was not authorized to possess the firearm. I have therefore broken my review of the evidence and analysis into two sections as set out below.

Counts 1 to 4 - Charges arising from interactions between Ms. Cabral and Mr. Lewis

Review of evidence relevant to Counts 1 to 4

[13] As mentioned above, counts 1 to 4 arise from events that allegedly occurred between Mr. Lewis and Ms. Cabral.

[14] The evidence in support of these counts comes primarily from Ms. Cabral and from video surveillance of the front of Ms. Cabral's house.

[15] Before addressing each of these four counts individually, it is helpful to review Ms. Cabral's testimony in combination with the video surveillance, and to assess the credibility and reliability of Ms. Cabral's evidence.

Ms. Cabral's background and her daughter

[16] Ms. Cabral lives in a house at 33 Greendale Avenue, in Toronto. She has lived there for over six years. In early 2017, she lived alone. Ms. Cabral's first language is Portuguese. She completed school in grade 6 or 7.

[17] Ms. Cabral's daughter Stephanie suffers from drug addiction. In 2017, Stephanie did not live with Ms. Cabral. However, she visited her mother's house from time to time for the purpose of eating, taking a shower and having a nap. In early 2017, Stephanie was pregnant.

Evidence regarding the January 2017 incident

[18] Ms. Cabral testified that she first saw Mr. Lewis sometime in January 2017, when Stephanie brought a man Ms. Cabral had never met to the house. Stephanie introduced the man as the baby's uncle. At the time, Ms. Cabral did not know his name.

[19] Ms. Cabral testified that she was scared of the man almost as soon as she saw him in her house. She thought he looked scary and she admitted that she was generally scared of the people her daughter associated with. When she saw the man with her daughter, she wanted to get him out of the house as soon as possible. Her daughter had an ultrasound scheduled that day, and Ms. Cabral agreed to go to the ultrasound with the man and her daughter as a way to get the man out of the house.

[20] The three of them went together in the car driven by the man. The man was driving, Stephanie was in the front passenger seat and Ms. Cabral was sitting in the back seat. While they were in the car, Ms. Cabral was speaking to Stephanie in Portuguese, telling her that the man was putting her in danger. Ms. Cabral's evidence is that the man then said to Stephanie "shut her up or I'm going to cut her throat". Ms. Cabral said that she was very scared, and she got out of the car before getting to their destination.

[21] Later in her evidence in chief and then during cross-examination, Ms. Cabral clarified that she had gone to a restaurant with the man and Stephanie before the alleged incident in the car.

[22] During cross-examination, Ms. Cabral agreed that, at Mr. Lewis's preliminary inquiry, she had testified that Mr. Lewis had a knife in his car at the time he threatened to cut her throat. When asked at trial where the knife was located in the car, she said that it was in the front part of the car but she could not explain where it was.

[23] Ms. Cabral did not report this incident to the police until her police interview on February 6, 2017. She said that she was too scared for herself and her daughter to report the incident.

Mr. Lewis's attendance at Ms. Cabral's house on February 6, 2017

[24] On the morning of February 6, 2017, Ms. Cabral was alone at home sleeping in her living room on a futon. The living room is in the front part of the house. The window in the living room looks out onto the front of the house. Ms. Cabral’s evidence is that she started sleeping on the futon in her living room after a break-in in January 2017.

[25] Ms. Cabral testified that she heard someone knocking on the door on the morning of February 6, 2017. She asked who it was and looked through the living room window. She saw a man, who asked for her daughter Stephanie. She told the man Stephanie was not there and that she was in jail.

[26] Ms. Cabral testified that she then told the man to leave, but that he tried to open the door. She then told him she would call the police. She next heard a set of keys, and testified that the man was trying again to open the door. He did not get into the house because the door was locked.

[27] Ms. Cabral testified that the man showed her a gun when she was looking at him through her front window. He lifted "a bit of his jacket up", at which point she claims she saw the “back” of a black gun. She also testified that the man told her to "watch herself".

[28] Ms. Cabral said that she then backed up from the window and called the police. She did so because the man would not leave and because he told her to open the door. He was still there when she called the police.

[29] She described herself as nervous and scared about the situation. When the man said "watch yourself", she felt very sacred.

[30] She said that the man went up to her door a couple of times. He then went down the stairs, almost fell, and then went to his car. She said that once he was near his car, he made a gesture with his index and middle fingers first pointing at his eyes and then pointing at her. She did not hear him say anything at that time. She did not feel threatened by the gesture because she did not know what it meant.

[31] The man then drove into her driveway, and came back onto the porch. She said he then tried to open her door again. He opened the outside door, and was shaking the inside door. She testified that she told him that the police were on their way. She then saw him leave.

[32] The police showed up sometime later. Ms. Cabral told the police that she had a security camera that looked out onto her front porch, and that the video could be played on her phone. She then showed the police the video footage on her phone.

Video surveillance

[33] Following the break-in at her house in January 2017, Ms. Cabral had installed a security camera facing onto the front of her house. The camera records Ms. Cabral's front porch, driveway, front lawn and the sidewalk and road in front of her house. The video has no sound but it captured a visual recording of events at Ms. Cabral's house on February 6, 2017.

[34] The defence does not dispute that the person shown in the video is Mr. Lewis.

[35] The video footage shows Mr. Lewis going onto Ms. Cabral's front porch three times over a relatively short period of time as follows:

a. Mr. Lewis is first seen walking along the sidewalk in front of the house. He then walks up the driveway, and up the stairs onto the front porch. He goes to the front door, and opens an external front door after which he is seen raising his hand in a knocking gesture. He then stands for a few seconds waiting, facing sideways, while propping up the external door with his back. b. Mr. Lewis then lets the front door close, and he moves to face the front window. He is seen speaking, as though interacting with someone inside the house through the window. While he speaks, he has his two hands in the pockets of his jacket. He then turns away, and puts on his hood. He then turns back to the window, takes off his hood and starts talking again. While he speaks, he makes a gesture with his left hand up to his head, with his index and little finger pointing toward his head, a gesture that is commonly used to signal the making of a telephone call. He then puts his left hand back in the pocket of his jacket, and starts turning away. Next, he turns back toward the window and puts both hands in the air, in a gesture that suggests incomprehension or mild frustration. c. He walks off the porch, slipping as he goes down the stairs, and then walks back to the sidewalk. He then stops, makes another gesture with his hands up in the air, and walks back to the house and up onto the porch. He again opens the external door, and makes a knocking gesture. He waits a few seconds. d. He then gets off the porch, walks through the driveway and in front of the house along the sidewalk, and then diagonally onto the street out of view of the camera. e. A few seconds later, a dark car is seen pulling up into the driveway. Mr. Lewis gets out of the car on the driver's side. He walks back up onto the porch. He opens the external door again, knocks and waits, knocks and waits again, and then he walks away from the door. As he walks way, he looks in the mailbox, and takes a piece of mail and looks at it. He then goes down the stairs and gets in his car and leaves, taking the piece of mail with him.

Assessment of Ms. Cabral's credibility

[36] While Ms. Cabral's first language is Portuguese, I found that her ability to understand and communicate in English was very good. However, she was very emotional and defensive during her testimony, especially during cross-examination. While I appreciate that demeanour is not an accurate predictor of a witness' truthfulness, ultimately there were significant discrepancies between her evidence in chief and her evidence in cross-examination, as well as between her evidence and the video surveillance.

[37] The most significant discrepancies include the following:

a. Ms. Cabral’s evidence in chief about what Mr. Lewis did when he came to her house on February 6, 2017, is in many ways inconsistent with the video footage. The video footage fully captures Mr. Lewis's activities while he was on Ms. Cabral's porch. There is no point when he is seen rattling the internal door handle or lock, or trying to get into her house. His only physical gesture toward the door is knocking. There is nothing visibly aggressive about his demeanour and he is only seen knocking on the door a few times, speaking at the window and making innocuous hand gestures. When confronted with the video during cross-examination, Ms. Cabral conceded that she may have thought Mr. Lewis was trying to get into the house because her own house keys on the inside of the door handle would have made a rattling noise while he was knocking. b. While Ms. Cabral claims that Mr. Lewis showed her a gun in his pocket while he was on the porch, there is no visible opportunity when he could have done so. While on the porch facing the window, his hands were either securely in his jacket pockets or visibly up in the air while he was speaking. There is no point when he is seen lifting his jacket. When confronted with this evidence during cross-examination, she could not identify when Mr. Lewis held up his jacket to show her the gun. Ultimately, she said that the "camera does not show what I saw". c. During cross-examination, she agreed that she had been in an accident approximately six years earlier that affected her vision. She also agreed that she had told the police during her statement on February 6, 2017, that she would not recognize Mr. Lewis because of her blurry vision. But then she insisted during cross-examination that she had said she could not recognize Mr. Lewis due to her blurry vision because she was embarrassed to say that she did not think she could recognize him because he was a Black man. She insisted that her vision was only blurry when there were bright lights. and that she did see a gun and that she saw Mr. Lewis make the gesture with his fingers to his eyes. d. Ms. Cabral did not mention that Mr. Lewis had a gun when she made the initial call to the police on February 6, 2017. When the police arrived at her home, she did not mention the gun until the interview was well under way. When asked why she did not mention the gun earlier, she said that she was afraid for her daughter. Given that she had called the police about Mr. Lewis coming to her house, it is hard to understand why she would not disclose the gun when she called the police. e. During the course of her statements to the police on February 6, 2017, Ms. Cabral said that she recognized him as the person who had come to her house with Stephanie in January 2017 and threatened her in the car. She also said that she recognized him as one of the people who had broken into her house in January 2017. During the course of the investigation of the break-in, she had never mentioned to the police that she recognized Mr. Lewis from the previous time she claims he had come to her house. When asked about this, she again said that she was trying to protect her daughter. Again, this rationale is hard to believe given that she told the police after the break-in that she believed that her daughter and her daughter's boyfriend were involved in the break-in. f. When asked about how she recognized Mr. Lewis as one of the people involved in the break-in, she said that she recognized him from his dark jacket. In fact, Mr. Lewis's jacket on the surveillance video from February 6, 2017 is very distinctive and not just dark; it consisted of a dark sleeveless vest over a mustard yellow hoodie, with the lighter colour sleeves and hood being very visible. When this was pointed out to Ms. Cabral, she became defensive and said she recognized Mr. Lewis by his body type. g. Ms. Cabral also gave implausible evidence about a number of trivial matters and was defensive when confronted with the implausibilities. For example, at the time of the break-in, she claimed that a bag of "Stephanie's clean clothes" had been stolen. During cross-examinations, she insisted that Stephanie had never left her clothes in the house, and that the bag contained clothes Ms. Cabral had bought for Stephanie at Value Village that she intended to give to Stephanie some time later. She was very defensive about this evidence, insisting that Stephanie had never left any clothes at her house.

[38] The examples reviewed above are some of the instances of the inconsistencies, exaggerations and implausibilities in Ms. Cabral's evidence. There are many others.

[39] I have no doubt that Ms. Cabral was sincere in her fear of Mr. Lewis, and I believe that her daughter's circumstances gave her a great deal of concern. However, based on the evidence I have reviewed, I generally do not find her evidence credible or reliable. It is evident that she was fearful of Mr. Lewis from the first time she met him, and that her perception of his behaviour was significantly affected by this fear. She was also clearly very fearful as a result of the January break-in. It is not clear to me whether she truly perceived that Mr. Lewis threatened her at the time he attended her house on February 6, 2017, or whether she intentionally exaggerated what happened to get the police to take her seriously. However, regardless of the explanation, I find that I cannot generally rely on her recollections and observations of what happened around January 10, 2017 and on February 6, 2017.

[40] My specific findings on counts 1 to 4 are as follows.

Count 1 - Uttering a threat on January 10, 2017

[41] Count 1 relates to allegations that Mr. Lewis made threats to Ms. Cabral around January 10, 2017. The charge reads as follows:

Damion LEWIS, stands charged that he, on or about the 10th day of January in the year 2017, in the City of Toronto, did by words, knowingly utter a threat to Berta CABRAL to cause bodily harm to Berta CABRAL, contrary to Section 264.1(3) (a) of the Criminal Code.

[42] Section 264.1(1) of the Criminal Code provides that "Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat … to cause death or bodily harm to any person".

[43] In order to prove that Mr. Lewis committed this offence, the Crown must prove the following elements beyond a reasonable doubt:

a. That Mr. Lewis made a threat; b. That the threat was to cause bodily harm; and c. That Mr. Lewis made the threat knowingly.

[44] The Crown claims that Mr. Lewis threatened Ms. Cabral sometime around January 10, 2017, when he said that he would cut her throat if she did not shut up.

[45] As reviewed above, the only evidence in support of this charge is Ms. Cabral's testimony. As mentioned, I did not find Ms. Cabral's evidence generally credible or reliable. Ms. Cabral did not report this threat until the police interview on February 6, 2017. She was clearly scared of the person her daughter had brought to the house as soon as she saw him. Her evidence about what happened at the time of the alleged threat is somewhat inconsistent and imprecise, especially with respect to her claim that there was a visible knife in Mr. Lewis's car at the time the threat was made.

[46] While Stephanie was in the car at the time the alleged threat was made, she was not called as a witness at trial. There is therefore no confirmatory evidence to support Ms. Cabral's evidence.

[47] The Crown suggests that Ms. Cabral's evidence is corroborated by the fact that Mr. Lewis was found to be in possession of a knife at the time of his arrest on February 6, 2017. I cannot see how this corroborates Ms. Cabral's evidence. The fact that he had a knife in his pocket approximately one month later does not support a finding that Mr. Lewis had a knife in plain view in his car around January 10th and that he threatened to use it on Ms. Cabral.

[48] I find that the Crown has not proven beyond a reasonable doubt that Mr. Lewis made a threat to Ms. Cabral on or around January 10, 2017, and therefore the first element of Count 1 is not made out.

[49] Accordingly, I find Mr. Lewis not guilty of Count 1.

Count 2 - Uttering a threat on February 6, 2017

[50] Count 2 reads as follows:

Damion LEWIS, stands further charged that he, on or about the 6th day of February in the year 2017, in the City of Toronto, did, by actions, knowingly convey a threat to Berta CABRAL to cause bodily harm to Berta CABRAL, contrary to Section 264.1(3) (a) of the Criminal Code.

[51] In order to prove this offence, the Crown must prove the same elements as on Court 1 beyond a reasonable doubt.

[52] The Crown alleges that Mr. Lewis is guilty of this offence because he made a threatening gesture at Ms. Cabral. In particular, the Crown relies on Ms. Cabral's evidence that Mr. Lewis pointed at his eyes with his index and middle finger, and then pointed toward Ms. Cabral in a gesture meant to convey that Ms. Cabral should watch herself. The Crown argues that this gesture was threatening in the context of Mr. Lewis’s other actions when he attended Ms. Cabral’s house on February 6, 2017.

[53] The gesture was not captured by the surveillance camera on the front of Ms. Cabral's house. Ms. Cabral's evidence is that this gesture was made while Mr. Lewis was off camera standing next to his car.

[54] As reviewed above, there are many inconsistencies between Ms. Cabral's evidence and what was captured by the security camera. In addition, as already mentioned, there is some evidence that Ms. Cabral has problems with her eyesight. If Mr. Lewis made this gesture, he did so some distance away from Ms. Cabral's house. On this basis, I do not find Ms. Cabral's evidence that Mr. Lewis made the gesture reliable. Accordingly, I do not find that the Crown has proven the first element of this offence beyond a reasonable doubt.

[55] Even if the Crown had established that Mr. Lewis had made the gesture, I would not be satisfied that it was intended to be threatening. As reviewed above, throughout the video, Mr. Lewis's body language was not threatening. He knocked on the door a few times. There were two hand gestures captured on video, neither of which was aggressive. It is hard to imagine that in the few seconds offscreen during which the Crown alleges Mr. Lewis made the gesture, that Mr. Lewis's demeanour changed and that he made a gesture that was intended to threaten Ms. Cabral. Ms. Cabral may have been scared of Mr. Lewis, but this does not mean that he intended to threaten her.

[56] I find that the Crown has not proven beyond a reasonable doubt that Mr. Lewis made the threatening gesture to Ms. Cabral or that any such gesture was meant to be threatening.

[57] Accordingly, I find Mr. Lewis not guilty of Count 2.

Count 3 - Using a firearm to make a threat on February 6, 2017

[58] Count 3 reads as follows:

Damion LEWIS, stands further charged that he, on or about the 6th day of February in the year 2017, in the City of Toronto, did use a firearm, to wit a handgun, while committing the indictable offence of uttering threats, contrary to Section 85(3) (a) of the Criminal Code.

[59] Section 85(1) (a) of the Criminal Code provides "Every person commits an offence who uses a firearm, whether or not the person causes or means to cause bodily harm to any person as a result of using a firearm … while committing an indictable offence…"

[60] The elements of this offence require the Crown to prove beyond a reasonable doubt each of the elements identified on Count 1 and that Mr. Lewis used a firearm while making a threat.

[61] The Crown alleges that Mr. Lewis threatened Ms. Cabral with a firearm while he was standing on the porch facing the front window.

[62] As reviewed above, there was no firearm visible in the video, and there was no obvious point in time when Ms. Lewis could have shown Ms. Cabral a firearm while he was standing on her porch. The only evidence in support of this charge is Ms. Cabral's evidence, which I have found unreliable in general and specifically on this issue.

[63] The Crown suggests that the firearm found on Mr. Lewis later that day serves to confirm Ms. Cabral's evidence that Mr. Lewis threatened her with his firearm. While Mr. Lewis may have had a firearm on him when he went to Ms. Cabral's house, this does not confirm that he showed it to Ms. Cabral and used it to threaten her. In fact, when the police found the handgun on Mr. Lewis, it was wrapped in a bandana and buried under several layers of clothes; it was not visible or easily accessible.

[64] I find that the Crown has not proven beyond a reasonable doubt that Mr. Lewis used a firearm to threaten Ms. Cabral.

[65] Accordingly, I find Mr. Lewis not guilty of Count 3.

Count 4 - Theft of a piece of mail

[66] Count 4 reads as follows:

Damion LEWIS, stands further charged that he, on or about the 6th day of February in the year 2017, in the City of Toronto, did steal letter mail sent by post, after deposit at a post office and after delivery but before it was in the possession of the addressee, contrary to Section 356(3)(a).

[67] Section 356(1) (a) of the Criminal Code provides that "Everyone commits an offence who … steals … anything sent by post, after it is delivered but before it is in the possession of the addressee or of a person who may reasonably considered to be authorized by the addressee to receive mail".

[68] This charge relates to a piece of mail that Mr. Lewis removed from Ms. Cabral's mailbox when he attended her house on February 6, 2017.

[69] The letter is addressed to M. Valente and bears the 33 Greendale Avenue address. Ms. Cabral's evidence was that she does not know M. Valente, but has received mail addressed to M. Valente since the time she moved into the house. When she receives mail addressed to M. Valente, Ms. Cabral would mark the letter "return to sender", even if it was promotional material.

[70] The video evidence is clear that Mr. Lewis removed the piece of mail from Ms. Cabral's mailbox. It was later found in Mr. Lewis's car at the time of the arrest. The envelope was opened and contained promotional material from Bell Canada.

[71] Based on this evidence, I am satisfied that the Mr. Lewis stole a piece of mail after it was delivered, but before it was in the possession of the addressee.

[72] Defence counsel argues that the matter is de minimis, and should not attract a conviction. The piece of mail at issue was in the nature of promotional material and it is not clear that M. Valente would ever have received it in any event.

[73] In making this argument, the defence relies on the decision of the Ontario Court of Justice in R. v. Arsenault, 2018 ONCJ 224, wherein, at para. 13, Bliss J. provided the following quote from the Court of Appeal's decision in R. v. Murdock, 2003 ONCA 4306, [2003] O.J. 2470 in support of the existence of the de minimis principle:

I find the analysis provided by Braidwood J.A. in Malmo-Levine, supra, persuasive. In addition to the sources he refers to in support of his conclusion that the harm principle is a principle of fundamental justice, I would add that the concept has strong common law roots. The "de minimis" defence at common law operated to prevent the conviction of those whose conduct, while falling within the four corners of the penal provision, were so trivial as to pose no risk to the public interest: Stuart, supra, at pp. 594-98. The harm principle also underlies the long accepted rule of statutory interpretation which directs that criminal statues [sic], where possible, should not be read so as to encompass conduct which is trivial or harmless: R. v. Hinchey, [1996] 3 S.C.R. 1128 at para. 36; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 at 1082. (para 29)

[74] While it may turn out that there was no harm to M. Valente in this case given the nature of the materials at issue, I am not satisfied that this is an appropriate case to dismiss the charges on the basis of the de minimis principle. The defence did not present any cases in which the principle was applied to the theft of mail.

[75] In this case, Mr. Lewis went on to someone else's property, opened the mailbox, took a piece of mail that was not addressed to him, opened the mail and kept it. Given the nature of the correspondence, this may not have significant consequences. However, Mr. Lewis's conduct was not trivial and there is definitely a societal interest in protecting the property and privacy of mail recipients. Ultimately, it may be appropriate to take the consequences of this offence into consideration for the purpose of sentencing, but I am not prepared to find that Mr. Lewis's conduct was so trivial that it warrants a dismissal of the charge.

[76] Accordingly, I find Mr. Lewis guilty on count 4.

Counts 5 to 8 -- Charges arising from the possession of a firearm

Review of evidence relevant to counts 5 to 8

[77] Mr. Lewis is charged with four counts related to the possession of the firearm he had at the time of the arrest.

[78] There is significant overlap in the evidence and issues related to each of these counts.

[79] After Mr. Lewis went to Ms. Cabral's house on February 6, 2017, the police attended her house and viewed the security video footage. Based on the video and on information provided by Ms. Cabral about her daughter, the police were able to locate and arrest Mr. Lewis later that day. The arrest took place in the lobby and parking lot of a building on Eglinton Avenue West in Toronto.

[80] At the time of the arrest, Officer Green conducted a pat down of Mr. Lewis. He initially found a sock in Mr. Lewis's vest pocket that contained ammunition and he also found a knife in one of Mr. Lewis' pockets. He then did a more thorough search, and he found a handgun wrapped in a bandana in the mesh of a pair of swimming trunks Mr. Lewis was wearing over his boxer shorts and under his pants. The handgun contained ammunition.

[81] Besides Officer Green's evidence about finding the loaded handgun on Mr. Lewis, at trial the Crown put forward the following evidence in support of the firearm charges:

a. An admission by the defence as to the continuity of the handgun, including that it was provided to Greg Hoffman, who examined it for the purpose of determining whether it was a prohibited firearm. Mr. Hoffman is also admitted to be an expert in the field of firearms and ammunition identification and analysis. b. A Certificate of Analysis prepared by Mr. Hoffman identifying the handgun and ammunition, and certifying that the handgun at issue is a prohibited firearm as defined in section 84 of the Criminal Code. c. An affidavit sworn by Angie McKlusky, who is employed by the Royal Canadian Mounted Police, who attests that she searched the database for registered restricted firearms, and that she did not find a registration for the firearm found on Mr. Lewis. d. An affidavit sworn by Michelle Charbonneau, who is designated as a Firearms Officer by the Chief Firearms Officer of Ontario. In her affidavit, Ms. Charbonneau swears that she conducted a search of the Canadian Firearms Information System, and that she found no record of a Firearms Acquisition Certificate or a Licence issued to Damion Lewis, with the date of birth of the September 10, 1982, that was valid on February 6, 2017.

[82] As mentioned above, I allowed the Crown to reopen its case to prove Mr. Lewis's date of birth. This evidence is relevant to the Crown's proof that the search conducted by Ms. Charbonneau establishes that Mr. Lewis does not have a Firearms Acquisition Certificate or a Licence.

[83] The evidence the Crown sought to rely on for the purpose of proving Mr. Lewis's date of birth is a statement made by Mr. Lewis during his booking on February 6, 2017. Soon after Mr. Lewis was brought into the station, Officer Comeau asked Mr. Lewis for his date of birth to which Mr. Lewis responded "September 10, 1982". There is a video of the booking. This information was also recorded in a handwritten log and in a typed document titled "Prisoner Management Log".

[84] As indicated above, the defence argues that Mr. Lewis's statement about his date of birth should not be admitted because the Crown has not proven that it was voluntary and admitting the statement would breach Mr. Lewis's section 7 Charter right against self-incrimination.

[85] At the time the Crown reopened its case to prove Mr. Lewis's date of birth, I conducted a blended voir dire on whether the evidence of Mr. Lewis's statement is admissible.

[86] Therefore, before addressing the individual counts involving the firearm charges, I must first determine whether Mr. Lewis's statement about his date of birth should be admitted.

Admissibility of Mr. Lewis's statement about his date of birth

Voluntariness of the statement

[87] The Crown bears the burden of proving the voluntariness of the statement beyond a reasonable doubt: R. v. Brown, 2013 ONSC 7838, at para. 4.

[88] In R. v. Mullins, 2015 ONSC 1552, at para. 22, Molloy J. reviewed the rationale for ensuring that statements made by accused persons to the police are voluntary:

The burden is upon the Crown to prove that a statement made by an accused person to police is voluntary. The traditional basis for this rule was to ensure that confessions made by an accused were reliable and not induced by some sort of promise or threat that might be seen to undermine that reliability. However, in modern times, the rule has been given a much broader application, requiring a contextual approach.

[89] The Court went on, at para. 24, to set out the considerations for determining whether a statement is voluntary:

Typically, the main focus on a voluntariness voir dire is on: (a) whether the police have made any threats or promises to the accused person; (b) whether the police treatment of the accused can be said to be oppressive in some manner; and (3) whether the operating mind of the accused can be said to be overborne. However, there must also be a consideration as to whether the method used to obtain the statement, and the circumstances could be said to "shock the conscience of the community, a consideration that frequently, but not always, relates to incidents of police trickery.

[90] In both Brown and Mullins, this Court dealt with the admissibility of statements made by an accused person during a booking that were captured on video.

[91] In Brown, the Court admitted the answer to a question about the accused's address that ultimately became relevant evidence for the purpose of the Crown's case. In making this determination, at para. 10, the Court had regard to the routine nature of the question and the circumstances under which the answer was provided:

The Crown has a weighty burden to prove beyond a reasonable doubt the voluntariness of statements. I find the statement on the booking video to have been made voluntarily. The video was played in open court. There is no evidence that the defendant was coerced or induced to make that statement or that it was given under circumstances that were oppressive. It was a routine question. I therefore allow that statement to be admitted as evidence at trial.

[92] Similarly, in Mullins, the Court admitted evidence about medication taken by the accused, again on the basis that this was a routine question, and the booking video showed that the answer was provided voluntarily:

27 No threats or promises were made to him during transport, during booking, or during the course of his interview with Det. Thomas. Indeed, the evidence indicates that Mr. Mullins was treated with respect and courtesy throughout his time in custody. This is certainly not a situation in which Mr. Mullins' will was overborne, as is abundantly clear from his combative manner during his interview. Further, there was no trickery of any kind by the police. To the extent any questions with respect to Mr. Mullins' medications were raised at all by police, it was solely to ensure that any medical needs he had were met.

28 Mr. Mullins was well aware of his right to remain silent. Indeed, his initial stance in the police cruiser on the way to the station was to refuse to even reveal his name, stating that he was going to "lawyer up." He subsequently changed his mind about that, but not as a result of any questioning, threats, promises, or statements made by police. Rather, the decision to provide information to police was his, and his alone, as an exercise of his own free will.

[93] In this case, I also find that Mr. Lewis's statement about his date of birth was voluntary. Prior to being brought to the station, Mr. Lewis was advised of his right to counsel. Once Mr. Lewis arrived at the station, Officers Green and Poltavets brought him before Officer Comeau, who was the booking officer on duty that day. The booking video shows Officer Green giving Mr. Lewis's name and then saying that Mr. Lewis's date of birth is "October, no, December 10, 1982". Officer Green then described the charge and requested permission for a level 3 search. Immediately after, Officer Comeau asked Mr. Lewis for his name, which he provided, and then for his date of birth, which Mr. Lewis provided without hesitation as September 10, 1982. Officer Comeau then repeated "September 10". Officer Comeau then asked Mr. Lewis for his address, to which Mr. Lewis responded that he did not know. Officer Comeau did not pursue that issue, and he went on to ask a number of medical questions. There is no evidence that Mr. Lewis was pressured into giving his date of birth or that the conduct of the police officers during the booking was oppressive or coercive.

[94] Defence counsel argued that Mr. Lewis's statement about his date of birth was not voluntary because he was required to provide that information as a matter of law. In making this argument, she relies in part on Officer Comeau's admission during cross-examination that a person who does not provide his or her name and date of birth at the time of booking could be charged with obstruction of justice.

[95] No authority was provided in support of the argument that a legal obligation to provide the information is sufficient to lead to a finding that a statement was not made voluntarily. In Mullins, at para. 29, Molloy J. rejected a similar argument, finding that there was no factual foundation for an argument that disclosure was involuntary because the accused in that case had to disclose his medication to protect his health. Similarly, I find that there is no factual foundation for this position in this case. There is no evidence that Mr. Lewis disclosed his date of birth under compulsion of law; rather, the booking video makes clear that he provided the information voluntarily, and not under any kind of threat.

[96] Accordingly, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Lewis voluntarily provided his date of birth during the booking.

Section 7 Charter rights

[97] The defence also argues that admitting the evidence about Mr. Lewis's date of birth would violate his right against self-incrimination as provided for by section 7 of the Charter.

[98] Mr. Lewis bears the burden on a balance of probabilities of establishing an infringement of his Charter rights if his date of birth is admitted into evidence: R. v. White, [1999] 2 S.C.R. 417.

[99] In my view, the defence has not established such a breach. Unlike in White, where the accused was told that she was required to provide a statement to the police under British Columbia's Highway Traffic legislation, in this case, as reviewed above, there is no evidence that Mr. Lewis provided his date of birth because he was compelled to do so by law. For the same reason, this situation can be contrasted with the unreported ruling in R. v. Mslanka, relied on by the defence, where the accused testified that she felt she had an obligation to provide her address, which the Crown then sought to use as evidence in its case. Again, there is no evidence in this case that Mr. Lewis was compelled or that he felt compelled to provide his date of birth when asked to do so at the time of his booking.

[100] In any event, even if I had found a breach, I would not have excluded the evidence under section 24(2) of the Charter. This is not a case in which there was serious state misconduct. The question about Mr. Lewis's date of birth is part of the initial routine questions the police ask an accused at the time of booking. The manner in which the question was asked was respectful, and Mr. Lewis was not pressed to answer questions he did not wish to respond to.

[101] Accordingly, I find that Mr. Lewis's statement that his date of birth is September 10, 1982 is admissible.

Whether the Crown has proven Mr. Lewis's date of birth

[102] The defence also argues that, even if Mr. Lewis's statement about his date of birth is admissible, the Crown has not proven that his date of birth is in fact September 10, 1982. In making this argument, the defence relies on the fact that the indictment shows Mr. Lewis's date of birth as October 9, 1982, and on Officer Green's error in providing Mr. Lewis's date of birth at the time of the booking. As mentioned above, Officer Green first said it was October and then December 10, 1982.

[103] I do not accept this argument. I expect that Mr. Lewis is the most reliable source of his own date of birth. In addition, after Mr. Lewis gave his date of birth, Officer Comeau repeated it, giving Mr. Lewis an opportunity to make a correction, which Mr. Lewis did not do.

[104] Accordingly, I find that Mr. Lewis's date of birth is September 10, 1982.

[105] Having made this finding, I now move on to consider the last four counts with which Mr. Lewis is charged.

Count 5

[106] Count 5 reads as follows:

Damion LEWIS, stands further charged that he, on or about the 6th day of February in the year 2017, in the City of Toronto, did unlawfully did have in his possession a loaded prohibited firearm, to wit: a handgun, while he was not the holder of an authorization or licence under which he may possess the said firearm in that place and he was not the holder of a registration certificate for the said firearm, contrary to section 95(2) (a) of the Criminal Code.

[107] Section 95(1) of the Criminal Code provides as follows:

Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, without being the holder of

(a) an authorization or a licence under which the person may possess the firearm in that place; and

(b) the registration certificate for the firearm.

[108] The elements of this offence require the Crown to prove beyond a reasonable doubt that Mr. Lewis:

a. Possessed a firearm; b. That the firearm was a prohibited firearm; c. That the firearm was loaded, or unloaded with readily accessible ammunition capable of firing in the weapon; d. That Mr. Lewis did not have an authorization or licence to possess the firearm and that Mr. Lewis did not possess a registration certificate for the firearm; and e. That Mr. Lewis knew or was reckless with respect to the characteristics of the weapon that made it a prohibited weapon.

[109] Based on the evidence reviewed above, I find that the Crown has proven beyond a reasonable doubt each element of the offence:

a. There is no issue that Mr. Lewis was in possession of a firearm on February 6, 2017. The firearm was found in a bandana located in his pants, from which one can infer that he had knowledge and control of the firearm. b. Mr. Hoffman's Certificate of Analysis establishes that the firearm at issue was a prohibited firearm. c. At the time Officer Green found the firearm, it was loaded. d. Based on the affidavits of Ms. McKlusky and Ms. Charbonneau, it is evident that Mr. Lewis did not have a registration certificate for the firearm and that he did not have a licence or authorization to possess the firearm. e. When the police found the handgun, it was wrapped in a bandana and located next to Mr. Lewis's right thigh in the mesh of swimming trunks Mr. Lewis wore over boxer shorts and under a pair of pants. From the manner in which Mr. Lewis hid and carried the firearm, one can infer that he knew it was a prohibited weapon.

[110] Accordingly, I find Mr. Lewis guilty of count 5.

Count 6

[111] Count 6 reads as follows:

Damion LEWIS, stands further charged that he, on or about the 6th day of February in the year 2017, in the City of Toronto, did possess a prohibited firearm, to wit a handgun, knowing that he was not the holder of a license and a registration certificate for the firearm contrary to section 92(3)(a).

[112] Section 92(1) of the Criminal Code provides as follows:

92 (1) Subject to subsection (4), every person commits an offence who possesses a prohibited firearm, a restricted firearm or a non-restricted firearm knowing that the person is not the holder of

(a) a licence under which the person may possess it; and

(b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.

[113] The elements of this offence require the Crown to prove beyond a reasonable doubt that:

a. Mr. Lewis possessed a firearm; b. That the firearm was prohibited; c. That Mr. Lewis did not have a licence to possess a firearm and a registration certificate for the firearm; and d. That Mr. Lewis knew that he did not have a licence and certificate.

[114] The first three elements are identical to elements already proven by the Crown on Count 5.

[115] With respect to knowledge, I find that Mr. Lewis's knowledge that he did not have a licence or registration certificate can be inferred from the fact that he did not have a certificate of registration or a licence at the time he was found with the firearm, and from the fact that the firearm was hidden under several layers of clothes at the time of Mr. Lewis's arrest.

[116] Accordingly, I find Mr. Lewis guilty of count 6.

Count 7

[117] Count 7 reads as follows:

Damion LEWIS, stands further charged that he, on or about the 6th day of February in the year 2017, in the City of Toronto, did possess a prohibited firearm, to wit: a handgun, without being the holder of a license and a registration certificate under which he may possess it contrary to section 91(3) (a) of the Criminal Code.

[118] Section 91(1) of the Criminal Code provides as follows:

91 (1) Subject to subsection (4), every person commits an offence who possesses a prohibited firearm, a restricted firearm or a non-restricted firearm without being the holder of

(a) a licence under which the person may possess it; and

(b) in the case of a prohibited firearm or a restricted firearm, a registration certificate for it.

[119] The elements of this offence are the same as on Count 6, with the exception of the requirement under section 92(1) of the Criminal Code that the accused have knowledge that he does not have a certificate or licence to possess a prohibited weapon.

[120] Accordingly, based on my findings on Count 6, all of the elements of Count 7 are made out.

[121] However, the defence argues that this charge should be stayed on the basis of R. v. Kineapple, [1975] 1 S.C.R. 729. The Crown concedes that Kineapple applies to this charge. I agree with this position, given that all of the elements of this charge are included in Count 6.

[122] Accordingly, while I find Mr. Lewis guilty of Count 7, this charge is stayed.

Count 8

[123] Count 8 reads as follows:

Damion LEWIS, stands further charged that he, on or about the 6th day of February in the year 2017, in the City of Toronto, did without being authorized under the Firearms Act, carry a concealed weapon, to wit a handgun contrary to Section 90(2) (a) of the Criminal Code.

[124] Section 90(1) of the Criminal Code provides that "every person commits an offence who carries a weapon, a prohibited weapon, a prohibited device or any prohibited ammunition concealed, unless the person is authorized under the Firearms Act to carry it concealed."

[125] The essential elements of this offence the Crown is required to prove beyond a reasonable doubt are as follows:

a. That Mr. Lewis was carrying a weapon; b. That the weapon was concealed; c. That Mr. Lewis did not have authorization under the Firearms Act to carry a concealed weapon; and d. That Mr. Lewis intended to conceal the handgun.

[126] Based on the evidence I have already reviewed, I find that the Crown has proven each element of the offence beyond a reasonable doubt:

a. Mr. Lewis was carrying a handgun at the time of his arrest; b. The handgun was wrapped in a bandana located in Mr. Lewis's underclothes, and was therefore concealed; c. The affidavit of Ms. Charbonneau confirms that Mr. Lewis did not have the requisite authorization for the weapon under the Firearms Act; and d. Given the location on Mr. Lewis's body where the handgun was found and that it was wrapped in a bandana, I infer that Mr. Lewis intended to conceal the handgun.

[127] Accordingly, I find Mr. Lewis guilty of Count 8.

Conclusion

[128] In conclusion, I find Mr. Lewis not guilty of counts 1, 2 and 3. I find Mr. Lewis guilty of counts 4, 5, 6, 7 and 8, but count 7 is stayed pursuant to Kinneapple.

Favreau J. Released: February 25, 2019

Court File No.: CR-18-50000320 Date: 2019-02-25 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Damion Lewis

Reasons for Judgment Favreau J. Released: February 25, 2019