Court File and Parties

COURT FILE NO.: CR-18-50000364-0000 DATE: 20190328 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – EZEKIEL VINCENT Accused

Counsel: Tom Mack, for the Attorney General John Struthers, for the Accused

HEARD: March 25 & 26, 2019

B.A. ALLEN J.

Reasons for Judgment

[1] I rendered a verdict at the end of the trial with Reasons for follow. These are those reasons.

The Charges

[2] The accused, Ezekiel Vincent, is charged with possession of a prohibited weapon, a 9 mm Smith & Wesson firearm and two prohibited extended magazines without being authorized to possess the same and possession of a firearm with a defaced serial number.

The Evidence

[3] On July 30, 2017, members of the Toronto Police Service 23 Division were tasked to attend a premises suspected to be operating as an illegal night club establishment, in the vernacular, a booze can. They were authorized under a Provincial Offences Act search warrant to attend and search for evidence of the unlicensed sale of liquor. Several officers arrived. The two officers who are critical to this trial arrived at 1:05 a.m., Officers John Xiouris and Sascha Safai.

[4] Only two witnesses testified at the proceeding, Officers Xioaris and Safai. No defence was called. The officers testified about their observations before and after they entered the VIP room of the establishment where the firearm was located.

[5] It took several seconds from the time the officers left their police vehicles and when they entered the premises. The VIP room entrance was directly across from the main entrance. Both officers were wearing their police issued vests with “Police” written on them. They entered the VIP room and announced that they were police officers with a search warrant.

[6] There were about ten patrons in that room talking, drinking, smoking and eating, mainly congregated around a food table situated against a wall across from the entrance to the room. The room was brightly lit. The officers directed the patrons to move to stand at a wall and stay there. Both officers testified the patrons were calm and cooperative. They did not scatter when the police announced their presence.

[7] The problem with the Crown’s case is that the two officers gave contradictory evidence in critical areas of their testimonies.

[8] Officer Xioaris testified he was the first officer to enter the VIP room and Officer Safai said he was the first. Following from that basic problem is that their observations were fundamentally different.

[9] Officer Xioaris testified that when he entered the room through an entrance directly across from the main entrance, Mr. Vincent was standing across the room from the entrance at the food table. According to Officer Xioaris, Mr. Vincent was the only patron who did not abide by the police’s command to stay where the police directed.

[10] The officer testified that Mr. Vincent saw him and walked across the room, did a 180 degree turn to his left, continued walking and sat on a couch situated across the room near to where Officer Xioaris was standing. He sat near a woman who was found to be Mr. Vincent’s wife. The officer observed a quick motion by Mr. Vincent as he was moving to sit on the couch. He leaned forward and put something under the couch with his right hand. Officer Xioaris described what he believed he saw in Mr. Vincent’s right hand as a square silver and black object. He saw about one inch of that object. Importantly, Officer Xioaris testified at the preliminary inquiry and at trial that he believed Mr. Vincent was the man that put the object under the couch. Greatly detracting from the Crown’s case then was that he did not testify with certitude about this.

[11] Officer Xioaris testified that as Mr. Vincent walked toward the couch his right side was toward the officer. The room was brightly lit and the officer’s evidence was that he did not see a firearm or anything in Mr. Vincent’s right hand at that point.

[12] Officer Xioaris left the VIP room for a brief period so he did not see when the firearm was located.

[13] As noted, Officer Safai also stated that he was the first officer to enter the VIP room. Contrary to Officer Xioaris’s evidence, Officer Safai testified that Mr. Vincent was seated on the couch near his wife when he entered the room. No one else was sitting on the couch. There were other people standing at the food table whom Officer Safai directed to stand against the wall and remain there. Officer Safai testified that he was behind the couch and what caught his attention was that Mr. Vincent got up from the couch and was walking behind him when everyone else was doing as they were told.

[14] Officer Safai did not see Mr. Vincent walk across the room from the food table or sit on the couch. He did not see Mr. Vincent place anything under the couch. However, because Mr. Vincent behaved differently than the others and sat on the couch, Officer Safai lifted the couch to investigate what was beneath it. Under the couch near where Mr. Vincent had been sitting was the firearm described above with a fully-loaded magazine and one bullet in the chamber. Another fully loaded magazine was located under the couch. A small baggie of marijuana was also found along with a water bottle and some water glasses.

[15] DNA and fingerprint tests on the firearm and magazines came back negative. Officer Xioaris testified that Mr. Vincent was not wearing gloves.

Conclusion

[16] Mr. Vincent is charged with possession of a firearm and two extended magazines.

[17] The two essential elements of possession are control of the thing and knowledge of the thing. Possession involves actual possession or constructive possession of the thing. The Crown must prove both elements of the offence beyond a reasonable doubt. Proof can be established by direct evidence or may be inferred from circumstantial evidence.

[18] 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); 28 O.R. (3d) 417 (Ont. C.A.).

[19] The Supreme Court of Canada gave useful guidance on how to assess the inferences that may be drawn from circumstantial evidence:

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.)

[20] Officer Xioaris said he saw Mr. Vincent place a square silver and black object under the couch. He did not see a firearm in Mr. Vincent’s hand. He saw one inch of the object. There is no direct evidence of Mr. Vincent with a firearm. The Crown must prove from circumstantial evidence that it was a firearm that Mr. Vincent placed under the couch.

[21] There was a small square bag of marijuana under the couch with a silver stripe. Mr. Vincent’s hand is dark. With only a split-second observation it could reasonably have been the baggie of marijuana or something else that Officer Xioaris saw Mr. Vincent place under the couch. As for the firearm’s presence under the couch, it is not an unreasonable conclusion to draw that someone else, even his wife who was sitting near him, could have put the firearm there. A person who heard the police enter the main entrance who had a firearm could be motivated to move very quickly, even within seconds, to place the firearm under the couch and move back across the room with the other patrons.

[22] The evidence is that Mr. Vincent had on only a pair of tight black jeans and a t-shirt that night. Mr. Vincent was asked to stand and show the jeans he was wearing in court. They were tight black jeans of the type Mr. Vincent says he wore the night of his arrest, the implication I assume being that there would be nowhere in his clothing for a firearm and an extended magazine to be secreted. Officer Xioaris testified he did not see a firearm in Mr. Vincent’s right hand as he walked toward the couch. There is no evidence to explain how the firearm materialized in Mr. Vincent’s right hand during the split-second that it would have taken him to reach the couch and sit down. Further, neither Mr. Vincent’s fingerprints nor DNA was found on the firearm or magazines.

[23] Based on the evidence I saw and heard I conclude the Crown has not proven beyond a reasonable doubt that Mr. Vincent knew of the existence of the firearm and magazines or had control of those items at any time.

Verdict

[24] I find Ezekiel Vincent not guilty on all eight counts on the indictment and acquittals will be entered accordingly.

B.A. ALLEN J.

Released: March 28, 2019