REASONS FOR JUDGEMENT

G. roberts, j.

Overview

[1] Jah-Kiyo Desmond-Robinson was charged that on or about the 12 October 2016 he was in possession of a prohibited firearm with readily accessible ammunition without the required authorization, contrary to s.95(1) of the Criminal Code. He was also charged with possessing a firearm without the required authorization contrary, to s.92(1) of the Criminal Code, in relation to the same firearm. Further he is charged that, on the same date, he was in possession of cocaine, and marijuana, both contrary to s.4(1) of the Controlled Drugs and Substances Act (CDSA).

[2] The charges resulted from a search conducted on Mr. Desmond-Robinson’s home at 145 Glendower Circuit, Toronto, on 12 October 2016, pursuant to a search warrant, during which a firearm, ammunition and drugs were found.

[3] Defence counsel challenged the constitutionality of the search in a pre-trial “Garofoli” application, and sought to have the evidence obtained as a result excluded under s.24(2) of the Charter. I found the search constitutional and the evidence admissible (see R. v. Desmond-Robinson, 2019 ONSC 308).

[4] After receiving my conclusion in relation to the Garofoli application, Mr. Desmond-Robinson was arraigned and pleaded not guilty to the two firearms charges. Mr. Desmond-Robinson also pleaded not guilty to the two charges respecting the possession of substances prohibited under the CDSA, but defence counsel indicated that Mr. Desmond-Robinson accepted that he was in possession of the drugs, and invited me to enter convictions in relation to these charges at the end of the trial. (Mr. Desmond-Robinson initially pleaded guilty to these charges but changed his plea at my invitation in order to preserve his right to appeal the Garofoli ruling in relation to these counts.)

Admissions

[5] The trial was conducted in a very cooperative and focused fashion. Defence counsel admitted continuity with respect to all the seized items, and the admissibility of the various tests and reports done (contained in a document book which was made exhibit 1), thus effectively admitting:

• The seized firearm was a “prohibited firearm” as defined in s.84 of the Criminal Code. It was a Remington Model 742 Woodsmaster semi-automatic rifle with the stock cut off (part of the stock was found with the rifle in the same knapsack, together with a pin to attach it to the rifle). The barrel was 310 mm in length (i.e. less than the 457 mm length set out in the definition of prohibited firearm). The serial number of the firearm had been removed.

• The 30-06 SPRG cartridges found in the right front pocket of the Hollister jacket hanging in the closet where the prohibited firearm was found were “ammunition” as defined in s.84 of the Criminal Code. The prohibited firearm functioned as a semi-automatic rifle and could fire these cartridges

• A total of 52.5 grams of marijuana was seized, separated into 4 separate packages (see photograph at tab 12 of exhibit 3 and the drug property report at exhibit 10):

o 6.1 g in yellow plastic

o 18.4 in a clear cylinder (4.7 of this was sent for testing)

o 18.3 in a clear cylinder (4.8 of this was sent for testing)

o 9.7 g in yellow plastic

• A total of 9.9 grams of mixed cocaine and benzococaine was seized, separated into 4 discrete packages (see photographs at tab 23 and 24 of exhibit 3 and the drug property report at exhibit 10):

o 1.8 g in a clear plastic bag

o 3.3 g in a clear plastic bag

o 3.5 g in a clear plastic bag

o 1.3 g in a clear plastic bag

[6] Three other clear plastic bags were found with the cocaine which contained benzocaine only (weighing .4 g, .7 g and 1.1 g).

[7] It was an admitted fact that no fingerprints suitable for comparison were found on the firearm with stock and tape, the magazine and spring, the ammunition, the ammunition boxes and plastic trays, the plastic wrap around the loose ammunition in the knapsack, or the beer store and Zara bag. (see exhibit 11)

The Crown evidence

[8] The firearm was found, together with part of the stock and the pin used to attach the stock to the firearm, inside a Kodiak backpack (see photographs at tabs 34-39 of ex 3). The only other thing of significance to police inside the backpack was a piece of plastic twisted together to contain some ammunition for a handgun (it could not be fired in the seized firearm). There was nothing inside or on the knapsack to directly link it to Mr. Desmond-Robinson (such as a label, or anything which clearly belonged to him). The knapsack was found under a pile of clothing at the bottom of the closet inside a third floor bedroom at 145 Glendower Circuit (the room marked bedroom #4 on the diagram made exhibit 22). A tall armoire stood in front of the opening to this closet, largely blocking access to it (see photograph at tab 9 of ex 3).

[9] The 30-06 SPRG cartridges for the firearm were found in a box inside the right front pocket of a size large heavy winter “Hollister” brand jacket. The jacket was found hanging inside the same closet where the gun was found. Again, there was nothing about the jacket to directly link it to Mr. Desmond- Robinson (see photographs at tabs 29-32 of exhibit 3).

[10] The marijuana was found inside a clear plastic bag, which in turn was inside a blue and white Bath and Body Works paper bag which was on an open shelf in the headboard above the mattress (see photographs at tabs 8, 10, 11, 12, of exhibit 3).

[11] The cocaine was found inside a black nexus cell phone box which was sitting inside a red “Beats by Dre” box which in turn was sitting on the top shelf of the shelving unit located along the wall between the closet described above and the entrance to the bedroom (see photographs at tabs 21-25 of exhibit 3).

[12] Some other items of note were also found in this room:

• A wallet containing Mr. Desmond-Robinson’s health card was found on a small table next to the mattress (see photographs at tabs 19-20 of exhibit 3)

• Two boxes containing 9 mm handgun cartridges were found inside a beer store bag which was inside a blue paper “Zara” bag sitting on the shelving unit running between the closet and the entrance to the bedroom (see photographs at tabs 25-28 of exhibit 3).

• An imitation firearm was found inside a shoe box on the bottom shelf of the armoire blocking the entrance to the closet (see photographs at tab 13-14, 16 of exhibit 3). There was a door to this shelf which was initially closed (see photograph at tab 9 of exhibit 3). Also inside this shoe box was a piece of correspondence with Mr. Desmond-Robinson’s name on it (see photograph at tab 15 of exhibit 3). Immediately to the right of this shoe box was another shoe box full of Mr. Desmond-Robinson’s correspondence (see photographs at tabs 17-18 of exhibit 3). Officer Racette, who found this material, checked the correspondence and satisfied himself that it was all in Mr. Desmond-Robinson’s name, and seized three random samples.

Defence evidence

[13] Mr. Desmond-Robinson testified. He was 21 years old at the time of the trial. He was 19 at the time of the search and arrest in October of 2016. In October of 2016 he was living with his mother, Sabrina Desmond, and his 8 year old younger brother Kaylin in a townhouse at 145 Glendower Circuit in Toronto. His 15-16 year old sister Serena also lived in the home on weekends, but spent the week days living with her father. Mr. Desmond-Robinson had spent the summer of 2016 working in a factory in Stouffville, but stopped working at the end of summer to go back to school and get his GED.

[14] Mr. Desmond-Robinson testified and admitted that he knew about everything the police found in his room during the search except the 9 mm bullets in the Zara bag and the sawed-off rifle in the knapsack, specifically he explained:

• He found the cocaine after a party at his house. He decided to keep it and try and sell it. He re-packaged it and hid it “in plain sight” in a box inside his Beats by Dre head phones box. No one ever tried to claim it.

• The marijuana was his, for personal use.

• The imitation firearm was a pellet gun which he got in 2015 and used to shoot cans in the backyard and basement.

• He found the boxes of ammunition in the pocket of his heavy Hollister jacket. He did not know whose they were or how they got there. He was afraid to move them and left them so that whoever they belonged to could retrieve them.

[15] He did not know that the blue paper Zara bag contained 9 mm cartridges. He did not notice anything amiss about the blue paper Zara bag as he believed it was his. He bought the leather jacket that can be seen hanging from the armoire in the photograph at tab 9 of exhibit 3 at Zara either on September 1 or October 5 (he recalled shopping both days with a friend celebrating a birthday), and believed the blue Zara bag on the shelf was from that purchase. He sometimes kept the bags he bought things in.

[16] He did not own the Kodiak backpack. Nor did not know it was in his closet. Nor did he know anything about its contents (i.e. the sawed-off rifle and stock and pin).

[17] Mr. Desmond-Robinson testified that his friends would often come over and hang-out, and sometimes sleep-over. His mother left the door unlocked during the day, and literally wide open in summer, and friends were welcome to come in and hang out. His friends would often leave clothing behind. The shoes the police seized were his, but the three white t-shirts were not (they were large or extra-large and he wears size medium). The size 34/32 jeans could have been his. The size 36/32 jeans were not, as they were too big. He wore slim fitting jeans with a waist size of 30 or 32. He rejected the Crown’s suggestion that he wore his jeans big, noting that baggie jeans were out of style.

[18] Sabrina Desmond, Mr. Desmond-Robinson’s mother, also testified for the defence. She testified that she was a stay-at-home mother, and left her door unlocked during the day, and her children’s friends and other young people in the area were welcome to come into her home and hang-out. She noted they would watch television, play video-games and listen to music.

[19] Ms. Desmond recalled that she “searched” Mr. Desmond-Robinson’s room on October 8. She was looking for her green track suit, but kept searching even after she found it. She took it back to her room. She identified the green track suit shown on the floor of Mr. Desmond-Robinson’s room in the photograph at tab 36 of exhibit 3 as the track suit she was looking for, adding that Mr. Desmond-Robinson took the track suit back which was why it was in his room during the time of the search just over three days after her own search. Ms. Desmond found marijuana in a bag on top of a shelving unit running along wall between entrance and closet, and described it as loose inside a bag. She did not find or notice any of the other items, specifically:

• The Zara bag was not there. If she had seen it she would have searched it.

• Nor was the Kodiak bag containing the sawed off rifle. None of the bags or packs in the closet had anything in them. She did not search them because they were light and she could tell they were empty.

• She did not notice the cartridges in the pocket of the Hollister jacket. She did not search it because it was still nice out and her son was not wearing it at the time.

The issues

[20] The evidence and submissions focused on a single issue: did the Crown prove beyond a reasonable doubt that Mr. Desmond-Robinson was in possession of the firearm and accompanying ammunition, specifically, did he know about the firearm in his closet?

The applicable legal principles

The meaning of possession

[21] Possession is defined in s.4(3) of the Criminal Code to include personal possession, constructive possession, and joint possession, specifically:

For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly

(i) has it in the actual possession or custody of another person, or

(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and

(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[22] Possession requires both knowledge and control. In this case, counsel agreed that constructive possession was the relevant form of possession. The Supreme Court recently explained that constructive possession is complete where the accused:

(i) knows the character of the object,

(ii) knowingly puts or keeps the object in a place, and

(iii) intends to have the object in the particular place for his use or benefit or that of another person. See: R. v. Morelli, 2010 SCC 8, at paras.15, 17; R. v. Bains, 2015 ONCA 677, at para. 156.

[23] There is no issue that Mr. Desmond-Robinson had control over the space where the gun and ammunition were found. He admitted that they were found inside the closet of his bedroom. He did not share this bedroom with anyone. Further, as noted above, he admitted that the marijuana and cocaine found in this bedroom were his, or effectively his (he claimed he found the cocaine but admitted that he took possession of it). He also admitted he knew about the ammunition in the pocket of his Hollister jacket hanging in the closet. The issue is did he know about the firearm too, and that it was a real gun capable of firing the ammunition?

The reasonable doubt standard

[24] A reasonable doubt is not an imaginary, far-fetched or frivolous doubt, or a doubt based on sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. It is not enough to believe that an accused is probably guilty or likely guilty, as that is not proof beyond a reasonable doubt. However, the Crown need not establish guilt with absolute certainty, as such a standard of proof is impossibly high. But proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt. At the end of the case, after considering all of the evidence, I must be sure that the accused committed the alleged offences in order to find him guilty.

[25] As Mr. Desmond-Robinson testified in this case, I must follow the approach set out by the Supreme Court of Canada in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-758 in assessing whether or not the Crown has proven his guilt beyond a reasonable doubt: (1) if I believe his testimony that he did not commit the alleged offences I must find him not guilty; (2) even if I do not believe his testimony, if it leaves me with a reasonable doubt as to his guilt regarding these offences, I must find him not guilty; and (3) even if his testimony does not leave me with any reasonable doubt as to his guilt regarding the alleged offences, I may only find him guilty if, based on the evidence that I do accept, I am satisfied that all the elements of the offences have been proven beyond a reasonable doubt. This approach ensures that the presumption of innocence and the Crown’s burden of establishing the accused’s guilt beyond a reasonable doubt operate properly.

[26] Given that the Crown’s case relies entirely on circumstantial evidence, in order to convict, I must be satisfied beyond a reasonable doubt that Mr. Desmond-Robinson’s guilt is the only reasonable inference that can be drawn from the evidence. See R. v. Villaroman 2016, SCC 33, at paras. 32 and 34.

Analysis

[27] Defence counsel submitted that Mr. Desmond-Robinson has been candid with the court and should be believed. Mr. Desmond-Robinson admitted things that were inculpatory and difficult, such as knowing about the cocaine and marijuana, and that he was trying to sell the cocaine. He admitted finding the bullets in the pocket of the Hollister jacket even though he had no reason to be using that heavy winter jacket at that time of year. Defence counsel pointed to this as an example of Mr. Desmond-Robinson’s candour. Defence counsel argued very effectively that the fact that Mr. Desmond-Robinson admitted things even though it was not in his interest to do so strongly suggested he was credible. Defence counsel urged me to accept Mr. Desmond-Robinson’s evidence, or at the very least find that it raised a reasonable doubt about his possession of the firearm.

[28] The Crown argued equally effectively that Mr. Desmond-Robinson’s evidence is not believable and should be rejected. There are simply too many strange coincidences and contradictions.

[29] Considering the evidence as a whole, I cannot accept Mr. Desmond-Robinson’s evidence. Nor does it raise a reasonable doubt. I agree with the Crown that it involves too many coincidences to be believable, or raise a reasonable doubt, for example:

(i) I do not think it is believable that someone left a quantity of cocaine of some value in Mr. Desmond-Robinson’s home and never came looking for it. As the Crown noted, this was not the kind of family that would betray a friend and call the police about something like that.

(ii) Similarly, Mr. Desmond-Robinson claimed that the marijuana was given to him, and he simply kept it for his own personal use. I find this hard to believe given that it was packaged into four discrete packages, 2 larger packages in clear plastic cylinders, weighing almost the identical amount, and 2 smaller yellow plastic containers, weighing very similar amounts.

(iii) There were two digital scales, though Mr. Desmond-Robinson claimed only one worked. He explained that he needed such a precise scale in order to ensure he did not get “ripped off” when he purchased marijuana for personal use. This seems extreme, especially since he claimed that the marijuana he had in his room was given to him.

(iv) Someone would have had to leave the gun and ammunition in Mr. Desmond-Robinson’s bedroom without his knowledge on at least two different occasions. Mr. Desmond-Robinson testified that he found the two boxes of cartridges in the pocket of his Hollister jacket sometime in the summer. As a result, he searched his room to ensure there was nothing else there, especially a gun, and found nothing. So the gun must have been hidden without his knowledge on another occasion. The 9 mm bullets in the Zara bag must have come at another time as well, or possibly the same time as the sawed-off rifle.

(v) Mr. Desmond-Robinson testified that he went shopping at Zara and bought a black leather jacket (shown in the photograph at tab 9 of exhibit 3) either on September 1 or October 5. He believed that he kept the blue paper Zara bag that the jacket came in. That is why he never noticed the blue Zara bag containing the 9 mm cartridges (see photograph at tab 25 of exhibit 3). So whoever put those 9 mm cartridges in his room either put them inside Mr. Desmond-Robinson’s existing Zara bag and then left them out in the open on his shelf, or happened to bring them in the very kind of bag Mr. Desmond-Robinson already had and would therefore not notice lying around. Both possibilities seem very unlikely.

[30] Mr. Desmond-Robinson is also contradicted by his mother in significant respects:

(i) Mr. Desmond-Robinson testified that the replica machine gun was his. He explained that he got it in 2015, he believed at the Pacific mall. It fired plastic pellets. He used it to shoot cans. He initially said he did this in his backyard, and then changed this to his basement. His stay at home mother who routinely searched his room knew nothing about the existence pellet gun, or Mr. Desmond-Robinson using it to shoot at cans in her basement. Nor did she ever see any signs of anyone shooting cans with pellets in her home.

(ii) As noted, Mr. Desmond-Robinson claimed there was a blue Zara paper bag in his room from at least October 5. His mother testified that she “searched” his room on October 8, 2011 and the blue Zara bag containing the 9 mm cartridges was not there. If it was, she would have searched it.

[31] In light of these coincidences and contradictions, I cannot accept Mr. Desmond-Robinson’s evidence. Nor does it raise a reasonable doubt.

[32] I must still go on and consider whether the evidence that I do accept establishes Mr. Desmond-Robinson’s guilt beyond a reasonable doubt. As I have noted, given that the Crown’s case is entirely circumstantial, I must be satisfied that Mr. Desmond-Robinson’s guilt is the only reasonable inference that can be drawn from the evidence.

[33] Defence counsel argues that I cannot exclude the possibility that one of the people who had access to the home, especially during the 9 nights of mourning which began on September 21, abandoned the knapsack and firearm in Mr. Desmond-Robinson’s bedroom.

[34] The Crown notes that the firearm and ammunition were valuable. The owner would make sure they were safe and accessible. This was only possible if Mr. Desmond-Robinson knew about their existence. The Crown draws my attention to case law from the Court of Appeal explicitly recognizing that it is reasonable to infer that a valuable item, such as drugs or firearms, would only be entrusted to someone who knew what they were carrying or keeping. R. v. Bains, supra, at para.157; R. v. Gagliardi, [2006] O.J. No.72 (C.A.), aff’ing 2005 CarswellOnt 1543, at paras.43-50

[35] I do not think it is reasonable to infer that someone left the semi-automatic rifle in Mr. Desmond- Robinson’s closet in order to abandon it. This rifle was not abandoned. To begin with, the rifle was hidden, not abandoned. It was hidden under a pile of clothing, inside a closet which was largely blocked-off by a tall armoire. More importantly, it appeared to be carefully stored inside a neat new-looking knapsack. All the necessary components to fire it comfortably and safely were together inside the knapsack, namely, the stock together with the pin necessary to attach the stock to the sawed-off firearm. Finally, if abandoning the rifle, why not hide it in Serena’s room? She lived with her father during the school year, and was only at her mother’s home on weekends. In all the circumstances, I do not think the inference that the sawed-off rifle was abandoned is a reasonable or rational one to draw.

[36] I agree with the Crown that the only reasonable inference that can be drawn from the evidence in this case is that Mr. Desmond-Robinson knew about the sawed off rifle hidden in his closet. As the Crown noted, the rifle, together with the ammunition for it stored in the same closet, were valuable. The owner would only keep the firearm and ammunition somewhere safe and accessible. Mr. Desmond-Robinson had to know about the items for that to be the case. Otherwise the firearm and cartridges could be discovered and possibly moved or given away, or inadvertently moved or thrown out. In addition, the owner needed to be able to access the backpack in a timely way. Again, Mr. Desmond-Robinson had to know about it and its contents in order to ensure that this could happen.

[37] Mr. Desmond-Robinson admitted he knew about cocaine and marijuana stored in his bedroom. He admitted that knew about the ammunition stored in the pocket of his Hollister jacket hanging in his closet. I find that the only reasonable inference that can be drawn from the evidence is that he also knew about the rifle kept in his closet, and that it could fire the ammunition kept close by. There is no question that he had control over these things. They were in his bedroom. As result I conclude that he was in possession of the rifle and ammunition as well as the cocaine and marijuana.

[38] Mr. Desmond-Robinson is convicted of all four counts on the indictment.

G. Roberts, J.

Released: January 17, 2019

\ R. v. Desmond-Robinson, 2019 ONSC 451

COURT FILE NO.: CR-18-30000129-0000

DATE: 20190117

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JAH-KIYO DESMOND-ROBINSON

Respondent

REASONS FOR JUDGMENT

G. Roberts, J.

Released: January 17, 2019

R. v. Desmond-Robinson, 2019 ONSC 451

Case Summary

REASONS FOR JUDGEMENT

Overview

Admissions

The Crown evidence

Defence evidence

The issues

The applicable legal principles

The meaning of possession

The reasonable doubt standard

Analysis

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 5

Legal Tests 3

Legislation 4