R. v. Yasin Patel, 2019 ONSC 6280

COURT FILE NO.: CR-18-30000560-0000

DATE: 20191017

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

YASIN PATEL

Accused

Beverley Olesko, for Her Majesty the Queen

Doug Gosbee, for the Accused

HEARD: September 23-26, 2019

REASONS FOR JUDGMENT

DUNNET J. (Orally)

Overview

1The accused has been charged with firearm, ammunition and drug offences and with breaching court orders.

2On November 2, 2017, a warrant was issued for the arrest of the accused on the charge of attempted murder.

3On January 6, 2018, the accused was observed driving a motor vehicle around the City of Toronto. A team of police officers commenced surveillance, resulting in a high-risk takedown of the vehicle. During the takedown, the accused was injured and taken to the hospital where he received three staples to each of two cuts to his head. He was released and taken to the police station.

4During a search of the accused at the police station, drugs were found in his underwear and ammunition was found in his pants.

5On January 8, 2018, a Criminal Code search warrant was executed on the vehicle that had been driven by the accused. Inside the trunk, the police found documents in the name of the accused and a gun with six rounds of ammunition.

Admissions

6The parties have agreed on the following facts:

• The drugs seized during the search of the accused at the police station after his arrest on January 6, 2018 were tested by Health Canada as follows: .56 grams of cocaine, .27 grams of a mixture of heroin, cocaine and fentanyl, and 2.93 grams of fentanyl.
• The firearm seized on January 8, 2018 from the black backpack in the trunk of the white Hyundai driven by the accused is a Smith & Wesson, model 586-3. It is a .357 Magnum caliber, center-fire revolver handgun with a barrel length of 150 mm and a 6-shot capacity. It is a restricted firearm designed to be aimed and fired by the action of one hand. The firearm functioned fully and correctly.
• The six .357 Magnum cartridges found inside the firearm are ammunition, as defined in s. 84 of the Criminal Code. They were able to be fired from the firearm. Five of the cartridges were “R-P .357 Mag” copper jacketed projectiles over brass cases. One cartridge was a “Hornady .357 Mag” copper jacketed hollow point projectile with a brass case.
• A 9 mm Lugar projectile was seized from the accused during the search at the police station. It is ammunition, as defined in s. 84 of the Criminal Code. The 9 mm round could be fired from the .357 handgun; however, the likely result would be an explosion in the firearm and serious injury to the hand holding the firearm.
• The accused was not the holder of a firearms registration certificate or a firearms licence.
• On October 26, 2015, the accused was prohibited by court order from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for ten years.
• On February 16, 2017, the accused was placed on probation for two years. One of the conditions of his probation order was not to possess any weapon, as defined in the Criminal Code.

Evidence of the Police Officers

Police Officer Kevin Rasmussen

7On January 6, 2018, Officer Kevin Rasmussen was the central notetaker on the surveillance team investigating the accused. He was aware that the accused was wanted for attempted murder and was believed to be in possession of a firearm.

8At 7:35 p.m. Officer Rasmussen observed the accused at Kennedy Road and Ellesmere Avenue in Scarborough driving a white Hyundai motor vehicle with licence plate number CDHH 861. The vehicle was followed to the west end of Toronto to a townhouse complex on Jayzel Drive. The vehicle then headed east and stopped at a gas station at Jayzel Drive and Finch Avenue where an unknown male left the vehicle, entered McDonald’s, and returned to the vehicle.

9The vehicle left McDonald’s and was followed to Tim Hortons on Victoria Park Avenue north of Highway 401 where it remained in the area from 9:04 p.m. to 10:35 p.m. The vehicle travelled to a parking lot at Canyon Creek Restaurant in the Scarborough Town Centre before proceeding north on McCowan Road.

10As Officer Rasmussen was driving his vehicle ahead of the accused’s vehicle on McCowan approaching Commander Boulevard, a takedown was called at 10:55 p.m. and the accused’s vehicle was boxed in by seven police vehicles. The vehicle mounted the curb on the east side of McCowan where it became lodged in a snowbank.

11Officer Rasmussen approached the driver’s side of the vehicle and drew his firearm, holding it in the “low-ready” position. The word “POLICE” was visible on the front and back of his vest.

12He observed a male passenger seated behind the driver and the driver leaning forward and to the right. He thought that the driver was either attempting to flee on the passenger side of the vehicle or attempting to retrieve or discard a weapon. He could not see the driver’s hands.

13The officer remained in the area and he and Officer Shawn Lillie removed the rear passenger from the vehicle who identified himself as Shaka Hibbert. Officer Bryan Correia arrested the front passenger who identified herself as Mia Hardware. Officer Rasmussen did not see Officer Matthew Clarke break the driver’s side window of the vehicle.

14After removing Mr. Hibbert from the vehicle, Officer Rasmussen assisted Officer Clarke in removing the accused from the vehicle and putting him on the ground. Officer Clarke arrested him and Officer Rasmussen applied handcuffs.

15On January 8, 2018, pursuant to a Criminal Code search warrant, Officer Rasmussen searched the trunk of the vehicle that had been driven by the accused. He testified that he found a lot of personal items such as clothing, blankets and bags.

16In the front pocket of a black backpack, he found two scales containing a white substance and a small Ziplock bag containing a brown substance.

17In the main pocket of the black backpack, he found a silver revolver with a brown wooden handle and the markings “S&W 357 MAGNUM” on the barrel. Inside the cylinder of the revolver, he found six rounds of ammunition with the markings “S&B 357 MAG.” In the black backpack, he also found a shaving kit, tooth brush, blue jeans and a t-shirt.

18In the rear pocket of the black backpack, he found a Toronto District School Board admit slip in the name of the accused, dated January 16, 2013 (“the admit slip”).

19He found banking documents, dated March 16, 2017 containing the accused’s name, address and email address (“the banking documents”) that were loose inside the trunk.

20Inside the trunk, he also found a pair of black Jordan running shoes and a measuring cup containing baking soda and a white substance.

21In cross-examination, Officer Rasmussen testified that as the central notetaker, he recorded the officers’ times and observations when they came over the air as events were unfolding. His own notes were made after the debriefing during which he reviewed his central notes with the other officers.

22In the surveillance report that he prepared after the debriefing, Officer Rasmussen recorded Officer Correia’s observations that at 10:35 p.m. the accused went into McDonald’s with a male wearing a brown jacket, black pants and a black hoodie. At 10:45 p.m. they returned to the vehicle. Officer Rasmussen acknowledged that he made a mistake in the central notes when he recorded that there was one male who went into McDonald’s.

23He also acknowledged that he did not make a notation in the central notes of his observation of the accused leaning towards the passenger seat or his belief that the accused was either attempting to flee, or to retrieve or discard a weapon.

24He agreed that he failed to record in his notes that he assisted Officer Clarke in taking the accused out of the vehicle. He did not see any injuries to the accused at that point. When the ambulance arrived, he saw that the accused was bleeding.

25Officer Rasmussen testified that he did not observe the trunk of the vehicle operated by the accused in the open position before the vehicle was sealed by Police Officer Euan McDermott. He did not see a police officer put anything into the trunk.

26When he searched the contents of the trunk on January 8, 2018, he also found a cereal box, a red shoe box and a purple and black backpack (“the purple backpack”). He did not make a note of what was inside the purple backpack. He assumed that there was nothing of consequence.

27Officer Rasmussen denied that the admit slip and banking documents were located inside the purple backpack. He denied that he took the admit slip and banking documents out of the purple backpack and he disagreed with the suggestion that after the takedown, the police put the purple backpack into the trunk.

Police Officer Matthew Clarke

28Officer Matthew Clarke was part of the surveillance team on January 6, 2018. He was aware that the accused was wanted for attempted murder in a shooting and that he was in possession of a firearm.

29Officer Clarke’s vehicle was travelling northbound in the curb lane of McCowan ahead of the accused’s vehicle, which was travelling at a slow rate of speed.

30When the takedown was called, Officer Clarke stopped his vehicle and ran back towards the accused’s vehicle. The officer was wearing a vest with the word “POLICE” in large reflective letters and he was carrying his police-issued shotgun.

31He heard Officer Allan Bishop yelling at the accused to put his hands up. As Officer Clarke approached the driver’s side of the vehicle, he pointed his shotgun at the accused. When he saw that the accused was not following Officer Bishop’s orders, he yelled, “Police, hands up.”

32He saw the accused partially lift his hands up and then make a quick movement with his right hand down to his waist area. The officer became concerned that the accused could be reaching for a firearm. He raised his shotgun over his shoulder and used the muzzle end to break the driver’s side window of the vehicle. The momentum broke the glass and came into contact with the accused’s head above his left ear.

33The officer testified that he was surprised that the window broke on the first try, which had not happened when he had used the technique before, and he was surprised that the gun hit the accused’s head. He testified that he did not intend to hit him.

34He explained that the shotgun could not have fired because he positioned his finger off the trigger and along the lower part of the receiver where he had been trained to place it when he was not intending to fire the gun.

35After the window broke, the accused put up his hands and Officer Clarke held him at gunpoint until Officer Rasmussen was able to assist him in taking the accused out of the vehicle and onto the ground where he was arrested and handcuffed.

36Officer Clarke testified that when the accused stood up, he noticed blood coming from above his left ear. The accused asked for an ambulance and Officer Clarke arranged for one to be called. He remained with the accused until the ambulance arrived at 11:10 p.m.

37He testified that he did not see anyone kick the applicant in the face.

38On January 8, 2018, Officer Clarke was part of the team executing the search warrant of the vehicle. In the back seat, he found a rental agreement for the vehicle in the name of Jayson Dinatale and a telephone number. He attempted to call the number twice that night, but there was no answer and no option to leave a voicemail.

39In cross-examination, he testified that he had been a member of the Toronto Police Service for twenty years and had been trained to use a handgun and shotgun. He had not received training to use a shotgun as an impact weapon and did not know if he was prohibited from doing so.

40He agreed that he hit the driver’s side window as hard as he could. He testified that he did so for safety reasons, believing that the accused had a semi-automatic firearm. He denied that he struck the window more than once. He agreed that his shotgun came into contact with the accused’s head, but that it was accidental.

Police Officer Andrew Judd

41On January 6, 2018, Officer Andrew Judd conducted the police briefing. He had information that the accused was wanted for attempted murder in a shooting; he was operating a white Hyundai motor vehicle and was armed with a firearm.

42By the time that he arrived at the scene after calling the takedown, the accused and the two passengers were outside the vehicle. The accused had a cut to his head and was bleeding. He did not see how it happened.

43Officer Judd took photographs of the vehicle before it was sealed and towed.

44In cross-examination, the officer testified that he did not know if the trunk of the vehicle was opened after the takedown. He agreed that the police would have had authority to search the trunk incident to the arrest. He did not know who applied the seals to the vehicle.

45When he arrived at the police facility to search the vehicle on January 8, 2018, he thought that the seals were still on the vehicle. He found three cell phones in the middle console, a Samsung phone on the front passenger seat and a cell phone on the floor under the passenger seat.

46He testified that before he took photographs of the items found in the trunk, he had never seen the purple backpack. He denied that the purple backpack was in the possession of the police before this investigation and he strongly disagreed that it was placed into the trunk by the police. He said, “Planting it there is a criminal offence.”

Police Officer Euan McDermott

47After the takedown and arrest of the accused, Officer Michelle Olszevski asked Officer Euan McDermott to be a uniformed presence by assisting vehicles travelling on McCowan past the scene of the takedown. He received information that there were two occupants in the vehicle with the accused and both were known to carry firearms. He did not know who gave him the information.

48At 11:45 p.m. he placed seals on the vehicle before it was towed to a police facility to be searched.

Police Officer Shawn Carter

49At 1:11 a.m. on January 7, 2018, Officer Shawn Carter was asked to relieve Officer Glenn Espie who was with the accused at the hospital. At 2:30 a.m., a doctor applied staples to the two cuts above the accused’s left ear. The accused was transported to the police station where he was searched at 3:14 a.m.

50In the opening at the front of the accused’s underwear, Officer Carter found a clear Ziplock bag containing a large white chunk and smaller pieces of a substance; a ripped grey plastic bag containing a substance, and a ripped white plastic bag containing a substance. Inside the accused’s track pants worn under his jeans, Officer Paul MacIntryre found one round of 9 mm ammunition.

Yasin Patel

51The accused is twenty-four years old. On January 6, 2018, he was driving a white Hyundai motor vehicle with Mr. Hibbert seated in the rear driver’s seat and Mr. Hibbert’s girlfriend seated in the front passenger seat.

52When the vehicle was stopped in the parking lot of the Canyon Creek Restaurant, the accused noticed a black Chrysler. The driver gave him a weird look and then sped away. He saw the Chrysler again as he was travelling northbound on McCowan. He started to drive slowly and as he approached Commander, he realized that the driver of the Chrysler was a police officer. He knew that he was wanted for attempted murder and he had been “on the run” since November 2, 2017.

53He saw the police vehicles closing in on his vehicle. When the Chrysler pulled into his lane, he panicked, turned his wheel to the right and hit a snowbank. He testified that he accidentally unhinged the door handle when his hand bumped into it as he turned the wheel and the driver’s door was slightly ajar.

54He saw the police getting out of their vehicles with their guns pointed at him. He tried to put his hands up almost even with his head.

55A couple of seconds later, someone smashed the driver’s window three times with a gun. On the first hit, there was a small crack 2.5 inches in diameter. The second hit made him flinch and little pieces of glass began to shatter. The third hit opened a hole in the window ten inches high and fourteen inches wide. He testified that the gun did not make contact with him.

56The accused testified that as they were smashing the window, he leaned to the right, but he kept looking to the left because their guns were pointed at his face. He said that there were at least two hits to the window before it broke on the third hit.

57At that point, someone hit him. The first hit was a full swing. The second hit did not have the same force. His evidence was that he was “dazed,” and blood was dripping from his nose onto his pants.

58He testified that Officer Clarke told him, “Don’t move. Keep your hands up, or I will smash your head again.” Two men grabbed him by the arms, tossed him out of the vehicle and threw him onto the ground. After he was handcuffed, someone with brown shoes kicked him in the nose.

59When Officer Clarke asked for his name, the accused told him that he needed an ambulance. The officer said, “It’s just a cut. Get over it. Tell me your name and I will call an ambulance.” He told the officer his name and then said, “Congratulations.”

60The accused testified that as the ambulance arrived, he saw an officer searching the trunk of the vehicle that he had been driving.

61At the hospital, a doctor applied staples to his head. At the police station, he told the booking officer that an officer had kicked him in the nose.

62In cross-examination, the accused denied that he was trying to open the driver’s door. He testified that the door had a lever that pulled inward and as he turned the wheel, he accidentally “unhooked” the door. He maintained that when the police approached his vehicle, his hands were up in the air. He did not bring them down to his waist.

63He denied that the window broke on the first hit. When it was suggested to him that if glass was coming into the vehicle, he would have instinctively been looking away from the window, he said that he kept looking to the left because their guns were pointed at his face.

64He testified that Officer Clarke warned him that if he moved, the officer was going to smash his head and he also remembered hearing the word “shotgun.” He maintained that someone hit him with a full swing and then a quick tap. One hit was above his ear and the other was an inch higher. When it was suggested to him that there was only one hit to the head with the gun, he said, “Could be possible.”

65He denied that the gun and black backpack in the trunk of the vehicle belonged to him. He acknowledged that the purple backpack belonged to him. He testified that he bought it in 2012 and used it when he was in high school. It had been hanging on a hook in his bedroom for five years. The last time he saw it was on November 2, 2017.

66He acknowledged that the admit slip and banking documents in the trunk belonged to him. He had no idea how they ended up there.

67The accused testified that after the shooting on November 2, 2017, he knew that he was wanted by the police. He never went home and he did not have any contact with his family. He lived with his girlfriend for one month and after that, he stayed with friends.

68He denied that he was living out of the trunk of the vehicle. He denied that the clothing and shampoo in the trunk or the shaving kit and toothbrush in the black backpack belonged to him.

Police Officer Kimball Marshall

69On November 2, 2017, Officer Kimball Marshall was the central notetaker and exhibits officer during a search of the accused’s bedroom. He testified that the police were looking for firearms, ammunition and documentary evidence identifying the accused.

70They took photographs of the items found in the bedroom, including the purple backpack.

71He testified that the only items that were seized were a gun cleaning kit, a gun cleaning brush and an empty ammunition holder. He put the items into exhibit bags and placed the bags into a plastic container. At the police station, the items in the plastic bags were kept in the exhibit locker.

72Officer Marshall testified that on November 2, 2017, the police did not seize the purple backpack or any documents containing identification of the accused. He did not see anyone leave the accused’s residence with the purple backpack or identification documents.

Firoza Bibi Yusef Patel

73The accused’s mother Firoza Bibi Yusef Patel testified that on November 2, 2017, the police came to her house and searched the basement bedroom where her son slept. When they left, they took away a box filled with materials. They did not show her what was inside the box.

74In photographs taken by the police of items on the accused’s bed after the search, Ms. Patel recognized the purple backpack that usually hung on a hook in his bedroom. After the police left, she cleaned the room and she did not see the purple backpack or identification documents that she had seen before the police conducted the search.

75Ms. Patel knew that her son had been accused of shooting someone near their home. She testified that after the shooting, the police came to her door for one month asking if she knew where he was. She tried to telephone him, but he did not return her calls.

76Her evidence was that before January 6, 2018, no one came to her house to pick up any items for her son and it was not possible for him to come into the house because they had changed the locks.

77In cross-examination, Ms. Patel was asked if her son could have used his key to come into the house when she was sleeping upstairs. She testified that she always cleaned his room and she would have noticed if something was missing. She admitted that in November 2017, she did not know that there was a gun cleaning kit in his bedroom.

78Ms. Patel acknowledged that her son was hiding from the police. She went to the police station every day to ask if they had found him.

79She testified that she loves her son and that she was very worried about him. After his arrest on January 6, 2018, she visited him in jail. She denied that she discussed his case with him.

Yasir Patel

80The accused’s brother Yasir Patel was visiting his parents on November 2, 2017 when the police arrived to search the basement. He testified that between November 2, 2017 and January 6, 2018, he did not see or speak with his brother. He did not deliver anything to the accused and he did not give anything to anyone else to give to him. After the arrest, he visited his brother in jail.

The Positions of the Parties

81The defence concedes that there is enough evidence to convict the accused for possession of the drugs and the bullet found during the search at the police station. There is also enough evidence to convict him for breach of court orders as charged.

82The parties agree that the sole issue in this case is whether the accused had knowledge and control of the firearm in the trunk of the vehicle that he was operating at the time of his arrest.

83The position of the Crown is that the accused was hiding from the police and was living out of the trunk of the vehicle. It was the accused who put his purple backpack and identification documents (admit slip and banking documents) in the trunk. Further, he knew that there was a firearm in the trunk and he had control over the firearm.

84The position of the defence is that the purple backpack, the admit slip and banking documents were in the accused’s bedroom when the police searched the room on November 2, 2017. They were removed from the house by the police on that day.

85The defence submits that because there was no evidence of anything else found in the trunk that was connected to the accused, the court should have a reasonable doubt about the accused’s knowledge and control of the firearm.

Analysis

86The defence does not allege that the gun was placed in the trunk by the police. Rather, the defence contends that the court should accept the evidence of the accused and his mother that the purple backpack, admit slip and banking documents linking the accused to the trunk were removed by the police during the search of his bedroom on November 2, 2017, and placed inside the vehicle after his arrest on January 6, 2018.

87The defence asserts that the backpack, admit slip and banking documents were not found contemporaneously with the arrest of the applicant. Further, the trunk of the vehicle was open after the arrest and before the seals were applied. Therefore, there was an opportunity for the police to put the items into the trunk where the gun was found.

88The defence submits that after the police found the purple backpack and identification documents in the trunk, they developed “tunnel vision” and failed to investigate the owner and/or lessee of the vehicle or the other two occupants. Further, there was no evidence of any fingerprint analysis of the firearm.

89The defence argues that there was no reason for the accused to be in possession of a backpack that he used in high school. On the evidence of the accused and his mother, the purple backpack and banking documents were in his room on November 2, 2017. They both testified that while he was hiding from the police, the accused did not come to the house and no one else came to the house to collect his personal items and identification.

90The Crown argues that it does not make sense that the police officers removed the items and kept them somewhere pending an opportunity to conspire with other police officers if and when the accused might be arrested in order to “plant” them in a vehicle to link the accused to a gun.

91During their testimony, the police officers did not appear to have any animus towards the accused. They all denied putting the purple backpack, admit slip and banking documents in the trunk. There was no evidence that any of the police officers involved in the search on November 2, 2017 were involved in the surveillance and investigation of the accused on January 6, 7 and 8, 2018.

92The accused’s evidence was that he had never seen the black backpack, or the gun and he did not have any idea how the purple backpack, admit slip and banking documents came to be inside the trunk. He maintained that he never went home to retrieve personal items or identification documents.

93The evidence of the accused’s mother was that the locks on the house were not changed until sometime after November 2, 2017. After the shooting, she went to the police station every day looking for her son, but the police would not give her any information. She telephoned him, but he did not return her calls. It does not make sense that she would lock her son out of his house when she was constantly trying to contact him.

94The accused’s mother testified that she cleaned her son’s room and she would have known if he had come into the house to retrieve his belongings. She slept upstairs and his bedroom was in the basement. It makes sense that the accused could let himself into the house and put his belongings into the purple backpack without his mother knowing that he had been there.

95In my view, the accused’s mother was not being honest or candid with the court. It was obvious that she loves her son. Further, she had the opportunity to discuss the case with him when she visited him in jail. I do not believe her evidence.

96I find that either the accused or someone he knew went into his bedroom and retrieved his belongings, including the purple backpack, admit slip and banking documents. Those items were in the trunk because the accused put them there along with his clothing and toiletries. He was living out of the trunk while he was “on the run” from the police.

97It does not make sense that the police would plant the items in the trunk where there was a gun. To remove a backpack and some dated documents in the hope that at some point in the future, the accused would be arrested and to use those items to strengthen the issue of his knowledge and control of a gun is beyond the realm of possibility.

98I do not believe the evidence of the accused, nor am I left in reasonable doubt by his evidence. It lacks the ring of truth and defies logic. I have no difficulty in accepting the testimony of the officers as candid, forthright, logical, credible and reliable.

Disposition

99Applying R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397, I am satisfied beyond a reasonable doubt on the evidence that I accept that on January 6, 2018, the accused had knowledge and control of the .357 Magnum caliber, center-fire revolver handgun together with readily accessible ammunition capable of being discharged in the firearm, which were found in the trunk of the vehicle that he was driving. At the time, he was not the holder of a firearms registration certificate or firearms licence and he was prohibited by court orders from possessing a firearm and ammunition.

100The accused has admitted that he was in possession of .56 grams of cocaine, .27 grams of a mixture of heroin, cocaine and fentanyl, and 2.93 grams of fentanyl on January 6, 2018. He has also admitted that he was in possession of a 9 mm Lugar bullet on January 6, 2018 when he was prohibited by court orders from possessing ammunition.

101I am, therefore, satisfied beyond a reasonable doubt on the evidence that I accept that the accused is guilty of possession of cocaine, heroin and fentanyl and guilty of possession of ammunition in contravention of the court orders prohibiting him from possession ammunition.

102I find the accused guilty on all counts as follows:

Count 1. Unauthorized possession of a firearm;

Count 2. Possession of a firearm knowing its possession is unauthorized;

Count 3. Unauthorized possession in a motor vehicle;

Count 4. Possession of a restricted firearm with ammunition;

Count 5. Possession of a weapon obtained by the commission of an offence;

Count 6. Storing a firearm in a careless manner;

Count 7. Storing ammunition in a careless manner;

Count 8. Possession of a firearm while prohibited;

Count 9. Possession of ammunition while prohibited;

Count 10. Possession of a firearm while prohibited;

Count 11. Possession of ammunition while prohibited;

Count 12. Possession of a Schedule 1 substance;

Count 13. Possession of a Schedule 1 substance;

Count 14. Possession of a Schedule 1 substance;

Count 15. Possession of ammunition while prohibited; and

Count 16. Fail to comply with a probation order.

Dunnet J.