Court File and Parties

Court File No.: CR-19-0000695 Date: 2020-08-14 Ontario Superior Court of Justice

Between:

Her Majesty the Queen – and – Chaddrick Brown

Counsel: Marco Cuda for the Crown Ari Goldkind for the accused

Heard: July 13, 14 and 15, 2020

Gillian Roberts J. :

[1] Chaddrick Brown stands charged with a number of offences relating to possession of a loaded illegal handgun. On January 9 and 10, 2019 the Toronto Police were watching Mr. Brown. On the evening of January 9, 2019 they obtained a search warrant for his car and his home. Around 12:35 am on January 10, police watched Mr. Brown leave his home and get into his car and start it. They arrested him immediately, and then searched his home and his car. They found drugs in his bedroom and in his car. They also found a loaded handgun under the floor mat next to the driver’s seat of the car. Mr. Brown pleaded guilty to being in possession of the drugs for the purpose of trafficking, and admitted that he was dealing drugs at the time of the search, but he maintained that the handgun was not his, and he knew nothing about it. The sole issue at trial was whether the Crown could prove beyond a reasonable doubt that Mr. Brown was in possession of the loaded illegal handgun.

The Crown Evidence

[2] Temesgen Ghebremicael is a community development officer for the City of Toronto. In January of 2019, he was doing community outreach in Lawrence Heights, where he grew up, which involved supporting residents, including connecting them to counselling, employment, and services, and. He could get 50% off car rentals and would sometimes rent cars to support residents. Sometime in late December 2018 he rented a car for Chaddrick Brown so that Mr. Brown could get to job interviews: a black Honda Civic with license plate CDYN 014. Mr. Ghebremicael was connecting Mr. Brown with what he described as "warm referrals" - specific job opportunities - and he wanted to make sure Mr. Brown had a car to get to them. Mr. Ghebremicael did not authorize Mr. Brown to lend the car to anyone else, and would not have approved of Mr. Brown lending the car. He arranged for the car for the specific purpose of giving Mr. Brown transport for work, and also to help Mr. Brown support his elderly mother. Mr. Ghebremicael acknowledged that the car was rented in his name, and he did not add Mr. Brown's name as a driver. Mr. Ghebremicael explained that he never got around to doing this. Mr. Ghebremicael extended the rental at least once.

[3] On Wednesday, January 9, 2019, Officer Paul Canning was conducting surveillance of Mr. Brown and observed a black four-door Honda Civic CDYN 014 parked in the visitor parking lot outside 100 Lotherton Pathway in Toronto, the building where Mr. Brown lived (in apartment 806). Around 3:20 p.m. Officer Canning saw Chaddrick Brown walk out of the lobby of 100 Lotherton Pathway with an unknown white man. Mr. Brown appeared to hand something to the other man on the sidewalk in front of the building. The other man put his hands in his pockets and walked away. Mr. Brown got into the Honda Civic and drove away.

[4] Officer Canning followed the Honda Civic to the mall at Lawrence Square. He watched the Honda Civic drive up and down the rows of parked cars. Around 3:35 pm he saw an unknown light-skinned black man with a mustache reach into the driver's side window of the Honda Civic. Canning did not know where the man came from. He was not able to see the man approach, or exactly what happened, because he was also driving around the parking lot while trying to secretly observe Mr. Brown. Officer Canning estimated that the interaction lasted for about 15 seconds. He did not see where the man went afterwards, as he was focused on the Honda Civic. Officer Canning acknowledged that it was possible that the unknown man got into the Honda Civic, but he did not see that happen. Officer Canning followed the Honda Civic as it drove toward the exit near the Canadian Tire store. Canning then got caught in traffic and lost sight of the Honda Civic. Officer Canning disagreed that Mr. Brown went inside the mall. He explained that he did not see this before losing sight of the Honda Civic as it left the mall parking lot.

[5] Police next sighted the Honda Civic around 9:15 pm later the same day, January 9, 2019, parked in the visitor parking at 100 Lotherton Pathway. The Honda Civic was backed into a parking spot directly across from the entrance to the building. There was an island behind the car. At 9:38 p.m. the police team received word that they had been granted a search warrant for the Honda Civic and Mr. Brown's apartment. The police watched the car and the building, until 12:35 am. No one approached the vehicle during this period. The police did not check the car to see if it was locked. Or touch the hood to see if it was warm.

[6] At around 12:35 a.m. on January 10, 2019, Mr. Brown came out of 100 Lotherton Pathway and walked toward the Honda Civic. Police saw the lights on the Honda Civic flicker on as if the car was being unlocked. It was a cold night. Mr. Brown got into the Honda Civic quickly and started the car immediately. Officer McKenzie pulled his car in front of the Honda Civic, boxing it in. At the same time, other officers approached the Honda Civic from the rear. Officer McKenzie called "Police" three times. The first two times, Mr. Brown did not respond. McKenzie could see Mr. Brown's shoulders and upper arms. Mr. Brown was leaning slightly forward, and appeared to be looking down. His shoulders and upper arms were moving as if he was manipulating something in his lap. Only the third time that Officer McKenzie yelled "Police" and ordered Mr. Brown to show his hands, did Mr. Brown respond. McKenzie estimated that 10 to 20 seconds passed between him first yelling "police" and getting a reaction from Mr. Brown. Around this point Mr. Brown stopped moving and appeared to "pitch" something down. Around the same time other officers arrived at the driver's door and removed Mr. Brown from the car without any struggle.

[7] Officer McKenzie reached into the car and took out the car key. The car key was on a key ring which included other keys. Officer McKenzie noticed what appeared to be a package containing drugs on the floor of the driver's side of the car. The car was secured.

[8] Mr. Brown was handcuffed and placed into the rear of a van while officers discussed what to do next. A brief kerfuffle occurred as a man leaving 100 Lotherton Pathway appeared to try to push through the police. The man turned out to be unrelated to the arrest of Mr. Brown, but during the distraction Mr. Brown bolted from the back of the van. He ran down a roadway between 100 Lotherton Pathway and some row houses. Mr. Brown tried to push open the front door of one of the houses with his body before he was captured and returned to police custody.

[9] Police proceeded to search apartment 806 of 100 Lotherton Pathway. A key from the set of keys Officer McKenzie removed from the Honda Civic opened the front door. There were three bedrooms inside: one belonging to Mr. Brown's mother, Yvette Spencer; one belonging to a family friend named Maxine Allen; and the third, closest to the front door, belonging to Mr. Brown. The two women were home and in their rooms. The door to the third bedroom was closed and locked. The police initially forced the door open, but later determined that another key from the set of keys removed from the Honda Civic opened the bedroom door. The search of the bedroom revealed the following:

• The left front pocket of size 36 skinny black jeans hanging on a hook on the inside of the bedroom door contained a package of powder cocaine and separately packaged crack cocaine, and separately packaged fentanyl.
• The dresser on the side of the bedroom contained clothing. When the clothing was removed from the top shelf the following items were revealed:
  • a zip lock baggie containing approximately 8 individually wrapped packages of crack cocaine;
  • two digital scales;
  • two separately wrapped packages of crack cocaine;
  • a baggie containing small baggies often used to store drugs;
  • some bag tears.
• A drawer in the dresser contained the following:
  • a health card in the name of Chaddrick Brown, date of birth May 11, 1990;
  • a second health card for someone with the last name of "Otchere", and a middle name that ended in "ng";
  • a current passport for Chaddrick Brown;
  • inside the passport, a social insurance card in the name of Chaddrick Brown;
  • a graduation photograph of Chaddrick Brown;
  • an application for a driver's license in the name of Chaddrick Brown;
  • an expired driver's license in the name of Chaddrick Brown.

[10] The police did not find a handgun, or anything "gun-related", inside the apartment.

[11] Officers McKenzie and Wauchope were cross-examined about whether they found any money during their search. They testified that they did not. Officer Wauchope rejected the suggestion that this was unusual. He explained that sometimes they find more money than they expect; sometimes they find less or none; they may also miss finding money that is present.

[12] Officer McKenzie was also cross-examined about whether Mr. Brown was cooperative and told police drugs would be in the jeans, and whether Mr. Brown was told that his mother would be taken into custody. Officer McKenzie testified that he did not speak to Mr. Brown after he tried to run away. He had no recollection of Mr. Brown telling him where to find things.

[13] The police proceeded to search the Honda Civic. There was a package of cocaine on the floor of the driver's side, on top of the mat, slightly to the left of the centre of the mat. The centre of the mat also appeared to be raised on the right side (see exhibit 2). Officer McKenzie, who noticed the raised area, examined the car with the assistance of some kind of illumination, either from his flashlight, or the flash of a camera. He could not say whether the lump, or raised area, would be noticeable without illumination. When the floor mat was raised it revealed a handgun lying on its right side, with the handle lying next to the right edge of the mat parallel to the edge of the mat and the centre console (see ex 25). It was loaded with a magazine. The hammer was cocked back with a bullet in the chamber. It was a double action trigger: an initial pull of the trigger would cock the hammer and place a bullet in the chamber; a second pull would fire the bullet. In this position, the gun was ready to fire with a slight squeeze of the trigger. Officer McKenzie agreed that the handgun appeared to be placed, not pitched. Mr. Brown's driver's license and a cell phone were in the centre console of the Honda Civic. Another cell phone was in the area of the front passenger seat. Insurance for the car was in the glove box. No other identification was found in the car.

[14] Mr. Ghebremicael spoke with Mr. Brown sometime after Mr. Brown was arrested. Mr. Brown acknowledged that the drugs were his, but claimed the handgun was not.

[15] It is admitted that the handgun that was found in the Honda Civic was a Browning 9 mm semi-automatic handgun that meets the definition of a "restricted firearm" in s.84 of the Criminal Code. It is also admitted that when the handgun was found, it was loaded with a detachable box cartridge magazine capable of holding 13 cartridges of 9 mm ammunition, and this is a "prohibited device" as defined by s.84 of the Criminal Code, and that there was a fourteenth cartridge in the chamber of the handgun ready to fire. It is also admitted that Mr. Brown does not have an authorization or license to possess any firearm, and knows this to be the case. Nor does he have a registration certificate for the Browning that was found, or any firearm, and knows this to be the case. Mr. Brown was also subject to two s.109 orders, both prohibiting him from possessing a firearm, prohibited device, or ammunition for life.

The Defence Evidence

[16] Mr. Brown testified and acknowledged that he had drugs in his car and in his room at the time of the search, and that he was dealing drugs in the time leading up to the search. He explained that his drug-dealing was intended to be short-term, and he had taken responsibility for it by pleading guilty. Where Mr. Brown parts company from the Crown case is with respect to the handgun. The handgun that was found in the car when he was arrested was not his. He did not know it was there or anything about it.

[17] Mr. Brown confirmed that Mr. Ghebremicael arranged to rent a car for him sometime around Christmas of 2018. Mr. Brown explained that he wanted to rent a car in order to get to parties, pick up gifts, and visit family. He had a credit card, but the limit was only $300, so he could not rent a car on his own. Mr. Brown asked Mr. Ghebremicael for help. Mr. Ghebremicael persuaded Mr. Brown of the importance of getting a job, so he could get more credit, and agreed to rent a car for Mr. Brown so that Mr. Brown could use the car to go to job interviews. Mr. Brown planned to pay him back. Mr. Brown testified that he used the car to go to job interviews, but he also used the car to deal drugs.

[18] Mr. Brown testified that he lent the car to "about" three people: Atta and two others he did not want to mention. They were all good friends; people he knew and trusted, at least up until he was arrested. Two he would not name because they would not give him permission to do so. The third was "Atta". He could not remember how many times he lent the car and when and for how long. But he explained how it happened. He only had one key for the car. If a friend wanted to borrow the car, he had to give them the key. They would send him a text or Snap Chat and he would drive them and they would drop him back home, or he would come down to the lobby and give them the car key. He would know how long the friend borrowed the car for because he would pick up the key.

[19] On January 9, 2019, sometime after Mr. Brown returned home from Lawrence Square mall, one of his friends asked to borrow the car to pick up a girl. Mr. Brown said sure. They met at 100 Lotherton. Mr. Brown went to the lobby and handed over the car key. An hour or two later the friend called Mr. Brown to the side door on the north side of 100 Lotherton and Mr. Brown met the friend and picked up the key. His friend told him he parked the car in front. As Mr. Brown went back through the lobby he noticed the car in front. There was "no drama" to it, and Mr. Brown "never thought anything of it". He went back upstairs where he stayed until going out around 12:30 am to make a drug deal, when he was arrested. When the Crown asked Mr. Brown whether Atta was the last person he lent the car to he said yes.

[20] Mr. Brown explained that he was aware of the police as soon as they boxed him in, and heard them call out to him to show his hands, but he was stunned and did not know what to do. He dropped the bag of drugs in his hand. He was then dragged out of the car. He took the opportunity to flee when police were distracted by the unknown man described above. Mr. Brown explained that he tried to flee because he was scared to go to jail for the drugs. He did not know anything about the handgun.

[21] Mr. Brown also testified that every $100 bill he earned he put away. He did not keep track of how much money was in his room, but estimated it to be at least $2000. He kept it in a watch box on his dresser. He told his mother to check for it after he was arrested, but she said nothing was there.

[22] In cross-examination, Mr. Brown agreed that he did not tell Mr. Ghebremicael that he was using the car to deal drugs, or that he lent the car to his friends. He agreed that Mr. Ghebremicael would not approve of either thing.

[23] Atta Boateng Otchere also testified for the defence. Mr. Otchere testified that he and Mr. Brown were friends from attending middle school at Lawrence Heights together. On a scale of 1-10, he rated how close their friendship was at about a 7 or 8. He recalled that Mr. Brown rented a black Honda Civic for a few weeks in January of 2019. Mr. Otchere borrowed the Honda Civic a maximum of three times: once in the middle of the day to go to the store or his mechanic, once around 7 pm because the stores were still open, and once to go on a date with a girl in Scarborough. Mr. Otchere had his own car, and did not explain why he borrowed Mr. Brown's car. Mr. Otchere testified that he generally texted Mr. Brown to pick up the car key and return it. But when he returned from the date with the girl, he parked the car outside 100 Lotherton and left the key inside the car because it was so late. He estimated that he picked up the car around 11 pm on this occasion and returned it at around 3 am. Mr. Otchere also saw other people drive the Honda Civic, and recalled being with Mr. Brown when Mr. Brown did not have his car.

[24] Mr. Otchere could not explain why his health card appeared to be in Mr. Brown's dresser drawer together with Mr. Brown's identification. He suggested that perhaps he left it in the Honda Civic while making himself comfortable.

[25] Mr. Otchere was not asked whether the handgun found in the Honda Civic was his, or whether he knew anything about it. But he testified that he returned the car in the same condition that he took it.

The Applicable Legal Principles

The Meaning of Possession

[26] 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.

[27] Possession requires both knowledge and control. In this case, constructive possession is the relevant form of possession. The Supreme Court recently explained that constructive possession is complete where an 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: R. v. Morelli, 2010 SCC 8, at paras.15, 17; R. v. Bains, 2015 ONCA 677, at para. 156.

The Reasonable Doubt Standard

[28] The Crown must establish all the elements of constructive possession beyond a reasonable doubt. 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.

[29] As Mr. Brown testified in this case, and provided an exculpatory account, I must follow the approach set out by the Supreme Court of Canada in R. v. W.(D.), [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 know about the gun I must find him not guilty; (2) even if I do not believe his testimony, if it leaves me with a reasonable doubt, I must find him not guilty; and (3) even if his testimony does not leave me with any reasonable doubt, I may only find him guilty if, based on the evidence that I do accept, after considering all the evidence, 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.

[30] 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. Brown's guilt is the only reasonable inference that can be drawn from the evidence. In other words, I must be satisfied that the circumstantial evidence, assessed logically, in light of human experience, excludes any reasonable alternative other than guilt. If there is a reasonable inference or conclusion other than guilt, the Crown will not have met its burden of proving the case beyond a reasonable doubt, and I must find Mr. Brown not guilty: R. v. Villaroman, 2016 SCC 33, at paras. 32 and 34.

Analysis

The Significance of Mr. Brown's Admission that he was a Drug Dealer

[31] Defence counsel agreed that evidence suggesting that Mr. Brown was a drug dealer, including what the police found during their searches, and the observations they made, was relevant and admissible at the trial. Indeed, Mr. Brown admitted that he was dealing drugs when the police were watching him and arrested him. Defence counsel argued that Mr. Brown's willingness to admit he was a drug dealer, and take responsibility for the drugs that were found during the searches, was a hallmark of his honesty. It suggests he should be believed when he says he knew nothing about the handgun.

[32] The Crown argued that the fact that Mr. Brown was a drug dealer provided evidence of motive in the sense that it gave him a reason to have a handgun, as handguns are well-known tools of the drug trade. The case law from this Court, and the Court of Appeal, provides ample support for the conclusion that drug trafficking is a very dangerous business, and drug traffickers often have handguns. As Justice Watt succinctly put it in R. v. Simon, 2010 ONCA 754, at para.1, "[h]andguns and drug deals are frequent companions, but not good friends. Rip-offs happen. Shootings do too." See also R. v. Pelletier, 2012 ONCA 566, and R. v. Wong, 2012 ONCA 767. The Crown was clear that it did not seek to rely on the fact that Mr. Brown was a drug-dealer to suggest he was therefore a gun-toting kind of person.

[33] I agree that the evidence that Mr. Brown was a drug dealer has some probative value for the reasons described by both the Crown and the defence, although I find that the probative value is slight in the circumstances of this case. That is because the relevance is so general: people can tell the truth about some things and not others; and while some drug dealers carry guns others do not. Because the defence agreed that I should both hear and consider the evidence related to drug-dealing, and this is not a jury trial, I do not have to determine where the balance lies between probative value and prejudicial effect in the circumstances of this case. But to be clear, I will not use the evidence that Mr. Brown was a drug dealer to reason that he was therefore a gun-toting or gun-possessing kind of person, or that he was a person of bad character. Further, I want to be clear that I do not believe that the evidence that Mr. Brown was a drug dealer adds much, if anything, for either the Crown or the defence, to the constellation of circumstances present in this case.

Do I Believe Mr. Brown, or Does His Evidence Raise a Reasonable Doubt?

[34] I do not believe Mr. Brown. Nor do I find that his evidence raises a reasonable doubt. I reject his evidence that he did not know about the handgun. I will explain why.

[35] To begin with, I have concerns about Mr. Brown's general credibility. Mr. Brown has a significant criminal record. While none of the prior convictions relate to offences of dishonesty, they do suggest he does not feel constrained by the rules. This concern is confirmed by Mr. Brown's treatment of his friend Mr. Ghebremicael. Mr. Brown knew that Mr. Ghebremicael would not approve of him using the Honda Civic to deal drugs, or allowing other people to use it. Notwithstanding that he claimed to hold Mr. Ghebremicael in very high esteem, Mr. Brown did both things.

[36] I found Mr. Brown's evidence about who he lent the car to and when and why very vague. Mr. Brown explained simply that he lent the car because he could not say no to his friends. He would not name two of the people he claimed he allowed drive the car.

[37] In particular, found Mr. Brown's evidence about lending the car the day before he was arrested vague to the point of being unbelievable. As noted above, Mr. Brown explained that, sometime after he returned from Lawrence Square on January 9, "one of my boys", who he later agreed was Atta, "hit me up for the car to pick up a girl". They arranged to meet at 100 Lotherton and Atta borrowed the car for an hour or two before returning it, and delivering the key back to Mr. Brown. Mr. Brown testified that "he never thought anything about it". I find this hard to believe. While the details of this interaction may not be remarkable on an occasion where nothing happened, given that a fully loaded restricted firearm was found in the car not long after, underneath where the right foot of the driver would naturally rest while getting in and out of the car and while it was in park, and there was a bullet in the chamber ready to fire at the slightest touch, one might expect the details to take on a fair bit of prominence. I note that the evening was otherwise so significant for Mr. Brown that he could remember the song that was playing ("Future - Crushed Up") when the police boxed him in and arrested him.

[38] I am also concerned that Mr. Brown's evidence did not make sense. Mr. Brown's evidence that he gets into a car by sitting on the seat first, and then slowly turning his legs in, because they are long, causing his feet to end up right at the pedals, and that he does not put his feet back in the area where the gun was found, which is the logical place for them to be when getting into a car, struck me as contrived. It also runs counter to the evidence of Officer Waucope who testified that Mr. Brown got into the Honda Civic in a normal way just prior to his arrest.

[39] In addition, I found Mr. Brown reluctant to acknowledge the obvious. In examination in chief when it was suggested to him that he had heard that drugs and guns go "hand in hand" he agreed, but added that he had also heard that they should not mix. He explained that he did not carry a gun for protection because he was not a big-time drug dealer, he did not plan to do it for long, and he would rather fight than use a gun. In cross-examination, Mr. Brown was reluctant to accept that drug dealing was dangerous, and claimed that he was not aware that users and dealers were often armed. He never felt that selling drugs put him "in harm's way". His armour was to fight and only deal with people he trusted. This is a strikingly naïve approach by someone who otherwise appeared to be running a relatively sophisticated street-level drug-dealing operation: he was in possession of over 10 grams of cocaine, and almost 4 grams of fentanyl, two cell phones, and two digital scales, and was dealing out of a car. Naïve to the point of incredible.

[40] Finally, there were significant inconsistencies between Mr. Brown's evidence and that of his friend Atta Otchere. As I have noted, Mr. Brown claimed that he lent the Honda Civic to Atta on the evening of January 9 so that Atta could pick up a girl. He testified that Atta picked up, and returned, the car key in person. We know the car was back at 100 Lotherton shortly after 9 pm when the police resumed surveillance. But according to Atta, the only time he borrowed the Honda Civic to visit a girl he picked up the car around 11 pm and returned it around 3 am, and left the key inside the car because it was so late. Defence counsel urges me not to be put off by the difference between the two accounts, suggesting instead that the difference reflects honesty, and it is enough that Atta Otchere drove the car on any prior occasion to raise a reasonable doubt. I disagree. I do not expect these witnesses to be precise about times or dates (though to the extent they texted each other about picking up and returning the key, as Mr. Otchere testified, one might expect more precision with dates and times). But setting that aside, I am concerned about significant aspects of their evidence that do not add up. They both testified that one of the occasions that Atta Otchere borrowed the car was to see a girl, and there was only one such occasion. But there are material discrepancies about that occasion. Mr. Brown recalled that Atta Otchere returned the key directly to him. Indeed it was his evidence that whenever he lent the car it involved handing out and retrieving the key. He never mentioned the car being left unlocked with the key inside. In contrast, Atta Otchere recalled leaving the car unlocked with the key inside because he was returning the car so late at night. In short, far from providing confirmation of Mr. Brown's evidence, Atta Otchere contradicts Mr. Brown's evidence.

[41] In all the above circumstances, I cannot accept Mr. Brown's evidence. Nor does his evidence raise a reasonable doubt that he did not know about the gun. Indeed, I reject Mr. Brown's evidence.

Has the Crown Proved Beyond a Reasonable Doubt that Mr. Brown was in Possession of the Handgun?

[42] I am satisfied that the size and location of the handgun was such that whoever was driving the Honda Civic would feel it. The handgun was placed underneath the position where the driver's right foot would be when not on the gas or break pedal. This is the normal position for the driver's right foot when getting into and out of the car, and when the car was in park. The actual handgun was shown to me in court and made an exhibit (minus the ammunition and ammunition clip). It is a solid metal object that appears to be about 6 inches long and about 2 inches wide at the widest part. It was made exhibit 41.

[43] Mr. Brown was only in the Honda Civic for a very brief time when he was observed by police just prior to being arrested, just long enough to quickly turn on the car; approximately 10-20 seconds. There is no suggestion that he brought the handgun with him when he got in the car, and such a suggestion would not be consistent with what the police observed. Nor can I find that Mr. Brown learned of the gun by being with it for this brief period before he was arrested. While he might have felt it, it was dark, he was only in the car very briefly before being hauled out, and there is no evidence that he reached down and checked what was under the mat.

[44] Rather, I find that the gun was habitually kept in the position where it was found for the use of the driver. Dark areas that appear to be water marks on driver's floor mat suggest that the handgun was kept in the position where it was found for at least some period of time. When the photograph of the raised area is examined (exhibit 2), especially side by side with the photograph of the handgun when the mat is turned back (exhibit 25), it is apparent that the dark areas on the mat are at the top and to the left of the area of the mat that was raised or elevated by the handgun. There is no dark area, or accumulated salt, in the raised area above the handgun, unlike the adjacent areas of the floor mat.

[45] Further I find that Mr. Brown was the driver of the Honda Civic at the time of the arrest and in the weeks leading up to it. Mr. Brown was the person who controlled the Honda. The car was rented for his use. He was, at the very least, the main person who was driving it. Mr. Brown had the only key to the car, and kept it on a ring that included keys that opened the front door to his apartment, and his bedroom. Mr. Brown's driver's license was in the centre console of the Honda Civic. No one else's identification was in the car.

[46] It is an accepted matter of common sense that an illegal handgun is valuable, difficult to obtain, and dangerous. Further, it is accepted that, as such, it is reasonable to infer that it would only be entrusted to someone who knew what they were keeping. In R. v. Bonilla-Perez, 2016 ONCA 535, at para. 16, and more recently R. v. Thompson, 2020 ONCA 361 at paras.10-11, the Court of Appeal expressly approved of the trial judge's conclusion that "parties generally do not hide their valuables in someone else's car, unless they know and trust the owner of the car to look after the valuables for them". This inference is particularly compelling in the circumstances of this case where the handgun was not simply left or stored in the Honda Civic, so much as carefully placed near the driver, ready to fire at the slightest touch, as if for the use of the driver. As I have noted, the handgun was positioned under the floor mat of the driver's seat with the handle toward the right edge of the floor mat under the centre console, so it could be easily grabbed by the driver, particularly a right-handed driver (though there is no evidence of whether or not Mr. Brown is right-handed). The handgun was loaded with a bullet in the chamber. The hammer was cocked back, meaning that only a slight further pull of the trigger would fire the handgun.

[47] In all the above circumstances, I am satisfied beyond a reasonable doubt that the handgun either belonged to Mr. Brown, or he knew about it, and he controlled it. He was in possession of it when arrested by the police.

Conclusion

[48] Considering all the circumstances of this case, I am satisfied that the only reasonable conclusion that can be drawn is that Mr. Brown was in possession of the handgun when he was arrested by the police. There is no other reasonable possibility. He is guilty of the offences set out in the indictment.

GILLIAN ROBERTS J.

RELEASED: August 14, 2020

COURT FILE NO.: CR-19-0000695 DATE: 20200814 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N: HER MAJESTY THE QUEEN – and – CHADDRICK BROWN

REASONS FOR JUDGMENT GILLIAN ROBERTS J.

RELEASED: August 14, 2020