Court File and Parties
COURT FILE NO.: CR-19-10000633
DATE: 20201015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
-and-
DANYEL COLMENARES-GUEVARA
Counsel: Sonya Anderson, for the Crown Hugo Gonzales, for the Defendant
HEARD: September 14-18, 21-22, 2020
Justice J. Copeland
REASONS FOR JUDGMENT
[1] Danyel Colmenares-Guevara is charged with four counts, alleged to have been committed on or about April 8, 2018, all relating to the same firearm. Count #1 alleges possession of a restricted firearm without licence or registration, contrary to s. 92(1) of the Criminal Code. Count #2 alleges that Mr. Colmenares-Guevara was the occupant of a motor vehicle in which he knew that there was a firearm, contrary to s. 94(1) of the Criminal Code. Counts #3 and #4 allege possession of a firearm in breach of two different firearm prohibition orders. The allegations all involve a loaded restricted firearm (a handgun), found in a specially-built hidden compartment in the centre console of a Mercedes SUV leased to Mr. Colmenares-Guevara.
[2] The trial was heard by Zoom videoconference with the consent of the parties.
[3] The only issue in dispute is whether the Crown has proven beyond a reasonable doubt the knowledge and control of the firearm required for possession (and related knowledge elements on the other counts). It is a circumstantial case. The Crown takes the position that the evidence as a whole is sufficient to show that Mr. Colmenares-Guevara possessed the firearm, and to rule out any other reasonable inferences. The defence argues that the evidence is not sufficient to prove possession beyond a reasonable doubt. In particular, the defence argues that the Crown has not negatived the inference that a previous owner of the Mercedes SUV may have left the loaded restricted firearm in the vehicle. The vehicle was used when Mr. Colmenares-Guevara entered into a lease-to-own contract for it. The defence argues that the inference that a previous owner of the Mercedes SUV may have left the loaded firearm there is a non-speculative inference.
[4] I will not summarize all of the evidence. It was relatively brief, and I will address the key aspects in my analysis. But I will outline the categories of evidence led: (i) evidence of the inspection of the vehicle by police pursuant to search warrant, after Mr. Colmenares-Guevara’s arrest, documenting the discovery of a hidden compartment within the centre console, the finding of the loaded firearm in the hidden compartment, and the two switches associated with the compartment which were used to open it; (ii) surveillance evidence of Mr. Colmenares-Guevara driving the Mercedes SUV on April 5 and 7, 2018 (and driving a rental pick-up truck on March 28, 2018, 2018), as well as surveillance of the vehicle and an address on Bleecker Street on April 8, 2018 (the date of the arrest, and the execution of search warrants on two addresses and the Mercedes SUV); (iii) evidence regarding the leasing of the Mercedes SUV to Mr. Colmenares-Guevara in June 2017, and its prior acquisition by the dealership that leased it to Mr. Colmenares-Guevara, as well as evidence regarding whether the hidden compartment was in the vehicle at the time it was purchased by the dealership before it was leased to Mr. Colmenares-Guevara; (iv) evidence of the findings of searches of the Mercedes SUV, and of two addresses that Mr. Colmenares-Guevara was associated with (an apartment on Bleecker Street, and a townhouse on Cardwell Avenue); and (v) two agreed statements of fact, and documentary and affidavit evidence, including about the history of the firearm, its functioning, and the weapons prohibition order in relation to count #3.
[5] With one exception, which I address below in my analysis, the defence did not challenge the credibility or the reliability of the evidence led by the Crown. For example, the defence did not challenge the credibility or reliability of the observations made by the various officers who conducted surveillance. Rather, the defence took the position that taken together, the surveillance evidence, the results of the search, and all of the other evidence were not sufficient to prove beyond a reasonable doubt that Mr. Colmenares-Guevara possessed the firearm, and in particular, not sufficient to prove that he knew it was in the hidden compartment in the centre console.
[6] The one exception to the defence not challenging credibility or reliability of the witnesses in the Crown’s case, which I will address below in my analysis, is with respect to the evidence of Dennis Lecos. Mr. Lecos gave evidence about the purchase of the Mercedes SUV by Lecos Auto Sales from a wholesaler on May 2, 2017, and subsequent lease to Mr. Colmenares-Guevara on June 15, 2017. The defence did not challenge Mr. Lecos’ evidence in relation to the lease. However, the defence challenged the reliability of Mr. Lecos’ evidence relating to the hidden compartment not being in the vehicle at the time it was bought by the dealer, and then leased to Mr. Colmenares-Guevara. I did not understand the defence to challenge Mr. Lecos’ credibility, in the sense of his honesty.
[7] My reasons are structured as follows. I first address count #1, the possession count. I outline briefly the positions of the parties in relation to count #1. I then summarize the relevant law in relation to possession and proof beyond a reasonable doubt in cases involving circumstantial evidence. I then analyze whether the evidence is sufficient to prove the elements of possession beyond a reasonable doubt, including considering whether there are any other reasonable inferences. After concluding the analysis of count #1, I consider counts #2, #3, and #4.
Has the Crown proven count #1, possession of a restricted firearm without a license or registration, beyond a reasonable doubt?
(i) Positions of the parties
[8] The Crown acknowledges that its case for possession of the firearm is circumstantial. The Crown argues that the only reasonable inference from the whole of the evidence is that Mr. Colmenares-Guevara possessed the firearm in the hidden compartment in the centre console. The Crown argues that the inference proposed by the defence, that an unknown previous owner or driver of the vehicle left the firearm there, is speculative and not supported by the trial record.
[9] The defense argues that the evidence is insufficient to prove beyond a reasonable doubt that Mr. Colmenares-Guevara had knowledge and control of the firearm. In particular, the defence focuses on three main points. First, the defence argues that the hidden compartment is not visible when a driver drives the car, and one could drive the car and not see the hidden compartment or either of the switches used to operate it. Second, the defence argues that it took 40-50 minutes for the officer who did the examination of the vehicle, Officer Joe D’Angelo, to find the firearm in the hidden compartment from the time he broke the seals on the Mercedes SUV and began to search its interior. The defence argues that these two points supports the proposition that Mr. Colmenares-Guevara could drive the vehicle regularly, and not be aware of the hidden compartment. Third, the defence points to a list of gaps in the evidence. I outline these points in more detail below, but they include that there was no observation of Mr. Colmenares-Guevara handling the firearm, no observation of him opening the centre console (or the hidden compartment), and no forensic evidence connecting him to the firearm, such as fingerprints or DNA. The defence argues that the evidence leaves open the inference that a previous owner or driver of the vehicle left the loaded handgun in the secret compartment (and presumably installed the secret compartment). The defence argues that this is a non-speculative inference.
[10] The defence does not contest that Mr. Colmenares-Guevara leased the Mercedes SUV in his name, and had control over the vehicle. It just takes the position that the Crown has not proven beyond a reasonable doubt that he knew the firearm was in it in the hidden compartment.
(ii) Applicable law
[11] The Crown bears the burden to prove the charges beyond a reasonable doubt.
[12] In order to prove possession of the firearm, the Crown must prove knowledge that the firearm was in the place (here, the hidden compartment in the Mercedes SUV), and control over the firearm: R. v. Morelli, [2010] 1 S.C.R. 253, 2010 SCC 8, at paras. 15, 17; R. v. Lights, 2020 ONCA 128 at paras. 44-52.
[13] Section 4(3) of the Criminal Code provides for three forms of possession. In this case the Crown relies on a theory of constructive possession of the firearm by Mr. Colmenares-Guevara. In order to prove constructive possession, the Crown must prove: (1) that Mr. Colmenars-Guevars had knowledge of the character of the thing (the firearm); (2) that Mr. Colmenares-Guevara knowingly put or kept the firearm in a particular place (here, in the Mercedes SUV), whether or not that place belongs to him; and (3) that he intended to have the firearm for his use or benefit or that of another person: Morelli at para. 17; Lights at paras. 44-52.
[14] The fact that a thing is found in a place occupied by a defendant does not create a presumption of knowledge and control. Thus, the fact that the Mercedes SUV in this case is leased to Mr. Colmenares-Guevara, and that there was ample surveillance evidence of him driving it, does not by itself create a presumption that he had knowledge and control of its contents. However, the fact that a person has control over a motor vehicle, together with other evidence may (depending on the whole of the evidence) enable a trial judge to infer knowledge and control of an item in the vehicle in appropriate cases.: Lights at para. 50; R. v. Lincoln, 2012 ONCA 542 at para. 3; R. v. Watson, 2011 ONCA 437 at paras. 11-13.
[15] As I have noted, the Crown’s case for possession of the firearm is a circumstantial one. In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 at paras. 30, 35-42, 2016 SCC 33, the Supreme Court of Canada considered the proper approach to circumstantial evidence and proof beyond a reasonable doubt. Where the proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, a trier of fact should not draw an inference of guilt from circumstantial evidence unless it is the only reasonable inference that the evidence permits. Reasonable alternative inferences (besides guilt) may be based on the evidence or on a lack of evidence. What is important is that only reasonable alternative inferences can give rise to a doubt that the defendant is guilty. Speculative alternative inferences will not give rise to a reasonable doubt.
[16] In considering the line between reasonable alternative inferences, and speculative ones, Justice Cromwell writing for the court held as follows at paragraphs 37-38:
When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: [citation omitted]. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: [citation omitted]. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in the light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.
[17] As the Court of Appeal recently reiterated in Lights at para. 37, in assessing whether circumstantial evidence meets the required standard of proof, the court must bear in mind that it is the evidence assessed as a whole that must satisfy the reasonable doubt standard of proof, not each individual piece of evidence.
[18] Inferences consistent with innocence are not required to arise from proven facts. They may arise from lack of evidence: Villaroman at paras. 35-36; Lights at para. 38. As the Supreme Court noted in Villaroman, this principle is consistent with the holding in R. v. Lifchus, [1997] 3 S.C.R. 320, 1997 CanLII 319, that a reasonable doubt may arise from the evidence, or from the lack of evidence. But alternative inferences, whether based on the evidence or the lack of evidence, “must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”: Villaroman at para. 36.
[19] Finally, before turning to my analysis of the evidence, I underline the nature of the Crown’s burden of proof beyond a reasonable doubt. The reasonable doubt standard is a higher standard of proof than the civil standard of proof on a balance of probabilities. The reasonable doubt standard is a heavy burden. It is not sufficient to believe that the defendant is probably guilty. However, the Crown is not required to prove its case to the point of absolute certainty, as that would set an impossibly high standard. A reasonable doubt is a doubt based on reason and common sense, based on the evidence, or lack of evidence, in the record before the court: Lifchus at para. 39.
(iii) Analysis of the evidence – has the Crown proven possession of the firearm beyond a reasonable doubt?
[20] I find that the evidence as a whole is sufficient to prove beyond a reasonable doubt that Mr. Colmenares-Guevara had knowledge and control of the firearm in the hidden compartment in the centre console. I find on the record before me, that the inference that the firearm was left in the Mercedes SUV by some previous owner or driver who had access to the vehicle before it was leased to Mr. Colmenares-Guevara in June 2017 is speculative.
[21] In making the submission that the Crown has not proven possession beyond a reasonable doubt, defence counsel focused in particular on the fact that the hidden compartment was not apparent when the centre console lid is opened, the fact that the hidden compartment did not interfere with the normal functioning of the vehicle, and areas where there is an absence of evidence, including:
• There were no observations of Mr. Colmenares-Guevara handling the firearm;
• There is no evidence of when the firearm was last used;
• There is no evidence of fingerprints or DNA on the firearm or the ammunition;
• There were no observations of Mr. Colmenares-Guevara interacting with the centre console of the Mercedes SUV at any point;
• The nature of the hidden compartment is such that even if there was evidence of Mr. Colmenares-Guevara opening the top of the centre console, one cannot see the secret compartment just by opening and looking into the console.
[22] I accept that the hidden compartment was not apparent when one sat in the driver seat, and not apparent if one opened the lid of the centre console. I also accept the existence of the absence of evidence on the points listed in the preceding paragraph. I have considered these factors in my assessment of the evidence as a whole.
[23] I come to the conclusion that the Crown has proven the elements of possession beyond a reasonable doubt based on the following evidence, findings, and inferences, in the context of the evidence as a whole:
• The defence does not contest that Mr. Colmenares-Guevara had possession of and had control of the Mercedes SUV. I want to briefly flesh out the evidence and my findings in relation to this issue. The Mercedes SUV was leased to Mr. Colmenares-Guevara by Lecos Auto Sales. It was a used vehicle. The lease began on June 15, 2017. It was a four year lease, which was structured so that at the end of the lease, Mr. Colmenares-Guevara would own the vehicle. The terms of the lease provided for 47 monthly payments of $548.77. The residual value of the lease was one final payment of $548.77. Thus, the lease envisaged that at the end of the lease term, by making one last payment of $548.77, Mr. Colmenares-Guevara would own the vehicle. I accept the evidence of Dennis Lecos about the terms of the lease. Mr. Lecos’ evidence is supported by the documentary evidence (the lease). That Mr. Colmenares-Guevara would become the owner, and not have to return the Mercedes SUV to the leasing company at the end of the lease, is important because I find that it supports the inference that Mr. Colmenares-Guevara would not have been concerned about installing the hidden secret compartment that it could be discovered at the end of the lease – because the intention of the lease was that he would become the owner. The lease gave Mr. Colmenares-Guevara control over the Mercedes SUV, and provided that as long as he continued to make his monthly payments, he would continue to have control over it, and become its owner.
• The surveillance evidence and the items found when the Mercedes SUV was searched also strongly support that Mr. Colmenares-Guevara was the person who had control over the Mercedes SUV. He was observed driving it on April 5 and 7, 2018 (from approximately 12:03 p.m. to 1:30 p.m. on April 5, and approximately 2:13 p.m. to 6:32 p.m. on April 7, 2018). I am satisfied that the police correctly identified Mr. Colmenares-Guevara as the driver on those dates, based on their evidence of having seen a photo of him prior to commencing surveillance (and some of the officers keeping the photo with them in their vehicles during surveillance), and their evidence that during the surveillance he looked like the photo they had seen. The photo the officers viewed prior to starting surveillance was entered as an exhibit at trial. Based on my own observations of Mr. Colmenares-Guevara on the video feed during the trial, I find that he still looks very much like that photo.
• When the vehicle was searched on April 9, 2018, numerous documents in Mr. Colmenares-Guevara’s name were found, including mail from the Ministry of Transportation addressed to him, the ownership listing him as the lessee of the vehicle, insurance for the vehicle in his name, and other documents in Mr. Colmenares-Guevara’s name.
• During the days the police conducted surveillance of Mr. Colmenares-Guevara and the Mercedes SUV prior to the date of the arrest, no-one other than Mr. Colmenares-Guevara was seen driving the Mercedes SUV. Indeed, no-one else was seen driving it at any time, except for when Mr. Colmenares-Guevara’s girlfriend, Ms Martin, moved it in the parking lot at 375 Bleecker to a different parking space on April 8, 2018. Further, in the agreed statement of facts regarding Ms Martin, it is agreed that she was not the owner of the Mercedes SUV, but that she had been a passenger in the vehicle many times with Mr. Colmenares-Guevara driving. Thus, I am satisfied that Mr. Colmenares-Guevara had ongoing control of the Mercedes SUV (although it is also clear that Ms Martin had access to the Mercedes SUV, as I note below, it is agreed that the firearm was not hers).
• I accept the evidence of Officer D’Angelo of the auto squad, who searched the interior of the Mercedes SUV, and found the hidden compartment, that the hidden compartment was installed after-market, and that it was relatively sophisticated. I find based on the nature of the compartment that it must have been installed at the direction of someone who had control over the Mercedes SUV. By this I mean that a casual passenger in the vehicle would not have had the opportunity to install the hidden compartment. Nor is this a case like ones involving a firearm found under a seat, or somewhere in a vehicle where an occupant of the vehicle for briefer duration and without control over the vehicle could have put the firearm there.
• I accept that the hidden compartment in the centre console was not visible if one were to open the lid of the centre console. I make this finding based on the evidence of Officer D’Angelo. I accept the evidence of Officer D’Angelo that there were two switches that operated the opening of the hidden compartment. One was the toggle switch immediately behind the hood release handle on the left underside of the dashboard.[^1] The other was a button on the rear of the centre console. I also accept that in the normal course, a driver of the Mercedes who did not know about the hidden compartment would not see the button that was on the rear of the centre console. I make this finding because, as a matter of common sense and experience, a driver of a particular vehicle does not often get into the back seat. However, I find that as the regular driver of the Mercedes SUV, Mr. Colmenares-Guevara would have noticed the toggle switch behind the hood release handle (on the left side under the dashboard, near the driver seat). I accept that the toggle switch was not visible if one sits in the driver seat to drive (I base this finding on the evidence of Officer D’Angelo). But I find that that Mr. Colmenares-Guevara, who based on the surveillance and search results was the regular driver of the Mercedes SUV, and who had had the vehicle for more than nine months at the time of the arrest, would have noticed the toggle switch when reaching to open the hood latch. Based on common sense and experience, I find that even the least mechanically-inclined of drivers opens the hood latch from time to time to refill the wiper fluid, or to check or refill their oil. I find it inconceivable that in opening the hood latch, one would not in reaching feel or see the toggle switch, given its position immediately adjacent to the hood release latch.
• I accept the evidence of Dennis Lecos that the hidden compartment was not in the Mercedes SUV at the time it was purchased by Lecos Auto Sales on May 2, 2017, and was not installed in the Mercedes SUV by Lecos Auto Sales or Vista Finance. In other words, I find that the hidden compartment must have been installed some time after the Mercedes SUV was leased to Mr. Colmenares-Guevara on June 15, 2017. In making this finding, I have considered the defence arguments about the reliability of Mr. Lecos’ evidence on this point. I accept that the centre console would not have been looked at as part of the Ontario safety certification inspection that Mr. Lecos completed himself at the time that Lecos Auto Sales acquired the Mercedes SUV, and also that even if someone had lifted the lid on the centre console, if the hidden compartment was there at that time, it would not have been readily apparent. However, I find that during the time Lecos Auto Sales acquired the vehicle and prepared it for further sale or lease, if the toggle switch by the latch to open the hood had been there, it would have been noticed during one of the inspections or cleaning. Mr. Lecos testified that in addition to the Ontario safety certification inspection, which he did himself, there was a 180 point inspection of the vehicle which is more comprehensive, and the vehicle was thoroughly cleaned. I find that in light of the fact that the toggle switch was clearly not factory equipment on the Mercedes SUV (as testified to by both Officer D’Angelo and Mr. Lecos), someone at the dealership would have noticed it during these processes, if it was there then. I find that the toggle switch (and by extension, the hidden compartment) was not there prior to when the vehicle was leased to Mr. Colmenares-Guevara.
• The documents and affidavits filed on agreement regarding the history of the firearm show that it was last registered on May 4, 2017, and that the lawful owner reported it stolen in September 2017. The May 4, 2017 date of the last registration is significant, because it is two days after the Mercedes SUV was purchased from a wholesaler by Lecos Auto Sales (on May 2, 2017, according to Mr. Lecos, whose evidence I accept). I find that this is strong evidence that the firearm was not in the Mercedes SUV at the time it was purchased by Lecos Auto Sales. If the firearm was being legally registered by its last legal owner on May 4, 2017, it could not have been in the Mercedes SUV at the same time (there is no suggestion that the last legal owner of the firearm, listed as “Bulls Eye Sports” in London, Ontario, ever owned the Mercedes SUV). I find that this is very strong evidence that the firearm was not in the Mercedes SUV when it was purchased by Lecos Auto Sales on May 2, 2017.
• The agreed statement of fact in relation to Mr. Colmenares-Guevara’s girlfriend, Ms Martin, includes the fact that Ms Martin had no knowledge of the firearm being in the Mercedes SUV, and the firearm is not hers. These facts exclude the possibility that the firearm was Ms Martin’s.
• As I explain below, I find that the inference proposed by the defence, that some previous owner of the Mercedes SUV installed the hidden compartment and left the loaded firearm there, is speculative on the record before the court, and indeed, is contrary to the evidence before the court.
[24] I bear in mind, as I have outlined above, that I must consider the evidence as a whole in assessing whether the Crown has proven its case beyond a reasonable doubt, and whether guilt is the only reasonable inference: Lights at para. 37. I find that considering all of the evidence, including considering the absences of evidence pointed to by the defence, I am persuaded beyond a reasonable doubt that Mr. Colmenares-Guevara knew that the firearm was in the hidden compartment of the vehicle, and that he put it or kept it there for his use or benefit – he had control over it. I find that this is the only reasonable inference on the whole of the evidence before the court.
[25] I reject the defence argument that the fact that Officer D’Angelo testified in cross-examination that it took him 40-50 minutes from when he broke the seals and began the search of the Mercedes until he found the firearm in the hidden compartment is probative of the proposition that Mr. Colmenares-Guevara would not have known about the hidden compartment. I find that Officer’s D’Angelo’s evidence was clear, and I accept it as true, that from the moment he saw the toggle switch, he knew it was not factory-equipment on the Mercedes SUV, and had been added after-market. He did not immediately know what it led to, but the steps to finding what it led to were not complicated. And the reason it took him 40-50 minutes was because he was documenting his steps as he went by making notes and taking photographs (since he knew he would likely be required to testify about the finding of the compartment and its nature).
[26] I want to specifically address the defence argument that a previous owner of the Mercedes SUV may have left the loaded restricted firearm in the hidden compartment. I reject this argument. I find that the weight of the evidence is against it, and it is a speculative inference. I will not repeat all of the points I have listed above. But in particular, I note the following. First, as a matter of common sense and experience I find that it is exceedingly unlikely that a person would leave an unlawful restricted and loaded firearm in a motor vehicle, and sell the vehicle on without removing the firearm. Given the risks of jail inherent in unlawful firearm possession, and the fact that vehicles are registered to particular owners, and thus traceable, I do not accept that a previous owner of the Mercedes would have done this.
[27] The defence submits that maybe a previous owner died or was arrested, such that they were unable to remove the firearm. The defence in part relies for this submission on the Carfax history report about the vehicle obtained by Lecos Auto Sales when it purchased the vehicle. The Carfax report shows that in 2010 the vehicle was in an accident that caused damage to the left side (driver side) of the vehicle. The Carfax report was discussed in the evidence of Mr. Lecos, and was formally entered as an exhibit in one of the agreed statements of fact. In my view, the inference that a previous owner died in that accident is contrary to the evidence, and entirely speculative. There is no evidence whatsoever than any previous owner of the vehicle has died. Further, a review of the Carfax report for the Mercedes SUV shows that there is an entry on it for each change of ownership of the vehicle. From the time of the first purchase of the vehicle in 2010, there is no change in ownership until 2014. This would seem to show that the owner did not die in the 2010 collision, as one would expect a change of ownership if the owner died. With respect to the idea that a previous owner of the vehicle was arrested (and thus could not remove a firearm placed in the vehicle), this is entirely speculative and unsupported by any evidence.
[28] Second, as I have outlined above, taken in the context of the evidence as a whole, I find that the secret compartment was not in the vehicle at the time Lecos Auto Sales bought the vehicle from a wholesaler, and sold it on to Mr. Colmenares-Guevara. Although the compartment was not visible in the centre console, I find that someone would have noted the toggle switch that was right behind the hood release during one of the inspections or cleaning of the vehicle done by Lecos Auto Sales. I accept Mr. Lecos’ evidence that Lecos Auto Sales did not install the secret compartment.
[29] Third, as I have noted above, the documents and affidavits filed on consent about the history of the firearm show that it was last legally registered on May 4, 2017, and then was reported stolen in September 2017. The May 4, 2017 date that the firearm was last registered is important because it is two days after the Mercedes SUV was purchased from the wholesaler by Lecos Auto Sales (on May 2, 2017, according to Mr. Lecos, whose evidence I accept). I find that this is strong evidence that the firearm was not in the Mercedes at the time it was purchased by Lecos Auto Sales (because it was subsequently legally registered).
[30] Considering the evidence as a whole, I find that on the record before the court the notion that a previous owner of the Mercedes SUV left the loaded restricted weapon in the vehicle is the type of speculative inference or conjecture that the Court of Appeal cautioned against in Lights at para. 38; see also Villaroman at para. 37-38.
[31] For sake of completeness, I note that the defence did not argue that it was a reasonable inference that Mr. Colmenares-Guevara’s girlfriend, Ms Martin, possessed the firearm without his knowledge. As I have noted above, one of the agreed statement of facts includes the fact that she was not aware that the firearm was in the Mercedes SUV, and it was not hers.
[32] The defence also did not argue that someone other than Mr. Colmenares-Guevara may have put the firearm in the hidden compartment after his lease of the vehicle began in June 2017. There is no evidentiary record whatsoever to support that proposition. I accept that this inference would be entirely speculative on the record before the court.
[33] The defence relies on two cases in support of its submission that the Crown has not proven possession beyond a reasonable doubt: R. v. Green, [1993] O.J. No. 1346 (CA); and R. v. Bullock, [2000] O.J. No. 798 (SCJ). In my view, while I accept the legal propositions in these cases, they are distinguishable on their facts from the case before me. The defence argues that these cases support the proposition that where a firearm in a vehicle is in a location that is not visible to occupants of the vehicle, knowledge of the firearm’s presence cannot be inferred without either direct evidence of knowledge, or sufficient circumstantial evidence to satisfy the court that a defendant’s knowledge of the firearm is the only reasonable inference to be drawn from the evidence.
[34] Green and Bullock, consistent with the later guidance of Villaroman, hold that where there is no direct evidence of the knowledge element of possession (or in Green, knowingly being an occupant of a motor vehicle that contains a firearm), a circumstantial case for the defendant’s knowledge must be sufficient to exclude other reasonable inferences that are inconsistent with the defendant’s guilt. I accept that legal proposition. On each case’s facts, the Court of Appeal in Green, and the trial judge in Bullock, found that the evidence as a whole was insufficient to prove the knowledge of the presence of the firearm in the vehicle. In Green, the Court of Appeal commented that: “There was no direct evidence that the appellant Green knew there was a restricted weapon in the vehicle in which he was found. There was no evidence of any facts from which it could reasonably inferred that he had such knowledge” (emphasis added). A similar finding was made with respect to the two co-accused in Bullock at paras. 9 and 15.
[35] By contrast, in this case, for reasons I have explained, I find that taken as a whole, the evidence is sufficient to prove that Mr. Colmenares-Guevara had knowledge and control of the firearm in the Mercedes SUV, and that the evidence is also sufficient to rule out any other inference as speculative.
[36] Before leaving count #1, I want to make clear that I am not relying on one body of evidence and argument tendered by the Crown in my finding that count #1 has been proven. Crown counsel led evidence of large amounts of money having been found at both the Bleecker Street apartment, and a townhouse on Cardwell Avenue that Mr. Colmenares-Guevara was seen to attend during the police surveillance. $5,570.00 was found in the Bleecker Street apartment (including $920 found on Mr. Colmenares-Guevara’s person when he was arrested there). $11,325.00 was found in the Cardwell Avenue townhouse. Crown counsel argues that the surveillance evidence and evidence of items found at both addresses is sufficient to prove that the money is Mr. Colmenares-Guevara’s. Crown counsel further argues that possessing large sums of cash provides a motive for Mr. Colmenares-Guevara to possess a firearm (i.e., to protect the cash), and that for this reason, the possession of the cash is probative of his knowledge of the firearm in the Mercedes. I underline that Crown counsel was clear in her submissions that she was not asking the court to draw any character-based inference about the source of the cash (i.e., she was not suggesting it was obtained by illegal conduct).
[37] The defence argues that the connection of Mr. Colmenares-Guevara to the Cardwell Avenue townhouse (and therefore to the money there) was not sufficiently established. The defence further argues that in any event, the inference the Crown asks the court to draw – that possession large amounts of cash provides a motive to possess a firearm and therefore is probative of knowledge of the firearm – is simply not a probative inference.
[38] I accept that the evidence as a whole is sufficient to prove the cash at the Bleecker Street apartment and the Cardwell Avenue townhouse belonged to Mr. Colmenares-Guevara. I will not go in great detail into why I accept this, since I find that the next step of the Crown’s argument fails. But in summary form, Mr. Colmenares-Guevara was observed to attend at both addresses during police surveillance. Documents, including recent documents, in the name of Mr. Colmenares-Guevara were found at both addresses, as well as documents in Ms Martin’s name. In the agreed statement of facts, it is agreed that Ms Martin stayed at the Cardwell Avenue townhouse from time to time, but it was not her residence. It was also agreed that to her knowledge no one besides Mr. Colmenares-Guevara, herself, and their young child had access to the Cardwell townhouse. It was also agreed that $11,325.00 found in the Cardwell townhouse was not hers.[^2]
[39] However, I agree with the defence that possession of a large amount of cash is not, in this case and in the context of the evidence as a whole, probative of knowledge of the firearm.
[40] For sake of completeness, I also note that I have instructed myself not to draw any character-based inferences from the evidence in relation to count #3 that Mr. Colmenares-Guevara was subject to a weapons prohibition order, which is imposed as a sentencing order for a criminal conviction. I do not rely on the fact of the weapons prohibition order, or the underlying fact that it means Mr. Colmenares-Guevara has a criminal record for any purpose in relation to counts #1 or #2 (and only rely on the prohibition order in relation to count #3 as proof of the fact that there was a weapons prohibition order made, as an element of count #3).
[41] For these reasons, I am satisfied beyond a reasonable doubt that Mr. Colmenares-Guevara had knowledge and control of the firearm in the hidden compartment in the centre console of the Mercedes SUV. Thus, I am satisfied beyond a reasonable doubt that on or about April 8, 2018 he had constructive possession of the firearm.
[42] It is not in dispute that the firearm was operable such that it falls within the definition of a firearm in s. 2 of the Criminal Code. It is not in dispute that it is a restricted firearm. It is not in dispute that Mr. Colmenares-Guevara was not the holder of a licence and registration to possess it. A firearms examination report and documentation were filed on consent to support each of these facts. Thus, the other elements of the s. 92(1) offence are proven.
Has the Crown proven count #2, being an occupant of a motor vehicle in which he knew there was a firearm, beyond a reasonable doubt?
[43] Count #2 alleges that on or about April 8, 2018, Mr. Colmenares-Guevara was an occupant in a motor vehicle in which he knew there was a firearm (i.e., the Mercedes leased in his name).
[44] The offence under s. 94(1) of the Criminal Code requires not only knowledge that a firearm is in the vehicle, but also that the defendant occupied the motor vehicle at the time they knew the firearm was there. In effect, this involves proof of three elements: (1) that a firearm was in the vehicle (or other items listed in s. 94(1)); (2) that the defendant knew that the firearm was in the vehicle; and (3) that the defendant was in the vehicle at the same time that the firearm was in the vehicle (knowing it was there). I note that in this case there is no suggestion that any of the exceptions to the prohibition in s. 94 apply.
[45] Based on my reasons above with respect to the knowledge element of possession, I am satisfied that when the firearm was in the motor vehicle (the Mercedes leased to Mr. Colmenares-Guevara), Mr. Colmenares-Guevara knew it was there. I am satisfied beyond a reasonable doubt that the firearm was in the vehicle at least on April 8, 2018, when the vehicle was seized by police and sealed. I am satisfied that the firearm was in the vehicle through the day on April 8, 2018 when the police did surveillance on the vehicle, and the only person who entered the vehicle was Ms Martin, and then only to move the vehicle over to a different parking space outside 375 Bleecker Street. As I have outlined above, it was agreed as a fact that Ms Martin not know the firearm was in the vehicle. This satisfied the first two elements of the offence for the date of April 8, 2018.
[46] Based on the evidence of the police surveillance conducted on April 8, 2018 (between approximately 10:30 a.m. and just after 6:00 p.m., when the search warrant was executed on the Bleecker Street apartment), I find that Mr. Colmenares-Guevara did not occupy the Mercedes SUV during that time. There is no evidence that he occupied it on April 8, 2018 at any other time. Thus, for April 8, 2018, I am not satisfied that Mr. Colmenares-Guevara occupied the Mercedes SUV at the same time as the firearm. Thus, the third element of the offence is not proven for the date of April 8, 2018. For this reason, I am not satisfied that for April 8, 2018, the Crown has proven all of the elements of the s. 94(1) offence.
[47] As count number #2 is drafted using the language “on or about April 8, 2018”, I also consider the previous dates where police surveillance shows that Mr. Colmenares-Guevara occupied the Mercedes SUV as the driver for significant periods of time (April 5 and 7, 2018, 2018). I am satisfied beyond a reasonable doubt that Mr. Colmenares-Guevara occupied the vehicle on those dates. There is extensive police evidence of him driving it. I am satisfied that the police correctly identified Mr. Colmenares-Guevara as the driver, based on their evidence of having seen a photo of him prior to commencing surveillance (and some of the officers keeping the photo with them in their vehicles during surveillance), and their evidence that during the surveillance he looked like the photo they had. That photo was entered as an exhibit at trial. Based on my own observations of Mr. Colmenares-Guevara on the video feed during the trial, I find that he still looks very much liked that photo. Thus, for the dates of April 5 and 7, 2018, I am satisfied beyond a reasonable doubt of the third element of the offence.
[48] The difficulty for the Crown is, that I am not persuaded beyond a reasonable doubt that the firearm was in the Mercedes SUV on April 5 and 7, 2018. I want to make clear my reasons for so finding. Based on the reasoning I have outlined above in relation to count #1, I accept that at the times the firearm was in the Mercedes SUV, that Mr. Colmenares-Guevara knew it was there (and that he had control of the firearm, and was responsible for putting it in the motor vehicle whenever it was there).
[49] But I am not satisfied beyond a reasonable doubt that at the times Mr. Colmenares-Guevara was observed by police driving (i.e., occupying) the Mercedes SUV on April 5 and 7, 2018, that the firearm was also in the vehicle. There are no observations of the firearm in the vehicle on those dates. The surveillance was not 24/7. Thus, there is the non-speculative possibility that Mr. Colmenares-Guevara put the firearm into the Mercedes SUV prior to April 8, 2018 (or earlier in the day on April 8, 2018, before the police surveillance started), but did not occupy the motor vehicle after he put it in (i.e., that he put the gun in, but did not get in the vehicle). Thus, I am not satisfied of the first element of the offence beyond a reasonable doubt, for the dates of April 5 and 7, 2018 (had I been satisfied of the first element, I would have been satisfied of the knowledge element, given my reasons above in relation to count #1).
[50] I have considered the inference that the nature of the hidden compartment and its location shows that it was designed to allow for the firearm to be in the vehicle when the driver (Mr. Colmenares-Guevara) was there, so it would be accessible to him, and the related inference that this supports that on the dates other than April 8, 2018 when Mr. Colmenares-Guevara was observed driving (occupying) the Mercedes SUV, the firearm was also in the vehicle. I accept that this is a reasonable inference. In fact, I think it is a very strong inference. But, in the context of all of the evidence, and the absence of evidence, I am not satisfied beyond a reasonable doubt that the Crown has proven that Mr. Colmenares-Guevara occupied the motor vehicle at the same time as the firearm on April 5 or 7, 2018, the dates that the police observed him driving the Mercedes SUV. This is a close call, but I am not persuaded beyond a reasonable doubt.
Has the Crown proven the counts #3 and #4, breach of prohibition order?
[51] Counts #3 and #4 relate to possession of the same firearm at issue in counts #1 and #2, in breach of two different firearms prohibition orders.
[52] The elements of the offence under s. 117.01(1) are possession of the firearm, proof of the order alleged to have been breached, and defendant’s knowledge of the existence of the prohibition order. As I have outlined with respect to count #1, I am satisfied beyond a reasonable doubt that Mr. Colmenares-Guevara possessed the firearm.
[53] The prohibition order and other supporting documentation with respect to count #3 were filed on consent as an exhibit. The defence made no submissions in relation to count #3 (other than the submission that possession was not proven beyond a reasonable doubt, which I have already dealt with above). I am satisfied beyond a reasonable doubt that when Mr. Colmenares-Guevara possessed the firearm on April 8, 2018, he was prohibited from doing so by reason of an order made on February 24, 2016, and knew that he was prohibited from doing so.
[54] Crown counsel did not file the documentation to support the prohibition order alleged in count #4. She invited me to find Mr. Colmenares-Guevara not guilty on that count.
Conclusion
[55] For these reasons, I find Mr. Colmenares-Guevara guilty of counts #1 and #3. I find him not guilty of counts #2 and #4.
[56] I reiterate my thanks to counsel for their assistance during the trial.
Justice J. Copeland
Released: October 15, 2020
COURT FILE NO.: CR-19-10000633
DATE: 20201015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DANYEL COLMENARES-GUEVARA
REASONS FOR JUDGMENT
Justice J. Copeland
Released: October 15, 2020
[^1] I say “behind” in the sense that sitting in the driver seat, from the driver’s perspective, the toggle was behind the hood release handle. Officer D’Angelo described it in his evidence as “in front of” the hood release latch, in the sense that it is closer to the front of the vehicle. The location of the toggle switch is clear from the photos filed as part of Officer D’Angelo’s evidence.
[^2] In coming to the conclusion that the cash at the Cardwell Avenue townhouse belonged to Mr. Colmenares-Guevara, I do not rely on the rental agreement that Detective Racette obtained from the property manager of the Cardwell Avenue complex. That document was marked as a lettered exhibit during the evidence of Detective Racette, pending further submissions about its admissibility, because the defence objected to its admissibility. It is clear that the Crown wanted to rely on the rental agreement for the truth of its contents – i.e., that Mr. Colmenares-Guevara was the legal tenant of the Cardwell Avenue townhouse. I am not satisfied that the Crown tendered it in a manner that made it admissible as a business record, either at common law or under the Canada Evidence Act.