Court File and Parties

COURT FILE NO.: CR-19-4-687 DATE: 20210122

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen – and – Daquon Dawkins

Counsel: Elizabeth Jackson, for the Crown Sevag Yeghoyan, for Daquon Dawkins

HEARD: December 7-11 & 14, 2020

Reasons for Judgment

P.J. Monahan J.

[1] Daquon Dawkins is charged with the following Criminal Code offences: unauthorized possession of a loaded restricted firearm, contrary to s. 95(1); possession of a restricted firearm knowing that he was not the holder of a required license and registration certificate, contrary to s. 92(1); and possession of a firearm while being prohibited from doing so, contrary to s. 117.01(1). These offences are alleged to have occurred on December 2, 2018.

[2] Based on information obtained from a confidential informant (“CI”) as well as various other investigations, police obtained warrants to search a motor vehicle and an apartment associated with Mr. Dawkins. Although the police did not find any contraband in the motor vehicle or the apartment, they did locate and seize a loaded restricted handgun in a backpack Mr. Dawkins was carrying. He was arrested and charged as described above.

[3] Mr. Dawkins argued that the information to obtain (the “ITO”) did not provide a sufficient basis for the issuance of the search warrants and, accordingly, the evidence seized was obtained in violation of his Charter rights and should be excluded at trial. At the conclusion of a voir dire, I ruled that the ITO did provide a sufficient basis for the issuance of the warrants and dismissed Mr. Dawkins’s application. I indicated that written reasons for this ruling would follow, and those reasons are set out below.

[4] At the trial proper, it was agreed that Mr. Dawkins had physical control of the handgun since it was in the backpack he was carrying. The sole issue was whether Mr. Dawkins had knowledge of the presence of the handgun in the backpack sufficient to establish he was in legal possession of it.

[5] The Crown tendered the evidence of the various police officers involved in surveillance of Mr. Dawkins, as well as his arrest and search on the evening of December 2, 2018. The officers described in some detail the manner in which they apprehended Mr. Dawkins and found the loaded handgun in the backpack.

[6] Mr. Dawkins testified in his own defence. His evidence was that the backpack belonged to a friend of his who had inadvertently left it in the trunk of the vehicle he had borrowed earlier that week. Mr. Dawkins was in the process of returning the backpack to his friend on the evening of December 2, 2018, when he was arrested and searched. Since he had no knowledge of the handgun, he was not legally in possession of it.

[7] For the reasons that follow, I find that the Crown has proven beyond a reasonable doubt that Mr. Dawkins was aware of the handgun in the backpack. Accordingly, he was in possession of the handgun, and I find him guilty of the offenses charged.

Validity of the Search Warrants

a. Police Investigation and Resulting Search Warrants

[8] In the fall of 2018, Toronto police commenced an investigation into Mr. Dawkins, after receiving information from a CI that he was engaged in drug trafficking activity and was in possession of a handgun.

[9] On the evening of November 30, 2018, a team of police officers conducting surveillance of Mr. Dawkins observed him exiting an apartment building at 320 Niska Drive and driving away in a Hyundai Elantra motor vehicle with license plate CCNV 727 (the “Target Vehicle” or the “Vehicle”). Mr. Dawkins drove to a nearby shopping plaza located on Albion Road where he parked and entered the plaza. Approximately half an hour later he left the plaza and drove to a townhouse on Sentinel Road. The police team was concerned that Mr. Dawkins was aware that he was under surveillance since he had made what they regarded as an unusual U-turn while driving on a residential street. Accordingly, police decided at that point to discontinue the surveillance.

[10] On the evening of December 1, 2018, one of the officers involved in the investigation returned to 320 Niska Drive in an effort to continue the surveillance of Mr. Dawkins. The officer saw the Target Vehicle parked in the visitor parking of the apartment building but did not observe Mr. Dawkins.

[11] On December 2, 2018, police prepared ITOs outlining the basis upon which they believed that Mr. Dawkins was illegally in possession of a handgun, including information obtained from the CI. Based on those ITOs, warrants were obtained to search unit 1212 of 320 Niska Drive (the “Target Address”) as well as the Target Vehicle.

b. Garofoli “Step 6”

[12] Given that the ITOs contained information obtained from a CI, the Crown provided defence counsel with heavily redacted versions in order to protect the identity of the CI. The Crown conceded that the redacted versions of the ITOs were insufficient to support the issuance of the warrants. Accordingly, the Crown proposed and defence counsel agreed to implement the “Step 6” procedure outlined in R. v. Garofoli, [1990] 2 S.C.R. 1421.

[13] Pursuant to Step 6, I was provided with the unredacted versions of the ITOs. The Crown prepared a proposed summary of the redacted portions of the ITOs with a view to providing sufficient information to allow the defence to effectively challenge whether they provided a legal basis for the issuance of the search warrants.

[14] With the consent of defence counsel, I conducted an in camera hearing with Crown counsel in order to review the proposed judicial summaries of the redacted portions of the ITOs. I identified certain redactions in the ITOs which I found to be unnecessary to protect the CI’s identity. I also modified certain of the Crown’s proposed summaries of the redacted parts of the ITOs to include additional information for the defence. I found that the judicial summaries as amended provided the defence with sufficient information regarding the excised material to challenge the ITOs in argument or by evidence, in accordance with the requirements for a judicial summary as outlined in R. v. Crevier, 2015 ONCA 619 at paras. 70-88. The amended judicial summaries were accepted by the Crown and provided to the defence.

b. Cross-Examination of ITO Affiant

[15] Counsel for Mr. Dawkins obtained leave to cross-examine the ITO affiant, Detective Constable Matthew Oliver (“DC Oliver”), with respect to certain aspects of his affidavit sworn in support of issuance of the warrants for the Target Vehicle and the Target Address.

[16] The ITOs had included information about an arrest of Mr. Dawkins that had taken place in April 2018. The ITO stated that police had obtained Criminal Code and Controlled Drugs and Substance Act (“CDSA”) search warrants for an address on Havenbrook Boulevard in the city of Toronto, believed to be Mr. Dawkins’s home address, and an Acura motor vehicle believed to belong to Mr. Dawkins. When police executed the search warrants, they located various quantities of cocaine, marijuana and Canadian currency at the Havenbrook address. Mr. Dawkins was charged accordingly.

[17] The ITO further stated that CPIC did not show these April 2018 charges and Mr. Dawkins’s last court date on the matter was in May 2018. The affiant stated it was his belief that these charges had been withdrawn; however, he could not confirm that at this time.

[18] DC Oliver was cross-examined as to how he had obtained this information and, in particular, whether he had spoken with police officers involved in this earlier investigation into Mr. Dawkins. DC Oliver stated that he had obtained the information regarding the April 2018 arrest and charges from a police database. A different team of police officers had been involved in the investigation and arrest of Mr. Dawkins in April 2018. DC Oliver did not recall whether he had spoken with any of those officers about their investigation. DC Oliver had not seen the warrant issued in connection with this incident, and was not aware of whether the police had been searching for a firearm in addition to drugs.

[19] The ITO had also stated that the Target Vehicle belonged to a numbered company located on Lepage Court in the city of Toronto. DC Oliver was asked whether he had undertaken any investigations into this numbered company or the associated address. He replied that he had not. DC Oliver indicated that the fact the Target Vehicle was owned by a numbered company suggested to him that the vehicle was a rental car. He did not believe the numbered company or the address on Lepage Court was relevant to the investigation.

[20] DC Oliver was also asked whether he had undertaken any further investigations in relation to the Target Address. He indicated that through a search of police databases, he had learned that when Mr. Dawkins had been released on bail in April 2018, his surety had resided at the Target Address. Police had also observed Mr. Dawkins leaving this address through their surveillance on November 30, 2018. This information was included in the ITO.

c. Governing Principles

[21] The Criminal Code provides for the issuance of a search warrant where the issuing justice is satisfied that there are reasonable grounds to believe that an offence has been committed and that there is evidence to be found at the place of the proposed search. The “reasonable grounds to believe” standard does not require proof beyond a reasonable doubt nor even proof on a balance of probabilities. Rather, what is required is a credibly-based probability. If the inferences of criminal conduct on the facts disclosed are reasonable, the warrant could be issued. R. v. Sadikov, 2014 ONCA 72 at para. 81.

[22] Warrants, as issued, are presumptively valid and the scope of warrant review is narrow. A warrant review is not an evidentiary hearing. Nor is the reviewing justice required or permitted to substitute their own views for those of the issuing justice. The mandate of the reviewing justice is limited to assessing whether, on the basis of the ITO provided, the authorizing justice could have issued the warrant. The issue, then, is whether there was sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds that an offence has been committed and that evidence of the offence can be found at the search location. Sadikov at para. 84.

[23] There is a duty on the affiant to provide full, fair and frank disclosure so that the issuing justice can make an informed decision as to the existence or lack thereof of reasonable and probable grounds. The reviewing court must exclude erroneous information included in the original ITO and may also consider additional evidence adduced on the voir dire to correct minor errors in the ITO. Amplification evidence corrects good faith errors of the police in preparing the ITO but does not extend to deliberate attempts to mislead the authorizing judge. R. v. Morelli, [2010] 1 S.C.R. 253 at para. 41. At the same time, inaccuracies in the ITO, on their own, are not a sufficient basis on which to ground a finding of bad faith or an intent to mislead. Sadikov at para. 87.

[24] Where a search warrant relies on information provided by a CI, it is necessary to assess the reliability of that information based on the three factors identified in R. v. Debot, [1989] 2 S.C.R. 1140 at p. 1168: namely, whether the information was compelling, whether it was corroborated and whether the CI was credible. The three Debot factors are to be assessed as a whole such that weaknesses in one or more of the factors may, to some extent, be compensated for by strengths in the others. Crevier at para. 107.

[25] Where information provided by a CI is excised from a redacted version of the ITO, the accused must be provided with a judicially approved summary of the excised material so as to be able to challenge the ITO’s sufficiency in argument or by evidence. However, as Watt J.A. held in R. v. Reid, 2016 ONCA 524 at para. 90, a judicial summary “need only make the accused aware of the nature of the redacted material, not its substance and not its details.” The judicial summary eschews detail precisely because of the need to protect informer privilege.

d. Challenge to Sufficiency of the ITOs in this Case

[26] Mr. Dawkins challenges the sufficiency of the ITOs on the following grounds:

i. the judicial summary does not provide sufficient details with respect to the nature of the redacted material to enable him to effectively challenge the issuance of the search warrants;

ii. the Debot criteria have not been satisfied in this case. For example, the police did not undertake sufficient investigations so as to link Mr. Dawkins to the Target Address or the Target Vehicle. Nor did the police ever observe Mr. Dawkins with a gun or doing anything illegal; and

iii. the ITO did not indicate whether the CI in this case was the same CI relied upon for the issuance of the search warrants which led to Mr. Dawkins’s arrest in April 2018. If the same CI had been used in the earlier investigation, that CI may have provided false information since no firearm was found when Mr. Dawkins was arrested in April 2018. The fact that the CI may have provided false information in relation to Mr. Dawkins on an earlier occasion should have been brought to the attention of the issuing justice.

[27] I consider each of these objections in turn.

i. Sufficiency of the Judicial Summary

[28] Mr. Dawkins argues that the judicial summary does not provide him with sufficient details about the material that has been excised from the ITO. For example, he does not know whether the CI had a criminal record and whether any such criminal record includes crimes of dishonesty. Mr. Dawkins also does not know whether the CI is part of the drug and gun subculture and should therefore be regarded as unreliable.

[29] I would not give effect to this objection. In my view, the judicial summary, considered along with the redacted ITO and the case disclosure, provided Mr. Dawkins with a meaningful basis upon which he could challenge whether the affiant was full, frank and fair, as well as whether the source information was compelling, corroborated and credible.

[30] In particular, the judicial summary and the redacted ITO disclosed the following:

1. the issuing justice was provided with detailed information regarding Mr. Dawkins’s possession of a firearm, and his involvement in other criminal activity;
2. the issuing justice was made aware of whether the information provided by the CI was first-hand or second-hand, and the dates on which the CI provided information to the police handler;
3. the issuing justice was informed as to the steps that had been taken by the police to corroborate the information provided by the CI;
4. the issuing justice knew whether the CI had a criminal record, whether that record included crimes of dishonesty, and whether the CI was implicated in the drug and gun subculture;
5. the issuing justice was told whether the CI had provided information to police in the past and whether that information had proven reliable.

[31] The judicial summary does not provide the details of the information provided by the CI but, as is noted in Reid, there is no requirement that it do so. In my view, the judicial summary in combination with the redacted ITO provided Mr. Dawkins with sufficient information regarding the nature of the redacted material so as to enable his counsel to challenge its sufficiency either by evidence or argument.

ii. Whether the Debot Criteria Have Been Satisfied in this Case

[32] A review of the unredacted ITO indicates that there were reasonable and probable grounds to issue the warrants in this case. The warrant is based on information from a source which was compelling, as it described in some detail observations of Mr. Dawkins in possession of a firearm. These observations were recent.

[33] Police had been able to corroborate significant aspects of the information provided by the CI. The CI had also proven to be reliable in the past, and it was therefore open to the issuing justice to conclude that the information provided was credible.

[34] In the course of their investigation, police had obtained information linking Mr. Dawkins with the Target Address as well as the Target Vehicle, including through their search of police databases and their surveillance. There were thus reasonable grounds to believe that evidence of Mr. Dawkins’s possession of a firearm would be found at one or both of the locations to be searched.

[35] The ITO provided full, fair and frank disclosure of the information that had been obtained by the police. In particular, the ITO included information which might have tended to suggest to the issuing justice that the warrant should not issue. For example, the affiant disclosed his belief that the April 2018 charges against Mr. Dawkins had been withdrawn. The ITO also disclosed the fact that the registered owner of the Target Vehicle was a numbered company, with no apparent link to Mr. Dawkins. The ITO included negative features of the CI which were relevant to an assessment of his/her credibility.

[36] The three Debot factors are to be assessed as a whole. The information provided was compelling, a significant amount of it had been corroborated, and there was a sufficient basis for concluding that the information provided was credible. I therefore find that the Debot criteria were satisfied in this case.

iii. The Possibility That the Same CI Was Used in the April 2018 Investigation and Arrest of Mr. Dawkins

[37] Mr. Dawkins argues that it is possible that the same CI relied upon for the issuance of the warrants in this case may have been utilized in the investigation that led to the April 2018 charges against Mr. Dawkins. Mr. Dawkins further argues that it is possible that the CI provided false or incorrect information to police in that earlier investigation since, when Mr. Dawkins was arrested in April 2018, he was not in possession of a firearm. Mr. Dawkins argues that information about the CI’s past history of providing false information regarding Mr. Dawkins should have been provided to the issuing justice, since it was relevant to her determination of whether to issue the search warrants.

[38] I find that these objections are based on speculation and conjecture. There is no evidence indicating that the CI relied upon in order to obtain the warrants in this case had been utilized in the April 2018 investigation into Mr. Dawkins. Moreover, even if the same CI had been utilized in both cases, there is no evidence that any information that might have been provided in the earlier investigation was false. Mr. Dawkins was in fact charged with certain offences as a result of that investigation. Although the charges were withdrawn, the reasons for that are unknown.

[39] Having heard from the affiant, DC Oliver, I accept his evidence that he provided full, fair and frank disclosure with respect to his knowledge of the April 2018 matter. He had obtained information regarding this matter from a police database. He did not review the ITOs or the search warrants issued in April 2018. I am satisfied that DC Oliver had no way of knowing whether the same CI had been involved in the two investigations.

[40] I have already found that the information provided in the ITOs was sufficient to support the issuance of the search warrants in this case. The affiant fully disclosed what he knew in relation to the April 2018 matter. The suggestion that the same CI was involved in the earlier investigation and, further, that the CI provided false information in the course of that investigation, is entirely speculative. Such speculation cannot serve to undermine the legal sufficiency of search warrants which in all other respects were validly issued.

[41] Mr. Dawkins does not allege that any other of his Charter rights were violated at the time of his search and arrest. The evidence relating to the firearm and ammunition was therefore lawfully seized pursuant to valid search warrants and is admissible at trial.

Trial Proper

a. Crown Case

[42] The Crown tendered evidence from the team of police officers involved in the investigation and arrest of Mr. Dawkins: namely, DC Oliver, DC Robert Stolf, DC Pooya Ebrahimi, DC Robert Black and DC Alan Racette.

[43] All five officers attended at 320 Niska Drive on the evening of November 30, 2018, to undertake surveillance of Mr. Dawkins. At 9:57 p.m., Mr. Dawkins was observed exiting the building and entering the Target Vehicle. He then drove in a southwesterly direction and at approximately 10:15 p.m. parked at a small shopping plaza located at 385 Albion Road. He remained at the plaza for about 25 minutes.

[44] At approximately 10:42 p.m., Mr. Dawkins exited the Plaza and drove south on Weston Road before heading eastbound on the 401. He exited the 401 at Keele Street, and drove north on Keele Street to Grandravine Drive. He turned left or west onto Grandravine Drive and then took the first right, north onto Derrydown Road.

[45] As Mr. Dawkins was driving north on Derrydown Road, DC Stolf observed him stop, do a U-turn, and then begin driving south. Mr. Dawkins stopped again for a brief moment before resuming driving southbound on Derrydown Road back to Grandravine Drive. He turned right or west on Grandravine and continued to Sentinel Road, where he turned right or north. Mr. Dawkins was observed turning into a townhouse complex at 182 Sentinel Road.

[46] Because of what officers regarded as the unusual U-turn made by Mr. Dawkins on Derrydown Road, they were concerned that he might have been attempting to ascertain whether he was being followed. The police decided to discontinue their surveillance at that time.

[47] The following evening, DC Ebrahimi returned to 320 Niska Road in an attempt to resume surveillance of Mr. Dawkins. When he arrived at the location at approximately 8:30 p.m. he did not observe the Target Vehicle or Mr. Dawkins. DC Ebrahimi left briefly to attend to other police matters. When he returned to 320 Niska Road at approximately 9:30 p.m., he saw the Target Vehicle parked in the visitors’ section of the parking lot. It was unoccupied. He continued surveillance for approximately an hour but did not observe Mr. Dawkins. DC Ebrahimi left at approximately 10:30 p.m.

[48] As previously described, on December 2, 2018, warrants were obtained for a search of the Target Location and the Target Vehicle. The police team returned to 320 Niska Road at approximately 7 p.m. in order to execute the warrants. Three of the officers (Oliver, Ebrahimi and Racette) were in an unmarked van parked immediately beside the Target Vehicle. DC Black was in another unmarked vehicle elsewhere in the parking lot, while DC Stolf was in a third unmarked vehicle nearby.

[49] At approximately 8:17 p.m., a black male exited 320 Niska Drive and began walking in the direction of the Target Vehicle. He was wearing a backpack and was carrying a large black plastic garbage bag in one hand. As he approached the Target Vehicle, Ebrahimi and Racette recognized this individual as Mr. Dawkins, and so informed the other members of the team who were nearby. Mr. Dawkins popped open the trunk of the Target Vehicle using a key fob and put the garbage bag in the trunk. He then walked around the driver’s side and opened the driver’s door. As he was leaning into the vehicle, the three officers in the unmarked van jumped out, identified themselves as police, and proceeded to apprehend Mr. Dawkins.

[50] DC Racette testified that as he approached, Mr. Dawkins briefly attempted to run past him as if to flee. There was a brief struggle and Mr. Dawkins was taken to the ground by DC Ebrahimi. After a few seconds, the team of officers was able to handcuff Mr. Dawkins to the rear and helped him back onto his feet.

[51] Once he was handcuffed, the police officers observed that, in addition to a black Versace brand backpack with the straps over both of his shoulders, Mr. Dawkins was also wearing a black Ferrari brand satchel draped across his upper body. The officers wanted to remove the backpack and the satchel to search them but could not do so while Mr. Dawkins’s arms were handcuffed to the rear. Because of the earlier struggle in restraining Mr. Dawkins, the officers did not feel it was safe to undo the handcuffs in order to remove the backpack and satchel. DC Stolf testified that he used a knife to cut both straps of the backpack as well as the strap securing the satchel so that these items could be safely removed and searched.

[52] DC Stolf searched the black Versace brand backpack. Inside the main compartment he observed a blue shopping bag containing a child’s toque. Underneath the blue bag he observed a white sports sock. The sock was heavy and, by its shape, it appeared to DC Stolf that it may contain a firearm. DC Stolf peeled back the sock and observed a silver-coloured semiautomatic handgun. DC Stolf proceeded to prove the handgun safe and observed that the magazine contained ammunition. There was also a bullet in the chamber such that the handgun was ready to be fired. DC Stolf was unable to locate a make or serial number on the firearm, although he did observe a logo with a skull on the handle.

[53] The main compartment of the Versace backpack also contained some toiletries, while a front pocket of the backpack contained condoms, a medallion, a Tide stick and a cell phone accessory. The black Ferrari satchel contained a black Samsung cell phone which appeared to be broken and a small amount of Canadian currency. There was no identification of any kind in either the Versace backpack or the Ferrari satchel.

[54] As a result of the seizure of the handgun in the backpack, Mr. Dawkins was arrested for unauthorized possession of a firearm, cautioned and advised of his rights to counsel.

[55] The officers proceeded to search the Target Location. When they knocked on the door of the apartment, an elderly female answered. She identified herself as the grandmother of Mr. Dawkins’s girlfriend. She was cooperative and allowed the officers to conduct the search without incident. There was a small child sleeping in one of the bedrooms who did not awaken while officers were present. In the course of the search, an adult female who identified herself as the mother of the sleeping child and Mr. Dawkins’s girlfriend arrived at the apartment. She, too, proved cooperative.

[56] In one of the bedrooms of the apartment, police found a letter addressed to Mr. Dawkins from a local hospital. They also found some men’s underwear in one of the bedrooms. However no contraband and nothing else of significance was found in the Target Location.

[57] After completing the search of the Target Location, the police officers searched the Target Vehicle. Inside the garbage bag that Mr. Dawkins had placed in the trunk of the vehicle, DC Ebrahimi found some clothing and a small framed picture. DC Ebrahimi stated that most of the clothing was an adult male’s, although some of it was suitable for an infant. There was a car seat in the back seat of the Target Vehicle.

[58] Nothing of consequence was located in the search of the vehicle.

b. Agreed Facts

[59] It is agreed that the semiautomatic handgun found in the Versace backpack is a “Restricted Firearm”, and the ammunition that was loaded in the handgun is “Ammunition”, both as defined in s. 84 of the Criminal Code. It is also agreed that at the time of Mr. Dawkins’s arrest, he was subject to a s. 109 order prohibiting him from possessing a firearm.

[60] The handgun found in the backpack was tested for DNA evidence. It is agreed that, although DNA was recovered from the firearm, experts from the Centre of Forensic Sciences were unable to determine whose DNA was recovered.

c. Defence Case

i. Evidence in Chief

[61] Mr. Dawkins testified in his own defence. He is 27 years old. He was born in Jamaica and came to Canada with his mother and uncle when he was 12 years old. He has a criminal record which includes 2013 convictions for unauthorized possession of a firearm and for armed robbery using a restricted or prohibited firearm.

[62] Mr. Dawkins testified that in December 2018 he was living with his mother in the Don Mills area of Toronto. However, he also spent time significant amounts of time with his daughter, who lived with her mother, AD, in apartment 1212 at 320 Niska Drive. Mr. Dawkins would often spend nights there. Moreover, when he was released on bail following his arrest in April 2018, his surety was AD’s grandmother, who also lives in apartment 1212 at 320 Niska Drive. However, Mr. Dawkins says that the only clothing he left at the Niska Drive apartment was a single pair of underwear.

[63] Mr. Dawkins stated that he never used the Niska Drive apartment as his mailing address. The only mail he received at that address was a letter from a local hospital regarding an ambulance bill he had received when his daughter was taken to hospital following his arrest on April 1, 2018. He might have also received some mail from his lawyer at the Niska Drive address.

[64] Mr. Dawkins testified that the Vehicle belonged to a friend of his, Jason Adams. Mr. Dawkins had borrowed the Vehicle from Mr. Adams on Thursday, November 29, 2018 so that AD could use it for a driver’s test she had scheduled for December 1, 2018, and that he intended to return it on the Sunday when he was planning on returning to his mother’s.

[65] Mr. Dawkins said that he had known Mr. Adams since he was about 14 or 15 years old. Mr. Dawkins was in the same grade as Mr. Adams’s sister, while Mr. Adams was about three or four years older. Mr. Dawkins knew Mr. Adams’s family, including his mother, and that the Adamses generally had a full house. Mr. Dawkins said that if he needed a car most likely he would borrow one from Mr. Adams. Mr. Dawkins said that AD offered to pay Mr. Adams for the car but Mr. Adams just allowed him to borrow it.

[66] On the evening of November 30, 2018, Mr. Dawkins was going to meet up with Mr. Adams and go to a party. He left the Niska Road apartment about 10 p.m. that night and called Mr. Adams. Mr. Adams told him he was not ready to be picked up and so Mr. Dawkins went to a barbershop in the shopping plaza at 385 Albion Road in order to get something to eat.

[67] Mr. Dawkins then drove to Mr. Adams’s home at 182 Sentinel Road. On his way there he made a wrong turn on Grandravine Drive which is why he made the U-turn observed by police on Derrydown Road. Mr. Dawkins said he had no idea he was being followed by police and was not attempting to evade their surveillance.

[68] When he arrived at 182 Sentinel, Mr. Dawkins gave the car keys to the Vehicle to Mr. Adams, since it was his car. Mr. Dawkins spent about 45 minutes at the Adamses’ townhouse. Mr. Adams then drove the two of them along with a friend to the party. Mr. Dawkins was wearing his Ferrari brand satchel that evening. He did not observe either Mr. Adams or the other passenger put any bags or belongings into the Target Vehicle.

[69] When they left the party at about 2:30 a.m., Mr. Adams was drunk so Mr. Dawkins drove them back to Mr. Adams’s home. Mr. Dawkins then drove the Vehicle back to AD’s apartment at 320 Niska Drive where he spent the night.

[70] The next morning, AD woke him up and told him that his phone kept ringing. When Mr. Dawkins looked at his phone, he saw a bunch of missed calls and texts from Mr. Adams. Mr. Dawkins messaged Mr. Adams back, saying “Yo what’s up”. He then called Mr. Adams back. Mr. Adams said he left “his shit” in the car. Mr. Dawkins asked him “what shit”. Mr. Adams said he left his knapsack in the trunk of the car. Mr. Dawkins said AD was going to use the car that day for her driving test. He said he was going to be home all day and that Mr. Adams could come by to pick up his knapsack anytime. Mr. Dawkins did not ask what was in the knapsack.

[71] Before AD left for her driving test, Mr. Dawkins asked her to look in the trunk of the car and see if there was a knapsack left there. She found the knapsack in the trunk and brought it back up to the apartment. Mr. Dawkins did not look in the knapsack but simply put it in the apartment closet near the front door.

[72] Mr. Dawkins remained at the apartment all day Saturday taking care of his young daughter. After AD had successfully completed her driving test, she brought back some food for lunch. AD had to go to work that afternoon. She begged Mr. Dawkins to allow her to use the car since she had passed her driving test. Mr. Dawkins agreed that she could take the car. AD drove the car to her work and returned that evening. AD’s grandmother made dinner and they stayed home for the evening. Mr. Adams did not come over and retrieve the knapsack.

[73] Mr. Dawkins remained at the Niska Drive apartment all day on Sunday, December 2, 2018. That evening, he was returning to his mother’s house in Don Mills to have dinner and do some laundry. Mr. Adams lived nearby so on his way to his mom’s, he planned to return the knapsack that Mr. Adams had been so eagerly calling him about the day before. In addition to the knapsack, Mr. Dawkins had some of his daughter’s clothing that he intended to launder back at his mother’s.

[74] Mr. Dawkins had a green garbage bag with his daughter’s clothing which he put in the trunk of the Vehicle, since it would be uncomfortable to put it in the car. He then walked around to the driver’s side of the Vehicle at which point he was surrounded by police and arrested. He was shocked and did not attempt to flee. He had never looked in the knapsack and did not know that there was a firearm inside.

[75] Mr. Dawkins said that just after his arrest in December 2018 he spoke to Mr. Adams. He tried to contact him after that but hasn’t spoken with or heard from him.

ii. Cross-Examination

[76] In the course of his cross-examination, Mr. Dawkins was asked how often he would sleep over at AD’s apartment on Niska Drive. Mr. Dawkins said that “it depends”. Sometimes he would spend time there if AD was working and there was no one to look after his daughter. At other times he might take his daughter back to his mother’s in Don Mills. He might sleep at Niska Drive one night a week, sometimes two nights, and sometimes three. However apart from a single pair of men’s underwear, he did not keep any clothing there. On the evening of December 2, 2018, the garbage bag that he was carrying out to the car only had his daughter’s clothes and did not have any of his own clothing.

[77] Mr. Dawkins was asked about his relationship with Jason Adams. He indicated that when he first met Mr. Adams he did not interact with him very much. However when they were older he began to interact with him more. Mr. Dawkins was asked how often he had spoken to Mr. Adams in the last five years. Mr. Dawkins indicated that the last time they spoke was at the time of his arrest in December 2018.

[78] Mr. Dawkins was asked about the conversation he had with Mr. Adams just after his arrest and, in particular, whether they discussed the fact that Mr. Adams had left a loaded handgun in a knapsack in the trunk of the Vehicle. Mr. Dawkins stated that in the conversation he had with Mr. Adams shortly after his arrest, he did not say anything about the handgun, nor did Mr. Adams mention it. Mr. Dawkins then indicated that his conversation with Mr. Adams was actually a three-way call involving his girlfriend, AD. It was a short conversation lasting about three minutes. Mr. Dawkins then further explained that he himself did not actually speak directly with Mr. Adams. Rather, he spoke to AD and told her to tell Mr. Adams that he could pick up his car by calling Mr. Dawkins’s lawyer. However, he does not believe that Mr. Adams ever called his lawyer, nor did he ever pick up his car.

[79] Mr. Dawkins said it was possible that Mr. Adams’s phone number might be stored as a contact in his phone. If so, Mr. Adams might be identified by his first initial “J”.

[80] Mr. Dawkins was asked to describe the conversation he had with Mr. Adams on the morning of December 1, 2018, when AD woke him up and told him that his phone was ringing. When Mr. Dawkins saw the missed calls from Mr. Adams, he called him back. The first thing they spoke about was the fact that Mr. Adams had been drunk the night before. Mr. Adams then said he had left his knapsack in the trunk of the car. Mr. Dawkins told Mr. Adams that AD would be using the car that day for her driving test, but that Mr. Dawkins would be home all day and Mr. Adams could come by anytime to pick up the knapsack. Mr. Dawkins never asked Mr. Adams what was in the knapsack.

[81] Once he got off the phone, Mr. Dawkins told AD to go down to the car and bring the knapsack back up to the apartment before she left for her driving test. However, Mr. Adams never asked Mr. Dawkins to retrieve the backpack from the trunk before AD left for her driving test. Nor did Mr. Adams ever call again about the knapsack or come by to pick it up.

[82] Mr. Dawkins testified that on the evening of December 2, 2018, his plan was to return the knapsack to Mr. Adams, who lived less than 10 minutes away, and then drive over to his mother’s house to have dinner and do laundry. However, if Mr. Adams wanted the car back, he would have left it with him. In that event, he would have expected Mr. Adams to give him a ride back to his mother’s house in Don Mills.

[83] Mr. Dawkins testified that when he was arrested, the officers cut off straps to the backpack but they did not cut the strap to the satchel. He was asked how the satchel had been removed, given that he was handcuffed to the back and the officers believed that the only way to remove the satchel was to cut off the strap. Mr. Dawkins said maybe the officers had taken off the handcuffs in order to remove the satchel, but he did not remember that happening. Mr. Dawkins then suggested that perhaps the satchel was removed by simply raising it over his head. Mr. Dawkins remembers that the strap to the satchel was not cut but he cannot remember how it was removed.

Applicable Legal Principles

a. Proof Beyond a Reasonable Doubt

[84] Mr. Dawkins is presumed innocent of the charges brought against him and this presumption stays with him unless and until the Crown proves his guilt beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts.

[85] A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in the trial. It is a doubt based on reason and common sense that arises logically from the evidence or absence of evidence. It is therefore not enough for me to believe that Mr. Dawkins is probably or likely guilty. In that circumstance, I am required to give the benefit of the doubt to Mr. Dawkins and acquit him because the Crown would have failed to satisfy me of his guilt beyond a reasonable doubt.

[86] I also recognize that proof beyond a reasonable doubt is not proof to an absolute certainty. But the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I recognize that I must consider all the evidence and be sure that Mr. Dawkins committed an offence with which he is charged before I can be satisfied of his guilt beyond a reasonable doubt.

b. Proving Possession in This Case

[87] Possession requires both knowledge and control of the thing being possessed. (See s. 4(3) of the Criminal Code). However in this case, it is acknowledged that Mr. Dawkins had physical control of the handgun since it was in a backpack he was carrying. Thus, the only issue is whether the Crown has proven beyond a reasonable doubt that Mr. Dawkins knew about the handgun in the backpack.

[88] As Mr. Dawkins testified and provided an exculpatory account, the approach set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742 applies in assessing whether or not the Crown has proven Mr. Dawkins’s guilt beyond a reasonable doubt. As such, if I believe the evidence of Mr. Dawkins that he did not know about the gun in the backpack he was carrying, I must find him not guilty. Second, even if I do not believe the testimony of Mr. Dawkins but his testimony leaves me with a reasonable doubt as to whether or not he knew about the gun in the backpack, I must find him not guilty. Third, even if Mr. Dawkins’s testimony does not leave me with any reasonable doubt as to his guilt, I must still consider whether the evidence I do accept satisfies me of his knowledge of the gun beyond a reasonable doubt.

[89] The Crown’s case on this point relies entirely on circumstantial evidence. Therefore, in order to convict, I must be satisfied beyond a reasonable doubt that Mr. Dawkins’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 and 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. Dawkins not guilty. R. v. Villaroman, [2016] 1 S.C.R. 1000 at para. 32. That said, the Crown need not disprove “every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”. Villaroman at para. 37 (citing R. v. Bagshaw, [1972] S.C.R. 2 at p. 8).

Assessing Mr. Dawkins’s Evidence

[90] I do not believe Mr. Dawkins’s evidence that he did not know about the handgun in the knapsack. His evidence was vague and internally contradictory. Moreover, I am satisfied that significant parts of his testimony included deliberate lies. His account of how he came to have a loaded firearm in the backpack, and his explanation as to how he could have been unaware of the firearm, is simply not credible.

[91] The considerations that lead me to reject Mr. Dawkins’s evidence include the following:

i. Mr. Dawkins’s claim that the Vehicle really belonged to Jason Adams and that he had merely borrowed it so that his girlfriend AD could take a driving test was internally contradictory and not credible. Mr. Dawkins’s initial evidence was that he had borrowed the Vehicle on the Thursday night so that AD could take a driving test on the Saturday. He said his plan was to return the Vehicle to Mr. Adams when he returned to his mother’s home on Sunday night.

However, on cross-examination Mr. Dawkins’s evidence was that on Sunday night he was planning on dropping off the knapsack at Mr. Adams’s, but not to return the car. Instead he was going to drive back to his mother’s where was going to have dinner and do some laundry. Contrary to his initial evidence, by the Sunday evening Mr. Dawkins did not seem to have any plan or intention of returning the vehicle to Mr. Adams.

Upon further questioning, Mr. Dawkins altered his position yet again and claimed that if Mr. Adams wanted the car back on the Sunday night, he would have left it with him but would have expected Mr. Adams to have driven him to his mother’s. The difficulty with this further explanation was that Mr. Dawkins did not seem to have discussed with Mr. Adams whether he was going to return the vehicle on the evening of December 2, 2018. In fact, there did not seem to be any arrangement for Mr. Dawkins to return Mr. Adams’s car. Nor had Mr. Dawkins discussed the idea of Mr. Adams driving him to his mother’s, a drive of approximately 25 minutes each way.

Mr. Dawkins’s account of his telephone conversation with Mr. Adams following his arrest is also inconsistent with the suggestion that the Vehicle belonged to Mr. Adams. Mr. Dawkins claimed that he told Mr. Adams that he could retrieve the Vehicle through his lawyer. However, Mr. Adams never acted on this suggestion. This is a further indication that the Vehicle did not belong to Mr. Adams.

I therefore do not accept Mr. Dawkins’s evidence that he borrowed the Target Vehicle from Jason Adams. I am satisfied that his account of how he came to have the Vehicle in his possession is deliberately false.

ii. Mr. Dawkins’s evidence that he was unaware of or unconcerned about possible police surveillance as he was driving to Mr. Adams’s townhouse on the evening of November 30, 2018, is not credible. Mr. Dawkins claimed that he turned off Grandravine Road onto Derrydown Road by mistake, thinking he was turning onto Sentinel Road. Once he realized his mistake, he did a U-turn and went back down to Grandravine. But Mr. Dawkins acknowledged that he continued on Derrydown until he was approaching a school. Based on the Google map of the area shown at trial, this meant that he would have had to travel three or four blocks on Derrydown before making the U-turn. Yet Mr. Adams’s townhouse at 182 Sentinel was very close to Grandravine. Thus, Mr. Dawkins’s claim that he was unaware of making a wrong turn onto Derrydown until he had travelled three or four blocks is simply not credible.

I reject Mr. Dawkins’s evidence on this point and find that he turned onto Derrydown and then made a U-turn back down to Grandravine in order to detect and/or evade police surveillance.

iii. Mr. Dawkins’s account of his December 1, 2018 conversation with Mr. Adams about the backpack having been left in the Vehicle the night before is not credible. Although Mr. Adams had apparently left a loaded handgun in the trunk of the Vehicle the night before, the first thing he and Mr. Dawkins spoke about on the phone the following morning is how drunk Mr. Adams was the night before. Mr. Adams then told Mr. Dawkins that he left his backpack in the trunk of the car. However, Mr. Adams did not mention that there was a loaded handgun in the backpack. Nor did he say he was going to come over and get the backpack, despite the fact that he lived less than 10 minutes away and that he had been calling repeatedly earlier that morning about the backpack.

iv. What is also odd about this conversation is Mr. Dawkins’s claim that he told Mr. Adams that AD was going to be using the Vehicle for a driving test that day. Mr. Adams did not express any concern about this plan, even though, unbeknownst to either Mr. Dawkins or AD, there was a loaded handgun in the trunk of the car. Nor did Mr. Adams instruct Mr. Dawkins to retrieve the backpack from the vehicle before AD left for the driving test. (Mr. Dawkins said that he instructed AD to retrieve the backpack after he got off the phone with Mr. Adams, but that was not discussed during their call.) So as far as Mr. Adams was concerned, not only had he left the backpack containing a handgun in the trunk of the Vehicle, but now AD was going to take the car for a driving test completely unaware of the presence of the handgun. This account is simply unbelievable.

v. Equally puzzling is the fact that, for the next 36 hours, Mr. Adams made no attempt to retrieve the backpack. Mr. Dawkins told Mr. Adams that he would be home all day Saturday and that Mr. Dawkins could come by anytime to get the backpack. Not only did Mr. Adams not come over on the Saturday, he made no further contact of any kind regarding the backpack. Apparently, Mr. Adams no longer had any particular concern about retrieving the backpack.

vi. It is an accepted matter of common sense that an illegal handgun is valuable, difficult to obtain and dangerous. As such, it is reasonable to infer that persons who possess illegal handguns either keep them in a secure location or, if they entrust them to someone else, ensure that that person is aware of the firearm and can be trusted with its safekeeping. In both R. v. Bonilla-Perez, 2016 ONCA 535 at para. 16, and R. v. Thompson, 2020 ONCA 361 at paras. 10 to 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." For a recent application of this common-sense inference, see R. v. Brown, 2020 ONSC 4888. For this reason, Mr. Dawkins’s claim that Mr. Adams did nothing to retrieve the backpack while also not informing Mr. Dawkins of the presence of a handgun in it is entirely implausible. I conclude that Mr. Dawkins’s account of their conversation is a fabrication.

vii. I also reject Mr. Dawkins’s account of his claimed conversation with Mr. Adams immediately following his arrest. By this time, Mr. Dawkins had become aware of the fact that he had been charged with possession of a loaded handgun that actually belonged to Mr. Adams. Yet Mr. Dawkins apparently made no complaint of any kind about the fact that he was facing substantial jail time as a result of the conduct of Mr. Adams. Instead, Mr. Dawkins was merely calling to arrange to have Mr. Adams retrieve his Vehicle by calling his lawyer. I find that Mr. Dawkins’s account of this conversation with Mr. Adams to be a fabrication.

viii. Generally, Mr. Dawkins was vague, evasive and combative in his evidence. He also refused to acknowledge matters that seemed obvious. For example, he insisted that the police had not cut the strap on the Ferrarri satchel in order to remove it at the time of his arrest. Yet he was unable to explain how the police had been able to remove the satchel given the fact that his hands were cuffed behind his back. What was odd about his evidence on this issue was that nothing of significance was found in the satchel, and Mr. Dawkins conceded that police had cut off the straps to the backpack he had been carrying. Yet for some reason that is not entirely clear Mr. Dawkins insisted repeatedly that the strap on the satchel had not been cut.

[92] I therefore reject the evidence of Mr. Dawkins and I find that his testimony does not leave me with a reasonable doubt of his guilt in relation to the offences charged.

Assessing the Crown’s Case

[93] Even having rejected Mr. Dawkins’s evidence and finding that it does not leave me with a reasonable doubt, I must nevertheless determine whether, based on evidence which I do accept, the Crown has proven Mr. Dawkins’ guilty of the offences charged beyond a reasonable doubt.

[94] As discussed above, there is no dispute that Mr. Dawkins had physical control of the handgun since it was in a backpack he was carrying. The only issue is whether the Crown has proven beyond a reasonable doubt that Mr. Dawkins was aware of the firearm.

[95] Loaded firearms are difficult to obtain, valuable and dangerous. They can cause injury or death not only to others but to persons who have them in their possession. Absent appropriate authorization, possessing them is also illegal, constituting an offence that carries significant criminal sanctions including imprisonment. It is a matter of common sense to infer that a person carrying a loaded firearm in a backpack is aware of it.

[96] The circumstances surrounding Mr. Dawkins’s arrest support the inference that he was in fact aware of the handgun in the backpack. DC Racette stated that as he approached Mr. Dawkins with a view to arresting him, the latter briefly attempted to run past him as if to flee. Although DC Racette prevented any such attempt, Mr. Dawkins resisted, struggled with the officers, and had to be taken to the ground in order to be restrained. Because of the difficulty involved in arresting Mr. Dawkins, the arresting officers decided that it was not safe to remove the handcuffs from Mr. Dawkins in order to properly search the backpack and the satchel. They therefore cut off the straps to both the backpack and the satchel.

[97] I accept the evidence of DC Racette and the other arresting officers as to the fact that Mr. Dawkins briefly attempted to flee and resisted arrest. I further accept their evidence that they concluded that it was unsafe to remove the handcuffs from Mr. Dawkins in order to search the backpack and the satchel, and instead decided to cut off the straps to both items. These circumstances support the common sense inference described above, such that Mr. Dawkins was in fact aware of the fact that he was carrying a loaded firearm in his backpack.

[98] For the reasons explained earlier, I reject Mr. Dawkins’s evidence that the handgun actually belonged to Mr. Adams. Nevertheless, even if Mr. Adams was the owner of the firearm and had inadvertently left it in the backpack, I find that he would have disclosed this fact to Mr. Dawkins. Precisely because handguns are valuable, dangerous and illegal, persons do not leave them in the possession of someone else unless they are confident that the other person will ensure their safekeeping. Moreover, assuming Mr. Adams intended to leave the handgun with Mr. Dawkins for at least a couple of days, there is no reason for Mr. Adams to have withheld information about the handgun from Mr. Dawkins. Thus, I find that even if the handgun belonged to Mr. Adams, Mr. Dawkins would have been aware of its presence in the backpack. This knowledge is sufficient to establish his possession of the firearm.

[99] Considering the totality of the evidence, I find that the only reasonable conclusion that can be drawn is that Mr. Dawkins was aware of the existence of the firearm in the backpack he was carrying at the time of his arrest. Mr. Dawkins was therefore unlawfully in possession of a loaded restricted firearm.

Disposition

[100] I find Mr. Dawkins guilty of count 1 (unlawful possession of a loaded restricted firearm, contrary to s. 95(1)); count 2 (unlawful possession of a restricted firearm, contrary to s. 92(1)); and count 3 (possession of a firearm while subject to an order prohibiting such possession, contrary to s. 117.01(1).)

P. J. Monahan J. Released: January 22, 2021