COURT FILE NO.: CR-20-50000-032
DATE: 20210330
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KIMANI PHILLIPS
Philip Tsui, for the Crown
Susan von Achten, for the Accused
HEARD: February 8 - 11, 2021
REASONS FOR JUDGMENT
M. Dambrot J.
[1] Kimani Phillips is being tried by me without a jury on counts one and two in an eight-count indictment. The Crown alleges that on December 5, 2018, Mr. Phillips committed the offences of: (1) unlawful possession of a prohibited firearm contrary to s. 92(1) of the Criminal Code, R.S.C. 1985, c. C-46, and (2) unlawful possession of a loaded prohibited firearm contrary to s. 95(1) of the Criminal Code. Both counts relate to a Glock semi-automatic firearm loaded with six cartridges of ammunition that the accused is alleged to have thrown out of an 11th floor apartment window just as police officers entered that apartment to execute a search warrant.
THE EVIDENCE
[2] On Wednesday, December 5, 2018, shortly after 5:00 a.m., members of the Toronto Police Service (“TPS”) executed a search warrant at unit 1102, 3969 Kingston Road in Toronto. This was the residence of Susan Sampson and her daughter, Kia Sampson (also “Ms. Sampson” throughout). Susan and Kia Sampson have separate bedrooms and were each in their own room at the time of the search. The accused, who was then and is now Kia Sampson’s boyfriend, was the target of the warrant. He was spending the night at the apartment and was in bed with Kia Sampson when the police arrived.
[3] The warrant was executed by two groups of TPS officers: members of the Emergency Task Force (“ETF”), who were responsible for entering and securing the premises; and members of a search team, who searched the premises for the evidence listed in the warrant after the apartment was cleared by the ETF officers. The officers met at a staging area close to the target address for a final briefing sometime before 5:00 a.m. and then proceeded to the target location. The ETF officers formed a line in the hallway outside unit 1102 and prepared to effect a dynamic entry with an iron battering ram at precisely 5:00 a.m. The entry team, composed of ten officers, stood in a line in the order that they ultimately entered the apartment.
[4] D.C. Plunkett was a member of the search team. He arrived at the apartment building at 4:55 a.m. and proceeded to the north side of Kingston Road to set up an observation point outside of the building. He did this because the police were aware that on other occasions when search warrants were executed in high-rise apartments, items had been tossed out of windows in the target unit to avoid detection. As a result, D.C Plunkett kept a watch on the balconies and windows on the third highest floor at the far left of the building. He knew that this was the 11th floor and the approximate location of unit 1102. He stood at the corner of a bus shelter some distance away so that he had a clear view of the 11th floor windows and balconies on the left side of the building, over the top of a stand of small trees that stood between him and 3969 Kingston Road.
[5] The door of unit 1102 was breached at 5:00 a.m. with an iron battering ram. It took three hits to gain entry. As soon as the battering ram hit the door, P.C. McKenzie, the first ETF officer in the line, shouted, “Police, search warrant” three times in a loud, clear voice. The three hits took about three seconds to deliver. When the door finally opened, P.C. McKenzie shouted, “Police, search warrant” two additional times and entered the apartment. He was the first one in.
[6] P.C. McKenzie immediately cleared the kitchen, which was directly to his left, and then the balcony, which could be accessed in a straight line from the kitchen through the living room. P.C. McKenzie pointed his C8 rifle into the areas being cleared. The rifle had a very bright flashlight attached, which could light up a room. The purpose of such flashlights is to enable the officer to look for people who might be armed. P.C. McKenzie reached the balcony within five seconds of entering the apartment and stepped onto it briefly to ensure no one was there. He did not recall looking out over the balcony or seeing movement in the adjacent window.
[7] P.C. Nguyen was the third officer in line. When he entered the apartment, he cleared the living room, which is just beyond the kitchen, and poked his head out onto the balcony. He had his long firearm out, which also had a flashlight on it. He did not recall seeing P.C. McKenzie on the balcony, but I have no doubt that both officers were at or near the balcony with their flashlights on at about the same time. P.C. Moore was ninth in the lineup. When he entered the apartment, he cleared the living room and then proceeded to Kia Sampson’s bedroom.
[8] At about 5:00 a.m., D.C. Plunkett heard a loud bang, which he assumed was the battering ram. It was suggested to him that he might have heard a car door being shut, the rolling doors of a passing transport truck, or some other noise, but he rejected these suggestions. It would have been a remarkable coincidence if there had been another loud noise at 5:00 a.m. outside the building at 3969 Kingston Road at the precise time that ETF officers were using an iron battering ram to force the door of a unit in that very building. I am certain that D.C. Plunkett heard the battering ram hit the door of unit 1102, and my certainty is not diminished by the fact that he did not hear three distinct bangs.
[9] Immediately after hearing the bang, D.C. Plunkett saw lights shining through the windows on the left side of the 11th floor balcony closest to the left side of the building. That is the location of unit 1102. Undoubtedly, these lights came from the flashlights of P.C. McKenzie and P.C. Nguyen, and perhaps of P.C. Moore, who were clearing the kitchen and living room. The rest of the unit appeared dark at that point in time. D.C. Plunkett saw movement in the window adjacent to the left side of the balcony that looked like a silver flash and then saw a black object drop from the window. He saw the window slide shut. This was the window in Kia Sampson’s bedroom.
[10] D.C. Plunkett said that he did not lose sight of the object as it came down – the building was light and the object was dark. When it hit the ground, it bounced up three or four feet and then landed on the laneway in front of the building. It made a loud metallic sound when it landed. There is a grassy area under the window between the building and the laneway and a rubberized playground surface surrounded by a 38-inch fence slightly to the left. It is likely that the black object initially landed on one of these surfaces and then bounced onto the laneway. If tossed with a little more force, it is conceivable that it could have landed and bounced directly on the laneway. D.C. Plunkett waited to see if anything else would fall out of the window, but nothing did. Within a minute of seeing the black object drop, he saw flashlights in Kia Sampson’s bedroom and observed an ETF officer on the balcony. I find as a fact that the officer he saw was P.C. McKenzie.
[11] After seeing the flashlights, D.C. Plunkett moved to the laneway to examine the black object and immediately saw that it was a firearm. It looked to him like the slide and receiver had partially separated from the gun, and he could see a bullet with a gold tip in the gun. He promptly notified D.C. Arulanandam, the search team’s liaison with ETF, and asked that D.C. Ross, another member of the search team, come outside to seize and photograph the firearm. D.C. Arulanandam confirmed that he received the call via radio a couple of minutes after 5:00 a.m., and D.C. Campbell confirmed that he heard it, as well. D.C. Ross confirmed that he received D.C. Plunkett’s request by either radio or phone shortly after 5:00 a.m. D.C. Plunkett said that all of the officers were immediately made aware of the gun. Finally, I note that the ETF had their own communication network and did not hear what was broadcast by the search team members. However, Sgt. Shangi, the officer in charge of the ETF team, testified that at approximately 5:05 a.m., as the ETF responsibility was winding down, he was notified by D.C. Plunkett that a firearm had been thrown out of the apartment. Sgt. Shangi communicated this to his team for safety reasons, in case there were more guns. Throughout, D.C. Plunkett did not touch the firearm, but maintained observation of it until D.C. Ross arrived.
[12] The defence spent considerable energy challenging D.C. Plunkett’s evidence that he saw the object drop out the window, that he saw it fall to the ground, and that it bounced to the laneway. For example, the defence suggested that there was insufficient light for D.C. Plunkett to see the object drop from the window, that the trees would have prevented him from seeing it fall to the ground, and that it was doubtful it would have bounced to the laneway. In support of the defence position, Ms. von Achten adduced the evidence of Mr. Rosso, a licenced paralegal, who took photographs of the building from the vantage point of D.C. Plunkett at the same time of day, albeit in early February 2021 and not December 2018. They purported to show the appearance of the exterior of the building, the extent of the exterior lighting on a winter morning, the ground surfaces below Kia Sampson’s window, the lighting on Kingston Road, and other less pertinent things like the placement of garbage bins and an air conditioning unit.
[13] The value of Mr. Rosso’s photographs is somewhat limited. First of all, Mr. Rosso has no training in photography. He did not know whether the naked eye perceives things differently than a camera, and in particular did not know if this is specifically the case with low-light photography. He did not know if some things cannot be recorded in low light and, surprisingly, was unaware that the aperture of a camera lens can be adjusted to control the amount of light that enters the camera. As a result, his photographs likely do not accurately replicate the lighting at the time of the search or what could be seen by D.C. Plunkett. But even if I were to accept that they did depict the lighting at the time of the search and the visibility of the building and its windows, to me his photographs only undermine the defence position.
[14] What the photographs show, consistent with D.C. Plunkett’s evidence, is that the front of the building was illuminated by artificial lighting to some degree, that there was additional lighting from Kingston Road, and that the 11th floor windows and balcony are plainly visible. I see no basis for the presumption that D.C. Plunkett could not have seen a black object drop from an 11th floor window. And while it is true that, as the object descended, it would have passed behind the stand of trees, those trees would have lost their foliage for the winter in December 2018, and their branches were spindly in 2021 and certainly would not have been less so in 2018. I cannot imagine why D.C. Plunkett would not have been able to easily see the object drop from Kia Sampson’s window and fall to the ground. Finally, I see no reason why the object could not have bounced to the laneway.
[15] The defence went on to suggest not only that D.C. Plunkett could not have seen the gun fall to the laneway, but that it could actually have been dropped or hidden there by a passing gang member. These suggestions are entirely speculative, have no foundation in fact, and, frankly, are ludicrous. It would be a remarkable coincidence for an officer, waiting to see if anything was thrown to the ground from an 11th floor apartment balcony or window near the corner of a building in the course of a police search, to stumble upon a gun left there by someone else.
[16] Returning to the narrative, D.C. Ross arrived outside the building at 5:11 a.m., observed the firearm, and relieved D.C. Plunkett, who proceeded up to the apartment. D.C. Ross identified the firearm as a Glock. He noted that the slide was “out of battery” from the impact, meaning that it had somewhat detached from the frame, and he could see the recoil spring and a round of ammunition in the chamber. Before touching the gun, he took photographs of it. He then took the slide off the gun, pushed the slide release button to remove the magazine, emptied the gun of ammunition, put the slide back on without difficulty, secured the gun, and took possession of it and the ammunition by placing them in an otherwise empty pocket. The ammunition he removed from the gun consisted of three full metal jacket rounds and six all-point rounds, one in the chamber and five in the magazine. At 5:30 a.m., D.C. Ross handed the gun and ammunition over to D.C. Campbell, the exhibits officer in this case. D.C. Campbell handled the gun with gloves, placed it in a paper bag, placed the bag in his property box, and transported the exhibits to the police station. While D.C. Ross thought he might have transported the gun to the station, I am satisfied that it was D.C. Campbell who did so, though D.C. Ross did take photographs of the gun with the slide back on at the police station. D.C. Campbell maintained custody of the gun and ammunition until 11:30 a.m., when he placed the gun in a gun box and the ammunition in an ammunition box and put seals on the boxes.
[17] I have described the handling of the gun in detail because counsel for the accused suggested that it was handled improperly and that this somehow undermined the credibility of D.C. Plunkett’s evidence about seeing it fall to the ground from Kia Sampson’s window. In particular, counsel for the accused questioned D.C. Ross about placing the gun in his pocket. D.C. Ross explained that it was the best he could do in the circumstances to preserve it and keep it safe. No doubt, handling the gun as D.C. Ross did made it more difficult to obtain prints or DNA. While it would certainly have been better if the gun had been handled with gloves and had not been placed in D.C. Ross’s pocket, this investigative shortcoming has no impact on my assessment of either his credibility or reliability. Having regard to his evidence and that of D.C. Plunkett, I have no doubt about the continuity of the gun and am certain that it was not tampered with in any way.
[18] Returning to the ETF officers, P.C. Riegert was the second officer in the line and entered unit 1102 immediately after P.C. McKenzie. He said that the apartment was close to darkness when he entered, but he could see with the naked eye. As P.C. McKenzie moved to the left, P.C. Riegert turned towards a hallway to the right. He could hear voices or movement down the hall. Once he had support behind him, he began moving down the hall, followed by P.C. Christodoulou, who was fourth in the ETF line, and P.C. Brunato, who was fifth in the line. P.C. Riegert passed by two closet doors following the sound that he heard, turned left at the end of the hall, and found himself facing two bedrooms. The door to the left was closed, but the door to the right was open and Susan Sampson was coming out of the room. She had obviously heard the breach or the announcements. He paused to deal with her in the hallway and then stepped inside the threshold of the bedroom with her. He remained with Susan Sampson while other members of the team dealt with the second bedroom.
[19] The hallway to the bedrooms was very narrow and P.C. Riegert said that his interaction with Susan Sampson delayed P.C. Christodoulou and P.C. Brunato, who were heading towards the second bedroom, for five to ten seconds. Shortly after P.C. Riegert entered Susan Sampson’s room, he heard over the radio that a gun had been thrown from the apartment. He examined the window in Susan Sampson’s bedroom and assured himself that a gun could not have been thrown from it because it was blocked with blankets and pillows.
[20] When P.C. Christodoulou entered the apartment, he veered to the right and walked methodically down the hallway behind P.C. Riegert; ETF officers do not run when securing premises. In addition, the officers were quite large with their full equipment, so the narrowness of the hall slowed them down a bit. P.C. Christodoulou heard P.C. Riegert issue commands to Susan Sampson in the hallway in front of him, which caused him to pause for five to ten seconds. He then continued to the end of the hallway, set up on the closed door on the left, and waited for P.C. Brunato to open it. He noted that ETF officers generally do not enter a room on their own, particularly if the door is closed. Once the door was opened, P.C. Christodoulou entered first. He estimated that about twenty seconds had elapsed from the time the battering ram first hit the front door to the time he entered the apartment.
[21] The bedroom was no more than 12 feet by 10 feet in size, with one bed adjacent to the window. When he entered, P.C. Christodoulou observed two people on the bed: Kia Sampson was lying under the covers on the side of the bed closest to the window and Mr. Phillips was lying on top of the covers on the other side of the bed, with his head on a pillow and his hands resting on his chest. P.C. Christodoulou did not think Mr. Phillips was asleep. P.C. Christodoulou verbally announced, “Police” and ordered the occupants onto the ground. Ms. Sampson rolled to the ground but Mr. Phillips did not move. P.C. Christodoulou pulled Mr. Phillips to the ground using one arm and told him to put his hands behind his back. The accused complied. P.C. Christodoulou waited for someone to handcuff the accused.
[22] P.C. Brunato followed P.C. Christodoulou into the bedroom and kept Ms. Sampson under observation until he was relieved. He did not notice whether the bedroom window was open when he entered, but he did notice that it was open after the bedroom was secured because he felt cool air coming in. He did not see anyone open it while he was there.
[23] P.C. Moore was the next officer to enter the bedroom. He handcuffed the accused, who was on the ground, and then handcuffed Ms. Sampson. He was only in the bedroom for about a minute. He then went to Susan Sampson’s bedroom and made the decision not to handcuff her. After learning that a firearm had been thrown from the apartment, P.C. Moore checked both bedroom windows. He said that Susan Sampson’s window was obstructed and nothing could be thrown from it, but he observed that Kia Sampson’s screen had been cut wide open. He did not recall if the actual window was open.
[24] At 5:06 a.m., D.C. Ross recorded what he referred to as an “entry video” of the apartment, by which he meant a video made before the search team conducted their search. In the video, Kia Sampson’s window is open and the ripped screen is visible.
[25] At 5:10 a.m., the ETF officers turned the apartment and its occupants over to the search team. D.C. Arulanandam took custody of the accused and Kia Sampson. D.C. Plunkett entered the apartment shortly after and proceeded first to the balcony and then to Kia Sampson’s bedroom. He confirmed that her window was the one from which the firearm had been dropped. He noted that the window itself was closed at that time, but the screen appeared to have been cut.
[26] D.C. Arulanandam participated in the search of the apartment. When he searched Kia Sampson’s bedroom, he observed that the screen was cut. At that time, the window was open. In the course of the search of the bedroom, a number of items were seized, including: a black scale, a black Bushnell rifle scope, several cell phones and SIM cards, a driver’s licence in the name of the accused, a passport for Ms. Sampson, and $4,900 in Canadian currency and $325 in American currency secured with an elastic band.
[27] Counsel for the accused suggested that, based on the appearance of the apartment after the police left, the search was not a thorough one. She argued that this was because the officers knew that a firearm and money had been found and they could not be bothered to search further. This, in turn, raises questions about their credibility and reliability. I do not share counsel’s view that the search was not sufficiently thorough. Even assuming it could have been more exhaustive, I fail to see how this or any other shortcoming in the investigation suggested by the defence affects the credibility and reliability of the evidence of the searchers. In my view, it does not.
[28] Kia Sampson was called as a witness by the Crown. She was originally co-accused with Mr. Phillips in respect of the two counts in the indictment being tried by me. She was also charged with one count of breach of a recognizance, in which it was alleged that on December 5, 2018, she had violated a term of a recognizance prohibiting her from communicating with Mr. Phillips. On January 5, 2021, she pleaded guilty to the breach count but has yet to be sentenced. She is in custody awaiting trial on unrelated charges but has no criminal record. She was and remains the girlfriend of Mr. Phillips.
[29] Ms. Sampson testified that she has lived with her mother at unit 1102, 3969 Kingston Road in Toronto for over ten tears. Mr. Phillips arrived there at 9:00 p.m. on December 4, 2018 and remained with her for the night. She said that she was asleep in her bed when the police arrived at 5:00 a.m. on December 5, 2018. She was awakened by a bang and heard someone yelling, “Police”. When she woke up, the first thing she saw was that police officers were already in her room. She also saw that Mr. Phillips was still asleep beside her in the bed. He is a deep sleeper and needs to be shaken awake. She believed that her movements woke him up. The police officers told her to get on the ground and she complied. She said that the window was closed when she went to sleep that night and that one of the police officers opened it as far as the child lock permitted and looked out. She did not see Mr. Phillips open it.
[30] Ms. Sampson testified that she had not seen a gun in her home and did not know that a gun was there. She said she did not “recall” a gun being thrown from her window. She acknowledged that the screen in her window was ripped. She said she was a smoker and ripped the screen with scissors a year earlier to make it easier to clear smoke from her room. When asked about the money found in her closet, she said she did not know anything about it, nor did she know anything about the scales found in a Coach bag that belonged to her and was located beside her bed, or the Bushnell rifle scope found in her room. She said that most of the ten cell phones found in her room were her old phones that she had not gotten around to selling, but one was her current phone and two others belonged to Mr. Phillips.
[31] In cross-examination, counsel for the accused questioned Kia Sampson about the money found in her closet. Ms. von Achten asked Ms. Sampson if she knew “how Kimani had so much money”. She said she did not, but that she knew it was in the closet. Ms. von Achten asked Ms. Sampson if she knew that Mr. Phillips sold drugs. She said she did not. She denied knowing that he was a drug dealer, that he earned the money through drug dealing, and that she was involved in drug dealing with him. She maintained this position even after being told that evidence implicating her in an offence could not be used against her to prove she was guilty of that offence.
[32] Susan Sampson was also called as a witness by the Crown. She said that Mr. Phillips was her daughter’s boyfriend, but she did not know he was in the apartment on the night of the search. She knew nothing about a gun in the apartment and did not throw one out. She was also unaware of the tear in the screen in her daughter’s room until after the search. She did not go into her daughter’s room often, except to pick up and drop off laundry. She had last been in the room about a week earlier to drop off her daughter’s laundry. Had she known the screen was torn, she would have taken steps to get it fixed.
[33] Susan Sampson testified that the window ordinarily opens only four inches because a child lock blocks it from easily opening wider. It is difficult to bypass the child lock and fully open the window; it requires a knife or something long. She said it would take two or three minutes to accomplish the feat. Kia Sampson said the same thing. Susan Sampson acknowledged that even with the child lock engaged, there was more than enough room for a hand to fit through the opening.
[34] Bruce Finn was qualified as an expert to testify about the identification, classification, and analysis of firearms and their related components. He examined and test-fired the gun and ammunition seized in this case and prepared a certificate of analysis in respect of them. At the time that he conducted his analysis and prepared his certificate, he was the Acting Senior Firearms Officer in the Firearms Investigation and Analysis Unit of the TPS. He retired at the end of June 2020.
[35] In his certificate, Mr. Finn indicated that the firearm seized by D.C. Ross was a prohibited firearm within the definition in s. 84 of the Criminal Code. Specifically, it was a Glock, Model 43, 9 mm centrefire semi-automatic handgun with a barrel length of 85 mm and a 6 shot magazine; it functioned correctly as a semi-automatic handgun; and it was a barrelled weapon from which any shot, bullet, or other projectile could be discharged and that was capable of causing serious bodily harm or death to a person.
[36] Mr. Finn also certified that the 6 cartridges seized by D.C. Ross were 9 mm centrefire ammunition. When test-fired in the firearm, they fell within the definition of ammunition in s. 84 of the Criminal Code.
[37] In his viva voce testimony, Mr. Finn was asked to examine Exhibit 11B, a photograph taken by D.C. Ross depicting the firearm in the laneway as it was found by D.C. Plunkett, before it had been touched by any police officer. Mr. Finn testified that the gun had been knocked out of battery but had not suffered any catastrophic effect from its fall. If the slide were removed and then repositioned properly between the rails, it would still function as designed.
[38] Mr. Finn said it was entirely possible for the gun to be in the condition seen in Exhibit 11B after falling 11 stories and bouncing onto asphalt. However, he said he has never seen a Glock knocked out of battery by a drop from a normal height. While it is easy to take a Glock out of battery manually, even with Mr. Finn’s experience, he was unable to manipulate it in the manner seen in the photograph; it would require more force than he was capable of. While an effort was made at the police station after the firearm was made safe to restore it to its appearance in Exhibit 11B, that was not successful. The result can be seen in Exhibit 25B. Mr. Finn pointed out that in Exhibit 11B, the slide was at much more of an angle, the space between the spring and the slide was greater, and more of the spring can be seen. In addition, there was a live round of ammunition in the chamber of the gun in Exhibit 11B, but not in Exhibit 25B. Mr. Finn testified that it would be unsafe to try to manipulate the firearm into the condition seen in either photograph with a live round in the chamber.
[39] When asked about the round of ammunition in the chamber, Mr. Finn said the possibility of the gun loading itself upon hitting the ground was very slim. In his opinion, the gun did not self-load. When a round is chambered, it is ready to fire when the trigger is activated.
[40] Having regard to the totality of Mr. Finn’s uncontradicted, unchallenged, and highly credible evidence, I am certain that the firearm came to rest on the laneway after a fall from a great height. Not only was the gun not dropped or hidden in that location by some passing gang member, but I am also certain that the condition the gun was in was not staged by the police. They simply could not have done it.
[41] Finally, I note for completeness that the defence called no witnesses other than Mr. Rosso, and the accused did not testify.
ANALYSIS
[42] While the Crown obviously bears the burden of proving each element of the two offences alleged against the accused, the trial focussed on the two issues that are realistically in play:
(1) Whether the Crown has established beyond a reasonable doubt that the prohibited firearm seized by D.C. Ross dropped from Kia Sampson’s bedroom window; and
(2) If so, whether the prohibited firearm was dropped by the accused.
[43] I will consider these two questions in turn and then discuss the elements of the offences.
Did the Firearm Drop from Kia Sampson’s Bedroom Window?
[44] There were many prongs to the defence position on this issue. Counsel suggested that (1) D.C. Plunkett could not have seen an object drop from the window; (2) if an object fell from the window, it would not have landed on the laneway; (3) the discovery of the gun on the laneway might have been staged by the police; (4) the gun might have been dropped or hidden on or near the laneway by a neighbourhood gang member; and (5) having regard to the small size of the apartment, the time required to open the window, and Kia Sampson’s evidence that she did not toss the gun and the accused effectively could not have done so, the gun could not have been thrown out of Kia Sampson’s bedroom window.
[45] I reject all of these suggestions. I am satisfied beyond a reasonable doubt that the gun fell from Kia Sampson’s window. I will consider each of these suggestions in turn.
(1) D.C. Plunkett could not have seen an object drop from the window
[46] This suggestion is premised on the inadequacy of the lighting. I have already explained in detail the basis for my conclusion that D.C. Plunkett could easily have seen an object drop from Kia Sampson’s window and fall to the ground. In any event, I believe the evidence of D.C. Plunkett that he did see the object drop from the window and fall to the ground. I reject this suggestion and I will say no more.
(2) If an object dropped from the window, it would not have landed on the laneway
[47] This suggestion is premised on the nature of the surfaces below Kia Sampson’s window and the distance of the laneway from the building. I accept the evidence of Mr. Rosso that the distance from the building wall to the edge of the laneway is 25 feet. And as I said earlier, there is a grassy area under the window between the wall of the building and the laneway and a rubberized playground surface surrounded by a 38-inch fence slightly to the left of it. It is likely that the black object initially landed on one of these surfaces and then bounced onto the laneway. There is no reason to think that the 38-inch fence was an impediment, given the nature of the enclosed surface and the height from which the object fell. If tossed with some force, it is entirely conceivable that the object landed directly on the laneway and bounced to its final resting place. I do not believe that the distance from the building to the laneway precludes this possibility, again in light of the height from which the object fell. I reject the suggestion that if an object dropped from the window, it would not have landed on the laneway.
(3) The discovery of the gun on the laneway might have been staged by the police
[48] I have already explained why I am satisfied that this could not have happened based on the evidence of Mr. Finn. In any event, even if it were possible, I believe D.C. Plunkett’s evidence that he found the gun on the laneway and that it appeared as it is seen in Exhibit 11B. I reject this suggestion.
(4) The gun might have been dropped or hidden by a neighbourhood gang member
[49] As I have already explained, these suggestions are entirely speculative, have no foundation in fact, and, frankly, are ludicrous. I reject this suggestion.
(5) Having regard to the small size of the apartment, the time required to open the window, and Kia Sampson’s evidence that she did not recall a gun being thrown from the window, the gun could not have been thrown out of it
[50] This suggestion has several facets, which must each be addressed.
[51] First, the size of the apartment. Kia Sampson testified that a person could get from the front door of the apartment to her bedroom in two to three seconds. I doubt this, but certainly a person running could cover that ground in a few seconds. It is unlikely that in so short an interval, a person in Kia Sampson’s bed would wake up with the presence of mind and sufficient time to throw a gun out the window. But that is not the evidence.
[52] Police entry into the unit began with three loud hits on the apartment door with an iron battering ram, accompanied by an officer shouting, “Police, search warrant” three times in a loud, clear voice. The three hits took about three seconds to deliver. When the door opened, the same officer shouted, “Police, search warrant” twice more. It would be surprising if this did not wake all of the occupants of the apartment and put them on notice of a police search before anyone even entered the unit. In addition, it is likely that any occupant in possession of a prohibited gun would instantly be concerned about the consequences of the gun’s discovery and, if so minded, try to conceal or get rid of it.
[53] Second, timing. When P.C. Christodoulou entered the apartment, he did not run down the hall and into Kia Sampson’s bedroom. I accept his explanation for not doing so. Instead, he walked methodically down the hallway behind P.C. Riegert. He was forced to pause along the way for five to ten seconds while P.C. Riegert issued commands to Susan Sampson in the hallway. He then continued to the end of the hallway, set up on the closed door on the left, and waited for P.C. Brunato to open the door. Once the door was opened, P.C. Christodoulou entered first and observed the accused and Kia Sampson on the bed. He estimated that about twenty seconds had elapsed from the time the battering ram first hit the front door to the time he entered the apartment. I accept this estimate. It was carefully and logically explained by an entirely credible witness.
[54] In addition, as I have noted, the bedroom was no more than 12 feet by 10 feet in size, with the bed adjacent to the window. In my view, a person who was awakened by the police entry would have had more than enough time to gather a gun, throw it out the window, and get back onto the bed before P.C. Christodoulou entered the room. This is subject to two impediments: the screen on the window and the child lock device. In fact, however, these were not impediments at all. First, the screen was torn. Second, even if the child lock meant the window could not be fully opened by an adult without some effort – an assertion I am far from certain is true – it easily permitted a four-inch opening. As a result, neither the screen nor the child lock prevented an occupant of the room from dropping or tossing a Glock out the window.
[55] Third, the evidence of Kia Sampson. Although Ms. Sampson was called by the Crown, her evidence entirely favoured the accused on this issue: she had not seen a gun in her home, did not know that a gun was there, and did not “recall” a gun being thrown from her window. I will have more to say about Ms. Sampson’s evidence when I come to the next issue, but on this I will simply say that even if this part of her evidence is true (and I will later explain why I do not think it is), it does not preclude the gun being thrown out before she woke up.
[56] As a result, I reject the suggestion that the small size of the apartment, the time required to open the window, and Kia Sampson’s evidence that she did not recall a gun being thrown from the window stand in the way of finding that the gun was, in fact, thrown from Kia Sampson’s window.
[57] In the end, I accept the evidence of D.C. Plunkett and find beyond a reasonable doubt that he observed an object that turned out to be a loaded Glock semi-automatic firearm drop from Kia Sampson’s window, fall to the ground, and end up on the laneway, where it was seized by D.C. Ross.
Did the Accused Drop the Prohibited Firearm from Kia Sampson’s Bedroom Window?
[58] There were three people in unit 1102 at the time the firearm dropped from Kia Sampson’s window: Susan Sampson, Kia Sampson, and the accused. No one but them could have dropped the gun out the window. Susan Sampson testified that she did not drop it. She was asleep in her room at the time, not in Kia Sampson’s room. Neither Crown nor defence suggested any possibility that she could have done it. I agree.
[59] Kia Sampson testified that she did not drop the gun out of her window, which, of course, would tend to suggest that Mr. Phillips did. However, she also testified that police officers were already in her room when she woke up, that she saw Mr. Phillips asleep beside her in the bed, that she believed her movements woke him up, and that the window was closed. As I have already noted, this evidence, if true, does not preclude the possibility that Mr. Phillips threw the gun out of the window, returned to bed, and feigned being asleep. But it does make it less likely that he did so. In the end, Ms. Sampson’s evidence only advances the Crown’s case insofar as she denies that she threw the gun out the window; in virtually every other respect, it favours the accused. As a result, Kia Sampson must be considered a “mixed” witness.
[60] Although she is far from a classic Vetrovec[^1] witness, there are reasons to be cautious about Ms. Sampson’s evidence and give myself a Vetrovec instruction, insofar as the evidence advances the Crown’s case. First, the circumstances raise a suspicion that Ms. Sampson was involved in the offences before me. It is possible either that she threw the gun from the window or permitted the accused to have the gun in her bedroom. Second, Ms. Sampson was indicted on these gun charges along with Mr. Phillips, but they were withdrawn against her when she pleaded guilty to breaching a recognizance by being in communication with the accused at the time of the offence. Ordinarily, this would give rise to the inference that the Crown withdrew the charges in exchange for her testimony that she did not throw the gun out the window. I underscore, however, that no such suggestion was put to her in cross-examination and, as a result, while the possibility exists, it is speculative. Third, although Ms. Sampson pleaded guilty to breaching her recognizance, she has not yet been sentenced. As a result, she may have an interest in testifying favourably for the Crown. This concern is attenuated by the fact that she largely favoured the accused in her evidence. And, once again, no such suggestion was made to her in cross-examination. Nevertheless, the concern persists and is a factor for me to consider where Ms. Sampson does advance the Crown’s case. Needless to say, I give myself no Vetrovec instruction with respect to the evidence of Ms. Sampson to the extent that it is exculpatory with respect to the accused. Otherwise, I would impermissibly be transferring the burden of proof to the accused: see R. v. Rowe, 2011 ONCA 753, 281 C.C.C. (3d) 42, at paras. 33-34.
[61] Ms. Sampson being a mixed witness, I have a discretion but not a duty to give myself a Vetrovec instruction with respect to the inculpatory part of her evidence: see, for example, R. v. Tran, 2010 ONCA 471, 257 C.C.C. (3d) 18, at para. 27. I do so, but it is not a full-throat caution, because the likelihood that Ms. Sampson has an interest in testifying favourably for the Crown is significantly diminished by the fact that she remains Mr. Phillips’ girlfriend, and, once again, for the most part assisted the defence.
[62] In the end, I simply instruct myself to approach the inculpatory part of Ms. Sampson’s evidence with caution and look for some independent confirmation (that is, confirmation that gives me comfort that this aspect of her evidence can be trusted) before relying on it. I note that neither Crown nor defence invited me to give myself a Vetrovec warning in this or any other manner about Ms. Sampson’s inculpatory evidence.
[63] I turn next to my assessment of the credibility of Ms. Sampson’s evidence. Leaving aside her denial of throwing the gun out the window, I find some aspects of her evidence are not credible. I am doubtful that she does not know the source of the large sum of money found in her room belonging to Mr. Phillips. I am doubtful that she did not know that there were scales and a Bushnell rifle scope in her room. I am doubtful that the collection of cell phones found in her room were her old phones that she had not gotten around to selling. I disbelieve her statement that the first thing she saw when she woke up was police officers in the room and that the accused was still asleep. Most importantly, I disbelieve her explanation for the tear in her window screen – that she is a smoker and cut the screen with scissors a year earlier to make it easier to clear the smoke – for several reasons. First, this explanation makes no sense. Smoke would clear as easily through the screen with or without a rip in it. Second, it is impossible to imagine that Susan Sampson would not have seen a rip in the screen before December 5, 2018 if one existed. Third, the only logical reason for a fresh rip in the screen is to permit what had just happened – throwing a gun out the window to avoid detection by the police officers who were entering the unit.
[64] I do, however, believe Ms. Sampson when she says that she did not throw the gun out the window. I say this for several reasons. First, it is evidence that is harmful to her boyfriend. If she threw the gun out the window, I doubt she would deny it and falsely implicate Mr. Phillips, particularly in light of the fact that she knew her evidence could not be used against her in respect of these offences. I hasten to say that, standing alone, this would not satisfy me that Ms. Sampson was being truthful on this point. But the balance is tipped by the evidence of P.C. Christodoulou, which gives me comfort that Ms. Sampson’s evidence that she did not throw the gun out the window can be trusted.
[65] Recall that when P.C. Christodoulou entered the bedroom, he observed two occupants on the bed: Kia Sampson lying under the covers on the side of the bed closest to the window and Mr. Phillips lying on top of the covers on the other side of the bed, with his head on a pillow and his hands resting on his chest. P.C. Christodoulou did not think Mr. Phillips was asleep. If Mr. Phillips was awake, he could have been the one who threw the gun out the window. And the fact that he was on top of the covers confirms for me that he did it and that Ms. Sampson was truthful when she said that she did not. If Mr. Phillips was asleep with his girlfriend on a freezing cold night in December, as Ms. Sampson testified it was, it is most likely that he would have been under the covers, not lying on top. The logical explanation is that Mr. Phillips had just thrown the gun out the window and, with the police outside the bedroom door, only had time to jump back on top of the covers before they came in.
[66] I am satisfied beyond a reasonable doubt that the gun belonged to Mr. Phillips; that he had it with him in Kia Sampson’s bedroom that night; that he heard the police force the door, yelling “Police”; and that he immediately leapt out of bed, collected the gun, opened the window (either to its full extent or to the four inches permitted by the child lock), ripped the screen, threw out the gun, came back around the bed to the side away from the window, and jumped on top of it in time for the police entry.
CONCLUSION
[67] I am satisfied beyond a reasonable doubt of the following:
The firearm seized by D.C. Ross, along with the ammunition it contained, fell from Kia Sampson’s bedroom window in the manner described by D.C. Plunkett;
Mr. Phillips dropped the prohibited firearm out of Kia Sampson’s window in full knowledge that it had six rounds of ammunition in it;
The firearm was in battery and loaded with six rounds of ammunition, including a live round of ammunition in the chamber, when Mr. Phillips threw it out the window, which was again all in the full knowledge of Mr. Phillips;
The firearm seized by D.C. Ross was a prohibited firearm within the definition in s. 84 of the Criminal Code;
The firearm functioned correctly as a semi-automatic handgun;
The firearm was a barrelled weapon from which any shot, bullet, or other projectile could be discharged and that was capable of causing serious bodily harm or death to a person;
The 6 cartridges seized by D.C. Ross were 9 mm centrefire ammunition and, when test-fired in the firearm, they fell within the definition of ammunition in s. 84 of the Criminal Code;
Mr. Phillips, to his knowledge, was not the holder of either a licence under which he might possess the firearm nor a registration certificate for it; and
Mr. Phillips, to his knowledge, was neither the holder of an authorization or licence under which he might possess the loaded firearm nor a registration certificate for it.
[68] The two offences in the indictment are offences of possession. The definition of possession is found in s. 4(3) of the Criminal Code. Personal possession is established where the accused manually handles the thing in question, knows of its presence and character, and has control over it. In light of the findings I have made, there can be no doubt that for the purpose of count one, the accused was in possession of a prohibited firearm, and for the purpose of count two, he was in possession of a loaded firearm.
[69] Having regard to the foregoing, all of the elements of both offences have been established beyond a reasonable doubt.
VERDICT
[70] Subject to any argument about the application of R. v. Kienapple, [1975] 1 S.C.R. 729, the accused is found guilty of both count one and count two.
M. Dambrot J.
Released: March 30, 2021
COURT FILE NO.: CR-20-50000-032
DATE: 20210330
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
KIMANI PHILLIPS
REASONS FOR JUDGMENT
DAMBROT J.
RELEASED: March 30, 2021