COURT FILE NO.: CR-0030/19 J/J
DATE: 20210726
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ORIN MOSES
Defendant
Phillip Enright, for the Crown
Rob Warren and Daryl Reeve, for the Defendant
HEARD: June 7, 2021
Mr. Justice Michael G. Quigley
Reasons for decision
[1] On January 24, 2018, members of the Emergency Task Force (“ETF) of the Toronto Police Service executed two judicially authorized warrants under the Controlled Drugs and Substances Act at two residential addresses in Scarborough Ontario, 160 Brimorton Drive and at 5 Watson Avenue. They also executed a third warrant against a BMW automobile and its occupants.
[2] The warrants were issued based upon information provided to the police by a Confidential Informant (the “CI”). The defendant, Orin Moses, raised no challenges relative to the validity of the warrants or the manner in which they were executed, under the Charter or otherwise. As such, the evidence is all properly admissible on this trial.
[3] When they executed the warrants, the police found a loaded restricted firearm in a small child’s bedroom at 160 Brimorton Drive, secreted in the elasticized bed sheets for a child’s bed, in the same room in which Mr. Moses was found. That was shortly after ETF members performed a dynamic forceful entry into that residence, accompanied by the deployment of an explosive distracting device. The firearm they found was a 9mm Walther P38 handgun containing a magazine loaded with seven rounds of 9mm ammunition, with the brand name “Luger” embossed on the end of the shell casings.
[4] A second warrant was executed at 5 Watson Avenue in Scarborough, Mr. Moses’ mother’s house, where he also lived with his common-law spouse, Tanya McLean. Police found further incriminating evidence in the bedroom that the defendant and his spouse identified as their bedroom, the room where they slept together every night.
[5] In the middle of the clothes closet in that bedroom, mixed in amongst their other clothing and in plain view, police found two zip-up jacket style sweatshirt type garments, one red and white with a prominent “PARISH-N” brand label or logo on the front (the “red sweater”), and a white Adidas hoodie sweater with black stripes on the arms (the “white sweater”). In the pockets of the red sweater, they found a number of other live rounds of .9mm ammunition identical to the bullets in the magazine of the handgun found in the child’s bedroom at 160 Brimorton Drive, with the same “Luger” brand name embossed on the back of the shell casings. The police also found several other rounds of ammunition for other caliber firearms in the pockets of the white sweater.
[6] Police charged Mr. Moses with two counts of knowing possession of a loaded restricted firearm contrary to s. 95(1) and 92(1) of the Criminal Code of Canada (the “Code”). On June 7, he re-elected trial by judge alone before me. The trial took only a couple of days.
[7] The evidence in this case is almost entirely circumstantial. There is no direct evidence, either that Mr. Moses was the owner of, or that he constructively possessed that firearm seconds before it was found at 160 Brimorton Drive near where he himself had been found. Neither is there direct evidence that he was the owner of either the red or the white sweaters found in the closet of his bedroom at 5 Watson Avenue, where the other five live rounds of Luger brand ammunition were located, identical to the ammunition found in the Walther P38 handgun. Thus, whether the offences can be made out to the criminal standard is entirely dependent upon the reasonable inferences that may, or may not, be drawn from that body of circumstantial evidence as a whole.
[8] Mr. Moses testified in his defence. Ms. McLean was called as a Crown witness, but she gave evidence in favour of the defence. Since Mr. Moses and Ms. McLean testified, my analysis is governed by the principles in R. v. W. (D.).[^1] Whether Crown counsel can succeed in proving these charges beyond a reasonable doubt will depend upon three questions:
(i) Do I accept the evidence of Mr. Moses? If so, Mr. Moses must be acquitted.
(ii) Even if I do not believe or accept the evidence of either or both of Mr. Moses and Ms. McLean, then again he must be acquitted if it leaves me unsure or in a state of reasonable doubt .
(iii) Finally, even if I do not believe the defence evidence and it does not leave me in a state of reasonable doubt, Mr. Moses can be found guilty of the charges only if I am satisfied to the criminal standard that his guilt is the only reasonable inference that my be drawn at the end of the day relative to each of the charges, having regard to the evidence as a whole that I do accept.
[9] Put the other way, even if I do not believe his evidence or Ms. McLean’s evidence and am not left in a state of doubt by it, he must be acquitted if an inference of his guilt is not the only reasonable inference that may be drawn from the entirety of the evidence that I do accept.
Background Facts
[10] The execution of the first of the warrants at 160 Brimorton Drive commenced at 3:45 in the afternoon of January 24, 2018, with seven ETF members lined up outside the door of that residence using a battering ram to smash open the door. It was not a case of politely ringing the doorbell. Just after gaining entry, one of the officers lobbed an explosive distractionary device into the hallway. It exploded with a loud bang, smoke, and disorienting light flashes about five seconds later.
[11] ETF members moved quickly to take over the house and take control of its occupants. There were a number of individuals present, one of whom was Orin Moses. Officer Riegert, a member of the ETF, testified that he immediately went up the stairs and into the kitchen to the right. He did not see Mr. Moses at first, but then saw him standing in the doorway of the room across the hallway as the officer turned left to leave the kitchen. Then he exited the kitchen and crossed the hallway to that room. Once he entered that room, he found Mr. Moses located fully within that room and in the process of lying down on the floor, facedown, in a gesture of submission.
[12] The room itself was a very small child's bedroom, close to the front of the residence. Officer Riegert testified that as he started to head out of the kitchen to the room across the hallway, he had a direct view through the open doorway into that room, and he remembered that when he actually found him, Mr. Moses’ body was entirely within that room, not straddling the doorway or half in the bedroom and half in the hallway.
[13] Mr. Moses was moved into the living room where one of the other officers was keeping control of all of the individuals who had been found in that residence. Once the residence was under control and safe, ETF members handed over the search operation to members of the Guns and Gangs Task Force of the Toronto Police Service.
[14] Guns and Gangs officers then began searching the residence. Officer Liam Wauchope, a twenty-one-year veteran who is now a Staff Sergeant at 21 Division, was the officer who went into that child’s bedroom. He saw Mr. Moses and identified him. A half-hour later, after all officers were in place, Officer Wauchope took Mr. Moses to the living room area and then returned to commence the search of the child's bedroom where Mr. Moses had been located. When he turned the child's mattress over on its side onto the floor in a vertical standing position as he was searching that bedroom, he heard a loud “thud”. Upon further investigation, secreted in the bedsheets, the officer found a loaded Walther P38 Luger type restricted firearm. The magazine of that handgun contained seven 9mm rounds of ammunition, imprinted with the brand name "Luger" on the back end of the brass shell casings.
[15] A short time later, the officers executed the second warrant at 5 Watson Avenue, the residence that Mr. Moses shared at that time with Ms. Tanya McLean. In the course of searching the bedroom of that residence, which Mr. Moses and his common-law spouse admitted to occupying as their bedroom, and in particular when searching the closet in that room, police found two men's garments. One was the red sweater and the other was the white sweater. Both were found hanging more or less in the centre of the closet, in amongst clothing that both Mr. Moses and his common-law spouse agreed were clothes that belong to them and that they wore regularly. However, they claimed to have no idea about those items of clothing and could only suggest these must have been pieces of clothing left behind by friends or guests after the regular parties they said they held at the Watson Avenue address. Ms. McLean could provide no insight to why clothing left behind by visitors would find its way to the middle of their own personal clothes closet, say as opposed to being in a hallway cupboard or storage room.
[16] While both of them claimed to know nothing about the two sweaters, what we do know is that police found a number of 9mm Luger bullets or rounds of ammunition in the pocket of the PARISH-N brand red sweater, and in the white sweater they found several other rounds of different types of ammunition.
[17] A short time later, the third of the warrants was executed against a BMW motor vehicle acknowledged to belong to Mr. Moses’ mother and registered to her at her address of 5 Watson Avenue in Scarborough, Ontario. There was no contraband found when the vehicle was searched.
Analysis
[18] It is admitted that the Walther P38 9mm Luger handgun with serial number 4892b, which was located in the child’s bedroom at the Brimorton Dive address, is a fully functioning “restricted firearm” as defined in the Code. It is admitted that Mr. Moses did not have a Firearms Acquisition Certificate or Licence to possess any firearm on January 24, 2018, nor did he possess a firearm registration certificate on that date. Finally, it is agreed that the fifteen cartridges of 9mm ammunition located in the magazine of the Luger handgun and in the pocket of the red sweater are “ammunition” as defined in the Code, albeit that it is also acknowledged to be readily available for purchase.
[19] Crown counsel prosecuted this case vigorously, but he also acknowledged several important points that narrow the focus of the analysis. The first was that the Crown’s case relies equally and cumulatively on the results from the search of both residences, that is, both 160 Brimorton Drive and 5 Watson Avenue. Crown counsel acknowledges that without the product of both those searches, the offences could not be proven beyond a reasonable doubt.
[20] Apart from the analytical methodology imposed by R. v. W. (D.), and the principles relating to the drawing of inferences from circumstantial evidence, the questions in this case are entirely factual.
[21] As I have noted, under the test in W. (D.), I must acquit Mr. Moses if I accept the exculpatory testimony of Mr. Moses and Ms. McLean, and/or it at least leaves me in a state of reasonable doubt that he committed these offences. I will address their evidence first in the following analysis, but even if I do not accept or believe that evidence and even if it does not leave me in a state of reasonable doubt, Crown counsel fairly concedes that he would be incapable of proving constructive possession of the firearm by Mr. Moses, if the Brimorton Drive address had been the only location searched or the only location that yielded evidence, but that is not the only evidence that is present here.
[22] In order to prove this case beyond a reasonable doubt, that alone would have been inadequate because in the absence of the 9mm Luger bullets found and seized from the clothes closet in the accused’s bedroom at the second search location, the house at Watson Avenue where he admits to sleeping every night, there would be no specific pieces of evidence to connect Mr. Moses and the firearm.
[23] Instead, it would be a case where the person of interest who is the target of the search warrant is caught in extremely suspicious circumstances in a child’s bedroom where there just happens to be a loaded handgun secreted close by, but with nothing more. That alone could not prove the constructive possession of the firearm by Mr. Moses beyond a reasonable doubt.
[24] However, Crown counsel argues that there is evidence here that does bridge any evidential gap, that connects the dots between the two addresses so to speak, and that does permit the reasonable inference be drawn to the criminal standard that Mr. Moses constructively possessed the gun and is guilty as charged.
[25] That bridging evidence is the location of that stash of identical 9mm bullets found in the defendant’s own bedroom closet. It is the inference that arises from that aggregated evidence, which it is argued is the only reasonable inference and which in turn meets the Crown’s burden to prove the guilt of Mr. Moses beyond a reasonable doubt in a case like this, that is entirely circumstantial.
[26] Apart from the application of W. (D.) to the evidence of the defendant and Ms. McLean, assuming my analysis goes beyond step one and two, the question here at the third stage is whether the circumstantial evidence advanced by Crown counsel is sufficient to permit me to conclude that Mr. Moses is guilty as charged. In these circumstances, such a conclusion would require me to find that he constructively possessed the firearm under s. 4(3) of the Code.
[27] To be found to be in constructive possession in a case like this based entirely upon circumstantial evidence, I must find that the only reasonable inference from the entirety of the evidence that I accept, is that Mr. Moses had knowledge and control over the firearm and the ammunition at all material times. That would require a finding, (i) that Mr. Moses knowingly put that firearm in that particular place where it was found, regardless whether that place belongs to or is occupied by him, and (ii) that he intends to have that firearm and that ammunition for his own or somebody else's use. Defence counsel concedes that if knowledge of the ammunition and the firearm are established, there is no issue that Mr. Moses would have known of the illegal character of the firearm.
[28] As the controlling law in R. v. Villaroman[^2] instructs, I may only reach that conclusion if that inference of knowing constructive possession and guilt of the offences charged is the only reasonable inference capable of being drawn from the evidence as a whole, that I do accept.
[29] In R. v. Lights[^3], a recent decision of our Court of Appeal, Watt J.A. summarizes the applicable principles succinctly at paras. 36-39:
36 When the Crown’s case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000 (S.C.C.), at para. 20.
37 To determine if the circumstantial evidence meets the required standard of proof, the trier of fact must keep in mind that it is the evidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that is but a link in the chain of proof: R. v. Smith, 2016 ONCA 25, [333 C.C.C. (3d) 534] (Ont. C.A.), at paras. 81-82; R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345 (S.C.C.), at pp. 360-61; R. v. Côté(1941), 1941 348 (SCC), [77 C.C.C. 75] (S.C.C.), at p. 76.
38 Inferences consistent with innocence need not arise from proven facts. Rather, they may arise from a lack of evidence: Villaroman, at para. 35. Accordingly, a trier of fact must consider other plausible theories and other reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience. They must not amount to fevered imaginings or speculation. While the Crown must negate these reasonable possibilities, it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused’s innocence: Villaroman, at paras. 37-38. See also R. v. Bagshaw, 1971 13 (SCC), [1972] S.C.R. 2 (S.C.C.), at p. 8.
39 When a verdict that rests wholly or substantially on circumstantial evidence is challenged as unreasonable, the question appellate courts must ask is whether the trier of fact, acting judicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole: Villaroman, at para. 55. Fundamentally, it is for the trier of fact to determine whether any proposed alternative way of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused: Villaroman, at para. 56.
[30] In the first search in this case, Mr. Moses was located in the small bedroom at 160 Brimorton Drive where the Luger handgun was found secreted underneath or within the bedsheets. The Walther P38 was loaded with a clip containing eight 9mm Luger bullets.
[31] In the second search at 5 Watson Avenue, seven 9mm Luger bullets were located in a plastic bag found in a pocket of the red sweater hanging in the closet of the bedroom. Those seven bullets were the same make and the same calibre as the bullets found in the clip. There is no doubt and it is agreed that 9mm Luger bullets are readily available from firearm suppliers, but the fact remains that the two sets of rounds found in the two separate locations, one in the loaded magazine and the other in the pocket of the red sweater, are identical in appearance.
[32] However, that alone would not establish knowing possession. Indeed, both Mr. Moses and Ms. McLean deny having any knowledge of the firearm or the bullets in their bedroom closet. Mr. Moses denies that the handgun was his, and he denies having any knowledge of the bullets found in the red sweater in his closet. Ms. McLean as well denies any knowledge of the two pieces of clothing, much less what was in the pockets of those garments. Both Ms. McLean and Mr. Moses disclaimed any knowledge or control over the red sweater.
(i) The Defence Evidence and W. (D.)
[33] Mr. Moses is forty-years-old. He was born in Guyana and came to Canada in 1997. He is a permanent resident but not a Canadian citizen. He has a ten-year-old son, a four-year old daughter that he shares with Ms. McLean, and a stepdaughter. He is trained as a chef, having graduated from Seneca College and he has worked at restaurants like Montana and Kelsey’s. He testified that he regularly went to 160 Brimorton Drive to socialize with friends and to watch sports events on TV, at least several times a week especially when he was not working as was the situation in January of 2018.
[34] When the police burst into 160 Brimorton Drive, he said he was returning from the second back bedroom where he had gone to retrieve his charged cellphone. He said that he was at the doorway of the child’s bedroom when the ETF members stormed the house, that he was disoriented by the distractionary device, and that he dropped to the floor, right where he stood, halfway in the hallway and halfway in the bedroom. He said he then pulled himself a bit further into the bedroom because other occupants of the house allegedly ran over his legs as he said they ran towards the bathroom at the back of the house.
[35] Mr. Moses said he knew within seconds that it was a police raid. He disclaimed any knowledge of a handgun found in the bedclothes of that child’s bed in that room. When challenged, it was somewhat surprising to me that he responded “No, I had no gun that day.” It made me wonder about other days. Nevertheless he was insistent that he would not have had the opportunity to put a gun in the bedclothes, and he insisted he has never carried a gun.
[36] As for the red and white sweaters, Mr. Moses denied that they were his. He said he never wore those pieces of clothing, and that since he weighed around 260 pounds at that time (he says he weighs 190 pounds now), they would not have fit him. He could not say, but thought the red and white sweaters had probably been left behind by guests who had visited his home the month before. They had celebrations at Christmas, and celebrated his birthday a week later on New Years Eve, when twenty or so guests were in attendance. However, he acknowledged the balance of the clothing that was his. He said when things were left behind by guests or friends, Tanya would put things “in the back room.” He quickly added – “or in the closet.” In concluding his evidence, Mr. Moses again stated that he did not know to whom those two garments belonged, and added “you would have to ask Tanya about that.”
[37] Tanya McLean testified that she has been in a common law relationship with Mr. Moses for four years. They have one child together, aged four, and he has another from a prior relationship who is eleven. She has known Mr. Moses’ for seven or eight years. She worked in the past selling automobiles, and for some years as a law clerk. More recently she took part time jobs, but was unemployed in January 2018. She lives at 5 Watson Avenue now with her two children and the defendant’s mother, but Mr. Moses no longer resides there. She is not living with him now. In January of 2018, both of them were on Social Assistance. She regularly drove him to 160 Brimorton Drive to meet and spend time with his friends, and would pick him up when he wanted to come home.
[38] The question raised by Ms. McLeans’s evidence is whether it causes me to have a reasonable doubt under step two of the W. (D.) analysis, that is, even if I do not believe Mr. Moses evidence and it does not leave me in a state of reasonable doubt, does her evidence raise a reasonable doubt in my mind? Although Ms. McLean was called as a Crown witness, the evidence she gave was exculpatory to Mr. Moses, and as such, both counsel agree that it ought to be assessed as defence evidence at step two under the W. (D.) analysis.
[39] In her testimony, Tanya McLean professed to know little about those two garments found in their closet amongst her own and Mr. Moses’ personal clothing. She was shown photographs of the closet in their bedroom, with shoeboxes and clothes hanging on hangers. She was specifically asked about the red and the white sweaters. As for the red sweater, she testified that she did not know to whom it belonged and that she could not remember ever seeing it “before the police showed it to her on that day.” She said she never saw the white sweater “before the day I saw the pictures.” She said she did not know to whom those pieces of clothing belonged.
[40] It was her theory that the red sweater and the white sweater had been left behind by one of the other occupants of the Brimorton Drive house, or somebody else who had come to her house on Watson Avenue and left them behind. In what one might regard as a bit of oath-helping, she explained that she had never seen Mr. Moses wear either of these sweaters, and “[she had] known him for some time.”
[41] She testified that she had been doing a lot of cooking for the various seasonal parties they hosted around Christmas and for Mr. Moses’ birthday celebrations earlier in January. She told me that a lot of people would be coming and going, and that people would leave things behind after coming to these gatherings. She did the housekeeping and said that she stuffed things that were left behind, like jackets, sweaters or cell-phone chargers, into closets.
[42] Let me focus for a moment on her expressed view that neither the red or the white sweaters would have fit Mr. Moses. From looking at the photographic images of the red and white sweaters, even though those images were not entirely clear, she was of the opinion that they would not have fit him at that time, a time when she guesstimated that he weighed approximately 260 pounds.
[43] Detective Wauchope was asked about whether the red sweater or white sweater would fit him. His answer was that that those garments would be “a little bigger” than something he would wear, and that he weighed 180 pounds. Defence counsel endeavoured to bootstrap on this evidence to suggest that there would have been a much bigger difference in appearance, and a much bigger difference in size of these items of clothing, if they were to have been capable of being worn by Mr. Moses at 260 pounds.
[44] Despite Ms. McLean’s comments meant to distance Mr. Moses from the red and white sweaters, and the claimed support to that position provided by Detective Wauchope’s evidence, I was not satisfied that the sweaters (i) could not have fit Mr. Moses, or (ii) that the sizing of the two garments could be determinative of either his ownership of them or whether they did fit him at some point in time.
[45] First, it is not known exactly what size those garments were, and there is no independent evidence of what Mr. Moses weighed in January 2018. I find the line of inquiry to be one that is entirely speculative. However, I will concede that as a person who presently weighs just south of 250 pounds despite my continuing best efforts to reduce my weight, my own assessment of the photographs caused it to be more likely than not, in my mind, that these garments would have been capable of being worn by Mr. Moses. Again, however, this is largely speculative, and has little value in the assessment of evidence and the reasonable inferences the evidence can support.
[46] As defence counsel colourfully and poetically described it, Ms. McLean's evidence was essentially “that if the sweater don't fit, [I] must acquit”, because that would mean that it could not be his sweater and therefore the bullets found in those garments would not and could not be his ammunition. Ms. McLean gave evidence that the sweaters “could have belonged to somebody else who may have left them behind.”
[47] However, I do not regard the uncertain sizing of the garments as “a strong piece of evidence to support that the sweaters are simply not his size,” as defence counsel argued. Given the uncertainty of the evidence, I am unable to find any logic in that position, that would or could necessarily lead to an inference that they were not his and belonged to somebody else.
[48] What all of these distracting suggestions ignore is the important fact that these items with the bullets they pocketed were found amongst their clothing in the closet of the bedroom that Mr. Moses and Ms. McLean shared. When that undisputed piece of evidence is taken into account, I find that it completely overwhelms there being any alleged persuasive evidential value to an argument they could not be his, merely because of sizing.
[49] At the end of the analysis I am required to undertake under R. v. W. (D.) I neither believe the relevant parts of either Mr. Moses’ or Ms. McLean’s evidence, nor does their evidence leave me in a state of reasonable doubt relative to these charges, and whether Mr. Moses was in knowing possession of the Walther P38 Luger handgun. I find Mr. Moses’ story that he was simply returning from the back bedroom at 160 Brimorton Drive having retrieved his charged cell-phone to be contrived, a story created to enable him to explain his presence in the doorway of the small bedroom. Similarly, his explanation that he ended up partially in the small bedroom and partially in the hallway, because he was stepped on by his friends in an ensuing panic to race to the back of the apartment after the door was forced by police, is just not credible in the face of the other evidence.
[50] Defence counsel correctly observed that there seemed to be some confusion about how Mr. Moses ended up on the floor in the hallway, “sort of in the room, and sort of out of the room.” However, his explanation of not having heard the first bang of the door being breached but only the second explosive sound of the distractionary device did not make sense to me. I found it to be contrived to explain his presence in the small bedroom where, as I will soon discuss, he is alleged to have just secreted the gun.
[51] There are two important pieces of evidence that assist me to reach this conclusion, taken in the context of the evidence as a whole. The first is that when the timelines are considered carefully, there would have been a very loud bang when the door was breached. Very soon thereafter, the device would have been lobbed into the residence, but it took at least five if not more seconds to deploy. Then the officers ran in. Officer Riegert runs up into the kitchen to clear it. Only then, certainly after the passage of another fiften or so seconds, he heads towards the bedroom across the hall. He plainly sees Mr. Moses, but he does not see him lying on the ground at that moment. Instead, he saw him still standing in the doorway of the bedroom. Seconds later, Officer Riegert is across the hallway, and enters the bedroom, where he observes Mr. Moses going down to the floor on his own in a submissive manner.
[52] The important point is that at that moment, Mr. Moses was actually totally inside that room, as the photographic evidence and Officer Riegert’s evidence makes clear. Mr. Moses is not even close to being on the floor, “sort of in the room, and sort of out of the room”, as it was described.
[53] Mr. Moses’ evidence about being partly in and partly outside the room, and then “pulling himself in a bit further” is, like virtually all of his evidence, simply not credible. Instead, I accept Officer Riegert’s evidence, which not only refutes Mr. Moses’ evidence on this important issue, but which also places Mr. Moses well within the bedroom, only just going down to the floor, immediately before which he would have had the opportunity to secrete a firearm in the bedsheets of the child’s bed.
[54] Turning to the second search warrant, the defence evidence disclaims knowledge of and/or control of the two garments in which bullets were located. For the reasons that follow, I reject both Mr. Moses and Ms. McLean’s evidence on the location, knowledge of and ownership of the two garments found in their closet. It is convenient, self‑serving, and not worthy of belief.
[55] Mr. Moses testified that he had no idea who owned the two pieces of clothing that were found hanging in the bedroom closet he shared with his common‑law spouse. Even though (i) the two items were on hangers in the closet, (ii) were surrounded by and hanging mixed in with his own and Ms. McLean's clothing, which (iii) they both identified one by one, Mr. Moses had no explanation as to how the mysterious garments came to be there. All he could say, as he did several times, was that “we would have to ask Ms. McLean, because she did all of the cleaning.”
[56] In her testimony, Tanya McLean played her supporting role with superficial aplomb. She was eager and seemed to go out of her way to emphasize how many people lived at 5 Watson Avenue, how many people came and went on a daily basis, and how many people regularly visited to party such as at Christmas and to celebrate Mr. Moses’ birthday. She was constantly cooking for crowds of people. She and Mr. Moses entertained plenty of people at their house on numerous occasions and she often tidied up afterwards, including, she said, collecting jackets and sweaters and cell-phone chargers left behind by guests.
[57] While perhaps items were left behind by guests from time to time, something we have all probably experienced in our lives, I find all of this was contrived and designed to permit her to assert that she had no idea about the ownership of the red sweater or the white sweater that were hanging in her own closet, nor to whom they belonged.
[58] I accept that it may not be possible to definitively establish ownership of the red PARISH-N sweater, with its pocketful of bullets. While it would be helpful, as Crown counsel noted, if there had been a picture on the bedroom dresser of Mr. Moses wearing the red sweater, or if it had been found to contain a nametag with his name on it, or Ms. McLean’s for that matter, sewn inside the garment as our mothers did to our clothing when we were children, in my view the absence of evidence of actual ownership of those garments is not problematic.
[59] The important point is that those garments were hanging in their closet, and I reject the notion that neither of them knew to whom they belonged or how they got there. Ms. McLean actually seemed to be suggesting that these garments only suddenly appeared in the closet coincident with the exercise of the warrant. She did not remember ever seeing the red sweater before the police showed it to her that day and she said she never saw the white sweater “before the day I saw the pictures”, which suggests some time later.
[60] Ms. McLean said she did not know to whom the red and white sweaters belonged, but that she never saw Mr. Moses wearing either garment. Perhaps that is true, but in my view, in all of the circumstances it was more likely not true, but said to assist Mr. Moses in his efforts to distance himself from this incriminating evidence. I have asked myself many times in the six-plus weeks that have passed since the trial, how reasonable or realistic it is that a person could have items of clothing in their principal clothes closet that they use each and every day, and whose contents they would accordingly see every day, and that the person would know did not belong to them and not know to whom they belonged, and yet just leave them there to gather dust? It is a nonsensical suggestion that is virtually comical.
[61] Defence counsel argues that even if I do not believe Ms. McLean’s evidence, and even if I consider it a self‑serving work of fiction concocted to help out her partner, which I do, that I must still go on to consider whether what she said was reasonable. He says I must still ask myself whether it could permit an alternative reasonable inference to be drawn? An inference that the sweaters with the bullets in the pockets were left there by somebody else at some point.
[62] I can find no air of reality, and no realistic or reasonable logic to that suggestion. Those 9mm Luger bullets, identical to the ones extracted from the gun found at 160 Brimorton Drive were found in Mr. Moses’ bedroom that he shared with his common-law spouse. Regardless of the fact that they were found in the pocket of the red sweater, the point is that the bullets were found in a place where Mr. Moses slept each and every night, according to his own and his wife’s testimony. That is the important point. That is the objective fact. That is the fact that unequivocally connects the bullets at 5 Watson Avenue to him, given my rejection of his evidence. Neither, given her testimony, is there any equivalent or alternative reasonable inference available to connect the 9mm Luger bullets to Ms. McLean.
[63] As an aside, I note again that the white sweater also contained two other pieces of plastic wrap containing a different kind of ammunition. Crown counsel was obviously correct to introduce that evidence to complete the narrative of what happened, but that ammunition has nothing directly to do with the 9mm Walther P38 gun that was found in the child's bedroom at 160 Brimorton Drive. What it does relate to and undermines, however, is the credibility of both Mr. Moses’ and Ms. McLean’s evidence that neither of them could explain these mystery garments, found in plain view in their closet, or the bullets they contained.
[64] It reinforces the un-believability of this evidence in its entirety. How is it possible that over a dozen rounds of ammunition that you know nothing about could be located in two pieces of clothing, that just coincidentally happen to be found in your closet, when you claim to have no idea how they ended up in your closet? It fails to stand up to common sense or believability.
[65] Indeed, defence counsel concedes that if I find, as I have, (i) that the ammunition was found in a bedroom that is admittedly shared by Ms. McLean and Mr. Moses, (ii) that the ammunition was found in two sweaters in that closet, and (iii) that the two sweaters are within the control and knowledge of Mr. Moses, whether they actually belong to him or not, and that the ammunition does not belong to Ms. McLean, then this is more than enough to find that Mr. Moses had knowledge and control of the ammunition in his closet, because he had either personal or constructive possession of it in that place.
[66] For all of these reasons, I do not believe or accept the exculpatory evidence of either Mr. Moses or Ms. McLean, and neither am I left in a state of reasonable doubt by that evidence. It follows, that I must now turn under the third step of the W. (D.) analysis to determine whether Crown counsel has proven the offences beyond a reasonable doubt on the basis of the whole of the evidence that I do accept.
(ii) Did Mr. Moses knowingly possess the firearm and the ammunition?
[67] Defence counsel advanced a number of arguments that the guilt of Mr. Moses is not the only reasonable inference that can be drawn from the evidence, and as such, that he must be acquitted. For example, I agree that Mr. Moses’s presence in the bedroom, in close proximity to the firearm as it was found at the Brimorton Drive address is not enough, in and of itself, to establish that he had knowledge and control of that firearm.
[68] The court made the point at para. 50 in R. v. Lights, above, that mere occupancy of a residence where something is found, does not create any kind of presumption that there was possession of that object.
[69] Mr. Moses may have been there at the time, as he went frequently to chill with his friends and watch sports on TV, but he was not a tenant of the house at 160 Brimorton Drive and never stayed overnight. He would visit for a few hours at a time and then go home. He was not a permanent occupant of the house. There was no indication that he ever stayed there and no evidence of any property, documents or anything else belonging to or associated with him that was found and that could establish any kind of specific connection to that bedroom. As well, it is undisputed that a number of other people, perhaps as many as fifteen, had access to and regularly attended that house to socialize. There is no DNA or fingerprint evidence that connects Mr. Moses to the firearm.
[70] As such, defence counsel contends, and not surprisingly, Crown counsel concedes that the mere fact that Mr. Moses was in close proximity to the gun is not enough to establish possession and control over it. That is obvious. Crown counsel acknowledges that in order to bridge the evidential gap, he needs more than that. He needs a finding that the ammunition found at 5 Watson Avenue, identical to the bullets found in the handgun at 160 Brimorton Drive, was knowingly possessed by Mr. Moses. However, the defence contends that even if I were to find, as I have, that Mr. Moses had knowledge and control of the ammunition, that fact taken together with the other evidence is just not enough to establish guilt on the firearms possession charges, given counsels’ agreement that such ammunition is readily available.
[71] The question, as defence counsel framed it, is whether “the inference that the owner of 9mm ammunition knows that there is a 9mm gun at another property with which he has some connection the only inference that is available on that evidence?”
[72] However, the transcripts will show that I interjected at that point in response. I asked whether counsel had really meant to say the “the only reasonable inference”, rather than “the only inference.” He agreed. This is important in a case like this one.
[73] Mr. Reeve acknowledged the importance of ensuring that the analysis cannot be permitted to descend into an exercise of mere speculation. Equally, if not more important, the obligation to present and establish facts, or absence of facts upon which reasonable inferences can or may, or may not, be drawn, rests with the Crown alone. The inferences drawn must be based on the application of logic, common sense and human experience to the evidence presented at trial, or to the gaps or absences of evidence, but I would emphasize that those inferences must also be reasonable in all the circumstances and having regard to the body of evidence that I accept as a whole.
[74] It was suggested that there are a number of alternative reasonable inferences that may be available in this case. For example, even if I find, as I have, that Mr. Moses had knowledge of the red sweater and the white sweater in that closet, it was suggested that it would be reasonable to infer that he may have been given those garments and asked to hold onto that ammunition by somebody else. However, by corollary, even if that were so, counsel asserts it would not necessarily lead to an inference that Mr. Moses knew about that 9mm gun in that location on that day. Moreover, it was suggested “He may have found the ammunition somewhere and picked it up. It could have fallen out of somebody else’s pocket.”
[75] I suppose that could have happened, but if it had, it would actually contradict Mr. Moses denial of any knowledge of the two sweaters, because if Mr. Moses had by happenstance found those bullets on the ground, wherever they came from, the subsequent location of the bullets in the pockets of those garments would establish knowing possession beyond doubt. That follows because the only reasonable inference would be that he would have been the one to put them there. But more importantly, I reject that the inference counsel suggests can be drawn is reasonable, and there is no evidence that could support it. It is entirely speculative.
[76] The Crown’s position is that Mr. Moses had personal possession of the handgun at 160 Brimorton Drive at the moment when the officers breached the door, but that in the thirty seconds before he was found, he went into that small children's bedroom, and placed the loaded gun down the fitted elasticized mattress slipcover in a desperate attempt to hide it before the police entered the room, and that he succeeded in doing just that.
[77] I find that Mr. Moses had more than enough time to secrete the gun down in the bedsheets of the mattress in that room. That finding is supported by the testimony of the two ETF officers, Riegert and Rennie, relating to the timing sequence that was involved between the breaching of the door with the battering ram, the deployment of the distraction device, and the time it took to go up the stairs, through the kitchen, across the hallway, and into the child’s bedroom where both Mr. Moses and the firearm were found.
[78] Mr. Moses said that it was only three or four seconds. He said he only heard one bang, which he said was the detonation of the distractionary device. He said he did not hear the sound of the police crashing through the door, having smashed it with one of the heavy metal battering rams that are used for this purpose. I reject that evidence. The Brimorton Drive residence was not large, and it defies belief that police could have created the sound resulting from battering the front door open with a thirty pound or more metal battering ram, and the sound of the distractionary device detonating five or six seconds later, without all of the occupants hearing both of those very loud noises.
[79] The thirty-odd seconds that passed from the breaching of the door to Mr. Moses being located, and the fact that he was seen standing in the doorway of the bedroom some seconds before Officer Riegert exited the kitchen, crossed the hallway, and found him inside that room in the process of lowering himself to the floor, provides a more than ample evidentiary basis for the Crown’s position.
[80] Officer Riegert testified that it was approximately thirty feet from the front door, up the stairs, through the kitchen, and across the hallway to that small bedroom. He testified that he partially observed Mr. Moses from the kitchen before he actually entered the bedroom, and then, when he actually entered that room, which would likely have been at least five to ten seconds later, that he observed Mr. Moses beginning to lower himself to the floor. Officer Riegert never saw Mr. Moses already on the floor, with his body partially in the hallway and partially in the bedroom, as Mr. Moses would have me believe.
[81] Officer Riegert testified that he arrived in the bedroom and detained Mr. Moses within thirty seconds after the front door was breached. Defence counsel noted it was actually under thirty seconds, which may perhaps be correct, but I reject that it was only a period of only three to four seconds, as Mr. Moses contends. Not possible. Period.
[82] Officer Rennie was the second officer to come into the bedroom behind Officer Riegert. It was he who specifically noted in his evidence that once the distraction device is thrown or lobbed into the premises, it typically takes five or six seconds before it detonates. Not surprisingly, it is not an instantaneous detonation, any more than a hand grenade detonates immediately after being thrown.
[83] There is an intentional delay to ensure that the officers who throw it are not injured by its detonation. The same principle obviously applies to a hand grenade. The hand grenade analogy was put to Officer Rennie in cross‑examination and he agreed it was like a grenade because once thrown into the melee, it is designed to not explode immediately, but only five to six or more seconds later. That testimony reminded me, however, of a story from long ago where delayed detonation did not save John Irving’s famous character, Owen Meany, who died heroically saving a group of Vietnamese refugee children who had been assigned to his care, when he continued to hold onto a hand grenade that had been lobbed into an outdoor washroom building by an evil antagonist, until it detonated.[^4]
[84] I accept this accumulation of evidence from these two officers and find, without doubt, that it supports the Crown’s position that there were two loud noises or bangs that occurred – first the breach of the door from the battering ram and second, the explosion of the distraction device some five to six seconds later. I reject the notion that Mr. Moses did not hear that. He would definitely have heard both of those loud noises, and logically, it would have been the fact that he heard the first loud noise that alarmed him, and that gave him a warning that he needed to hide the handgun he was in actual possession of at that very moment. It created only a brief window of time, but it was enough time to permit him to take the firearm which he possessed and hide it in the bed sheets of the small bedroom before Officer Riegert found and detained him seconds later.
[85] I would add that Mr. Moses claim of having heard only one noise is also irreconcilable with his own evidence of where he was located. He said he was standing at the doorway of the child’s bedroom and dropped to the floor in a disoriented state as soon as the second bang was heard. But that noise occurred only five or six seconds after the front door was noisily breached with a battering ram, a noise that was likely close to if not quite as loud as the distractionary device. It is simply not conceivable that Mr. Moses did not hear both sounds from the position he was located, closer to the front of the house than the back, and immediately acted to hide the firearm he was carrying on his person.
[86] Further, I find that the location of the firearm, located as it was only a few feet from Mr. Moses, also creates an irrefutable inference in all of the quite unique circumstances in this particular case, that the firearm was his. I find the fact that a loaded gun found in that position was his, even if not actually on his person, is the only reasonable inference and of exceptionally strong evidential value. I will explain why.
[87] To assess the reasonability of that inference, consider the contrary proposition or possibility. It would be that the gun did not belong to Mr. Moses, that he knew nothing about it, as he claimed, and that it could reasonably have belonged to someone else.
[88] If that were to be is accepted as a reasonable alternative inference, then that person must have intentionally chosen to store their handgun for hiding in the bedsheets of a child’s bed in that small children’s bedroom.
[89] I accept that might be considered by some to be an ingenious storage decision, one that would not likely immediately occur to someone who was trying to search locations in a family home for where its owner might have stored a loaded handgun. Who would think to look in the bedsheets in a child’s bedroom for a loaded and fully operational illegal handgun?
[90] It is obviously not controversial in this case where the loaded handgun was found, but the alternative suggestion that this particular location was intentionally chosen as a long term hiding spot by the real owner, whoever that may be, and not by Mr. Moses, once again defies common sense. It is not a reasonable inference to draw for a variety of reasons.
[91] Neither, given the brief duration of time between the breaching of the front door and the location of Mr. Moses in that small bedroom, and the handgun a short time later close to where he was, is it a reasonable inference that the gun was put there by one of the other persons who were found there that day. A number of individuals were in the living room, and others may have been in other rooms towards the back of the house. However, the only person who is seen in that room, by either Officers Riegert or Rennie, in the thirty or less seconds that passes from the door being breached until he is found there, is Mr. Moses. No one else is seen in or near that room. No one else had the opportunity to hide a gun in those bed sheets. Only Mr. Moses had that opportunity, and he had to take it because time was short.
[92] Common sense, together with my own experience, confirms that criminals will store their handguns and other firearms in a wide variety of places, in just about any conceivable location. They sometimes keep them in the console or glove compartment of a vehicle, or in containers secreted in cars, say in the space under the trunk floor where a spare tire would usually be found, or perhaps under the back seat. As well, they sometimes conceal firearms in their own pockets, or in the waistband of a pair of jeans they may be wearing, or perhaps, as in the most recent case I presided over before this one, in a satchel that they may carry with them to hold a variety of belongings, sometimes including loaded firearms, and sometimes even illegal drugs.
[93] They may also store their firearms in discrete locations within the home, in the back corner of a kitchen cupboard behind food cannisters, or perhaps in a shoebox on the top shelf of a bedroom closet. Perhaps they may even store them behind books in a bookcase, or hanging down in the back of a toilet tank.
[94] I find it telling and surprising that none of those or other similar discrete hiding places were used to store the Walther P38 in this case. The reason it surprises me is that illegal firearms are expensive to acquire and valuable to those who possess them for illegal purposes, an important tool of whatever illegal trade they practice. Owners of prohibited and unlicensed firearms are habitually careful to protect their handguns and to ensure they will not be found and taken by others. They are not as easy to come by as a BB gun at Canadian Tire.
[95] As such, the fact that this loaded handgun was found down inside the elasticized sheet on the mattress in that child’s room, the same room where Mr. Moses was found and detained, speaks volumes. That is not a location that any other owner would be likely to have intentionally chosen as a storage place for an illegal firearm. It is a totally unlikely and unreasonable suggestion, not only because the firearm could presumably have been found anytime the bed was made up, say by a Mother living in the house, or a teen helping Mom with daily housekeeping chores. But it is also not a choice an owner would ever make intentionally, I would suggest, because even gun-toting criminals would not likely risk serious potentially life threatening harm by storing a fully loaded firearm in a location easily accessible to a young child.
[96] I find that it is entirely unreasonable to infer that such a location could or would have been chosen intentionally by an owner other than Mr. Moses, and that it is entirely reasonable to infer that only Mr. Moses would have put the gun there. The reason is simple. The ETF had battered the door open, and were no more than a minute from locating him, and finding whatever he had in his possession of on his person. He needed to hide the firearm, the one that had identical bullets to the ones that he had in his bedroom at 5 Watson Avenue, and he needed to do that in a very big hurry. He did not have time to think about or search for a better hiding spot. He had to act as quickly as possible, come what may. So he did. He secreted the firearm in the sheets of the bed just in time to start lowering himself to the floor as Officer Riegert entered that room.
[97] Having rejected the evidence of Mr. Moses and Ms. McLean, that is why I find that the only reasonable inference on the whole of this evidence that I accept, the evidence found in each of the two search locations but considered together in aggregate, is that the fully loaded Walther P38 Luger handgun found at 160 Brimorton Drive, and the rounds of identical 9mm Luger ammunition found in the garments located hanging in his bedroom closet at 5 Watson Avenue, all belonged to Mr. Moses, and no one else.
[98] I find that conclusion is the only reasonable inference that can result here from the connecting of the evidential dots on a reasonable and not a speculative basis.
[99] It is the presence of the identical 9mm bullets in the magazine of the firearm seized at 160 Brimorton Drive, and the finding of those same identical bullets in Mr. Moses’ bedroom closet at 5 Watson Avenue that prevents there from being any reasonable inference that the owner of the gun was anybody other than him, and that establishes his guilt beyond a reasonable doubt.
[100] I find Mr. Moses guilty on both counts.
Michael G. Quigley J.
Released: July 26, 2021
COURT FILE NO.: CR-0030/19 J/J
DATE: 20210726
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ORIN MOSES
Defendant
Reasons for decision
Michael G. Quigley J.
Released: July 26, 2021
[^1]: 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26.
[^2]: 2016 SCC 33, [2016] 1 S.C.R. 1000 (S.C.C.).
[^3]: 2020 ONCA 128.
[^4]: Irving, John, A Prayer for Owen Meany, (HarperCollins: New York, NY, 2012), Chapter 9.