COURT FILE NO.: CR-19-50000773-0000
DATE: 20211213
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
-and-
JAVON WALKER
Tom Mack, for the Crown
W. Calvin Rosemond, for Mr. Walker
HEARD: October 19-22, 25-29, November 1-3, 2021
Justice J. Copeland
REASONS FOR JUDGMENT
[1] Javon Walker is charged with three counts relating to allegations of possession of a restricted firearm: (i) possession of a loaded restricted firearm, contrary to s. 95(2)(a) of the Criminal Code; (ii) possession of a restricted firearm, contrary to s. 92(3)(a) of the Criminal Code; and (iii) possession of a firearm on which the serial number had been removed, contrary to s. 108(2)(a) of the Criminal Code.
[2] The charges arise out of a search of a condominium unit pursuant to a warrant.[^1] Mr. Walker was not the target of the investigation that led to the issuance of the warrant. The firearm was found in a black bag in the closet in the second the bedroom of the unit. As I will explain, there is evidence connecting that bedroom to Mr. Walker and to Thomas Duncan-Williams, originally one of the other defendants in this trial.
[3] The prosecution’s case is primarily circumstantial. The primary issue in dispute is whether the prosecution case proves beyond a reasonable doubt that Mr. Walker possessed the firearm.
[4] When this trial began, there were four defendants. They were charged with different counts relating to two firearms and some cocaine found in the unit. Midway through the trial, Crown counsel asked that a number of counts be stayed because of evidence about police conduct in the preparation of property reports regarding some items seized in the search (I address this issue at the end of these reasons).
[5] Once those counts were stayed, counts #4, 5, and 6, remained. Counts #4, 5, and #6 relate to a loaded restricted firearm found in the closet of the second bedroom of the unit, and were charged against Mr. Walker and Mr. Duncan-Williams. At the outset of closing submissions, Crown counsel invited me to dismiss the charges against Mr. Duncan-Williams because he had reached the conclusion that the Crown could not meet the burden to prove the charges beyond a reasonable doubt against Mr. Duncan-Williams. In particular, Crown counsel explained that he was of the view that the evidence of knowledge and control of the firearm found in the bedroom closet on the part of Mr. Duncan-Williams was not sufficient to rebut reasonable inferences other than Mr. Duncan-Williams’ guilt. I found Mr. Duncan-Williams not guilty of those counts.
[6] This left the same three counts to be adjudicated in relation to Mr. Walker. There are other individuals with the last name Walker referred to in the evidence at trial (including one of the original co-defendants). In these reasons, where I refer to “Mr. Walker” without specifying a first name, I am referring to Javon Walker.
[7] I outline this procedural history for two reasons. First, as charges and defendants fell away during the trial, it had the impact of narrowing what evidence is relevant to the remaining charges. Thus, although I briefly outline the general context of the execution of the search warrant, the evidence I outline below focuses on the issue whether of Mr. Walker had control over the condominium unit, and in particular the bedroom where the firearm was found, and whether he had knowledge of the presence of the firearm. Second, although Mr. Duncan-Williams is no longer before the court, as I outline below, there is evidence that he was a co-occupant of the bedroom where the firearm was located by police. This evidence has relevance to my assessment of whether the Crown has met its burden to prove that Mr. Walker possessed the firearm found in the bedroom closet, in particular, whether the Crown has met its burden to prove that Mr. Walker had knowledge of the firearm’s presence.
Applicable law regarding the presumption of innocence, the burden of proof, proof of possession, and circumstantial evidence
[8] I begin with the basic legal principles that apply in this case. None of these principles is in dispute between the parties.
[9] Mr. Walker is presumed innocent unless and until the prosecution proves his guilt beyond a reasonable doubt.
[10] In order to prove possession, the prosecution must prove knowledge of the firearm and control over the firearm: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 15, 17; R. v. Lights, 2020 ONCA 128 at paras. 44-52; R. v. Choudhury, 2021 ONCA 560 at para. 19.
[11] Section 4(3) of the Criminal Code provides for three forms of possession. In this case the prosecution relies on a theory of constructive possession by Mr. Walker. In order to prove constructive possession, the prosecution must prove: (i) that Mr. Walker had knowledge of the character of the item (the loaded firearm); (ii) that he knowingly put or kept the firearm in a particular place, whether or not that place belongs to or is occupied by him; and (iii) that he intended to have the firearm in the particular place for his use or benefit or that of another person: Morelli at para. 17; Lights at paras. 44-52; Choudhury at para. 19.
[12] The fact that a thing is found in a place occupied by a defendant does not create a presumption of knowledge and control. However, the fact that a person has control over a place, together with other evidence may (depending on the whole of the evidence) enable a trial judge to infer knowledge and control of the item in appropriate cases: Lights at para. 50; Choudhry at para. 19; R. v. Lincoln, 2012 ONCA 542 at para. 3; R. v. Watson, 2011 ONCA 437 at paras. 11-13; Pham at paras. 17-18.
[13] The prosecution case for possession is a circumstantial one. In R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 30, 35-42, the Supreme Court of Canada considered the proper approach to circumstantial evidence and proof beyond a reasonable doubt. Where the proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, a trier of fact should not draw an inference of guilt from circumstantial evidence unless it is the only reasonable inference that the evidence permits. Reasonable alternative inferences (besides guilt) may be based on the evidence or on a lack of evidence. What is important is that only reasonable alternative inferences can give rise to a doubt that the defendant is guilty. Speculative alternative inferences will not give rise to a reasonable doubt.
[14] In considering the line between reasonable alternative inferences and speculative ones, Justice Cromwell, writing for the court, held as follows at paragraphs 37-38:
When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: [citation omitted]. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: [citation omitted]. “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.
Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in the light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.
[15] As the Court of Appeal recently reiterated in Lights at para. 37, in assessing whether circumstantial evidence meets the required standard of proof, the court must bear in mind that it is the evidence assessed as a whole that must satisfy the reasonable doubt standard of proof, not each individual piece of evidence.
[16] Inferences consistent with innocence are not required to arise from proven facts. They may arise from a lack of evidence: Villaroman at paras. 35-36; Lights at para. 38. As the Supreme Court noted in Villaroman, this principle is consistent with the holding in R. v. Lifchus, 1997 CanLII 319, [1997] 3 S.C.R. 320, that a reasonable doubt may arise from the evidence, or from a lack of evidence. But alternative inferences, whether based on the evidence or a lack of evidence, “must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”: Villaroman at para. 36.
[17] The assessment in any given case as to whether the prosecution has proven possession beyond a reasonable doubt based on circumstantial evidence is always a very fact-driven analysis.
[18] Finally, before turning to the evidence, I underline the nature of the prosecution’s burden of proof beyond a reasonable doubt. The reasonable doubt standard is a higher standard of proof than the civil standard of proof on a balance of probabilities. The reasonable doubt standard is a heavy burden. It is not sufficient to believe that a defendant is probably guilty. However, the prosecution is not required to prove its case to the point of absolute certainty, as that would set an impossibly high standard. A reasonable doubt is a doubt based on reason and common sense, based on the evidence, or lack of evidence, in the record before the court: Lifchus at para. 39.
The Evidence and admissions
[19] The primary facts of the execution of the search warrant, the finding of the firearm in a bag in the second bedroom of the unit, and the existence of documentation showing Mr. Walker’s lease of the apartment are not in dispute. What is in dispute is what inferences can and should be drawn from the primary facts, and whether the inferences allow for a conclusions that his possession of the firearm has been proven beyond a reasonable doubt. For this reason, I make my findings with respect to the primary facts in this section of my reasons as I summarize the evidence relevant to the central issue of proof of possession. I address what inferences can be drawn from the primary facts in the analysis section below.
[20] Based on information received from a confidential source, officers from the Toronto Police Service were investigating a target named Facundo Guerra for suspected trafficking of cocaine in the area of the Woodbine Casino. Officers conducted surveillance at 840 Queen’s Plate Drive in the City of Toronto, on September 5, 13, and 14, 2018. They had information Mr. Guerra was associated this address. This building is near both the Woodbine Casino and the Woodbine Mall.
[21] I will not recount the surveillance observations at 840 Queen’s Plate Drive in detail, as none of it was led in a manner that would allow me to draw a conclusion that Mr. Walker was observed in the surveillance (apart from him being captured twice on building security video, which I address below). However, one aspect of the surveillance that has relevance is an observation of Mr. Duncan-Williams exiting 840 Queen’s Plate Drive. On September 13, 2018, at 6:35 p.m., DC Jason Taylor observed Mr. Duncan-Williams exit the building from the front doors, and walk across the street towards the Woodbine Mall.
[22] On September 14, 2018, the officers had obtained a search warrant to search a condominium unit on the 16th floor of 840 Queen’s Plate Drive. They conducted surveillance on the unit with the intention of locating Mr. Guerra, arresting him, and then executing the search warrant on the unit. At approximately 10:10 p.m., police located Mr. Guerra in the parking lot at the Woodbine Casino and placed him under arrest.
[23] After that, five officers attended at 840 Queen’s Plate Drive to execute the search warrant – DC Taylor, DC Connor Rogers, DC Paolo Saccocia, DC Hassan Syed, and DC Andy Clarke. Since they had arrested Mr. Guerra, the officers were not expecting to find anyone to be in the unit, or in any event, not a large number of people. They were wrong.
[24] When police arrived at the unit, the encountered Tristen Bailey (previously one of the co-defendants) in the hallway exiting the unit. The officers detained him. DC Syed stayed with Mr. Bailey in the hall, and the four other officers entered the unit. The entry was made at 10:35 p.m.
[25] Inside the unit there were eight other people – seven males, and a female under the age of 18. The officers quickly took control of the unit, and had all the people in the unit lie on the ground. They initially placed everyone under detention. Then, because of certain observations made, they arrested everyone inside the unit for possession of cocaine for the purpose of trafficking, and firearm possession (those observations are not relevant to the firearm possession charges against Mr. Walker).
[26] Because there were only four officers present inside the unit, and they had not anticipated so many people to be inside the unit, the officers did not have enough handcuffs to cuff everyone they had detained in the unit. The officers called for backup in order to manage the large number of people in the unit, and to transport them to the division.
[27] There was some cross-examination during the trial about how quickly the officers were able to control the unit, and aimed at the issue of whether any of the people who were in the unit could have moved around within the unit after the officers entered. I find that none of the people found in the unit moved around significantly within the unit in the brief time from the police entry until when the police had all the occupants lying on the ground. In particular, I find that no-one entered into or exited from the second bedroom, where the firearm was found in the bag in the closet, after the police entered the unit.
[28] I accept the evidence of the police witnesses that the door to the unit was unlocked when they entered, that they were quiet in the hall before they entered, and that they took control of the unit quickly. All of the officers who were asked testified that they took control of the unit very quickly. DC Taylor testified that it was within less than a minute. The officers entered with their firearms drawn, and yelling, “Police! Search Warrant!”. The people in the unit quickly complied with the direction to lie down. All of the officers involved in the initial entry into the unit testified that when they entered, they did not see anyone try to run between the rooms in the unit, or out of the unit. I accept that evidence.
[29] In addition, three officers gave evidence, which I accept, about dealing with specific people immediately upon entry in specific locations within the unit. None of those people were entering or exiting the bedroom where the firearm was found in the bag in the closet when police entered. DC Taylor testified that upon entry he dealt with two males who he had proned on the floor in front of the couch in the living room (Travis Walker and Gerson Landeros Martinez). DC Rogers testified that upon entry he first dealt with a male in the hall bathroom (Mr. Duncan-Williams), and then a male in the kitchen (Tyson Walker). DC Andy Clarke detained two people in the den, which is just on the right as one enters the unit (Damien Vassell and the female).
[30] Thus, the evidence addresses the location of six out of the eight people found in the unit at the time the search warrant was executed. The only two who were not specifically accounted for on entry were Mr. Walker himself, and Muzamil Addow (I note that DC Saccocia, the fourth officer who was in the group of officers that first entered the unit was not called as a witness at trial). I accept the officers’ evidence on the locations of those six people. None of those six people were in or entering or exiting from the bedroom where the firearm was found at the time the police entered. Although the evidence of the officers about where specifically six of the eight people in the apartment were found on entry does not address the specific locations of Mr. Walker and Mr. Addow, it supports the more general evidence of the officers that they did not see anyone running within the apartment when they entered.
[31] Once backup officers arrived and the people found in the unit were removed, the officers conducted the search pursuant to the warrant. Pre-search photos were taken of the unit before the search commenced. As items were found, photos were taken of the items, at times where they were found, but not consistently. I will focus only on the search of the bedroom where the firearm that Mr. Walker is alleged to have possessed was found in a bag in the closet.
[32] The unit where the search was conducted is a two-bedroom condominium unit. The bedroom where the firearm was found that Mr. Walker is alleged to have possessed is the second bedroom (i.e., not the main bedroom). DC Andy Clarke search that bedroom.
[33] I base the description of that bedroom on the evidence of DC Clarke, a floorplan of the unit, and the many photos filed in evidence. The door to the second bedroom is off of the living room, and across from the hall bathroom. The bedroom has a large closet, which DC Clarke described as a walk-in closet. The closet is to the right as one enters the room. DC Clarke testified that the closet is approximately 4 feet by 4 feet. The bedroom is average-sized. There is a bed consisting of a mattress and box spring directly on the floor. To the left of the bed (looking from the doorway) is a TV stand with a TV and various items and documents on it.
[34] The doorframe of the closet is depicted in exhibit #3j, which is one of the pre-search photos. Of note in that pre-search photo is on the lower right, within the frame of the door to the closet, one can see the bottom of what DC Clarke testified is a hanging closet organizer. In cross-examination, DC Clarke agreed that the bottom portion of the hanging closet organizer is depicted in exhibit #3j, and that in that pre-search photo, the bottom of the closet organizer is tilted out on an angle. The closet organizer is black, probably in the range of five feet long and a foot wide, and divided into compartments. DC Clarke testified that it had four or five compartments. A better view of its size can be seen in exhibit #10b, a post-search photo, where is it laid out on the bed. I note the position of the hanging closet organizer in the pre-search photo because the bottom of it is pulled forward from where the top would have been hanging on the closet bar. From that positioning, I infer that there was space behind the bottom of the hanging organizer in the closet. This was confirmed by DC Clarke in cross-examination, when he agreed that behind the right side of the door frame of the closet (see in in exhibit #3j, where the hanging closet organizer is tilted out), the closet continues behind the door frame one to two feet.
[35] DC Clarke began his search in the closet. He testified that there was a mix in the closet items were stored neatly and messily. A number of items were hung in the closet, but there were also a number of items on the floor. He testified that the closet was very full of stuff. DC Clarke observed that the closet was filled with men’s clothing and other items like luggage. DC Taylor did not make note of or recall the size of the clothes. He also agreed that he was not able to say if there were two sets of clothes (i.e., belonging to different people). He found the following relevant items in the closet:
• On the floor on the right of the closet he found an Adidas track suit jacket with two rounds of ammunition in a pocket, one with a blue tip and one with a red tip. In cross-examination, DC Clarke said he could not recall for sure if the jacket was on the ground or hanging. He thought it was on the ground because that was where he started his search, but all he could be sure of was that the jacket was in the closet. I note that these rounds of ammunition were not the subject of any count before the court by the time of trial.
• Almost exactly beside that track suit was a white Telus shopping bag which had documents and identification in it in the name of Mr. Duncan-Williams. In particular, there was a social insurance number card and driver’s licence in Mr. Duncan-Williams’ name, and some documents.
• DC Clarke found a black laptop-computer-style bag. Inside the bag he found an FN handgun. He proved the firearm safe. There were no rounds of ammunition in the chamber. There was ammunition in the magazine which had blue tips. In the same bag, DC Clarke found seven more rounds of ammunition with blue tips. DC Clarke testified that the black bag had a zipper, and he had to unzip it to get into the bag. The bag and the firearm are depicted on the left of exhibit #20a, and there are further photos of the bag in exhibits #20s-20v.
• In a Louis Vuitton bag in one of the compartments the hanging closet organizer, DC Clarke located a number of documents in the name of Mr. Walker, several of which had the address of the unit at 840 Queen’s Plate Drive. The documents in Mr. Walker’s name are depicted in exhibits #4y, z, bb, and cc, and include banking and other financial documents.
[36] After searching the closet, DC Clarke searched the TV stand. There he found the following relevant items:
• A TD Bank document and a rewards card in the name of Mr. Duncan-Williams (depicted in exhibit #4ee).
• A passport in the name of Mr. Walker (depicted in exhibit #4aa), and mail in the name of Mr. Walker.
[37] DC Clarke did not find any documents or identification in the name of anyone besides Mr. Duncan-Williams and Mr. Walker in that bedroom.
[38] DC Clarke was not able in his evidence to be precise about where the black bag with the firearm was found in relation to the Telus bag with Mr. Duncan-Williams’ identification. There were no photos taken showing the items in the precise locations where they were found. In examination in chief, DC Clarke was shown a photo of the closet floor marked exhibit #4v which showed the Telus bag. DC Clarke testified that this photo was taken after he had already started searching. He testified that in that photo, the Telus bag is about two feet to the left of where it originally was when he started to search the closet. I note that the hanging closet organizer is not visible in this photo (and would have been if it were still in the position in the pre-search photo exhibit #3j). In cross-examination, he was shown exhibit #4u, which is a different view of the Telus bag in the same place as in exhibit #4v. At that point he said that in exhibit #4u, the he had found the Telus bag within six inches of where it is in exhibit #4u.
[39] DC Clarke was clear that both the Telus bag and the black bag were found on the closet floor. In examination in chief he said the black bag was found within a foot of the Telus bag, and then said the black bag was right beside the Telus bag to the right, and that the items were located within a “one foot radius” on the ground. In cross-examination, he agreed that the Telus bag and the black bag could have been behind or under the hanging shelving unit when he first found them. He said that the black bag and the Telus bag were found in the area on the right-hand side of the closet (the same side as the hanging closet organizer), but he could not say exactly where. In re-examination, he said the Telus bag and the black bag were either directly behind, or beside, or maybe underneath the hanging closet organizer.
[40] Nor was DC Clarke able to be precise about the location of the Louis Vuitton bag with documents in the name of Mr. Walker in relation to the black bag with the firearm. He was clear that the Louis Vuitton bag with documents in the name of Mr. Walker was in one of the compartments in the hanging closet organizer, and not on the floor (the black bag with the firearm was on the floor). In examination in chief DC Clarke said the Louis Vuitton bag was about a foot away from the black bag. However, in cross-examination he said he did not know which of the four or five cubbies in the hanging closet organizer the bag was in. In particular, that he could not recall if it was in the top, middle, or bottom compartment (i.e., how far vertically it was from the black bag with the firearm).
[41] I find that the lack of clarity on some aspects of DC Clarke’s evidence about where exactly in the closet the bag with the firearm was located, both in relation to other items, and in relation to how hidden it was, is due to a lack of memory and lack of detail in his notes, and not due to any attempt to mislead the court. However, it leaves the court with an evidentiary record that is somewhat imprecise as to where exactly in the closet the bag was located. I find that the black bag was closed when it was found. I find that it was somewhere to the right from the closet door frame. I find that it is probable that the bag was not visible when one looked in the closet. I draw this conclusion both from the evidence of DC Clarke that the bag was either behind, underneath, or beside the hanging closet organizer, and also the fact that in the pre-search photo exhibit 3j, the bottom of the closet organizer is angled forward in the photo so far that it extends into the closet doorway. Because the closet organizer was pulled so far forward at the bottom, there was significant space behind it in the closet on the floor. In any event, I am unable to conclude that the black bag was visible where it was located in the closet before DC Clarke began to search.
[42] DC Clarke also agreed in cross-examination that he could not see the firearm inside the black bag until he unzipped the bag and looked inside. Thus, even had one been able to see the black bag inside the closet, the firearm was not visible in the closed bag (unless one unzipped it and opened it).
[43] There is no evidence of either Mr. Walker or Mr. Duncan-Williams being observed at any time carrying the black bag that the firearm was found in.
[44] Ashley Musial, a real estate agent, testified about negotiating the lease for the unit at issue, and identified the lease and related offer documents (exhibit #19). She testified that she prepared the offer to lease the unit on behalf of the proposed tenant, Javon Walker. The offer was made on October 19, 2017. The lease was for a one-year term starting November 1, 2017. The tenant listed in the documents is Javon Walker.
[45] Ms Musial was not asked during her testimony to identify Mr. Walker in the courtroom as the person she dealt with in negotiating the lease for the unit. Nor is there any evidence that she was asked to do a line-up during the course of the investigation to identify a photo of the person she negotiated the lease for. She testified that as a real estate agent, she is not required to check proof of identification when negotiating a lease (as opposed to a purchase of property). She said that sometimes agents are reluctant to check identification for a potential tenant on a lease because of the risk of discrimination by a landlord. But she testified that her practice is to ask for some form of government identification. She also testified that a credit check is required, which the proposed tenant submits on their own, and which requires a job letter or copies of pay stubs.
[46] Ms Musial testified that, based on her experience, there was nothing unusual about this lease agreement, and she had no reason to believe anything in the documentation was not accurate.
[47] In cross-examination, Ms Musial agreed that it can sometimes happen that the person on a lease is not the person who actually lives in an apartment.
[48] A few days after the execution of the search warrant, police obtained security video footage from the 840 Queen’s Plate Drive building for the date September 14, 2018. A compilation of clips from the security video was entered as exhibit #6 at trial. Various people related to the trial and found in the unit at the time of the execution of the search warrant are seen entering and exiting the building throughout the day and evening on September 14, 2018, through different entrances to the building. I summarize the security video evidence only as it relates to Mr. Walker. I am not able to draw any inferences about whether any other male seen in the September 14, 2018 security camera video is or is not Mr. Duncan-Williams.
[49] I find that Mr. Walker is visible in two of the clips in the security video, at 5:01 and 5:10 p.m., on September 14, 2018. There was a formal admissions in relation to a photo of Mr. Walker taken during his booking at 23 Division on September 14, 2018 (exhibit #30).[^2] In the photo his face is clearly visible, and he is wearing a grey and white T-shirt with a distinctive geometrical arrangement of the colours. Based on this photo, I find that the male seen entering 840 Queen’s Plate Drive at approximately 5:10:40 p.m. on September 14, 2018 is Mr. Walker. This is visible on the compilation of the security video (exhibit #6), clip #5. I conclude that it is Mr. Walker in clip #5 because one can see a front view of him entering the vestibule at that time, and his hair, face, and build look the same as in exhibit #30. In addition, one can see enough of his shirt under the zip hoodie that he is wearing to see it has the same white and grey geometric pattern as the shirt he is wearing in the photo in exhibit #30. In clip #5 on exhibit #6, Mr. Walker enters into the lobby from the vestibule using a fob. I draw this conclusion based on his action of reaching to the left of the door with his hand as if swiping a fob, and then opening the door himself, and the evidence of DC Taylor about the location of the fob reader.
[50] Further, based on my identification of Mr. Walker as the person in clip #5, I find that he is also the person seen leaving 840 Queen’s Plate Drive by way of the front entrance in clip #4 from the security video at approximately 5:01:40 p.m., about nine minutes before clip #5. In that view the person is seen from the side and back. In the absence of the identification of Mr. Walker as the person in clip #5, although the build, hair, and side of face of the person in clip #4 is consistent with Mr. Walker’s in exhibit #30, I would not have found enough information in clip #4 to make an identification. But the person in clip #4 is wearing the exact black same track suit and grey and white running shoes as Mr. Walker is wearing in clip #5, has the same build and hair, the face is consistent given the more limited view of the fact in clip #4, and is exiting from the same place that Mr. Walker enters nine minutes later in clip #5. I conclude that it is the same person, Mr. Walker.
[51] There were several formal admissions relating to the firearm. The firearm is a restricted firearm within the meaning of the Criminal Code. The serial number on the firearm was removed. The firearm was equipped with a detachable box cartridge magazine capable of holding more than 10 cartridges of ammunition. The magazine is a prohibited device as defined in s. 84 of the Criminal Code. The ammunition cartridges seized from the unit fitting that firearm are ammunition as defined by s. 84 of the Criminal Code. Mr. Walker did not hold a firearms acquisition certificate or a firearm registration certificate on September 14, 2018.
Has the Prosecution proven possession beyond a reasonable doubt?
[52] As I have outlined above, in order to prove that Mr. Walker possessed the firearm the Crown is required to prove knowledge and control beyond a reasonable doubt.
[53] Crown counsel submits that the evidence is sufficient to prove that Mr. Walker had constructive possession of the firearm. He submits that Mr. Walker’s control of the second bedroom, where the firearm was found, is supported by the fact that the lease lists him as the tenant; that he was found in the unit at the time of the search; that documents and identification in his name were found in that bedroom; and that he is seen exiting and entering 850 Queen’s Plate Drive (and entering using a security fob) in the security video on September 14, 2018 at 5:01 and 5:10 p.m.
[54] Further, Crown counsel submits that evidence that Travis Walker was staying in the main bedroom rules out that Javon Walker (as the leaseholder) as using the main bedroom, which further supports that Javon Walker occupied the second bedroom. Crown counsel bases this submission on identification and documents only in the name of Travis Walker found in the main bedroom; that Travis Walker is seen in some of the security video clips entering and exiting the building on September 14, 2018; and that Travis Walker was also present when the search warrant was executed.
[55] With respect to knowledge, Crown counsel submits that according to Villaroman, the Crown is required to prove that guilt is the only reasonable inference from the evidence, but the Crown is not required to rebut speculative inferences. Crown counsel submits that the only reasonable inferences from the evidence are either that Mr. Walker put the firearm in the bedroom closet himself, or that someone else put it there with his knowledge. Crown counsel submits that there is no evidence that anyone other than Mr. Walker and Mr. Duncan-Williams had a connection with the second bedroom. He submits that the police evidence supports that they had everyone in the unit lying on the floor within a minute of entering, so there was no opportunity for someone else to conceal the firearm in the bedroom as the police entered. Crown counsel submits that in the context of evidence connecting both Mr. Walker and Mr. Duncan-Williams to the bedroom where the firearm was found in the closet, it is a common-sense inference that people do not put valuable and dangerous items like a firearm in a shared space without the other person who shares the space knowing.
[56] Defence counsel made many submissions, some of which were either unsupported by evidence, or the foundation for which was not put to police witnesses in cross-examination. I will only summarize the defence submissions that have some basis in the record before the court.
[57] The defence submits that the evidence is insufficient to establish beyond a reasonable doubt that Mr. Walker had knowledge and control of the firearm. The defence submits that there is no direct evidence that Mr. Walker possessed the firearm or was in the bedroom at the same time as the firearm. There is no direct evidence that he ever used the bag in which the firearm was found.
[58] The defence submits that Mr. Walker lacked control over the unit. Many people were found in the unit at the time the search warrant was executed were seen coming and going from 840 Queen’s Plate Drive on September 14, 2018. The front door to the unit was unlocked when police arrived.
[59] The defence submits that the evidence connects the firearm more closely to Mr. Duncan-Williams than to Mr. Walker. On DC Clarke’s evidence, the Telus bag with Mr. Duncan-Williams’ identification and documents was found close to the black bag with the gun, both on the floor, but the Louis Vuitton bag with documents in Mr. Walker’s name was found in one of the compartments of the closet organizer, and DC Clarke could not recall how high or low in the closet organizer the Louis Vuitton bag was. The defence submits that the presence of documents showing occupancy of the room by Mr. Duncan-Williams creates a reasonable doubt, because it is possible that Mr. Duncan-Williams put the firearm in the room without Mr. Walker’s knowledge. The defence submits that the evidence about where the various items were found in the closet is so uncertain that it is unsafe to convict.
[60] The defence also submits that “anything could have happened” when the officers entered. The officers could not say if the bedroom doors were open when they entered, or if there were locks on the bedroom doors. I take this to be a submission that one of the other people in the unit at the time police executed the search warrant could have run in and placed the firearm in the closet as police entered.
[61] I will begin with control. I am satisfied beyond a reasonable doubt that Mr. Walker had control over the bedroom in which the firearm was found, jointly with Thomas Duncan-Williams. The apartment was leased in Mr. Walker’s name as the tenant. The term of the lease in his name was still continuing at the date of the search, September 14, 2018, since it was a one-year lease commencing November 1, 2017. I acknowledge that Ms Musial, the real estate agent who negotiated the lease, was not asked to identify Mr. Walker either during the investigation on in court. But there is no evidentiary basis to believe that someone else negotiated the lease in Mr. Walker’s name, or that he did not really live there. Indeed, the evidence it to the contrary.
[62] The evidence of Mr. Walker being at the apartment at the time of the execution of the search warrant, and his personal items being in the bedroom, supports the inference that he occupied the bedroom where the firearm was found in the black bag in the closet. In particular, I note that mail in that bedroom in Mr. Walker’s name was addressed to that unit at 840 Queen’s Plate Drive. There is no evidence of documents or identification in that bedroom belonging to anyone besides Mr. Walker and Mr. Duncan-Williams.
[63] Mr. Walker was present in the unit when the search warrant was executed. He can be seen on the lobby security video exiting the building and 5:01 p.m., and then entering the building at 5:10 p.m. As I have found above, at 5:10 when he enters, he uses a security fob to open the locked door into the lobby.
[64] I am satisfied beyond a reasonable doubt that Mr. Walker had control over the unit as the tenant, and was the joint occupant with Mr. Duncan-Williams of the second bedroom. As the leaseholder, Mr. Walker had the legal right to control access to the unit.
[65] As I have adverted to, I find that Mr. Walker shared occupation of the second bedroom with Mr. Duncan-Williams. Mr. Duncan-Williams was also present in the unit when the search warrant was executed. Mr. Duncan-Williams was observed exiting the building in surveillance on September 13, 2018. A significant number of documents in the name of Mr. Duncan-Williams were found in the bedroom where the firearm was found in the closet in the bag.
[66] There are only two significant differences in the evidence in relation to the occupancy of the unit by Mr. Walker and Mr. Duncan-Williams. First, Mr. Duncan-Williams is not named on the lease. Second, although there was identification and mail addressed to him in the second bedroom, to the extent that some of those documents had addresses on them, they were different addresses than the unit at issue. I find that the evidence of Mr. Walker’s control of the unit and the bedroom is stronger than the evidence of the same in relation to Mr. Duncan-Williams. However, I find that the evidence is sufficient for me to conclude that Mr. Duncan-Williams was also an occupant of the second bedroom, and had a level of control over it.
[67] With respect to knowledge, I rule out at the outset the possibility that someone besides Mr. Walker or Mr. Duncan-Williams placed the firearm in the bag in the closet in the second bedroom. I accept, and it is undisputed, that there were six other people in the unit besides Mr. Walker and Mr. Duncan-Williams at the time police entered, as well as Mr. Bailey being found in the hall just outside the unit. But I find that the evidence does not support any reasonable inference that one of those seven other people put the firearm in the bedroom closet. As I have explained above with respect to the primary facts, I accept the police evidence that they gained control of the unit very quickly when they entered, that they had everyone on the ground within less than a minute, and that they did not see anyone running between the rooms when they entered. I find that there was not time for anyone to hide the firearm in the second bedroom at the time when the police entered. In other words, I find that the firearm was already in the bag in the closet in that bedroom when the police entered.
[68] As the evidence supports a connection of only Mr. Walker and Mr. Duncan-Williams as occupants of that bedroom, this leaves me to consider possible inferences on the evidence in relation to Mr. Walker and Mr. Duncan-Williams.
[69] Having ruled out possession by anyone besides either or both of Mr. Walker and Mr. Duncan-Williams, this leaves three possible inferences related to the firearm in the second bedroom closet: (i) that Mr. Walker was in sole possession of the firearm; (ii) that Mr. Walker and Mr. Duncan-Williams were in joint possession of the firearm; and (iii) that Mr. Duncan-Williams was in sole possession of the firearm.
[70] Either of the first two inferences would be sufficient to find Mr. Walker guilty. However, if I have a reasonable doubt in relation to the third inference – in other words, if the third inference is not a speculative inference on the record before the court, then I must find Mr. Walker not guilty.
[71] Thus, this case comes down to whether the inference that Mr. Duncan-Williams was in sole possession of the firearm a speculative inference. Crown counsel’s submissions implicitly take the position that the inference that Mr. Duncan-Williams was in sole possession of the firearm is an unreasonable inference on the record before the court. In substance, Crown counsel argues that this inference is speculative for two reasons. The first submission is based on the value and inherent dangerousness of a firearm (and one could add, its illegality), and the submission that a trier of fact may infer that someone who possesses such an item would not leave it in a shared space except with someone they trusted and who knew it was there. The second submission is based on the claim that as the tenant of the unit, Mr. Walker’s connection to the unit and to the bedroom is stronger than the connection of Mr. Duncan-Williams.
[72] I accept that law permits a trier of fact to draw a common sense inference that where the item that a defendant is alleged to have possessed is an item of significant value, and/or an unlawful item, such an item would not be left in a shared space or entrusted to anyone who did not know about its presence: see, for example: R. v. Bonilla-Perez, 2014 ONSC 2031 at para. 51, affirmed 2016 ONCA 535; R. v. Thompson, 2020 ONCA 361 at para. 11; R. v. Fredericks, 1999 CanLII 949 at paras. 3-4; R. v Pannu, 2015 ONCA 677 at para. 157.
[73] This type of inference is permissible, not mandatory. Whether or not a trier of fact draws such an inference will depend on all of the evidence in a given trial. Depending on all of the evidence in a given trial, this type of inference will be more compelling in some cases than in others.
[74] I accept that there is some force in the circumstances of this case to the inference that given the value, dangerousness, and illegality of the loaded restricted firearm in the bag in the closet, Mr. Walker must have known it was there. I accept that the evidence rises to the level that Mr. Walker probably knew that the firearm was in the bag in the bedroom. But considering the evidence as a whole, I am not persuaded beyond a reasonable doubt that Mr. Walker knew the firearm was in the bag in the bedroom. And I am not persuaded that the inference that Mr. Duncan-Walker may have had sole possession of the firearm without Mr. Walker’s knowledge is an unreasonable or speculative inference.
[75] As I have noted above, I find that the evidence supports a finding that both Mr. Walker and Mr. Duncan-Williams had occupancy of the second bedroom, and had some level of control over that bedroom. As is clear from Lights, occupancy of a place alone does create a presumption that a person has knowledge of all of the items in that place.
[76] In this case, the evidence is clear that the firearm itself was not visible or in plain view, because it was in the closed black bag. As I have explained above, I also find it is likely that the bag itself was also not in view in the closet, and in any event, I am unable to find that it was in view. The bag containing the firearm did not itself contain identification or documents linking it to one or the other of Mr. Walker or Mr. Duncan-Williams. However, in the same closet where the bag was found on the floor, a Telus bag was nearby on the floor with identification and documents in the name of Mr. Duncan-Williams, and somewhere in the vicinity in the closet organizer, although less clear how close to the black bag because of the multiple cubbies and height of the closet organizer, was the Louis Vuitton bag with documents in the name of Mr. Walker.
[77] There is no evidence before the court whatsoever about the nature of the relationship between Mr. Walker and Mr. Duncan-Williams, other than the evidence that they had some form of shared occupancy of that bedroom.
[78] With this evidentiary record, with no evidence of the nature of the relationship between Mr. Walker and Mr. Duncan-Williams, and the fact that the firearm was hidden from view in a closed bag, where both had occupancy of the room, where both had documents or identification in some proximity to the bag with the firearm, but the bag with the firearm itself contained nothing connecting it to one or the other or both of the men, I find that a reasonable inference on the record before the court is that one of the occupants of the room could have placed the firearm in the bag in the closet, without the knowledge of the other.
[79] Where two people share a room, one or the other would not necessarily assume that the other person would go through a closed bag belonging to the other person without their consent. There is a risk that this could happen. Based on that risk, there is some probability that they both knew the firearm was there. But on the record before the court, I am not persuaded that the inference that one or the other of Mr. Walker or Mr. Duncan-Williams could have had sole possession of the firearm in the black bag without the knowledge of the other is an unreasonable or speculative inference.
[80] Nor do I find that the fact that the evidence supports a stronger connection of Mr. Walker to the unit than for Mr. Duncan-Williams (due to the lease for the unit in the name of Mr. Walker, and the documents in the name of Mr. Walker bearing the address of the unit), should lead the court to conclude that therefore Mr. Walker had knowledge of the firearm in the bag in the closet. The reasoning of such an analysis would be based on the notion that as between Mr. Walker and Mr. Duncan-Williams, it is more probable that Mr. Walker possessed the firearm. To conclude that because as between the two men, the evidence of a connection of Mr. Walker to the unit is stronger, therefore he is guilty, would be to rely on a standard of probable guilt, rather than proof beyond a reasonable doubt. The evidence of Mr. Duncan-Williams’ connection to the second bedroom in the unit is sufficiently strong that in the context of the evidence as a whole, I conclude that it is a reasonable inference that he could have had sole possession of the firearm without the knowledge of Mr. Walker. The fact that the Crown’s case against Mr. Walker is moderately stronger than the Crown’s case against Mr. Duncan-Williams is not a basis to find Mr. Walker guilty.
[81] Similarly, the fact that Crown counsel at the outset of submissions invited me to acquit Mr. Duncan-Williams on the basis that the Crown could not meet its burden of proof beyond a reasonable doubt in relation to his alleged possession of the firearm does not change the analysis of whether the inference that Mr. Duncan-Williams may have had sole possession of the firearm is a non-speculative inference when considering the case against Mr. Walker. Mr. Walker is not required to prove beyond a reasonable doubt that Mr. Duncan-Williams had sole possession and he had no knowledge of the firearm. As long as the inference of sole possession by Mr. Duncan-Williams without the knowledge of Mr. Walker is not speculative, Mr. Walker is entitled to an acquittal.
[82] I acknowledge that in the circumstances of this case, where I am satisfied that the available reasonable inferences are that one, or the other, or both of Mr. Walker and Mr. Duncan-Williams possessed the firearm in the closet, it feels unsatisfactory that neither is found guilty of possessing it. But on the record before the court there are three reasonable inferences. One of those inferences – sole possession by Mr. Duncan-Williams – requires that I acquit Mr. Walker. I find that the record before the court is not sufficient for me to rule out that inference as speculative or unreasonable. One difficulty faced by the prosecution in a case such as this one, where Mr. Walker was not the target of the investigation, is that the evidence of circumstances at the time of the search amounts to a snapshot of events. In the context of the evidence as a whole in this trial, I find that this snapshot is not enough to meet the Crown’s burden of proof.
[83] As the Supreme Court held in Lifchus, the prosecution’s burden of proof beyond a reasonable doubt is a heavy one. On the record before me, I am not satisfied beyond a reasonable doubt that the prosecution case proves that Mr. Walker was in possession of the firearm. I am unable to exclude the inference that Mr. Duncan-Williams possessed the firearm without the knowledge of Mr. Walker. On the record before the court, I find that this is not a speculative inference.
Issues in relation to misrepresentations in the preparation of the property reports
[84] During the course of the trial, there was evidence that when the exhibits were processed after the search, some of the property report forms for some of the exhibits were prepared by officers in a manner that was misleading. I do not rely on these improprieties in reaching my conclusion that the Crown has not met its burden in relation to the three remaining counts against Mr. Walker. But I comment on the issue because it has implications for the administration of justice.
[85] I will describe in general terms the evidence relating to this issue, and then specifically which officers testified about it.
[86] The forms used by the TPS to process various types of exhibits (for example, general, cash, firearms, drugs) all have a section where the officer who completes the property report is to enter their name, rank, badge number, and the date and time they completed the property report. There is also a space for that officer’s signature. Either beside or below that, depending on the type of property report, is a similar section headed “checked by supervisor” or “checked by officer in charge/designated supervisor”. In this section of the form, the name, rank, and badge number of the supervisor is to be entered, and the supervisor is to sign. There is also a space for the date and time that the supervisor signed/checked the form.
[87] It became clear during the cross-examination of several officers in this trial that a number of the property forms that purport on their face to have been checked and signed by DC Taylor as the supervising officer were not, in fact, signed by DC Taylor. This included property reports dealing with general property, cash, drugs, and firearms.
[88] The drug property reports marked as exhibits #15, 16, and 17 list DC Taylor’s badge number and rank in the boxes for the supervising officer who checked the property report. In cross-examination, DC Taylor testified that the signatures on those drug property reports were not his signature. When asked how a signature that was not his came to be on those property reports in the boxes with his badge number listed as the supervising officer, DC Taylor speculated that maybe the officer who had prepared those property reports (DC Syed, according to the property reports) had prepared them for DC Taylor to witness them, but that DC Taylor then was not available to sign. DC Taylor testified that if that was what had happened, then the badge number for the witnessing supervisor should have been changed on the form.
[89] The property reports marked as exhibits #22b, 22c, and 22d, property reports for general items and cash, state that they were prepared by DC Syed, and state that the supervisor who checked them was DC Taylor. In the “checked by officer in charge” section, they list DC Taylor as the officer in charge who checked the forms, and his rank and badge number. DC Taylor testified that the signatures on these property reports, which purport to be his signature, are not his signature.
[90] In cross-examination, DC Taylor agreed that his actual signature is on exhibit #22a, a property report he prepared, and on exhibit #22e, the signature page of the information to obtain the search warrant. I observe that his actual signature looks nothing like the signatures that purport to be his on exhibits #15, 16, 17, 22b, 22c, 22d, 25, 27a, 27b, and 28.
[91] DC Wesselius processed the firearms found in the unit. He agreed in cross-examination that he prepared the firearm property reports marked exhibits #25, 27a, 27b, and 28 (which related to the firearm from the second bedroom closet, and another firearm that Tristen Bailey was charged with possession, but which charges were ultimately among the charges stayed by the Crown). All of these property reports indicate that they were checked by DC Taylor as the supervising officer, and bear a signature that does not look the same as the signature purporting to be DC Taylor’s on exhibits #15, 16, and 17. DC Wesselius testified that it was his own handwriting that signed DC Taylor’s name on exhibits #25, 27a, 27b, and 28. He testified that he showed the forms to DC Taylor before signing them, and DC Taylor told him that he could sign on his behalf.
[92] When asked if this was normal procedure, DC Wesselius said it was not normal procedure, but DC Taylor was inundated with things, and that he asked for DC Taylor’s approval before signing for him, and DC Taylor said, “Go ahead, sign it” or “yeah, that’s fine”. DC Wesselius agreed that he had no notes of that conversation. When it was pointed out to DC Wesselius that the property forms include the words “checked by supervisor” in the box where the name, rank, and badge number of the supervisor are to be written, which is next to the box for the signature of the supervisor, and he was asked whether DC Taylor had actually checked the property forms, he responded that in his view, yes, because he brought the forms to DC Taylor’s attention. But he then responded that he was not sure if DC Taylor checked the forms.
[93] I note that DC Taylor did not have an opportunity to respond to the evidence of DC Wesselius that DC Taylor had approved DC Wesselius signing his signature on the property report forms, because DC Taylor testified earlier in the trial DC Wesselius.
[94] DC Syed, whose name is on a number of the property forms that purport to have the signature of DC Taylor as the supervisor who checked them (exhibits #15, 16, 17, 22b, 22c, and 22d), but which DC Taylor said was not his signature, was not called as a witness at trial.
[95] Based on this evidence, I find that the record before the court is clear many of the property reports in this case contain misrepresentations about having been checked and signed off on by DC Taylor, when, in fact, they had been signed by other officers, who both signed DC Taylor’s name and included his identification information in the supervisor box. I find as well that the signing of DC Taylor’s name on these property reports was done by the officer who prepared each report, thus bringing into question whether there was any checking of the reports by a supervising officer.
[96] The implications for the administration of justice of police signing property forms with another officer’s name to show the work was checked by a supervising officer when that did not, in fact, happen are so obvious that one would have hoped it would be obvious to officers why they should not do it, and I would not have to spell it out. But unfortunately, the evidence in this case makes clear that such is not the case.
[97] Property report forms exist so that handling of seized items is documented, and continuity maintained. Property reports prepared by police officers are provided to Crown counsel, disclosed to the defence, and in some cases, become exhibits in trials. Police know that Crown counsel, defence counsel and defendants, and the courts rely on property reports to truthfully record the information they purport to document. The truthfulness, or lack of truthfulness, of what the property reports record has an impact on the trial of criminal charges and the administration of justice.
[98] Further, I can only infer that the reasons that supervisor sign-off is required on property reports include ensuring that the content of the forms is accurate, and ensuring that a second officer witnesses the continuity of items seized. This is important not only for later trial purposes, which I have outlined above. Depending on the nature of the exhibits at issue, in particular drugs and firearms as in this case, supervisor sign-off is a measure which can help control the risk that such harmful items seized in criminal investigations do not go astray as a result of officer misconduct. If an officer signs off on a property report they prepared in the place of a supervisor, there is no check that what the officer has recorded on the form is accurate and that seized items are being properly dealt with and not misdirected. I am not suggesting that any of the officers in this case misdirected anything seized from the condominium unit. But recent high-profile cases of police officers removing drugs from seized property show that this risk is not merely theoretical.
[99] In this case, when evidence about misrepresentations regarding the supervisor signature on a number of the property reports emerged, after considering the issue, Crown counsel exercised his discretion to stay all of the charges against two of the defendants, as well as one charge against Mr. Walker. Crown counsel stated his reasons for staying the charges on the record. He was of the view that although he did not have reason to believe that the officers signing in place of their supervisor was other than an innocent mistake, the false signatures were misrepresentations in the property reports. In the circumstances, he felt that he could not ask the court to find the police witnesses involved in the misrepresentations to be credible or reliable witnesses. In addition, Crown counsel stated that that the Crown could not be seen to condone the carelessness with which the officers acted in their preparation of the property reports.
[100] In total, five counts, involving three defendants (including Mr. Walker), were stayed. The charges that were stayed by Crown counsel involved, in the case of one defendant, allegations of possession of a loaded prohibited firearm, and in the case of all three, possession of cocaine. I make no comment on the strength of the Crown’s case on the stayed charges, since those charges were not tried through to verdict, and the evidentiary record was not complete at the time they were stayed. But the fact of charges being stayed due to officer misrepresentation in preparation of the property reports rather than being adjudicated on the merits is a harm to the administration of justice – a concrete harm, not merely theoretical.
[101] Police officers are aware that documents they prepare in the course of criminal investigations are relied on by many parties in the justice system. They must take care to ensure that the contents of documents they prepare are truthful and accurate. Failing to do so causes serious harm to the administration of justice.
Conclusion
[102] For these reasons, I find that the prosecution case fails to satisfy me beyond a reasonable doubt that Mr. Walker possessed the firearm found in the black bag in the second bedroom closet. I find Mr. Walker not guilty of counts #4, 5, and 6.
[103] Before closing, I want to thank Mr. Mack for his considered and fair exercise of his prosecutorial discretion at various points throughout the trial. He carried out his role in a manner consistent with the highest traditions of the Crown.
Justice J. Copeland
Released: December 13, 2021
COURT FILE NO.: CR-19-50000773-0000
DATE: 20211213
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JAVON WALKER
REASONS FOR JUDGMENT
Justice J. Copeland
Released: December 13, 2021
[^1]: Mr. Walker and his then co-defendant Thomas Duncan-Williams brought a Charter application challenging the validity of the search warrant, and seeking exclusion of the evidence found during the execution of the warrant. That application was heard by Justice Roberts, and dismissed on July 10, 2021. In addition, all of the then co-defendants brought applications seeking exclusion of evidence on the basis of asserted breaches of their s. 10(b) Charter rights. Those applications were heard by Justice Boucher, and dismissed on October 18, 2021.
[^2]: I note that due to Covid safety precautions, everyone present in the courtroom during the trial was masked at all times. Thus, I was not able to see Mr. Walker’s full face during the trial. It was not suggested by any counsel that I should attempt to identify Mr. Walker in the security video based on his appearance in the courtroom.