COURT FILE NO.: CV-19-08510

DATE: 20211213

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

EYSAYAH ELIJAH DAVIS

Thompson Hamilton, for the Crown

Lydia Riva, for Eysayah Davis

HEARD: December 6 and 8, 2021

REASONS FOR DECISION

jUSTICE V. CHRISTIE

Overview

[1] On July 3, 2019, a prohibited firearm – a .40 caliber Smith & Wesson pistol – was found tucked under the passenger seat of a car driven by the accused, Eysayah Davis. There had also been a passenger in that car, Lamar Cyrus. As a result of the discovery of this firearm by police, Mr. Davis was charged with four criminal offences, including, possession of a firearm for a dangerous purpose (s. 88(2)), possession of a firearm without being the holder of a licence permitting such possession (s. 91(3)), occupying a motor vehicle knowing that there was a firearm in the vehicle (s. 94(2)), and possession of a loaded prohibited firearm without being the holder of a licence permitting such possession (s. 95(1)).

[2] The real issue in this case is whether the Crown has proven knowledge and control over the firearm.

Facts

[3] The facts of this case are not in great dispute and can be briefly set out.

[4] On July 3, 2019, police were intending to arrest Lamar Cyrus for murder when he attended for an appointment at 1:00 p.m. at Etobicoke North Probation and Parole Office at 25 Woodbine Downs Blvd, Etobicoke, located at the northwest corner of Finch and Highway 27. Police officers planned to conduct surveillance on Mr. Cyrus from his residence in Toronto to this probation office.

[5] At 11:35 a.m., two Emergency Response Unit (“ERU”) officers, one being Officer Adam Reichert, were inside an unmarked F-150 pick up truck in front of the probation office. The officers had information that Mr. Cyrus would typically get a drive to probation, would then get out of the vehicle, and approach the office on foot. The officers in the F-150 were to take Mr. Cyrus into custody. Officer Reichert would deal with Mr. Cyrus if he approached the truck on the driver’s side and the other officer would deal with him if he approached on the passenger’s side.

[6] At 12:38 p.m., Mr. Davis picked up Lamar Cyrus at his residence on Warrender Avenue in a Nissan Altima that Mr. Davis was driving. The car was registered to Lorraine Morrison, Mr. Davis’ mother. Mr. Cyrus got into the front passenger’s seat. Mr. Davis drove Mr. Cyrus to the probation office on Woodbine Downs. No one else was in the vehicle. There was no evidence as to what the two were doing in the vehicle during this drive to probation. The only observation inside the vehicle was that D/C Michael Rapson noted that the driver, Mr. Davis, was wearing something black on his head with a white tag noticeably on it. D/C Rapson was conducting surveillance on the vehicle and its occupants throughout the drive, which was approximately 14 minutes – 12:38 p.m. to 12:52 p.m. He testified that he had his eyes on the vehicle the entire time, either in front of him or by using his rear-view mirror when behind him. D/C Rapson agreed that he was driving and observing the rules of the road, and that he could not see what was going on in the car at any time during the drive.

[7] At 12:43 p.m., ERU Officer Reichert heard over the radio that Mr. Cyrus had gotten into the passenger’s side of a Nissan Altima and surveillance was being conducted.

[8] The Nissan Altima, with Mr. Davis driving and Mr. Cyrus as the passenger, arrived at the probation office parking lot at 12:52 p.m. They circled the lot a few times and were then observed parking to the southeast of the probation office, near the Finchwood Plaza pin on Exhibit 2.

[9] Once the vehicle parked, the occupants sat there for a few minutes. No one could see what if anything was happening inside the vehicle. Police were observing but nothing was of note. Mr. Cyrus then got out and walked northwest to the area of the Honest Restaurant pin on Exhibit 2. ERU Officer Reichert heard over the air that Mr. Cyrus had exited the Nissan Altima and was given a description of Mr. Cyrus. As Mr. Cyrus approached the probation office, he approached the driver’s side of the F-150 that the police officers were located in.

[10] At 1:00 p.m., Mr. Cyrus was beside the rear driver’s side door of the pickup. Officer Reichert opened the rear driver’s side door and effected the arrest. Mr. Cyrus turned at which point it was believed he was going to run. Officer Reichert grabbed his sweater. Mr. Cyrus then appeared to be reaching into his right pocket or waist band area. Officer Reichert was concerned about a firearm, took Mr. Cyrus to the ground, and secured his arms behind his back. Mr. Cyrus was searched. No weapons were found on his person. Custody of Mr. Cyrus was turned over to another officer at 1:06 p.m.

[11] As the arrest of Mr. Cyrus was taking place, D/C Rapson was to assist with additional ERU officers to detain the car that Mr. Cyrus had gotten out of, to ensure that the driver of the car did not obstruct the arrest in any way. Police did not know who was driving the car.

[12] D/C Rapson saw Mr. Davis get out of the driver’s side of the Nissan Altima. D/C Rapson did not know Mr. Davis and had never seen him before. Mr. Davis started walking away from the vehicle as the ERU unmarked vehicles were coming toward the car and ERU officers, in their tactical gear, were exiting the vehicles. Mr. Davis appeared to be “taking note” of the ERU officers as he was walking away from the car, travelling east on the north edge of the Burger King. Mr. Davis kept walking east but looking back at the ERU tactical officers who were outside their vehicle. There were more than two ERU officers and D/C Rapson agreed it would be an “intimidating sight”. D/C Rapson attempted to describe how Mr. Davis was looking at the ERU officers, in that his movements appeared calculated, as he was slowly walking away looking back out of the corner of his eye. D/C Rapson agreed that he did not know Mr. Davis and could not read his mind.

[13] D/C Rapson brought his truck closer to the car and was located northeast of the Finchwood Plaza pin on Exhibit 2. He got out wearing shorts, a t-shirt and a black tactical vest with “police” written on it. As Mr. Davis was on the north side of the Burger King, closer to the west edge, having been walking away for about 10-20 seconds, D/C Rapson yelled, “Hey”, at which point Mr. Davis “took off” and ran east across the lot. D/C Rapson stated that he wanted Mr. Davis to stop as he was concerned as to the manner in which he was walking away from ERU officers. As Mr. Davis ran, he dropped the t-shirt he had on his head in front of Burger King. D/C Rapson ran after Mr. Davis. They traversed a deep ditch, approximately 20-25 feet deep, then crossed Highway 27 which was busy with traffic. They continued to behind a Harvey’s restaurant. Behind the building next to Harvey’s, in that rear laneway, Mr. Davis stopped on his own.

[14] Even though other officers, including Officer Eugene Yeung, were also in pursuit, D/C Rapson was the first to catch up to Mr. Davis. As D/C Rapson reached him, Mr. Davis had his hand in his pocket, which caused the officer to have concern for the presence of a firearm. D/C Rapson then drew his firearm and pointed it at the torso of Mr. Davis. At this point, Mr. Davis was cooperative and put his hands up. D/C Rapson pushed Mr. Davis to the ground with his foot as he was not getting down as quickly as D/C Rapson would have preferred. In interacting with Mr. Davis, D/C Rapson acknowledged that he swore at Mr. Davis. After he had control of Mr. Davis, he re-holstered his firearm. D/C Rapson took custody of Mr. Davis and handcuffed him. Officer Yeung performed a pat down search on Mr. Davis to check for weapons. No weapons were found, in fact, nothing notable was found. Mr. Davis then asked for his mother, which made D/C Rapson question how old Mr. Davis was and asked for his age. D/C Rapson explained to Mr. Davis the reason he was detained, that he was worried about weapons, and told him not to talk. Mr. Davis was then left with Officer Yeung. Other officers were also present.

[15] D/C Rapson asked the canine officer to check the ditch for firearms or other evidence, as he had lost sight of Mr. Davis in that location. D/C Rapson then went back to the Burger King area, retrieved the shirt that had been dropped by Mr. Davis, put it on the hood of the car, and advised the on-scene detective of what had occurred.

[16] In the meantime, PC Matt Ready went toward the Nissan Altima. At the time he went to the vehicle, all doors and windows were closed, it was parked in the parking lot with no one inside. PC Ready looked inside the vehicle, toward the floor, and saw what he believed to be the butt end of a pistol magazine on the front passenger’s side floor under the seat. At that time, he was standing at the front passenger’s side door, looking in the passenger’s side window. He did not try to open or enter the vehicle. PC Ready was shown photograph 5 of Exhibit 3 which showed the magazine under the seat near a pair of sunglasses. He stated that this was a different angle than his view, but stated that the items looked to be in the exact same location where he observed them. In cross-examination, he stated that he did not think it moved much if any when the vehicle was moved from the scene. PC Ready agreed that the magazine was closer to the center console than to the door. He never sat in the driver’s seat to see what could be seen on the passenger’s side floor, although he assumed that this item would not be able to be seen from the driver’s seat. He stated that it was sticking out from under the seat approximately 1-2 inches. He also stated that from his angle, he could not see bullets, but only the coil spring.

[17] He made note of other items at that time, including black sunglasses on the floor in front of the firearm, a Samsung phone and water bottle in the console, and some clothing on the rear seat. PC Ready looked at photo 3, exhibit 3, and stated that the sunglasses, cell phone and water bottle appeared to be in the same position in which he had saw them at the scene. PC Ready relayed his observations to the detective on scene. PC Ready stayed by the vehicle for continuity until it was handed off to Officer Gilmour at 1:51 p.m.

[18] Sgt. Kelly Rogers executed a search warrant on the Nissan Altima and took a number of photographs, which included photographs of the firearm under the passenger’s seat, as it was located when the vehicle was parked in the bay in the forensic unit. There were also photographs of the firearm and magazine after it was removed from the vehicle. Finally, there was a photo of the console between the front seats which had an iPhone box, with components described by her as “firearm related”, and which Sgt. Rogers testified she believed were laser sights, as one of the items had “laser sight” printed on it.

[19] Sgt. Rogers did not know why there were no photographs taken of the vehicle at the scene. She did not know what the vehicle looked like at the scene and did not know if the firearm was moved as the vehicle moved. Sgt. Rogers did not take a photograph from the perspective of someone seated in the driver’s seat.

[20] The firearm was found to be a Polymer 80 Model PF940C (frame) / Rock Slide USA (slide and Barrel) .40 S&W caliber pistol with high capacity magazine and .40 S&W ammunition. It was agreed that these items met the definition of a prohibited firearm, a prohibited device, and the ammunition was live and functional. Mr. Davis was not authorized in law to possess any firearm.

[21] A DNA swab from the handgun was not suitable for comparison.

Position of the Parties

[22] The Crown submitted that all of the charges against Mr. Davis rise and fall on the issue of knowledge. As for control, the Crown submitted that if Mr. Davis had knowledge, his control over the firearm flows easily from the evidence presented. The Crown argued that Mr. Davis should be found guilty of all of the offences and pointed to the following:

a. Mr. Davis was the driver of the vehicle – registered in his mother’s name. He was also operating the vehicle in March 2020, demonstrating that he was a regular driver of this vehicle. There was no evidence of anyone else operating the vehicle.

b. Mr. Davis drove to a building to pick up Mr. Cyrus. Mr. Cyrus entered the vehicle and they drove to another location. Mr. Cyrus was arrested after he exited the passenger’s side of the car. Nothing of any concern was found on Mr. Cyrus.

c. Mr. Davis exited the vehicle and walked away. As he walked away, he was looking back, out of the corner of his eye, toward the vehicle and the ERU team approaching the vehicle. As D/C Rapson yelled “Hey”, Mr. Davis ran, ultimately running across five lanes of traffic. There was no evidence of Mr. Davis having any outstanding warrants. The Crown submitted that Mr. Davis ran from the car because he knew there was a firearm in the car and, therefore, wished to distance himself. While the Crown acknowledged that this court could take judicial notice of the existence of systemic anti-Black racism in Canadian society, the Crown argued that this court had no specific evidence in this case that this was the reason that Mr. Davis ran, as Mr. Davis did not testify. Without such evidence, the Crown submitted that this court would be engaging in impermissible speculation as to Mr. Davis’ reason to run.

d. Mr. Davis eventually stopped and was detained. Nothing of any concern was found on his person.

e. Under the passenger’s seat, in plain view when looking into the passenger window, was a firearm. This gun was located within feet of Mr. Davis, in other words, in close proximity.

f. The Crown agreed that, as to the degree of visibility, this gun would have been difficult for the driver to see in its final resting place, but argued that the gun did not just appear under the seat, rather it had to have been placed there. The Crown pointed to the fact that this was a fairly bulky item, a large gun, protruding from the bottom of the passenger seat.

g. Also, there was, in the centre console of the car, an iPhone box, which contained laser sights, one being labelled as such. The Crown suggested that one of the laser sights was similar to the one already mounted on the firearm. The Crown confirmed that there was no evidence of what these items looked like at the scene, as Cst. Ready did not testify about this box. However, from the pictures, the Crown submitted that it was reasonable to infer that this item was in the console of the vehicle with the compartment closed. The Crown agreed that there was not a lot of evidence about these items, however, one item was clearly labelled “laser sight”, and, therefore, there were other items for a gun in the car. The Crown also pointed to the location of those items being right between the driver and passenger.

[23] The Crown submitted that there were two possible scenarios:

a. This was Mr. Davis’ gun and he put it under the seat. Again, the Crown pointed to the box of “gun parts” in the centre console, and the fact that Mr. Davis ran from the vehicle. The Crown submitted that Mr. Davis’ running was powerful after the fact conduct, as there was no other explanation for why he ran.

b. Mr. Cyrus brought the gun to the car and Mr. Davis knew that Mr. Cyrus tucked it under the seat. Again, the Crown pointed to the fact that Mr. Davis ran from the car, suggesting that if he got away, he would have likely been “free and clear”.

[24] The defence submitted that Mr. Davis should be found not guilty of all charges, focusing mostly on the fact that knowledge had not been proven beyond a reasonable doubt. Even if knowledge were proven, the defence argued that control was not a foregone conclusion in this case. The defence pointed to the following factors:

a. The firearm was proximate to Mr. Cyrus in the passenger’s seat as opposed to Mr. Davis in the driver’s seat.

b. The firearm would not have been visible to Mr. Davis as supported by the photographs.

c. Even though not driving, Mr. Cyrus was using this vehicle as a mode of transportation to get to his probation appointment.

d. The firearm was not found near any other property belonging to Mr. Davis.

e. Mr. Davis was focused on his driving, allowing opportunity for Mr. Cyrus to covertly tuck the firearm under the seat.

f. Mr. Cyrus was the target of the investigation that day, in that he was to be arrested for murder. The defence suggested that it was more likely that Mr. Cyrus would be the individual carrying a firearm and that he would not want to take it into his probation appointment.

g. There was not sufficient evidence surrounding the items found in the console to assist this court to infer anything.

h. The fact that Mr. Davis walked away and ran away from police has competing explanations.

Analysis

[25] The Crown alleged that Mr. Davis was in possession of the firearm found in the car. There is no direct evidence that Mr. Davis was in possession of the gun, rather the evidence of possession in this case is circumstantial.

[26] A person may have a thing in his or her possession in a number of different ways pursuant to s. 4(3) of the Criminal Code. It does not matter how long a person has an item in his or her possession, as long as there is proof beyond a reasonable doubt that the requirements of possession have been met. Proof of any one of these ways beyond a reasonable doubt is enough to establish this essential element:

1. Personal / actual possession - A person who has actual physical control of something, as for example, by holding it in his or her hand, or keeping it in his or her pocket, has that item in his or her possession. This type of possession has two elements of knowledge:

• That the accused be aware that he or she has physical custody of the thing in question; and

• That the person is aware of what that thing is.

These elements of knowledge must be present at the same time as there is control.

R. v. Beaver, 1957 14 (SCC), [1957] S.C.R. 531; R. v. Morelli, 2010 SCC 8 at para. 16.

There must be control over the item itself, not just some general responsibility for places in the vicinity. R. v. Bertucci, (2002), 2002 41779 (ON CA), 169 C.C.C. (3d) 453, at para. 20

2. Constructive Possession - A person who knowingly has something in the actual possession or custody of somebody else, or in some place for the use or benefit of him or herself or somebody else, has that thing in his or her possession, provided he or she has some element of control over that thing. “Knowingly” means that the person is aware of the possession or custody of the thing by another, or in another place, and does not act through ignorance, mistake or accident. Constructive possession requires the following:

• Knowledge of the item;

• Intent / consent to possess the item;

• Control over the location of the item

R. v. Terrence (1983), 1983 51 (SCC), 4 C.C.C. (3d) 193 (S.C.C.); R. v. Morelli, at para. 17

The Crown must prove knowledge extending beyond “quiescent knowledge” that discloses some degree of control over the item. R. v. Pham, (2005) 2005 44671 (ON CA), 203 C.C.C. (3d) 326 at para. 15, affirmed by the Supreme Court of Canada, 2006 SCC 26. Constructive possession does not require proof of “manual handling” at any time. R. v. Fisher, 2005 BCCA 444 at para. 24

3. Joint Possession - Several persons may have possession of a thing at the same time. Where any one of two or more persons, with the knowledge and agreement of the others, has a thing in his or her possession or custody, all of them are in possession of that thing, provided he or she has some control over that thing. To establish joint possession, there must be:

• Knowledge of the object;

• Consent of the accused; and

• A degree of control over it

Knowledge and agreement by the others who are not in actual possession of the substance is essential. It is necessary that there be some evidence of active concurrence by the accused to possession by another person. “Passive acquiescence” is not enough. R. v. Piaskoski, (1979) 1979 2920 (ON CA), 52 C.C.C. (2d) 316. As with constructive possession, joint possession does not require proof of “manual handling” at any time. R. v. Fisher, at para. 24

[27] Proof of any one of these forms of possession is sufficient to establish that Mr. Davis was in possession of the firearm. However, as is obvious, all of these forms of possession require proof of control and knowledge. Proof of possession must be determined on the basis of the evidence as a whole. In establishing possession, it is common that there will be gaps in the evidence and the need for the court to consider reasonable inferences.

[28] Control can be established by the fact that the accused had the ability to grant or withhold access to a place. See R. v. Fisher, 2005 BCCA 444, para. 41. However, there is no rebuttable presumption of possession because of tenancy or occupancy. R v Watson, 2011 ONCA 437 at paras. 11 to 13. Similarly, as for items found in a vehicle owned and operated by the accused, there is no prima facie proof of possession by the accused. R v Lincoln, 2012 ONCA 542 at para. 3. However, being a driver in close proximity to an item in plain view may, but not must, allow the inference of knowledge and control.

[29] In R. v. McIntosh, 2003 41740 (ON SC) at para. 62, Justice Hill stated:

[62] A vehicle driver who knows a legally prohibited item is in a vehicle is not in the same position as a passenger who may merely acquiesce to another’s, i.e. the driver’s possession: R. v. T.(S.) (2001), 2001 24185 (ON CA), 140 O.A.C. 122 (C.A.) at 123-4; R. v. Williams (1998), 1998 2557 (ON CA), 125 C.C.C. (3d) 552 (Ont. C.A.) at 555, 557-8. A driver, operating the vehicle with the owner’s consent, determines what is permitted to enter and stay in the vehicle and can “control access to the vehicle and exclude others from the vehicle”: R. v. Belnavis and Lawrence (1996), 1996 4007 (ON CA), 107 C.C.C. (3d) 195 (Ont. C.A.) at 209 (affirmed (1997), 118 C.C.C. (3d) 405 at 419 (S.C.C.)).

[30] It is the view of this court that the element of control would be easily made out in this case if Mr. Davis has knowledge. Mr. Davis was the driver of the car and had complete control of that car while Mr. Cyrus was walking toward the probation office. Mr. Davis would have also been in complete control of the firearm that was in the car at that time. This would be sufficient to make out the element of control.

[31] The only real issue is, therefore, knowledge. Knowledge requires that an accused know of the presence and nature of the item.

[32] Knowledge can be established by direct evidence, circumstantial evidence, or a combination of both. With respect to circumstantial evidence, the analysis as established by the Supreme Court of Canada in R v Villaroman, 2016 SCC 33, and the Court of Appeal for Ontario in R v Darnley, 2020 ONCA 179 and R. v. Ali, 2021 ONCA 362, must be followed when considering the evidence.

[33] In Villaroman, the Supreme Court of Canada described the relationship between circumstantial evidence and proof beyond a reasonable doubt. The court stated in part as follows:

[25] The Court has generally described the rule in Hodge's Case as an elaboration of the reasonable doubt standard: Mitchell; John v. The Queen, 1970 199 (SCC), [1971] S.C.R. 781, per Ritchie J., at pp. 791-92; Cooper; Mezzo v. The Queen, 1986 16 (SCC), [1986] 1 S.C.R. 802, at p. 843. If that is all that Hodge's Case was concerned with, then any special instruction relating to circumstantial evidence could be seen as an unnecessary and potentially confusing addition to the reasonable doubt instruction.

[26] However, that is not all that Hodge's Case was concerned with. There is a special concern inherent in the inferential reasoning from circumstantial evidence. The concern is that the jury may unconsciously "fill in the blanks" or bridge gaps in the evidence to support the inference that the Crown invites it to draw. Baron Alderson referred to this risk in Hodge's Case. He noted the jury may "look for - and often slightly ... distort the facts" to make them fit the inference that they are invited to draw: p. 1137. Or, as his remarks are recorded in another report, the danger is that the mind may "take a pleasure in adapting circumstances to one another, and even straining them a little, if need be, to force them to form parts of one connected whole": W. Wills, Wills' Principles of Circumstantial Evidence (7th ed. 1937), at p. 45; cited by Laskin J. in John, dissenting but not on this point, at p. 813.

[27] While this 19th century language is not suitable for a contemporary jury instruction, the basic concern that Baron Alderson described - the danger of jumping to unwarranted conclusions in circumstantial cases - remains real. When the concern about circumstantial evidence is understood in this way, an instruction concerning the use of circumstantial evidence and the reasonable doubt instruction have different, although related, purposes: see B. L. Berger, "The Rule in Hodge's Case: Rumours of its Death are Greatly Exaggerated" (2005), 84 Can. Bar Rev. 47, at pp. 60-61.

[28] The reasonable doubt instruction describes a state of mind - the degree of persuasion that entitles and requires a juror to find an accused guilty: Berger, at p. 60. Reasonable doubt is not an inference or a finding of fact that needs support in the evidence presented at trial: see, e.g. Schuldt v. The Queen, 1985 20 (SCC), [1985] 2 S.C.R. 592, at pp. 600-610. A reasonable doubt is a doubt based on "reason and common sense"; it is not "imaginary or frivolous"; it "does not involve proof to an absolute certainty"; and it is "logically connected to the evidence or absence of evidence": Lifchus, at para. 36. The reasonable doubt instructions are all directed to describing for the jurors how sure they must be of guilt in order to convict.

[29] An instruction about circumstantial evidence, in contrast, alerts the jury to the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence: Berger, at p. 60. This is the danger to which Baron Alderson directed his comments. And the danger he identified so long ago - the risk that the jury will "fill in the blanks" or "jump to conclusions" - has more recently been confirmed by social science research: see Berger, at pp. 52-53. This Court on occasion has noted this cautionary purpose of a circumstantial evidence instruction: see, e.g., Boucher v. The Queen, 1954 3 (SCC), [1955] S.C.R. 16, per Rand J., at p. 22; John, per Laskin J., dissenting but not on this point, at p. 813.

[30] It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences. It may be helpful to illustrate the concern about jumping to conclusions with an example. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining. But we may then notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment, and re-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations than that it has been raining. The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[35] At one time, it was said that in circumstantial cases, “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”: see R. v. McIver, 1965 26 (ON CA), [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point 1966 6 (SCC), [1966] S.C.R. 254. However, that view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

[36] I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[37] When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt: R. v. Comba, 1938 14 (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff’d 1938 7 (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para. 35. 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”: R. v. Bagshaw, 1971 13 (SCC), [1972] S.C.R. 2, at p. 8. “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.

[38] 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 light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

[34] In Darnley, the Court of Appeal for Ontario further clarified the relationship between circumstantial evidence, reasonable inferences and reasonable doubt as follows:

[34] Moreover, an inference need not arise from “proven facts”, which is a “standard that is never applicable to an accused”: R. v. Roberts (200), 2000 5129 (ON CA), 143 C.C.C. (3d) 330, at para. 17 (Ont. C.A.). This is because a reference to “proven facts” suggests an obligation to establish those facts to a standard of proof, yet a reasonable doubt can arise from evidence that, while not proven to be true to any standard of proof, has not been rejected.

[35] It is also incorrect to link a reasonable doubt to a “conclusion” drawn from the facts. An acquittal need not be based on a conclusion about innocence but can rest on an inability to conclude guilt.

[36] It is also an error to suggest that an exculpatory inference must be “a much stronger conclusion” than a speculation or guess. That language imports the need for a strong inference, when an exculpatory inference relating to a required element of the offence need merely raise a reasonable doubt: Villaroman, at para. 20.

[35] In R. v. Ali, at paras. 97-8, the court stated as follows:

[97] An inference of guilt drawn from circumstantial evidence must be rooted in the evidence and must be the only reasonable inference available on the totality of the evidence. However, when the jury is considering whether the Crown has met its burden to show that guilt is the only reasonable inference, the jury is not engaged in fact-finding and is not limited to considering alternative explanations founded on the evidence. Instead, the jury is testing the force of the inference urged by the Crown against the reasonable doubt standard. In doing so, the jury can consider other reasonable alternative explanations for the conduct. Those alternative explanations may or may not lead the jury to conclude the Crown has failed to prove that guilt is the only reasonable inference available on the evidence: R. v. Villaroman, 2016 SCC 33, at paras. 28, 35-42.

[98] In determining whether the Crown has met that burden in a circumstantial evidence case, the jury may apply its logic and common sense to the totality of the evidentiary picture, including gaps in that picture, and consider whether other reasonable possibilities not only exist, but preclude a finding that an inference of guilt is the only reasonable inference available. As explained in Villaroman, at para. 36:

… a reasonable doubt or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack of evidence … a certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[36] Circumstantial evidence must be viewed as a whole and not each piece individually. See R. v. Anderson-Wilson, 2010 ONSC 489, [2010] O.J. No. 377, para. 72

[37] One specific type of circumstantial evidence in this case is the after the fact conduct of Mr. Davis leaving his car, walking away as the ERU team was approaching the vehicle, and then running across Highway 27 with officers in pursuit.

[38] The Supreme Court of Canada discussed after the fact conduct in the case of R. v. Calnen, 2019 SCC 6, 53 C.R. (7th) 225, 374 C.C.C. (3d) 259. Justice Martin stated:

[106] After-the-fact conduct encompasses what the accused both said and did after the offence charged in the indictment was allegedly committed. It covers a large range of possible circumstances, and its content and contours are confined only by the limits of human experience. After-the-fact conduct may also arise in respect of all types of criminal offences and in different legal settings: for example, in cases in which the accused pleads not guilty, admits all or part of an offence, admits some of the offences charged, and/or asserts a defence, excuse, or justification. It is this potential breadth, variety, and mix of considerations that lies at the heart of the much repeated observation that the proper legal treatment of after-the-fact conduct is highly context and fact specific.

[39] Justice Martin explained, at paragraph 107, that there is no general rule which prohibits a trier of fact from considering evidence of post-offence conduct, and such evidence will be admissible if:

a. It is relevant to a live, material issue in the case;

b. Its admission does not offend any other exclusionary rule of evidence; and

c. Its probative value exceeds its prejudicial effect.

[40] Even if admissible, however, this does not mean that its use is unlimited. In R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, the court made it clear that the trial judge must assist the jury with a specific instruction on how to use this type of evidence. Triers of fact must consider alternative explanations for the conduct, including innocent explanations. See R. v. White, 2011 SCC 13, [2011] S.C.J. No. 13 at paras. 23-25; R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129 at p. 143. With these cautions in mind, the court in Calnen made it clear that “there is no impediment to using after-the-fact conduct evidence in determining the accused’s intent…and may be used to distinguish between different levels of culpability.” In determining whether the evidence can be used for this purpose, the court must consider:

1. the specific nature of the conduct;

2. its relationship to the record as a whole; and

3. the issues raised at trial.

See Calnen, para. 119

[41] There may be more than one explanation for after the fact conduct. This does not make the evidence irrelevant. Calnen, para. 124. As stated in Calnen at para. 145, “As long as the evidence is more capable of supporting the inference sought than the alternative inferences, then it is up to the fact finder, after considering all explanations, to determine, what, if any, inference is accepted, and the weight, if any, to be provided to a piece of circumstantial evidence.”

[42] Mr. Davis was described as walking away from the vehicle as ERU were moving in, while at the same time continuing to look back at the vehicle out of the corner of his eye. When D/C Rapson yelled, “Hey”, he started to run, traversing a deep ditch, and continued across five lanes of live traffic before ultimately stopping and cooperating with police. The Crown submitted that the only reasonable inference, on the totality of the evidence, was that Mr. Davis knew of the presence of the firearm in the vehicle and was trying to distance himself from that vehicle as quickly as he could.

[43] This court does not really know anything about Mr. Davis, other than the fact that he is a young black man. This court questioned whether an alternative explanation for Mr. Davis running may be that he was, as a young black man, fearful of police. As previously stated, the Crown acknowledged that this court could take judicial notice of the existence of anti-Black racism in Canadian society, but stated that this court could not consider this alternative explanation in the absence of evidence, and to do so would amount to impermissible speculation. The Crown referred to a number of cases in an attempt to support its position.

[44] In R. v. Pigeon, 1992 869 (BCCA), the British Columbia Court of Appeal was considering an appeal against sentence. In its judgment, the Court of Appeal referred to the trial judge’s ruling wherein it was stated:

Normally a person who runs away from the police in such circumstances does so because he wants to escape, and an innocent person does not normally have any reason for wanting to escape from the police. If I am to find that Pigeon's sole reason for running away was that he did in fact fear that he would be brutally treated by the police there must at least be some evidence before me, beyond mere speculation, to raise a reasonable doubt about his state of mind. I have not heard any evidence that Pigeon himself shared the attitude of fear of police brutality said to be held by most other aboriginal people…

After sentencing the trial judge filed a report to the Court of Appeal asking that the term of imprisonment be reduced. Without expressing any view on the comment above specifically, the Court of Appeal gave deference to the trial judge and reduced the sentence accordingly. It is the view of this court that these are now very antiquated views. It is of note that this case was decided nearly 30 years ago. It is also of note that this case was in the context of sentencing.

[45] Another case in the sentencing context, but very recent, is the case of R. v. Morris, 2021 ONCA 680. The Court of Appeal made some very strong and clear comments about anti-Black racism. In its opening paragraph, the court stated as follows:

[1] It is beyond doubt that anti-Black racism, including both overt and systemic anti-Black racism, has been, and continues to be, a reality in Canadian society, and in particular in the Greater Toronto Area. That reality is reflected in many social institutions, most notably the criminal justice system. It is equally clear that anti-Black racism can have a profound and insidious impact on those who must endure it on a daily basis: see R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 89-97; R. v. Theriault, 2021 ONCA 517, at para. 212, leave to appeal to S.C.C. requested, 39768 (July 19, 2021); R. v. Parks (1993), 1993 3383 (ON CA), 15 O.R. (3d) 324 (C.A.), at p. 342, leave to appeal refused, [1993] S.C.C.A. No. 481; see also Ontario Human Rights Commission, A Collective Impact: Interim report on the inquiry into racial profiling and racial discrimination of Black persons by the Toronto Police Service (Toronto: Government of Ontario, 2018), at p. 19; Ontario Association of Children’s Aid Societies, One Vision One Voice: Changing the Child Welfare System for African Canadians (Toronto: Ontario Association of Children’s Aid Societies, 2016), at p. 29. Anti-Black racism must be acknowledged, confronted, mitigated and, ultimately, erased. This appeal requires the court to consider how trial judges should take evidence of anti-Black racism into account on sentencing.

[46] The Court found that while evidence of anti-Black racism does not diminish the seriousness of the offence, it can be taken into account in considering the offender’s degree of responsibility. The Court also held that “the concept of causation, as it is used in the substantive criminal law, plays no role when considering the impact of an offender’s background or circumstances on sentencing”. (para. 96) The Court stated, however, that “there must… be some connection between the overt and systemic racism identified in the community and the circumstances or events that are said to explain or mitigate the criminal conduct in issue.” (para. 97) In Morris, Mr. Morris’ fear of people, including the police, was offered as an explanation for his possession of a loaded gun. The Court of Appeal agreed that this offered a mitigating explanation, but was only “a limited mitigating factor” as it did not detract from the seriousness of the offence.

[47] The Court also found that social context evidence can be relevant to considerations of deterring the offender’s future conduct and considerations of rehabilitation (para 102). The Court further stated:

[123] … Just as with the discrimination suffered by Indigenous offenders, courts should take judicial notice of the existence of anti-Black racism in Canada and its potential impact on individual offenders. Courts should admit evidence on sentencing directed at the existence of anti-Black racism in the offender’s community, and the impact of that racism on the offender’s background and circumstances. Similarly, in considering the restraint principle, courts should bear in mind well-established over-incarceration of Black offenders, particularly young male offenders. Finally, as with Indigenous offenders, the discrimination suffered by Black offenders and its effect on their background, character, and circumstances may, in a given case, play a role in fixing the offender’s moral responsibility for the crime, and/or blending the various objectives of sentencing to arrive at an appropriate sanction in the circumstances.

[48] The Crown in the case at bar argued that the Court was clearly indicating that actual evidence would be required and pointed to para. 153 which stated:

[153] At the same time, the trial judge’s reasons overstate the impact of Mr. Morris’s circumstances on his ability to choose whether or not to arm himself with a loaded, concealed handgun. There is no evidence from Mr. Morris about how he came to carry around a loaded, concealed handgun. In fact, Mr. Morris insisted under oath he did no such thing. Absent any evidence from Mr. Morris as to why he came to arm himself, it simply cannot be assumed that he was armed because he thought he had little choice in the matter.

Referring to this passage from Morris, the Crown argued that, while the court can take judicial notice of anti-Black racism, this court could not take that fact to draw the inference that Mr. Davis was walking away from or running away from the police because of a fear of police that he carried as a result of him being a young black male in a society where anti-Black racism is a reality. The Crown stated that the court cannot draw this inference in the absence of evidence from Mr. Davis. Also in the sentencing context, the Crown referred to R. v. Husbands, 2019 ONSC 6824, in which Justice O’Marra was asked to consider the impact of race and culture on young Black males, however, he relied on R. v. Brissett and Francis, 2018 ONSC 4957, in which it was held that the court was not permitted to take judicial notice of systemic racism and then automatically consider it in individual cases, that mitigation of sentence based on systemic racial bias required specific information about the individual offender, and that there must be some direct connection between the systemic racism and the commission of the crime or their own personal circumstances.

[49] It is the view of this court that the submission by the Crown is not supported by the Court of Appeal in Morris. Firstly, Morris, Husbands and Brissett are all cases decided in the sentencing context, a very different context from the case at bar. Further, the court in Morris did not hold that the trial judge erred in drawing an inference without evidence. Rather, the court held that the trial judge made an unreasonable finding of fact based on the evidence in that case. The court stated:

[171] We would also hold that the trial judge made an unreasonable finding of fact when he concluded Mr. Morris’s flight and disposal of the gun was an “impulsive reaction” caused by his fear of the police and a concern he would not be treated fairly. The trial judge’s analysis ignores that Mr. Morris was in the act of committing a serious crime when confronted by the police. He had to know that if caught with a loaded gun, he would be arrested and incarcerated. Mr. Morris chose to run and attempted to dispose of the weapon out of the sight of the police before he was apprehended. The only reasonable inference is that Mr. Morris ran and disposed of the gun in an effort to avoid being caught and charged with a serious crime.

[50] The Crown also referred to R. v. Le, 2019 SCC 34. At trial, Mr. Le sought the exclusion of evidence on the basis that his section 8 and 9 Charter rights had been breached. As Mr. Le was being questioned by police and asked for identification, Mr. Le fled, was pursued and arrested. In Le, the Supreme Court referred to a number of reports that established the social context of the relationship between the police and racialized communities. At paras 98 and 106, the court stated:

[98] The findings of these reports are more than sufficient to inform the reasonable person, standing in the accused’s shoes, of the social context to this encounter in the backyard of the L.D. townhouse. We stress that direct, testimonial evidence is usually not necessary to inform the reasonable person analysis. But, where appropriate, direct, testimonial evidence may be elicited.

[106] … The absence of testimonial evidence does not obviate the trial judge’s obligation to take into consideration what a reasonable person would know about how race may affect such interactions. The trial judge’s conclusion that these young men did not have the past experiences they described means only that he has rejected their evidence about how their personal history with the police may have affected their subjective perceptions of what they thought was happening to them when the police entered the backyard. However, the s. 9 inquiry requires an objective assessment of what a reasonable person in the shoes of the accused perceived about whether they were free to leave. In the absence of testimonial evidence, which is what happens when such is either rejected or was never tendered, there is still a need to inquire into how the race of the accused may have impacted the s. 9 analysis. There is no indication that the trial judge employed, in any adequate or substantive way, the perspective of the reasonable person in Grant who had informed themselves about community perspectives on race and policing. The need to consider the race relations context arises even in cases where there is no testimony from the accused or any witness about their personal experience with police. Even without direct evidence, the race of the accused remains a relevant consideration under Grant.

[51] The Crown in the case at bar argued that the court made these comments in the context of whether a reasonable person would conclude that there was a detention. The Crown submitted that the reasoning in Le was narrow in the sense that it applied to the question of detention and an objective assessment of a person in the shoes of the accused. Again, the Crown stated that this court could consider anti-Black racism on an objective analysis, but this would not allow the court to come to subjective conclusions – as to what was actually in the mind of the accused. This court does not agree with this narrow interpretation of Le. While of course, Le was decided in the context of a Charter application and, specifically, the court was considering the concept of detention, the relevance of and need for a consideration of anti-Black racism in other contexts is obvious.

[52] In R. v. Holloway, 2021 ONSC 6136, Justice D.E. Harris was also considering the issue of racism in the context of a s. 8 and 9 Charter challenge. The court stated as follows:

[37] There is no playbook to adjudge how someone would react to the police in these circumstances. For that reason, the walking away had low value in rising to the sufficient grounds for a safety search. The fact that the Applicant is a young Black man accentuates the difficulty. The Court of Appeal recently said in R. v. Theriault, 2021 ONCA 517:

[144] The existence of anti-Black racism in Canadian society is beyond reasonable dispute and is properly the subject matter of judicial notice. It is well recognized that criminal justice institutions do not treat racialized groups equally: Robin T. Fitzgerald and Peter J. Carrington, “Disproportionate Minority Contact in Canada: Police and Visible Minority Youth” (2011) 53 Can. J. Crimin. & Crim. Just. 449, at p. 450; R. v. Le, 2019 SCC 34, 375 C.C.C. (3d) 431. This reality may inform the conduct of any racialized person when interacting with the police, regardless of whether they are the accused or the complainant.

145 The social context of anti-Black racism was relevant in the case at hand. I agree with the trial judge that it would have been understandable for Mr. Miller to distrust law enforcement.

(Emphasis Added)

[53] This court does not agree that it would amount to impermissible speculation to consider an alternative explanation for Mr. Davis walking away and running away from the police, specifically, that he may have done so because of a fear of police created by the known existence of systemic anti-Black racism. In fact, this court finds that it would be an error not to consider this reasonable alternative explanation in the context of the evidence as a whole. Everyone agrees that this court can take judicial notice of the existence of systemic anti-Black racism in Canadian society. The case law has been very clear about this fact. This case is not in the context of sentencing, where the court must be satisfied on a balance of probabilities of the existence of a disputed fact before relying on it (or, in the case of an aggravating fact relied on by the Crown, beyond a reasonable doubt) This case is not in the context of a Charter argument, where the accused may also hold the burden of proof on a balance of probabilities.

[54] In the present context, the evidence that Mr. Davis walked away and ran away from the police is clearly after the fact conduct, a form of circumstantial evidence. The Crown in this criminal trial carries the burden of proof beyond a reasonable doubt on all essential elements of the offence. One of those essential elements, and the critical element in this case, is knowledge. The Crown argued that this court use this after the fact conduct, this circumstantial evidence, as proof that Mr. Davis had knowledge of this firearm. The case law is clear that “an inference of guilt drawn from circumstantial evidence must be rooted in the evidence and must be the only reasonable inference available on the totality of the evidence”. The case law is also clear that when the trier of fact “is considering whether the Crown has met its burden to show that guilt is the only reasonable inference, the jury is not engaged in fact-finding and is not limited to considering alternative explanations founded on the evidence. Instead, the jury is testing the force of the inference urged by the Crown against the reasonable doubt standard. In doing so, the jury can consider other reasonable alternative explanations for the conduct.” Mr. Davis is not required to prove that his reason for fleeing from police was because of his knowledge of or experience with anti-Black racism, and that therefore he was afraid or intimidated by the police and what they might do to him. It is the Crown who must prove that Mr. Davis’ flight could only be as a result of his knowledge of this firearm and his desire to avoid responsibility.

[55] The presence of an alternative explanation for Mr. Davis’ flight, being related to anti-Black racism, does not lead automatically to a conclusion that the Crown has failed to prove that guilt is the only reasonable inference available on the evidence. That is the question for the trier of fact in any given case. In determining whether the Crown has met its burden in a circumstantial evidence case, which this is, the trier of fact may apply its logic and common sense to the totality of the evidentiary picture, including gaps in that picture, and consider whether other reasonable possibilities not only exist, but preclude a finding that an inference of guilt is the only reasonable inference available. As explained in Villaroman, at para. 36:

… a reasonable doubt or theory alternative to guilt, is not rendered ‘speculative’ by the mere fact that it arises from a lack of evidence … a certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[56] Exculpatory inferences or alternative explanations for circumstantial after the fact conduct must only be reasonable. Direct evidence is certainly not required. Reasonable doubt is not an inference or a finding of fact that requires evidentiary support. The possible inferences must be considered in the context of the entirety of the evidence, or lack thereof, and assessed sensibly.

[57] This court does not accept the “floodgate” argument advanced by the Crown in this case, in that anytime a young black man runs from police it will necessarily carry with it the alternative explanation that he may have been afraid due to the realities of racism. Each court will need to consider the facts of the case before it and consider the facts in the entire context of the evidence, not in isolation. Having said that, the existence of anti-Black racism is a fact that courts must keep in mind, and this court rejects any notion that it would be dangerous or unreasonable to do so. It is necessary to do so. It would be dangerous and wrong to ignore.

[58] In this case, Mr. Davis, a young black male, was facing an unknown number (at least two) of ERU officers in tactical gear approaching his car. D/C Rapson agreed that this would be an intimidating scene. It is accepted by this court that such scenes are meant to be intimidating. While Mr. Davis did run, he, for some unknown reason, stopped running, and cooperated with police. At this point, he asked to speak to his mother. In the context of the evidence as a whole in this case, it is not more reasonable to suggest that Mr. Davis ran because of his knowledge of the gun as opposed to his perceived fear of police. It certainly is not the case that the only reasonable inference to be drawn is that Mr. Davis was aware of the firearm.

[59] In the oft cited case of R. v. Anderson- Wilson, 2010 ONSC 489, a sawed-off shotgun was estimated to be visibly protruding into the front passenger footwell, making it visible to the driver, and most proximate to another, but not visible to the accused. Justice Hill suggested some factors for courts to consider in deciding the question of possession. He stated as follows at para. 74:

[74] Possession cases are fact-driven inquiries. Where proof is dependent upon circumstantial evidence, some facts will have more probative value than others. It is the cumulative effect of relevant circumstances which must be assessed in determining whether proof beyond a reasonable doubt exists. In weapons prosecutions, the following circumstances have been considered relevant:

(1) the physical proximity of the firearm to the accused;

(2) the degree of visibility of the firearm;

(3) the degree of communal use of a vehicle containing the firearm;

(4) the size, nature and number of weapons in a particular space; and

(5) the nature of other items located proximate to the firearm capable of providing context for inferences of knowledge and control. [Citations omitted.]

[60] In R. v. Johnson, 2013 ONSC 5231, Justice Clark relied on the analysis from Anderson-Wilson and also stated at para. 45, “I further appreciate that in circumstances where a firearm is ‘not readily visible’ knowledge cannot be inferred without a sufficient body of direct or circumstantial evidence to satisfy the court that the only reasonable inference to be drawn is that the accused knew of the presence of the weapon: R. v. Green, [1993] O.J. No. 1346 (Ont. C.A.); R. v. Bullock, [2000] O.J. No. 798 (Ont. S.C.J.), at para. 9.”

[61] In this case, there was no dispute that Mr. Davis was in the car before Mr. Cyrus. The gun was in the car with Mr. Davis when Mr. Cyrus went into his probation appointment. It would appear, although somewhat unclear, that Mr. Davis remained in the car alone for some brief period after Mr. Cyrus got out. The gun was substantially under the passenger’s seat with the butt end of the magazine visible from the passenger’s side window.

[62] The defence submitted that Mr. Cyrus was the target of the investigation that day, in that he was to be arrested for murder. The defence suggested that it was more likely that Mr. Cyrus would be the individual carrying a firearm and that he would not want to take it into his probation appointment. This court does not accept this submission. This court knows little to nothing about either of these men. The simple fact that Mr. Cyrus was wanted for murder, does not necessarily make him the person more likely to have a firearm.

[63] It is the opinion of this court that the more important circumstances in this case relating to the proof of knowledge element are the following:

a. While the firearm was in fairly close proximity to where Mr. Davis would have been in the driver’s seat, it was certainly in closer proximity to Mr. Cyrus who was seated in the passenger’s seat.

b. The gun was substantially hidden. PC Ready testified that it is unlikely that the gun could be seen from the driver’s seat. This court is not prepared to give this opinion any weight given that PC Ready did not do any type of test to see what could be seen from this location – a test that would have to replicate the height of Mr. Davis and the precise position of the seats. However, the photographs support the conclusion that the firearm would not have been visible from the driver’s seat.

c. Mr. Davis was driving the vehicle while Mr. Cyrus was in the passenger’s seat, where the firearm was found. Certainly, Mr. Cyrus would have had an opportunity to put this firearm under the seat without Mr. Davis noticing. While this is not a “tiny” gun, it is also not an AK47 or shotgun that would be impossible to conceal without the driver knowing.

d. There was no evidence of suspicious movements in the car while Mr. Davis and Mr. Cyrus were both present, or once Mr. Cyrus exited. Frankly, there was no evidence of what was occurring in the car during this 14-minute drive or once it parked.

e. There was no DNA on the firearm to assist in any way.

f. Mr. Davis was driving a car registered to his mother. Except for one occasion, after these events, when he was observed driving the vehicle, there was no evidence as to how often he drove this vehicle at the time of these events in 2019 or who else drove or had access to this vehicle at that time.

g. The “laser sight” and other items located in the iPhone box in the centre console are not capable of assisting with an inference of knowledge. There is no evidence as to how these sights were found at the scene. There is no evidence as to whether these sights were related in any way with the firearm found. This court is unable to conclude any similarity between the objects found in the iPhone box and any objects attached to the firearm found on this evidentiary record. The evidence with respect to the nature of these items was far from clear.

h. The fact that Mr. Davis walked away and then ran from the police does not only suggest the guilty mind that the Crown suggested. An alternative explanation for Mr. Davis reacting in this way is that he was fearful or intimidated by the presence of tactical officers. As the court stated in Morris at para. 106, “Acknowledging the reality of anti-Black racism and its impact on offenders like Mr. Morris during the sentencing process enhances the legitimacy of the criminal justice system in the eyes of the community and, in particular, those in the community who have good reason to see the criminal justice system as racist and unjust”. Such an acknowledgement is not restricted to the sentencing process, but should be and must be recognized in all aspects of the criminal justice system.

Conclusion

[64] On the totality of the evidence, this court is unable to conclude that Mr. Davis knew of, or was willfully blind to, the presence of the firearm in the vehicle.

[65] As conceded by the Crown, all four of these charges rise and fall on the issue of knowledge. Given that this court is not satisfied beyond a reasonable doubt that Mr. Davis was aware of the presence of the firearm, this court finds Mr. Davis not guilty of all charges on this Indictment.

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.

Released: December 13, 2021