COURT FILE NO.: CR-174/19
DATE: 20211217
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Janson Jeyakanthan
Ms. M. McGuigan, for the Crown
Ms. K. Schofield, for the Accused
HEARD: October 18, 19 and 21, 2021
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
The Indictment
[1] Janson Jeyakanthan (“Janson”) stands charged with six offences, all stemming from an incident that occurred at Square One shopping centre in Mississauga on July 8, 2018. The charges all involve one handgun:
i. carry a concealed handgun contrary to section 90(1);
ii. unauthorized possession of a prohibited firearm contrary to section 91(1);
iii. possession of a prohibited firearm knowing that he had no license to have it contrary to section 92(1);
iv. unauthorized possession of a prohibited firearm with ammunition contrary to section 95(1);
v. unauthorized possession of a prohibited device (a gun magazine) contrary to section 91(2); and finally
vi. possession of a prohibited device (a gun magazine) knowing that he had no license to have it contrary to section 92(2) of the Criminal Code.
The Trial
[2] Janson was tried before this Court, without a jury, via Zoom, on October 18, 19, and 21, 2021.
[3] Much of the evidence was uncontroversial. A document titled “Admissions and Agreed Statement of Fact” was tendered on consent and marked exhibit 1. The case for the Crown went in by filing transcripts from the preliminary inquiry (exhibits 2 and 3), photographs of the tactical police unit (exhibit 4a and 4b), and maps and diagrams of the areas in question at Square One shopping centre (exhibits 5a, 5b, and 5c). There was also some relatively brief viva voce evidence at trial from several police officers.
[4] The defence called evidence, limited to the testimony of the accused, Janson.
[5] Closing arguments from counsel were delivered in writing.
There is One Issue to Decide
[6] I thank counsel for presenting such a focussed trial. As Ms. Schofield indicated at the opening of the trial, there is a singular issue that is to be decided – possession, specifically knowledge and control of the handgun on the part of Janson.
The Fundamental Principles of Criminal Law
[7] Janson is presumed to be innocent of all charges. That never changes unless and until this Court finds that the Crown has met its burden of proof. Janson had no obligation to testify or to present any evidence at trial. He had no duty to prove anything.
[8] The Crown must prove each charge beyond a reasonable doubt. To address the issue at hand, it is the Crown that must prove possession, knowledge and control, beyond a reasonable doubt.
[9] That standard of proof is an onerous one. It is more than proof of probable or likely guilt. It is not proof to an absolute certainty, but the requirement is that this Court must be sure of Janson’s guilt before finding him so.
[10] Janson testified at trial and provided some exculpatory evidence, detailed further below in these reasons. If I accept that evidence, then Janson must be found not guilty. If I do not necessarily accept that evidence but find that it leaves me with a reasonable doubt, then Janson must be acquitted. If I reject that evidence and find that it does not leave me with a reasonable doubt, then I must still consider the evidence at trial as a whole and only find Janson guilty if the Crown has proven the case beyond a reasonable doubt.
The Law of Possession
[11] A person has anything in his possession when he has it in his personal possession, such as in his pocket. Alternatively, he has it in his possession if he knowingly has it in the actual possession or custody of another person, such as another occupant of the same motor vehicle. Further in the alternative, he has it in his possession if he knowingly has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person. Section 4(3)(a) of the Criminal Code.
[12] In addition, more than one person may have custody of and legal possession of the same item. Section 4(3)(b) of the Criminal Code.
[13] It has long been the law in Canada that there is no possession of a thing without knowledge of what that thing is. Possession and knowledge must co-exist with some act of control. Beaver v. R., [1957] S.C.R. 531, at pages 541-542, 26 C.R. 193, 118 C.C.C. 129, 1957 CanLII 14 (S.C.C.).
[14] There is a line of authority in Canada, recognized in Ontario by my former colleague, Justice Hill, in R. v. Foster, 2016 ONSC 7914, that the necessary criterion of “control” may, depending on the circumstances, exclude a casual or hasty manual handling of the item in question by the accused. Justice Hill very nicely summarized the said line of authority at paragraphs 134 through 137 of the decision in Foster, supra, which paragraphs are set out below.
[134] What will constitute proof of an act or measure of control, sufficient to attract criminal liability, will of course vary with the factual circumstances of each case. To this end, a body of jurisprudence has grown up addressing instances of temporally brief manual handling of various items. Some of these authorities include the following.
[135] In R. v. Vance and Nichols, [1977] O.J. No. 1103 (C.A.), the court reversed a conviction for possession of a narcotic for the purpose of trafficking. As Vance was pursued by the police, he passed a bottle containing 120 tablets of phencyclidine (PCP) to Nichols. As the police approached Nichols, he dropped the bottle to the ground. In setting aside Nichol’s conviction, Brooke J.A. stated at para. 7:
As to Nichols, we are unanimously of the view that his appeal must be allowed, and his conviction set aside and an acquittal entered. There was no real conflict in the evidence as to what occurred, and whether one accepted the evidence of the witness or the appellant, the bottle of drugs was in the appellant's hands for the briefest time. This was a "hot potato" case. The bottle was passed to Nichols unexpectedly, with the police in pursuit of Vance. There was no agreement between Vance and Nichols, no plan that Nichols should take the drugs in an emergency or otherwise, and there was no suggestion that he had any interest in them. True, he suspected that what his acquaintance had passed to him was a drug. But the time during which he had them in his hands, was hardly time for the making of a conscious decision to accept them so that one could find he had possession of them in law. A passage in the dissenting judgment of Lord Morris of Borth-y-Gest in Warner v. Metropolitan Police Commissioner (1968), 52 Cr. App. 373 at 403 is apt:
... In my view, in order to establish possession the prosecution must prove that an accused was knowingly in control of something in circumstances which showed that he was assenting to being in control of it; they need not prove that in fact he had actual knowledge of the nature of that which he had.
[Emphasis added]
In our view the evidence fell short of satisfying the onus on the Crown of proving that this appellant accepted the drugs, and that he assented to being in control of them.
[136] In R. v. York (2005), 2005 BCCA 74, 193 C.C.C. (3d) 331 (B.C.C.A.), the court stated at paras. 11-13, 15-16, 20:
11 Thus, the offence of possession is made out where there is the manual handling of an object co-existing with the knowledge of what the object is, and both these elements must co-exist with some act of control. The classic definition of possession was stated by O'Halloran J.A. in R. v. Hess (No. 1) (1948), 1948 CanLII 349 (BC CA), 94 C.C.C. 48 (B.C.C.A.), wherein he stated:
To constitute "possession" within the meaning of the criminal law it is my judgment, that where as here there is manual handling of a thing, it must be co-existent with knowledge of what the thing is, and both these elements must be co-existent with some act of control (outside public duty). When those three elements exist together, I think it must be conceded that under s. 4(1)(d) [of the Opium and Narcotic Drug Act, 1929 (Can.), c. 49] it does not then matter if the thing is retained for an innocent purpose.
That view of the law was approved by the Supreme Court of Canada in Beaver v. The Queen (1957), 1957 CanLII 14 (SCC), 118 C.C.C. 129.
12 In Hess the facts were as follows. A girl found a parcel on a sidewalk by a sign post. She brought it home. Her mother suspected drugs and telephoned the police. The police removed most of the drugs and put the parcel back at the same spot and kept watch from a distance. The following afternoon, the police observed the appellant, who was with another man, pick up the parcel that was in plain view. He commenced to open it when the police rushed the two men, knocking the appellant down. The parcel flew out of his hands. The court allowed the appeal from conviction for having drugs in his possession and entered an acquittal on the grounds that "there is nothing whatever in the record from which it may be legitimately inferred that Hess knew what was in the parcel before he picked it up" and further, that he did not exercise any act of control over the parcel.
13 It is apparent from the court's reasoning that had Hess, with the full knowledge that the parcel contained drugs, conveyed it to a third party or retained it for his own use, he would have been guilty of possession. However, had Hess, with the full knowledge of the parcel's contents, given it to the police, he would not have been guilty of possession even though he may have exercised control with full knowledge because he would have been fulfilling a public duty to take drugs to the police and explain how he had come into possession of them. In Hess, the appellant's intent to deal with the parcel in some prohibited manner was not in issue.
15 The presence of the essential elements of manual handling, knowledge and control may not in all cases be sufficient to warrant a conviction. Such was the case in R. v. Christie (1978), 1978 CanLII 2535 (NB CA), 41 C.C.C. (2d) 282 (N.B.S.C.A.D.). The facts are worth noting. The accused had lent her car to the daughter of a friend. She said it was her practice to leave the keys in her car so that her daughter could use it as well. When the car was returned to her, she noticed a brown paper bag in the trunk containing marihuana. She slammed the trunk door closed. She clearly knew that the bag contained drugs. She said she wished to seek advice from friends as she feared her daughters' involvement. She drove around the city looking for her friends when she got involved in an accident. The accused's explanation for her conduct was that she was in a state of panic and feared her daughters' involvement with the drugs. Hughes C.J.N.B. for the Court of Appeal in upholding the acquittal relied on Hess, supra, and stated:
In my opinion, there can be circumstances which do not constitute possession even where there is a right of control with knowledge of the presence and character of the thing alleged to be possessed, where guilt should not be inferred, as where it appears there is no intent to exercise control over it. An example of this situation is where a person finds a package on his doorstep and upon opening it discovers it contains narcotics. Assuming he does nothing further to indicate an intention to exercise control over it, he had not, in my opinion, the possession contemplated by the Criminal Code. Nor do I think such a person who manually handles it for the sole purpose of destroying or reporting it to the police has committed the offence of possession.
[Emphasis added]
[by BCCA]
16 Similarly, in R. v. Glushek (1978), 1978 ALTASCAD 175, 41 C.C.C. (2d) 380, the Alberta Court of Appeal in upholding an acquittal stated that a brief handling of stolen goods with full knowledge of their character solely for the purpose of getting rid of them does not constitute possession within s. 3(4)(a) of the Criminal Code since the respondent's conduct was inconsistent with retaining or dealing with the goods. Possession is not made out where there is physical control without any co-existing intention to deal with the object in some deliberately personal manner. See also R. v. Spooner (1954), 1954 CanLII 398 (BC CA), 109 C.C.C. 57 (B.C.C.A.) per O'Halloran J.A. at 61. This is because conduct may be characterized as criminal only where the Crown proves the existence of a blameworthy state of mind.
20 I think the law can be summarized as follows. Personal possession is established where an accused person exercises physical control over a prohibited object with full knowledge of its character, however brief the physical contact may be, and where there is some evidence to show the accused person took custody of the object willingly with intent to deal with it in some prohibited manner. The judge convicted the appellant on the grounds that the appellant knew that the goods were stolen, and that he exercised physical control over them without notifying the police or the rightful owners. The blameworthiness of this conduct fell short of that required for a conviction for a crime of dishonesty. The circumstances here are not all that dissimilar to those in Christie, supra. The appellant's conduct was inconsistent with any intention to retain or deal with the goods.
[137] In R. v. Hall (1959), 1959 CanLII 472 (BC CA), 124 C.C.C. 238 (B.C.C.A.), at p. 239, the court observed:
But control within the meaning of Beaver v. The Queen and R. v. Spooner necessarily (if reasonable doubt is to be invoked) excludes a casual or hasty manual handling of the subject-matter under circumstances, as in the evidence here, not consistent with one's own purposes or use for "a fix". Of course each case has to be decided on its own evidence; cf. R. v. Smith (1855), 6 Cox C.C. 554 and R. v.Parker, 1941 CanLII 359 (BC CA), 77 Can. C.C. 9, [1942] 1 D.L.R. 645, 57 B.C.R. 117.
See also R. v. Glushek (1978), 1978 ALTASCAD 175, 41 C.C.C. (2d) 380 (Alta. C.A.), at paras. 48-55; R. v. Spooner (1954), 1954 CanLII 398 (BC CA), 109 C.C.C. 57 (B.C.C.A.), at pp. 59-64; R. v. Hess (No. 1) (1949), 1948 CanLII 349 (BC CA), 94 C.C.C. 48 (B.C.C.A.), at pp. 51-54; R. v. Lewin, [1998] O.J. No. 2929 (S.C.J.), at paras. 4, 13-18; R. v. Cantera, [1981] A.J. No. 125 (Q.B.), at paras. 2, 4-6; R. v. Young, 2006 ABPC 36, at paras. 9-10, 26.
II. Analysis
A Brief Summary of the Key Evidence at Trial on the Issue of Possession
[15] There is no question that Janson was with two other males in a motor vehicle at Square One shopping centre. There is no question that, once the police moved in for a takedown of person(s) suspected to be involved in an earlier shooting in Burlington, Janson, the lone occupant in the rear seat, was found to have a loaded handgun down his pants, in his crotch area. There is no question that he was not authorized to have that gun or its magazine or its ammunition.
[16] There is no question that the police observed Janson and the other two males inside Earl’s restaurant at Square One and then walking from the area of Earl’s to the motor vehicle, a Dodge Durango.
[17] There is no evidence from any trial witness that Janson was suspected to be carrying a firearm inside the restaurant or along the walk from the restaurant to the Dodge Durango.
[18] It is agreed by all trial witnesses, including Janson, that everything happened very quickly at the takedown area.
[19] How fast? Officer Kilfeather testified in cross-examination that it was “virtually instantaneous” between the moment that officer Leder, the “road boss”, called the takedown and when the police were in position at the Durango. Officer Palmer described it as being less than ten seconds between the takedown call and when he got out of his police vehicle and two or three more seconds for him to get to the driver’s window of the Durango. In cross-examination, Palmer stated it was maybe 5-15 seconds between the takedown command and him being out of the police vehicle and approaching the Durango. Officer McLeod estimated that it was “seconds” between the takedown call and him being out of his police vehicle, and again “seconds” between then and him being at the front passenger door of the Durango. Officer Kohler described it as “seconds” between the takedown call and him being at the rear passenger door of the Durango (where Janson was). Officer Bendiks testified that it was about 5-7 seconds between the takedown call and the tactical officers being on foot at the position of the Durango. Officer Leder testified that it was “seconds”, “very quick” between his police vehicle stopping after he called takedown and the tactical officers being at the doors of the Durango.
[20] The point is that it was a matter of seconds, under 20 seconds for sure, between the takedown call and the tactical police officers standing at the doors of the Durango. These police officers were all very good witnesses at trial. They were all doing their best to estimate the time, but it is to be frank an impossible task for them. They were focussed on what they had to do on scene. This was a very stressful, high-pressure, adrenaline-pumping, event. Keeping a stopwatch was not a part of the exercise.
[21] It was officer Leder who found the handgun on Janson. He testified in direct examination at trial that about ½ inch of the butt of the handgun was protruding from Janson’s beltline, centre crotch area. Janson was wearing an oversized shirt, untucked. The belt was super tight around his waist. His pants were super baggy. In cross-examination, Leder stated that the barrel of the gun was pointed downwards, the butt of the handle sticking out of Janson’s pants perpendicular with the belt, and there was nothing securing the gun in place except the tight belt.
[22] There was no evidence from any trial witness that any of the three occupants of the Durango could clearly be seen, in terms of what they might have been doing, in the seconds leading up to the tactical officers being at the doors of the Durango. This is not surprising. The evidence is clear that at least some of the Durango’s windows were tinted. And it goes without saying that you cannot see a person’s entire body sitting inside a motor vehicle from several feet away on the outside of the vehicle. For example, officer Talsma, in cross-examination, testified that as he approached the Durango on foot he could not see the driver’s hands, and he could not see the front passenger’s hands, and he could not see the rear passenger at all.
[23] Janson testified about what he says happened. He is now 28 years old. He has no criminal record. He has a decent work history and attended University of Waterloo.
[24] He stated that he went to Earl’s to meet his friend, at his friend’s invitation. When he got to Earl’s, a third male was present. They had some beers. He had a “light buzz”. He smoked a marihuana joint outside. His friend offered to drive him home. The three of them made their way to the Dodge Durango.
[25] According to Janson, the following occurred once inside the Durango. Someone said “cops, cops”. The front passenger (the third male) reached his left hand back and placed the gun on Janson’s lap. Janson shoved the gun down his pants. He did not know about the gun beforehand. He shoved it down his pants because he panicked. He intended to hide the gun.
[26] In cross-examination, the Crown pressed Janson as to why in the world he would have chosen to stuff this handgun down his pants. He stated that he just did not think about other options. He was afraid of the gun. He was afraid of the police. He just did it, he stated.
[27] In cross-examination, Janson denied that it was his handgun and/or that it was on his person the whole time. He called those suggestions “false”. He said that he did not simply push the gun off his lap because he did not want the police to find it anywhere around him. He described that he just leaned back slightly and lifted his hips up a bit and stuffed the gun down his pants.
A Summary of the Positions of the Crown and the Defence
[28] The Crown position is that:
i. the evidence of the accused should neither be accepted by this Court nor be seen as leaving this Court with a reasonable doubt (paragraph 1 of the Crown’s written closing argument);
ii. the gun was the accused’s and was in his possession and control throughout all of the events (paragraph 1 of the same);
iii. there was simply no opportunity for what Janson described happened in the Dodge Durango to have actually happened (paragraph 4 of the same);
iv. although the “hot potato” line of authority relied upon by the accused is legitimate, on the accused’s own evidence what happened here does not fall within that line of authority (paragraph 68 of the same);
v. the “hot potato” argument fails here because Janson did not briefly handle the gun for the purpose of disposing of it or dumping it legally or for the purpose of putting it beyond the control of a criminal, but rather he intended to conceal the gun from the police and then give it to whoever wanted it afterwards (paragraphs 67-68 of the same); and
vi. the only reasonable inference from the totality of the evidence at trial is that the accused was “in possession of this highly dangerous item before he entered the vehicle” (paragraph 78 of the same).
[29] On item (i) above, the Crown argues that the evidence of the accused should be rejected by this Court for a variety of reasons, including it being contrary to the evidence of the police officers, and its inherent implausibility, and it being at odds with basic human experience and logic, and its internal inconsistencies.
[30] The defence position is encapsulated in six paragraphs of its written closing argument – paragraphs 55 through 61, reproduced below (citations included for completeness).
- Section 3(4)(a) of the Criminal Code provides that “a person has anything in possession when he has it in his personally possession”. The constituent elements of personal, or actual possession are well known and described in R v. Morrelli, 2010 SCC 8, [2010], 1 SCR 253 at paras. 15-16:
For purposes of the Criminal Code, “possession” is defined in section 4(3) to include personal possession, constructive possession and joint possession. Of these three forms of culpable possession, only the first two are relevant here. It is undisputed that knowledge and control are essential elements common to both. On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside public duty).
What constitutes proof of an act or measure of control sufficient to attract criminal liability will of course vary with the factual circumstances of each case. To this end, a body of jurisprudence has grown to address instances of the temporally brief manual handling of various items. Control means having power or authority over an object and does not necessarily require an act of actual exercise of control over the object. (Footnote: R. v. Mohammad (2004), 2004 CanLII 9378 (ON CA), 182 C.C.C. (3d) 97 (Ont. C.A.), at para. 61; R. v. Fisher (2005), 2005 BCCA 444, 200 C.C.C. (3d) 338 (B.C.C.A.).
In cases of personal possession, the brevity of the contact may indicate that the person did not take custody of the thing intentionally and with intent to deal with it for his or her own purpose or in a deliberate manner. If not, personal possession is not established inasmuch as the person did not have control over the thing. This line of authority has been often been referred to as the ‘hot potato’ defence. (Footnote: R. v. Hall (1959), 1959 CanLII 472 (BC CA), 124 C.C.C. 238 (BCCA); R. v. Vance; R. v. Nichold (1977), 2 W.C.B. 23 (CA).
R. v. Hall is a classic illustration of a ‘hot potato’ case. The accused had been visiting a friend's room when the police burst in unexpectedly. At this moment, the friend threw an eyedropper and needle into the accused's lap. The accused threw both out the window next to her. The eyedropper was found to contain a narcotic. There was no evidence that the accused had recently taken a "fix", nor was there a sufficient quantity of drugs in the dropper to infer that she intended to shoot up after her friend was done. At trial, Ms. Hall was convicted of possession because she had physical possession of the drug and knowledge that it was a drug. This conclusion was reversed by the British Columbia Court of Appeal because the accused did not have control over the substance, which was held to be "an essential ingredient of possession". The Court held that "control ... necessarily (if reasonable doubt is to be invoked) excludes a casual or hasty manual handling of the subject-matter under circumstances, as in the evidence here, not consistent with one's own purposes or use for 'a fix'."(Footnote: Ibid).
More recently, in R v. Foster, the ‘hot potato’ defence was argued before the Honourable Justice Hill. In Foster, the Court outlined the specific facts leading up to the defendant’s receipt of the firearm prior to the police conducting a vehicle stop. The defendant in Foster testified that he and his friend were on their way back from a house party when the vehicle was stopped by police. Police were conducting surveillance of the party based on CI information that two men at the party had a firearm. After the police secured the vehicle, the police found a loaded firearm tucked into the waistband of the accused. The accused testified that his friend, Gordon, suddenly put the firearm in his lap before the police arrived. However, in this case, Gordon testified for the Crown and disputed the accused’s version of events. Justice Hill concluded that although Gordon was an unsavoury witness, the defendant’s evidence regarding when and how the firearm came to be in his possession was not credible.
The thrust of the decision outlined that the defendant’s version of events was rejected because (1) the witness who passed the gun to him denied this occurred, and (2) the evidence of the police officers could not be reconciled with the defendant’s version of events. (Footnote: R v. Foster, [2016] OJ No. 6814 at paras. 148-156).
It is respectfully submitted that Mr. Jeyakanthan’s version of events should be accepted by this Honourable Court as his evidence was effectively unchallenged at trial. He testified in his own defence, and in doing testified in a candid, and straight forward manner regarding how he came to be in possession of a firearm in the moments before police arrived at his door. He acknowledges that there was a firearm found in his pants by police, however, he denies owning the firearm or possessing it in the time frame leading up to his arrival in the vehicle.
Has the Crown met its Burden of Proof?
[31] Despite Ms. McGuigan’s very able submissions, I do not accept any of the key arguments advanced by the Crown, as summarized above.
[32] Addressing each one in turn, first, I find the evidence of the accused to be quite believable. I elaborate on this further below.
[33] Second, I do not find that the accused was in possession and control of the gun throughout his time at Square One shopping centre. Nor do I think that the only reasonable inference to be drawn from the totality of the evidence adduced at trial is that the accused had the gun on his person before he entered the Dodge Durango. An equally reasonable inference to be drawn, and the one that I accept, is that Janson did not know about the gun until the moment that it was dropped onto his lap while he was sitting in the rear passenger seat of the motor vehicle.
[34] Third, I find that there was opportunity for the front passenger seat male to have reached back and dropped the gun on the accused’s lap; as indicated previously herein, it was a matter of seconds, under 20 seconds for sure, between the takedown call and the tactical police officers standing at the doors of the Durango. At the same time, however, it would have taken only a few seconds for the occupants of the Durango to notice the police officers and for someone to call out “cops, cops”, then a few seconds more for the third male to reach back and drop the gun onto the accused’s lap, and then, even accounting for some shock on the part of the accused, a few seconds still for Janson to stuff the gun down his pants. There was opportunity for that to occur within 10 to 15 seconds, maybe even less.
[35] Fourth, and finally, I conclude that this is a case where the “hot potato” argument succeeds. I do not agree with the Crown’s implied suggestion that it is incumbent on Janson to establish that his fleeting possession of the gun was for a purpose related to its legal disposal or dumping or for the purpose of placing it beyond the hands of a criminal. I am not aware of any authority to that effect. Further, the burden is on the prosecution to prove possession and its constituent elements, beyond a reasonable doubt. At the end of the day, the “hot potato” argument is related to the mens rea component of criminal liability. Possession, to be criminal or culpable possession, must include mens rea or fault requirements. R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.), at paragraphs 36-37.
[36] What happened here, as I find the facts to be, is not the type of culpable possession that Justice Fish was referring to in Morelli, supra.
[37] Returning to the first argument, that is the credibility of the accused’s evidence, with respect, there is nothing inherently implausible or nonsensical about Janson’s testimony. No witness is perfect, and even if this Court agreed with the Crown’s list of alleged internal inconsistencies in the accused’s trial testimony (paragraph 74 of the Crown’s written closing argument), it would not cause this Court to not accept Janson’s evidence about how the gun was dropped on his lap and how and why he shoved it down his pants.
[38] As for the alleged contradictions between the evidence of the accused and that of the police officers (paragraph 70 of the Crown’s written closing argument), I respectfully disagree that those are materially significant.
[39] I want to pause here to observe something. It was clear to me while listening to the evidence of Janson that he is not a person familiar with guns. In fact, I wrote that very note to myself during the cross-examination. I wrote it because Janson was very hesitant and unsure about describing even the basic parts of a handgun, like the handle and the barrel. He seemed to have no confidence about the descriptors that he was using, and from his language and his demeanour it appeared to me that he was no connoisseur of firearms, to say the least.
[40] That is not determinative of anything, but I think that it helps in my assessment of Janson’s credibility.
[41] I find it quite believable that someone unfamiliar with guns would be startled, not frozen per se but panicked and afraid, at having a handgun suddenly dropped in his lap. I think that one common sense reaction might be to quickly smack it away and onto the seat or the floor of the vehicle. But we must remember that, according to Janson, at that moment when the gun was dropped in his lap he also had heard “cops, cops” and could see the officers rushing to the Durango. “Having a gun is obviously not legal, period”, he stated to the Crown in cross-examination. So, whether it was loaded or not, he instinctively shoved it down his pants to hide it.
[42] I accept that evidence from the accused. Again, there is nothing about it that strikes me as being implausible or fanciful. To the contrary, it makes sense to me coming from someone unfamiliar with guns, startled by what just happened, aware of the police, and wanting to save his own skin.
[43] I find as facts that (i) Janson was not aware of and did not see or handle the gun until the moment that the front passenger of the Durango (the third male) reached back and dropped it on Janson’s lap, and that (ii) Janson then immediately stuffed the gun down his pants.
[44] I find further that Janson had no knowledge of the gun beforehand. It was not his gun. He did not choose to have the third male do what that man did. He did not consent to that or invite it to occur. He did not want it to occur. What he did in his immediate reaction to having the gun dropped onto his lap is not what everyone would have done, but that is not the issue. What he did does not constitute culpable possession, specifically with regard to the control element of the offence and the necessary mens rea or fault requirements.
[45] On the application of the law to those facts that I accept, Janson must be acquitted. There is an absence of criminal intent, mens rea. Although he was found to be in physical possession of the gun down his pants, and although he knew that what he shoved down his pants was a gun, his very brief handling of the gun was not, in my view, commensurate with any degree of control sufficient to constitute legal possession. His handling of the gun was hasty. It was instinctive. It was immediate. I am not sure that I would label it as being “casual”, but that is not fatal to the argument. This was, in my assessment, unlike the conclusion reached by Justice Hill in Foster, supra, a case where the accused can reasonably be described as being a “hot potato” transferee.
[46] What was a major driving force in the decision of Justice Hill was, as the Crown acknowledges at paragraph 60 of its written closing argument, the poor quality of Foster’s evidence at trial. I take a very different view of Janson’s evidence. Principally, that is what distinguishes Foster, supra from our case.
III. Conclusion
[47] The Crown has not proven possession beyond a reasonable doubt.
[48] It is unnecessary for this Court to address the argument made by the accused in his reply submissions that the Crown violated the rule in Browne v. Dunn by not putting certain things to him that are lynchpins of the Crown’s theory of the case, such as whether he had the gun with him en route between the restaurant and the motor vehicle.
[49] It is also unnecessary for this Court to speculate as to what the evidence of the third male might have been if he was called as a witness at trial. I would simply observe that there is a complete absence of any evidence at trial that directly contradicts that of the accused, in terms of what happened inside the Dodge Durango.
[50] Simply put, I am not sure that Janson, in law, possessed the gun and the related items that are the subject matter of the charges.
[51] The verdict, therefore, is not guilty on each of the six counts charged.
[52] I sincerely thank Ms. McGuigan and Ms. Schofield for their excellent work on this case. I would also like to acknowledge the work of the police on scene, as but for the precision of the takedown there could have been devastating consequences for one or more of the occupants of the Dodge Durango, the officers themselves, and/or other members of the public who were visiting the Square One shopping centre at the time.
“C.J. Conlan”
Conlan J.
Released: December 17, 2021
COURT FILE NO.: CR-174/19
DATE: 20211217
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
R. v. Jeyakanthan
REASONS FOR JUDGMENT
Conlan J.
Released: December 17, 2021