Court File and Parties

Court File No.: CR-21-929 Date: 2022-09-02 Superior Court of Justice - Ontario

Re: Her Majesty the Queen And: Jeigh Ames

Before: Doi J.

Counsel: Lucy Rasmussen, for the Crown Kayvan Vakili, for Mr. Ames

Heard: August 5 and 8, 2022

Reasons for Judgment

Overview

[1] In the early morning of October 2, 2018, police executed a drug warrant at a residential home in Brampton. Upon entering the home, police found Mr. Ames in the basement trying to leave through a window. Police searched the basement and found a loaded .45 calibre handgun that was covered with a black jacket and wedged between a sofa armrest and cushion.

[2] The sole issue in this case is whether Mr. Ames was in possession of the handgun.

Charges

[3] Police charged Mr. Ames with the following offences:

a. Possession of a firearm without a licence; b. Possession of a firearm knowingly without a licence; c. Possession of a loaded firearm with a licence; d. Possession of a weapon for a dangerous purpose; e. Careless storage of a firearm; and f. Possession of a firearm while prohibited from doing so.

All of the counts relate to the same firearm.

[4] At trial, the following were agreed facts:

a. The gun seized was a Glock .45 calibre; b. The gun was loaded with live ammunition; c. The gun was carelessly stored; d. Mr. Ames was on a weapons prohibition on October 2, 2018; e. Mr. Ames did not have a firearms license in 2018; f. S.P. and D.G. were charged with the same offences as Mr. Ames, save for the weapons prohibition charge, and C.W. was charged with the exact same charges as Mr. Ames; g. S.P., D.G. and C.W. all provided statutory declarations saying that they did not know about the presence of the gun at the subject residence nor have care or control of the gun; h. S.P., D.G. and C.W. all had their charges withdrawn prior to trial dates being set; i. At the time of Mr. Ames’ arrest on October 2, 2018, there was a warrant out for his arrest; and j. Mr. Ames never resided at the home where the subject gun was found.

Background

[5] Having regard to the evidence and the record at trial, I make the following findings.

[6] In October 2018, the Peel Regional Police Street Crime Unit was investigating two women who were believed to be trafficking drugs. As part of the investigation, police obtained a search warrant under the Controlled Drugs and Substances Act, SC 1996, c. 19, to search a vehicle and two addresses. One address was a Brampton home where S.P. resided with other family members.

[7] In the early morning of October 2, 2018, police conducted surveillance of the Brampton home before executing the search warrant. During the surveillance, police observed a vehicle arrive at the home. A person, believed to be Mr. Ames, left the vehicle and entered the home.

[8] Mr. Ames was not a target of the investigation.

[9] At about 2:55 am on October 2, 2018, police entered the Brampton residence to execute the search warrant. Upon making entry, police found multiple people in the residence.

[10] As police entered the basement, S.P. ran upstairs to join her daughter who was a young child at the time. In the basement, police found Mr. Ames apparently trying to exit the home by crawling through a basement window that had security bars which blocked his exit. Police also found two other persons, C.W. and D.G., in the basement. Police arrested Mr. Ames and brought him upstairs to a secure location on the main floor of the home where they gathered everyone found in the residence to check their identities and to explain the search warrant to them.

[11] While police were bringing Mr. Ames from the basement to the secure location upstairs, he blurted out, “if you find something it’s all mine.”

[12] During their search of the basement, police found a .45 calibre Glock handgun loaded with six (6) bullets in the magazine. The handgun was covered by a black jacket and wedged between the left armrest and a seat cushion of a sofa located in a social area to the partly-finished basement. Police also found cocaine residue, cannabis resin, and edible marijuana on or by a coffee table and the sofa in the basement. In addition, police found several cell phones, two provincial health cards for C.W. and another person, J.M., a loyalty program card for an unknown person, and a purse with some personal items in the area of the sofa, none of which belonged to Mr. Ames.

[13] No fingerprints or DNA were found on the handgun.

[14] Police did not determine who owned the black jacket or the drugs found in the basement.

[15] The sofa where the handgun was found was located in a different part of the basement from where the window that Mr. Ames had tried to crawl through was located.

[16] At the time, Mr. Ames did not have a firearms licence and was the subject of an outstanding arrest warrant and weapons prohibition.

[17] Mr. Ames complied with police. However, he grew agitated during a verbal exchange in the secure area of the residence. To de-escalate the situation, police took Mr. Ames outside where he had a cigarette and calmed down. Police later arrested him on the firearms charges and had him transported to 21 Division.

[18] Mr. Ames did not reside at the Brampton residence.

[19] S.P. and D.G. were charged with the same offences as Mr. Ames, save for the weapons prohibition charge, and C.W. was charged with the same offences as Mr. Ames. After S.P., D.G. and C.W. gave statutory declarations attesting to their lack of knowledge of the presence of the handgun and their lack of care or control of the handgun, all of their charges were withdrawn.

[20] At the conclusion of the Crown's case, the defence brought a motion for a directed verdict of acquittal for which I reserved my decision. I then heard closing submissions. Mr. Ames called no evidence at trial.

Legal Principles

[21] The relevant legal principles are not in dispute.

[22] Mr. Ames is presumed to be innocent until proven guilty beyond a reasonable doubt.

[23] Subsection 4(3) of the Criminal Code sets out three (3) types of illicit possession, namely personal, constructive and joint possession: R. v. Morelli, 2010 SCC 8 at para 15. The Crown’s case is solely based on constructive possession which is the only relevant form of possession that arises in this matter.

[24] The key factual issue in dispute is whether the handgun found in the sofa was in Mr. Ames’ possession. To prove its case, the Crown relies entirely on circumstantial evidence. Accordingly, the principles related to circumstantial evidence and proof beyond a reasonable doubt apply in this matter.

[25] In R. v. Choudhury, 2021 ONCA 560 at para 19, Jamal J.A., as he then was, summarized the analysis for constructive possession in a case that was prosecuted on circumstantial evidence:

• Constructive possession is established when an accused does not have physical custody of an object but knowingly has it in the actual possession or custody of another person or has it in any place for their own or another’s use or benefit: Criminal Code, s. 4(3)(a); R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17; and R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 47;
• Knowledge and control are essential elements of constructive possession, which is established when the Crown proves beyond a reasonable doubt that the accused: (i) has knowledge of the character of the object said to be possessed; (ii) knowingly puts or keeps the object in a particular place, whether or not the place belongs to or is occupied by the accused; and (iii) intends to have the object in the place for the use or benefit of the accused or another person: Morelli, at paras. 15, 17; Lights, at paras. 44, 47;
• Tenancy or occupancy of a place where an object is found does not create a presumption of possession: Lights, at para. 50; R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at paras. 2-3; and R. v. Bertucci (2002), 2002 41779 (ON CA), 169 C.C.C. (3d) 453 (Ont. C.A.), at para. 18; and
• When the Crown relies largely or wholly on circumstantial evidence to establish constructive possession, a conviction can be sustained only if the accused’s knowledge and control of the impugned objects is the only reasonable inference on the facts. The trier of fact must determine whether any other proposed way of looking at the case as a whole is reasonable enough to raise a doubt about the accused’s guilt, when assessed logically and in light of human experience and common sense: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56; Lights, at para. 39; and R. v. Stennett, 2021 ONCA 258, at paras. 60-61. [Emphasis added]

[26] In deciding whether the Crown has met the standard of proof beyond a reasonable doubt, a trier of fact should consider the evidence as a whole and not in piecemeal fashion: R. v. Awad, 2021 ONCA 285 at para 10. The proof beyond a reasonable doubt standard applies to the elements of an offence and the issue of guilt, and not to individual pieces of evidence: R. v. Arp, 1998 769 (SCC), [1998] 3 SCR 339 at paras 64-75; R. v. Pham, 2005 44671 (ON CA), [2005] OJ No 5127 (ONCA) at para 30; R. v. Faucher, 2020 SKCA 27 at para 53. A reasonable doubt is based on reason and common sense that is logically connected to the evidence or the absence of it: R. v. Villaroman, 2016 SCC 33 at para 28.

[27] The standard of proof beyond a reasonable doubt is not achieved when the evidentiary record leads to reasonable inferences other than guilt: Villaroman at para 35. A reasonable doubt is, “a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: Villaroman at para 36; citing R. v. Lifchus, 1997 319 (SCC), [1997] 3 SCR 320 at para 30.

[28] In any given case, a determination as to whether the prosecution has proven possession beyond a reasonable doubt based on circumstantial evidence is always a fact-driven analysis: R. v. Stewart, 2021 ONSC 8062 at para 23.

[29] At the conclusion of trial, I reserved my decision on the defence’s application for a directed verdict and heard closing submissions for the trial. The question on an application for a directed verdict where the Crown relies on circumstantial evidence is well established and was summarized by Fairburn J., as she then was, in R. v. Singh, 2016 ONSC 3136 at paras 9-11:

[9] The standard to be applied on a directed verdict application is the same test applied to committal following a preliminary inquiry. The question is whether there is any evidence upon which a properly instructed jury, acting reasonably, could return a verdict of guilty: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21; United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080; R. v. Monteleone, 1987 16 (SCC), [1987] 2 S.C.R. 154, at p. 160. There must be evidence, direct or circumstantial, that is capable of proving each element of the offence.

[10] As McLachlin C.J. noted in Arcuri, where the Crown relies upon circumstantial evidence to prove an element of an offence, the judge’s task involves a “limited weighing” of the evidence. This requires a determination as to whether the evidence is reasonably capable of supporting the inferences that the Crown will ask the jury to draw: Arcuri, at para. 23; R. v. Pannu, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 159, leave to appeal ref’d [2015] S.C.C.A. No. 478, [2015] S.C.C.A. 498.

[11] The very nature of circumstantial evidence is that it will often furnish more than one inference. Some inferences may point toward guilt and others against. On a directed verdict application, the judge is not to draw an inference or ask whether she or he would draw the inferences suggested by either party. Where the evidence supporting an essential element of the offence is “entirely circumstantial”, the trial judge’s task is simply to determine whether the evidence is “reasonably capable of supporting the inference” about the essential element: Pannu, at para. 159. If the evidence, considered as a whole, could reasonably support an inference of guilt, then a directed verdict motion must fail: Pannu, at para. 160. [Emphasis added]

[30] In conducting the limited weighing on a directed verdict application, the trial judge takes the Crown’s case at its highest, meaning that the trial judge assumes the reasonable inferences drawn from the primary facts that are most favourable to the Crown: R. v. Jackson, 2016 ONCA 736 at para 7. Where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered: R. v. Sazant, 2004 SCC 77 at para 18. It is irrelevant that the evidence also supports inferences that are inconsistent with guilt: Jackson at para 8. The inferences the Crown seeks to draw need only be reasonable, and need not be easily drawn, likely or probable: R. v. Katwaru (2001), 2001 24112 (ON CA), 52 OR (3d) 321 (CA) at para 40; R. v. Dwyer, 2013 ONCA 368 at para 4. That said, the evidence must support not simply an inference of guilt but guilt beyond a reasonable doubt based on the whole of the evidence: R. v. Charemski, 1998 819 (SCC), [1998] 1 SCR 679 at para 35; Sazant at para 25; R. v. Douse, 2022 ONSC 3228 at para 39.

Analysis

[31] The Crown led evidence from several officers who executed the warrant at the subject residence on October 2, 2018. Each gave fair and balanced testimony, properly conceded the limits of their recollections, and avoided overstating or embellishing their evidence.

[32] The evidence against Mr. Ames is entirely circumstantial. Mr. Ames was never seen in actual possession of the handgun that was found wedged in the basement sofa under a jacket that concealed it from plain view. The owner of the jacket used to cover the handgun is unknown. The sofa was in an area of the basement some distance from the window that Mr. Ames tried to crawl through when police entered the residence. In addition, there is no DNA or fingerprint evidence to link the handgun to Mr. Ames.

[33] Placing heavy emphasis on the utterance that Mr. Ames made to police shortly after his arrest, the Crown submits that he may be found guilty on the circumstantial evidence in this case. By blurting, “[i]f you find something it’s all mine,” the Crown submits that Mr. Ames clearly shared his comment with police to shield others from criminal liability by referring to the illegal handgun and drugs that were found in the basement as being in his possession. Although the drugs were in plain sight, the firearm was hidden in the sofa under the black jacket that, in the Crown’s submission, explains Mr. Ames’ initial “if you find something” remark by implying the need for some effort (i.e., by lifting the jacket) to find what he was alluding to. Claiming that Mr. Ames knew of the handgun and the drugs, the Crown submits that he desperately tried to flee the home by trying unsuccessfully to crawl through the barred basement window to evade arrest and criminal liability. Taking this all into account together with the statutory declarations from the others, the Crown submits that the court may find Mr. Ames guilty of the charges by making common sense inferences that he knew and maintained control of the hidden handgun.

[34] For Mr. Ames to be found guilty as charged, the Crown must prove beyond a reasonable doubt that he: a) had knowledge of the handgun said to be possessed; b) knowingly placed or kept the handgun in the basement sofa; and c) intended to have the handgun in the sofa for his or another person’s use or benefit: Morelli at paras 15-17; Lights at paras 44 and 47; Choudhury at para 19.

[35] Taking the Crown’s case at its highest, I find that the circumstantial evidence is capable of supporting an inference that Mr. Ames is guilty beyond a reasonable doubt on the totality of the evidence: Jackson at para 7. Having blurted to police, “[i]f you find something it’s all mine,” a reasonable inference may be drawn that Mr. Ames intended to take responsibility for possessing the handgun found in the basement sofa. By considering only those reasonable inferences which favour the Crown, I am satisfied that the evidence reasonably allows for inferences to be drawn that Mr. Ames knew about the handgun, that he knowingly hid the handgun in the sofa under the jacket, and that he intended to have the handgun for his use or benefit: Sazant at para 18. As a result, I find that a trier of fact can reasonably infer that Mr. Ames had possession of the handgun. Accordingly, the motion for a directed verdict of acquittal is dismissed.

[36] Although the various inferences and factors cited by the Crown may arguably support a circumstantial case against Mr. Ames, I do not find that the only rational inference to draw is that he knew of the handgun hidden in the sofa. As set out earlier, there is no direct evidence to connect Mr. Ames to the handgun. In my view, it is possible that Mr. Ames blurted his utterance to police intending to only take responsibility for the cocaine and/or cannabis in the basement without necessarily having knowledge of the handgun hidden in the sofa under the black jacket. There is no evidence to show who owned the jacket or placed it over the handgun to cover or conceal it. The mere fact that Mr. Ames was in the basement where the handgun was found does not create a presumption of possession: Choudhury at para 19; Lights at para 50. Moreover, the sofa in which the handgun was hidden was in a different part of the basement from where police found Mr. Ames trying to exit the residence through a window. Importantly, Mr. Ames had an outstanding arrest warrant that may well explain his desperate attempt to flee the home through the window to avoid police and the prospect of being arrested. In addition, I give very little weight to the fact that S.P., D.G. and C.W. each gave a self-serving statutory declaration denying any knowledge or control of the handgun found in the basement. Taking this all into account, I find that the circumstantial evidence does not support an inference of guilt beyond a reasonable doubt.

[37] Based on the foregoing, I am left with reasonable doubt of Mr. Ames’ knowledge and control of the handgun. Accordingly, Mr. Ames is acquitted of all the charges.

Doi J.

Date: September 2, 2022