PETERBOROUGH COURT FILE NOS.: CR-19-1550
CR-20-3054
DATE: 20220201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JAIDEN JEFFERY
– and –
JOSHUA DACOSTA
Defendants
Andrew Midwood, for the Crown
Allison Craig, for the Defendant Jaiden Jeffery
Barry Fox, for the Defendant Joshua DaCosta
HEARD: December 6-8, 13-14, 2021
REASONS FOR JUDGMENT
LEIBOVICH J.
[1] Mr. Jeffery and Mr. DaCosta are charged with the following three offences:
i) Possessing a firearm without being the holder of a license, contrary to s. 91(1) of the Criminal Code of Canada;
ii) Possessing a firearm knowing it was obtained by the commission of an offence, contrary to s. 96(2) of the Criminal Code of Canada; and,
iii) Being an occupant of a motor vehicle in which they knew that there was a restricted firearm, contrary to s. 94(2) of the Criminal Code of Canada.
[2] These three charges all arise from an incident in June 21, 2019 when a gun was found in the car that they were in. They have pleaded not guilty to these offences.
[3] Mr. Jeffery is also charged with operating a conveyance in a manner that, having regard to all of the circumstances, was dangerous to the public, contrary to s.320.13(1) of the Criminal Code of Canada, arising out of the same incident. He originally pleaded not guilty but at the end of the Crown’s case changed his plea to guilty.
[4] The trial took place before me on December 6, 7, 8, 13, and 14, 2021, via Zoom, on the consent of all the parties. At the conclusion of the trial, I reserved my decision until today, February 1, 2022.
[5] At trial, there was no dispute that Mr. Jeffery and Mr. DaCosta were stopped after a brief police chase (which is the basis for the dangerous driving charge) on June 21, 2019 at approximately 3:00 p.m. at the Lansdowne Mall in the city of Peterborough. On the front passenger floor was a gun, in its case, that had just been purchased by a Mr. Kenneth House at the Accuracy Plus gun store. When the car was stopped, Mr. Jeffery was the driver and Mr. DaCosta was in the front passenger seat. Mr. House was no longer in the car. Neither Mr. Jeffery nor Mr. DaCosta had a gun license. None of these facts are in dispute.
[6] It is the theory of the Crown that the two accused drove Mr. House, who did have a gun license, to Accuracy Plus, the local gun store. Mr. House picked up the gun and transferred it to the two accused in the car. It was the defence position that Mr. House had accidently left the gun in the backseat of the car when they dropped him off at his house. The gun must have moved to the front of the car during the collision. The two accused were going to return the gun to Mr. House when the police arrived.
Preliminary matter
[7] The Crown filed a certified copy of the court information containing Mr. House’s plea of guilty. At the end of the case, the Crown agreed that I cannot consider this as evidence against the two accused and that I should ignore it. It is ignored and will not be considered by me.
Trial evidence
The events leading up to June 21, 2019
[8] The police had heard that Mr. Kenneth House was using his firearm license to purchase guns and sell them to drug dealers. As a result, they placed Mr. House under surveillance. The combined testimony of Officers Tweedie and Earle shows that on June 7, 2019 Mr. House was observed getting into a grey Ford Fusion. The car travelled to Accuracy Plus, which is the only gun store in Peterborough, Ontario. Mr. House went inside and returned with a firearm case and a smaller box, probably ammunition. He got into the grey Ford Fusion. The car dropped Mr. House off at his residence. Mr. House exited the car without the firearm case or anything in his hands. The grey Ford Fusion drove away. Officer Tweedie noted that the grey Ford Fusion had a license plate of CWHP132. Two black males were in the front of the car. The police did not expect to see the transaction on June 7. A subsequent check on the grey Ford Fusion with license plate CWHP132 came back as “no hit”.
[9] On June 13, 2019, the police received information from the Chief Firearms Officer that Mr. House had purchased another gun which was waiting for approval. The police were in place to observe the pickup of the gun on June 20th, but Mr. House never attended the Accuracy Plus store. The police then prepared to observe the pickup on June 21st.
The events of June 21, 2019
[10] Different police officers were stationed at different spots to watch Mr. House. The police evidence was generally not challenged at trial and it was supported by pictures and videos taken. The police evidence revealed the following:
i) 2:31 p.m.
The police had set up surveillance around the Dairy Queen parking lot that is right next to Mr. House’s residence at 152 Lansdowne, unit 47. At 2:31 p.m., Kenneth House entered the parking lot and was then joined by his brother and a third unknown person.
ii) 2:38 p.m.
A grey Ford Fusion entered the Dairy Queen parking lot. I will explain why later in these reasons, but I am satisfied that this is the same grey Ford Fusion that picked up Mr. House on June 7, 2019. For the sake of simplicity, I will simply refer to it as the Ford Fusion. Kenneth House entered the car; the other two males left. At 2:39 p.m., the Ford Fusion exited the Dairy Queen parking lot onto Lansdowne East and headed towards the Accuracy Plus store.
iii) 2:43 p.m.
The Ford Fusion was seen heading eastbound on highway 7 towards Accuracy Plus. Shortly afterwards, the Ford Fusion was seen entering the Accuracy Plus parking lot. Officer Kyle saw the Ford Fusion enter the Accuracy Plus parking lot. Although he did not see him exit the car, Officer Kyle saw Mr. House enter the store.
iv) 2:50 p.m.
Officer Kyle saw Mr. House exit the store with a hard-shell black case. Although he did not see him enter the Ford Fusion, Officer Kyle saw the Ford Fusion leave within seconds. He then saw Mr. House in the backseat of the car. Exhibit 11 is a video of Mr. House entering and exiting Accuracy Plus. According to the video, he was in the store for nine minutes. Officer Kyle followed the Ford Fusion to the same Dairy Queen that is next to Mr. House’s residence at 152 Lansdowne. Officer Kyle said it was a five-minute drive. Officer Kyle did not observe any transactions in the car. No officer observed any transaction in the car at any point.
v) 2:59 p.m.
The Ford Fusion left the Dairy Queen parking lot. Kenneth House was seen exiting the Ford Fusion with nothing in his hands. Kenneth House then entered his residence at 152 Lansdowne.
vi) 3:00 p.m.
The Ford Fusion was seen on Lansdowne near River Road. It then turned south on Monahan Road and then into the Lansdowne Mall parking lot. The car came to a stop near The Keg restaurant. The Emergency Response Team was in a black van and pulled in behind the Ford Fusion. This can be seen clearly from the mall surveillance video, which was made Exhibit 13 at trial. The officers exit the van with their guns drawn. The Ford Fusion sped off and was pursued by the police van.
The Ford Fusion moved at a high rate of speed, went through a stop sign, and turned right (west) in an attempt to exit the mall. It was accelerating out of the turn. The Ford Fusion went into the incoming opposing lane. A red car coming into the mall had to move to the outgoing lane to avoid it. Officer Moher was coming into the mall. The Ford Fusion was in Officer Moher’s lane. The Ford Fusion moved to the south of Officer Moher’s car in an attempt to get around it. Officer Moher understood that there was a gun in the car, and he was concerned that the Ford Fusion would escape the mall. He bumped the Ford Fusion on the passenger side. The Ford Fusion veered off after being bumped and hit two small trees and came to a stop. The police chase and crash are seen on the mall surveillance video. The mall surveillance puts the start of the police chase at 3:04.42 p.m. Mr. DaCosta’s camera took a picture of the gun at 3:04.11 p.m.
vii) 3:03 p.m.
Officer Lainey testified that he had Mr. DaCosta out of the car and secured.
viii) 3:54 p.m.
Mr. House was arrested at unit 47 of 152 Lansdowne. A search of the residence revealed no guns. No cash was found on Mr. House.
The contents of the Ford Fusion
[11] A firearm was found on the front passenger floor in a gun case. The gun case was slightly open, and the butt of the gun protruded out slightly. The orange lock for the gun case was also on the front passenger floor. The gun case was resting on Mr. DaCosta’s handbag. The gun was a Glock 17 handgun: a restricted firearm. On the front passenger floor was also Mr. DaCosta’s phone and wads of Canadian currency. This is all seen in the photo marked as Exhibit 9B. Mr. DaCosta’s bag contained two small blocks of cocaine. One weighed 10 grams, the other, 4.8 grams.
[12] On the front driver’s floor can be seen two sets of keys, a driver’s license and cash. These items, depicted in Exhibit 9A, were found on Mr. Jeffery upon arrest and then placed in the car.
[13] The police broke the window glass after the car came to a stop. The glass was not broken in the collision.
[14] Mr. Jeffery’s phone can be seen in Exhibit 21 in the middle open compartment. A third cell phone and another set of keys can be seen in the middle cup holders and are depicted in Exhibit 16B.
[15] In the center console of the Ford Fusion was a sock. Inside the sock were two small white bags and a small grey bag. In total the three small bags contained 8.2 grams of cocaine. A small scale with white residue was also found inside the center console.
Analysis of Mr. Jeffery and Mr. DaCosta’s phones
[16] Eric Easterbrook was qualified as an expert in digital forensic examination including cellular phone data analysis and interpretation. He examined the phones found in the car. The analysis of one phone showed that it clearly belonged to Mr. Jeffery. A photo of a Glock 17 Gen 5 gun was found from the phone’s Snapchat gallery memories. It can be seen on page 6 of Exhibit 30. The photo had been encrypted. Built into the photo is GPS data that indicates where the photo was taken. The GPS coordinates reveal that it was taken at 152 Lansdowne East, unit 47. Mr. Easterbrook was unable to say when the photo was taken.
[17] In addition, the notes app on the phone contained a list of guns, which stated:
BERETTA 92FS INOX
BERETTA M9A3 semi auto 9mm
GLOCK 17 GEN 4
RUGER SR9 semi AUTO
SMITH and WESSON M460 SVR 460
[18] The list was created on March 8, 2019 and modified on May 5, 2019. Mr. Easterbrook stated that it’s possible that the list of guns could have been made on March 8, 2019. With respect to his search, Mr. Easterbrook found no relevant messages between Mr. Jeffery and anybody about firearms. The only communication was the Snapchat photo. There are no texts about firearms.
[19] Mr. Easterbrook analysed the second phone. The analysis showed that the phone clearly belonged to Mr. DaCosta. A picture of the Glock gun found in the Ford Fusion was taken on June 21, 2019 at 3:04 p.m. It can be seen at p. 5 of Exhibit 31. Mr. Easterbrook found no communications on the phone between Mr. House and Mr. DaCosta.
Testimony of Mr. DaCosta
[20] Mr. DaCosta testified at trial. He said that he has known Mr. Jeffery all his life. They are stepbrothers. Mr. DaCosta testified that he was not in Peterborough or at the Accuracy Plus on June 7, 2019.
[21] He testified that he was with Mr. Jeffery on June 21, 2019. He travelled with him because they both had drug debts to collect in Peterborough. Mr. DaCosta testified that he collected between $600-700 that day. Afterwards, they met Mr. House. He knew Mr. House was a drug customer of Mr. Jeffery. He had met him in May 2019. Mr. House had bought drugs from Mr. Jeffery that day. Mr. DaCosta also testified that he understood that sometimes Mr. House would pay Mr. Jeffery to drive him places.
[22] On June 21, he went with Mr. Jeffery to pick up Mr. House at the Dairy Queen parking lot. They picked up Mr. House at 2:50 p.m. He believed Mr. House was going to pay Mr. Jeffery for driving him and for drugs. Mr. DaCosta did not know that they were going to pick up a gun. He and Mr. Jeffery never discussed buying a gun.
[23] Mr. DaCosta testified that they drove to Accuracy Plus. He had never been there before. Mr. House went into the store and returned with a case. When he was in the car, Mr. House opened the case and showed them that he had purchased a firearm. Mr. DaCosta testified that he glanced over and said it was cool, it was nice. In cross-examination, he expanded and said that while in the car, Mr. House opened the case, unlocked it by doing something with the lock, and showed him the gun.
[24] There is a photo of the gun on Mr. DaCosta’s phone. Mr. DaCosta testified that when they stopped the car at Lansdowne Mall, he was reaching in the back for his bag, saw the gun, and took a photo of it. He testified in-chief that he thought it was cool to have a picture. He was immature. He did not realize their danger.
[25] Mr. DaCosta testified that he told Mr. Jeffery that Mr. House had forgotten his gun. They were going to go back and return it. Mr. DaCosta then saw the black SUV speeding at them, with people aiming their guns at them. His car sped off and ultimately collided and stopped.
[26] Mr. DaCosta testified that he left the gun in the backseat. Mr. DaCosta testified that the gun did not fly in from the back. He does not know how it wound up in front. However, he assumed that it must have slid into the front seat during the collision. Mr. DaCosta had no intention to possess the gun. He was going to return it to the owner.
[27] Mr. DaCosta knew that the grey Ford Fusion was not Mr. Jeffery’s family car. He only learned that it was a rental through the case. He saw Mr. Jeffery a few days before June 21 in the Ford Fusion. He never asked Mr. Jeffery where the car came from. In cross-examination by Ms. Craig, he agreed that it was not unusual for drug dealers to use rental cars.
[28] Mr. DaCosta testified that someone had given him the drugs to sell. He would have to pay back the money he received for the drugs or he would be in debt. He was aware that something bad would happen if he did not pay the money back. He testified that he did not think anything bad would happen, that his supplier would be patient and that he would have to get a job to pay off the debt.
[29] Mr. DaCosta testified that he had drugs in his bag which were valued at $700-800. He did not know that there were also drugs in the center console of the Ford Fusion. Mr. DaCosta assumed that Mr. Jeffery had drugs on him to sell and that Mr. House would be buying drugs from Mr. Jeffery. Mr. DaCosta testified that he thought Mr. Jeffery was giving Mr. House a lift, maybe to a bank. He really did not think too much about it. He was not curious. He agreed that the drive from Dairy Queen to Accuracy Plus was five minutes. He never saw Mr. House pay for the lift.
[30] Mr. DaCosta testified in cross-examination that his bag was in the back, on the floor behind the passenger seat. Regarding when he put the bag in the back seat, he testified that:
He threw the bag in in the back on the way to the Dairy Queen;
He threw the bag in the back on the drive to Accuracy Plus;
He threw the bag in the back when he dropped off Mr. House;
He put the bag in the back after he received the money from his drug customer; and,
The bag was on the floor when Mr. House was picked up.
[31] Mr. DaCosta testified that he was not concerned about anyone noticing his bag in the back. He testified that the bag was in front of the gun case, underneath the front passenger seat. He said that he first reached into the back and retrieved his bag, then turned around again and opened the gun case and took a picture.
Law and Analysis
Positions of Counsel
[32] Counsel for Mr. Jeffery and Mr. DaCosta both rely on the testimony of Mr. DaCosta in support of their submissions that both accused should be acquitted of the firearm charges. They submit that his testimony makes sense and is supported by all the evidence. Specifically, there is no evidence that any money actually changed hands between Mr. House and the two accused. The violent collision which ended the police chase explains how the firearm came to be in the front passenger footwell. The exchange that occurred on June 7th does not assist the Crown, as the two accused cannot be identified as the occupants of the Ford Fusion that day. Furthermore, there are no texts or messages between the parties and Mr. House about purchasing guns. It is a case of temporary innocent possession as the parties were on the way to return the gun when stopped by the police.
[33] The Crown submits that Mr. DaCosta’s evidence should not be believed, nor can it raise a reasonable doubt. The Crown points to inconsistencies in Mr. DaCosta’s evidence, but overall submits that it makes no sense that Mr. House would forget a valuable item, a gun, that he specifically went to purchase in this short car ride. The Crown also submits that, when you look at the photos and video of the gun and its case, it could not have slid from the back to the front of the car in the collision. Finally, the Crown submits that the overall circumstances support the conclusion that both accused had illegal possession of the gun.
Applicable legal principles
[34] The burden is on the Crown to prove both accused’s guilt beyond a reasonable doubt. Both accused come before the court with the presumption of innocence. In other words, they have a clean slate. The presumption is only discharged when, and if, the Crown proves an accused’s guilt beyond a reasonable doubt. The Crown at all times bears the onus of proving the case, with respect to each accused. Each accused is entitled to his own verdict. Neither accused has to prove anything. The Crown is required to prove the essential elements of the offence to the reasonable doubt standard. I must assess the case on the whole and decide whether, on the basis of all of the evidence, or lack thereof, the Crown has proven the guilt of each accused beyond a reasonable doubt: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.
[35] The standard of proof beyond a reasonable doubt is an exacting one. It is more than probable or likely guilt. Indeed, proof beyond a reasonable doubt falls much closer to absolute certainty than it does to proof on a balance of probabilities. An accused cannot be convicted unless after considering all the evidence or lack of evidence I am sure that he is guilty of the offence.
[36] Mr. DaCosta has testified at trial. He testified that neither he nor Mr. Jeffery discussed buying a gun, that Mr. House simply forgot the gun that he purchased in their car, and that they were going back to return it to him when stopped by the police. If I believe that evidence, I must acquit both accused on the gun charges. If I do not believe that evidence but it leaves me in reasonable doubt, I must acquit. Even if I am not left in doubt by Mr. DaCosta’s evidence, I must still consider, on the basis of the evidence that I do accept, if I am satisfied beyond a reasonable doubt of the guilt of each of the accused. At the end of the day, the Crown has the onus of proving its case beyond a reasonable doubt: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 66, 67; and, R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639.
[37] While counts 2-4 have slightly different elements, in this case there is no issue that neither accused had a valid firearm license and that both accused were occupants in the car where the gun was found. The critical issue is whether each accused illegally possessed the gun. In order to convict each accused of illegally possessing the firearm, the Crown must prove beyond a reasonable doubt that each accused had knowledge of the firearm and control over the firearm: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 15, 17; R. v. Lights, 2020 ONCA 128, at paras. 44-46; R. v. Choudhury, 2021 ONCA 560, at para. 19; R. v. Walker, 2021 ONSC 8090, [2021] OJ No 7292; R. v. Beaver (1957), 1957 CanLII 14 (SCC), 118 C.C.C. 129 (S.C.C.); R. v. Terrence (1983), 1983 CanLII 51 (SCC), 4 C.C.C. (3d) 193 (S.C.C.); R. v. Humphrey, 2011 ONSC 3024, 237 C.R.R. (2d) 109, at paras. 142-3; R. v. Bonilla-Perez, 2014 ONSC 2031, affirmed on appeal, 2016 ONCA 535.
[38] In terms of determining whether the Crown has proven unlawful possession, Hill J. in R. v. Anderson-Wilson, 2010 ONSC 489, stated at para. 74:
Possession cases are fact-driven inquiries. Where proof is dependant 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: R. v. Marryshow, [2003] O.J. No. 1332 (S.C.J.) at para. 36-39 (aff’d [2008] O.J. No. 4790 (C.A.)); R. v. Green; R. v. Rawlins (1993), 5 M.V.R. (3d) 280 (Ont.C.A.) at 281 - a sawed-off rifle can be easily concealed because of its reduced length: R. v. Ferguson (1985), 1985 CanLII 3534 (ON CA), 20 C.C.C. (3d) 256 (Ont.C.A.) at 262
(3) the degree of communal use of a vehicle containing the firearm: R. v. Freeman, [2006] O.J. No. 1021 (C.A.) at para. 6
(4) the size, nature and number of weapons in a particular space: R. v. Balasuntharam, [1999] O.J. No. 4861 (C.A.) at para. 2-4; R. v. Gagliardi, [2005] O.J. No. 1016, 2005 CarswellOnt 1543 (Ont.S.C.J. 2005) at para. 43 (aff’d [2006] O.J. No. 72 (C.A.))
(5) the nature of other items located proximate to the firearm capable of providing context for inferences of knowledge and control: R. v. Coates (2003), 2003 CanLII 36956 (ON CA), 176 C.C.C. (3d) 215 (Ont.C.A.) at para. 11, 14 (balaclava, binoculars, map, duct tape, etc.); R. v. Schero, [1969] O.J. No. 413 (C.A.) at para. 2 (face masks, gloves, handcuffs).
[39] The firearm was found in the car driven by Mr. Jeffery. While this is clearly a relevant factor, there is no presumption against Mr. Jeffery in this regard. As stated in R. v. Lincoln, 2012 ONCA 542, [2012] O.J. No. 3872, at para. 3:
No rebuttable presumption of knowledge and control for purposes of determining possession, based solely on the fact that a person is the operator with control of the vehicle, exists at common law or under the Controlled Drugs and Substances Act, S.C. 1996, c. 19. To give effect to such a premise would constitute an impermissible transfer of the Crown’s burden of proof to the accused. While the fact that a person is the operator with control of the vehicle, together with other evidence, may enable a trial judge to infer knowledge and control in appropriate cases, it cannot, standing alone, create such a rebuttable presumption. See R. v. Provost, 2011 ONCA 437 (Ont. C.A.), at paras. 11-13.
Also see: R. v. Lights, at para. 50
Mr. Jeffery’s flight from the scene
[40] Mr. Jeffery has pled guilty to operating a conveyance in a manner that, having regard to all of the circumstances, was dangerous to the public. The facts fully support the plea. Mr. Jeffery drove at a high rate of speed, away from the police, in the mall parking lot and through a stop sign. Mr. Jeffery drove into the opposite lane of traffic as he tried to exit the mall. An approaching red car had to veer into their opposite lane of traffic to avoid a collision. Mr. Jeffery continued in the opposing lane and tried to swerve further around Officer Moher before he was bumped by Officer Moher and crashed into two small trees and came to a stop. The parking lot was busy with a lot of pedestrian traffic.
[41] Mr. Jeffery was the driver. His flight from the scene has no bearing upon Mr. DaCosta and is not evidence that can be used against Mr. DaCosta. But in addition, I find that in this case, Mr. Jeffery’s conduct of fleeing from the police does not assist me in determining whether he was illegally in possession of the firearm. In general, an accused’s post-offence conduct, such as flight, can be probative of his or her culpability: R. v. Ching, 2019 ONCA 619, at para. 41. However, in this case I find that it is equally likely that Mr. Jeffery fled because he had drugs in the car (drugs were found in the middle counsel) or because he did not want to be caught with the gun in the car irrespective of whether he was in innocent possession of the gun or not.
The events of June 7th, 2019
[42] The car driven by Mr. Jeffery on June 21st was a grey Ford Fusion with a license plate number CWHP132. I am satisfied beyond a reasonable doubt that this was the same car that took Mr. House to the Accuracy Plus on June 7, 2019. Officer Tweedie testified that the car that he saw on June 21st at the Lansdowne Mall matched the description of the car he saw on June 7th. The Ford Fusion stopped at the Lansdowne Mall had a license plate CHVP132. The car seen on June 7th was observed by Officer Tweedie to have a license plate which was very similar, CWHP132. Given the closeness between the two license plates, and the fact that the inquiry on the CWHP132 plate came back as no hit as opposed to indicating that it was registered to a different person or company, Office Tweedie’s testimony that he must have gotten the license plate wrong on June 7th makes perfect sense. There simply cannot be two grey Ford Fusions seen at the same location weeks apart with license plates that have all matching letters/numbers except for one.
[43] However, I cannot be satisfied that Mr. Jeffery and Mr. DaCosta were in that same grey Ford Fusion on June 7, 2019. While they match the very general description of the two occupants from that day, so would many others. In addition, there is evidence that a phone belonging to another person who was associated with Mr. Jeffery and another set of keys were found in the Ford Fusion, indicating that someone else may have been in that car.
Mr. DaCosta’s evidence
[44] The Crown agrees that if I accept Mr. DaCosta’s evidence that the gun was accidently left in the car and that the two accused were on there way to returning it, or it raises a reasonable doubt in that regard, then the two accused should be acquitted of the firearm charges. This temporary possession would not qualify for criminal liability. It is in this vein that the doctrine of innocence possession would apply. As stated by the Court of Appeal in R. v. Farmer, 2014 ONCA 82, [2014] OJ No 5736, at para. 3:
The “innocent possession” doctrine relied on by the trial judge is derived from cases where an accused does exercise control over contraband, but with “the absence of an intention to exercise control beyond that needed to destroy the contraband or otherwise put it permanently beyond one’s control”: Chalk, at para. 24, citing R. v. Christie (1978), 1978 CanLII 2535 (NB CA), 41 C.C.C. (2d) 282 (N.B.S.C. App. Div.).
[45] I do not accept Mr. DaCosta’s testimony regarding how the gun was accidently left in the car nor does it raise a reasonable doubt. Mr. DaCosta’s testimony is internally inconsistent, contrary to the physical evidence and makes no sense. Let me explain.
Mr. DaCosta’s bag
[46] Part and parcel of Mr. DaCosta’s explanation for how he came to notice that the gun was in the backseat on the floor was that he was turning around to grab his bag that he had left underneath his seat. There are a number of problems with this aspect of Mr. DaCosta’s evidence. It makes no sense that Mr. DaCosta would place his bag, which contained cash and cocaine that he was indebted to others, out of his view and in a spot that was more difficult for him to access and much easier for anyone in the backseat, like Mr. House, to access. Mr. DaCosta had only met Mr. House once previously. I do not understand why Mr. DaCosta would be so cavalier with his money and drugs.
[47] Mr. DaCosta was inconsistent regarding where he placed his bag. Mr. DaCosta testified that he placed his bag behind him underneath and around his seat. He was asked to clarify where the bag was placed, and he agreed that the bag was placed in the back footwell where a back passenger would place his feet. Later in his evidence he reverted and said that the bag was underneath his seat in front of the gun case.
[48] Mr. DaCosta had great difficulty explaining when he put his bag in the backseat. He said at first that he placed his bag in the back before they arrived at the Dairy Queen. He then quickly changed his evidence and said that he put the bag in the back on the drive to Accuracy Plus, then he said he put it in the back after they dropped off Mr. House, and then settled on that he put the bag in the back earlier, after he received money from his customer.
[49] Mr. DaCosta’s bag was found after the crash on the front passenger floor. Mr. DaCosta testified that he retrieved it from the back. He initially testified that when he looked in the back to retrieve his bag, he noticed the gun case. He then turned out of his seat completely and opened the case with one index finger and took a picture of the gun. The sequence of events changed when Mr. DaCosta was asked in cross-examination when he retrieved his bag. He said that he retrieved his bag before he took the picture and that he originally got out of his seat, retrieved the bag, and then turned around a second time and took the picture. According to Mr. DaCosta, his bag was in front of the gun case, underneath the seat, yet at no point did Mr. DaCosta ever describe moving the gun case to retrieve his bag.
Contrary to the physical evidence
[50] The gun case was found, not in the back floor well, but in the front passenger floor well after the collision. Mr. DaCosta testified that the gun case did not fly in from the back. He does not know how it moved from the back to front. He assumed that it slid from the back to the front during the collision.
[51] I appreciate counsels’ submissions that there are no measurements of the gun case or the space underneath the front seat to see if it’s possible. I also appreciate the evidence of Officer Tweedie that this was a violent collision. However, a review of the pictures and video of the gun case and the interior of the car still provides a sense of the relative depth and size of the item. In my view, it would have been impossible for the gun case to have travelled underneath the front passenger seat to the front passenger floor well. The gun case containing the gun was described as a hard, plastic shell. This was confirmed by Exhibit 18A (another photo of the gun in the gun case) and Exhibit 11 (the video of the purchase of the gun). Looking at Exhibit 19, one can see that the space under the seat is minimal. The case simply cannot fit under the seat
[52] I do not see how it is possible that the collision caused the gun case to move from the backseat to the front passenger foot well but did not result in anything else moving. For example, Mr. DaCosta’s bag is still in the front passenger floor well where he left it. A phone and set of car keys are still in the cup holder and not thrown on to the floor. Mr. Jeffery’s phone is in the middle console area and not on the floor. A pocketknife can be seen in Exhibit 16I in the side door. It did not go flying on to the ground. Yes, bundles of cash are on the front passenger floor, but I agree with Crown counsel that they have the look of being dropped there after the collision and not having been thrown about during the collision.
[53] I also note that the orange lock is on the front passenger floor near the gun case. The orange lock had been attached to the gun case when it was brought. This can be seen in the Exhibit 11 video. It was clearly removed at some point. According to Mr. Dacosta it was unlocked by Mr. House while he was in the back seat. My point is, if the lock and the gun case were in the backseat, it seems quite incredible that, during this collision, that orange lock also found its way to the front passenger floor and near the gun case and that the gun case and the loose orange lock were the only items that appear to have changed locations during the collision. It makes much more sense that the orange lock was placed on the floor when Mr. DaCosta opened up the case when he was in the front passenger seat and took his picture of the gun.
Forgetting the gun
[54] I find it simply unbelievable that Mr. House would forget the gun in the car. Guns, like drugs, are valuable. As noted by the Court of Appeal in R. v. Thompson, 2020 ONCA 361, [2020] O.J. No. 255, at para. 11:
In a case in which a loaded firearm was found in the back of a car after a traffic stop, this court held that it was open to the trial judge to rely on the common sense inference that “parties generally do not hide their valuables in someone else’s car, unless they know and trust the owner of the car to look after the valuables for them”: R. v. Bonilla-Perez, 2016 ONCA 535, at para. 16. Implicit in this holding is the Court’s acceptance that it is a matter of common sense that guns are valuable items. The same is true of drugs: R. v. Pannu, 2015 ONCA 677, at para. 157.
[55] Beyond the fact that guns are valuable, the very purpose of the trip to Accuracy Plus was to pick up the gun. And, according to Mr. DaCosta, it was his understanding that Mr. House had paid Mr. Jeffery to drive him to pick up the gun, which he now is alleged to have forgotten.
[56] Beyond the fact that the sole purpose of the trip was to pick up the gun, the trip from Accuracy Plus to the Dairy Queen was five minutes, making it even more incredible that the gun would be forgotten during such a short ride.
[57] In addition, during this very short car ride, Mr. House, according to Mr. DaCosta, opened the gun case and showed the gun to Mr. DaCosta.
[58] I do not see how it is possible that Mr. House, despite going to the store for the purpose of getting the gun, despite a short car ride, and despite discussing and handling the gun during this short car ride, actually forgot the gun in the car.
[59] Furthermore, adding to the improbability of it all is the fact that Mr. Jeffery has a picture on his phone that matches the gun that is alleged to have been accidently left in his car.
[60] Finally, I do not understand why, according to Mr. DaCosta, his first reaction when seeing that the gun case was left in the back would be to open the case and take a picture of the gun when he could have easily done so when he was shown the gun the first time by Mr. House. Again, it makes no sense.
Has the Crown proven beyond a reasonable doubt that each accused had the requisite knowledge and control of the firearm to support a conviction?
[61] I have rejected Mr. DaCosta’s evidence and found that it does not raise a reasonable doubt. However, I must still look to the evidence that I do accept to see if the Crown has proven its case beyond a reasonable doubt. Again, the Crown at all times bears the onus of proving the case, with respect to each accused. Each accused is entitled to his own verdict.
[62] Counsel for both accused submit that irrespective of Mr. DaCosta’s testimony, the Crown has not proven its case. There is no evidence that any money changed hands between Mr. House and either of the two accused. No money was found in Mr. House’s home or on his person upon his arrest, shortly after the two accused were arrested, nor is there any evidence of any digital communication between Mr. House and the two accused about selling or transferring firearms. Counsel for Mr. DaCosta also points out that Mr. DaCosta was not the driver of the car.
[63] The Crown is not required to prove, as an element of counts 2-4, that money or any other type of consideration passed between Mr. House and either of the two accused. However, in assessing the case, I must consider all the evidence and the lack of evidence. As stated in R. v. Bui, 2014 ONCA 614, at para. 28:
In my view, this submission ignores the fact that the question of whether a reasonable doubt exists must be assessed based on the totality of the evidence adduced at trial and not simply based on the “proven facts”.
[64] I agree that there was no evidence led at trial of any consideration given for the firearm. However, in my view, having regard to all the factors, the evidence is overwhelming that on June 21, 2019, Mr. House used his firearm license to purchase a firearm and then transferred it to both accused. The following facts are undisputed:
Neither Mr. Jeffery nor Mr. DaCosta had a firearm license;
Mr. Jeffery, with Mr. DaCosta in the front passenger seat, drove Mr. House to the Accuracy Plus gun store;
Mr. House exited that store with a gun in a gun case. He re-entered the car driven by Mr. Jeffery with the gun case;
Mr. House exited the car without the gun case and left the gun case in the car; and,
The gun case was found, unlocked, in the front passenger floor.
[65] The above facts clearly show that Mr. Jeffery had knowledge and control of the gun. Mr. Jeffery drove Mr. House to the gun store to get the gun and then Mr. House left the gun in Mr. Jeffery’s car. The gun was not in the back but in the front of the car, clearly visible and the gun case unlocked. Furthermore, while there are no digital communications about purchasing guns, Mr. House did send a photo of a Glock 17 gun to Mr. Jeffery at some point prior to June 21st which is identical to the one that Mr. House picked up and which was then found in the car on the 21st. The inference is irresistible. Mr. Jeffery was interested in obtaining a Glock 17 and Mr. House was able to obtain it for him.
[66] I agree with counsel that Mr. DaCosta is in a potentially different position. There were no communications found between Mr. DaCosta and Mr. House and Mr. DaCosta was a passenger and not the driver of the car. As stated by Hill J. in R. v. Anderson-Wilson, 2010 at para. 76:
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 CanLII 24185 (ON CA), 140 O.A.C. 122 (C.A.) at 123-4; R. v. Williams (1998), 1998 CanLII 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 CanLII 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.)).
[67] Except, the unlocked gun case, with the slightly protruding gun, was found next to Mr. DaCosta in the front passenger floor, again clearly visible. Critically, Mr. DaCosta took a picture of the gun at 3:04 p.m. when he had stopped at the Lansdowne Mall parking lot. I agree with Crown counsel that the logical inference is that Mr. DaCosta was taking a picture of his newly acquired gun. Clearly Mr. DaCosta had knowledge and control of that gun. Mr. Jeffery and Mr. Dacosta drove to pick up Mr. House together, they drove to the Accuracy Plus together, they returned Mr. House together and they left the Dairy Queen parking lot, after dropping him off, together. The only reasonable logical inference is that both accused were acting together to acquire the gun. Again, for the reasons outlined above, the suggestion that Mr. House accidently left the gun in the car is utterly unbelievable.
Conclusion
[68] Mr. Jeffery and Mr. DaCosta are found guilty of counts 2-4.
[69] Mr. Jeffery has pleaded guilty to count 1, operating a conveyance in a manner that, having regard to all of the circumstances, was dangerous to the public, contrary to s.320.13(1) of the Criminal Code of Canada. I accept that plea. The evidence shows that his driving was a marked departure from the standard of care required and a danger to the public. He shall be found guilty of count 1.
Justice H. Leibovich
Released: February 1, 2022
PETERBOROUGH COURT FILE NOS.: CR-19-1550
CR-20-3054
DATE: 20220201
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JAIDEN JEFFERY
– and –
JOSHUA DACOSTA
Defendants
REASONS FOR JUDGMENT
Justice H. Leibovich
Released: February 1, 2022