His Majesty the King v. Tyrone Jackson

COURT FILE NO.: CR-23-30000243

DATE: 20231011

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

TYRONE JACKSON

Accused

Sharna Reid, for the Crown

David Robinson and Mahvash Mirza, for the Accused

HEARD: October 6, 2023

Allen J.

REASONS FOR DECISION ON A DIRECTED VERDICT

BRIEF BACKGROUND

[1] On August 9, 2022, members of the Toronto Police Guns and Gangs Task Force were involved in a firearm investigation regarding Tyrone Jackson. A Criminal Code search warrant was executed in relation to 14 Auburndale Circle, Unit 105, and a black Mercedes. The police seized a loaded prohibited Charter Arms firearm and ammunition inside Unit 105. Nothing of any relevance was recovered in the Mercedes. Mr. Jackson was arrested and charged with possession of a firearm and ammunition and violations of prohibitions against possession of the same.

[2] At the completion of the Crown’s case the defence brought a motion for a directed verdict.

THE LAW

On Directed Verdicts

[3] The law on a directed verdict is a creature of common law. An application for a directed verdict may be brought by the defence or the judge on their own motion at the completion of the Crown’s case. The task for the trial judge is to direct a verdict of acquittal on a finding that the Crown has failed to adduce any evidence with respect to one of the essential elements of the crime, in this case, possession of a firearm and ammunition.

The principles governing a directed verdict are well known.

• The test for a directed verdict is the same as the test for committal at a preliminary hearing and that is whether there is any evidence, which if believed, a reasonable jury, properly instructed, could return a finding of guilt: United States of America v. Sheppard (1976), 1976 8 (SCC), 30 C.C.C. (2d) 424 (S.C.C.), at p. 427; R. v. Charemski, 1998 819 (SCC), [1998] 1 S.C.R. 679, at para. 28; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21].
• The Crown’s case must be taken at its highest. The judge does not assess credibility. The judge’s task is to determine whether, if the Crown’s evidence, whether direct or circumstantial, is believed, it would be reasonable for a properly instructed jury to infer guilt. [R. v. Charemski, at para. 4; R. v. Arcuri, at para. 30].
• Any reasonable interpretation or permissible inference from the evidence, properly admissible against the accused, beyond conjecture or speculation, is to be resolved in favour of the prosecution. Some evidence, if only at the level of a scintilla of evidence, must however exist respecting the constituent elements: [R. v. Coke, [1996] O.J. No. 808, at para. 9].
• Where the Crown’s evidence consists of or includes circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence to determine if the evidence can support the inferences that are required for a conviction on each element of the offence: [R. v. Arcuri, at para. 29; R. v. Charemski, at para. 30].
• The limited weighing does not require assessing the inherent reliability of the evidence but rather should be regarded as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. If the court determines there is no evidence meeting that threshold, the court shall order the entry of a judgment of acquittal: [R. v. Arcuri, at para. 30].

On Possession

[4] The essential elements of possession are knowledge and control, both elements to be proved at trial by the Crown beyond a reasonable doubt. Possession can be proved by direct or circumstantial evidence or by a combination of direct and circumstantial evidence to be established on the totality of the evidence: [R. v. Pham, 2005 44671 (ONCA), at para. 18. The Criminal Code defines “possession” in s. 4(3) to include personal or actual possession, constructive possession and joint possession.

[5] With regard to personal or actual possession the requirement of knowledge is comprised of two elements: the accused must be aware that he or she has physical custody of the thing in question and must be aware of what that thing is. Both elements must co-exist with an act of control: [R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 16)].

[6] Constructive possession is established where the accused: (a) has knowledge of the character of the object, (b) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (c) intends to have the object in the particular place for his use or benefit or that of another person: [R. v. Morelli, at para. 17]. Constructive possession requires: (a) knowledge of the item; (b) intent to possess the item; and (c) control over the location of the item: [R. v. Kocsis, 2001 3593 (ON CA), at paras. 7 and 8].

[7] The court is entitled to draw appropriate inferences from the evidence that the unlawful item is found in a place under the control of an accused in circumstances where there is also evidence from which a proper inference may be drawn that the accused was aware of the presence of the item: [R. v. Pham, at para.18; R. v. Sparling, [1988] O.J. No.1877 (Ont. C.A.); and R. v. Chambers, 1985, C.C.C. (3d) 440, at p. 448, (Ont. C.A.)].

[8] The court must guard against speculation and conjecture in arriving at inferences. Courts have raised cautions against having resort to this erroneous tendency. An inference that does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation: [R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, at p. 551]. A gap in the chain of reasoning in the evidence cannot be overcome by speculation or conjecture: [R. v. Munoz, 2006 3269 (ON SC), [2006] 86 O.R. (3d) 134, at para. 28]. The following passage from R. v. Arcuri offers guidance to distinguish conjecture and speculation from reasonable inferences drawn from the facts:

[W]ith circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established - that is, an inferential gap beyond the question of whether the evidence should be believed. ... The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw.

[R. v. Arcuri, at paras. 31- 32]

[9] The case before this court is purely circumstantial. Constructive possession of an unlawful item found on a property can be established where the accused is shown to have control over the property searched and knowledge that the item is in the place. And further, in order to constitute constructive possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed: [R. v. Pham, at para. 15].

[10] Determinations of constructive possession and its essential elements are very much fact-driven to be decided on the particular facts of the case.

[11] In this case, the Crown must adduce circumstantial evidence sufficient to establish that Mr. Jackson had knowledge and control of the ammunition located in a satchel and the firearm found in a pocket of a black fur jacket, both recovered from closets in the basement where Mr. Jackson was found during the search. I am required to determine whether the evidence is rationally capable of supporting the inferences the Crown seeks to have drawn from the circumstantial evidence and to decide whether those inferences should be drawn.

[12] It is the Crown’s contention that sufficient circumstantial evidence exists to establish that Mr. Jackson had constructive possession, both knowledge and control, of the firearm and ammunition located in the basement on August 9, 2022.

THE EVIDENCE

Execution of the Search Warrant and the Search

[13] Surveillance was conducted at 14 Auburndale Circle on the afternoon of August 7th. On that day, police observed Mr. Jackson leaving the entrance of the building. Officers also observed Mr. Jackson leave a parking spot outside the building, drive away, and return to that spot shortly afterwards. On August 7th, the police learned from the property manager that Mr. Jackson parked his black Mercedes on a daily basis in one of the spots assigned to Unit 105. Officer Harris also saw the black Mercedes parked in the same spot on the morning of August 9th before the search.

[14] On August 9th at 7:31 a.m., on the authority of a search warrant, officers of the Toronto Police Emergency Task Force breached the door of 14 Auburndale Circle, Unit 105. Officer Hynek entered the basement and walked down a few steps where a few metres from the bottom of the stairs he encountered Mr. Jackson wearing a black t-shirt and shorts.

[15] Officer Simas searched the basement closet located on the stairway and recovered a loaded firearm in the inside pocket of a black fur jacket hanging in that closet. After retrieving the firearm, the officer got a sweater and running shoes from the basement for Mr. Jackson to wear.

[16] Officer Saccoccia also searched the basement. He arrested Mr. Jackson for possession of a firearm. Mr. Jackson was handcuffed so the officer assisted him with putting on pants and socks which he retrieved from the basement.

[17] Officer Saccoccia searched what appeared to be a makeshift closet covered by a drape at the bottom of the basement stairs where he saw shoes and boxes of running shoes which he believed to be for men. He located a charcoal grey satchel where he found one round of ammunition in its front pocket and two boxes of ammunition in the main section of the satchel.

[18] Officer Saccoccia also located a blue backpack somewhere, he was not sure exactly where, in the basement that contained pieces of mail, two of which were addressed to Mr. Jackson at an address other than 14 Auburndale Circle, Unit 105.

[19] Officer Harris was the SOCO officer and while taking photographs in the basement, he located and seized a key fob for the black Mercedes that was subject to the warrant.

Evidence of Civilian Witnesses

[20] The Crown called Jordan Exton, the property manager of 14 Auburndale Circle. He advised the police that there were several people staying in Unit 105 on August 9th, both adults and children, who were related to Mr. Lewis in some way. The Crown also called some of those persons as witnesses.

[21] Mr. Exton gave information about his observations of Mr. Jackson at 14 Auburndale Circle. His evidence was that Mr. Jackson had first been parking in visitors’ parking and because at times he over-stayed, he was ticketed on some occasions. Mr. Exton eventually allowed him to park outside the building in one of the spots assigned to Unit 105, which one of the documented occupants, Mark Lewis, paid for. Mr. Exton saw Mr. Jackson drive in and out of the parking lot in his Mercedes during the day and would see his car parked in the assigned spot in the evening.

[22] Mr. Exton would occasionally see Mr. Jackson in the hallway of the building going to Unit 105. He estimated that he began seeing Mr. Jackson at 14 Auburndale Circle about one month or so before he spoke to the police officers on August 7th. From his communications with Mr. Jackson, Mr. Exton believed that he was staying with Mr. Lewis to walk the dogs.

[23] Roger Gouldbourne is one of the two registered tenants at 14 Auburndale Circle, Unit 105. He had not resided there since 2019 and met Mr. Jackson for the first time outside the courtroom during the trial. He provided no evidence relevant to this application.

[24] Cedrick Thompson, Mr. Lewis’s stepfather, was present in Unit 105 on August 9, 2022 when the search warrant was executed. He is the husband of Carol Sparks who occupied a bedroom upstairs in Unit 105 at the time of the search after she had recently arrived from British Columbia.

[25] Mr. Thompson did not reside in Unit 105. He was invited to go there on the morning of August 9th to make breakfast and he arrived there at 5:00 a.m. He was in the kitchen on the main floor making breakfast when the police arrived and after the police pushed him to the floor he was allowed to take the dogs outside. He was ordered upstairs with the women and children.

[26] Mr. Thompson had known Mr. Jackson for many years. He had not been in the basement that day or previously. He had no information about Mr. Jackson living or being in the basement. Mr. Thompson had been in Unit 105 on previous occasions as Mr. Lewis would occasionally ask him to walk and feed his dogs when he worked in Fort Erie. Within the month before August 9th, he was at Unit 105 a couple of times to walk the dogs. Mr. Thompson did not own the firearm or ammunition and had no knowledge of either.

[27] Mr. Lewis’s 14-year-old daughter, Zahara Bushie-Lewis, was asleep in a bedroom upstairs in Unit 105 at the time of the search. She did not live there but was staying there for the summer. She knew Mr. Jackson as a close friend of her father. By August 9th, she had been there for one to one-and-half weeks.

[28] Ms. Bushie-Lewis only went to the basement to do her laundry which she did every two weeks. On one occasion she picked up her grandmother’s laundry in the basement. Her evidence was that she was uncertain whether Mr. Jackson was already staying in the basement when she arrived. She was not sure where he was staying but she knew he left the basement during the day and returned in the night.

[29] Ms. Bushie-Lewis knew nothing about the firearm and ammunition. She believed she saw the black fur jacket in the basement on one occasion when she was doing laundry. She never saw her father wearing that jacket.

[30] As noted, Mr. Lewis is an occupant registered on the lease and has resided at 14 Auburndale Circle, Unit 105 for about five years. He occasionally works out of town. He was working in Fort Erie from June 2022 to the end of July/beginning of August 2022. Mr. Lewis returned home from Fort Erie about nine days before the search. Although he was in Toronto during the search, he was not present at Unit 105 when the search was conducted. He works two jobs during the hours of 4:00 a.m. to 4:00 p.m. everyday. He went to work before the search was conducted on August 9th.

[31] Mr. Lewis explained how it came to be that Mr. Jackson was at his home on August 9th. Mr. Jackson asked if he could stay with him because he was having family problems. Mr. Lewis agreed in exchange for Mr. Jackson feeding and walking his dogs while he was working in Fort Erie. He testified that Mr. Jackson stayed in the basement during the months of June, July and August, 2022. Mr. Lewis described Mr. Jackson’s role in relation to Unit 105 during that period as “house sitting.” He gave Mr. Jackson a key to Unit 105 and left for Fort Erie.

[32] Mr. Lewis explained the many articles that were contained in the basement closets where the firearm and charcoal grey satchel were found. He ran a business in the basement in connection with a clothing brand he created and often had photo shoots there. Many friends and others came and went from Unit 105. Various family members came to live there for periods of time.

[33] The old jackets, shoes, and shoe boxes in closets in the basement belonged to Mr. Lewis and to others who had stayed there. There is no evidence that people came and went while he was in Fort Erie or during the nine days after he returned home. Mr. Lewis had no knowledge of whether Mr. Jackson stored his belongings there. Mr. Lewis’s evidence was that no one other than Mr. Jackson lived in the basement. He did not know whether Mr. Jackson stayed anywhere else.

[34] Mr. Lewis did not possess a firearm or ammunition in his home and was not aware of the firearm or ammunition seized by the police from the basement. He did not recognize the black fur jacket, the firearm, the charcoal grey satchel containing the ammunition or the blue backpack containing the mail. Those items did not belong to him. He said the jacket did not look like it belonged in his house.

APPLICATION OF THE LAW

Control

[35] For the following reasons, I find the Crown’s evidence taken at its highest is sufficient to draw the reasonable inference that Mr. Jackson had control of the basement of Unit 105. There are areas of evidence, taken together in the totality of the evidence, that raise reasonable inferences that Mr. Jackson had control of the basement where the firearm and ammunition were recovered.

[36] I start with the proposition posed in s. 4(3) (a)(ii) of the Criminal Code that the place at issue need not belong to the accused. Mr. Jackson was not a property owner, a tenant or registered occupier of the basement. Nor does he need to be. He is a friend of Mr. Lewis who agreed to take care of his dogs in exchange for staying in his basement while Mr. Lewis was working in Fort Erie. Mr. Jackson lived in the basement during June, July, and August, 2022.

[37] In combination with the facts explaining why Mr. Jackson was occupying the basement, there are additional facts from which reasonable inferences can be drawn that he had control of the basement before and at the time of the search.

• the fact that the property manager saw Mr. Jackson’s black Mercedes in the visitor’s parking lot on a daily basis and that he subsequently allowed him to park in a spot assigned to Unit 105;
• the fact on August 7th officers saw Mr. Jackson drive from the assigned spot and return to it and that in the morning, shortly before the search, an officer saw his Mercedes was parked in the assigned spot;
• the fact that during the search police officers encountered Mr. Jackson in the basement in the early hours of the morning wearing a black t-shirt and shorts;
• the fact that officers assisted Mr. Jackson by retrieving clothing from the basement and helping him to dress in a sweater, pants and socks from which a reasonable inference can be drawn that those clothes belonged to Mr. Jackson given that he had been staying there for over two months by the August 9th, and would reasonably have his own clothing there;
• the fact that a key to Mr. Jackson’s Mercedes was located on a table in the main area of the basement;
• the fact that two pieces of mail bearing Mr. Jackson’s name were located by an officer in a blue knapsack in the basement;
• the fact that Ms. Bushie-Lewis was staying in Unit 105 and was aware that Mr. Jackson was staying in the basement and knew he left in the morning and returned in the evening;
• the fact that Mr. Lewis gave Mr. Jackson a key to Unit 105 when he left for Fort Erie;
• the fact that Mr. Lewis described Mr. Jackson’s obligation at the home as “house sitting” which reasonably infers that Mr. Jackson was more than a found-in or mere visitor; and
• the fact that there is no evidence that anyone else lived in the basement at the relevant time.

[38] I find that those facts in combination, in the totality of the evidence, offer sufficient circumstantial evidence that at the time of the search Mr. Jackson had control of the basement where the firearm and ammunition were found. Those inferences are drawn from the evidence before the court and are not based in conjecture or speculation. Thus, sufficient evidence of the essential element of control has been satisfied.

Knowledge

[39] There is no direct knowledge in this case. Knowledge must be inferred from circumstantial evidence. Circumstantial evidence of knowledge like circumstantial evidence of control must be found in the facts of the case. An inference of knowledge must flow logically and reasonably from established facts. If not, the inquiry falls into the forbidden realm of conjecture and speculation. Where an inferential gap exists, it can only be properly overcome by evidence. It cannot be overcome by speculation or conjecture.

[40] I find there is an inferential gap between Mr. Jackson’s control of the basement where the contraband was found and his knowledge of the contraband. There is a gap in the chain of reasoning that I conclude cannot be filled by the facts before the court. I find the Crown resorted to speculation to show Mr. Jackson had knowledge of the firearm and ammunition. While I found control of the basement in the established facts there is nothing beyond speculation that Mr. Jackson had knowledge of the firearm and ammunition found there. There must be more than control of the place.

[41] The Crown offered, for instance, the following facts: that Mr. Jackson had exclusive control of the basement; that no evidence exists that, except the infrequent occasions to do laundry, members of the household went to the basement; that there is no evidence of Mr. Lewis’s friends and guests being there during the nine days after he returned to Toronto before the search; and that some of Mr. Jackson’s clothing were in the basement.

[42] There were people coming and going from the basement before the search, although perhaps not within the nine days. The defence submitted that a reasonable inference can be drawn that the firearm and ammunition belonged to someone other than Mr. Jackson. The defence based the inference on a common practice among criminal elements, outside persons living in a household, to secretly stash contraband in a place in order to hide their criminal activity.

[43] The Crown’s submission on that argument focused on the value in a criminal context of a firearm and ammunition to make the point that it is not reasonable for someone to leave such valuable things in a place out of their presence. It follows from that submission, in the Crown’s estimation, that the firearm and ammunition which he kept proximate to him in the basement, belonged to Mr. Jackson. That is a possible inference that may be drawn.

[44] I am required to resolve any reasonable interpretation or permissible inference from the evidence in favour of the prosecution. But when I consider the inference the Crown wishes the court to make I find the Crown strayed into the realm of speculation and conjecture to establish Mr. Jackson’s knowledge.

[45] That is, there is no information, nothing in the surrounding circumstances, from which the court can reasonably infer that Mr. Jackson was connected to the contraband. There is nothing to show he was aware of the contraband. Both the firearm and ammunition were hidden from plain sight inside an interior jacket pocket and a satchel stored in closets filled with many shoes and boxes, old jackets, and clothing. There is, thus, an inferential gap in the evidence insofar as there is nothing in the established facts that connects Mr. Jackson to the contraband besides his control of the basement.

[46] As the Ontario Court of Appeal held in R. v. Pham, to constitute constructive possession there must be knowledge which extends beyond mere quiescent knowledge and must disclose some measure of control of the item to be possessed.

[47] In the case before this court, I see no evidence even of quiescent or passive knowledge. There is no circumstantial evidence of any measure of Mr. Jackson’s control of the contraband. There is evidence of control of the basement. But is this sufficient to establish knowledge of the contraband?

[48] There are cases that stand for the proposition that control of a place in itself is not sufficient to establish control of illegal items found in a place. I find instructive R. v. Grey, a decision of the Ontario Court of Appeal involving facts somewhat analogous to the case before this court.

[49] In that case, there was no direct evidence of the accused’s knowledge of drugs seized in a bedroom. The Crown did not proffer a witness who could attest affirmatively to the accused’s knowledge of the drugs that were not in plain sight, that were hidden. The trial judge inferred knowledge from circumstantial evidence of the accused’s regular occupancy of the apartment where the drugs were found and the presence of the accused’s clothing and other belongings in the apartment. The Court found the trial court was not entitled to infer knowledge: [R. v. Grey, 1996 35 (ON CA)].

[50] R. v. Grey, at page 32, cited a passage from a decision with facts apposite to the facts in the case before this court:

In my view the mere finding of an article buried in the garden of a householder does not, in itself, and in the absence of some evidence indicating his knowledge of its existence, or consent to its remaining in that place, or some other surrounding circumstances from which a reasonable inference could be drawn inculpating the householder, discharge the burden of proof of possession resting upon the Crown and thrust upon him the necessity of furnishing evidence of his own innocence.

[R. v. Haggarty (1946), 1946 367 (BC CA)].

[51] R. v. Grey, at page 33, concluded as follows:

In the present case no other evidence connected the appellant to the drugs, there was no direct evidence of knowledge, the drugs were hidden, the apartment was rented by the co-accused, other persons frequented the apartment, and the appellant was not a permanent occupant. The circumstantial evidence does not therefore support a finding that the appellant had knowledge of the crack cocaine. Accordingly, the finding that the Crown had proved possession was unreasonable.

[52] Another court held in a drug case that the occupancy of a room was not in itself evidence of possession and that even if there was some slight evidence that the accused knew of the presence of the cocaine, the accused lacked the necessary measure of control over the drug: [Re Chambers v. R. (1985), 1985 169 ONCA], at p. 6].

[53] Taking the Crown’s case at its highest, I cannot conclude that circumstantial evidence of the essential element of knowledge has been made out.

DISPOSITION

[54] As held by the Ontario Court of Appeal in R. v. Kocsis, constructive possession requires knowledge of the item, intent to possess the item and control of the location of the item. Control of the location has been established but knowledge of the contraband has not and there can be no intent without knowledge.

[55] For reason that the Crown has failed to demonstrate from the circumstantial evidence facts from which reasonable inferences can be drawn that Mr. Jackson had both control and knowledge of the firearm and ammunition, I accordingly, acquit Mr. Jackson of all charges on the indictment.

Allen J.

Released: October 11, 2023

COURT FILE NO.: CR-23-30000243

DATE: 20231011

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

TYRONE JACKSON

Accused

REASONS FOR DECISION ON A

DIRECTED VERDICT

Allen J.

Released: October 11, 2023