Court File and Parties

COURT FILE NO.: CR-22-50000265-0000 DATE: 20231019

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – OSMAN AIM and RAMONE THOMAS

COUNSEL: A. Miller, for the Crown R. Lichtman, for Mr. Aim R. Frank, for Mr. Thomas

HEARD: October 12, 17, 2023

Reasons for Judgment

SCHRECK J.:

[1] During a routine traffic stop, the police found two handguns in a vehicle containing three occupants. Neither gun was in plain view. The driver fled the scene and was never apprehended. The other two occupants, Osman Aim and Ramone Thomas, are charged on an eight-count indictment with a number of firearm offences. They have elected to be tried in this court without a jury.

[2] One of the firearms was found under the front passenger seat where Mr. Thomas was sitting. The other was found in a black satchel that was initially on the rear seat near where Mr. Aim was sitting, but was at some point moved onto the floor of the vehicle. The vehicle had been rented by the driver and items belonging to him, including his passport and health card, were found in it. When the first gun was located, both the driver and Mr. Thomas fled the scene. Mr. Thomas was apprehended soon after.

[3] The issue to be determined in this trial is whether the circumstantial evidence proves beyond a reasonable doubt that either defendant had knowledge and control of either firearm. The following reasons explain why I have concluded that it does not.

I. Evidence

A. The Traffic Stop

[4] Cst. Bryan Irwin and Cst. Imran Mandozai of the Toronto Police Service were on patrol in the early morning hours of August 6, 2021. Both officers were equipped with body cameras which recorded their activities and their police vehicle was equipped with an in-car camera. Video from all three sources was introduced into evidence.

[5] The officers effected a traffic stop of a Toyota RAV4 they had observed turn right on a red light without stopping. They approached the vehicle and observed it to have three occupants, the identities of whom are not in issue. Binian Habtamu was in the driver’s seat, Ramone Thomas was in the front passenger seat, and Osman Aim was in the rear seat on the driver’s side.

B. Initial Observations

[6] Cst. Mandozai approached the driver’s side of the vehicle while Cst. Irwin approached the passenger side. They observed a cannabis grinder on the front centre console and other signs of recent marijuana consumption.

[7] Using a flashlight, Cst. Irwin looked into the passenger side of the vehicle while Cst. Mandozai asked the driver for his licence. In the rear, he observed a small black satchel on the passenger-side seat in front of what appears on the video to be a paper bag. There was a cup holder in the middle of the seat between Mr. Aim and the satchel. At this point, Cst. Irwin could not see into the satchel.

[8] Looking through the rear window, Cst. Irwin also observed a small black rectangular object under the front passenger seat. Although he could see less than an inch of the object, he believed that it resembled the bottom of a firearm magazine because it looked similar to the bottom of the magazine of his own firearm. Cst. Irwin agreed that he would not have been able to see this object without a flashlight. He also agreed that he would probably not have recognized the object as being part of a firearm if he had not been trained as a police officer.

[9] The two officers had a brief discussion behind the vehicle and concluded that they had grounds to search the vehicle pursuant to the Cannabis Control Act, 2017 (“CCA”) [2]. While they were speaking, Mr. Thomas exited the vehicle and began to walk away.

[10] Cst. Mandozai approached the vehicle and told everyone to get out, after which Mr. Aim and Mr. Habtamu exited the vehicle. Cst. Mandozai told Mr. Thomas to stop. He did so and asked whether he could leave and was told that he could not because of the ongoing CCA investigation.

B. The Discovery of the First Firearm

[11] While Cst. Mandozai was speaking to Mr. Thomas, Cst. Irwin noticed some “shuffling” in the vehicle, although he was unable to say which of the occupants moved. He agreed in cross-examination that the “shuffling” could have been the occupants getting out of the vehicle. Cst. Irwin opened the rear door and observed that the black satchel that had been on the rear seat was now on the floor under the front passenger seat. The satchel was open and Cst. Irwin could see the butt and slide of a handgun. He reached into the vehicle, picked it up, and shouted, “gun gun gun.”

[12] Cst. Irwin reached for his firearm immediately after yelling “gun gun gun,” as did Cst. Mandozai. At the same time, Mr. Thomas and Mr. Habtamu both immediately began to run in different directions. Mr. Aim remained where he was and raised his hands. Cst. Mandozai began to pursue Mr. Thomas on foot while Cst. Irwin took custody of Mr. Aim and handcuffed him. Mr. Aim was compliant throughout the interaction.

[13] The firearm in the satchel was a Glock 21 0.45 inch calibre handgun. It was loaded with several rounds of ammunition. There is no issue that this was a “restricted firearm” within the meaning of s. 84(1) of the Criminal Code.

[14] Mr. Thomas was apprehended a short distance away some time later. The police searched for Mr. Habtamu but were unable to find him.

C. The Discovery of the Second Firearm

[15] The vehicle was later searched and the police located a second handgun under the front passenger seat. Cst. Aleksandra Milosevski had searched the vehicle and she testified that there was a space under the front of the passenger seat such that a person sitting in it would be able to place something under the seat. She was unable to say how large the space was.

[16] The firearm located under the passenger seat was a Glock 43 9 mm calibre handgun. There is no issue that this is a “prohibited firearm” within the meaning of s. 84(1) of the Criminal Code.

D. Other Items Found in the Vehicle

[17] During the search, the police also found several rounds of loose 9 mm ammunition between the driver’s seat and the centre console. Mr. Habtamu’s passport was inside the centre console and his health card and a credit card in his name were also located inside the vehicle. The police also found part of a rental agreement for the vehicle that appeared to have been signed by Mr. Habtamu.

II. Analysis

A. Relevant Legal Principles

(i) The Burden of Proof

[18] Both defendants are presumed to be innocent of each of the charges they are facing. They can only be convicted on any count if the Crown proves the essential elements of that count beyond a reasonable doubt. The burden to do so rests with the Crown and never shifts. There is no onus on the defendants to prove anything, least of all their innocence. Proof beyond a reasonable doubt is a significant standard. While proof beyond a reasonable doubt is not the same as absolute certainty, it is closer to that standard than it is to proof on a balance of probabilities. In applying the burden of proof, I must consider each defendant separately.

(ii) Constructive Possession

[19] None of the firearms were in the personal possession of either defendant. The issue is whether either of them was in constructive possession of one or both firearms. According to s. 4(3)(a)(ii) of the Criminal Code, constructive possession exists if a person has the item in question “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.” Thus, to prove constructive possession, the Crown must prove that the defendant (1) has knowledge of the character of the item in question; (2) knowingly put or kept the item in a particular place (which need not belong to or be owned by him); and (3) intends to have the item in the place for his own use or benefit or that of another person: R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at paras. 44-47; R. v. Morelli, 2010 SCC 8, [2010] 2 S.C.R. 600, at paras. 16-17; R. v. Choudhury, 2021 ONCA 560, at para. 19. In short, the Crown must prove “knowledge that extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed”: R. v. Pham, (2005), 77 O.R. (3d) 401 (C.A.), at paras. 15-16, aff’d 2006 SCC 26, [2006] 1 S.C.R. 940.

(iii) Circumstantial Evidence

[20] As in most cases involving allegations of constructive possession, the Crown in this cases relies on circumstantial evidence. The approach to be taken to circumstantial evidence was discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, where Cromwell J. explained how juries should be instructed with respect to this type of evidence (at para. 30):

... [I]n a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences.

[21] Cromwell J. went on to caution that in considering whether the circumstantial evidence gives rise to reasonable inferences other than guilt, those alternative inferences need not be based on proven facts and may be based on “other plausible theories” and “other reasonable possibilities” which are inconsistent with guilt, provided that they are rooted in logic and human experience applied to the evidence or the absence of evidence: Villaroman, at paras. 35-37; R. v. Stennett, 2021 ONCA 258, 408 C.C.C. (3d) 141, at para. 60. However, the Crown is not required to negate every possible conjecture, no matter how fanciful or irrational: Villaroman, at para. 37. Put another way, a trier of fact cannot act on alternative interpretations of the circumstances that are unreasonable: Stennett, at para. 61.

[22] In considering whether an inference is reasonable, it is instructive to consider the cases respecting the test for committal at a preliminary inquiry in cases where the Crown relies on circumstantial evidence. It is clear from those cases that in order to be reasonable, an inference need not be “easily drawn”, “likely” or “probable”: R. v. Kamermans, 2016 ONCA 117, at para. 20; R. v. Katwaru (2001), 52 O.R. (3d) 321 (C.A.), at para. 41; R. v. Dwyer, 2013 ONCA 368, at para. 4. It follows from this that alternative inferences need not be as strong or as compelling as an inference of guilt to be reasonable. Put another way, it is not enough for the Crown to prove that guilt is the strongest reasonable inference. It must be the only reasonable inference.

[23] Ultimately, the issue is whether there is any other way of looking at the case as a whole that is reasonable such that there is a doubt about the accused’s guilt, when assessed logically and in light of human experience: Choudhary, at para. 19.

B. Mr. Aim

(i) Relevant Evidence

[24] It is the Crown’s theory that Mr. Aim was in possession of the Glock 21 found in the black satchel. While Mr. Aim is also charged with possessing the Glock 43, Crown counsel acknowledges that the evidence on those charges is considerably weaker and she made no submissions in relation to those counts.

[25] The Crown submits that the following evidence establishes Mr. Aim’s possession of the firearm:

• Mr. Aim’s proximity to the satchel when it was first observed by Cst. Irwin;
• the satchel was open and the gun was visible inside it;
• the satchel was moved from the rear passenger seat to under the front passenger seat and Mr. Aim was in the best position to move it;
• Mr. Aim put his hands up immediately after Cst. Irwin shouted, “gun gun gun,” which shows that he “knew what was going on.”

[26] I will consider each of these items of evidence, but in doing so I must be mindful that it is the cumulative effect of circumstantial evidence that must be considered in determining whether the Crown has met its burden and the evidence cannot be considered on a piecemeal basis: R. v. Chu, 2023 ONCA 183, at para. 5; R. v. Wu, 2017 ONCA at para. 15; R. v. Uhrig, 2012 ONCA 470, at para. 13.

(ii) The Location and Visibility of the Firearm

[27] When Cst. Irwin first observed the satchel, it was on the rear passenger-side seat and Mr. Aim was sitting on the rear driver-side seat. There was a cupholder between Mr. Aim and the satchel. The opening of the satchel was oriented away from Mr. Aim such that he would not have been able to see inside it if it was open.

[28] Once the satchel was on the floor, Cst. Irwin could see the gun inside it. However, he had a flashlight and was looking at it from outside the vehicle while standing next to the rear passenger-side door. It is not clear that the contents of the satchel would have been visible to Mr. Aim.

(iii) The Movement of the Satchel

[29] The most significant piece of evidence is the movement of the satchel. It is reasonable to infer that whoever moved the satchel did so in order to prevent the police from seeing its contents, which shows both knowledge of the illicit nature of the item in the satchel as well as a measure of control over it. It is clear that Mr. Aim was in the best position to move the satchel.

(iv) The Fact that Mr. Aim Raised His Hands

[30] The fact that Mr. Aim raised his hands after Cst. Irwin shouted, “gun gun gun” does not, in my view, have any evidentiary significance, either alone or in combination with other evidence. Mr. Aim was in the presence of a police officer who had just found a gun and it was entirely reasonable for him to immediately take steps to demonstrate that he was not a threat to the officers.

(v) Conclusion

[31] Ultimately, the issue to be determined is whether Mr. Aim’s guilt is the only reasonable inference to be drawn from the circumstantial evidence considered as a whole. While Mr. Aim may have moved the satchel because he had knowledge of the gun, it is also plausible that he had no knowledge of it and Mr. Habtamu reached over from the driver’s seat and swept the gun onto the floor. Another reasonable possibility is that Mr. Habtamu asked Mr. Aim to move the satchel onto the floor and Mr. Aim did so without knowing what was in it. It is of some significance that there was ammunition between the front passenger seat and the centre console. This is a location that only Mr. Habtamu would have had access to. While this ammunition was of a different calibre than that of the Glock 21, it is some evidence that Mr. Habtamu had access to firearms and a willingness to possess them.

[32] In all the circumstances, while Mr. Aim’s knowledge and control of the Glock 21 is a reasonable inference that can be drawn from the whole of the evidence, it is not the only reasonable inference. As a result, the Crown has not proven Mr. Aim’s possession of the firearm beyond a reasonable doubt.

C. Mr. Thomas

(i) Relevant Evidence

[33] It is the Crown’s theory that Mr. Thomas was in possession of the Glock 43 found under the seat where he was sitting. The Crown does not allege that Mr. Thomas was in possession of the Glock 21. [3] The Crown relies on the following evidence:

• Mr. Thomas was the person closest to the firearm;
• the firearm was in a location where Mr. Thomas could have placed it and it was accessible to him;
• Mr. Habtamu is unlikely to have placed the firearm under the front passenger seat as it was not accessible to him there;
• Mr. Thomas fled from the scene, demonstrating an awareness of having acted unlawfully.

[34] As with Mr. Aim, while I will consider each item of evidence, it is the cumulative effect of all of the evidence which must be considered in determining whether the Crown has met its burden.

(ii) Proximity and Accessibility

[35] Mr. Thomas was undoubtedly closest to the firearm, which was directly under the seat where he was sitting. Given Cst. Milosevski’s evidence of a gap under the front seat, it would have been possible for Mr. Thomas to shove the gun under the seat, which would have been a reasonable course of action if he had been in possession of it when the police stopped the vehicle.

[36] I am not convinced, however, that the gun was accessible to Mr. Thomas. When Cst. Irwin first observed it, it was towards the rear of the front passenger seat and Mr. Thomas would not have been able to reach it from where he was sitting. The gun may have been accessible to Mr. Habtamu from the driver’s seat if he reached back with his right arm. It is noteworthy in this regard that ammunition of the same calibre as that used in the Glock 43 was found in the space between the driver’s seat where Mr. Habtamu had been sitting and the centre console.

(iii) Flight

[37] Mr. Thomas began to run away immediately after Cst. Irwin shouted, “gun gun gun,” which the Crown submits is evidence that he was aware of the gun in the car. This type of evidence of “after-the-fact” or “post-offence” conduct can be circumstantial evidence of guilt, but it must be approached with caution: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 25; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 23; D.M. Paciocco, “Simply Complex: Applying the Law of ‘Post-Offence Conduct’ Evidence” (2016), 63 Crim. L.Q. 275, at pp. 281-282. It is well-established that before drawing an inference of guilt from post-offence conduct, a trier of fact must consider alternate explanations for the conduct: White, at paras. 23-34.

[38] In this case, Mr. Thomas initially began to walk away from the vehicle but stopped when directed to do so by Cst. Mandozai. He only began to run after Cst. Irwin shouted, “gun gun gun.” As the Crown submits, one explanation for this conduct is that Mr. Thomas was aware that there was a gun in the car and upon realizing that the police had found it, decided to flee.

[39] There are, however, other explanations for Mr. Thomas’s conduct. It may not have been clear to Mr. Thomas why Cst. Irwin shouted, “gun gun gun.” He may have believed that somebody had produced a gun and that there was a danger that gunfire would be exchanged in the area. He may have concluded that Cst. Irwin felt threatened and was likely to use his own firearm. Both officers in fact reached for their firearms at around the same time that Cst. Irwin shouted, although it is unclear whether Mr. Thomas was in a position to see this.

[40] A consideration of alternate explanations for Mr. Thomas’s conduct must have regard for the context in which that conduct occurred. Mr. Thomas is a young Black man. The existence of anti-Black racism in Canada and specifically within the criminal justice system is now beyond dispute: R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at paras. 1, 123. It is well recognized that racialized groups do not receive equal treatment within that system: R. v. Theriault, 2021 ONCA 517, 157 O.R. (3d) 241, at para. 144; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 90-97.

[41] As was observed in R. v. Davis, 2021 ONSC 8163, at paras. 53-55, the existence of anti-Black racism can result in certain racialized groups fearing the police, and this is relevant to potential alternative explanations in situations where members of those groups flee from the police. The Crown accepts this, but submits that such an alternative explanation can be discounted in this case because Mr. Thomas’s demeanour as observed on the video demonstrates that he did not fear the police. I do not agree. Mr. Thomas’s demeanour before he ran away was, in my view, largely neutral. Although he asserted a right to leave, he initially followed Cst. Mandozai’s direction to stop walking. In any event, he did not flee until he heard “gun gun gun.” Even if he was not initially fearful of the police, he may have become fearful upon hearing Cst. Irwin shouting.

(iv) Conclusion

[42] As with Mr. Aim, the issue that must ultimately be determined is whether Mr. Thomas’s knowledge and control of the firearm under the front passenger seat is the only reasonable inference to be drawn from the evidence. It is not. Another reasonable inference is that Mr. Habtamu had placed the gun there without Mr. Thomas’s knowledge and that Mr. Thomas fled the scene for reasons unrelated to his culpability for any offence. The reasonableness of this alternative inference is supported by the following evidence:

• Mr. Habtamu had rented the vehicle and had control of it;
• Mr. Habtamu used the vehicle to store his possessions, including his passport, health card and credit card;
• Ammunition of the same calibre as the Glock 43 was found between the driver’s seat where Mr. Habtamu was sitting and the centre console, an area easily accessible to only Mr. Habtamu;
• Mr. Habtamu also fled the scene and in so doing, abandoned a valuable rental vehicle for which he had assumed responsibility.

[43] In all the circumstances, while Mr. Thomas’s knowledge and control of the Glock 43 is a reasonable inference that can be drawn from the whole of the evidence, it is not the only reasonable inference. As a result, the Crown has not proven Mr. Thomas’s possession of the firearm beyond a reasonable doubt.

III. Disposition

[44] For the foregoing reasons, both defendants are found not guilty on all counts.

Justice P.A. Schreck

Released: October 19, 2023

Footnotes

[1] An abbreviated version of these reasons was delivered orally in court on October 19, 2023. In the event of any inconsistency between those oral reasons and these written reasons, the written reasons should be taken as correct.

[2] S.O. 2017, c. 26, Sched. 1.

[3] Mr. Thomas was initially charged in relation to the Glock 21, but the Crown did not contest a directed verdict application in relation to those charges.