COURT FILE NO.: CR-23-10000716-0000

DATE: 20231206

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

ADAM FELIX HENRY

Defendant

Erin Winocur, for the Crown

Darren Sederoff, for the Defendant Adam Felix Henry

HEARD: November 20 - 22, 2023

spies j. (Orally)

Reasons for Judgment

Overview

[1] Adam Felix Henry stands charged with six counts related to the unlawful possession of an unloaded restricted firearm, namely a handgun, together with readily accessible ammunition capable of being discharged in that handgun, on or about the 14th and 15th day of February 2021. He re-elected a trial without a jury and pleaded not guilty to all the charges.

[2] Counsel co-operated in narrowing the issues by filing an Agreed Statement of Fact (“ASF”). In addition, the Crown called Talicia Bryan, Officer Kyle Cole, and Marietta Berko, as witnesses. Mr. Henry elected not to call any evidence.

Issues

[3] According to the ASF, the sole issue in this trial is whether the Crown has proven that Mr. Henry was in possession of the loaded restricted firearm discovered by police (the “firearm”). The Indictment alleges that the offence occurred on or about February 14 and 15, 2021. The ASF states that all other elements of the s. 95(1) Criminal Code offence are admitted.

[4] I noticed during my deliberations that although the ASF states that Mr. Henry is charged with possession of a loaded restricted firearm contrary to s. 95(1) of the Criminal Code, that is not correct as none of the six counts in the Indictment allege that the firearm was loaded. However, based on the ASF, the firearm that Mr. Henry is alleged to have possessed was in fact loaded. This discrepancy did not affect my deliberations or Reasons for Judgment as it is a matter to be resolved if I find Mr. Henry guilty of possession of the firearm in question.

[5] Officer Cole identified a 47-minute-long video that was taken by his body worn camera during the night of February 14, 2021 (“Video”). The Video records some of the exchange between police and Talicia Bryan. Initially I permitted Ms. Winocur to play the Video so that Ms. Bryan could watch and listen to it to refresh her memory as to what she said to police. I then permitted Ms. Winocur to cross-examine Ms. Bryan on statements to police that were inconsistent with her evidence at trial, pursuant to s. 9(2) of the Canada Evidence Act. Eventually, the Video was marked as an exhibit subject to my ruling on how it could be used during.

[6] The issue of possession in this case is a narrow one: has the Crown proven beyond a reasonable doubt that Mr. Henry was in constructive or joint possession with Ms. Bryan of the firearm on or about February 14 or 15, 2021?

Uncontested Evidence and Preliminary Findings of Fact

The Discovery of the Firearm

[7] The ASF includes information about the events that led to the discovery of the firearm. Ms. Bryan also testified about what occurred.

[8] According to the ASF, on February 14, 2021, Jillian Bryan contacted the police to report that her daughter Talicia was injured, and that Talicia’s apartment was trashed. Police attended and entered unit 3321 - 19 Western Battery Road, in the city of Toronto (the “Unit”) on February 14, 2021, in an effort to locate the only tenant named on the lease, Talicia Bryan, any other injured persons and to further assess the situation.

[9] Police found the Unit in disarray and a smear on the door consistent with blood and signs of a struggle (I heard no evidence about a struggle in the Unit). The lights were on, and items were strewn about the Unit. The police observed bags containing items believed to be illicit drugs throughout the Unit. They also observed several unspent rounds of ammunition through the hallway around the bedroom area of the Unit.

[10] It is admitted that Officer O'Neill observed a black firearm on top of a cupboard unit at the rear of the Unit facing the couch and balcony. It is admitted that the firearm is a Black Glock model and that it was loaded with ammunition. It is also admitted that the firearm is a restricted firearm as defined within the meaning of the Criminal Code.

[11] Photos of the cupboard where the firearm was located were part of the ASF. Based on those photos, the firearm was found on the top shelf of a small, black three-shelf cupboard that does not have a door. The cupboard is attached to the end of the upper kitchen cabinets. The firearm appears to be the only object on the shelf from a distance but in the SOCO photos a closeup shows something behind it which could be cloth or plastic. As the firearm is black, it would not necessarily be immediately obvious but the cupboard it was in was at the end of the kitchen cabinets next to what appears to be a living area, presumably a high traffic area. The edge of the couch is shown in the photos, and it is along the same wall facing a large-screen TV on the opposite wall.

The Fingerprint Evidence

[12] A fingerprint expert was retained, and the evidence of that expert was agreed upon and set out in the ASF, so it was not necessary to call the expert at trial.

[13] Three fingerprints identified in the ASF as R1 - R3, were located on the firearm. The fingerprint expert is not able to say when the fingerprints were deposited on the firearm.

[14] Fingerprints R1 and R3 were found to match the defendant, Adam Henry. The fingerprint expert concluded that Mr. Henry’s right and middle index fingers did come in contact with the firearm at some point. However, the fingerprint expert is unable to state firmly for how long Mr. Henry’s right and middle index fingers came into contact with the firearm.

[15] The third fingerprint, R2, was identified as a human fingerprint with sufficient detail to make a comparison, however, it could not be located as belonging to anyone in the AFIS database. The fingerprint remains in the database.

[16] The fingerprint expert made the following conclusions on the length of touch, timeframe when the fingerprints could have been left and when the firearm could have been touched:

It is not possible to tell when a fingerprint is deposited onto a surface based on the fingerprint alone, i.e., its appearance, quality, development, etc. There must be additional information in order to age a fingerprint such as the item being touched on video with a timestamp. Another example would be a fingerprint on a receipt or a parking ticket, where there is a time on the physical piece of evidence at the time of its creation as this would establish a minimum age.

[17] A diagram of where the fingerprints were located on the firearm is part of the ASF. R2 was located on the top of the slide cover of the firearm, closer to the barrel. R3 was also located on the top of the slide cover. R1 was located on the left side of the firearm underneath the slide cover. It is admitted that the anatomical placement of the fingerprints that belong to Mr. Henry, namely R1 and R3, does not provide information on how the firearm may have been handled. The fingerprint expert gave the following opinion on the location of the fingerprints:

It is sometimes possible to look at the anatomical placement of fingerprints and therefore the fingers and hands depositing the fingerprints in order to suggest how an item may have been handled during fingerprint deposition. This is especially true if their anatomical placement is consistent with the typical handling of an item. For example, a person typically will hold a coffee mug by its handle, and therefore a thumb impression on the handle would be consistent for how it is typically handled.

However, it is also possible for items to be handled in non-typical ways such as someone grabbing the coffee mug from above when moving or manipulating it. This would result in fingerprints being present in a downward facing direction from above which would not be consistent with how it is handled while being used for its typical function of drinking. If the mug were handled in both of these ways or more, there would be conflicting fingerprints deposited that do not appear to correlate anatomically or provide a clear answer as to how the mug was ultimately handled.

The Evidence of Talicia Bryan (Part 1)

[18] Talicia Bryan testified as a witness for the Crown, but as I will come to, she was clearly a reluctant witness. This was likely largely due to the fact that she was arrested in the early morning hours of February 15, 2021, outside 39 Queens Quay East, on 17 charges related to the alleged possession of the firearm found in this case, in addition to charges related to possession of various Schedule 1 drugs and some explosive devices that police also found when they went to the Unit on February 14, 2021. Ms. Bryan has not gone to trial on those charges yet and they are still outstanding. Ms. Winocur submitted that there was no admission from the Crown that what was found by police in the Unit was actually Schedule 1 drugs or explosives and that there is no evidence about where those items were found and there is no evidence before me that anyone involved in this case is a drug dealer.

[19] In light of the outstanding charges, I made some inquiries of Ms. Bryan before she gave her evidence. She advised me that Kim Scofield is representing her on these outstanding charges and that she had not advised her to make any statement before she gave her evidence. In the circumstances, I advised Ms. Bryan of the protections afforded to her against self-incrimination by s. 13 of the Charter of Rights and Freedoms and s. 5(2) of the Canada Evidence Act. Ms. Bryan confirmed that she wished to give all of her evidence with those protections in place.

[20] Ms. Bryan admitted that she was renting the Unit but originally claimed she was not actually living there. She testified it was an Airbnb and that a lot of other people were in and out of the Unit all the time and “staying” at the Unit including Mr. Henry. These people gave her money so that she could pay the rent. Ms. Bryan testified that, at the time, she was a dancer and would be out of the city for long periods of time and when she was not at the Unit, other people would be there.

[21] Ms. Bryan testified that, up to the time of her arrest, she believed that she was in an exclusive boyfriend/girlfriend relationship with Mr. Henry that had begun about six months earlier and that they spent time together at the Unit.

[22] According to Ms. Bryan, Mr. Henry was living in an apartment at 39 Queens Quay in Toronto at the time – she could not recall the apartment number but based on other evidence I find it was apartment number 509. Ms. Bryan testified that she was “back and forth” between the Unit and Mr. Bryan’s apartment. She said that what she meant by “back and forth” was that she sometimes stayed in the Unit and at other times stayed at Mr. Henry’s apartment, both with and without Mr. Henry. She had belongings at both the Unit and Mr. Henry’s apartment. She did not believe that Mr. Henry left any of his belongings in the Unit. Ms. Bryan testified that there were two keys to the Unit; she had one key and Mr. Henry the other. No questions were asked about whether another key or security card was needed to access the outside doors of the apartment building. Mr. Sederoff did not challenge her evidence that Mr. Henry had a key to the Unit.

[23] Ms. Bryan testified that when she was arrested for possession of a firearm, she was not aware of the fact that the gun was in the Unit, and she does not know whose gun it was. She went on to say that there was never a time when she knew whose gun it was. However, she admitted that, at the time of her arrest, she had told police whose gun it was.

[24] Ms. Bryan testified that on February 14, 2021, she went to Mr. Henry’s apartment, and she found a “Valentine’s Day set up” with flowers but it was not for her. She was upset about this and began to drink a lot and she “trashed” his apartment. Ms. Bryan testified that she was not injured in doing this, but she saw later that she had cut her wrist. She is not sure how that happened. Later in her evidence, Ms. Bryan testified that the “girls” in Mr. Henry’s apartment were beating her up and she ended up on a three-way Facebook call with a friend and her mother, and her mother saw the blood on her wrist. It appears that that is why her mother called police although obviously it was not the Unit that Ms. Bryan had trashed but rather Mr. Henry’s apartment. At the time, Ms. Bryan did not know that, as a result of her mother’s call to police, that police would go to the Unit. Later she testified that prior to February 14, 2021, she had no reason to think police would go to the Unit.

[25] Ms. Bryan gave more details about her trashing of Mr. Henry’s apartment later in her evidence in chief. She said that when she first arrived, Mr. Henry was there with the “other girl” and about a half hour later, five girls arrived. Ms. Bryan testified that she was just angry at Mr. Henry who hurt her, not the other woman or the other five women.

[26] Ms. Bryan testified that police that night offered to help with her injury. They wanted her to go to the hospital, but she was overwhelmed by what was going on and did not want to go – she just wanted to rest. About an hour or more after police arrived, Ms. Bryan was arrested.

[27] Ms. Bryan admitted that police asked her whether she lived at the Unit and “in the moment” she said yes even though “technically” she did not live there. When police asked if anyone else lived in the Unit, she said no which Ms. Bryan testified was also not true. Ms. Bryan testified that she did not “necessarily lie” because it was not important at the time. Ms. Bryan said that police did not arrest her the first time when she said she lived in the Unit alone, but they did when they asked her a second time and she admitted she lived in the Unit. She could not remember if she said this time she lived there alone or not.

[28] Once Ms. Bryan was arrested for possession of a firearm, she was angry, sad, and mad. She recalled that she was crying and kicking. She never told police whose gun it was but did tell them to ask Mr. Henry. When asked why she told police to ask Mr. Henry, Ms. Bryan testified that she said this because she was intoxicated, mad and angry. She was going through 100 plus emotions that night and Mr. Henry was the cause, because she found out that he was with another female.

[29] Although initially Ms. Bryan testified that she did not want to watch the Video to refresh her memory on her dealings with police, she changed her answer to “maybe”. As Mr. Sederoff did not have an issue, the Video was played for the purpose of Ms. Bryan refreshing her memory only. After that finished, Ms. Bryan testified that it did assist her and her evidence in chief continued.

The Video

[30] The Video was played at trial, and I reviewed it again during my deliberations. Ms. Bryan’s emotional state and the questions she was asked and the answers she gave to police are important to the issues I must decide and so I will set out what I observed and heard as best I can as no transcript was obtained by the Crown.

[31] There is no dispute that police attended at 39 Queens Quay East and when the Video was started shortly before midnight, police were using a first aid kit to apply a dressing to Ms. Bryan’s cut on her wrist. At this point, Ms. Bryan was sitting in the back seat of a police cruiser and not saying anything. When asked what happened that caused her injury, Ms. Bryan said that she had an argument with “this guy” and his girlfriend. When asked if she had had any alcohol and that it was OK if she had, Ms. Bryan answered: “not much” and that two hours earlier she had had two shots. The officer told her she was safe and asked Ms. Bryan again what happened to her. She responded that she did not know and that she had been at a hotel. When asked about the information her mother had given police, Ms. Bryan corrected that information and told police that she had trashed “509, her ex-boyfriend’s place” and that she had kind of attacked “them” at her boyfriend’s place and that she saw them drive off.

[32] At this point Ms. Bryan was asked who lived at the Unit and she said: “I do, me” and that nothing had happened at the Unit that night. She went on to tell the officer that she had a key and that she went upstairs and saw things for another girl and that she started breaking things.

[33] At this point, Ms. Bryan must have seen someone in the area that she believed to be the other woman. She suddenly became very upset and tried to get out of the cruiser and started screaming profanities at this woman. The officer who was speaking to her tried to get her to sit back down and she screamed something about “your fucking boy”, presumably a reference to Mr. Henry. The officer told her to sit down and closed the door. By this time, there was at least one other woman present, who I believe was a friend of Ms. Bryan’s or her mother. She was also asked by one of the officers how Ms. Bryan cut herself and who the victim was, and I believe she told the officers a little of what had happened. Ms. Bryan then tried to get out of the cruiser a second time again, still yelling profanities about the other woman. She told the officer that she wanted to “fucking leave”. Ms. Bryan was clearly very agitated by this time.

[34] Paramedics arrived at the scene because the officers believed Ms. Bryan needed stitches. She did not want to go to the ambulance and began to yell more profanities at, I assume, the person she believed was the other woman. Ms. Bryan screamed that she did not want the paramedics to touch her, but she did get into the back of the ambulance. Apart from continuing to swear, Ms. Bryan calmed down a little as the paramedics dressed her wound, but she was still yelling “fuck” several times. Ms. Bryan refused the suggestion that she go to the hospital to have her wound stitched and advised the officers that she wanted to call an Uber and go home.

[35] A couple of the officers can be heard on the Video at this point stating that they have seen a video, I presume of the inside of Mr. Henry’s apartment, and that it was trashed but that Ms. Bryan’s cut is evidence of assault cause bodily harm. They clearly did not know how to handle the situation. When asked again by one of the officers what happened. Ms. Bryan used a profanity to refer to the other woman and told police that she was fighting with her and that there were six of them. At this point, Ms. Bryan started to walk away and one of the officers commented that they couldn’t hold her as no one wanted to report anything.

[36] By this point, Ms. Bryan was in the back of what I assume was the Uber and there were a couple of women inside – I presume her friend and her mother. One of the officers set out that she had denied medical care and told her that her cut could get infected, which is why she should have stitches, and that the ambulance was standing by for her. After encouragement from someone inside the Uber, Ms. Bryan decided to go back into the ambulance so that her cut could be cleaned out. Inside the ambulance Ms. Bryan can be seen talking to someone on her cell phone and again she was referring to the other woman using profanity. She said on the phone that “he shouldn’t have given me a key” and that “I have access just like he has access to my house”.

[37] At this point Ms. Bryan was crying loudly in the ambulance as the paramedics were cleaning her cut. That clearly was very painful. By 1:36:43 Ms. Bryan was coming out of the back of the ambulance and one of the officers asked her to stay for a few minutes. I believe at this point police had become aware of what had been found in the Unit.

[38] As Ms. Bryan was standing at the rear of the ambulance, a car could be seen coming down the street that caught her attention. Ms. Bryan started jumping up and down and screaming: “that’s him” and “he’s here, fucking bitch” a couple of times. At this point, it is clear that Ms. Bryan believed that she saw Mr. Henry’s car and she was clearly very agitated. She started walking away, down the sidewalk towards the car while the officer was telling her to stay.

[39] At this time, one of the officers who I presume had become aware of what police found in the Unit, asked Ms. Bryan who lived at the address of the Unit. She responded that she lived there alone and asked why the officer was asking. Immediately after Ms. Bryan told the officer this, the officer advised her that she was going to be arrested for possession of a Schedule 1 substance and a weapon. The time on the Video at this point is 1:37:38.

[40] The officers began to handcuff Ms. Bryan to her back right away and as they did so she asked: “what weapon?” and she said: “you guys are arresting me, seriously?” and “why are you guys arresting me?”. It appears that her friend or mother heard this and started asking questions in the background as well. The officer told Ms. Bryan it was for possession of a firearm and a Schedule 1 substance and that it was a gun. As the officer was escorting Ms. Bryan to the back of a police cruiser, she asked again what she was being arrested for. Before the officer had a chance to respond, Ms. Bryan said at 1:38:43: “that stuff at my house is not mine”. The officer reminded her that she was being recorded, but Ms. Bryan continued and asked the officer what she was being arrested for and what he was talking about and asked: “what firearm?” and “where?”. When Ms. Bryan was told that it was at her place she said: “It’s not mine” multiple times, while screaming, crying, and telling the officers to: “fuck off” as she was put into the back seat of the cruiser and one of the officers started to read the standard to caution her. This continued while the officer continued to try to read the caution.

[41] Ms. Bryan asked why the officers were not going to “509” and told them to go to 509. She then told them that she wanted her phone and her belongings to be given to her mother. When asked if she understood the caution Ms. Bryan did not answer. She was crying loudly while she was repeating to herself over and over that “this is not happening” and screaming at the officer multiple times that he should “fuck off”.

[42] When the officer continued with the caution Ms. Bryan was still screaming, and she demanded that the officer bring her mother and friend to her so that she could tell them something. The officer said “no” and it was at that point, at 1:42:10, that Ms. Bryan told the officer: “He lives there as well. I don’t live there by myself”.

[43] The officer told Ms. Bryan to stop talking because she was under arrest, but she responded that she did not care, and she continued: “It’s not mine it’s his” and that “its Adam Fucking Henry’s” and “it’s not fucking mine”. This was at 1:42:19. Ms. Bryan told the officer to search Mr. Henry’s name and they would see “all his charges”[^1]. She referred again to 509, that “he” lives at 509 and that the officer should run Mr. Henry’s name “right now” and “you’ll know”. Ms. Bryan was asked for Mr. Henry’s birthdate which she gave to the officer. At this point it was 1:43:06 and Ms. Bryan told the officer: “I am not going down for his shit after, not after he fucking cheated on me” and she continued crying while repeating over and over that that “this is not happening”. This was almost six minutes after Ms. Bryan was told she was under arrest.

[44] At this point Ms. Bryan was still in the back of the police cruiser. When the officer asked her if she wanted him to read the caution again, she responded: “If you are not charging Adam Fucking Henry, I don’t want to hear it”. She continued repeating to herself that this was not happening. Ms. Bryan asked the officer why she was getting charged and “Adam Fucking Henry” was not. She asked: “did you guys not run his fucking name” and “don’t you see his charges” and “do you see any of my charges” implying that she has none. Ms. Bryan told the officer again: “it’s not mine” and to go “raid his fucking house”.

[45] At this point Ms. Bryan was asked to step out of the cruiser and she cooperated and went with the officer until she was almost at a police wagon. At this point she started to scream that she couldn’t go in because she is claustrophobic, although I note she did not have any difficulty going into the back of the ambulance twice. Ms. Bryan put her foot on the threshold at the doorway to the wagon and refused to go in, screaming that the officers were hurting her arm. Eventually she went inside, and it was quiet for a time. A little later Ms. Bryan can be heard kicking and banging the inside of the wagon. After a few minutes, the door to the wagon was opened, and I assume it was Ms. Bryan’s mother or her friend who told her to calm down. Ms. Bryan was crying and responded that she had been drinking and that she couldn’t stop which she repeated a second time. A decision was made at that point by the officers to take Ms. Bryan to the hospital and the body camera was turned off.

The Evidence of Talicia Bryan (Part 2)

[46] After the Video was played, Ms. Bryan admitted that watching the video helped refresh her memory as to what she told police about who lived at the Unit just before Valentine’s Day 2021 and that she told police that she lived there. She admitted that she also told police that Mr. Henry lived there as well. When asked if that was true, Ms. Bryan said that this was “somewhat true” but that it was not just one person who lived in the Unit and that others paid some of the rent. In her distress, she had told police that Mr. Henry lived in the Unit too but in fact nobody lived there, and everyone was in and out of the Unit.

[47] As for what she told police about the gun, Ms. Bryan testified that she was mad and that she said it was Mr. Henry’s in the moment but that does not necessarily mean that it was. Her evidence at trial was she did not know whose gun it was.

[48] At this point in the evidence of Ms. Bryan, Ms. Winocur brought an application pursuant to s. 9(2) of the Canada Evidence Act to permit her to cross-examine Ms. Bryan on what she asserted were two inconsistencies between what she told police and her evidence at trial; 1) that she told police Mr. Henry also lived in the Unit and 2) that it was his gun. Mr. Sederoff took the position that Ms. Bryan had not been inconsistent on the issue of who was living at the Unit but that he was content to have the Crown cross-examine on that issue and on the issue of who owned the gun. Accordingly, I permitted Ms. Winocur to proceed as requested.

[49] When Ms. Winocur cross-examined Ms. Bryan on her statement that Mr. Henry owned the gun (the “Statement”), Ms. Bryan denied that her immediate reaction was to say the gun was Mr. Henry’s. She testified that she told police that it was his “stuff” but denied telling police that it was Mr. Henry’s gun. When Ms. Winocur put to her that by the “stuff” she was referring to the gun, the drugs and the explosives, Ms. Bryan denied that and testified that her first reaction was to ask police what they were talking about. Ms. Bryan testified that she told police she did not want to go down for “his stuff” after Mr. Henry cheated. She said that had Mr. Henry not cheated, they probably wouldn’t be in this predicament right now. She went on to explain that her mother called police because of the fight, which I assume was the fight she had with the “girls”, that the fight only happened because Mr. Henry cheated and if there had not been a fight police would not have been called.

[50] After dealing with an objection to a further line of questioning by Ms. Winocur, Ms. Bryan admitted that she would not want to go down for Mr. Henry’s stuff whether he cheated or not but that she was angry that he cheated, there was a lot going on and she was unstable. Ms. Bryan repeated that she did not know “whose” it was. I presume she was referring to the gun.

[51] When Ms. Winocur put to Ms. Bryan that although there were a lot of people who used the Unit, she only told police that the stuff was Mr. Henry’s, Ms. Bryan repeated that in the moment she was mad and that she did not remember that she said anything to police until she saw the Video. Ms. Bryan admitted that she would never wrongfully accuse someone of possession of a gun but that if she was angry and acted on impulse, it would be something she would do. At the time of the Video, her Statement was impulsive and instinctive, and she just did not think about it, and it just came out. In answer to a leading question, Ms. Bryan then admitted that the Statement came out in the moment she realized that she was being charged with a serious crime. Ms. Bryan went on to say however that it was to get back at Mr. Henry to hurt him and that, had it been a different scenario, it would have been a different outcome.

[52] Ms. Bryan testified that she loved Mr. Henry and that he had taken her out of an abusive relationship which caused her to care for him even more. She was hurt that he had cheated on her. She denied being angry at the other woman because she was not the person who hurt her.

[53] Ms. Winocur put to Ms. Bryan again that she told police the “stuff” belonged to Mr. Henry because it was his. Ms. Bryan answered “no” and when it was then put to her that the firearm was Mr. Henry’s she repeated “no”.

[54] Ms. Bryan testified that the reason she told police she had two shots and at trial she said she had had a lot to drink was because at the time she did not have a valid driver’s license and she did not want to get in trouble with police. She felt it was better “in the moment” to say this. This was before she knew she was going to be charged. Ms. Bryan testified that, at trial, she said she drank more because that is what happened.

[55] When asked if she knew she was being videotaped, Ms. Bryan answered, “yes and no” and testified that she knew but that she did not think about it.

[56] After dealing with the application by the Crown, which I will come to, Mr. Sederoff briefly cross-examined Ms. Bryan. Ms. Bryan admitted that she minimized the amount she had to drink when she spoke to police. She also admitted that at the time when she was dealing with police, she had a lot of emotions, was hysterical and having an anxiety attack. She did not want to watch the Video because she was pretty much “out of control”. Ms. Bryan repeated that the reason she said that the gun belonged to Mr. Henry was that he was with another girl, and she was mad and upset with him. Given she was using the Unit like an Airbnb, she did not know whose stuff was left in the Unit and she did not know whose gun it was. Ms. Bryan admitted that Adam Henry was the name she had in her mind when she came under the stress of the police that night and that she said his name because he hurt her that night.

Crown Application

[57] At the end of her examination in chief of Ms. Bryan, Ms. Winocur advised that she wished to bring an application to have part, or all of the Video introduced into evidence for the truth of the statements. In particular she sought to have two statements Ms. Bryan made to police admitted for their truth: 1) that Mr. Henry also lived in the Unit and 2) that he was the one who owned the gun, (collectively referred to as the statements). She argued that these statements were admissible as spontaneous or excited utterances. Mr. Sederoff took the position that the statements should not be admitted for their truth for reasons I will come to. As it was not necessary to hold up the continued examination of Ms. Bryan to deal with this application, and Mr. Sederoff did not need my ruling on the application before electing whether to call defence evidence, it was agreed that this issue would be dealt with in closing submissions. After the evidence of Officer Cole, it was agreed that the Video would become a trial exhibit so that the Crown’s application could be decided. Furthermore, Mr. Sederoff took the position that Ms. Bryan’s demeanour, as displayed on the Video, was relevant so that I would need to review it for that purpose.

SOCO Photos

[58] Counsel agreed that the Scene of the Crime (“SOCO”) photos taken by police when they attended at Ms. Bryan’s Unit on February 15, 2021 could be entered into evidence, and considered authentic.

[59] The SOCO photos do not show a single item, be it a credit card, Driver’s Licence, Health Card or any card, document or any medication that refers to Mr. Henry by name nor is there any evidence of any male clothing or men’s toiletries in the Unit.

[60] What the SOCO photos do show is that Ms. Bryan lived in the Unit. The SOCO photos include pictures of Ms. Bryan’s driver’s licence, health card, birth certificate, medication containers, and various documents in her name, including passport and driver’s licence applications, although none but for one show her address or if they did, it has been redacted. There is only one Toronto Employment & Social Services Application which has an address that is not the address of the Unit, but another incomplete form suggests Ms. Bryan was in the process of changing that.

[61] In addition, the SOCO photos show a bedroom which was clearly being used by a child based on the bedding on the twin bed and Paw Patrol toy on the headboard. Ms. Bryan has an eight-year-old son. No questions were asked about whether or not she has sole parenting responsibility for her son or shares it with her son’s father but clearly one of the bedrooms in the Unit was for her son. What appears to be another bedroom has women’s clothing in it.

The Lease to the Unit

[62] A copy of what I was told was the lease agreement to the Unit was introduced by Mr. Sederoff and entered into evidence with the consent of the Crown. Unfortunately, it was entered after Ms. Bryan testified and she was not asked about it. When I reviewed this document during my deliberations, I noted that the top of this document is a “Key Release Checklist” which states that the owner of the Unit, a Joey Wong, received four keys to the Unit, three to a mailbox and two “Access Fobs” on November 25, 2020. Mr. Wong actually appears to be the real estate agent for the registered owner of the Unit, a woman who lives in Hong Kong. The last page of this document is dated January 9, 2021, and has what purports to be Ms. Bryan’s signature. The purpose of this document was to request a change of the phone number that was connected to the intercom. The date of this document is consistent with the timing of when Ms. Bryan testified that she started renting the Unit.

Officer Kyle Cole

[63] The Crown called Officer Cole to express his lay opinion on Ms. Bryan’s state of intoxication when he and other officers were engaged with her on the night of February 14, 2021. Officer Cole testified that his first contact with Ms. Bryan was inside a police cruiser and that he could smell alcohol and her speech was a bit slurred. However, Officer Cole did not feel that Ms. Bryan was impaired because she was able to make decisions, communicate effectively and move in a way that did not indicate impairment. Officer Cole testified that on a scale of one to ten, with one being sober and ten being unconscious falling down drunk, he would put Ms. Bryan at a three.

[64] In cross-examination, Officer Cole admitted that he had watched the Video. He denied that it showed Ms. Bryan as being hysterical or completely out of control, although she was swearing. Officer Cole testified that Ms. Bryan pulled away once when he tried to arrest her, and she was then yelling and screaming and using profanities, but she then walked with them to the police cruiser. However, when she was in the back of the police cruiser a second time she was screaming, crying, and swearing. Officer Cole admitted that Ms. Bryan struggled to go into the police wagon and that she was kicking the walls of the wagon, but he testified that she had concerns about small spaces and she had been relatively subdued at first.

Evidence of Marietta Berka

[65] Marietta Berka is co-parenting her son with his father, Mr. Henry. Ms. Berka testified that she met Mr. Henry at the end of 2019. At first, they were just friends, but their relationship became deeper, and they had become boyfriend and girlfriend by February 14, 2021. She was at his apartment at 39 Queens Quay then to celebrate Valentine’s Day. In cross-examination, Ms. Berka testified that, to her knowledge, Mr. Henry was living at apartment 509 at 39 Queens Quay.

[66] Ms. Berka testified that on the night of February 14, 2021, she and Mr. Henry stepped out and had left the door open – I presume this simply means unlocked, not open, although that was not clarified. When they came back, a woman she did not know was in the hallway “raging” outside Mr. Henry’s apartment. I find that this woman must have been Ms. Bryan. Ms. Berka testified that Ms. Bryan ran into Mr. Henry’s apartment and went into hiding in Mr. Henry’s bathroom.

[67] Ms. Berka testified that she had not heard of this woman before, nor had any indication of her until that day, and she did not know why she was mad. Ms. Berka described this woman as being mad, “manic”, “all over the place” and “very vengeful”. Ms. Berka did not know if she was under the “influence” but assumed she was, given the way this woman was acting. She picked up a bottle and was trying to hit people and she tore everything apart. She testified that once this woman was convinced to leave, her friends came over. Ms. Berka had had quite a bit to drink that night and had more after this incident.

[68] In cross-examination, Ms. Berka testified that she had never seen Mr. Henry with a gun.

Relevant General Legal Principles

[69] Counsel referred to a number of decisions. The legal principles I found of assistance in deciding this case are as follows.

Possession

[70] For the purposes of the Criminal Code, "possession" is defined in s. 4(3) to include personal possession, joint possession, and constructive possession. Since the Crown does not allege personal possession, the relevant portion is ss. 4(3) (a) (ii) and (b). The act of possession is not defined but there is no dispute that knowledge and control are essential elements common to both and that these elements must both be proven by the Crown beyond a reasonable doubt: see R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15. At para. 17, the Supreme Court of Canada in Morelli, defined constructive possessions as follows:

Constructive possession is established where the accused did not have physical custody of the object in question, but did have it "in the actual possession or custody of another person" or "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" (Criminal Code, s. 4(3)(a)). Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particular place for his "use or benefit" or that of another person. [emphasis in original]

[71] In R. v. Lights, 2020 ONCA 128,149 O.R. (3d) 273, after referring to the requirement that the Crown prove that a defendant has knowledge of the character of a thing, at para. 47, Justice Watt stated that knowledge is defined as “true belief” and includes not only actual knowledge but also wilful blindness, which the court then defines in para. 52. [Emphasis added]

[72] In R. v. Pham (2005), 2005 CanLII 44671 (ON CA), 203 C.C.C. (3d) 326 (Ont. C.A.), affirmed (2006), 2006 SCC 26, 209 C.C.C. (3d) 351 (S.C.C.), the court found at para. 15 that “[i]n 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…” [Citations omitted, emphasis added].

[73] Mr. Sederoff referred to R. v. Choudhury, 2021 ONCA 560 where the court made it clear that access is not the same as constructive possession, at para. 25.

Probative Value of Fingerprint Evidence

[74] R. v. Mars (2006), 2006 CanLII 3460 (ON CA), 205 C.C.C. (3d) 376 (Ont. C.A.) is often referenced on the probative value of fingerprint evidence. Doherty J.A. for the court made some important observations at para. 19:

The probative value of fingerprint evidence depends on the totality of the evidence. Fingerprint evidence will almost always afford cogent evidence that the person whose fingerprint is left on the object touched that object. However, the ability of the fingerprint evidence to connect an accused to the crime charged will depend on whether there is other evidence capable of establishing that the accused touched the object at the relevant time and place so as to connect the accused to the crime. [Emphasis added]

[75] Ms. Winocur referred to R. v. LePage, 1995 CanLII 123 (SCC), [1995] 1 S.C.R. 654, which dealt with the presence of fingerprints in a case where the trial judge inferred possession. I agree with Mr. Sederoff that the facts of that case are distinguishable as there was other evidence in addition to the fingerprints that the trial judge relied upon. However, some of the principles stated are of assistance. The Court held at pages 668-669 that whether or not the inference of possession from the presence of fingerprints can be drawn is not subject to a hard and fast rule. It is a question of fact which depends on all of the circumstances of the case and all of the evidence adduced.

Probative Value of a Key

[76] Ms. Winocur referred to three cases that deal with the probative value of a key and its significance to the issue of possession and control.

[77] In R. v. Vu, 2002 BCCA 659, the court held that whether an inference as to knowledge and control can be drawn by a trier of fact is a matter to be examined in light of the particular facts and circumstances of each case. The fact that the defendant had a key to the only lock on the barn where a large marihuana growing operation was located was sufficient evidence to support the inference of control: at para. 23 [emphasis added].

[78] The court went on to set out the evidence that supported an inference of knowledge, at para. 24, including the appellant’s attendance at the property while the search warrant was being executed with the key in his hand and other factors concerning the nature of the grow operation including the very high commercial value of the growing operation. The court referred to an earlier decision of the court, R. v. To (W.H.) (1992), 1992 CanLII 913 (BC CA), 16 B.C.A.C. 223, where the court held that the possibility the defendant had been entrusted with 1.35 million dollars of heroin without being told what it was could safely be rejected. Applying that case, the court in Vu accepted the finding of the trial judge that it was exceedingly unlikely that anyone would be entrusted with possession of the key to a grow operation worth approximately 1.4 million dollars without that person knowing about the drugs.

[79] In R. v. Munif, 2009 BCCA 451, the defendant used a key to open an apartment as a search was being conducted. A significant amount of drugs, cash and drug-related paraphernalia including scales, grinding bowls and baggies were found in the apartment. In addition, an unloaded shotgun and ammunition was found in plain view. On appeal, the court found that it was open to the trial judge to draw the inferences that she did. The trial judge found that the apartment was being used as a drug-trafficking hub and found, at para. 60, that:

MUNIF was in possession of a key that allowed him free access to a residence. This is a clear indication that he had a measure of control over the residence. It would have been impossible for him not to have knowledge of the large quantities of drugs and drug paraphernalia scattered about the kitchen, the living room and dining room. Given the quantity of drugs and cash in the residence, the common sense inference is that only a trusted member of the illegal operation would be given such free access to the residence. Finally, upon arrival at the residence, MUNIF was found in possession of items typically found on street level dial-a-dopers ….

[80] The other inference urged by defence counsel at trial was that although Mr. Munif had access to the residence and might have had knowledge of the drugs and shotgun in the residence, he was just an innocent visitor who had been given a key so that he could come and go during his temporary residence, and he would not have had any control over these items. The trial judge rejected this argument, finding that given the quantity of drugs and cash, it was unlikely that a mere visitor who was not a trusted member of the illegal operation would be given free access to this residence: at para. 63.

[81] Finally, Ms. Winocur referred to R. v. Cobb, 2022 QCCQ 1435, where a search of an apartment found a restricted handgun a prohibited rife with nearby ammunition, crack-cocaine, powder cocaine, cannabis, a digital scale and $820. The Crown alleged personal possession of what was found. DNA evidence of the defendant was found on the barrel of a firearm that was found a few feet away from where the defendant had been sleeping and the crack-cocaine was hidden a few inches away inside the warming drawer of a stove that the defendant acknowledged was his.

[82] The Quebec Court of Appeal held, at para. 109, that the fact that there were no fingerprints connecting the guns and drugs to the defendant was relevant but did not exclude a finding of possession. The court went on to find that “there is far more than the accused’s mere presence in an apartment where drugs and firearms were found” including the fact that the evidence demonstrated that the defendant had exclusive occupancy and exclusive control of the apartment and that he was the only person who could access it subject to the janitor: at paras. 110-111. On the subject of keys, the court held that the fact the defendant had the keys to a dwelling where contraband was found “is a strong indicator that he had control of the premises, and it may permit the inference that he knew what was inside the apartment”: at para. 112. Finally, the court stated, at para. 114, that the Ontario Court of Appeal had repeatedly observed that it is reasonable to infer that valuable guns and drugs will not be entrusted to persons who did not know about them or where they were located, referencing a number of cases for that proposition, including R. v. Buchanan, 2020 ONCA 245, 386 C.C.C. (3d) 373, at para. 61.

The Crown’s Application to Admit the Statements by Ms. Bryan as Spontaneous Utterances

[83] As set out above, Ms. Winocur argues that the statements Ms. Bryan made to police on the Video that Mr. Henry also lived in the Unit and that he was the one who owned the gun should be admitted for their truth as spontaneous, excited utterances even though Ms. Bryan has recanted those statements and did not adopt those statements at trial.

[84] Mr. Sederoff submitted that the Crown’s case against Mr. Henry rises or falls on the evidence of Ms. Bryan and that what she said on the Video is clearly not reliable or credible. He focused his submissions on why it is his position that this court cannot rely on any of Ms. Bryan’s evidence and essentially submitted that even if I find that the statements are admissible as an excited utterance, they do not meet the ultimate test of reliability or credibility.

[85] Even if I accept the Crown’s position, I will still have to consider the credibility and reliability of Ms. Bryan when she made the statements to determine what weight to give to them. As this is a judge alone case, I considered whether I should first decide threshold reliability and determine if the statements are admissible for their truth as excited utterances, as I would have if this had been a jury trial. I decided to consider the Crown’s application, but given I am also the trier of fact, I decided that it does not deserve the full analysis that would be required if this was a jury trial.

[86] When the issue of the admissibility of the statements arose, I referred counsel to Justice Paciocco’s text, The Law of Evidence, 8th ed., (Toronto: Irwin Law, 2020), at p. 230, where he refers to the House of Lord’s decision of R. v. Andrew, [1987] 1 A.C. 281, [1987] 1 All E.R. 513 (H.L.), at 300-1. In addition, I have reviewed the case law submitted by Ms. Winocur on this issue including R. v. MacKinnon, 2022 ONCA 811, 164 O.R. (3d) 535, affirmed [2023] S.C.C.A. No. 37, where Thorburn J.A. summarized the applicable principles under the spontaneous utterance exception. I note that Justice Thorburn referred to the Andrews decision throughout her summary.

[87] Relying on the law as set out in MacKinnon, Ms. Winocur submitted that exact contemporaneity is not required. She acknowledged that both before and after her arrest, Ms. Bryan was upset that she had discovered that Mr. Henry was cheating. It is the Crown’s position that, on arrest, Ms. Bryan denied knowing about the gun or owning it, but made the Statement that it belonged to Mr. Henry once she realized the gravity of the charge being laid against her. Her arrest was the dominating event that directed her mind as she made the Statement, namely that the gun belonged to Mr. Henry. Based on these principles as set out in MacKinnon, Ms. Winocur submitted that Ms. Bryan’s answers to police were not inconsistent within the Video, as she did not say that she did not know whose gun it was, as she did at trial, but rather that it was not her gun and then that it was Mr. Henry’s. She also submitted that the type of issues raised by Mr. Sederoff with the statements were not the type of “special features” that would render the statements inadmissible under this exception. Rather, there are issues about Ms. Bryan’s honesty or sincerity when she made the statements, which is relevant to the issue of her ultimate credibility and reliability at that time.

[88] I have serious doubts about whether the statements are admissible for their truth under the excited utterances exception. In my view, Ms. Bryan realized early on that she had been arrested for possession of a firearm and it seems she knew what police were talking about. I do not accept the submission that it was only when she fully realized what she had been arrested for that she told police it was Mr. Henry’s gun and that he also lived in the Unit. I am also of the view that the fact that Mr. Henry had cheated on her was very much on her mind when she made these statements. However, since these concerns apply equally to the ultimate question of whether or not the statements are reliable and credible, I decided to consider the statements as if they had met the test for threshold reliability and had been admitted for their truth as evidence in the trial. As for the Video, it is otherwise relevant for Ms. Bryan’s demeanour when she made the statements and for any prior inconsistent statements she made to police.

Has the Crown Proven Beyond a Reasonable Doubt that Mr. Henry was in Constructive or Joint Possession of the Firearm?

[89] Ms. Winocur relies on a number of facts in support of her argument that Mr. Henry was in constructive or joint possession of the firearm with Ms. Bryan as follows:

(a) the firearm was on a shelf in the kitchen area and readily visible to anyone standing in the room where the gun was found,

(b) Ms. Bryan was the person who rented the Unit and was the only person on the lease,

(c) Ms. Bryan testified that she gave one of two keys to the Unit to Mr. Henry,

(d) Ms. Bryan testified that she and Mr. Henry had been in a boyfriend and girlfriend relationship for six months prior to the discovery of the firearm,

(e) Ms. Bryan testified that she had a key to Mr. Henry’s apartment at Queen’s Quay,

(f) although Ms. Bryan and Mr. Henry had separate homes, they had access to each other’s homes and went back and forth to each other’s homes,

(g) the firearm was only in Ms. Bryan’s Unit for about six weeks – the length of time that she lived in the Unit,

(h) the fingerprints belonging to Mr. Henry found on the firearm,

(i) the Video which shows Ms. Bryan’s arrest and her reaction to the arrest.

[90] Mr. Sederoff did not suggest that the rule in [R. v. W. (D.)][^2] applies to any of the Crown’s evidence but since I heard evidence favourable to the defence from Ms. Berka, in my view it does: see [R. v. B.D.][^3] The evidence in question is that she never saw Mr. Henry with a firearm, which was not challenged by the Crown. That evidence on its own however does not undermine the Crown’s case, particularly where the firearm in question was found.

[91] Ms. Berka’s evidence about the nature of her relationship with Mr. Henry was not challenged by Mr. Sederoff. While I have many concerns about Ms. Bryan’s credibility as a witness, I accept that Mr. Henry could have been in a relationship with both Ms. Bryan and Ms. Berka at the same time without them knowing of each other’s existence. I accept therefore that at the time, although Ms. Bryan obviously knew that Mr. Henry had not planned anything to celebrate Valentine’s Day with her, that she genuinely believed that she was in an exclusive relationship with Mr. Henry. This conclusion is supported by how Ms. Bryan reacted on Video to the fact that Mr. Henry had cheated on her.

Reliability and Credibility Assessment of the Evidence of Ms. Bryan and the Statements

[92] Mr. Sederoff submitted that the evidence of Ms. Bryan, both at trial and what she said on the Video, is clearly not reliable or credible. Whether, as Mr. Sederoff submitted, the Crown’s case rises or falls on the evidence of Ms. Bryan, my assessment of the reliability and credibility of her evidence and the statements is of course very important to my decision in this case. In addition to the statements, the Crown relies on the truth of certain aspects of Ms. Bryan’s evidence at trial.

[93] Mr. Sederoff submitted that I should begin by instructing myself as I would a jury with a [Vetrovec][^4] warning given Ms. Bryan is facing 17 outstanding charges including possession of the same firearm relevant to Mr. Henry’s charges. In my view, as Ms. Bryan is presumed innocent of those charges if this were a jury trial, I would give the [Titus instruction.][^5] Parts of Ms. Bryan’s evidence were favourable to the Crown including the statements and other parts of her evidence at trial. I must obviously consider the fact that Ms. Bryan, as a Crown witness, is awaiting trial herself, on very serious charges, and that this may have influenced her evidence in this trial if she believes that taking certain positions may help her own case later.

[94] I agree with Mr. Sederoff that there are a number of concerns with Ms. Bryan’s evidence at trial. The first is with her evidence that she did not live at the Unit and that she only “stayed” there from time to time. She eventually admitted that it was “somewhat true” that she lived in the Unit but that it was not just one person who lived in the Unit and that others paid some of the rent. Later she said that nobody lived there, and that everyone was in and out of the Unit. Her evidence was not only internally inconsistent in significant ways, but it was also inconsistent with what Ms. Bryan told police in the Video. In the Video, she told the police that she lived in the Unit twice. The first time she said: “me”, implying she lived there alone and the second time she expressly said she lived in the Unit alone. Both times were before she was arrested and although this evidence is not admissible for its truth, as it was not adopted by Ms. Bryan, it is relevant as prior inconsistent statements.

[95] I find that Ms. Bryan’s evidence at trial that she did not live at the Unit was a lie, no doubt because Ms. Bryan wants to distance herself from the Unit and what was found in it. I have come to that conclusion because it is obvious from the SOCO photos that Ms. Bryan was actually living in the Unit, even if it is true that she spent time at Mr. Henry’s apartment. It also seems that at least for some of the time Ms. Bryan’s son was living with her and sleeping in one of the bedrooms. As for her evidence that the Unit was an Airbnb, in that she let others use it to help pay for the rent, that may or may not be true as I have no evidence to corroborate or refute this statement. I do note, however, that a third fingerprint that does not belong to Mr. Henry or Ms. Bryan was found on the firearm and the Unit was in a state of disarray when police attended.

[96] Mr. Sederoff also argued that Ms. Bryan admitted at trial that she lied to police about how intoxicated she was on the night of February 14, 2021. She admitted she minimized the amount of alcohol that she had consumed because she was driving and did not want to lose her driver’s licence. Mr. Sederoff submitted that this affected the reliability of Ms. Bryan’s statements and that could certainly be another issue with them although as I will come to, she did not appear that intoxicated when she was dealing with the police. I do however agree that this lie to police impacts her credibility.

[97] I must also assess the ultimate reliability and credibility of the statements Ms. Bryan made to police. Having decided to consider them for their truth does not end the matter. In my view, I cannot find the statements to be true for a number of reasons.

[98] I have set out as much of the exchange between Ms. Bryan and police as possible, short of asking for a transcript. In summary, I find it significant that Ms. Bryan was extremely upset by the fact Mr. Henry cheated on her. It is hard to explain how extreme her reaction was to this as shown by her demeanour on the Video, but as Mr. Sederoff submitted, she was completely out of control and hysterical at times when she was dealing with police. Her actions in going to Mr. Henry’s apartment and trashing the place, fighting with six women, and then barricading herself in his washroom were all extreme and demonstrate how upset she was with Mr. Henry that night. Ms. Bryan was also really angry with the woman he cheated with, as she reacted wildly and screamed profanities every time she thought she saw her, even though she was dealing with police and the paramedics. They had to physically stop her from going after this woman. This conduct is equivalent to a prior inconsistent statement as it was inconsistent with Ms. Bryan’s evidence at trial that she was only upset with Mr. Henry.

[99] Ms. Bryan was arrested at about 1:38:44 in the Video. Ms. Winocur argued that Ms. Bryan did not know what the officers were talking about initially and that it took a bit of time for her to appreciate what was happening. It is her position that it was only once Ms. Bryan realized she was really being charged for the firearm that she told the police that it belonged to Mr. Henry. She argued that, although Ms. Bryan was mad at Mr. Henry up to that point, the dominating event on Ms. Bryan’s mind was the fact that she had been arrested for the firearm, not the fact that she was upset that Mr. Henry had cheated on her. It is on this basis that she submitted that it was an excited spontaneous utterance that could be relied upon for its truth.

[100] I find that the statements are not reliable and credible and that it would be dangerous to rely on them as part of the evidence to convict Mr. Henry.

[101] First of all, in my view based on the exchange, Ms. Bryan realized immediately that she was being charged for possession of a weapon because she asked, “what weapon”? When she was told right away that it was a firearm, she must have known what the officer was referring to because she said: “that stuff at my house is not mine”. It is interesting that Ms. Bryan referred to “stuff” and not a firearm, given what else police found in the Unit but in any event, I note that she did not tell police that it was Mr. Henry’s stuff or whose stuff it was; just that it was not hers. She clearly must have had some idea of what the officer was talking about and based on what she said next, in my view she knew it was a firearm because she then went on to ask: “what firearm” and “where”. In my view, it is important that her very first reaction when she was told the weapon was a firearm was to say that the stuff at her house was not hers. She did not say whose it was even though she realized that she was being charged for the firearm.

[102] I considered whether Ms. Bryan’s statement that the “stuff” at her house was not hers could be considered as an excited utterance as it was her very first reaction, but I would not consider it to be an instinctive reaction that suggests it must be true. In my view, it is just as likely a reaction to being charged with having a firearm and wanting to proclaim her innocence.

[103] In considering what was dominating her mind when Ms. Bryan went on to state that Mr. Henry also lived in the Unit and that the firearm was not hers but rather Mr. Henry’s, I must consider the time that had passed. It was now at about 14:21:08, so a bit of time had passed since she was first told she was under arrest. Ms. Winocur argues that it was only then that Ms. Bryan realized the reality that she was being charged, but in my view, this period of time also gave her time to think about what she would say about the firearm. Ms. Bryan was clearly still very upset that Mr. Henry had cheated on her and, as I have set out, it appears that she got a glimpse of him just before she was told she was under arrest. I would have to say that the fact he cheated on her was still very much on her mind. She did not just tell police that it was Mr. Henry’s firearm, she repeatedly screamed that it was “Adam fucking Henry’s” gun.

[104] As the court said R. v. Nguyen, 2015 ONCA 278, 125 O.R. (3d) 321, at para. 145: “[s]tatements made under pressure or emotional intensity give the guarantee of reliability upon which the spontaneous declaration rule has traditionally rested”. In this case, I accept that the emotional intensity was initially Ms. Bryan’s extreme upset over Mr. Henry cheating on her. She was not over that upset when she was charged and of course the fact she was arrested put a lot of pressure on her. In my view, the pressure would be two-fold; to distance herself from the gun and, with that, to claim it was someone else’s.

[105] I accept, as Ms. Winocur submitted, that Ms. Bryan did not just come up with some random name. She also submitted Ms. Bryan would not have known that Mr. Henry’s fingerprints were on the firearm. Given her evidence at trial, Ms. Bryan could have told the officers that lots of people had access to the firearm and not said it was Mr. Henry’s. In any event, given that Ms. Bryan made these statements after she was charged, and given her interest in proclaiming her innocence, just as I must take the outstanding charges into account when considering her evidence at trial, in my view there are clearly similar reliability issues with her statements to police immediately following her arrest.

[106] I should add that although I have found serious issues with Ms. Bryan’s evidence at trial, she did give evidence at trial as to why she has recanted what she told police. I appreciate that evidence may be influenced by the charges she is still facing but nevertheless her evidence supports what I have found to be the case based on the Video.

Analysis of the Evidence in Support of the Charges

[107] Given my conclusion that I cannot rely on the evidence of Ms. Bryan, including her statements to police, I turn then to my consideration of the evidence. I do have to determine if the Crown has proven that Mr. Henry had constructive or joint possession with Ms. Bryan of the firearm, and in particular, the issues of knowledge and control. In considering that evidence and coming to my decisions in this matter, I must carefully apply the law set out by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, since apart from Ms. Bryan’s evidence, the Crown’s case against Mr. Henry depends on circumstantial evidence. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts but may also arise from an absence of evidence. I must also be cautious about the dangers of the path of reasoning involved in drawing inference from the circumstantial evidence; namely the risk of filling in the blanks or jumping to conclusions. In this case, I must be satisfied beyond a reasonable doubt that the guilt of Mr. Henry is the only reasonable inference that can be drawn from the evidence: see R. v. Loor, 2017 ONCA 696, at para. 21.

[108] Before I go on to assess the rest of the evidence, I will say something more about the statements because even if I had found them to be credible, they would not have supported a finding that the firearm belonged to Mr. Henry as the Crown asserts.

[109] Ms. Winocur acknowledged that even if I accept Ms. Bryan’s statement that the firearm belonged to Mr. Henry as being true, we do not know why she thought it was Mr. Henry’s firearm. We do not know if her statement was based on personal direct knowledge or was just a belief she formed. At the time, the officers were not able to ask Ms. Bryan the reason for this statement and so this could simply have been her belief at that time. Ms. Bryan did not volunteer any information to police to support her claim, such as, for example, seeing Mr. Henry bring the firearm into the Unit or seeing him handling the firearm.

[110] Given that Ms. Bryan recanted her statement that the gun belonged to Mr. Henry in her evidence at trial, there was no need for Mr. Sederoff to explore with Ms. Bryan

• whether or not it was possible that there could be an innocent explanation for Mr. Henry’s fingerprints being on the firearm,

• when he touched the gun at some earlier time in their relationship,

• whether or not the gun belonged to someone else, given the fingerprint of another person was on it,

• whether it was possible that the firearm belonged to one of the many people that would use her Unit when she was not there.

[111] Ms. Winocur submitted that this concern should just go to the weight I should give to the statement and that I should rely on the fact that Ms. Bryan’s statement that the gun belonged to Mr. Henry was corroborated by the presence of Mr. Henry’s fingerprints that were found on the firearm. I disagree. That is a circular argument in that there is no evidence that Ms. Bryan knew that Mr. Henry ever handled the gun. If Mr. Henry was a visitor to the Unit, he could have touched the firearm innocently without her knowing. In addition, there were fingerprints from a third person on the firearm. In my view, it is not possible to determine what weight to give to the statement without knowing more. I find that all the statements by Ms. Bryan that it was Mr. Henry’s gun would have established, at its highest, that Ms. Bryan believed the gun belonged to Mr. Henry for some unknown reason but nothing more.

[112] I turn then to consider the other evidence relied upon by the Crown. The first question is: has the Crown proven the essential element of Mr. Henry’s knowledge of the firearm?

[113] I accept that the fact Mr. Henry’s fingerprints were on the firearm establishes that he touched it at some point. The fingerprint evidence does not prove anything else on its own. The fingerprint expert opined that the anatomical placement of Mr. Henry’s fingerprints does not provide information on how the firearm may have been handled. In other words, there is no evidence that he handled it as one would a firearm. However, I accept that when Mr. Henry touched the firearm that he would have known it was a gun.

[114] Although a gun is not an innocuous object like the pizza box in Mars, not all guns are illegal restricted firearms. As Mr. Sederoff submitted, there is no evidence that Mr. Henry would have necessarily known by touching the firearm that it was an illegal handgun. Ms. Winocur argued that Mr. Henry did not have to know the law in order to prove knowledge. She did not provide any cases to support her position.

[115] In terms of knowledge, the Crown must prove that Mr. Henry knew the “character” of the firearm. There is no evidence of what Mr. Henry actually believed when he touched the firearm. I accept it is open to the Crown to prove wilful blindness and I appreciate it would depend on the totality of the evidence. The first issue in this regard is whether the Crown has proven that Mr. Henry touched the firearm after Ms. Bryan moved to the Unit.

[116] The fact that Mr. Henry’s fingerprints were on the firearm found in the Unit does not prove that he was ever in the Unit, since a firearm is an easily transported object. Ms. Winocur submitted that the firearm was only in Ms. Bryan's Unit for about six weeks – the length of time that she lived in the Unit, but I do not agree. All I know from the evidence is that Mr. Henry must have touched the firearm at some point during the six months that Ms. Bryan testified that they were in a relationship.

[117] This means that the firearm could have been at the place where Ms. Bryan was living before she moved to the Unit and Mr. Henry could have touched the firearm there. There is no evidence, even from Ms. Bryan, as to when or how Mr. Henry would have handled the firearm. As the fingerprint evidence discloses, it is impossible to determine from his fingerprints when he touched the firearm or how long his fingerprints were on the firearm. This means that there is no evidence that the Crown can even prove that Mr. Henry knew the firearm was in the Unit on or about the dates alleged in the Indictment, unless I accept the evidence of Ms. Bryan that he stayed there often and he saw it there or that he was there enough to see it there.

[118] Furthermore, even if there was evidence that Mr. Henry touched the firearm when it was in the Unit, or that he saw it there, there is no evidence of wilful blindness or what Mr. Henry would have known that should have led him to the belief it was an illegal firearm. Ms. Winocur did not argue that there was. As I have already stated, there is no admission from the Crown that what was found by police in the Unit were actually Schedule 1 drugs or explosives, nor is there any evidence including the SOCO photos about where those items were found, or that anyone involved in this case is a drug dealer. There is also no other evidence found in the Unit suggesting illegal activity such as scales or baggies to package drugs that could arguably have put Mr. Henry on notice that he should make inquiries about the firearm. I therefore would not have been able to conclude that even if Mr. Henry touched the firearm in the Unit or that he saw it there, that the Crown had proven he should have known that it was an illegal firearm or that he was wilfully blind to that fact.

[119] Mr. Sederoff argued that there is no evidence that Mr. Henry was ever inside the Unit. There is no evidence to corroborate Ms. Bryan’s evidence at trial that she and Mr. Henry spent time together in the Unit or that they went back and forth between the Unit and his apartment and that at times he stayed there. In fact, apart from Ms. Bryan’s evidence, there is no evidence that Mr. Henry was ever inside the Unit. I have already expressed my concerns about Ms. Bryan’s credibility generally, including her not being truthful about living at the Unit. Ms. Bryan told police before she was charged that she lived in the Unit alone twice, which is a serious inconsistency from her evidence at trial, which was also internally inconsistent. Furthermore, as Mr. Sederoff submitted, if Mr. Henry had actually been at the Unit as often as she alleged, one would have expected there to be some corroborating evidence from neighbours or security cameras. In addition, if Ms. Bryan’s evidence is true, although it is possible that Mr. Henry would not have left any belongings in the Unit with his name on them, I would have expected there to be some trace of the presence of a man in the Unit. There was none. Therefore, in the absence of corroborating evidence, I am not satisfied that Mr. Henry also stayed in the Unit as often as Ms. Bryan alleges, nor that I can rely on her evidence to find that he was ever even at the Unit.

[120] Ms. Winocur however relies on the evidence from Ms. Bryan that Mr. Henry had a key to the Unit, which is relevant to both the issue of knowledge and control. There is no evidence that Mr. Henry also had a key to enter the building itself. I accept that if he did not, that would not have prevented him from getting into the building and up to the Unit, as it is common knowledge that it is not that difficult to come in to an apartment building behind someone else who has such a key or a visitor that is buzzed in via the intercom system. The issue then is: did Mr. Henry in fact have a key to the Unit and if so, what inferences can be drawn from that?

[121] I appreciate that Mr. Sederoff did not challenge Ms. Bryan’s evidence that Mr. Henry had a key to the Unit, but the only evidence available for me to accept that as a fact is Ms. Bryan’s evidence that he did. As Mr. Sederoff submitted, there is no independent evidence that Mr. Henry was in possession of a key to the Unit, such as for example finding a key on his person when he was arrested or other corroborating evidence that Mr. Henry ever used a key to access the Unit. This is a concern given the other issues I have with Ms. Bryan’s evidence.

[122] There is Ms. Bryan’s evidence that she also had a key to Mr. Henry’s apartment, but that evidence is also not corroborated as Ms. Berka testified that when she and Mr. Henry left, they left the door open, which I assume meant it was unlocked. In other words, Ms. Bryan would not have needed a key to access Mr. Henry’s apartment to trash it.

[123] I therefore have difficulty in concluding that it is safe to rely on Ms. Bryan’s evidence that Mr. Henry had a key to access the Unit or even finding that he was ever in the Unit. As I have found, it is possible on the evidence that Mr. Henry touched the firearm before it was moved into the Unit. If so, and he was never in the Unit, there is no evidence that he would know that the firearm was in the Unit apart from the fact he was in a relationship with Ms. Bryan, though there is no evidence from Ms. Bryan that she ever told him.

[124] It is Mr. Sederoff’s position that considering all of the evidence, the firearm and other items found in the Unit all point to sole possession by Ms. Bryan. I accept that there is no evidence that Ms. Bryan was a drug dealer or that the evidence police found in the Unit is in fact what the police allege, but I note Mr. Henry is not charged with possession of any of those items nor is there any evidence that he was aware of those items being in the Unit. This is consistent with my finding that the Crown has not proven that Mr. Henry had knowledge of the firearm in the Unit. There is no evidence before me that I accept that is inconsistent with an inference that Ms. Bryan was in sole possession of the firearm.

[125] For the reasons I have given for my significant concerns about Ms. Bryan’s credibility as a witness, and given the lack of corroborating evidence, I find that the Crown has failed to prove that Mr. Henry knew, or was wilfully blind to, the fact that the firearm was a restricted firearm when he touched it, or that he knew the firearm was in the Unit on or about February 14 and 15, 2021. The evidence of Ms. Bryan and the absence of any corroborating evidence leaves me with a reasonable doubt as to whether or not the Crown has proven the necessary element of knowledge beyond a reasonable doubt. That is enough to find that the Crown has not proven any of the charges.

[126] Even if I had been satisfied the Crown had proven Mr. Henry had knowledge of the firearm being in the Unit for the purpose of a finding of possession, I would still have had to consider whether or not the Crown had proven Mr. Henry had control over the firearm. Ms. Bryan was the sole tenant on the lease to the Unit. As the sole tenant, she was the only person who could control access to the Unit. Even if Mr. Henry had a key to the Unit, Ms. Bryan could give or withhold her consent to Mr. Henry entering the Unit and to what was kept in the Unit, including the firearm.

[127] I agree, as Ms. Winocur argued, that constructive possession can still be established if the firearm was in a place not belonging to or occupied by Mr. Henry, but it still must have been in the Unit for his “use or benefit”. Even if I had found that Mr. Henry had access to the Unit because he had a key, I would still not be satisfied that the Crown had proven any of the charges. There would still be no reliable evidence that Mr. Henry ever used the key to access the Unit. Even if he had used the key to access the Unit, and was in the Unit, as I have already found, that would not mean the Crown had proven that Mr. Henry knew that it was an illegal restricted firearm.

[128] Although having a key was a factor in the three cases Ms. Winocur referred me to, which I have summarized above, in each of them there was considerable evidence to support a finding of knowledge and control in addition to the fact the defendant had a key, including the defendant’s presence at the dwelling where the contraband was found. What was also critical to the findings in those cases was the fact the value of the drugs and guns found inside the dwelling the defendant had access to was such that it was reasonable to infer that contraband worth so much would not be entrusted to a person who did not know about the contraband or where it was located.

[129] Ms. Winocur did not make this argument in this case and in fact, as I have said, took the position that there is no evidence that the substances found are in fact illegal drugs. Accordingly, the only basis for this inference would be the presence of the loaded firearm in plain view in the Unit. This type of inference is permissible, not mandatory and depends on all of the evidence: see R. v. Walker, 2021 ONSC 8090, at para. 73. Had I been satisfied that Mr. Henry had a key to the Unit, and had I been satisfied that he had been in the Unit, I would still have had difficulty in finding that the Crown had proven control, given the unchallenged evidence of Ms. Bryan that many others had access to the Unit. His possession of a key in those circumstances would not mean that he was part of whatever was going on in the Unit. As the court said in Choudhury, at para. 28, access alone does not establish constructive possession.

[130] Ms. Winocur acknowledged that, in a case like this, I cannot take anything from the fact that Mr. Henry did not testify and offer an innocent explanation for the fact that his fingerprints were found on the firearm. This is a factor only when a defendant has been faced with strong inculpatory evidence, which as I have found, is not the case here: see Mars, at para. 22.

[131] For these reasons, I find that the Crown has not proven that Mr. Henry had the knowledge of and control over the firearm in order to establish that he had possession of the firearm, which is a necessary element of all of the offences before me that he is charged with.

Disposition

[132] Mr. Henry would you please stand.

[133] For the reasons I have given I find you not guilty of all charges.

Spies J.

Released: December 6, 2023

Edited Reasons Released: December 18, 2023

COURT FILE NO.: CR-23-10000716-0000

DATE: 20231206

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

• and –

ADAM FELIX HENRY

Defendant

REASONS FOR judgment

spies j.

Released: December 6, 2023

Edited Reasons Released: December 18, 2023

[^1]: I did not rely on this evidence to infer that Mr. Henry in fact has a criminal record or that there was in fact any contraband at his apartment. [^2]: 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. [^3]: 2011 ONCA 51, 266 C.C.C. (3d) 197. [^4]: R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, at p. 31. [^5]: Titus v. R., 1983 CanLII 49 (SCC), [1983] 1 S.C.R. 259