COURT FILE NO.: CRIMJ(F) 469/22
DATE: 2023 12 08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
M. Bedini, Counsel for the Federal Crown/Respondent
– and –
DIAMANTE SLAUNWHITE-BARTHOLOMEW
R. Chu, for the Applicant
HEARD: October 10, 11, 12, 2023
REASONS FOR JUDGMENT
F. DAWSON J.
[1] Mr. Slaunwhite-Bartholomew is charged with possession of fentanyl for the purpose of trafficking, with three firearms offences related to the possession of a Glock 21 handgun alleged to be a restricted firearm, and with possession of a prohibited device, namely, an extended over capacity 25 round magazine. The alleged fentanyl, the handgun and the extended magazine were all found in a search of the vehicle Mr. Slaunwhite-Bartholomew was driving which was involved in a single vehicle car crash on November 24, 2021 in Mississauga.
[2] Mr. Slaunwhite-Bartholomew was also charged in a separate indictment with three offences of breach of a release order on earlier charges containing conditions of house arrest and that he not possess firearms or illegal drugs.
[3] Both indictments preceded before me as a judge alone trial. At the close of the Crown’s case, no admissible evidence had been introduced to prove the existence of the prior release order on which the breach charges rested. I granted a directed verdict of acquittal on those charges. Crown counsel did not oppose that application.
[4] Before turning to the disposition of the remaining charges, I wish to mention the following. When the trial commenced the focus was on a series of applications brought by the accused to exclude evidence pursuant to s. 24(2) of the Charter of Rights based on several alleged violations of ss. 8, 10(a) and 10(b) of the Charter.
[5] The trial proceeded as a blended trial and Charter application. However, at the close of the Crown’s case the accused elected not to testify or call evidence. He abandoned his Charter application and advanced arguments that the Crown had failed to prove that he had possession of the drugs, handgun and extended magazine. The accused also submitted that there were numerous gaps in the continuity of the evidence of such magnitude that, even if I found possession, I should have a reasonable doubt about whether the firearm found in this case and the extended magazine have been proven to be a restricted weapon and a prohibited device respectively. The submission continues that the continuity problems with the evidence are so significant that I ought not to rely on the Certificate of Analysis tendered to prove that the substance found in the vehicle was fentanyl.
[6] In view of the abandonment of the Charter application, I will not fully review the evidence related to those issues. The focus is on whether possession has been established and upon the extent to which a lack of evidence of continuity impacts the overarching requirement that the Crown prove every essential element of the offences charged beyond a reasonable doubt.
Factual Background
[7] On November 24, 2021 Cst. Chase Sommerville of the Ontario Provincial Police stopped his police vehicle and spoke briefly with the accused. The accused was standing at the front of a white Mercedes sedan which had stopped in the parking lot of an abandoned hotel. Cst. Sommerville thought the accused was looking for damage on the front of the Mercedes and inquired if there had been an accident. The accused said he stopped because he thought he had a flat tire. The accused then got into the driver’s seat of the Mercedes and drove to an adjacent gas station. Cst. Sommerville noticed that there were two female passengers in the Mercedes.
[8] After the accused drove off Cst. Sommerville ran a computer check on the licence plate number of the Mercedes. He received notification that the vehicle was flagged for an association with firearms and that the vehicle was registered to a female with outstanding firearms charges, who was released on bail with conditions of house arrest. Cst. Sommerville decided to do a traffic stop of the vehicle and investigate whether either of the females in the Mercedes was violating the conditions of a release order.
[9] Cst. Sommerville could see the Mercedes at the adjacent gas station. He observed the driver leave the vehicle, enter the gas station, return to the car and drive off. By the time Cst. Sommerville was able to get out of the hotel parking lot the Mercedes was a considerable distance ahead of him.
[10] Cst. Sommerville followed the Mercedes which he could see in the distance. He did not have his emergency lights activated. When Cst. Sommerville came out of a sharp curve on Luke Road, he noticed that the Mercedes had gone down an embarkment and crashed. Smoke and airbag dust were coming from the vehicle.
[11] The two females exited the passenger side of the Mercedes. They appeared to be in some distress. Cst. Sommerville could see the accused moving about in the driver’s position inside the vehicle.
[12] Cst. Sommerville used his radio to report the accident, to call for back-up and to call for EMS and an ambulance. He told the females to get down behind the car. He yelled for the accused to keep his hands in view. The females were compliant.
[13] The accused then stumbled out of the Mercedes. He was unsteady on his feet and exhibited an odour of cannabis. The accused did not provide identification as requested by Cst. Sommerville but went back into the Mercedes, opened the centre console, and grabbed a clear plastic bag which appeared to contain cannabis. Cst. Sommerville also saw the accused reaching towards a satchel which was sitting on the front passenger seat. Cst. Sommerville testified the accused was wearing a similar satchel when he observed him earlier that evening.
[14] Cst. Sommerville had the accused get out of the vehicle and told him to stand outside the car to wait for paramedics. He also told the accused that he had seen him handle the cannabis.
[15] Acting Sgt. Justin Maguire heard Cst. Sommerville's radio call for back-up at 10:01 p.m. He arrived at 10:02 p.m. After being given a brief background by Sommerville, Maguire took control of the accused. Maguire later arrested the accused, provided rights to counsel and cautions for several offences and eventually transported the accused to the Mississauga O.P.P. detachment. He did not participate in searching the Mercedes and he did not handle any of the exhibits.
[16] Csts. Tuna Boylu, Everilda Ratnakumar and Melanie Cardona arrived on scene between 10:10 and 10:11 p.m. After learning a few details of what had occurred Csts. Boylu and Cardona helped Cst. Sommerville search the Mercedes. Cst. Ratnakumar assisted with other matters and did not participate in the search or handle anything that was seized. Cst. Sommerville told Csts. Boylu and Cardona to advise him of anything they found. He understood that as the investigating officer, anything seized should be given to him.
The Evidence and Findings Relating to Proof of Possession of the Firearm and Extended Magazine
[17] Cst. Sommerville commenced his search of the front passenger area of the Mercedes after Acting Sgt. Maguire took control of the accused but before the other officers arrived on scene. He confined his initial search to the area readily accessible to the driver, as at that time he was searching under the authority of the Cannabis Control Act, 2017, c. 26, Sched. 1. Sections 12(1) and 12(2) of that act prohibits driving or having care or control of a vehicle while cannabis is readily available to the driver. Section 12(3) provides that a police officer may search a vehicle when he or she has reasonable grounds to believe those provisions have been violated.
[18] Cst. Sommerville testified that at approximately 10:07 p.m. he opened the satchel he had seen the accused reaching for on the front passenger seat. He found what he described as a 45 calibre Glock 21 handgun. There was one round in the chamber and there were 12 rounds in the magazine inserted into the grip of the firearm.
[19] At that point Cst. Sommerville yelled "gun". Acting Sgt. Maguire then formally arrested the accused for possession of an unlawful firearm and provided him with his rights to counsel and a caution. From that point the search of the Mercedes proceeded as a search incident to arrest as well as pursuant to the Cannabis Control Act. Csts. Boylu and Cardona arrived and assisted in that search.
[20] Cst. Boylu testified that he began his search around the driver's seat. When he reached under the driver's seat he felt something heavy and rectangular. When he looked under the seat he saw an extended magazine. He retrieved it. He testified that it was a Glock magazine. He said he was familiar with Glocks. The magazine was loaded. The extended magazine was found directly under the driver's seat just behind the seat adjuster.
[21] Cst. Boylu did not make any comment on the calibre of the bullets in the extended magazine. However, Cst. Sommerville described the magazine as for 45 calibre bullets. To the extent that was the result of anything Cst. Sommerville was told, that is hearsay. However, Cst. Sommerville testified that later at the police station he placed the bullets from the magazine inserted in the firearm, the bullets from the extended magazine and the single round he ejected from the firearm at the scene to make the gun safe, into a single evidence bag. I am satisfied that if there had been any difference between the calibre of the bullets in the extended magazine and the handgun I would have heard about it. I note that there was no cross-examination suggesting any difference between the ammunition found in the firearm itself and that found in the extended magazine. I infer that the extended magazine contained 45 calibre ammunition.
[22] I am satisfied beyond a reasonable doubt that the accused was in possession of the firearm and the extended magazine. I accept Cst. Sommerville's evidence that when he first encountered the accused in the hotel parking lot the accused was wearing a satchel with a distinctive red and blue strap. The officer also testified that when he observed the accused entering and exiting the gas station he could see that the accused was still wearing a satchel. The satchel found inside the car during the search, which contained the Glock 21, matched the description of the satchel the accused had been seen wearing earlier. There is no evidence that any other satchel was located during the search of the Mercedes.
[23] Cst. Sommerville's evidence that the accused had been wearing a similar satchel is uncontradicted. It was challenged, however, on the basis that Cst. Sommerville would not have been able to see the blue colour on the strap from his vantage point in the hotel parking lot. Cst. Sommerville was steadfast in asserting that he could see the satchel and the strap very well. He pointed out that the accused was fully illuminated by the headlights of the Mercedes and by the headlights of his police vehicle. When defence counsel suggested in cross-examination that the blue colour on the strap of the satchel could not be seen in the well-lit courtroom from a similar distance away, Cst. Sommerville disagreed. I have no reason to doubt Cst. Sommerville's uncontradicted evidence on these points.
[24] The fact that the accused had been seen wearing a similar satchel shortly before the gun was found is strong circumstantial evidence of both knowledge and control of the firearm found within it, leading to a finding of possession. The accused was also seen to be reaching for the satchel after the accident, just after he handled the bag of cannabis. Significantly, it is also an agreed fact that the two females in the vehicle had no knowledge of the handgun or extended magazine and that the only property they had inside the vehicle was a black backpack found in the rear passenger seat.
[25] Based on a consideration of all the surrounding circumstances, I am also satisfied beyond a reasonable doubt that the accused had both knowledge of and control over the extended magazine. The magazine was found immediately under the driver's seat where the accused was sitting. I find it was loaded with the same calibre ammunition as the firearm was. I have taken into account that the accused was not the registered owner of the Mercedes and that I have no evidence about how or in what circumstances the accused came to be operating the vehicle. I have also considered that the vehicle had been associated with firearms in the past. However, the fact that the accused was wearing the satchel shortly before it was found to contain the firearm and the fact that the extended magazine was immediately under the seat and loaded with the same calibre ammunition in my mind predominates over any concerns I would otherwise have arising from these other circumstances. I find that the accused possessed the firearm and the extended magazine.
Possession of the Fentanyl
[26] I reach a different conclusion concerning proof of possession in regard to the fentanyl. I have no admissible evidence as to where in the Mercedes the fentanyl was found. Neither Cst. Sommerville nor Cst. Boylu found the fentanyl. Cst. Ratnakumar was not involved in the search. By process of elimination, Cst. Cardona was the officer who found the fentanyl. Unfortunately, Cst. Cardona did not testify. Cst. Sommerville did testify that the fentanyl was given to him by Cst. Cardona, adding that Cst. Cardona told him it had been found in a seat pocket on the back of the driver's seat. That evidence is obviously hearsay and a timely objection was made by defence counsel. I am left in a position where I have no evidence about where the fentanyl was found. A scale was also found somewhere in the vehicle. I have no evidence about who found the scale or where.
[27] Given the evidence that the accused was not the registered owner of the vehicle and the complete lack of any evidence as to the nature and degree of any relationship between the accused and the Mercedes or his possible prior use of it, I find myself unable to conclude beyond a reasonable doubt that the accused knew that the fentanyl was in the vehicle. I have not overlooked that it is an agreed fact that the two female passengers had no knowledge of the fentanyl being in the vehicle. In the circumstances, that does not assist the Crown in proving possession on the part of the accused. It remains a reasonable possibility on the evidence that the fentanyl was in the vehicle before the accused assumed control of the vehicle.
[28] I am also aware that an inference of knowledge is available based on the proposition that someone would be unlikely to leave a valuable substance in a vehicle and then turn control of that vehicle over to someone else who was unaware of its presence: R. v. Bains, 2015 ONCA 677, at paras. 157, 174-176. I have taken that into consideration. However, in my view there is such an absence of evidence of relevant circumstances in this case that I cannot conclude that possession is proven beyond a reasonable doubt, even taking the principle referred to in Bains into account. I was the trial judge in Bains. There were several items of circumstantial evidence in that case which, when taken together, demonstrated possession to the jury’s satisfaction.
[29] In this case, I have considered all the evidence but remain in a state of reasonable doubt concerning possession of the fentanyl, largely due to a lack of evidence. There is no other evidence connecting the accused to the drugs. It was not his vehicle. I am far from being able to say that his knowledge of the presence of the fentanyl in the Mercedes is the only reasonable inference to be drawn from the proven facts: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 30, 35-43.
[30] The accused is found not guilty on count 1.
Continuity Issues
[31] There are several gaps in the continuity of the evidence regarding proof that the handgun and extended magazine are respectively a restricted weapon and a prohibited device, and with respect to proof that the substance located somewhere in the vehicle is fentanyl. After briefly setting out the law with respect to the significance of gaps in continuity, I will deal with the accused's submissions regarding the impact the gaps in continuity have in this case with respect to the firearms related offences. Although, I have already found the accused not guilty on count 1 concerning the fentanyl, I will address the continuity issues in respect of the fentanyl as well, as I would also have acquitted the accused on count 1 due to the numerous continuity gaps I will describe.
The Legal Principles Related to Proof of Continuity
[32] Continuity is not something which, like an essential element of an offence charged, must be proven beyond a reasonable doubt. Therefore, gaps in continuity do not necessarily, and frequently will not, be fatal to proof of the Crown's case. Gaps in continuity will only lead to an acquittal where they raise a reasonable doubt about proof of one or more of the essential elements of the crime charged: R. v. Langlois, 2016 ABCA 287, at para. 10; R. v. Nicholson, 2011 ABCA 218, at paras. 12-13; R. v. Murphy, 2011 NSCA 54, at para. 45; R. v. West, 2010 NSCA 16, at para. 130; R. v. DeGraaf (1981), 60 C.C.C. (2d) 315 (B.C.C.A.), at paras. 4-5; R. v. Oracheski (1979), 1979 ALTASCAD 140, 48 C.C.C. (2d) 217 (Alta. C.A.); R. v. Labreche (1972), 9 C.C.C. (2d) 245 (Ont. C.A.); Regina v. Dawdy and Lamoureaux, [1971] 3 O.R. 282 (C.A.).
The Firearms Related Offences
[33] Counts 8, 10 and 11 of the indictment charge the accused with various firearms offences contrary to ss. 92(1), 94 and 95(1) of the Criminal Code. In addition to proof of possession of the firearm, each of these offences requires proof beyond a reasonable doubt that the firearm the accused possessed was a "restricted firearm" as defined by the Criminal Code. Without elucidation of all the technical requirements to prove that a handgun is a restricted firearm, it is clear from the definition of firearm in s. 2, the definition of a restricted firearm in s. 84(1) and the description in s. 84(3)(d) of what is excluded as a firearm for certain purposes, that the Crown must lead evidence that the seized firearm meets several technical parameters. Expert evidence from a firearms officer, as defined in s. 84(1) of the Criminal Code, is how the Crown proposed to do that in this case.
[34] Count 13 charges the accused with being in possession of a prohibited device, to wit: a 25-round magazine, knowing that he was not the holder of a licence to possess it. It is an essential element of the offence that the extended magazine constitutes a prohibited device. "Prohibited device" is a defined term under s. 84(1) of the Criminal Code. Prohibited devices include a "cartridge magazine that is prescribed to be a prohibited device." What constitutes a prohibited device is dependent on establishing certain things of a technical nature as provided by s.3 of Regulation SOR/98-462.
[35] One of the things that must be established is that, in the case of a magazine, it can hold more than 10 cartridges. I find that has been proven by the evidence of Csts. Somerville and Boylu, which I accept. My finding in that regard does not depend upon the certificate evidence of the firearms officer.
[36] However, the regulation goes on to require that those cartridges be “of the type for which the magazine was originally designed or manufactured for use in a semi-automatic handgun that is commonly available in Canada.” I do not have any evidence, apart from the documentary evidence of the firearms officer, to establish these requirements.
[37] It is apparent that evidence is required from which the court can find beyond a reasonable doubt that the handgun is a "restricted firearm" and that the magazine is a "prohibited device" within the meaning of the definitions referred to above. In the case at bar, Crown counsel relies upon a Certificate of Analysis prepared by the firearms officer, which is admissible pursuant to s. 117.13 of the Criminal Code to provide proof of the several technical requirements I have mentioned. Crown counsel also relies on the firearms officer's typed and handwritten notes, and on accompanying photographs of the handgun which was tested, and the extended magazine which was examined. These were filed as exhibits on consent as proof of the facts asserted in the documents.
[38] Based on the Certificate of Analysis and notes there is no doubt that the handgun and the extended magazine that were examined by the firearms officer satisfy the requirements of the Criminal Code as a restricted firearm and a prohibited device respectively. However, the accused has raised a serious issue concerning whether it can be said that the handgun and the extended magazine that were tested and examined are the same items that were seized from the accused. In the circumstances of this case, failure to establish that the items seized and the items tested and examined by the firearms officer are one and the same leads to a failure to prove that the handgun the accused possessed is a restricted firearm and a failure to prove that the extended magazine he possessed is a prohibited device.
[39] There are several difficulties with the chain of proof, the continuity, of the handgun and extended magazine, which are raised by the defence.
[40] Cst. Sommerville testified that as items were found during the search of the Mercedes they were placed in numbered evidence bags. Those bags all ended up in his police vehicle. Although he could not recall whether he transported all of them, he recalled that he did transport the handgun and the extended magazine and that he saw all the exhibits sitting on a table in the "Constables’ Room" at the Mississauga detachment. He said he was present in that room doing paperwork. When he left the room briefly, he asked a detective to watch the exhibits.
[41] When he returned, Cst. Sommerville said he dealt further with the handgun and the extended magazine. He took the items out of their numbered evidence bags. He removed all the ammunition from the magazines. He testified that he placed the handgun in a box and the other items in an evidence bag. He then put them into what he described as a locked "cubby" and dropped the key for it in a depository for the vault manager. The evidence of Cst. Sommerville and Cst. Ratnakumar, taken together, establishes that from that point on it was up to the vault manager to process the exhibits. In other words, it would be the vault manager's responsibility to arrange for any testing or expert examination of the handgun and extended magazine.
[42] The vault manager was not called as a witness and no evidence was led as to what happened to the firearm and extended magazine or how they were stored or dealt with thereafter.
[43] Very significantly, in my view, the notes of the firearms officer, T. Sutton, indicate that the handgun and extended magazine which he tested and examined did not come into his possession until June 21, 2023. That is one year and seven months after the items were placed in the locked cubby at the Mississauga O.P.P. detachment by Cst. Sommerville. I have no evidence at all about how these items were dealt with or stored over those 19 months.
[44] In addition, the firearms officer’s notes say he obtained the items by picking them up from the Toronto O.P.P. detachment. The evidence before me is that the items were lodged by Cst. Sommerville at the Mississauga O.P.P. detachment. I have no evidence that these are the same detachment. On the face of the evidence, they are different locations. I also note that the firearms officer’s notes specify that he removed two firearms boxes from “locker #2” at the Toronto Detachment. Cst. Sommerville testified about putting one firearms box, the extended magazine and the ammunition into “locker #3” at the Mississauga detachment. The firearms officer’s notes went in on consent as evidence to prove the truth of their contents.
[45] According to the notes, each of the firearms boxes had an occurrence number written on it. The box that contained the firearm that was tested in relation to this case had the occurrence number for this case on it. It also had Cst. Sommerville’s name and badge number on it. This is evidence which is relevant to the issue of the significance of the gap in continuity. If I had some evidence that Cst. Sommerville wrote that occurrence number and/or his name and badge number on the box he put the handgun into, that would be of considerable assistance. However, Cst. Sommerville gave no such evidence. He just said he boxed the firearm and put the box and related items into locker #3 and deposited the key for the vault manager.
[46] It is also of assistance to the Crown that the handgun seized from the accused and the handgun ultimately tested by the firearms officers are both described as a “Glock 21 Gen 4”. This would be of greater assistance to the Crown’s case if the handgun and extended magazine had been picked up for testing in close temporal proximity to the seizure. Common sense suggests that it is unlikely that a particular detachment of the O.P.P. would seize more than one Glock 21 Gen 4 handgun and an extended magazine within a relatively short period of time. However, as I have mentioned, there is a period of 19 months involved here and, based on the only evidence I have, two different O.P.P. detachments are involved. I have no idea how or when the items were moved between the detachments or by whom. I do not know who wrote the occurrence number or Cst. Sommerville’s name or badge number on the box or whether it was written on the correct box. While I have considered the fact that both a Glock handgun and an extended magazine were seized, I must say that, regrettably, finding extended magazines together with handguns is not that uncommon, based on the many illegal firearms possession cases this court deals with.
[47] I also observe that the handgun that the firearms officer tested in relation to this case had a serial number prominently visible in three different locations, as displayed in the photographs taken by the firearms officer. Unfortunately, Cst. Sommerville gave no evidence about the serial number on the handgun he seized, nor whether it even had one.
[48] It is most unfortunate that the vault manager or some other officer was not called to address these problems. Early in the trial I asked defence counsel if there were any issues relating to continuity of the firearm and extended magazine. Counsel advised that continuity was in issue.
[49] After considering all of the circumstances, I have come to the conclusion that this is one of the exceptional cases where the gaps in continuity are of such significance that I am unable to say that I am satisfied beyond a reasonable doubt that the handgun the accused was in possession of has been proven to be a restricted weapon or that the extended magazine seized has been proven to be a prohibited device. The accused is found not guilty on counts 8, 10, 11 and 13.
[50] I note that counts 2, 3, 4, 5, 6, 7, 9 and 12 of the indictment were previously withdrawn at the request of the Crown. All the counts on the indictment on which the trial was held have been dealt with.
Continuity Problems Related to the Suspected Fentanyl
[51] Although I have found the accused not guilty of possession of fentanyl for the purpose of trafficking for other reasons, I wish to note that I would also have found him not guilty due to failure of proof based on continuity problems concerning the testing of the suspected fentanyl. I will briefly address the gaps in continuity.
[52] All the seized items, including the suspected fentanyl were placed on a table in the Constables’ Room. Cst. Ratnakumar testified that she and Cst. Cardona processed and weighed the suspected fentanyl in the sallyport of the detachment. Cst. Ratnakumar testified that it was Cst. Cardona who went to retrieve the drugs and brought them to the sallyport. However, Cst. Cardona did not testify. There is no evidence where she got the drugs from for processing or that they were the substance seized from the Mercedes.
[53] Cst. Ratnakumar said that she and Cardona examined a grey plastic bag which contained five clear bags which each contained purple rocks suspected to be fentanyl. The officers emptied the bags into one pile which they weighed as 228 gms. They then removed a 5.6 gm sample for testing. However, rather than putting that sample into a numbered Health Canada envelope to be sent for testing, they put the sample into an O.P.P. evidence bag and sealed it. Cst. Ratnakumar said that Cst. Cardona then took that sample from the sallyport and later told Cst. Ratnakumar that she had placed it into an evidence locker. As mentioned, Cst. Cardona did not testify. There is no admissible evidence as to what Cst. Cardona did with the sample. Cst. Ratnakumar testified that she assumed that the sample for testing was put into an evidence locker and that the key was deposited so that the vault manager could further deal with the sample and send it for testing. As previously mentioned, the vault manager did not testify.
[54] If I had evidence that the sample taken by Csts. Ratnakumar and Cardona had been placed into a numbered Health Canada envelope before Cst. Cardona left with it, the Certificate of Analysis (Exhibit 6) would prove that the sample contained fentanyl, as the certificate refers to the envelope number. However, on the evidence, it was the vault manager who would be responsible for transferring the sample prepared by Ratnakumar and Cardona into a numbered Health Canada envelope. The vault manager did not testify. I have no evidence that the sample prepared in the sallyport was ever placed into a Health Canada envelope, let alone of the number of the envelope it was placed into. Consequently, it is impossible to conclude that the substance tested and found to contain fentanyl was the substance seized from the Mercedes.
[55] I would also have found the accused not guilty on count 1, possession of fentanyl for the purpose of trafficking based on a failure to prove that the substance seized from the Mercedes was indeed fentanyl.
Concluding Comments
[56] All the officer’s who testified in this case appeared to me to be credible and well intentioned. However, except for Acting Sgt. Maguire, they were all relatively inexperienced. It seems to me that witnesses were likely available to fill the gaps, but they were not called to give evidence.
Justice F. Dawson
Released: December 8, 2023