COURT FILE NO.: CR-22-50000441-0000
DATE: 20240108
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
KEYSHAWN GRANT and MAVERYK DARLING
Sharna Reid, for the Crown
Marianne Salih, for Keyshawn Grant
Fiona McNestry for Maveryk Darling
HEARD: November 15, 16, 17, 20, 21, 22, 24, 27, 28, 2023
DINEEN J.
[1] Mr. Grant and Mr. Darling are charged with offences relating to two handguns found in a rented Hyundai Elantra. Mr. Grant is also charged with failing to comply with a recognizance that required him to remain under house arrest.
[2] The police arrested the two defendants and a third former co-accused, Jonathan Prevost, while they were sitting in the Elantra while it was parked in a shopping plaza on May 21, 2022. The two guns were found in two separate closed black satchels in the back seat area of the car – one a small Nike brand satchel on the floor of the rear driver’s side seat, and the other a larger Patagonia brand satchel sitting in the middle of the car’s back seat. Both guns were loaded with oversized magazines and both had a round in the chamber.
[3] The Crown led evidence of police surveillance of the vehicle leading up to the arrest and of DNA evidence linking Mr. Grant to both guns and linking all three men to the gun in the Nike satchel. The main issue is whether the Crown has proven beyond a reasonable doubt that either defendant had knowledge and/or control of either of the guns. A secondary and contingent issue is whether the gun in the Patagonia satchel, which was damaged and incapable of being fired when it was seized, is a “firearm” within the meaning of the Criminal Code.
The Evidence
The rental of the car
[4] The car in which the accused were arrested was rented by Karyssa Rilley on May 14, 2022, a week before the arrests. Ms. Rilley testified that she rented the car on behalf of Mr. Grant, who gave her money to pay for a week-long rental. According to Ms. Rilley, Mr. Grant told her that he needed the car to go out of town but did not tell her anything more specific about why he wanted her to rent it.
[5] Surveillance video from the car rental office shows that Ms. Rilley was accompanied by Mr. Grant and Mr. Prevost when she arranged the rental. Both men were wearing black satchels at the time. The satchel worn by Mr. Grant appears to be a Tommy Hilfiger brand satchel.
[6] The rental agreement does not list any secondary drivers of the car and only gives Ms. Rilley’s information. Ms. Rilley testified that once the car was rented, Mr. Grant drove her in it to her own vehicle and let her out. She never saw the car again. She left nothing in the car and denied any knowledge of guns found there. She expected Mr. Grant to return the vehicle to the rental company by May 21 as required by the contract.
The surveillance on May 21, 2022
[7] The arrests of the accused followed several hours of police surveillance on the Hyundai Elantra. The police were seeking to arrest Mr. Grant on a bench warrant and believed him to be associated with the Elantra, which they located in the driveway of 8 Gulfbrook Circle, a semi-detached residence in Brampton. Officers were assigned to travel to that address and observe the car at 4:25 p.m. on May 21.
[8] At 6:05 p.m., D.C. Hassan Syed saw two men leave the residence and get into the car. The men were later identified as Mr. Prevost, who got into the driver’s seat, and Mr. Darling, who sat in the front passenger seat. Mr. Prevost was carrying a satchel across his chest.
[9] At 6:07 p.m., the car drove away from the residence and was followed by police officers doing covert surveillance. The car went to Trinity Common Mall at 210 Great Lakes Drive in Brampton. The two men left the car and went into a Subway restaurant. At 6:36 they went to a Harvey’s restaurant near the Subway.
[10] The two men were photographed by D.C. Syed at the Mall. The photo of Mr. Prevost shows a satchel clearly visible on his person. It appears to be the black Nike satchel that would later be seized by the police. D.C. Syed could not recall if he took this photo while the men were walking from the car to the Subway, or from Subway to Harvey’s.
[11] D.C. Syed also testified that at some point at the Trinity Common Mall, he saw Mr. Darling carrying a black Nike satchel across his left shoulder. He had no note and no memory of Mr. Prevost holding a satchel at this time. D.C. Syed testified that he was about 25 feet away from Mr. Darling at the time and the men were walking between cars so his view was sometimes obstructed.
[12] At 6:45 p.m., the men came out of the Harvey’s, both empty-handed, and returned to the car and drove away. They stopped briefly at a nearby gas station and Mr. Prevost entered the store and returned, not carrying a satchel. The car then returned to 8 Gulfbrook with Mr. Prevost continuing to drive.
[13] D.C. Matthew Ellis testified that he saw the Elantra return, do a U-turn, and then park across the street from the residence. Mr. Prevost left the driver’s seat and went to the trunk at 7:02 p.m., and three minutes later Mr. Grant came out of the house and brought red and black bags to the car’s trunk. He briefly returned to the house and then emerged again with more items including a larger black satchel he wore across his chest. He put the other property into the trunk, and then got into the back passenger’s side seat of the car still wearing the satchel over his shoulder and under his armpit.
[14] The car left the residence and the officers followed it on a roundabout route through Brampton that ended with a return to 8 Gulfbrook at 7:20 p.m. It left again and was followed to a commercial plaza at 2257 Islington Ave. The three men left the car and went into a nearby Fresh Value store. Surveillance video from the store captures their entrance. Mr. Prevost appears to be carrying the black Nike satchel. Neither Mr. Grant nor Mr. Darling can be seen with a satchel.
[15] Mr. Grant left the store before the other two men. He returned to the car and sat in the driver’s seat. The police at this time resolved to arrest Mr. Grant and Mr. Prevost and detain Mr. Darling (whose identity they had not yet determined) as soon as all three men were in the car[^1].
[16] The arrests were captured by surveillance video of the plaza’s parking lot. The police moved in very rapidly after Mr. Darling and Mr. Prevost returned to the car at 7:51 p.m., with Mr. Darling returning to the front passenger seat and Mr. Prevost entering the back seat on the passenger side still carrying the Nike satchel. Unmarked police cars quickly blocked the Elantra and officers converged on foot and removed the three men from the car within seconds. All were cooperative.
The search of the vehicle
[17] After the three occupants of the car were removed, officers began to search incident to arrest. Nothing of significance was found on the person of any of the three men. At 7:52 p.m., officers began to search the car.
[18] D.C. Perilli searched the passenger’s side back seat and found a large black Patagonia brand satchel. He was wearing gloves and testified that the satchel was the first item he touched. He opened it and found a Glock .40 calibre pistol, which was loaded with a round in the chamber. He put the gun on the roof of the car for photos to be taken and then returned it to the satchel. The satchel was placed into a paper bag for transport to the police station. It also contained a black glove and a number of marijuana packages.
[19] D.C. MacDonald searched the rear driver’s side of the car and saw a black Nike satchel sitting on the floor on top of a brown paper shopping bag and an orange grocery bag. He opened the satchel and found a black and grey Springfield Armoury pistol, which was loaded and had a round in the chamber.
[20] He placed the gun, magazine, and loose bullet on the roof of the vehicle where it was photographed by D.C. Rogers and then he returned it to the satchel. Also in the satchel in a separate pouch was a wallet containing multiple pieces of identification in Mr. Prevost’s name.
[21] D.C. MacDonald was wearing gloves when he handled these items. He placed the satchel in a property bag for transportation to the police station. He testified that he also searched other items in the back seat including the bags on the floor and may have touched clothing on the back seat. He believed that he touched the satchel first, testifying that his unit frequently finds guns in satchels and so his attention was drawn there first. Surveillance video from the plaza appears to show him picking up the orange grocery bag, which had clothing in it, and removing items from the brown shopping bag while the gun was on the roof of the car being photographed and before he returned it to the satchel and put it in a property bag.
[22] The back seat and trunk contained a number of bags with personal items including clothing. The brown shopping bag on the floor of the back seat on the driver’s side also contained a box labelled “Hornady critical defence” that appears to have contained cartridges. Some of the ammunition in both of the guns seized from the car was this brand.
[23] A black Tommy Hilfiger satchel was found in the footwell of the driver’s seat when the car was searched the following day at a TPS depot pursuant to a warrant. Inside was money totalling $1340 and personal items including a key and a driver’s license in the name of Jadon Charles Montgomery.
[24] A loose bullet was also found. It appears to have been under the floor mat of the back seat on the driver’s side.
The condition of the Glock handgun found in the Patagonia satchel
[25] Benjamin Sampson, who works at the Center for Forensic Sciences, testified as an expert in the examination, comparison, and identification of firearms and ammunition and their components. He examined the Glock handgun found in the Patagonia brand satchel and testified that it was immediately apparent to him that the gun’s slide was incomplete. He identified three missing pieces: the extractor plunger, the firing pin channel line, and the slide cover plate. The extractor plunger is not necessary to enable the gun to fire, but without the other two pieces the gun was not in firing condition.
[26] In order to make the gun operable, Mr. Sampson retrieved the three missing parts from CFS’s reference collection and installed them into the gun’s slide. He testified that this took less than five minutes and that the only tool he used was a punch, a metal tool similar in size to a pen, which he used for leverage to push the extractor rod into the channel.
[27] Mr. Sampson then test fired the gun into a water tank. While this model of firearm is designed to function as a semi-automatic, he found that it was only operating as a single shot pistol because the barrel was damaged and a bulge was preventing the slide from moving all the way to the rear to load the next round from the magazine after a shot was fired, forcing him to load each round manually. He would normally fire three test shots but stopped after two for safety reasons because he believed there was a risk the damage could cause the barrel to break apart when the gun was fired. The damage from the barrel would not affect the muzzle velocity.
[28] Mr. Sampson tested that he searched the online availability of the three missing parts on October 25, 2023 and found that they could all be bought for less than $30. The extractor plunger was out of stock on sites that sold it individually but there are also complete slide part kits available on Canadian and American websites that would include all the missing parts. The parts would be shipped out between one and three business days after they were ordered and could be delivered to Canada. While Mr. Sampson could not comment on anyone else’s ability to repair the slide, he testified that there are several videos on Youtube that correctly show how to completely assemble a Glock slide in less than six or seven minutes.
[29] Mr. Sampson testified that the Glock otherwise met the definition of a prohibited firearm and that the magazine was a prohibited device. These conclusions were not challenged.
The DNA evidence
[30] The two seized guns were sent to CFS for examination. No fingerprints were located on either. A swab was taken of the grip and slide area of each of the two guns and sent for DNA testing.
[31] Tricia Miller, a biologist at CFS, gave expert evidence at trial. She examined the swabs taken from each of the guns. The swab from the Springfield Armory gun found in the Nike satchel had a mixed profile from at least four people including at least one male. She compared the profile to known profiles of each of the three men in the car and none could be excluded as a contributor to the mixed profile.
[32] Ms. Miller presented a statistical assessment of the likelihood that each man was a true contributor to the sample. She testified that it is 12 million times more likely that the sample originates from Mr. Grant and three unknown persons than that it originates from four unknown and unrelated people. It is 7.6 million times more likely that the sample originates from Mr. Prevost and three unknown persons than that it originates from four unknown and unrelated people. It is 7500 times more likely that the sample originates from Mr. Darling and three unknown persons than that it originates from four unknown and unrelated people.
[33] The swab from the Glock handgun found in the Patagonia satchel had a mixed profile from at least three people including at least one male and one female. Mr. Grant could not be excluded as a contributor, and it is 48 trillion times more likely that it originates from him and two unknown persons than from three unknown persons unrelated to him. Ms. Miller testified that she excluded Mr. Darling as a contributor and her analysis supported a finding that Mr. Prevost was not a contributor.
[34] Ms. Miller testified that transfer of DNA can occur through direct contact between a person and a surface, or indirectly through an intermediary that might be another person or a surface. DNA can also be transferred through two or more intermediaries, though the more steps that must take place, the less likely transfer is to occur. It is impossible to tell from the amount of DNA detected what the mechanism of transfer was.
[35] Any time there is contact between two surfaces, there is the opportunity for transfer to occur. Transfer is more likely where a wet bodily fluid comes into contact with a surface. The duration of contact and the amount of pressure or friction involved, and whether the surface is rough or smooth, are also factors affecting the likelihood of transfer.
[36] Airborne DNA transfer may also take place from sneezing, coughing, or talking. Ms. Miller testified that it is possible for a person to deposit someone else’s DNA onto a surface without leaving a detectable amount of their own DNA, particularly if they had another person’s bodily fluid on their hand. Ms. Miller agreed that persons coming into contact with the same items can create a chance of transfer, particularly where contact with bodily fluids occurs. She agreed that eating and drinking together or sharing a marijuana joint could be activities creating a possibility of transfer through contact with wet saliva.
[37] Ms. Miller described the procedures CFS has established to avoid contamination. These include changing gloves between handling different items, wearing masks when in the lab, not putting items in contact with the same surface without cleaning, and storing items in separate sealed containers. She testified that testing procedures today are very sensitive and can detect minuscule amounts of DNA.
The defence evidence
[38] Mr. Grant led evidence of security videos from the Eaton Centre from May 20, 2022, the day before the arrests. These videos had been seized by the police. The portions of the videos that were played focused on four men who can be seen coming down escalators together and leaving by the south exit of the building and travelling west on Queen Street. A further video depicts a white car driving north along the west side of the Eaton Centre minutes later.
[39] The defence submits that one of the men in the video is recognizable as Mr. Grant and invites me to concur in this assessment pursuant to R. v. Nikolovski 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197. Another man has a build similar to Mr. Prevost’s and is wearing shoes that resemble the ones he wore at the time of his arrest. This man also has a black satchel on his right hip and is carrying a brown Nike brand shopping bag very similar to the one found by the arresting officers in this case in the back of the Hyundai Elantra which contained the Hornady ammunition box. The defence further submits that I can infer that the white car on the video is the Hyundai Elantra in question and that the four men entered it and drove away, supporting the defence position that any number of unknown persons may have been in the car during the week it was in the apparent possession of Mr. Grant and Mr. Prevost. The defence submits that a police car can be seen following behind the white car, and notes that there is evidence that Mr. Grant came to the attention of the police on this date.
[40] While I did hear narrative hearsay from police officers linking Mr. Grant to the Eaton Centre on May 20, 2022, and indicating that some event took place giving them grounds to arrest him, there is no such evidence that was admitted for its truth and I cannot place substantive reliance on this body of evidence. The men in the video undoubtedly resemble Mr. Grant and Mr. Prevost in the ways counsel submit. Nonetheless, I would not be confident in identifying them without placing improper reliance on the hearsay evidence from the police. This holds even more true for the white car on the video, which is not at all distinctive. Accordingly, I do not rely on these videos for any purpose.
Legal principles
The burden and standard of proof
[41] The burden of proof lies on the Crown. It requires proof of the essential elements of the offences charged beyond a reasonable doubt. While the Crown is not required to meet the impossibly high standard of proof to an absolute certainty, proof beyond a reasonable doubt falls much closer to absolute certainty than it does to proof on a balance of probabilities.
Possession
[42] While there is some evidence of each of the accused directly carrying a satchel with a firearm, the Crown’s case also rests on an allegation of constructive possession. Jamal J.A., as he then was, outlined the principles relevant to constructive possession in R. v. Choudhury 2021 ONCA 560, as follows:
• Constructive possession is established when an accused does not have physical custody of an object but knowingly has it in the actual possession or custody of another person or has it in any place for their own or another’s use or benefit: Criminal Code, s. 4(3)(a); R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17; and R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 47.
• Knowledge and control are essential elements of constructive possession, which is established when the Crown proves beyond a reasonable doubt that the accused: (i) has knowledge of the character of the object said to be possessed; (ii) knowingly puts or keeps the object in a particular place, whether or not the place belongs to or is occupied by the accused; and (iii) intends to have the object in the place for the use or benefit of the accused or another person: Morelli, at paras. 15, 17; Lights, at paras. 44, 47.
• Tenancy or occupancy of a place where an object is found does not create a presumption of possession: Lights, at para. 50; R. v. Watson, 2011 ONCA 437, at para. 13; R. v. Lincoln, 2012 ONCA 542, at paras. 2-3; and R. v. Bertucci 2002 CanLII 41779 (ON CA), 169 C.C.C. (3d) 453 (Ont. C.A.), at para. 18.
• When the Crown relies largely or wholly on circumstantial evidence to establish constructive possession, a conviction can be sustained only if the accused’s knowledge and control of the impugned objects is the only reasonable inference on the facts. The trier of fact must determine whether any other proposed way of looking at the case as a whole is reasonable enough to raise a doubt about the accused’s guilt, when assessed logically and in light of human experience and common sense: see R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56; Lights, at para. 39; and R. v. Stennett, 2021 ONCA 258, at paras. 60-61.
Circumstantial evidence
[43] Neither Mr. Grant nor Mr. Darling was seen directly in contact with either of the firearms referred to in the indictment. The Crown’s case rests instead on circumstantial evidence. The correct approach to circumstantial cases was outlined by the Supreme Court of Canada in R. v. Villaroman 2016 SCC 33. A trier of fact must consider whether the circumstantial evidence gives rise to reasonable inferences other than guilt. Such innocent inferences do not need to be based on proven facts and the trier of fact must consider other plausible theories which are “reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.” To prove guilt, the Crown must disprove such reasonable possibilities, but does not need to disprove every possible conjecture which might be consistent with the innocence of the accused.
Conclusions
Counts 1-3: the Springfield Armoury handgun and the oversized magazine found in the Nike satchel
[44] Both Mr. Grant and Mr. Darling are charged with knowing that this prohibited firearm was present with them in the Hyundai Elantra and with possession of the gun and of the oversized magazine, a prohibited device.
[45] The obvious inference from the evidence is that this gun is primarily associated with Mr. Prevost. Not only was his DNA found on the swab taken from its grip and slide, but his identification was present in the satchel in which it was discovered, and he was observed carrying the satchel on the day the car was rented, frequently during the police observations of May 21, 2022, and when he entered the car immediately before his arrest.
[46] Mr. Grant was not seen in close proximity to the Nike satchel with this particular gun and there is no evidence the gun was ever openly displayed in the car or elsewhere. The main foundation of the Crown’s case against him on these counts is that he was also a contributor to the mixed DNA sample found on the gun.
[47] The most likely explanation for the presence of his DNA is that he directly handled the gun at some point and had some shared ownership or control of it with Mr. Prevost, with whom he appears to have been closely connected.
[48] However, without any other evidence connecting him to the gun or the Nike satchel containing it, I cannot reasonably exclude the possibility that his DNA may have been transferred through contact with Mr. Prevost in the residence they were both seen exiting or the car they appear to have shared during the previous week. I agree with Ms. Salih that it is reasonably imaginable that Mr. Prevost may have come into contact with Mr. Grant’s bodily fluids while sharing food or marijuana cigarettes made from the materials found in the car. I can infer that Mr. Prevost handled the gun given its presence in the Nike satchel that he was carrying on the day in question with his wallet inside and the presence of his own DNA. This provides a reasonably possible route for indirect transfer of Mr. Grant’s DNA.
[49] I am not satisfied beyond a reasonable doubt that Mr. Grant had knowledge or control of the items in the Nike satchel and he will be found not guilty of counts 1 -3.
[50] The case against Mr. Darling on these counts is stronger because of the evidence of D.C. Syed that he saw Mr. Darling carrying the Nike satchel at one point at the Trinity Common Mall.
[51] His evidence about the point at which he made this observation was not entirely clear. He seemed to testify initially that this was when Mr. Prevost and Mr. Darling were walking between the Subway restaurant and the Harvey’s restaurant. However, later he testified that he might have taken the photos introduced as exhibits 14A and 14B at this very time. Those photos depict Mr. Prevost with the satchel, with is consistent with all of the other police observations and video surveillance and the personal items found inside. D.C. MacLean also testified to seeing the two men between the Subway and the Harvey’s, and saw Mr. Darling well enough to see the writing on his shirt. He noted no satchel at this time.
[52] I am amply satisfied that Mr. Darling had knowledge of the handgun in the Nike satchel on a balance of probabilities. I cannot though exclude the possibility that his DNA was transferred indirectly to the gun through Mr. Prevost or otherwise and that either D.C. Syed was mistaken about which then-unknown man was carrying the Nike satchel on the one occasion he thought Mr. Darling had it, or that Mr. Darling briefly picked up Mr. Prevost’s satchel without knowledge of its contents. I conclude that the Crown’s case falls just short of proof beyond a reasonable doubt and find Mr. Darling not guilty on counts 1-3.
Counts 4-6: the Glock handgun and oversized magazine found in the Patagonia satchel
[53] Both Mr. Grant and Mr. Darling were charged with the same three offences relating to the gun and magazine found in the Patagonia satchel. Mr. Darling however was excluded as a contributor to the mixed DNA sample found on the gun and was never seen in close proximity to the satchel, which was in the back seat of the car while he was always seated in the front during the period the car was observed. Ms. Reid accordingly fairly conceded that these counts were not proven against him beyond a reasonable doubt. I agree and Mr. Darling will be found not guilty.
[54] There is more evidence tying Mr. Grant to this gun. Uniquely among the three men in the car, he cannot be excluded as a source of DNA found on it with a high degree of confidence. The Crown also submits that the satchel that D.C. Ellis saw Mr. Grant carry to the back seat of the car was the Patagonia satchel.
[55] Ms. Salih argues that the evidence is consistent with D.C. Ellis having seen, not the Patagonia satchel, but the Tommy Hilfiger satchel associated with Mr. Grant and found near the driver’s seat where Mr. Grant was sitting when he was arrested. He sat alone in the car in the driver’s seat for a time before he was joined by the other two men and could have retrieved this satchel from the back at this time. She notes that this would accord with there being three satchels and three men in the car, with a reasonable possibility that the Patagonia satchel was Mr. Darling’s, the Nike satchel Mr. Prevost’s, and the Tommy Hilfiger satchel which was the only one without a gun belonging to Mr. Grant.
[56] D.C. Ellis described the satchel he saw as a “larger” satchel. I would not characterize the Tommy Hilfiger satchel that way, but D.C. Ellis was cross-examined and re-examined about his own perception. In cross-examination, D.C. Ellis was shown a still from the car rental video showing Mr. Prevost carrying what appears to be the Nike satchel and Mr. Grant carrying the Tommy Hilfiger satchel. He agreed both that the Tommy Hilfiger satchel was larger than the satchel carried by Mr. Prevost in the image, and then also agreed that it was a larger size satchel “in general.” In re-examination, the officer was directly asked to compare the size of the Tommy Hilfiger satchel to the one he saw Mr. Grant carrying. He first claimed a lack of memory about what he had seen and then said he believed the satchel he saw was larger and carried higher on the body than the Tommy Hilfiger satchel as depicted in the image.
[57] I conclude that I can put little weight on D.C. Ellis’s attempts to recall what he saw at trial long after the relevant events. His agreement that the Tommy Hilfiger satchel is “larger in general” is on its face very helpful to the defence theory. However, it was elicited in an effective but very suggestive way and I question whether he would have described the satchel that way unprompted and without the invitation to first compare it to a smaller satchel. His re-examination evidence that the satchel he saw was larger and carried higher than the Tommy Hilfiger satchel seems consistent with his description but is undermined by his admission of a poor memory. I conclude that the only reliable evidence of what he saw is the contemporaneous description that he noted and relayed to other officers at the time – that he saw a larger satchel carried chest-to-chest and under the armpit – without regard to his attempts many months later at trial to clarify or explain what he meant.
[58] Both the Patagonia and Tommy Hilfiger satchels were made exhibits and I have closely examined them. I agree with Ms. Reid that D.C. Ellis’s description is consistent with the Patagonia satchel and not with the Tommy Hilfiger satchel, which is substantially smaller with a longer strap such that it would naturally be carried closer to the hip and not under the armpit. This also accords with the video showing Mr. Grant wearing the Tommy Hilfiger satchel.
[59] Considering D.C. Ellis’s description and the fact that the Patagonia satchel was found in the backseat directly next to where Mr. Grant got in the car while the officer was watching him, I am satisfied that D.C. Ellis saw Mr. Grant carry this satchel to the car.
[60] I am also satisfied beyond a reasonable doubt that Mr. Grant had knowledge and control of its contents. The alternative would be that he both carried this satchel to the car and sat with it without knowing that the gun was inside and that his DNA made its way on to the grip or slide area of the gun through indirect transfer arising from either the police handling of the gun or some other person or surface. In my view this theoretical possibility falls outside the boundaries of reasonable alternative inferences and into the realm of unsupported conjecture.
[61] The other issue affecting Mr. Grant’s liability for the offences relating to the Glock is whether it is a “firearm” within the meaning of the Criminal Code given the fact that it was not in firing condition.
[62] The definition of “firearm” in s. 2 of the Criminal Code reads:
firearm means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm.
[63] The leading case on interpreting this definition is the Supreme Court of Canada’s decision in R. v. Covin and Covin 1983 CanLII 151 (SCC), 8 C.C.C. (3d) 240 (S.C.C.). In that case, Lamer J. for the court held that it will depend on the particular offences charged how easily adaptable an object must be to be to be capable of firing and causing serious bodily injury in order to fall within this definition.
[64] For a charge of using a firearm in the commission of another offence, the alleged firearm must be capable of being fired and causing serious injury in the course of the offence or during flight from that offence. However, for the offence of possession of a firearm, the definition is more expansive. In R. v. Grant, 2006 CanLII 6209 (Ont. S.C.), Stinson J. summarized a number of decisions on this subject as follows:
The cases reviewed above suggest that where the evidence establishes that a gun can be made operational through the straight forward installation of readily available parts in a relatively short period of time, the courts are disposed to find it to be a firearm for purposes of the offence of possession. By contrast, where the effort to make the gun operational requires special expertise, considerable time, or parts that are not readily available, the courts are less disposed to find it to be a firearm for purposes of that offence.
[65] Count 4 charges Mr. Grant with being present in a motor vehicle knowing that a firearm was present contrary to s. 94(1) of the Criminal Code. While this offence is labelled “unauthorized possession in motor vehicle,” its scope is broader than ordinary possession because the Crown is not required to prove the element of control, and this offence potentially captures persons who may have little connection to the firearm in question.
[66] The only case that I was referred to that expressly considers the application of Covin to s. 94(1) is Hill J.’s decision in R. v. McKennon [2004] O.J. 5020 (S.C.J.). He concluded that:
In looking at the parliamentary purpose and objective of the offences alleged in counts three and four involving respectively transport and being an occupant of a motor vehicle, I take into account that there is some temporal restraint implicit in both of these offences unlike the offence of possession of a firearm which had more indefinite borders. It seems to me to make logical sense of the purpose of Parliament, one had to look at the issue of adaptability during the course of either the transport of the firearm or the currency of being an occupant of a motor vehicle.
[67] Given the broad potential scope of s. 94(1), I agree with this conclusion. In the case at bar, on the evidence the Glock firearm was not capable of being repaired and made operational in the vehicle in which it was found because the required parts were not present. Accordingly, Mr. Grant is not guilty of count 4.
[68] Ms. Salih submits that McKennon also supports an acquittal on count 5, which charges the possession of a prohibited firearm that is loaded or stored with readily available ammunition contrary to s. 95(1). However, the facts of McKennon are substantially different from this case. The ammunition in that case was incapable of being discharged from the seized firearm because of its size. In this case, the gun was loaded and the bullets inside could be fired with relatively straightforward repairs to the gun.
[69] The defence position is however supported by the second case relied on by counsel: R. v. Vader 2012 ABQB 288, in which Ross J.C.Q.B.A. reviewed a series of cases holding that s. 95(1) is directed at the immediate threat posed by loaded firearms or by firearms that can quickly be loaded and ready to fire. He concluded that:
As the prohibition of possession of a loaded or loadable firearm is intended to reduce the risk of immediate use of a firearm, the time required to bring the firearm into loadable and operable condition must be short. This conclusion is also a logical consequence of the requirement that the ammunition be “readily accessible”. The firearm must be loadable and operable in the situation in which the ammunition is “readily accessible”.
[70] Applying this approach to the case at bar, the gun in question was not capable of immediate use. There is no evidence that the parts needed to restore the gun to firing condition were immediately accessible to Mr. Grant. On the evidence, they could be acquired by him but this might take a matter of several days. I accordingly accept the defence position that, on my findings of fact, Mr. Grant is not guilty as charged on count 5 but guilty of the lesser included offence of the unauthorized possession of a prohibited firearm contrary to s. 91(1), given that the evidence does establish that the gun could “be made operational through the straight-forward installation of readily available parts in a relatively short period of time.”
[71] I am also satisfied beyond a reasonable doubt that Mr. Grant had knowledge and control of the oversized magazine loaded in the gun, a prohibited device. I find that this is not a case like R. v. Lights 2020 ONCA 128, in which the evidence was reasonably consistent with the possibility that the accused had only briefly handled a firearm while present in another person’s residence and thus may not have examined it closely enough to appreciate that it was loaded. In this case, Mr. Grant had not only handled the gun but carried it in a satchel and kept it close to his person. I find that these actions reflect Mr. Grant having effective ownership of the gun such that he would have knowledge of the magazine inside and be aware that it had the characteristics that make it a prohibited device, and I find him guilty on count 6.
Counts 7 and 8: the breaches of court orders
[72] In view of my factual findings, Mr. Grant is also guilty of breaching the firearms prohibition binding him.
[73] It was not contested that the Crown had proven that Mr. Grant had been out of his residence contrary to a recognizance, establishing his guilt on count 8.
Disposition
[74] Mr. Grant is found not guilty on counts 1-4, guilty of the lesser included offence of unauthorized possession of a prohibited firearm on count 5, and guilty on counts 6-8. Mr. Darling is found not guilty on all counts.
Dineen J.
Released: January 8, 2024
R. v. Grant, 2024 ONSC 128
COURT FILE NO.: CR-22-50000441-0000
DATE: 20240108
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
KEYSHAWN GRANT and MAVERYK DARLING
REASONS FOR JUDGMENT
Dineen J.
Released: January 8, 2024
[^1]: It was an agreed fact at trial that the police had grounds to take this step, for reasons that were not put into evidence.