Court File and Parties
Court File No.: CR-18 - 40000440 - 0000 Date: 2024-03-19 Superior Court of Justice - Ontario
Re: R. v. Liibaan Yusuf
Before: E.M. Morgan J.
Counsel: Kathy Nedelkopoulos, for the Crown Richard Posner, for the Defendant
Heard: March 6-7 and 14-15, 2024
Reasons for Decision
[1] The Defendant, Liiban Yusuf, is charged with offences under sections 88(1), 91(1), 92(2), 94(2), and 95(1) of the Criminal Code. All of the charges relate to his alleged possession of a firearm found in a car in which he was a passenger at the time of his arrest.
[2] On September 12, 2022, Mr. Yusuf’s appeal against conviction (along with that of another individual charged along with him) was allowed by the Court of Appeal. Justice Coroza, on behalf of a unanimous Court, held that the first trial judge had relied on “problematic findings” with respect to certain photographs from Mr. Yusuf’s cell phone that necessitated a new trial: R. v. Ahmed, 2022 ONCA 640, at paras. 8, 110.
[3] The factual background giving rise to the prosecution of Mr. Yusuf is concisely set out in the introductory paragraph of the Court of Appeal’s reasons. Those basic facts have not changed since the earlier trial. The evidence supporting them was re-introduced in the trial before me through the testimony of three of the officers who were at the scene: D.C. Wayel Allawneh, P.C. Dohyeng Maing, and P.C. Greg Mangiardi, all of whom related their evidence in a straightforward and credible way.
[4] As the Court of Appeal described it:
[1] On the evening of March 23, 2017, police responded to two 911 calls that reported gunshots and speeding cars around 3001 Finch Avenue West, an apartment building in the city of Toronto. One of the callers said he had seen a dark-coloured car speed off, possibly a Dodge Charger. Approximately 12 minutes later, two police officers parked outside of the apartment building. At the same time, a black Dodge Charger, driven by Rashid Ahmed, pulled into the front driveway of the building. Osagie Jeffrey Isaac was seated in the front passenger seat and Liibaan Abdi Yusuf was seated in the right rear passenger seat. The officers detained the occupants and patted them down outside of the Charger. Eventually, one of the officers stuck his head through the open rear passenger door of the Charger and, using his flashlight, illuminated the floor area. After about seven seconds, he called out that he had seen a gun and ordered the arrest of the occupants. A gun with an extended magazine was located underneath the front passenger seat directly in front of where Yusuf had been seated. The magazine of the gun had protruded into the rear passenger footwell. The entire interaction – from the initial detention of the occupants of the Charger to the discovery of the gun was brief – about three minutes.
[5] There are a number of other uncontentious facts – or lack thereof – that are relevant to the events in issue. First, there is no evidence that the firearm found on the floor of the black Dodge Charger was ever fired. For that matter, there is no evidence that the Charger – a rather generic looking small sedan – was the same car that the 911 caller had reported. The vehicle did not belong to any of the three occupants, but had been rented by the driver, Mr. Ahmed, under his own name.
[6] In an Agreed Statement of Facts, the Crown and Defence acknowledged that the firearm found in the car was a Glock-17 that was loaded and had one cartridge of 9mm ammunition in the chamber and 25 cartridges of 9 mm ammunition in the magazine. None of the occupants of the car – i.e. Mr. Yusuf, Mr. Isaac, or Mr. Ahmed – had a License, a Firearm Registration Certificate, or a Firearm Acquisition Certificate to lawfully possess a firearm or a magazine.
[7] It is also agreed between the parties that forensic analysis turned up no DNA or fingerprints on the gun, and that no gunshot residue was found on any of the three occupants of the vehicle. The parties also agree that the absence of gunshot residue, DNA, or fingerprint evidence does not prove a negative – that is, it does not establish that the Charger’s occupants did not handle or discharge the firearm. On the other hand, there is no evidence in the record indicating that the gun in question was ever fired or who might have handled it.
[8] The Crown introduced video footage from a surveillance camera at 3001 Finch Ave. West that captured the arrival of the Dodge Charger and the arrest of Mr. Yusuf and his companions. That video establishes that the police first arrived on the scene at 8:28 p.m. just as the Charger pulled into the driveway in front of the building. D.C. Allawneh exited the passenger side of his patrol car and immediately walked toward Mr. Ahmed, who had just emerged from the driver’s side of the Charger. D.C. Allawneh’s testimony also establishes that the other two occupants of the vehicle were Mr. Isaac in the front passenger seat and Mr. Yusuf in the rear passenger-side seat. They each exited the car cooperatively when asked by police officers to do so.
[9] The video footage further shows that after Mr. Yusuf had stepped out of the vehicle, another of the officers who had arrived on the scene, D.C. AB (whose identity is subject to a publication ban pursuant to s. 486.5(1) of the Criminal Code), peered into the rear passenger side with a flashlight. AB did not testify at the trial before me, but D.C. Allawneh testified that it was AB who first saw the firearm in question.
[10] In the video footage, AB’s arms can be seen moving as he bent down over the rear seat of the car, but it is unclear from the video whether he touched or moved anything he found there or simply waved his flashlight around to have a better look. After about 7 seconds, AB called out to the other officers that he had found a gun. P.C. Mangiardi testified that he was at that point patting down Mr. Yusuf who was standing beside the vehicle, and that he proceeded to place him under arrest as soon as he heard AB call out. At the same time, P.C. Maing placed Mr. Ahmed under arrest and D.C. Allawneh placed Mr. Isaac under arrest.
[11] D.C. Allawbeh subsequently looked inside the car at the rear passenger-side seat where Mr. Yusuf had been sitting, and saw a plastic bag filled with items sitting on the floor along with a cell phone and a backpack on the back seat. He also saw the bottom end of the magazine of the firearm lying on the floor and protruding out from under the front passenger seat. D.C. Allawneh testified that he did not know whether that was exactly where the firearm was when AB first saw it or whether it had been moved. The video shows that D.C. Allawneh, like AB before him, used a flashlight to inspect the dark floor of the vehicle.
[12] After some time, a Toronto Police Services forensics officer, Simon Hubbard, arrived at the scene to conduct an inspection of the vehicle and its contents. Mr. Hubbard, who is now retired, testified that he found the Glock-17 in the same position on the floor of the car as had been described by D.C. Allawneh. He indicated that he collected the firearm and other material for laboratory analysis. He also confirmed the measurements of the Glock-17, being 32.04 mm thick and about 114 mm long.
[13] In addition to the Crown’s video footage, Defence counsel also adduced footage into evidence from the same surveillance camera at 3001 Finch Ave. West. This footage is time stamped 7:59 p.m. on March 23, 2017 – i.e. almost exactly one-half hour before the arrival of the police at the building and roughly 15 to 18 minutes prior to the police receiving the 911 call to which they were responding. This video shows what appears to be the same black Dodge Charger pull up to the front of the building and there meet someone who had been sitting in the driveway of the building in a silver Honda CR-V. There is a person sitting in the driver’s seat of the Charger but there does not appear to be any passengers in the Charger at this point, either in the front passenger seat or the rear passenger-side seat.
[14] One can see in the video an unidentified man emerge from the CR-V, walk over to the Charger, open the front passenger door, and sit down in the passenger seat. The Charger then drives to the far end of the driveway and goes out of view. Several minutes later, the Charger returns to the front of the building and the man in the passenger seat exits the car, returns to the CR-V, and drives away.
[15] This video establishes that, in addition to Mr. Yusuf and his two companions at the time of the arrest, there was a fourth person with access to the interior of the car in close time proximity to the events in issue. It also underscores that the evidence does not establish when Mr. Yusuf entered the Charger. He could have been picked up by the Charger moments after the driver left the meeting with the CR-V driver, or he could have been picked up only moments before the Charger pulled into the driveway at 3001 Finch Ave. West a half hour later. Alternatively, he could have entered the Charger at any time between those two points in time, either before or after the 911 call.
[16] The Defence also introduced evidence through the testimony of an articling student, Travis Moore. Mr. Moore explained that he had visited Automania Inc., a Toronto car dealership, and had located a 2016 Dodge Charger – the same model as the Charger in which Mr. Yusuf and his companions were found. Mr. Moore indicated that he spent some time measuring and testing the size of various spots in the interior of this Charger model and comparing them to the size and dimensions of a Glock-17. He explained that he used his laptop case to test the comparative measurements. Mr. Moore testified that at 34 cm (340 mm) long and 32 mm thick, his laptop case is somewhat longer and thicker than a Glock-17.
[17] Mr. Moore’s measurements demonstrated that the two storage places easily accessed from the front seat of the Charger – the cup holder in the centre consol and the glove compartment – would have been unlikely places for anyone, including the driver or front seat passenger, to place a firearm. The centre console has plastic lining on either side of it that makes the cup holder too small for a Glock-17 to fit; if placed there, it would have to sit exposed and at an awkward and unstable angle. The glove compartment is technically large enough for a Glock-17 to fit inside if it were left open, but the gun would then block the closing of the compartment door and so it would again have to sit exposed and unsecured with the compartment door open.
[18] The only remaining likely place in the interior of the car to secrete a firearm the size of the Glock-17 is under the front passenger seat. Mr. Moore testified that unlike the driver’s seat, which is a power seat and so has wires and other mechanical works under it leaving no room to place anything else there, the front passenger seat is a manually adjusted seat and so has nothing underneath that would block the placement of an object. Mr. Moore related that he tested this possibility by taking his laptop case and sliding it under the front passenger seat. It fit there easily, establishing that the spot where the firearm was seen by D.C. Allawneh and Mr. Hubbard could be readily accessed by someone in either the front or the rear passenger side seats.
[19] Mr. Moore further testified that he also sat in the driver’s seat of the Charger and from there found that he could easily reach down to place his laptop case under the front passenger seat. Mr. Moore indicated that he is 5’11”, and that it would seem that anyone his height or taller could comfortably reach under the passenger seat from the driver’s seat the same way he did. The record does not establish the height of Mr. Ahmed, the driver of the Charger at the time of the arrest, but the video footage indicates that he is a rather tall man. On exiting the Charger he can be seen to stand considerably taller than the roof of the vehicle, and he is also significantly taller than either D.C. Allawneh or P.C. Maing, both of whom are shown in close proximity to him at various times in the video.
[20] In all, the evidence establishes that there are at least four individuals who could have placed the firearm under the front passenger seat where it was found. Mr. Yusuf could have placed it there by pushing it forward from the rear, Mr. Isaac could have placed it there by pushing it backward from the front, Mr. Ahmed could have placed it there by reaching to his right from the driver’s seat and pushing it backward, or the unknown individual who left the Honda CR-V and spent a few moments sitting in the passenger seat of the Charger less than 30 minutes before the police arrived could have placed it there.
[21] In order to establish that Mr. Yusuf was in possession of the firearm, the Crown does not have to prove which of the individuals actually placed it on the floor of the car. Rather, it must establish beyond reasonable doubt that, whoever might have placed it there, it was there with Mr. Yusuf’s knowledge and under his control: R. v. Morrison, 2022 SCC 53, at para. 6. The case law has established that possession of the impugned object can be personal, constructive, or joint, with the exercise of control being established if the accused has authority or physical power over it, whether or not he actually exercises that authority or power: R. v. Palcon, [2023] AJ No. 789, at para. 17.
[22] It is the Crown’s view that the magazine of the firearm must have been visible to Mr. Yusuf sitting in the back seat of the car, just as it was visible to the police officers who saw it there. That, however, is not a foregone conclusion. In the first place, both D.C. Allawneh and Officer A.B. used a flashlight to see the gun on the floor of the car in the dark. Furthermore, as Defence counsel points out, if the firearm were already on the floor when Mr. Yusuf entered the vehicle, or even if it were discretely placed there by one of the other occupants of the vehicle after he was seated in the back seat, he would have to be looking down at his feet to notice it.
[23] I cannot simply assume that whenever a person sits down in a car he looks down to inspect the floor at his feet. There is no evidence one way or the other as to what Mr. Yusuf did or saw sitting in the car. Crown counsel suggests that if Mr. Yusuf did not look down at his feet upon entering the vehicle he would have been wilfully blind. In my view, however, that not only misdescribes the commonplace act of how one sits in a car, but it misstates the legal meaning of wilful blindness.
[24] Where established, wilful blindness can impute knowledge to a person who, in a literal sense, lacks that knowledge. But it does so only where the person in question has had his suspicion aroused to the point where he understands the need for further inquiries but deliberately avoids making them: R. v. Jorgensen, [1995] 4 SCR 55.
[25] For the doctrine of wilful blindness to apply to Mr. Yusuf, there would have to be evidence not just that there was an object lying on the floor near his feet, but that he knew that it was there and intentionally refrained from looking at it or asking someone what it was. There is no such evidence in the record. The gun was there – that is the circumstance – but there is nothing on which to base a determination that Mr. Yusuf was put on his inquiry in the way that the wilful blindness argument suggests. We can either infer that he saw it or that he did not see it.
[26] Copeland J. (as she then was) pointed out in R. v. Colmenares-Guevara, 2020 ONSC 5965, at para. 33, that where a firearm is secreted in a vehicle in a location that is not visible to occupants of the vehicle, “knowledge of the firearm’s presence cannot be inferred without either direct evidence of knowledge, or sufficient circumstantial evidence to satisfy the court that a defendant’s knowledge of the firearm is the only reasonable inference to be drawn from the evidence.” The Crown’s position, however, is that regardless of visibility, Mr. Yusuf doubtless knew of the firearm’s presence. In making this point, she relies on R. v. Balasuntharam, [1999] O.J. No. 4861. In that case, none of the occupants of a vehicle were said to know that there was a gun in the car, and they all blamed it on the car’s former owner who they said must have left it there. In response, the Court of Appeal opined, at para. 2, that “human experience tells us that property of this nature [a firearm] simply would not be the subject of unknowing possession.”
[27] I concede that similar logic might apply here – it is improbable that no one in the Dodge Charger was aware of the presence of the Glock-17. But it is certainly possible that Mr. Yusuf alone did not know about it. As indicated, it is not known when Mr. Yusuf got into the car; and unlike in Balasuntharam, the occupants of the car do not appear to have gone out together for a drive. Mr. Ahmed, as driver, entered the car at a different time than either of his passengers. We know from the earlier video introduced by the Defence that shortly before the police arrived Mr. Yusuf was not yet a passenger in the vehicle.
[28] Moreover, the fact that a couple of inches of the magazine was visible from Mr. Yusuf’s vantage point does not mean that he placed it there or saw it. In fact, if he had knowledge and control of the weapon, and was trying to hide it as the Crown suggests, it might be equally likely not to have been place so that it was visible. As Defence counsel points out, there was ample space under the seat in front of Mr. Yusuf. Just as Mr. Moore demonstrated that a front seat passenger could have slid the weapon back, a rear seat passenger could have slid the weapon forward far enough to be entirely out of sight. Given the way the magazine protruded into view, a front seat occupant (either passenger or driver) sliding the gun back and not realizing that they had pushed it too far is not an unlikely scenario.
[29] In making this point, I acknowledge that “the Crown does not have the burden ‘of negativing every conjecture to which circumstantial evidence might give rise and which might be consistent with the innocence of the accused’”: R. v. Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, at para. 66, quoting R. v. Paul, [1977] 1 SCR 181, at 191. As trier of fact, I must, however, “be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty”: R. v. Griffin, 2009 SCC 28, [2009] 2 SCR 42, at para. 33.
[30] In assessing the evidence here – which, in terms of knowledge and control of the firearm is entirely circumstantial – “inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 SCR 104, at para. 58. In the present case, the Crown has proved the location of the firearm to my satisfaction, but has presented no evidence at all as to how it got there, when it got there, and who actually saw it there. Under these circumstances, the Defence can pose explanations of how the circumstances point to innocence without having to assume a reverse burden of proof.
[31] As the Supreme Court has observed, “[t]he issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt”: Villaroman, at para. 35. What is important is that the alternative explanations posed by the Defence “must be reasonable, and not merely possible” or purely hypothetical: Palcon, at para. 21.
[32] Counsel for the Crown says that when Mr. Ahmed opened the driver’s door to exit the vehicle, the interior light came on and this could have allowed Mr. Yusuf to see the part of the gun sticking out from under the front seat. She also points out that there was a backpack on the back seat next to Mr. Yusuf and a plastic bag on the floor next to his legs, and that either of these might have been where the firearm was initially brought into the car and held.
[33] Those various possibilities exist, but they are speculative. As indicated above, the Crown led no evidence to establish how the gun came to be in the car, and no evidence that Mr. Yusuf had anything to do with it being there other than the circumstantial evidence of where the gun was ultimately found. To say that Mr. Yusuf was sitting next to a bag and that the bag might have at one point held the gun is no better an extrapolation than to say that the vehicle’s other two occupants were wearing pants with pockets, and that either of them might have brought the gun into the car in their pocket.
[34] Simply put, the evidence is ambiguous. There are as many factors pointing to others knowing and controlling the firearm without Mr. Yusuf’s knowledge as there are factors that could implicate him: see R. v. Davis, 2021 ONSC 8163, at para. 63.
[35] My colleague, Justice Shreck, summed up a very similar situation in R. v. Aim and Thomas, 2023 ONSC 5909, at para. 23: “Ultimately, the issue is whether there is any other way of looking at the case as a whole that is reasonable such that there is a doubt about the accused’s guilt, when assessed logically and in light of human experience.” In my view, there are too many ways of looking at the present case as a whole to make a definitive conclusion about possession of the firearm found in the car.
[36] In all the circumstances, while Mr. Yusuf’s knowledge and control of the Glock-17 is one reasonable inference that can be drawn from the evidence, it is not the only one. Accordingly, the Crown has not proven Mr. Yusuf’s possession of the firearm beyond a reasonable doubt.
Disposition
[37] For the foregoing reasons, I find Mr. Yusuf not guilty on all counts.
Date: March 19, 2024 Morgan J.