Court File and Parties

COURT FILE NO.: 23-16121 DATE: 2024-10-25 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – JUSTIN DYER and IVOR SHAWN YOUNG Defendants

Counsel: N. Young, for the Crown H. Singh for Justin Dyer A. Banister-Thompson for Ivor Shawn Young

HEARD: October 21 and 22, 2024

J. SPEYER J.

A. Introduction

[1] Mr. Dyer was the driver, and a registered owner, of a white Kia SUV that was pulled over by the police during the early morning hours of October 1, 2022. Mr. Young was seated in the back seat, behind Mr. Dyer. The police searched the vehicle and found a loaded handgun and cocaine in a black backpack that was located on the floor behind the driver’s seat, and between Mr. Young’s legs.

[2] Mr. Dyer and Mr. Young are charged with unauthorized possession of a restricted firearm, possession of a loaded restricted firearm, unauthorized possession of a restricted firearm in a motor vehicle, and possession of cocaine.

[3] The only issue in this trial is whether the Crown has proved beyond a reasonable doubt that either or both Mr. Dyer and Mr. Young possessed the firearm and the cocaine.

B. The evidence

[4] Constables Petschenig and Grainger pulled over the white Kia after it left a bar in Whitby in the early morning hours of October 1, 2022. The circumstances that caused them to search the Kia have been extensively reviewed in my decision of September 20, 2024: R. v. Dyer and Young, 2024 ONSC 4767. It is not necessary to review those circumstances again. These reasons will focus on what the officers found in the Kia, in the possession of the accused men, where they found the items, and what inferences may be drawn from the proven facts.

[5] Both officers activated their body-worn cameras, and their dealings with Mr. Dyer, Mr. Young, and the contents of the Kia were recorded. The recordings are in evidence, and there is no dispute about what was found in the Kia, how it was found, or where it was found.

[6] After PC Grainger saw a marijuana grinder in the cupholder of the Kia, he asked Mr. Dyer how much weed was in the car. In response, Mr. Dyer, who was at that time out of the vehicle, walked around the front of his car, leaned into the car by kneeling on the driver’s seat, and reached into the backseat area behind the centre console. He reached into a backpack and pulled out a baggie containing a small amount of cannabis.

[7] After Mr. Dyer produced the baggie containing a small amount of cannabis, PC Grainger told Mr. Young to step out of the vehicle because the police were going to have a look in the vehicle to see if there was more cannabis readily available. As Mr. Young stepped out of the Kia, the black backpack that was later found to contain the gun and cocaine is clearly visible in the rear footwell area, where it had been between Mr. Young’s legs. The backseat area in which Mr. Young was seated was quite cramped for a person of his size. He did not have much legroom.

[8] The backseat area also contained a black backpack with a white logo laying on the middle of the backseat, a light-coloured backpack with the main compartment unzipped, and something brown that appears to be paper. There was a dark item of fabric on the rear passenger-side seat, and what appear to be items of clothing and footwear on the rear passenger-side floor. Mr. Young did not attempt to move the black backpack as he stepped out of the vehicle, but rather lifted his leg over it.

[9] There was a passenger in the front seat of the Kia, Ms. Sierra Robinson-Lowe. She provided a statutory declaration that all parties agree is admissible for proof of the truth of its contents. In that declaration, she disavows any knowledge of any of the drugs or the gun contained in the Kia. She declares that none of those things belonged to her. No party questioned the credibility or reliability of her declaration. I find that Ms. Robinson-Lowe did not know about or exercise any control over the drugs and gun.

[10] Ms. Robinson-Lowe was also directed by PC Grainger to step out of the Kia. PC Grainger told the occupants of the Kia that the police were going to give the vehicle a quick search to ensure that there was no more cannabis in the vehicle. Mr. Dyer then pulled the light-coloured backpack out of the Kia and pulled out a bag containing a larger amount of cannabis. PC Grainger advised him to leave it on the seat and reiterated that he was going to look in the Kia.

[11] After Mr. Dyer stepped aside, PC Grainger looked into the light-coloured backpack and located more cannabis in that backpack. A digital scale was found in that backpack.

[12] PC Grainger then searched the area of the driver’s seat. Nothing of significance was found there.

[13] PC Grainger then turned his attention to the rear passenger seat where Mr. Young had been sitting. He pulled the black backpack out of the rear area and placed it on the driver’s seat. He opened the main compartment of the backpack by moving the zipper, which had been fully closed. When the zipper was opened, a clear plastic bag containing cannabis was visible. When PC Grainger removed the clear plastic bag, he saw the gun. The main compartment of the black backpack also contained another bag of cannabis, a black satchel that contained cocaine and a scale, and an open bottle of alcohol. The cocaine in the satchel was contained in five small baggies: three that contained powder cocaine weighing 0.6 grams, 1.3 grams, and 2.2 grams, and two containing crack cocaine weighing 10.8 grams and 2.2 grams. The front pouch of the black backpack contained a large digital scale.

[14] It is an admitted fact that the gun was a functioning .45 caliber Colt 1927 Argentine Semi-Automatic Handgun. It is a restricted firearm. There were ten rounds of ammunition in the magazine and an additional round in the chamber. Neither Mr. Dyer nor Mr. Young are authorized to possess any firearms.

[15] Mr. Young had a wad of currency in his jacket pocket in a total amount of $720, that comprised one $50 bill, 30 $20 bills, three $10 bills, and eight $5 bills.

[16] Four cell phones were located: one in the personal possession of each Mr. Dyer and Mr. Young, and two others in the vehicle. There is no evidence about who owned the two phones that were in the Kia, whether those phones functioned, or what use was made of them.

C. The applicable principles

(a) The burden and standard of proof

[17] Mr. Dyer and Mr. Young are presumed to be innocent unless and until the Crown has proven their guilt beyond a reasonable doubt. It is not enough for the Crown to prove that they are probably or likely guilty. The Crown bears the burden of proof throughout the entire trial, from beginning to end. Mr. Dyer and Mr. Young do not have to present evidence or prove anything.

[18] The Crown is not required to prove guilt to an absolute certainty. Such a burden would be nearly impossible to meet. Nevertheless, the reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242.

[19] Reasonable doubt must stem from reason and common sense and be logically connected to the evidence or lack thereof. It cannot be based on sympathy, pity or prejudice. A doubt is not an imaginary, frivolous or irrational doubt. It cannot be grounded in hypotheticals, speculation, or fanciful conjecture: R. v. Lifchus, 1997 SCC 319, [1997] 3 S.C.R. 320, at para. 36.

(b) Circumstantial evidence

[20] In this case, the Crown’s case consists wholly of circumstantial evidence. The standard of proof requires that I find the accused not guilty unless I am satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 35.

[21] I must consider other plausible theories and other reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience. Inferences consistent with innocence need not arise from proven facts. Rather, they may arise from a lack of evidence. However, the Crown does not have to negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with the accused’s innocence: Villaroman, at paras. 37-38; R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 38.

[22] In determining whether the standard of proof has been met, the evidence must be assessed as a whole. Individual pieces of evidence are but a link in the chain of proof: Lights, at para. 37. It is the cumulative effect of all of the evidence, taken together, each item in relation to another and the whole, that must be considered in determining whether the standard of proof has been met: R. v. Gibson, 2021 ONCA 530, 157 O.R. (3d) 597, at para. 79.

(c) Possession

[23] In this case, the Crown alleges that Mr. Dyer and Mr. Young were in constructive possession of the cocaine and the gun. There is no dispute about what the Crown must prove to establish constructive possession.

[24] Constructive possession arises where the accused does not have physical custody of the object in question but has 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 another person: Criminal Code, R.S.C., 1985, c. C-46, s. 4(3)(a); R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 17; Lights, at para. 47.

[25] To establish constructive possession the Crown must prove beyond a reasonable doubt:

(1) That the accused knew the character of the object;

(2) That the accused knowingly put or kept the object in a particular place; and,

(3) That the accused intended to have the object in the particular place for his use or benefit or that of another: Morelli, at paras. 15, 17; Lights, at paras. 44, 47-48.

[26] In order to establish constructive possession, the Crown must prove that the accused had knowledge of the object, which extends beyond mere passive knowledge, and some measure of control over the item to be possessed. R. v. Pham, 2005 ONCA 44671, 77 O.R. (3d) 401, 204 O.A.C. 299, at paras. 14-15, aff’d 2006 SCC 26, [2006] 1 S.C.R. 940.

[27] The presence of an accused in a location, without more, does not necessarily establish that the accused had knowledge and control over items located in that location. Occupancy does not create a presumption of possession: Lights, at para. 50; R v. Lincoln, 2012 ONCA 542, [2012] O.J. No. 3872, at para. 3.

[28] When the Crown relies on circumstantial evidence to establish possession, a finding of guilt can occur only if the accused’s knowledge and control of the impugned objects is the only reasonable inference on the facts. In assessing the whole of the evidence, a trial judge must determine whether any other proposed way of looking at the case is reasonable enough to raise a doubt about the accused’s guilt, when assessed logically, and in light of human experience and common sense: R. v. Choudhury, 2021 ONCA 560, [2021] O.J. No. 4228, at para. 19; Villaroman, paras. 55-56; Lights, para. 39.

D. Analysis

[29] The charges against Mr. Dyer and Mr. Young must be assessed individually. I will begin with the charges against Mr. Young.

(a) Mr. Young

[30] The Crown submits that Mr. Young was in constructive possession of the cocaine and gun that were located in the black backpack that was found in front of his seat and between his legs in the Kia.

[31] The Crown acknowledges that its case rests entirely on circumstantial evidence. It submits that when the evidence is considered as a whole, the only reasonable inference that can be drawn is that Mr. Young knew about the cocaine and the gun contained in the black backpack and had a measure of control over them. The Crown points to the following evidence in support of its position:

(i) The backpack was found in a tight space, between Mr. Young’s legs.

(ii) The backpack contained “all the tools of the trade” of a drug trafficker: a variety of drugs, two scales, and a gun.

(iii) The variety of drugs – cocaine, both crack and powder, and marijuana - were available to serve different customer needs.

(iv) The cocaine was pre-packaged and ready to dispense.

(v) The drugs and gun were valuable items that an owner would want to keep close.

(vi) The loaded gun would be useful only if it was with and accessible to the person who might want to use it. It is a tool of the drug trade, used both to deter and defend.

(vii) There were a number of cell phones in the Kia.

(viii) Mr. Young was in personal possession of a large quantity of cash, mostly $20 bills.

(ix) Mr. Young and Mr. Dyer had just left the Hotel Royale, a known location for drug and human trafficking.

[32] Ms. Banister-Thompson, for Mr. Young, submits that the black backpack was within Mr. Dyer’s reach, that there was no evidence about when the backpack was placed between Mr. Young’s legs, or that Mr. Young entered the Kia with the backpack. Mr. Young did not own the Kia. There were numerous bags in the back of the Kia and the vehicle was extremely cluttered. Ms. Banister-Thompson submits that there was no evidence that Mr. Young touched the backpack. It was fastened closed and its contents were not visible. There was no evidence in the backpack that tied it to Mr. Young. Ms. Banister-Thompson notes that the Crown did not call an expert to provide evidence about the connection between the drugs in the backpack and the money in Mr. Young’s possession. She notes that he was at a strip club before getting into the Kia and submits that there could be reasons why someone would carry the amount and type of currency possessed by Mr. Young when on a night out, other than that those monies were the proceeds of drug sales. Ms. Banister-Thompson submits that a reasonable inference on the evidence is that the backpack was in the car when Mr. Young got into the car, and he did not move someone else’s property. It is Ms. Banister-Thompson’s position that the Crown has failed to prove the charges against Mr. Young beyond a reasonable doubt.

[33] I find that the Crown has proven, beyond a reasonable doubt, that Mr. Young knew that the backpack contained cocaine and the loaded gun, that he knowingly kept those objects in the backpack between his legs, and that he intended those objects to be in the backpack, under his legs, and within his easy reach, for his use or benefit. He knew that the cocaine and the gun were in the backpack, and he exercised control over them.

[34] The totality of the evidence convinces me beyond a reasonable doubt that Mr. Young is guilty of the charges against him. I am satisfied beyond a reasonable doubt that Mr. Young’s guilt is the only reasonable inference to be drawn from the evidence as a whole. I have considered whether there are other plausible theories and other reasonable possibilities inconsistent with guilt that are grounded on logic and experience, based on the evidence or the lack of evidence, and have concluded that there are not any such plausible theories or reasonable possibilities.

[35] I have reached this conclusion for the following reasons:

1. The backpack containing the gun and cocaine was located between and under Mr. Young’s legs as he was seated in the backseat of the Kia. The body-worn camera recording of PC Grainger shows that Mr. Young was in contact with the backpack, and had to awkwardly raise his right leg over it when he got out of the vehicle. The backpack and its contents were readily accessible to Mr. Young.
2. The backpack contained a satchel, with a shoulder strap, that was a ready-to-go cocaine trafficking kit. It contained crack cocaine in two separate small baggies and powder cocaine in three separate plastic wrappers, together with a small digital scale.
3. The backpack also contained a large clear plastic bag that contained cannabis, and a large digital scale.
4. The gun contained in the backpack was not small, as can be seen when the police officers made it safe. It contained a magazine containing ten rounds of ammunition, and had a further round in the chamber. It was ready to fire. In other words, it was ready for use and in a dangerous state. It was not merely being transported. In all the circumstances, the only reasonable inference is that the gun was where it was, in the state it was in, to provide protection to the person who was selling the drugs that were present, and available for sale, in the same backpack as the gun.
5. The purpose for which a person would have a loaded, ready-to-fire handgun would be defeated if the gun was not readily accessible to that person when it was needed.
6. The person who had easy and ready access to the loaded and ready-to-fire gun was Mr. Young.
7. Mr. Young had $720 in his jacket pocket, comprising one $50 bill, 30 $20 bills, three $10 bills, and eight $5 bills. The only reasonable inference available in the circumstances of this case is that those monies were obtained by the sale of drugs. No expert opinion evidence is necessary to permit me to draw this easy inference. I reject as speculative, and without any evidentiary foundation, the submission that these monies could have been in Mr. Young’s possession for any other purpose. The presence of those monies in Mr. Young’s possession is a piece of circumstantial evidence that compellingly points to his knowledge of the drugs in the backpack, and the gun that was also there, plainly visible in the backpack when it was opened and the bag of cannabis was removed: R. v. Duvivier, 2010 ONCA 136, [2010] O.J. No 683 (Q.L.), at para. 8.

[36] I reject as implausible and speculative the possibility that the black backpack was in the car before Mr. Young got in the car. It defies common sense that he would have got into the cramped back seat without moving the backpack to make room for his legs, if the backpack was there before he got into the Kia. There was ample room in the backseat for him to easily place the backpack on the passenger side seat. Before the Kia was searched, the passenger side of the backseat was not cluttered.

[37] I also reject as implausible and speculative the possibility that Mr. Dyer may have had possession of the black backpack and tossed it into the backseat under Mr. Young’s legs and that Mr. Young did not know of the contents of the backpack. The area of the backseat footwell behind the driver’s seat under Mr. Young’s legs was not accessible to Mr. Dyer, the driver. There was a passenger in the front seat who, all agree, had nothing to do with the drugs and gun in the black backpack, so the backpack could not have been on that seat. If Mr. Dyer had possession of the black backpack and tossed it into the backseat, it would have landed anywhere but between and under Mr. Young’s legs.

[38] In conclusion, I find that Mr. Young knew of the contents of the black backpack, including the cocaine and the gun, and that he exercised control over the cocaine and the gun. That is the only reasonable inference on the facts I have found. Mr. Young is found guilty of Counts 1, 2, 3 and 4. I will hear counsel on the question whether the rule against multiple convictions for the same delict should operate to preclude convictions for any of those charges.

(b) Mr. Dyer

[39] The Crown acknowledges that the evidence against Mr. Dyer presents “a different matrix altogether”. The Crown submits that Mr. Dyer knew of, and exercised control over, the light-coloured backpack that contained a large amount of cannabis and a scale. The Crown notes that Mr. Young had only a class G1 driver’s licence, and so was not permitted to drive unless he was in the company of a fully licenced driver. The Crown urges me to infer that Mr. Dyer and Mr. Young mutually supported each other in their drug trafficking enterprise, and to further infer that Mr. Dyer was aware of Mr. Young’s activities, including Mr. Young’s possession of the cocaine, and of the gun that was there for the protection of both of them.

[40] Ms. Singh, for Mr. Dyer, submits that the evidence supports the reasonable inference that the black backpack and its contents were owned by someone other than Mr. Dyer, and that he did not know about the backpack or its contents. Ms. Singh notes that nothing in the circumstances of this case connects Mr. Dyer to the black backpack. Its contents were not in plain sight. Mr. Dyer’s control of the car does not give rise to any presumption that he knew what was in the car, or that he controlled the contents of the black backpack. Ms. Singh submits that the Crown has not proven the charges against Mr. Dyer beyond a reasonable doubt.

[41] I have no doubt that Mr. Dyer was in possession of the considerable amount of cannabis and the digital scale found in the light-coloured backpack. He is not charged with any offence in relation to those things.

[42] Mr. Dyer was not in possession of any amount of money that would suggest that he participated in the sale of drugs. The black backpack under and between Mr. Young’s legs was not visible to Mr. Dyer as he sat in the driver’s seat. There is no evidence about the relationship between Mr. Young and Mr. Dyer, or how they came to be together on October 1, 2022.

[43] It is possible that when they were stopped by the police, Mr. Dyer and Mr. Young mutually supported each other in a drug trafficking enterprise, but I cannot be sure of that beyond a reasonable doubt. Even if the evidence convinced me that they were supporting each other’s drug trafficking activities, I am not convinced beyond a reasonable doubt that Mr. Dyer knew what Mr. Young had in the black backpack that was between and under his legs. The evidence, assessed logically and in light of human experience and common sense, leaves open a reasonable possibility that Mr. Dyer acted as a driver for Mr. Young, but did not know the details of, or participate in, Mr. Young’s activities. Mr. Young did possess a substantial quantity of cannabis in the black backpack. It is not speculative or unreasonable, on the evidentiary record before me, to conclude that Mr. Dyer’s awareness of what Mr. Young was up to was limited to the sale of cannabis. I cannot conclude beyond a reasonable doubt that Mr. Dyer knew about the presence of the cocaine or the gun in the black backpack.

[44] Mr. Dyer is found not guilty of all charges against him.

Released: October 25, 2024 [1]

[1] These reasons for judgment were read orally into the record on October 23, 2024.