Reasons for Judgment

Court File No.: CR-24-72
Date: 2025-02-26
Ontario Superior Court of Justice

Between:
His Majesty the King
Jelena Vlacic, Counsel for the Crown
-and-
Taverio Stewart
Noah Robbins, Counsel for the Accused

Heard: January 27, 28, 29 and 31 and February 3 and 5, 2025
Released: February 26, 2025
Judge: Dennison

Overview

[1] After conducting surveillance of Mr. Stewart for several days over the course of three weeks, police executed a search warrant at 64 Mossgrove Crescent, Brampton, and of a grey Audi A4 that was owned by Mr. Stewart. Police seized a loaded firearm from inside the glove compartment of the Audi. Police charged Mr. Stewart with possession of a loaded restricted firearm.

[2] Mr. Stewart re-elected to have a judge alone trial. The Crown called the surveillance officers and officers who conducted the search. Mr. Stewart testified that he did not know that the firearm was in the glove compartment and that his uncle, Mr. Downey, had borrowed his Audi the previous evening. Stanley Stewart, Mr. Stewart’s father, also testified that Mr. Downey regularly borrowed Mr. Stewart’s Audi.

[3] The sole issue to determine in this case is whether the court is satisfied beyond a reasonable doubt that Mr. Stewart had knowledge and control of the firearm located in the glove compartment of his Audi.

[4] I will begin my reasons by reviewing the evidence. I will then review the positions of the parties and the legal principles and conclude with my analysis applying the facts to the law.

The Evidence at Trial

[5] The police investigation into Mr. Stewart commenced on January 29, 2022. Observations were made on January 29 and 31, and February 1, 17 and 21, when the search warrant was executed. In determining if Mr. Stewart possessed the firearm on February 21, 2022, it is helpful to briefly review what the police did and did not observe.

Police Observations

a) January 29, 2022

[6] On January 29, 2022, DC Shaw provided the surveillance officers with a run sheet that contained a photograph of Mr. Stewart taken in May 2019. The run sheet indicated he was 21 years of age with a date of birth of April 28, 2000. The run sheet contained his height and weight and that he resided at 64 Mossgrove and drove a grey Audi A4. None of the officers had any prior experience with Mr. Stewart.

[7] On this date, police conducted surveillance at 64 Mossgrove from 6:20 p.m. to 10:00 p.m. 64 Mossgrove is a detached residence with a two-car garage and has a driveway. When police arrived, the Audi was not in the driveway. At 9:16 p.m., PC Prajapati and DC Shaw observed the Audi arrive at 64 Mossgrove. Four persons exited the vehicle, but police could not identify anyone.

b) January 31, 2022

[8] On January 31, 2022, police conducted surveillance from 5:30 p.m. until 9:30 p.m.

[9] DC Shaw testified that at 5:49 p.m., he observed Mr. Stewart exit the residence, start the Audi and then return to the residence. DC Shaw testified that Mr. Stewart looked very similar to the photograph in the run sheet.

[10] At 6:22 p.m., Mr. Stewart exited the residence, entered the driver seat of the Audi and left. DC Shaw did not recall how far he was from the Audi and agreed that he identified Mr. Stewart by comparing the person he observed to the information in the run sheet.

[11] At 6:22 p.m., DC Prajapati observed the Audi travel southbound on Mossgrove. The Audi stopped at Japan Buffet at approximately 6:49 p.m.

[12] At 6:49 p.m., DC Callan observed Mr. Stewart exit the Audi and walk into the Japan Buffet. He identified Mr. Stewart using the run sheet. Mr. Stewart was wearing a shiny puffer style jacket. He testified that male had the same facial descriptors and same hair. DC Callan testified that the male he observed looked very similar if not the same to the photo contained in the run sheet.

[13] DC Callan testified that at 6:54 p.m., Mr. Stewart returned to the Audi. He could not recall how close he was, but he stated that he had an unobstructed view of Mr. Stewart exiting the restaurant and entering the vehicle. There was no one else with Mr. Stewart.

[14] PC Prajapati followed the Audi from Japan Buffet to Parkhill Court. At 7:02 p.m., DC Shaw observed the Audi park outside of 1 Parkhill. An unknown male exited the residence and went to the passenger side window. DC Shaw did not see anyone in the passenger seat, and he did not actually see Mr. Stewart. He stated that he was deducing that it was Mr. Stewart based on the prior observations and that Mr. Stewart did not exit the vehicle.

[15] After this interaction, the police observed the Audi return to 64 Mossgrove. At 7:24 p.m., DC Callan observed Mr. Stewart exit the Audi and enter 64 Mossgrove. There was no one with him when he got out of the car. DC Callan testified that he was not sure how far he was from the vehicle but that he had an unobstructed view of the vehicle and residence.

c) February 1, 2022

[16] On this date, police conducted surveillance from 4:23 p.m. to 7:25 p.m.

[17] DC Shaw testified that at 4:43 p.m., the Audi pulled into the driveway and Mr. Stewart exited the driver’s seat and entered 64 Mossgrove. He was wearing a white ski mask, white jacket, blue jeans and had a blue backpack.

[18] DC Shaw stated that he remembered the ski mask but could not recall if it was over Mr. Stewart’s face or not. He stated that Mr. Stewart’s hair was the same as the day prior. In cross-examination, DC Shaw described the ski mask as like a hat with a turtleneck with an open circle. DC Shaw agreed that Mr. Stewart’s hair was covered while wearing the ski mask but stated that he could still see the braided hair. He agreed this was not in his notes and there was no note of how thick the ski mask was, and he could not recall if the ski mask was up or down. DC Shaw testified that he did not know where he made this observation.

[19] At 7:03 p.m., DC Shaw observed Mr. Downey exit 64 Mossgrove and walk past DC Shaw. DC Shaw testified that Mr. Downey is quite a bit older than Mr. Stewart — at least 10 or 20 years older.

[20] DC Shaw observed Mr. Downey walk down the street towards an unknown male who exited a cab. There was a verbal exchange and both males went their separate ways around 7:03 p.m.

[21] In cross-examination, DC Shaw stated that after his observation of Mr. Downey, he did not recall if the police listed him as a suspect, but they were aware of his activities and his presence at 64 Mossgrove. DC Shaw agreed that he conducted a police data search with respect to Mr. Downey and obtained an offence detail report. DC Shaw was shown a report that was completed after the search. He agreed that if Mr. Downey’s charges from July 1, 2021, which involved firearms, were on the report then he would have seen that, but he did not have an independent recollection of that. He also agreed that if the CPIC report indicated that Mr. Downey was on a firearm prohibition he would have reviewed that as well, but he made no note of that.

[22] On this evening, surveillance officers also observed a beige Hyundai and a black Charger at the address and other persons entering and leaving 64 Mossgrove.

d) February 7, 2022

[23] Police conducted surveillance from 10:55 a.m. until 3:15 p.m.

[24] At 11:22 a.m., D.C. Prajapati observed the Audi in the driveway of 64 Mossgrove.

[25] At 11:27 a.m., DC Callen observed Mr. Stanley Stewart arrive in a Beige Acura. He exited the vehicle and entered the residence. In cross-examination, he described Mr. Stanley Stewart as a male Black, fair to medium complexion, muscular build 5”10”. He did not recall his hair style.

[26] At 12:15 p.m., DC Prajapati observed Mr. Stanley Stewart exit 64 Mossgrove and enter the Acura and leave. DC Prajapati testified that he knew it was not Mr. Stewart because this man was taller and he did not have braids, his hairstyle was stubble, but not bald and Stanley Stewart was approximately 20 years older than Mr. Stewart.

[27] At 1:17 p.m., Mr. Stanley Stewart returned to the residence driving the Acura. DC Callan observed him going in and out of the garage at 64 Mossgrove. DC Callan distinguished Mr. Stanley Stewart from Mr. Stewart because Mr. Stewart was 20 to 30 years younger, and Mr. Stanley Stewart did not have braided hair. He had very little hair.

[28] At 1:33 p.m., DC Callan observed Mr. Stewart exit the residence. Mr. Stewart got into the driver’s seat of the Audi for a moment and then re-entered the residence.

[29] At 1:40 p.m., Mr. Stewart, a female and a child exited the residence. The female entered the front passenger seat and Mr. Stewart got into the driver’s seat. The child was in the rear seat of the car.

[30] The Audi travelled from Mossgrove and parked in front of 129 Gatesgill St. DC Callen observed the female exit the vehicle carrying the child. Mr. Stewart also exited the vehicle carrying a car seat into 131 Gatesgill.

[31] At 1:51 p.m., the same female and Mr. Stewart exited 31 Gatesgill and entered the Audi. DC Callen followed the Audi to Steeles Ave. At that point, PC Prajapati followed the Audi to 2070 Steeles Ave. The female passenger exited the vehicle. DC Prajapati could not see the driver. DC Prajapati then followed the Audi to 35 Finchley.

[32] At 2:28 p.m., DC Callan observed the Audi parked in front of 35 Finchley. Mr. Stewart exited the vehicle and walked up to and entered the side door of 35 Finchley. No one else was with him at that time. At 2:48 p.m., an unidentified male exited 35 Finchley. That male entered a white Accord and left the area. There were no further observations of Mr. Stewart on that date.

e) February 17, 2022

[33] Police conducted surveillance from 10:37 a.m. until 8:42 p.m.

[34] When police arrived, the Audi was parked in the driveway. At 10:57 a.m., PC Prajapati observed Mr. Stewart exit the residence and enter the driver’s seat of the Audi. No one else was with him. DC Prajapati testified that he could not recall where he was when he made this observation, but he had a visual of the front door and the parked cars.

[35] DC Prajapati stated that based on the description he had, he determined this was Mr. Stewart. At this point, he was aware that Stanley Stewart lived at the residence. He also testified that there were no other males Mr. Stewart’s age, height or hairstyle that he could have confused with Mr. Stewart. DC Prajapati agreed that he took no photos.

[36] DC Prajapati observed Mr. Stewart drive away in the Audi and head south bound on Mossgrove. DC Callen testified that he followed the Audi to an A & W at Sandalwood and Hurontario at 11:01 a.m. DC Callen testified that he was at times able to see that it was Mr. Stewart driving the vehicle while he conducted surveillance based on the lighting and traffic.

[37] DC Prajapati testified that he later observed the Audi parked in the driveway. He did not see Mr. Stewart get out of the car.

[38] At 11:38 a.m., DC Prajapati observed a white Hyundai SUV. An unknown passenger exited and walked up to the Northside of the Mossgrove residence.

[39] At 12:30 p.m., DC Callan observed an unknown person exit the residence and enter a Black Acura. The vehicle left the area and DC Callan did not follow it.

[40] At 12:55 p.m., DC Shaw observed Mr. Stewart exit 64 Mossgrove wearing a blue coat, socks and sandals. He entered the driver’s seat of the Audi and drove to Cedar Valley.

[41] At 2:00 p.m., DC Callan observed the Audi park in front of 32/34 Cedar Valley Blvd. At 2:34 p.m., DC Callan observed Mr. Stewart enter the Audi and leave the area. DC Callan had no notes of Mr. Stewart exiting the Audi.

[42] DC Prajapati and DC Shaw testified that the Audi returned to 64 Mossgrove at 2:36 p.m. Mr. Stewart exited the vehicle and entered the residence. DC Shaw testified that Mr. Stewart was wearing a blue coat with socks and sandals. DC Shaw said there was no one else present. DC Shaw testified that he recalled areas that he was in when he made observations but could not recall where he was at the time he made this observation.

[43] At 2:54 p.m., DC O’Neil observed Mr. Stewart, and an unknown party enter the Audi. The Audi travelled to Mary Brown’s Chicken and then returned home at 3:15 p.m. He had no description of the unknown party.

f) February 21, 2022

[44] Prior to the execution of the search warrant, police conducted surveillance at 64 Mossgrove. When DC O’Neil arrived at 2:04 p.m., the Audi was not there.

[45] DC O’Neil testified that Mr. Downey came out of the residence and was with an unknown male. Mr. Downey got into the driver’s seat of the black Acura, and they left the area. DC O’Neil knew Mr. Downey from having previous dealings with him.

[46] DC Shaw testified that at 4:30 p.m., he observed a vehicle arrive at the residence. Mr. Downey got out of the passenger side of the vehicle and went back inside 64 Mossgrove.

[47] At 5:32 p.m., a vehicle was parked at the curb in front of 64 Mossgrove. Mr. Downey got into the passenger side of the vehicle. It was not the Audi. At 5:33 p.m., Mr. Downey exited the vehicle and went back into the residence.

[48] At 5:39 p.m., Mr. Downey got into another vehicle that was parked at the curb as a passenger. It was not the Audi. At 5:44 p.m., Mr. Downey exited the vehicle and returned to the residence.

[49] DC O’Neil testified that at 6:49 p.m., the Audi returned to 64 Mossgrove. Mr. Stewart parked across the street from the residence. He exited the vehicle and entered the residence. At 7:22 p.m., Mr. Stewart returned to the Audi and had his phone on and went to the rear driver panel and examined the car. He then got into the driver’s seat and left the area.

[50] DC Prajapati testified that he observed Mr. Stewart at 7:38 p.m. at 70 Oak Meadow. Mr. Stewart agrees that he went to 70 Oak Meadow to see his cousins. Mr. Stewart returned to the residence at 8:42 p.m.

Execution of the Search Warrant

a) The House

[51] All the officers testified that the tactical team entered 64 Mossgrove first and secured the residence. The tactical team entered at 9:22 p.m. They breached the door and did a call out to have the occupants come out. Mr. Stanley Stewart and Mr. Stewart came to the door and were detained. Two other persons were found in the residence, Rose Crawley and Jennifer Corman. They were escorted out of the residence.

[52] There is no dispute that the room where the officers found the car keys for the Audi was Mr. Stewart’s bedroom. Mr. Stewart identified it as his room as did Mr. Stanley Stewart. DC Prajapati testified that he found the Audi key on the floor between the bedframe and the closet door. The photograph depicts where he found the key. He notified the DC O’Neil who took a photograph and the key. DC Shaw testified that he believed there might have been a small bag of marijuana in a drawer in the desk of the room.

b) Search of the Audi

[53] DC O’Neil assigned DC Walkey to search the vehicle. The Audi was parked in the driveway. DC O’Neil photographed the vehicle prior to DC Walkey commencing the search.

[54] DC Walkey used the keys to unlock the Audi. He commenced his search at the front driver’s side, then went to the rear driver’s side, then the trunk, and then the rear passenger and then the front passenger seat. He used latex rubber gloves during the search.

[55] DC Walkey testified that when he opened the glove compartment, he saw the firearm that was depicted in exhibit 4, p. 8. When he found the firearm, he called over DC O’Neil to take a photograph the way it was found. After the photograph was taken, DC Walkey proved the firearm safe and put it on the passenger seat, which is depicted in exhibit 4, p. 9. The magazine was seated in the firearm with bullets but there was not a bullet in the chamber. DC Walkey turned the firearm over to DC O’Neil.

[56] DC Walkey searched the center console and found a small digital scale and a black wallet. When he opened the wallet there was a health card and driver’s licence in Mr. Stewart’s name. A photograph of the wallet in the console and the identification were photographed by DC O’Neil and marked as exhibit 4, p. 11.

[57] DC Walkey agreed that the car was very clean. He also agreed that he had difficulty getting into the trunk. The lock was inoperable, and he had to use the emergency opener. He did not take note of any other item in the vehicle.

c) Back at the Station

[58] DC Shaw also interviewed Mr. Stewart the day he was arrested. A photograph taken that day was marked as an exhibit. A comparison of the two photographs shows a striking resemblance.

The Firearm

[59] On February 23, 2022, DC Ferraro collected swabs and tested for fingerprints. There were no fingerprint results. When checking the firearm, DC Ferraro observed 12 rounds of 9 mm Luger FC and 5 rounds of Luger Harnady. The magazine was seated well in the firearm and the laser was functioning. The swab and the firearm were sent to the Center of Forensic Science. It was agreed by the parties that the firearm was tested for DNA and no results were obtained.

Mr. Stewart’s Evidence

[60] Mr. Stewart testified that he resided at 64 Mossgrove with his father, his father’s girlfriend, his aunt, his grandmother, his brother and his uncle, Mr. Downey.

[61] Mr. Stewart agreed that he lived in the bedroom as indicated by the police. His brother used the bedroom beside him when he did not stay at his girlfriend’s place. He also agreed that his uncle’s room was in the basement. He agreed that the room was locked but not all the time.

[62] Mr. Stewart testified that he had no criminal record. He testified that he worked for his father and did snowplow work. He also testified that he was an athlete growing up and was ranked nationally in boxing. He has commenced the process to obtain his professional license for boxing. He is close to his father because his father raised him and is his boxing coach.

[63] Mr. Stewart testified that he has a girlfriend and a daughter who is almost five years of age.

[64] Mr. Stewart testified that he purchased the Audi in the summer before police arrested him. It was a used 2013 Audi A4 sedan. He paid $13,000. He explained that he put down a down payment and financed the rest, paying approximately $216 per month. He also paid $250 per month for insurance. He does not own the Audi now because his girlfriend was in an accident, and it was written off.

[65] Mr. Stewart testified that he kept the main set of keys on the rack near the front door of the house like everyone else in the family so that they could move cars in the driveway if needed. He had a spare set of keys that was kept in a drawer in the dining room on the main floor, but he stated that if someone borrowed his car, they would use his primary key.

[66] Mr. Stewart testified that his girlfriend would sometimes take the car, and he would stay back to watch his daughter. Most of the time he would drive her.

[67] Mr. Stewart also testified that his brother would also use the car. He testified that his brother Marcel is 30 years old. He has a girlfriend who lives in Vaughn, and he would go back and forth and if he was at the house, Mr. Stewart would let him use the Audi. His brother did not own his own vehicle.

[68] His father would use his car if his father’s car was at the mechanics.

[69] Mr. Stewart also testified that he let his uncle Mr. Downey use his Audi. Mr. Downey did not own a car. His uncle used it approximately two to three times a week. He stated that most of the time it would be at night. In cross-examination he explained that Mr. Downey usually used it after 10:00 p.m. There had been a couple of times during the day when he went to the liquor store.

[70] Mr. Stewart testified that there had been times that his uncle just took the Audi, but Mr. Stewart did not like that. He wanted his uncle to ask him when he took his car. He agreed that most of the time his uncle would ask to borrow the Audi.

[71] Mr. Stewart explained that his uncle would give him cash here and there usually between $50-$60, and there were times when he would fill up the gas tank. He agreed in cross-examination that his uncle was giving him $100 to $150 a week to use the car but he was not counting. He said on average he would say $100. When it was suggested to Mr. Stewart that his uncle was financing the entire car payment, Mr. Stewart said he was not looking at it like that. He had his own job, but his uncle gave him cash to use the car. His uncle didn’t offer to finance his car. Mr. Stewart testified that he did not find it strange that his uncle gave him money to use the Audi because his uncle didn’t have a car.

[72] In cross-examination, Mr. Stewart explained that he learned about $12,000 to $15,000 a season for snow plowing. He also worked for his dad when he needed help. He would get paid about $150 a day. He did not keep track of how often he worked. It was not every day. There were not set schedules, which gave him the flexibility to train. He said on average he worked for his dad two days a week but sometimes more. He also agreed that he was supporting his child. He agreed that $400 a month from his uncle was a meaningful amount of money.

[73] Mr. Stewart said that he let his uncle use the Audi because he gave him money and that prior to this incident he was a decent uncle to Mr. Stewart. He was nice to his daughter.

[74] Prior to this incident, Mr. Stewart agreed that he told his uncle not to crash his car. He did not really express any other types of concerns. He agreed that he never stopped his uncle from using his car. The only time he would not let his uncle use the car was if Mr. Stewart needed to use it. Later in cross-examination, Mr. Stewart stated that he had told his uncle “not to take his garbage” (i.e. criminal activity) to his car. Mr. Stewart agreed that he knew that his uncle had been in trouble with the law, and he had been in and out of jail most of Mr. Stewart’s life. Mr. Stewart testified that he did not know that his uncle had been charged with firearm offences in July 2021. Mr. Stewart’s lawyer told him that after he was charged. Mr. Stewart did not know what criminal offences he was involved in but knew he went to jail. Mr. Stewart agreed that he did not want any part of his uncle’s criminality because he did not want to mess up his boxing career.

[75] Mr. Stewart agreed that he while he told his uncle he didn’t want him to bring any garbage around his car, he was his uncle, and Mr. Stewart did not hold his criminal record against him. He stated that at the time he wasn’t concerned about that, but he should have been. He was pretty much hoping that his uncle wouldn’t get him tied up in anything that his uncle had going on. He said he was his uncle, and he was giving him money and he wasn’t looking too much into it.

[76] Mr. Stewart agreed that his father had warned him about his uncle using the car, but he didn’t pay attention. He stated that it was a generalized conversation about people crashing your car.

[77] Mr. Stewart agreed that he knew that his uncle did not have a licence but explained that while he knew he shouldn’t have lent him his car, he was his uncle, and he was pretty much hoping nothing would happen to the car.

[78] Mr. Stewart testified on the day police executed the search warrant he and his father were working out in the basement when they heard a loud bang. They went up stairs and it was the police. He was told get on the ground and was arrested.

[79] Mr. Stewart testified that the first time he learned the firearm was in the glove compartment of the Audi was at his bail hearing. He stated that he initially suspected that it was his uncle because he drove Mr. Stewart’s car the night before. Mr. Stewart testified that his uncle asked if he could use the car around 11:00 or 11:30 at night and after that Mr. Stewart went to sleep. He did not know how long his uncle had the car for. Mr. Stewart said he was shocked because he would not partake in anything that would steer him away from his boxing career. He denied putting the gun there. He stated that he did not go into the glove compartment and did not think to check it.

[80] Mr. Stewart testified that he rarely went into the glove compartment and that he did not keep things in there. Mr. Stewart said the glove compartment was able to lock but he didn’t remember if it was locked or not. He stated that he had no reason to lock it because he didn’t put anything in there. He stated that he could count on one hand how many times he had been in the glove compartment.

[81] Mr. Stewart testified that he had a photo of his insurance and did not have a physical copy of it. He explained that he got stopped and was given a warning for not having the actual slip and he was stopped again and was given a ticket. He stated that he also had a photograph of the registration for the car but kept the paper in a drawer in his room with his other finance papers. The Crown did not introduce any ownership or insurance papers seized from the Audi to undermine Mr. Stewart’s evidence on this point.

[82] In cross-examination, Mr. Stewart was shown a piece of paper in the glove compartment that was an invoice from Top Notch Motors dated January 2022. Mr. Stewart testified that he got an engine replacement under the warranty. He agreed the invoice was in his name. He did not recall when he got it replaced. He testified that he kept his things for the gym in the trunk of his car. He would keep his licence in the arm rest.

[83] Mr. Stewart agreed that prior to his arrest, his family knew that he did not want to be mixed up in any criminality and he had told his uncle that he did not want to have any part in any criminality.

[84] Mr. Stewart did not recall going out to inspect the car at 7:22 p.m. on the date police executed the search warrant as the surveillance officers testified but he agreed that it was possibly him. He also agreed that he drove to 70 Oak Meadow to visit his cousins.

[85] Mr. Stewart also agreed that his uncle was known to drive an Acura. He testified that it was one of his friend’s car. He stated that he would drive the car in the daytime as he believed that person needed the car at night.

[86] Mr. Stewart said when his father picked him up when he obtained bail, his father lectured him all the way home about people using his car. When he got home there were some family members who were there to see them. After that he went downstairs and confronted his uncle. There was no result, his uncle did not say anything. His father came downstairs and intervened and deescalated the situation. Mr. Stewart said he has confronted his uncle two more times, and he just brushed Mr. Stewart off and did not give him any straight answers. They don’t talk anymore. He lives in the basement, and nobody talks to him anymore. Mr. Stewart testified that he believes that either his uncle or someone who was with his uncle in the car with him put the firearm there.

Mr. Stanley Stewart

[87] Stanley Stewart (“Stanley”) is Mr. Stewart’s father. He testified that they have a close relationship as he has been a single father to Mr. Stewart since he was three years old. He has kept his children active when growing up. Stanley coaches Mr. Stewart with his boxing so they train and travel together.

[88] Stanley owns a renovation company. He has one or two employees and will bring his boys in to work as well.

[89] Stanley confirmed that Mr. Stewart’s bedroom is S1 on exhibit. He also confirmed that Mr. Downey rents a room in the basement. He has rented that room for about five years when he was not in custody. Stanley explained that Mr. Downey was in and out of custody and he would stay with them when he was out of custody.

[90] Stanley owns an Acura SUV. He stated that sometimes his girlfriend would use it, and the boys may use it to go to the store, but he does not loan out his car. He stated that he would not loan his car to Mr. Downey because he doesn’t have a licence, and he isn’t on his insurance. Stanley stated he did not want to jeopardize his commercial insurance.

[91] Stanley testified that Mr. Stewart purchased the Audi about 8 months prior to his arrest.

[92] Stanley testified that Mr. Stewart would let his brother use the car to go to his girlfriend’s house to pick up his son to visit but he would not let him take the car if he was staying over night.

[93] Stanley testified that Mr. Downey did not own a vehicle. He would use multiple means to travel. He would walk, ride bike, uber, and Mr. Stewart would sometime loan his car. Stanley said Mr. Downey borrowed the Audi a couple of times a week, but it wasn’t on a schedule. He testified that this had been going on for months prior to Mr. Stewart’s arrest. He agreed in cross-examination that he wasn’t keeping track of when Mr. Downey used the Audi, but he was pretty confident that it was at least two to three times a week.

[94] In cross-examination, Stanley testified that he knew that Mr. Downey drove the Audi in the evening because Mr. Stewart worked for the city of Brampton snow plowing and they went to the gym in the early evening to train. He recalled Mr. Stewart complaining that Mr. Downey took the car without asking.

[95] Stanley could not say when the borrowing of the Audi started. He stated that at some point he had to speak to Mr. Stewart because he noticed a pattern. He explained that it wasn’t just Mr. Downey, Mr. Stewart would let his cousins and brother drive the Audi. It became a situation where Mr. Stewart was free with his vehicle, and it was not good practice. He agreed that it was not good practice, particularly as it related to Mr. Downey, given his criminal history. Stanley stated that it wasn’t just Mr. Downey’s illegal activity — he also wasn’t licenced. If the car was pulled over it could get impounded or if it was in an accident, it wouldn’t be insured.

[96] Stanley testified that he spoke to his son multiple times about letting others use his Audi. Stanley knew that his brother was offering Mr. Stewart compensation, and he didn’t know if this was the incentive, but his son wasn’t listening. When he spoke to his son, Mr. Stewart would try to give Stanley a justification for why his uncle needed to use the car.

[97] Stanley stated that he has never seen his son with a firearm, and he has never seen Mr. Downey with a firearm. Stanley testified that Mr. Downey had a lock on his room. He did not find this suspicious. Mr. Downey is a grown man and wanted his privacy. Stanley stated that there were other people coming into the house and Stanley trained others in the basement where Mr. Downey’s bedroom was located.

[98] Stanley testified that on the day police executed the search warrant, he and Mr. Stewart were in the basement training when they heard a loud bang. They went upstairs and the police handcuffed them both and took them outside. Police detained him in a police cruiser and after an hour he was allowed to go back to his house. He was told the search warrant was on the table and that his son was arrested on a firearm charge.

[99] Stanley said he was upset and confused when he was told that his son was arrested for the firearm. He started thinking “did my brother get this kid into trouble?” Stanley said he thought of his brother because he has been in a lot of trouble in his life, and he knew that he has been charged with weapons and guns and it was his first thought. He didn’t think his son had anything to do with weapons.

[100] In cross-examination, Stanley testified that his first thought was not that his son got into trouble. He knew that Mr. Downey had used his son’s vehicle.

[101] The next time Stanley saw his son was at the bail hearing on zoom 10 days later. Mr. Stewart was released on a house arrest under Stanley’s supervision. Stanley picked him up at Maplehurst and drove him home. Some family members were there when he got home.

[102] After some time, Stanley went upstairs. He then heard a commotion in the basement. He went down and heard Mr. Stewart screaming and cursing at Mr. Downey. Stanley tried to diffuse the situation and told Mr. Stewart to go upstairs.

[103] Stanley testified that he also confronted his brother about the firearm. He did not get any response. Mr. Downey basically ignored him. Stanley testified that he has tried many times to have a conversation with him about the firearm and he did not get much information. Stanley testified that this has put a major strain on their relationship. He explained that they were close, and he has looked out for his brother when a lot of his other family members would not take him in. This incident has torn the family apart.

[104] When asked how he felt about his brother he said he has mixed feelings. He is his older brother and was always close to him growing up, so he has brotherly love. He is also upset with him because he believes he got his son into trouble.

Position of the Parties

[105] Both parties agree that the only issue in this case is whether the Court is satisfied beyond a reasonable doubt that Mr. Stewart possessed the firearm.

[106] The Crown submits that it has proven beyond a reasonable doubt that Mr. Stewart had constructive possession of the firearm. The Crown submits that the defence evidence should not be believed, nor should it raise a reasonable doubt. Mr. Stewart tried to distance himself from using the glove compartment and was inconsistent in his evidence about whether he told his uncle not to be involved in any criminal activity when using his car.

[107] The Crown submits that the only reasonable inference that can be drawn from the evidence is that Mr. Stewart possessed the firearm. He owned the Audi. He was the last person seen to drive the Audi. The firearm was in the glove box positioned in a way that was easily accessible to the driver. Importantly, the Crown submits that it does not make sense that Mr. Downey would leave a loaded prohibited firearm in a vehicle that he did not have access to, given its value. The firearm could be found by his nephew or anyone else who used the Audi.

[108] The defence submits that there is another reasonable explanation for the firearm being found in the glove compartment - Mr. Downey put the firearm in the glove compartment the night before when he used the Audi.

[109] The defence submits that there is no basis to disbelieve Mr. Stewart’s evidence that Mr. Downey used the Audi the previous evening.

[110] The defence submits that Mr. Stanley Stewart’s evidence corroborated Mr. Stewart’s evidence. Stanley Stewart’s evidence that Mr. Downey used the Audi and gave his son cash was unchallenged. Mr. Downey had a criminal history that included charges involving firearms.

[111] It is also the position of the defence that the surveillance evidence does not undermine Mr. Stewart’s evidence that his uncle routinely borrowed the Audi. On January 29, 2022, the police could not identify who was in the Audi. The defence also submits that there are failings with the police’s identification evidence. The police officers only looked at the run sheet on the first day. Mr. Stewart has a brother who is of similar build and has similar hair and cousins who also used the Audi. The defence submits that the police jumped to the conclusion that it was always Mr. Stewart driving the Audi, particularly DC Shaw, who claimed to be able to identify Mr. Stewart when he was wearing a white balaclava. In addition, only one officer could recall how far they were away when they made their observations, which further lessens the reliability of the officer’s evidence.

[112] The defence submits that when all the evidence is considered, the inference that Mr. Stewart had knowledge and control of the firearm is not the only reasonable inference and therefore he must be acquitted.

Guiding Legal Principles

[113] Mr. Stewart, like all persons charged with a criminal offence in Canada, is presumed innocent until proven guilty. The Crown must prove beyond a reasonable doubt that Mr. Stewart is guilty of the offence set out in the indictment. That burden of proof remains on the Crown throughout the trial. There is no onus on Mr. Stewart to prove anything.

[114] The standard of proof beyond a reasonable doubt is exacting. It is more than probable or likely guilt and falls much closer to absolute certainty than it does to proof on a balance of probabilities. Ultimately, I may find Mr. Stewart guilty only if I am sure that he committed the offence alleged.

[115] The Crown “is not required to prove or disprove beyond a reasonable doubt any single fact, or any item of evidence, unless that fact or item is an element of the offence or an element of a defence”: R. v. B.D., 2011 ONCA 51, para 96.

[116] In this case, the Crown argues that Mr. Stewart constructively possessed the firearm: that he had the firearm in any place, whether that place belongs to or is occupied by him, for the use or benefit of himself or for others.

[117] The Court of Appeal in R. v. Choudry, 2021 ONCA 560, para 19, set out the relevant legal principles for constructive possession:

• 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, para 17; and R. v. Lights, 2020 ONCA 128, 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, para 13; R. v. Lincoln, 2012 ONCA 542, paras 2-3; and R. v. Bertucci, 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, paras 55-56; Lights, at para. 39; and R. v. Stennett, 2021 ONCA 258, paras 60-61.

[118] The Crown asks this court to infer from the surrounding circumstances that Mr. Stewart had the requisite knowledge for possession. The approach to be taken when considering circumstantial evidence was discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, para 30. To be satisfied beyond a reasonable doubt of the guilt of Mr. Stewart, I must be satisfied that there is no other reasonable explanation for the firearm being in the glove compartment other than Mr. Stewart knew and had a degree of control over the firearm. It is not enough that the inference of guilt is the strongest inference; it must be the only reasonable inference.

[119] Alternative inferences need not be based on proven facts. The court must consider “other plausible theories” or “other reasonable possibilities” that are inconsistent with guilt. The Crown may need to negate the reasonable possibilities, but the Crown need not “negate every possible conjecture, no matter how irrational or fanciful which might be consistent with the innocence of the accused”: Villaroman, at para. 37.

[120] Justice Hill pointed to several factors that the court may consider in determining possession in R. v. Anderson-Wilson, 2010 ONSC 489, para 74:

1. the physical proximity of the firearm to the accused
2. the degree of visibility of the firearm
3. the degree of communal use of a vehicle containing the firearm
4. the size, nature and number of weapons in a particular space
5. the nature of other items located proximate to the firearm capable of providing context for inferences of knowledge and control

[Citations omitted.]

[121] The line between plausible theory and speculation is not always easy to draw but the basic question is whether the circumstantial evidence, viewed logically considering human experience, is reasonably capable of supporting an inference other than that the accused is guilty: Villaroman, at para. 38.

[122] In this case, defence evidence was called; as such the court must also consider the principles established by the Supreme Court of Canada in R. v. W.D.:

i. If I believe the defence evidence, I must acquit.
ii. Even if I do not believe the defence evidence, but it leaves me with a reasonable doubt when considering all the evidence, I must acquit.
iii. If I am not left with a reasonable doubt by the defence evidence, I must still be satisfied that based on the evidence that I accept, I am satisfied of the accused’s guilt beyond a reasonable doubt.

[123] There is no requirement that I consider these principles in the above order, but I must apply the basic elements of the test: R. v. Minuskin, para 22. In the final analysis, I must be satisfied beyond a reasonable doubt on the whole of the evidence that Mr. Stewart possessed the firearm to find him guilty of the offence.

Analysis

[124] The Crown submits that the only reasonable inference to be drawn from the evidence is that Mr. Stewart had knowledge and control over the firearm found in the glove compartment. In support of its position, the Crown relies on the following evidence:

a) The firearm was found in the glove compartment of the Audi that was parked in the driveway at 10 pm.
b) Mr. Stewart was the only person seen using the Audi between 2:04 p.m. until police executed the search warrant at 9:20 p.m.
c) Mr. Stewart owned the Audi. He made the car payments and paid the insurance.
d) Mr. Stewart had control over who could access the Audi. While others may have borrowed his car, they had to ask permission to do so. Mr. Stewart was the primary driver of the car. The Crown submits that Mr. Stewart exaggerated the use of the car by others. When the police conducted surveillance, he was the only person seen to drive the Audi on five separate dates. It was only on the first date that the police could not identify who drove the Audi. The Crown also submits that it is unreasonable to believe that the surveillance officers mistook Mr. Downey for Mr. Stewart, given the age difference and a comparison of the two photos.
e) The keys to the Audi were found in Mr. Stewart’s bedroom.
f) The Audi was locked prior to it being searched.
g) Mr. Stewart made use of the other nonvisible locations in the Audi including the console, where his wallet was found, and the trunk where he kept his gym clothes.
h) The firearm was not visible, but it was not hidden away. It was immediately accessible to anyone who opened the glove compartment.
i) The butt of the firearm was pointed towards the driver’s seat and was therefore positioned so that a driver could reach it. I note that the firearm was not as readily accessible as in other cases where for example the firearm is under the driver’s seat or in the console.
j) This was a loaded prohibited firearm. The Crown submits that it is not an item that one readily leaves lying around. It is valuable and therefore it is not an item that would be neglected in a moving vehicle without a knowledgeable caretaker.
k) Mr. Downey was not seen using the Audi that day. He was seen in an Acura the day police executed the search warrant, returning home at 2:49 p.m. He also entered two other vehicles between 5:32 p.m. and 5:44 p.m. for brief periods of time as opposed to using the Audi.
l) While Mr. Stewart tried to distance himself from accessing the glove compartment, a receipt in his name dated January 2022 was found under the firearm in the glove compartment.

[125] Based on the Crown’s evidence, a reasonable inference could readily be drawn that Mr. Stewart possessed the firearm. However, Mr. Stewart called defence evidence, which I must also consider in determining if the only reasonable inference is that Mr. Stewart had knowledge and control over the firearm.

[126] Ultimately, I am left with a reasonable doubt that the only reasonable inference is that Mr. Stewart knew the firearm was in the glove compartment when I consider the defence evidence along with the rest of the evidence. I have come to this conclusion for the following reasons.

[127] First, I accept Mr. Stewart’s evidence that others used the car, and that Mr. Downey used it frequently. The Crown did not challenge that others may have used the car but submitted that it was not a communal car and Mr. Stewart controlled who had access. Mr. Stewart was not seriously challenged about his evidence that his uncle used the Audi approximately two to three times a week. There was nothing internally inconsistent in Mr. Stewart’s evidence. Nor was there any inconsistency between his evidence and the other evidence in this case. He was responsive to the questions that were put to him. He did not try to avoid answering difficult questions. I found that his answers about why he would let his uncle, whom he knew had a criminal history and no insurance, use his car to be honest — his uncle was family and gave Mr. Stewart money to use the Audi. The only inconsistency in Mr. Stewart’s evidence was that in examination in chief he said his concerns with letting Mr. Downey use the Audi was that he would crash it. In cross-examination, he then said he also warned Mr. Downey not to use it for any criminal activity. I do not view this as an inconsistency that significantly undermines Mr. Stewart’s credibility. Mr. Stewart never suggested that he was unaware of his uncle’s criminal activity. His uncle has been in and out of custody Mr. Stewart’s whole life. He still cared for his uncle and his uncle gave him cash which went a long way to helping cover the expense for the Audi for a young man with limited income.

[128] Mr. Stewart’s evidence that he let his uncle borrow his car frequently was corroborated by his father Stanley Stewart. I recognize that Stanley Stewart had an interest in supporting his son, given their close relationship. I found Mr. Stewart to be a straightforward no nonsense witness. His evidence was not challenged by the Crown in any meaningful way. Stanley Stewart was clear that he had warned his son about letting anyone use his car prior to his son’s arrest but was aware that Mr. Stewart continued to let his uncle use the Audi. He also confirmed that Mr. Downey gave his son cash and used the Audi mostly at night because Mr. Stewart worked in the days for the City of Brampton or worked for him and they trained in the early evenings.

[129] I do not find that the surveillance evidence undermines Mr. Stewart’s evidence that his uncle borrowed the Audi approximately twice a week and that others borrowed his car. The surveillance occurred on five days over a three-week period. On the first date, four people were seen exiting the Audi but the police could not identify who was driving. Importantly the surveillance was not done at night.

[130] I also have some concerns about the quality of the surveillance evidence, given that many of the surveillance officers testified that they did not have the run sheet with them when they identified Mr. Stewart. At the time, the police were not aware that other family members, including Mr. Stewart’s brother and cousins who were of a similar age, also used the car based on Mr. Stewart’s and Stanley Stewart’s evidence, which I accept.

[131] Second, I do not find that the receipt from January 2022 found in the glove compartment undermined Mr. Stewart’s evidence that he could count on his hand the number of times he accessed the glove compartment. As a matter of common sense and life experience it is not uncommon for people to keep receipts for their car repairs in the glove compartment. It is also a matter of common sense and life experience that owners of vehicles do not check their glove compartment daily as compared for example to the console or even the side pocket of the door.

[132] Third, Mr. Downey has a lengthy criminal history that includes firearm charges. DC Shaw testified that if the detailed print out showed that Mr. Downey had outstanding firearm charges from July 2021. He stated that if that was on the printout at the time he would have been aware of that and the fact that Mr. Downey was on a firearm prohibition at the time of the investigation.

[133] Fourth, I accept Mr. Stewart’s evidence that he was not aware of exactly what charges his uncle had outstanding or had been convicted of but knew that his uncle had a lengthy criminal past. His evidence on this point was not challenged. It makes sense that Mr. Stewart let his uncle use the Audi. He was family, and importantly Mr. Downey gave Mr. Stewart money when he used the Audi.

[134] Fifth, there are no fingerprints or DNA on the firearm.

[135] Six, the firearm was not visible in the sense of sticking out from under a seat where Mr. Stewart would have been expected to see it when he drove the Audi that evening, as was the case in R. v. Ali, 2008 ONCA 741, para 4.

[136] I agree with the Crown that it seems very unlikely that a person would leave a valuable, illicit, and dangerous item such as this firearm in the glove compartment of someone else’s car. But the evidence and theory raised by the defence raises a reasonable doubt. This is not a case where the accused is alleging that a prior renter or random person left a firearm in a vehicle: R. v. Ali, [2023] OJ. No. 6116 (C.J.), at para. 202. It is plausible that Mr. Downey, who had outstanding gun charges would view leaving the firearm in his nephew’s car as a safe place. There is evidence that Mr. Downey used the vehicle the evening before. The vehicle was owned by a member of the family so if the firearm was found, there was not the same risk of the matter being reported to police as if it was in a random person’s vehicle. Mr. Stewart did not want to get into trouble with the police nor would it be likely that he would want to turn in a family member. Mr. Downey may not have wanted to have the firearm in his room or on his person given his outstanding charges and his firearm prohibition. It is also plausible that Mr. Downey would not have checked the glove compartment on a regular basis to see what was in the glove compartment.

[137] While I think it quite likely that Mr. Stewart knew the firearm was in the glove compartment and therefore possessed the firearm in the Audi, I am not sure that is the only reasonable inference to be drawn from all the evidence and therefore I am left with no option but to acquit Mr. Stewart.

Dennison

Released: February 26, 2025