Ontario Superior Court of Justice

Court File No.: CR-24-28
Date: 2025-06-26

Between

His Majesty the King
Applicant
Counsel: Darren Anger, for the Public Prosecution Service of Canada

and

Kimera Fullwood
Respondent
Counsel: Roy Wellington, for the Defendant

Heard: May 12 & 13, 2025

Reasons for Judgment

Latimer J

Introduction

[1] On May 13, 2025, Kimera Fullwood re-elected his mode of trial to judge alone. He was arraigned on charges of possession of methamphetamine and fentanyl for the purpose of trafficking and pleaded guilty to those charges. He was also arraigned on four charges related to the possession of a handgun and pleaded not guilty to those charges. These Reasons relate to the trial proceeding that followed in relation to the firearm charges.

[2] Much of the prosecution case was admitted as part of an agreed statement of facts – see Exhibit 1. The Crown otherwise called one witness – D/C Landry, who testified quite helpfully regarding this investigation; specifically, the layout of a residence and the various seizures and individuals found within the residence.

[3] Stepping back for a moment, this case involved police surveillance during a drug trafficking investigation and a search warrant eventually being executed on 13 Bowman Crescent, Thorold, Ontario. In the early morning on April 7, 2022, the police entered the residence and found Mr. Fullwood sleeping in an upstairs bedroom. He was arrested and, in the closet of the same bedroom, a cooler was located that contained a significant quantity of fentanyl and crystal methamphetamine. These are the narcotics that Mr. Fullwood has acknowledged possessing for the purpose of trafficking.

[4] The home, as it has been described by D/C Landry, has three additional bedrooms. Based on police photographs taken of the bedrooms, as well as the main floor and basement, I would not describe the home as having a “lived in” quality. The rooms are not populated with a great deal of furniture, and air mattresses are located on the main floor.

[5] In an unoccupied bedroom—not the one Mr. Fullwood was sleeping in—cocaine and a loaded gun were discovered. The gun was in a hamper, wrapped in a pair of rolled up black jeans. It is depicted in the photographs as a black gun, loaded with nine rounds. It is an admitted fact this is a prohibited firearm and Mr. Fullwood has no legal authority to possess such an item, if indeed he was in possession of it, which is the key question in this trial – Can the Crown prove beyond a reasonable doubt that, on April 7, 2022, he was in possession of this firearm?

[6] The Crown bears the burden of proof on this issue; the defence need not prove anything. There is no direct evidence of Mr. Fullwood’s knowledge of the firearm in the residence. The Crown’s theory of possession rests on what we call circumstantial reasoning.

The Law on Circumstantial Evidence

[7] The Supreme Court of Canada recently reviewed circumstantial reasoning in R. v. Villaroman, 2016 SCC 33, 338 CCC (3d) 1. I find helpful the summary of that judgment found in R. v. Gill, 2017 ONSC 3558, 140 W.C.B. (2d) 237, a decision of Justice Michal Fairburn, at the time sitting on the Superior Court of Justice. I particularly note paragraphs 9 through 13 of Gill, which I draw from heavily in making the following observations:

a) The correct approach to circumstantial evidence and the inference drawing process is as follows: Where one or more element of an offence relies largely or exclusively on circumstantial evidence, “an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits”: Villaroman, at para. 30. Staying focussed on the question of whether circumstantial evidence admits of other reasonable alternative inferences, ensures that the trier of fact does not “fill in the blanks” or “jump to conclusions” too quickly: Villaroman, paras. 29-30.

b) Inferences consistent with innocence do not have to arise from proven facts: Villaroman, at para. 35. As Fish J. observed in R. v. Khela, 2009 SCC 4, at para. 58, the defence does not have to “‘prove’ certain facts in order for the jury to draw an inference of innocence from them”. To make this a requirement for finding alternative rational inferences would be to reverse the burden of proof. Ultimately, the court must consider the “range of reasonable inferences that can be drawn” from the circumstantial evidence. As in Villaroman, at para. 35, “[i]f there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.”

c) A theory alternative to guilt is not “speculative” simply because there is no affirmative evidence supporting the theory. A “theory alternative to guilt” can arise from a lack of evidence: Villaroman, at para. 36. Gaps in the evidence can result in inferences other than guilt, but they must be “reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”: Villaroman, at paras. 36-38.

d) Reasonable possibilities and theories inconsistent with guilt must be considered, but this does not require the Crown to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: Villaroman, at para. 37, adopting R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. Other reasonable inferences must find support in logic and experience and not rest on speculation.

e) As noted by Cromwell J. in Villaroman, at para. 38, the “basic question” is whether the circumstantial evidence, “viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty”.

The Parties' Submissions

[8] The Crown submits that the only permissible inference available is that Mr. Fullwood was in possession of the firearm located in the home. He had joint control over the home with others, and the evidence reflects a meaningful connection between him and the property. For example, it can be established as fact that he was involved in paying the gas bill for the property. I would note, at this point, that I accept that fact as proven on this record. I further accept that the phone seized and examined was Mr. Fullwood’s phone. There is also substantial evidence available in the record to demonstrate that he was involved in drug trafficking. From there, it is submitted, it is an easy leap to the conclusion that someone involved in the drug trade would have possession of a firearm, and that I should take judicial notice of that linkage. While other people were within the home at the time of the search warrant execution, Mr. Fullwood was the only person in a bedroom, as the rest were sleeping in the main floor living area. This demonstrates, it is submitted, a hierarchy with the defendant on top. It is reasonable that such a person would have knowledge of a deadly weapon’s presence within the home.

[9] The defence submissions, in contrast, point out that some of the evidence the Crown relies on is not what it first appears—the best example being the “organizer of this organization” picture/text message. The defendant is guilty of possession of drugs for the purpose of trafficking, as the evidence comfortably establishes that fact. The evidence of firearm possession is not nearly as concrete. Most importantly, the defence submits, there is a credible exculpatory theory available on the evidence—that Hasnan Sandhu, found in the home during the search warrant execution, who had not previously been seen during surveillance, brought the gun into the residence the night before and secreted it in the bedroom clothes hamper without Fullwood’s knowledge. If the evidence is reasonably capable of supporting this inference, Mr. Fullwood is not guilty of the firearms charges.

I. Possession

[10] Possession, for criminal liability purposes, is defined in section 4(3) of the Criminal Code. A party may be in personal, joint, or constructive possession of an item. As already noted, Mr. Fullwood was not in personal possession of the firearm. The Court of Appeal for Ontario discussed constructive and joint possession in R. v. Pham, 203 CCC (3d) 326, at paras. 16-18:

In order to constitute constructive possession, which is sometimes referred to as attributed possession, there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. (citations omitted)

In order to constitute joint possession pursuant to s. 4(3)(b) of the Criminal Code there must be knowledge, consent, and a measure of control on the part of the person deemed to be in possession. (citations omitted)

The element of knowledge is dealt with by Watt J. in the case of R. v. Sparling, [1988] O.J. No. 107 (H.C.J.), at p. 6 (QL):

There is no direct evidence of the applicant's knowledge of the presence of narcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied by the applicant, and the applicant's apparent occupation of the premises may serve to found an inference of the requisite knowledge.

The Court of Appeal decision in R. v. Sparling, [1988] O.J. No. 1877, 31 O.A.C. 244 (C.A.) upheld the above passage as being sufficient evidence to infer knowledge.

The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession. This can be accomplished by direct evidence or may be inferred from circumstantial evidence. In R. v. Chambers, supra, Martin J.A. noted that the court may draw "appropriate inferences from evidence that a prohibited drug is found in a room under the control of an accused and where there is also evidence from which an inference may properly be drawn that the accused was aware of the presence of the drug".

II. Analysis

[11] Having assessed the entirety of the evidence in this case, and listened to the lawyers’ submissions, while the Crown has compiled a strong argument for criminal possession, I am not satisfied that they have met their high burden of proof. I find the following facts to be particularly relevant in my analysis:

a) There was a lot of laundry in the room where the firearm was located, including part of a tracksuit (the pants portion) that Mr. Fullwood had earlier been seen wearing. A receipt for a winter jacket with his name was also located. Another individual, however, appears to have been wearing the jacket.

b) The overall disarray in the residence does not suggest areas of the home were used for any defined purposes. For example, I cannot conclude that the room Mr. Fullwood was found sleeping in was his bedroom; it is equally possible that it was simply the room he chose to sleep in on April 6, 2022, the night before the search warrant execution. His lack of physical closeness from the gun, however, does not add weight to the Crown’s case. As a general proposition, the closer one is to an item, the more likely one knows about its existence.

c) The photo of the defendant holding a different gun does not assist in proving possession of this gun. Propensity reasoning is presumptively inadmissible. The gun in the picture looks meaningfully different than the gun in question. The fact that he may have held a gun at another time is not relevant to whether he possessed this gun on April 7.

d) I accept that Mr. Fullwood has a significant connection to the residence. He was found sleeping in a bedroom, and the police had surveilled him there on multiple occasions. Further, his payment of a utility suggests a meaningful level of overall connection or control with the residence. It is not, however, determinative of the possession question. It is simply one in a collection of facts.

e) There is a photo on Mr. Fullwood’s phone of 9mm bullets with the caption “new shots for my babies”. As the gun in question is a 9mm firearm, this evidence has meaningful probative value on the question of possession.

f) During the surveillance period, the police had identified five individuals connected with the residence. The defendant was one of those five. Several of these men were in the residence, sleeping on the main floor, on April 7 during the early morning search warrant execution. An individual also in the home, but not previously seen by police during surveillance, was Hasnan Sandhu. A phone in his possession, seized incident to his arrest, was forensically examined. Photos of him holding firearms in a different location (i.e., not 13 Bowman) were found, including one with a gun on what I accept is Mr. Sandhu’s lap. A comparison of that photo and SOCO photo 103 compels a conclusion that it is the same gun. I find that fact on this record.

g) No forensic testing of any kind (e.g. fingerprints, DNA) was done on the firearm.

[12] Returning to Justice Cromwell’s “basic question” in Villaroman, the circumstantial evidence in this case is reasonably capable of supporting an alternative inference—that Sandhu brought the firearm into 13 Bowman late in the evening on April 6 (when the police did not see him) and secreted it in the laundry hamper while he slept on the main floor. On such a scenario, Mr. Fullwood would not have the required knowledge and control over the item to make out criminal possession. In attempting to deal with this issue, the Crown submits that a firearm possessor would not hide the gun on a separate level of the house, as he would want to keep the weapon close. While there is some superficial attraction to this submission, I cannot conclude that this would be a universal trait of all people in possession of a firearm. It does not make the exculpatory inference proffered by the defence unreasonable in this case.

[13] The record in this case compellingly connects the defendant to drug trafficking and an immersion into the related drug subculture. It is entirely possible that he was in possession of this firearm as part of that lifestyle. But I am not sure, largely because of the Sandhu-related evidence identified by defence counsel. In the circumstances, I acknowledge a reasonable doubt.

III. Disposition

Kimera Fullwood is found not guilty on counts 1 to 5 on the indictment. On a previous date, he was found guilty of counts 7 & 8. Count 6 is withdrawn at the request of the Crown.

Latimer

Released: June 26, 2025