His Majesty the King - v. -, 2023 SKPC 3

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 3 Date: January 13, 2023 Informations: 991188083, 991188088 Location: Regina _____________________________________________________________________________ Between: His Majesty the King - and - Tyler Nathan Desnomie Appearing: Nathanial Scipioni For the Crown Tyne Hagey For the Accused TRIAL DECISION M. HINDS , J [ 1 ] On December 12, 2022, a trial took place respecting multiple charges against the accused, Tyler Nathan Desnomie set out in two Informations.

At the conclusion of the trial the Crown sought convictions on the following offences: Information 991188083 That on or about February 15, 2022 at or near Regina, Saskatchewan he did:

(3) Possess a firearm, to wit: sawed-off .22 calibre rifle , not being the holder of a licence under which they may possess it, contrary to section 91(1) of the Criminal Code .

(10) Possess a loaded prohibited firearm together with readily accessible ammunition capable of being discharged in the said firearm and was not the holder of an authorization or licence under which they may possess the said firearm in that place, contrary to section 95(1) (

a) of the Criminal Code .

Information 991188088 That on or about February 15, 2022 at or near Regina, Saskatchewan he did:

(6) Possess a firearm, to wit: sawed-off .22 calibre rifle, while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code .

(8) Possess ammunition to wit: ammunition, while he was prohibited from doing so by reason of an order made pursuant to

section 109 of the Criminal Code , contrary to

section 117.01(1) of the Criminal Code .

(9) Being bound by a probation order made by a Judge of Provincial Court of Saskatchewan on the 26th day of July 2021, without reasonable excuse fail to comply with a condition thereof, to wit: that the offender shall keep the peace and be of good behaviour, contrary to

section 733.1(1) of the Criminal Code of Canada .

(10) Being at large on an undertaking, fail to comply with a condition, thereof, to wit: live at House 26, Cowessess FN, Broadview, Sk., which shall be your approved residence and not change that address without prior permission of a member of the Regina Police Service or the Court, contrary to section 145(4) (

a) of the Criminal Code . [ 2 ] For the following reasons I found the accused not guilty of these offences. Facts [ 3 ] On July 26, 2021, Judge Evanchuk of the Provincial Court of Saskatchewan ordered (Exhibit P-5) that Tyler Nathan Desnomie was prohibited from: (

a) having in his possession any Firearm (not including a prohibited firearm or a restricted firearm), cross-bow, restricted weapon, ammunition or explosive substance for a period of 10 years; and (

b) having in his possession any prohibited firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 4 ] Exhibit P-3 is a Probation Order dated July 26, 2021 whereby Judge Evanchuk placed Tyler Nathan Desnomie on probation for the period of 18 months on several conditions, one of which was to keep the peace and be of good behaviour. [ 5 ] Exhibit P-4 is an Undertaking which Tyler Nathan Desnomie entered into on December 30, 2021 whereby he was to live at House 26, Cowessess FN, Broadview, Sk. which shall be your approved residence, and not change that address without prior permission of a member of the Regina Police Service or the Court. [ 6 ] On February 2, 2022, Sgt.

Chad Hesse was conducting surveillance in the area of a town house located at 3846 Regency Crescent in Regina between 4:30 p.m. and 8:30 or 9:30 p.m. At 5:20 p.m. Sgt. Hesse observed the accused, Tyler Desnomie and unknown male #1 leave the Regency Pub, walk across 3 rd Avenue North toward 3846 Regency Crescent. At 7:00 p.m. Sgt. Hesse looked into the second floor window which was situated above the ground level door at 3846 Regency Crescent and observed Tyler Desnomie to be inside the residence. Sgt Hesse subsequently observed Tyler Desnomie and unknown male #1 leave 3846 Regency Crescent at 7:20 p.m.

Tyler Desnomie closed the door behind him and was seen to use a key to secure the door. Tyler Desnomie and unknown male #1 got into a car and departed. [ 7 ] On cross-examination, Sgt. Hesse admitted that a number of people were coming and going from 3846 Regency Crescent on February 2, 2022 during the time he was conducting his surveillance. At 6:18 p.m. Sgt. Hesse observed unknown male #2 wearing a black jacket get dropped off by a cab and go into the residence. At 6:40 p.m. he also observed an SUV park in front of the residence.

He observed a younger Indigenous unknown male #3 get out of the SUV with a backpack, knock on the door and was let into the residence. At 6:56 p.m. Sgt. Hesse observed three males leave the residence and throw out a bag of garbage in a bin. They then walked towards 3 rd Avenue North. At 6: 58 p.m. these three were observed at the door to the Regent Pub. These three males consisted of unknown Indigenous male #3, unknown male #4 who he described as being Indigenous, thin and in his 40’s and unknown male #5 who was wearing a black and yellow toque.

At 7:16 p.m. unknown male #5 went inside 3846 Regency Crescent with some grocery bags. That

evening Sgt. Hesse also observed at least two females go in and out of the residence and two additional unknown younger males (unknown males #6 and #7) exit and go back inside the residence. Later on that evening Sgt. Hesse observed a male with longer hair (unknown male #8) go to the front and then inside the residence. In addition, Sgt. Hesse observed two females and an additional male (unknown male #9) wearing a flannel jacket go inside. Sgt. Hesse also observed an additional male (unknown male #10) wearing a Michael Jordan jersey who went in the front door. By my count, it appears that Sgt.

Hesse observed ten unknown males and four unknown females go into or leave 3846 Regency Crescent between 4:30 and 9:30 p.m. on February 2, 2022. [ 8 ] Corporal Sheldon Tillotson testified that on February 15, 2022 a search warrant was obtained for 3846 Regency Crescent. He was on the scene at 9:40 p.m. along with several other police officers when the search warrant was executed. The front door of the residence was breached and soon thereafter Tyler Desnomie, Stephanie Asapace and Trey Sangwais came out of the residence. No one else was in the residence.

Tyler Desnomie was arrested for charges that have been stayed by the Crown. He was given his rights and warnings and was transported to detention. Stephanie Asapace and Trey Sangwais were arrested on firearm offences. Ms. Asapace’s charges have been stayed. [ 9 ] A search of the residence was conducted by the police. It is comprised of a kitchen, living room and four bedrooms. Three of the bedrooms are located on the second floor of the townhouse. Police also found a mattress and TV located in the basement, near the furnace.

A sawed-off .22 calibre firearm was observed to be lying on top of a red, white and black blanket that was situated beside the mattress. The information regarding this firearm was passed on to forensics. [ 10 ] Constable Aaron Robertson works in forensics with the Regina Police Service. On February 15, 2022 he and Cst. Plonk processed 3846 Regency Crescent at the request of Corporal Tillitson. Constable Robertson located a small calibre rifle situated on top of a red, white and black blanket next to a bed in the basement. He seized this rifle and made it police Exhibit 834-001.

He determined that the rifle was loaded. It contained four .22 calibre long rifle cartridges, Exhibit 834-001C. Constable Roberston swabbed multiple areas of the firearm, Exhibit 834-001, including the grip, along the trigger and forestock area. The cotton swab became Exhibit 834 - 001A and was sent to the National Forensic Laboratory for analysis. [ 11 ] Vivian Mohrbutter works as a Reporting Scientist/Forensic Specialist, Biology Services at the RCMP National Forensic Laboratory in Edmonton, Alberta. She was qualified and testified as an expert witness regarding the

interpretation of results as they pertain to the examination of exhibits for the presence and identification of human biological materials and the results of DNA typing analyses including comparison and identification of profiles and the application of statistical significance to any matches or inclusions found. Ms. Mohrbutter tested Exhibit 834-001A (swab of the modified .22 rifle found in the basement bedroom on top of a blanket) and determined the DNA typing profile obtained is of mixed origin, consistent with having originated from two individuals.

The profile of the major component (95%) matches the profile designated as Male 1. The Male 1 DNA profile as detailed in the report of Vivian Mohrbutter belongs to the accused, Tyler Desnomie. The profile of the trace component (5%) contains limited genetic information and no meaningful comparison can be made to any samples. Paragraph 4 of the Admissions of Fact (Exhibit P-1) states as follows: The DNA profile obtained from Exhibit 834-001, the swab of the modified .22 seized at 3846 Regency Crescent by Cst.

Robertson belongs to the accused Tyler Desnomie. [ 12 ] On cross-examination Vivian Mohrbutter testified that she could not say whether the trace contributor (5%) was a male or female. She agreed that a blanket is a more porous object than metal or wood. She also conceded that porous objects are good at retaining DNA that has been transferred to them. However, porous objects are not great at transferring DNA. In addition, Vivian Mohrbutter testified that it is possible, however, not probable that some transfer of DNA could occur from a blanket to a firearm.

Lastly, she testified that for an object that has not been washed, exposed to sunlight or heat, DNA can persist for a long period of time, up to a year or two. [ 13 ] Paragraph 5 of the Admission of Fact (Exhibit P-1) states as follows: The certificate of analysis completed by Cpl. Chad Anderson is admitted for the truth of its contents. His findings and conclusions therein are agreed upon by counsel and not in dispute. [ 14 ] A Certificate of Analysis completed by Corporal Chad Anderson on March 1, 2022 was entered into evidence as Exhibit P-2 by consent of the parties. Cpl.

Chad Anderson declared that on the 1 st of March 2022, in the city of Regina, in the Province of Saskatchewan, I received and test fired the following exhibits described as:

Exhibit 834-001 - Make CBC; Model: Nylon 66 Copy, Type; Rifle; Action: Semi Automatic; Calibre: 22 LR; Serial #: None. Exhibit #834-001C Ammunition: Calibre 22LR In addition, Cpl. Anderson certified that: 1. Exhibit #834-001 functioned correctly during testing and is a firearm within the meaning of

section 2 of the Criminal Code , in that it is a barreled weapon from which a projectile can be discharged and is capable of causing serious bodily injury or death to a person. The firearm discharged conventional ammunition designed to attain a velocity exceeding 152.4 meters per second and an amount of energy exceeding 5.7 Joules. 2. Exhibit #834-001 is a prohibited firearm within the meaning of Section 84(1) of the Criminal Code , in that the firearm is adapted from a rifle whether by sawing, cutting or any other alteration, and that, as so adapted is less than 660 mm in length. 3.

Exhibit #834-001C (22LR calibre ammunition) functioned correctly during testing and is ammunition within the meaning of Section 84(1) of the Criminal Code in that it contains a projectile designed to be discharged from a firearm. The ammunition is designed to attain a velocity exceeding 152.4 meters per second and an amount of energy exceeding 5.7 Joules. [ 15 ] Paragraph 6 of the Admission of Fact (Exhibit P-1) states as follows: The accused, Tyler Desnomie, does not possess an authorization or license under which he may possess the firearms detailed in the report of Cpl. Chad Anderson.

Further, the accused, Tyler Desnomie, does not possess a registration certificate for the firearms detailed in the report of Cpl. Chad Anderson. [ 16 ] It is noted that forensic police also found several other items at 3846 Regency Crescent including identity documents, firearms and ammunition. [ 17 ] A passport was located on the basement floor as shown in Exhibit P-6, photograph 62. No evidence was presented about who the passport was issued to. Two cell phones and three cards, including a Connexus member card were located in an upstairs bedroom which contained a box spring and mattress.

No evidence was presented about the name of the individual(

s) on the three cards. In this same bedroom three Saskatchewan Identification Cards were located (see Exhibit P-6, photographs 116 and 117). One of these cards was in the name of Mursal Abukar and showed a photograph of him. No evidence was presented on the names of the two other individuals on the other two cards. [ 18 ] After police seized the sawed-off .22 calibre rifle (Exhibit 834-001) they removed the red, white and black blanket found beside the mattress in the basement.

This exposed a sawed-off shotgun (police Exhibit 834-011) which had three shot shells located in the tube beneath the barrel and a revolver pellet gun (police Exhibit 834-012). Another pellet gun was found in the rafters in the basement (Exhibit P-6, photographs 77-82). A CO2 pistol and two pellet guns were found on a black couch in the basement (Exhibit P-6, photograph 73, 74 and 75). A machete was found in a kitchen cupboard. [ 19 ] Other ammunition and magazines were found in the basement area.

This included three shot shells (Exhibit P-6, photographs 167- 171), one casing and one cartridge (Exhibit P-6, photographs 172-173), a magazine (photograph 174-177), a magazine containing twenty five .22 cartridges, (photographs 178-182), banana clip, assorted ammunition, and various spent shot shells (photographs 183-189). [ 20 ] Corporal Chad Anderson received and test fired the following exhibits described as: Exhibit 834-011 -Make Remington; Model:870 Wingmaster, Type: Shotgun, Action: Pump-Action, Gauge: 12, Serial #: V214917V Automatic; Calibre: 22 LR; Serial #: None.

Exhibit #834-011B – Ammunition: 12 Gauge In addition, Cpl. Anderson certified that: Exhibit #834-011 functioned correctly during testing and is a firearm within the meaning of

section 2 of the Criminal Code , in that it is a barreled weapon from which a projectile can be discharged and is capable of causing serious bodily injury or death to a person. The firearm discharged conventional ammunition designed to attain a velocity exceeding 152.4 meters per second and an amount of energy exceeding 5.7 Joules.

Exhibit #834-011 is a prohibited firearm within the meaning of Section 84(1) of the Criminal Code , in that the firearm is adapted from a rifle whether by sawing, cutting or any other alteration, and that, as so adapted is less than 660 mm in length. Exhibit #834-011B (12 gauge ammunition) functioned correctly during testing and is ammunition within the meaning of Section 84(1) of the Criminal Code in that it contains a projectile designed to be discharged from a firearm.

The ammunition is designed to attain a velocity exceeding 152.4 meters per second and an amount of energy exceeding 5.7 Joules. [ 21 ] A swab was taken of 834-011 (the shotgun) and submitted to the RCMP laboratory for analysis. Vivian Mohrbutter determined that the DNA typing profile is of mixed origin consistent with having originated from at least three individuals. The profile of the major component is that of an unknown individual. Issues [ 22 ] There is one issue raised in this trial. It is as follows: 1.

Did Tyler Desnomie possess the modified rifle (Exhibit 834-001) and ammunition within the modified rifle (Exhibit 834-001C) found by police on top of a blanket, beside a bed in the basement of 3846 Regency Crescent? The Law [ 23 ] For many of the counts set out in the Information, the Crown must prove possession . The Criminal Code provides for three forms of possession at section 4(3): personal possession, constructive, and joint possession. Section 4(3) of the Criminal Code reads as follows: Possession 4(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them. [ 24 ] In R v Morin , 2021 SKCA 3 the Saskatchewan Court of Appeal explains the definition of possession as follows at paragraph 14: [14] From this definition, there are three separate ways a person can be found in possession of an item for the purposes of an offence under the Criminal Code . The most obvious way is personal possession, which occurs when an accused, knowing what an object is, manually handles it.

Next, a person can be in constructive possession if he or she has knowledge of the item and some measure of control over its location.

Lastly, an accused can be in joint possession if the object is in the personal possession of a different person with the accused’s knowledge and the accused has some measure of control over it: See R v Fisher , 2005 BCCA 444 at paras 20-24 , 200 CCC (3d) 338: R v Dipnarine , 2014 ABCA 328 at paras 17-20 , 316 CCC (3d) 357; R v Groshok, 2019 SKCA at para 44; and R v Moberly, 2020 SKCA 63 at para 9 . [ 25 ] In this case as the accused was not observed to be manually handling the sawed-off .22 calibre rifle and ammunition in question, the Crown must establish the accused was in constructive possession under section 4(3) (a)(ii) of the Criminal Code .

This requires the Crown to prove the accused had knowledge of and a measure of control over the sawed-off .22 calibre rifle and ammunition in the place it was found (in the basement on top of a blanket beside a mattress). [ 26 ] The Supreme Court of Canada in R v Morelli , 2010 SCC 8 at para 17 , 252 CCC (3d) 273 outlined a test for constructive possession which states that:

[17] ... Constructive possession is thus complete where the accused: (1) has knowledge of the character of the object, (2) knowinglyputs or keeps the object in a particular place, whether or not that place belongs to him, and (3) intends to have the object in the particularplace for his “use or benefit” or that of another person. [27] In this case the Crown is relying on circumstantial evidence to establish that Mr. Desnomie constructively possessed the .22sawed-off rifle and ammunition.

Based on the evidence as a whole including the surveillance evidence regarding 3846 RegencyCrescent on February 2, 2022, the evidence respecting the execution of the search warrant and the location of the items within thepremises on February 15, 2022 and the DNA evidence the Crown asks the court to conclude that the accused knew that the .22 calibresaw-off rifle and ammunition was the near the mattress located in the basement at 3846 Regency Crescent and that he voluntarilyexercised control over it. [28] In R v Anderson-Wilson, 2010 ONSC 489, Justice Hill offered guidance for cases where the Crown is relying on circumstantialevidence to prove a case of constructive possession (paras 71-73): [71] In crimes of unlawful possession, it is "not necessary for the prosecution to prove the required knowledge by direct evidence... itcould be inferred from the surrounding circumstances": R. v.

Aiello (1978), (ON CA), 38 C.C.C. (2d) 485 (Ont.C.A.)at 488 (aff'd (SCC), [1979] 2 S.C.R. 15); see also R. v. Pham (2005), (ON CA), 203 C.C.C. (3d) 326(Ont.C.A.) at para. 18 (aff'd 2006 SCC 26 , [2006] 1 S.C.R. 940); R. v. Anderson, (BC CA), [1995] B.C.J.No. 2655 (C.A.) at para. 15-16. Frequently then, such cases are proven by circumstantial evidence: see R. v. Meggo, [1998] O.J. No.2564 (C.A.) at para. 1. This includes proof of unlawful possession of a firearm: R. v.

Ali, 2008 ONCA 741 at para. 3-7. [72] The essential component of self-instruction on circumstantial evidence is that the trier of fact must be satisfied that the onlyrational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Griffin; R. v. Harris (2009), 2009SCC 28 , 244 C.C.C. (3d) 289 (S.C.C.) at para. 33. Circumstantial evidence must be viewed as a whole and not each pieceindividually: R. v. Warkentin et al. (1976), (SCC), 30 C.C.C. (2d) 1 (S.C.C.) at 20. "[T]he mere existence of anyrational, non-guilty inference is sufficient to raise a reasonable doubt": R. v.

Griffin; R. v. Harris, supra, at para. 34. [73] The Crown may seek to establish the existence of a fact in issue by submitting that an inference may reasonably andcircumstantially be drawn from the primary facts — there exists an inferential gap between the primary fact and the fact to be proved: R.v. Arcuri (2001), 2001 SCC 54 , 157 C.C.C. (3d) 21 (S.C.C.) at 31-2; R. v. Cinous (2002), 2002 SCC 29 , 162 C.C.C.(3d) 129 (S.C.C.) at 172-3. Whether the inference is a reasonable one to draw usually involves an application of "human experience andcommon sense" (R. v. Figueroa et al., 2008 ONCA 106 , [2008] O.J.

No. 517 (C.A.) at para. 33; U.S.A. v. Huynh (2005), (ON CA), 200 C.C.C. (3d) 305 (Ont.C.A.) at 307). Circumstantial inferences are ones which "can be reasonably andlogically drawn from a fact or group of facts established by the evidence": R. v. Morrissey (1995), (ON CA), 97C.C.C. (3d) 193 (Ont.C.A.) at 209. A trier of fact "cannot be invited to draw speculative or unreasonable inferences": R. v. Figueroa etal., at para. 35, 42. Most cases "will involve hiatuses in the evidence which can be filled only by inference": Lameman v. Canada(Attorney General), 2006 ABCA 392 , [2006] A.J. No. 1603 (C.A.) at para. 87.

"The process of drawing inferences fromevidence is not, however, the same as speculating even where the circumstances permit an educated guess": U.S.A. v. Huynh, at 307. [emphasis added] [29] In R v Villaroman, 2016 SCC 33 at para 20, [2016] 1 SCR 1000 the Supreme Court of Canada set out the test to be applied whenthe Crown seeks to prove an element of the offence through circumstantial evidence. In such cases, the trier of fact must be satisfiedbeyond a reasonable doubt that the defendant's guilt is the only reasonable inference to be drawn from the evidence as a whole.

TheAlberta Court of Appeal in R v Bjornson, 2018 ABCA 282, 365 CCC (3d) 175, offered a helpful application of the principles set out inVillaroman as follows: [22] When deciding whether the only reasonable inference is that the accused is guilty, the trial judge has an obligation to considerwhether there are "other reasonable possibilities" that are inconsistent with guilt: Villaroman at paras 36-37. This duty is not limited toconsidering only reasonable inferences that arise from proven facts.

"Requiring proven facts to support explanations other than guiltwrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed byconsidering all of the evidence": Villaroman at para 35. A gap in the evidence, or an absence of evidence, may support a reasonableinference other than guilt, if the inference is supported by logic, common sense and human experience: Villaroman at para 37.

Thus, atrial judge is required to consider whether any reasonable inferences other than guilt arise from the application of common sense andhuman experience to the evidence and the absence of evidence. (See also R v Dipnarine, 2014 ABCA 328 at para 24, 584 A.R. 138.) Did Tyler Desnomie possess the .22 sawed-off rifle and ammunition found by police beside the bed in the basement of 3846Regency Crescent? [30] The Court considers the following evidence as a whole: Police observed the accused at 3846 Regency Crescent (the residence) on two occasions. February 2 and 15, 2022.

A large number of individuals (as many as 15) including the accused, went into and left the residence on February 2, 2022. There is uncertainty as to where these individuals went within the residence and duration of their stay at the residence on February 2, 2022. The evidence conclusively shows the accused was inside the residence for 20 minutes between 7:00 and 7:20 p.m. on February 2, 2022. When the accused left the residence, he closed the door behind him and was seen to use a key to secure the door. The accused was not observed to have returned to the residence on February 2, 2022.

On February 2, 2022 between 6:18 p.m. and 9:30 p.m. police also observed nine other unknown males and four unknown females go into and/or leave the residence. At 6:56 p.m. three unknown males were observed to leave the residence and throw out a bag of garbage in a bin. At 7:16 p.m. an unknown male went inside 3846 Regency Crescent with some grocery bags. There is no indication that police surveillance was done on the residence after 9:30 p.m. on February 2, 2022 and 9:40 p.m. on February 15, 2022.

Despite the large number of people coming and going from the residence on February 2, 2022, it is not known if anyone went into and left the residence for a period of approximately thirteen days. Nor is it known how long anyone stayed in the residence or where they were within the residence during that time. On February 15, 2022, a search warrant was executed at the residence shortly after 9:40 p.m. The front door of the residence was breached and soon thereafter the accused and two others, Stephanie Asapace and Trey Sangwais came out of the residence.

The whereabouts of these three individuals within the residence is not known. A search of the residence was conducted by the police. It is comprised of a basement, kitchen, living room a bathroom on the main floor and three bedrooms and a bathroom on the second floor. Although there were multiple pieces of identification found within the residence, none were shown to belong to the accused. Police also found a mattress and TV located in the basement, near the furnace. A loaded sawed-off .22 calibre firearm was lying on top of a red, white and black blanket that was situated beside the mattress.

A sawed-off shot gun, ammunition and a revolver pellet gun were found underneath the red, white and black blanket. Another pellet gun was found in the basement rafters. A CO2 pistol and two pellet guns were found on a black couch in the basement. Various types of ammunition were also found in the basement. In addition, a machete was found in a kitchen cupboard. The DNA profile obtained from the grip, along the trigger and forestock area of the sawed-off .22 calibre firearm is of mixed origin, consistent with having originated from two individuals.

The profile of the major component (95%) belongs to the accused, Tyler Desnomie. The profile of the trace component (5%) contains limited genetic information and this individual is not known. [ 31 ] In this case the accused did not solely occupy the residence on either February 2 or 15, 2022. [ 32 ] The evidence conclusively shows the accused was inside the residence for 20 minutes between 7:00 and 7:20 p.m. on February 2, 2022. [ 33 ] When the accused left the residence at 7:20 p.m. he used a key to secure the door of the residence.

The Crown urges the court to place a great deal of weight on the fact that the accused possessed and used a key to the residence on February 2, 2022, signifying a measure of control over the residence. However, this measure of control must be viewed in light of the 10 unknown males and four unknown females who went into and left the residence between 6:18 p.m. and 9:30 p.m. on February 2, 2022. It appears a number of people were free to come and go from the residence. Indeed, some of those individuals appeared to have behaved like occupants of the residence.

For example, at 6:56 p.m. three unknown males were observed to leave the residence and throw out a bag of garbage in a bin. In addition, at 7:16 p.m. an unknown male went inside the residence with some grocery bags. Activities such as taking out the garbage and bringing in groceries could reasonably be considered as household tasks often performed by residents. [ 34 ] The accused was next observed to be at the residence thirteen days later on February 15, 2022. He was not alone.

The accused and two others, Stephanie Asapace and Trey Sangwais came out of the residence when the door was breached, shortly after 9:40 p.m. A search of the residence ensued. This search revealed there were four sleeping areas in the residence. Three on the second floor and one in the basement. The evidence does not, in my view, establish that the accused actually used or occupied any of the sleeping areas. There was no evidence before the Court that the accused’s identification documents, clothing or mail were found anywhere in the residence.

Nor was any documentation found showing that the accused leased or rented the residence. A passport was found in the basement,however, it is not known who the passport belongs to. Identity documents and a Connexus Card of other individuals were found in oneof the upstairs bedrooms. [35] In addition to the evidence that the accused had a key to the residence on February 2, 2022 the Crown places much weight uponthe evidence that the accused’s DNA was found on the loaded .22 calibre rifle.

However, the evidence shows that another unknownindividual’s DNA was also found on the loaded .22 calibre rifle. [36] In R v O’Brien, 2010 NSCA 61, 258 CCC (3d) 358 the majority of the Court explained the nature of DNA evidence at para 18as follows: [18] It is well established that DNA evidence is simply a piece of circumstantial evidence. Like fingerprint evidence, it merelyindicates that a person's DNA somehow got where it was found, not that a person committed the crime. (See R. v. Terciera (1998), (ON CA), 123 C.C.C. (3d) 1, [1998] O.J. No. 428 (C.A.), aff'd (SCC), [1999] 3 S.C.R. 866).

The Crownacknowledged that the DNA evidence in this case was the equivalent to that of a fingerprint. That is, if accepted, it established that atsome point in time, the appellant had handled, or even worn the mask. It did not, without more, establish that the appellant hadcommitted the robbery. It is noted that O’Brien was subsequently overturned on other grounds and the trial conviction restored (See R v O'Brien, 2011 SCC 29,[2011] 2 SCR 485). [37] In this case the DNA evidence indicates that the accused’s and another unknown individual’s DNA somehow got on the .22calibre sawed-off rifle.

It is not clear how the DNA got there or how long the DNA was on the rifle, perhaps one to two years. At some point in time the accused and an unknown individual may have handled the rifle. Alternatively, the accused’s and/or the unknownindividual’s DNA may have been transferred to the rifle. [38] The loaded .22 calibre sawed-off rifle was not the only firearm or weapon found within the residence on February 15, 2022. Aspreviously mentioned a sawed-off shotgun and a revolver pellet gun was found in close proximity to the .22 calibre sawed-off rifle.

TheDNA profile obtained from the sawed-off shotgun was found to be of mixed origin consistent with having originated from at least threeindividuals. Several other pellet guns and assorted ammunition were found in the basement. A machete was found in the kitchen. All ofthis suggests multiple people stored multiple firearms, weapons and ammunition in this residence [39] In this case, I must be satisfied beyond a reasonable doubt that the accused possessed the loaded .22 sawed-off firearm as theonly reasonable inference to be drawn from the evidence as a whole.

I am, however, unable to conclude this is the only reasonableinference to be drawn from all of the evidence before me. An alternative reasonable inference is that one of the other individuals whohad access to the residence (or whose ID was found in the residence) possessed the firearm and stored it in the basement near themattress and the accused, at some unknown time in the past, handled the firearm.

In addition, given the number of weapons, firearmsand ammunition found within the residence it is reasonable to infer this residence was being used by several people to store such items. [40] I have a reasonable doubt that the accused constructively possessed the loaded .22 calibre sawed-off firearm and/or ammunition. In addition, I have a reasonable doubt that the accused was in breach of his Undertaking on February 15, 2022. As a result I find theaccused not guilty of the charges before the Court. _____________________________ M. Hinds, J