r v. PATRICK ROBINSON, 2012 QCCQ 2100

R. c. Robinson 2012 QCCQ 2100 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL "Criminal and Penal Division" Nº: 500-01-049636-100 DATE: March 16, 2012 ______________________________________________________________________ PRESIDED OVER BY THE HONOURABLE MR. JUSTICE DENIS LAVERGNE, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. PATRICK ROBINSON and MICHAEL CZAJKOWSKI Denfendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________

[ 1 ] The defendants face charges related to the possession of a firearm found on December 15, 2010 in a vehicle of which they were the occupants. I.

THE LEGAL ISSUE [ 2 ] The only issue in question consists in determining whether the presence of the two defendants in the vehicle establishes beyond any reasonable doubt the elements constituting the possession of a firearm concealed in a tuque placed between the driver’s seat and the center console. [ 3 ] In the decision dated October 25, 2011 [1] rejecting the motions pursuant to the Canadian Charter of Rights and Freedoms [2] and in non-suit, the Court writes on paragraph [25] that police officer Rioux finds « a hat » on the rounded protrusion concealing the transmission and dividing in a way the driver's and passenger's seats in which he discovers the weapon. [ 4 ] First of all, the Court must specify that it is a tuque and secondly, that the firearm was in fact at the foot of the driver’s seat, leaning against the rounded protrusion (center console) or between the rounded protrusion and the seat, as it appears on a photograph taken before the seizure of the tuque by the police (exhibit P-2, photograph n o 6).

II. RELEVANT MAIN FACTS [ 5 ] The Court goes over the facts retained for the decision rendered on October 25, 2011 [3] : […] [9] On the morning of December 14 th , 2010, detective Philippe Paul (Paul) receives information form an informer said «coded» and paid whom he knows and controls, and from whom he has, six or seven times already received reliable information.

The content of such information is the following: - a man named Michael Czajkowski (Czajkowski), alias «Miami-Mike», specializing in «home-invasions» («burns» that is to say, drugs and money debts in houses), teaming up with black people, is preparing to perform a «home invasion» in an unknown location, near Montreal; the informer even spells the name «Czajkowski»; - this «home invasion» is to take place the next day, December 15th; the suspect Czajkowski is to be accompanied by black people; - a meeting must first take place in a restaurant (Tim Hortons) located at 2450 Chemin Rockland in ville Mont-Royal; - the suspect is to take place in a blue Chrysler vehicle, model 300, plated [...] (the Chrysler). […] [18] On December 15 th , police set forth surveillance at 10:00 at 2450 Chemin Rockland, ville Mont-Royal, targeting the Tim Hortons.

According to the surveillance report (exhibit P-4), the SWAT is also hard at work at 10:02. [19] At 10:46, a black individual later identified as a man named Daniel Walker (Walker) fills the tank of a black Chevrolet vehicle, model Malibu, in a gas station, near Tim Hortons near which he will park at 10:47. [20] This is an individual unknown to the police and completely foreign to the information previously received concerning the commission of a crime. [21] After spending some time inside the restaurant, Walker comes out of it at 11:28 accompanied by a white person.

Both enter the nearby mall at 11:36 and come out at 11:47. Walker returns alone to the Tim Hortons. [22] At 12:27, the Chrysler appears. Two individuals, one white and one black, get out of it and go to Tim Hortons. Some physical characteristics of the white individual, written in the surveillance report, are consistent with the ones Paquin reports at the hearing.

In addition, the surveillance report referred to another unknown black individual who at 12:39 comes out of Tim Hortons and sits behind the wheel of the Chrysler. [23] In short, between 12:31 and 12:47, Walker speaks with the three individuals in the restaurant and in the Chrysler. At 12:47, the three individuals take place in the Chrysler. The facts establish the identity of the two individuals sitting in front: Robinson at the wheel and at his side, Czajkowski.

As for the other black individual sitting in the back that the facts in this case do not concern, it would be a man named Samuels, if we retain an allusion about him during Paul's cross-examination. [24] At 12:48, the SWAT intervenes. Police officer Alain Rioux (Rioux), in charge of this five police officer unit, reports the intervention in the following manner.

[25] The police first make sure to counter any fleeing of the Chrysler by blocking the way with their vehicle. Then, after having activated the siren to signal their presence, the five police officers surround the Chrysler. One of them shouts among other things to raise their hands. The two black individuals obey, but not Czajkowski who moves in his seat, shoulders leaning to the left and acting, according to Rioux, as someone who wants to get rid of something. Since Czajkowski's hands are not visible, three police officers get closer to the door and one of them smashes the window.

The individuals are quickly under control; Rioux takes a look inside the vehicle and finds on the rounded protrusion concealing the transmission and dividing in a way the driver's and passenger's seats a hat in which he discovers the weapon previously mentioned, two magazines and 23 bullets. [26] Finally, the Chrysler's registration is under Robinson's name. [...] [ 6 ] With regards to the above cited paragraph [23], it must be noted that Mr.

Robinson (Robinson), in his testimony, which will be mentioned later, denied having talked to those individuals in the restaurant. [ 7 ] There is no extrinsic evidence, fingerprints, or biological substance, allowing the establishment of a link between the weapon, the magazines, the bullets, or the tuque and one or other of the defendants. [ 8 ] Also, there is no direct evidence of manipulation of those same objects by one of the defendants, or any evidence identifying the tuque’s owner. [ 9 ] All in all, the evidence supporting the offences is therefore essentially circumstantial and the most incriminating elements are the following: - the position of the defendants in the Chrysler; - the location of the tuque: at the foot of the driver’s seat, on the right side, between the seat and the center console; - Robinson is the owner of the Chrysler; - the reaction and the movements of Czajkowski, as described by Rioux, at the time of the police intervention. [ 10 ] Only Robinson testified and he refuted possession of the objects found and placed without his knowledge at the foot, right hand side, of the driver’s seat of which he was the occupant. - Patrick Robinson’s version [ 11 ] At the time of the events, Mr.

Robinson was 23 years old. He had no criminal record and had never been arrested by the police. [ 12 ] He was registered in a Business Management study program in a Montreal College and, a few days before the events, he had joined an important banking institution in which he subsequently completed some training internships .

Before that, he had also worked for another financial institution. [ 13 ] All in all, having at hand some nice possibilities of pursuing an interesting career within a big Canadian banking firm, Robinson affirms that it would have been ridiculous to jeopardize his future driving on the public street at the wheel of his vehicle, knowing that a firearm was there. [ 14 ] He has no firearm and has never owned any. He had never seen the particular firearm and the ammunition anywhere else other than in the photographs produced in the file.

By the same token, he saw the tuque for the first time at the preliminary inquiry held in mid-March 2011. Neither Czajkowski, nor Samuels, the third individual seated in the Chrysler behind Czajkowski, wore the tuque in his presence. He does not know who is the tuque’s owner.

[ 15 ] Let us now see how Robinson explains his presence at the Tim Hortons in the early afternoon of December 15, 2010, in the company of Czajkowski and Samuels. [ 16 ] Robinson met Czajkowski at the end of September or beginning of October 2010 in a bar, through some of his college acquaintances. At that time, he was going to that bar three to four times a week. There, he met Czajkowski, with whom he talked about one thing and another, about twice a week. With the passing of time, the two individuals came to exchange their phone numbers. On few times, Robinson agreed to drive Czajkowski in his vehicle.

He does not know whether Czajkowski has a nickname other than “Mike”. [ 17 ] The evening of December 14, 2010, around 10 pm, Czajkowski called Robinson, enquired about what he had to do the next day, and asked him if he could drive him to a place that he did not indicate. Robinson agreed to do it. He had already planned to not go to work on December 15 because he had decided to go to the hospital due to some pain related to a surgery he previously had, on December 8 th , which bothered him and made him nervous. He notified his employer about his absence due to that medical condition.

Even agreeing to provide the service requested by Czajkowski, he estimated he would have enough time to get to the hospital for the consultation. [ 18 ] On December 15, Robinson arrived at Czajkowski’s place around 11 am. A person called Samuels, whom Robinson did not know, came to join them there. The three of them left around 12:10 pm. Czajkowski sat on the seat next to the driver. Samuels sat at the back, behind Czajkowski. [ 19 ] Robinson did not yet know the final destination. He was told to go to Tim Hortons, where another individual was to tell them the place they should go.

That individual was Daniel Walker (Walker) who is mentioned in the surveillance report (exhibit P-4). [ 20 ] When they arrived at Tim Hortons, Czajkowski and Samuels got out of the Chrysler and went into Tim Hortons. Robinson stayed sitting in the vehicle. He got out for only a few minutes to go to the washroom in the restaurant. Incidentally, the surveillance report (exhibit P-4) converges with Robinson’s version on this point. The report mentions that Robinson got out of the vehicle at 12:36 pm., and went back to it at 12:39 pm.

Furthermore, Robinson denies having sat inside the restaurant with Czajkowski and with Walker. In that respect, the surveillance report is not incompatible with Robinson’s version, since only three minutes elapsed between the time he left his vehicle and went back to it. [ 21 ] Robinson added that Walker went to sit in the Chrysler and instructed him about how to get to their destination. In fact, Robinson reported that Walker mentioned several directions, leaving him to believe that the place was in the city of Laval.

Eventually, we did not learn much about this destination and Robinson’s testimony on the directions provided by Walker remains rather vague. The surveillance report (exhibit P-4) confirms that Walker got into the Chrysler at 12:31 pm and got out at 12:35 pm. [ 22 ] Robinson complied with no hesitation with all the orders from the police who intervened at 12:48 pm. Being focused on the police officers who were around the Chrysler, he paid no attention to Czajkowski and Samuels.

He declared that at no time did he see the tuque or feel that someone was placing something at the foot of the driver’s seat. [ 23 ] As soon as he was informed of the reason for his arrest, that is, possession of a firearm, he voiced his incredulity to the police officers, affirming in some way that such an accusation was not possible as far as he was concerned, since he had never had any weapon. [ 24 ] He admitted not having asked any questions about the place to which he was supposed to drive Czajkowski and Samuels, a person he did not know.

He did not seem to question himself about the reasons that Czajkowski and Samuels had to get to a place indicated by a third individual, Walker, whom he did not know, and who did not accompany them. He stated that nothing led him to ask himself such questions, or to ask them of Czajkowski, a person whose company he enjoyed at the time and with whom he felt comfortable. III. ANALYSIS [ 25 ] Section 4(3) of the Criminal Code defines possession as follows: 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. [ 26 ] The above provision formulates three categories of possession: personal possession, possession by

interpretation, and joint possession. [ 27 ] Personal possession requires proof of the physical custody of the thing, of the knowledge of its nature, and of an action of control over that same thing [4] . The possession imputed or by

interpretation and the joint possession presuppose that the defendants do not have the physical custody of the object possessed at that time by a third person. This type of possession requires proving the knowledge of the object possessed by a third person, the consent to that possession, as well as the exercise of control over the possessed object [5] .

The proof of the knowledge of the item in possession of a third person and the consent to the possession of the item make us presume of the existence of control over that item [6] . [ 28 ] The evidence in this case being essentially circumstantial, the facts must demonstrate beyond any reasonable doubt that the defendants’ guilt is the only rational conclusion that can be drawn.

A determination on fact should not be inferred from any type of speculation; it must rest on the evidence of positive elements allowing one to draw the required inference. [ 29 ] What is the inference in this case? - The responsibility of Patrick Robinson [ 30 ] Determining this question requires an evaluation of Robison’s testimony. [ 31 ] In this case, his version agrees with the positive facts stemming from the evidence. [ 32 ] Robinson denies being the owner of or possessing the tuque, as well as its contents; he also refutes having knowledge of the presence of the firearm in his vehicle, not knowing anything at all about Czajkowski and Samuels’ objective when he agreed to drive them somewhere in the city of Laval. [ 33 ] Which are the elements in agreement with Robinson’s version? [ 34 ] Basically, it is the nonexistence of any direct evidence establishing that Robinson manipulated in some way or other the tuque, the firearm, the magazines, or the bullets.

Neither is there any other evidence demonstrating any kind of physical link, fingerprints, or any sample of a bodily substance, between these objects and Robinson.

Furthermore, two entries of the surveillance report tend to confirm Robinson’s testimony, first of all about the fact that he entered Tim Hortons to go to the washroom, a matter of a few minutes and next, the conversation held with Walker regarding the directions on the place where he had to drive Czajkowski and Samuels. [ 35 ] There are no further indications that might have alerted Robinson to the suspicious character of the service that Czajkowski had asked of him. Nothing in the file establishes a situation according to which Robinson would have willingly closed his eyes to avoid seeing what he had to see.

It is not a case of willful blindness. [ 36 ] Consequently, Robinson’s responsibility would only stem from his presence in the Chrysler and the discovery of the tuque at the foot of his seat. On one hand, the mere presence on the premises where an offense has been perpetrated does not suffice to impute criminal responsibility. On the other hand, the tuque appears in the sequence of facts only at the very end, when the police seized it at the time of their intervention.

In other words, nobody was seen wearing that tuque and it does not appear anywhere prior to the police intervention. [ 37 ] It happens that the behavior of the person towards the object may allow one to determine whether there is possession in the sense of the Criminal Code . In the present case, and unless we plunge into speculation, the objective facts do not at all establish that Robinson had, at one time or another, exhibited suspicious behavior from which one could infer personal possession, joint or by

interpretation, of the tuque, and t herefore , of its content. The fact that he had seen the tuque for the first time only at the preliminary inquiry may be plausible in the circumstances. And even assuming, which the Court does not do, that Robinson had had the time to see the tuque at the foot of the driver’s seat when the police officers surrounded the Chrysler, this fact is part of a sequence of only a few seconds and cannot

constitute evidence of possession according to the Criminal Code . [ 38 ] The ownership and the possession of a vehicle may presume both as much about control as about knowledge of the objects that are in the vehicle. Robinson testified with regards to that. The Court believes him.

The reaction he exhibited at the time of his arrest, when he learned the reasons, matches the version he provided at the trial. [ 39 ] True, the fact that Robinson did not ask more questions either about the place where he was supposed to drive Czajkowski and Samuels, nor about the reasons they had to go there, may be questionable, considering that he had reserved that day to go to the hospital due to the pain that was bothering him. With regards to that, Robinson’s answer that he simply did not feel the need to ask questions simply matches his way of seeing things in the context in which he was.

The Court does not find anything to add to that. [ 40 ] Consequently, the Court acquits Robinson of all the counts. - The responsibility of Michael Czajkowski [ 41 ] Even circumstantial, the objective elements inevitably converge towards Czajkowski and establish the personal possession of the tuque and, by way of consequence, of its content. [ 42 ] These elements are: - the discovery of the tuque, concealing the weapon, the two magazines, and the ammunition, at the foot of the driver’s seat, at the left of the seat occupied by Czajkowski who, consequently, had the physical capacity to put those objects in that place; - Czajkowski’s movement, wriggling on his seat, with his shoulders bent to the left, at the time of the police intervention and when the officers told the occupants of the Chrysler to put their hands up; - Czajkowski’s refusal or omission to comply immediately with the police orders to put his hands up, provoking a more vigorous intervention from one of the officers who broke the glass of the door allowing access to the passenger seat, on the driver’s side; - Robinson’s and Samuels’ spontaneous reactions, putting their hands up as soon as they heard the police order; - Robinson’s testimony which the Court believes and according to which, we note again, the tuque and the objects that were found in the vehicle did not belong to him and he had never seen them other than, and subsequently, in photographs or during the preliminary inquiry. [ 43 ] As is the case for Robinson, there is no direct proof, manipulation, fingerprints, or bodily substances, establishing a link between Czajkowski and the tuque or its content.

Furthermore, Czajkowski maintains that the few seconds that elapsed between the time the police gave the order to put their hands up and the time they subdued the occupants of the Chrysler would not have been long enough to allow him to hide the weapon, the magazines, and the bullets in the tuque and to place the tuque at the foot of the driver’s seat.

Finally, a question in the cross-examination relating to the language used by police officers in giving the order to put hands up, which in this case was French, brings to mind the possibility that Czajkowski would not have understood it from the start, which would explain the omission to put his hands up. [ 44 ] The Court does not retain these arguments. [ 45 ] On one hand, even if it is true that there is no direct evidence establishing that Czajkowski was in possession of the tuque and its contents, Robinson’s version, retained by the Court, has not been contradicted, nor have the other circumstantial facts previously mentioned. [ 46 ] On the other hand, nothing establishes that Czajkowski does not have enough knowledge of the French language to understand the police officers who ordered the vehicle’s occupants to put their hands up. [ 47 ] As for the time needed to place the tuque at the foot of the driver’s seat being insufficient, that is nothing but a hypothesis which should not exclude any other.

First of all, it is not so inconceivable that Czajkowski, sitting next to the driver’s seat, had had the time to take the tuque, which he perhaps already had on him, in a pocket for instance, and inside of which he would have already put the weapon, the magazines, and the bullets, to place it at the foot of the seat.

Next, the Court having concluded that Robinson was not the one who put the tuque at the foot of the seat, of which he did not learn the existence until the preliminary inquiry, who else could have done it, if we consider that Samuels, sitting at the back, also put his hands up when he heard the order from the police? [ 48 ] Czajkowski chose not to testify.

The movement described by officer Rioux and the refusal or the omission to put his hands up remain unexplained facts which add up along with other circumstantial elements to build, all things considered, a coherent body of evidence from which we can only logically conclude that Czajkowski was responsible. [ 49 ] Czajkowski’s reaction and his movement towards the left, described by Rioux, lead to believe in a maneuver by which he tried to get rid of an incriminating object, compatible after all with the tuque and its contents, which were moreover discovered in a place that was in the direction of the movement of the defendant’s shoulders.

[ 50 ] The Court concludes that Czajkowski was in possession, as defined by the Criminal Code , of the firearm, the magazines, and the bullets found in the tuque.

Knowledge of the nature of the objects involved is inferred from the circumstantial evidence. [ 51 ] There are grounds to pronounce guilty verdicts on counts n o 1, 2, 3, and 4. [ 52 ] Considering the rule prohibiting multiple convictions [7] , there are grounds to order the conditional stay of proceedings on counts n o 2, 3, and 4, due to the factual and legal links to count n o 1. [ 53 ] As for count n o 5, it is a charge of having had in his possession a firearm, an imitation thereof, a prohibited device, ammunition, or prohibited ammunition, for a purpose dangerous to the public peace, laid as pursuant to section 88(1) of the Criminal Code . [ 54 ] To establish guilt, the prosecution must prove, on one hand, the possession of a weapon and, on the other hand, that that possession aims at a purpose dangerous to the public peace. [ 55 ] In this instance, the Court has already concluded that Czajkowski was in possession of the weapon, the magazines, and the ammunition. [ 56 ] The second element of the offence poses a problem.

The facts must first of all demonstrate the intention or the purpose sought. Next, it must be decided whether that intention or that purpose might be dangerous to the public peace. [ 57 ] In this case, there is no proof beyond any reasonable doubt of one or the other of these elements. The facts do not establish when, how, and in what circumstances Czajkowski took possession of the weapon and the ammunition.

The factual elements at the basis of the police suspicions to intercept the Chrysler and neutralize its occupants, do not constitute valid evidence to establish Czajkowski’s possession of a weapon for a purpose dangerous to the public peace. [ 58 ] Consequently, it is justified to pronounce the acquittal on count n o 5.

FOR THE ABOVE REASONS, THE COURT: ACQUITS the defendant PATRICK ROBINSON on all counts; FINDS the defendant MICHAEL CZAJKOWSKI GUILTY on counts n o 1, 2, 3, and 4; ORDERS the conditional stay of proceedings on counts n o 2, 3, and 4; ACQUITS the defendant MICHAEL CZAJKOWSKI of count n o 5. _________________________ DENI S LAVERGNE, J.C.Q. M e Pascal Dostaler For the prosecutor M e Julio Péris For the defendant Michael Czajkowski M e Umberto Macri For the defendant Patrick Robinson Dates of the hearings: September 1 st and 2 nd , 2011, and January 9 th , 2012.