Her Majesty the Queen - v. -, 2014 SKPC 76

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 076 Date: April 7, 2014 Information: 24021057 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Adrian Charles Appearing: Bryce Pashovitz For the Crown Brad Mitchell For the Accused JUDGMENT M.L. GRAY , J BACKGROUND [ 1 ] The accused was charged on October 9, 2008 with four Criminal Code offences: (

i) being an occupant of a motor vehicle in which he knew there was a firearm contrary to s. 94;

(ii) possessing a prohibited firearm contrary to s. 95; and (iii) possessing a firearm knowing that the serial number had been removed contrary to s. 108(1). A separate information alleges possession of a controlled substance, cocaine, contrary to s. 4(1) of the Controlled Drugs and SubstancesAct. [2] The trial evidence consisted of the testimony of Corporals West and Nordick, given on a voir dire, and applied, by consent,to the trial proper, as well as the testimony of Duane Henwood. In addition, the evidence of Constable Bennett was admitted in anagreed statement of facts. The accused testified in his defence.

EVIDENCE [3] Admissions were made with respect to the identity of the accused, the date of the offence and continuity of the firearmseized. It was further acknowledged that the firearm in question met the definition of a prohibited firearm that fired as designed andintended. It was further admitted that the accused did not possess the requisite authorization or licence for that weapon. The continuityof the seized drugs was also admitted, along with the Certificate of Analyst showing that the drug was cocaine, a controlled substance.

Itwas further acknowledged that on October 9, 2008, the accused was the registered owner of a 2000 BMW 323i with an Ontario licenceplate, BCLM097. [4] The evidence of Corporals West and Nordick has been set out in detail in R. v. Adrian Charles, 2014 SKPC 39 ,2014 SKPC 039. In

summary, these members of the Royal Canadian Mounted Police testified that they were called upon to assist withthe arrest of the accused in relation to an outstanding warrant from Ontario. On October 9, 2008, the accused was placed undersurveillance and was seen operating the BMW 323i which was registered in his name. He was approached by Corporals West andNordick and placed under arrest.

Incident to this arrest, the vehicle was searched; a loaded handgun was located under a floor mat on thefront passenger side and a film cannister with eight packages of cocaine was located under a cup holder receptacle in the centre console.This arrest and search was found to be lawful and the evidence obtained pursuant to the search was found to be admissible: see Charles(supra). [5] While the accused was outside his car and being handcuffed, Constable Bennett arrived at the location of the stop and wasadvised that a 9 mm handgun had been found under the front passenger seat of the accused’s car.

He also was given a description of thepassenger who left the car prior to it being stopped by the police. The information was that the passenger was a clean-cut white malewearing dark clothing. Constable Bennett searched for a person of this description to no avail. He did, however, see a male leaving theSaskTel store who later was confirmed to be Duane Henwood. The officer was also requested to do an inventory of the contents of theBMW and to record any damage to that vehicle.

A number of articles were noted in the car including a pair of black sports gloves on thefloor of the front passenger side. [6] Duane Henwood testified that he met the accused at a sports apparel store two or three years prior to October 2008. OnOctober 9, 2008, he received a call from the accused who wanted to make plans for the evening. At the time, Mr. Henwood was havinglunch at a restaurant with a friend. He asked the accused for a ride and was picked up outside the restaurant a while later. The accusedwas driving a small BMW. Mr.

Henwood got in the front passenger seat; the accused was the only other occupant. The accuseddropped him at the SaskTel office in downtown Saskatoon around 4:00 p.m. During the ride, they discussed sports and possibly watchinga football game that evening. The accused said that he was going to a football practice. He was certain that the accused never told himthat the police had been following him in the days previous.

[ 7 ] He denied that he brought anything with him into the car or that he left anything in it. He did not see a handgun in the accused’s car that day, nor was there any discussion about a gun. He did not own a gun. When shown the container in which the cocaine was found, he denied seeing that object in the car and denied that it belonged to him. In the seven to ten minute ride downtown, he did not notice anything out of the ordinary in the vehicle and did not handle either the floor mat or the console. He does not have a criminal record. [ 8 ] In cross-examination, Mr.

Henwood acknowledged that he and the accused were friends and would go out together for meals and drinks. He learned that the accused played football and, after a time, became aware that the accused was getting press coverage in relation to his football career. He denied that he regularly paid for meals and drinks for the accused and denied that he ever purchased apparel for the accused. Mr. Henwood also denied that he gave the accused two cell phones to hold. [ 9 ] In 2008, he was employed in the landscaping business and worked only when he had a contract.

In October 2009, he was working with a company called Extreme Sprinkler and the work involved “blowing out” underground sprinkler systems. [ 10 ] He did not recall whether he was wearing a black jacket and Nike gloves that day and denied that he was in a habit of wearing sports gloves. He was not certain if the accused waited or drove away after he got out of the car. He got out of the car immediately after it stopped at SaskTel and he did not fiddle with the floor mat while he was in the car. He was not aware that anything that he said in court could not be used against him and did not want to speak to a lawyer.

He repeatedly denied that he placed a gun under the floor mat or a container in the console when the accused was not looking. [ 11 ] While he was in SaskTel, there was nothing that drew his attention to, nor did he see the police dealing with the accused. When his statement to officers, taken on October 24, was put to him, he agreed that he told them that he did see the police through the business windows, but said he was “unclear” about what he was saying as he had smoked marijuana before talking to them. He maintained that he did not see the accused being arrested and was not facing the windows.

He agreed that a SaskTel employee said that there were several police cars just outside but he did not look. [ 12 ] When it was suggested to him that the accused did not know about the gun and cocaine because Mr. Henwood did not tell him, his response was “there was nothing to tell”. He denied leaving by the 2 nd Avenue doors in order to avoid the police. He denied that he felt any guilt for failing to take responsibility for the gun and drugs because he had no knowledge of them.

When the police interviewed him, they told him that they did not care about the “other stuff” and just wanted to know about the gun. [ 13 ] Further, he did not attempt to contact the accused after October 9 th because he did not know how to reach him even though he had his cell phone number. When asked whether a mutual friend named Gord had set up a meeting at the Midtown Plaza with the accused around March of 2009, Mr. Henwood did not recall such a meeting.

Although he conceded that it was possible that he saw the accused after October 2008, he denied that the accused told him to take responsibility for the gun and drugs. He further denied that he was accused of ruining Mr. Charles’ football career or that he offered to pay any legal bills incurred by him in relation to the charges before the Court. [ 14 ] The accused testified that he was playing football with the Saskatoon Hilltops in October 2008 and working for the Catholic School Board as a teacher’s assistant. He met Mr. Henwood at a sporting goods store in 2007.

They would get together two or three times a week and Mr. Henwood would pay for his meals and drinks. [ 15 ] On October 9, 2008, he had a day off work and called Mr. Henwood about 1:30 or 2:00 p.m. During the conversation, Mr. Henwood said that he would like a ride downtown. As a result, he picked him up between 3:00 and 3:30 p.m. at a convenience store on Broadway Avenue. Mr. Henwood was alone and got into the front passenger seat. In the car, he told Mr. Henwood that he believed that the police were following him but that he had no idea why.

They agreed that they would go out for food and drinks later that evening. He did not pay any attention to what Mr. Henwood was doing as he was too preoccupied with driving and checking his surroundings in light of his concern that he was being followed. He stopped his car right in front of SaskTel and Mr. Henwood bent over in the passenger seat, then said that he would pay his bill and be right back to get a ride home. He did not see Mr. Henwood handle the cup holder in the vehicle, nor did he say anything or hand anything over.

He did not notice anything amiss with the floor mat, and then went on to say that just before Mr. Henwood got out of the car, he handed over a couple of cell phones. Mr. Henwood then went into the store and the police pulled up.

[16] Two officers approached him; he was asked for his licence and registration then was arrested and searched by one officerwhile the other searched his car. He saw Mr. Henwood in the SaskTel store looking out the window at him from a distance of about 12feet away. He told the police that was the passenger who had been in the BMW. He was shocked when the firearm was produced fromhis car. He did not put it in the car and was not aware that it was there. He did not know if Mr. Henwood left it. An officer asked him ifthere was anything else in his vehicle, and he told them “no”.

He also saw the searching officer produce a container from the car andwas told that it contained baggies of cocaine but he had no knowledge of this container. He did not know if Mr. Henwood left the gun orthe cocaine and had no idea who did. If he had known that Mr. Henwood had cocaine and a gun in his car, he would have asked him toleave. [17] Although Mr. Henwood always had money to pay for meals out, he did not know where he got his money as he never knewhim to be employed. The accused denied that he was involved in any drug activity but several weeks prior to October 9, 2008, he did seeMr.

Henwood with a couple of baggies of cocaine. [18] The next time that he spoke to Mr. Henwood was after a mutual friend, Jerry, contacted him to say that Mr. Henwood wantedto talk. This occurred on the day he first appeared in court on these charges. In this meeting, Mr. Henwood admitted that the gun washis. The accused told him that he could not “take this charge” because it had cost him his career in the NFL which the Court understandsto be the National Football League. Mr.

Henwood said that the best he could do was to pay any legal fees that the accused might incuras a result of these charges, but he never did. [19] In cross-examination, he said that while he was in Toronto, he received a call from Jerry to say that Mr. Henwood “wanted tohook up to talk”. They met, and although Jerry was in the vicinity, he could not recall if he was within earshot of the conversation, norcould he recall the time of day the meeting occurred or how he got there. During that conversation, he asked Mr. Henwood if the gunwas his. To this, Mr.

Henwood replied that it was but that he could not take responsibility for it. However, he would pay for a lawyer forthe accused. The accused replied “...I just can’t afford this now. There has to be something done. I’m not going to jail for something thatI didn’t do”. [20] He purchased his BMW at a car dealership in Pickering in 2008 for $8,000.00 but his mother helped make most of thepayments. He acknowledged that he was the only one who drove this car. He did not know that the cup holder lifted out of the console.He denied that he had ever seen the handgun before the officer showed it to him.

He agreed that he leaned to the right side of the car,but did so only to retrieve his licence and registration from the glove box. [21] He suspected that the police were following him because he noticed a compact silver vehicle driving by his home and atfootball practice. He knew that vehicle did not belong to any team member or family of a team member. He thought it was the policebecause he grew up in a neighbourhood where “he noticed things”.

DEFENCE POSITION [22] Counsel argues that both constructive and joint possession are at issue and that there is insufficient evidence of control orknowledge, by the accused, of either the handgun or the cocaine. The only evidence of possession is circumstantial, and that evidence isequally consistent with Duane Henwood having possession. Further, the evidence of Mr. Henwood should be rejected while the evidenceof the accused should, at the very least, raise a reasonable doubt. The Court was asked to consider R. v. Thomas et al, 2012 NSPC 117,R. v. Comba, (ON CA), [1938] O.R. 200, R. v.

Charemski, (SCC), [1998] 1 S.C.R. 679, R. v. Griffen,2009 SCC 28 , [2009] 2 S.C.R. 42, R. v. Chesterman, 2005 BCPC 282 , 2005 BCPC 0282, R. v. Reid, 2013 ONSC 741,R. v. LeBlanc, 2009 NSSC 221 and R. v. Anderson-Wilson, 2010 ONSC 489. CROWN POSITION [23] The Crown argues that proof that the accused was the owner and operator of the vehicle in which the prohibited items werefound constitutes prima facie proof that he was in possession of the contents of that car.

Further, knowledge can be provencircumstantially if the evidence is consistent with possession by the accused and inconsistent with any other rational conclusion: see R. v.McDonald, 2014 SCC 3 and R. v. Chin, 2014 ABCA 11. The Court was also referred to R. v. Huard, 2009 BCSC 1010 and R. v.

Thomas (supra). LAW [24] Section 4(3) of the Criminal Code defines possession and says, in part: (

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 bedeemed to be in the custody and possession of each and all of them. [25] To prove possession, whether personal, constructive or joint, there must be knowledge of the thing alleged to be possessed andthis knowledge must co-exist with some element of control: see R. v.

Beaver, (SCC), [1957] S.C.R. 531. Finding aprohibited item in a vehicle owned and operated by an accused constitutes prima facie proof of possession: see R. v. Gallant, [1960]N.B.J. No. 4 and R. v. Nicholson, [2011] A.J. No. 838 leave to appeal to SCC refused 2011 CarswellAlta 2155. [26] In Nicholson (supra), the accused was the sole occupant and operator of a vehicle from which a bag with 500 grams of cocainewas seized from beside the driver’s seat. This was considered sufficient evidence to prove possession. [27] Huard (supra) similarly considered what evidence was capable of establishing possession.

There, the accused was operating avehicle that he purchased two weeks earlier. A search of that vehicle revealed a box, concealed in the engine compartment, whichcontained a loaded handgun with the serial number removed. The accused did not testify.

The Court, with reference to Hodge’s rulerespecting circumstantial evidence held that there was no factual basis to support some other “rational inference” and that it was nothingbut “fanciful conjecture” to conclude that someone else had left the gun there. [28] In Thomas (supra), the Court dealt with the issue of whether knowledge had been proven by way of circumstantial evidence. There, the police observed the accused as a passenger in the back seat of a vehicle as it passed. Officers attempted to stop the vehicle,but it accelerated away.

In the chase, that car became airborne as it crossed some railway tracks, flipped and came to rest on itspassenger side. Two males got out and fled on foot; the accused was apprehended as he exited the sunroof of the car. A search of thevehicle revealed a loaded, restricted hand gun, in a white plastic bag, partially under the front passenger seat and against the passengerdoor. The accused was acquitted as there was no evidence to indicate where the gun was before the collision or whether it was in view;in short, there was no evidence from which to infer knowledge. [29] R. v.

Lincoln, 2012 ONCA 542, held that there is no rebuttable presumption of knowledge and control where an accused is theoperator of a vehicle in which contraband is found. Here, the accused was the operator of a rental vehicle in which a large amount ofcocaine was found in the steering column. He had $800.00 cash on his person. As a result, he was charged with possession for thepurpose of trafficking and possession of proceeds of crime and was convicted after trial.

On appeal, the conviction was overturned as itwas considered that the trial judge applied a presumption that the accused, as the operator of the vehicle, was deemed to have knowledgeand control of its contents. This was considered to be an error in law as it shifted the burden of proof to the accused.

However, the courtdid say, at para. 3, that the fact that an accused is the owner and operator of a vehicle, along with other evidence, may permit a trier offact to infer knowledge and control in an appropriate case. [30] In Chesterman (supra), both the operator and passenger were charged with possession of a handgun that was found beneath anewspaper in the foot well of the passenger side. A clip was loaded into the gun. The court rejected the evidence of the operator

(Chesterman) and registered a conviction against her, even though the passenger was nearer the gun. The court relied on the evidencethat she was the owner and operator of the vehicle and made a suspicious remark to the arresting officer. In coming to this conclusionthe court, at para. 22, quoted R. v. To, (BC CA), [1992] B.C.J.

No. 1700: ...it is legitimate to infer knowledge from mere physical possession in the proper circumstances which inference will be displaced if anexplanation is offered which raises a reasonable doubt or if...other inferences consistent with innocence may be drawn from all theproven circumstances.

Further: ...total rejection of the evidence of the accused is tantamount to the accused having given no evidence or offered no explanation, and itthen became necessary to consider whether, on all of the evidence, an inference of knowledge may be drawn from the proven facts, orwhether, in all of the circumstances, a fair consideration of the evidence either leaves the scales in even balance, or tilts one way or theother. [31] The Reid case (supra), dealt with various firearm and drug charges arising from what the investigating officer believed was ahand to hand drug transaction.

The vehicle operated by the accused was searched and a handgun was found concealed beneath theceiling dome light of the car he was driving. The officer’s suspicion was aroused when he noticed, while sitting in the passenger seat,that the dome light had been tampered with. He conceded this would not have been noticed from the driver’s position. The accused wasnot the owner of the vehicle, nor was there any evidence as to his relationship to the owner or whether other people may have had accessto the car. The evidence established only that the accused had spent a number of hours in that car.

On these facts, the court found that aninference that the firearm belonged to the accused was not the only inference which properly could be drawn from the evidence. Theaccused was acquitted of the firearms charges. [32] In LeBlanc, the accused was operating a borrowed vehicle when he was stopped for speeding. He appeared nervous, wasmoving about inside his car and the officer discovered that the accused had connections to drug trafficking. A search of the vehiclerevealed a gun under the front passenger seat. The accused denied any knowledge of the weapon.

The Court concluded that although thecircumstances were very suspicious, they did not constitute proof beyond a reasonable doubt of knowledge and control; the accused wasacquitted. This decision also provides a helpful review of cases where contraband was not in plain view and at para. 63, the Court said: These cases should not be taken to suggest that a court cannot draw an inference of knowledge where contraband is not in plain view. [33] The Anderson-Wilson (supra) decision, at para. 75, sets out a non-exhaustive list of relevant circumstances in assessingwhether proof of the requisite standard exists.

These are: the physical proximity of the firearm to the accused, the degree of visibility ofthe firearm and how readily concealed it might be, the degree of communal use of the vehicle in which the firearm is found, the size,nature and number of weapons in a particular space, and the nature of other items located proximate to the firearm capable of providingcontext for inferences of knowledge and control. ANALYSIS [34] Personal possession, also referred to as physical possession, includes that which a person might carry, for example, in theirpocket, purse, wallet or suitcase.

It also encompasses those things kept in a car: see Nicholson (supra) and Chesterman (supra). However, should contraband be placed into the possession of an accused without his knowledge, this would constitute a defence if thatexplanation was accepted by or raised a reasonable doubt with the Court: see Chesterman (supra) and To (supra). If the explanation wasnot accepted or did not raise a reasonable doubt, there must still be proof of knowledge and control.

Knowledge is invariably establishedthrough consideration of the surrounding circumstances, unless of course there is some admission of knowledge by the accused. [35] In the case at hand, there is no doubt that the accused owned and was operating the vehicle in which a prohibited firearm andcocaine were found. I accept his evidence that he was the only person who drove that car. Accordingly, I am satisfied that a prima faciecase for possession has been established.

The question is whether this Court accepts, or is left with a reasonable doubt by the explanationoffered by the accused that he had no knowledge of the gun or cocaine or alternatively, his suggestion that Mr. Henwood owned and leftthose items in the car. The issue of joint or constructive possession would arise in the case at hand if the Court was to conclude that thegun and drugs were left by Mr. Henwood.

[ 36 ] Decisions in cases such as these are clearly fact driven and require the Court to make findings that might form the basis from which inferences may be drawn. I have had an opportunity to listen carefully to the evidence given by the accused and to subsequently review my notes and the audio-recording of his evidence. Having done so, I find that I do not accept his evidence, nor am I left with a reasonable doubt by it. His evidence at times seemed blatantly contrived. For example, although he would not directly say that Mr.

Henwood was responsible for leaving the gun and drugs in the car, he felt it necessary to explain that he was too busy surveying his environs to notice what was happening inside the car. I accept that the BMW the accused was driving is a small car with bucket seats. I also noted that Mr. Charles is a relatively large man and conclude that it would be virtually impossible for a passenger to remove the cup holder, conceal a container and replace the cup holder from the centre console without drawing the attention of the driver. [ 37 ] He also contradicted himself when he initially stated that Mr.

Henwood did not give him anything before he got out of the car, then later volunteered that he was handed two cell phones. Further, although he says that Mr. Henwood confessed ownership of the gun, he took lengths to avoid saying that Mr. Henwood was responsible for leaving it in his car. The evidence is uncontradicted that Mr. Henwood was picked up in a public place and if one was to accept the version of events portrayed by Mr. Charles, entered the car carrying a gun and cocaine. It is totally illogical that he would feel compelled to divest himself of those articles for a quick stop at SaskTel.

It also defies logic that he would hand over two cell phones before going into a telephone store. [ 38 ] In addition, I have had an opportunity to examine and handle the gun which was filed as an exhibit; it is 7 3/4 inches long, the handle is 5 inches in height and it is 1 1/2 inches high when resting on a surface. I accept the evidence of the officer that, beneath a floor mat in a small car, it left a significant lump. If I accept Mr. Charles’ explanation that he leaned to the right of the car to open the glove box, it defies logic, reason and belief to accept that he did not notice anything amiss with the mat.

Yet, he says he was “shocked” to see the gun produced from his vehicle. [ 39 ] Mr. Charles would have the Court believe, or at the very least, have a reasonable doubt about, whether Mr. Henwood confessed ownership of the gun. Such a confession logically would seem to be very significant to Mr. Charles, yet he cannot recall details of who was present at the meeting, the time it took place or how he got to or from the meeting. Further, although Mr.

Charles says he was very troubled about being charged with the offences before the Court because of the impact on his personal and professional life, there is no evidence that he reported Mr. Henwood’s confession to anyone. [ 40 ] This is completely illogical in the face of his evidence that these charges disrupted his life and dissipated his career hopes. It is also inconsistent with the aspersions which he attempted to cast upon Mr. Henwood. Without saying as much, he hinted that Mr.

Henwood made money in some nefarious way, and that he was known to possess cocaine, which I take as an invitation to the Court to conclude that Mr. Henwood was a drug dealer and one who would possess a handgun and packets of cocaine. This again begs the question of why he would not have reported Mr. Henwood’s confession. [ 41 ] All in all, the Court finds that Mr. Charles’ evidence was unreliable, untrustworthy and in part, completely fabricated. I do not accept it, nor does it raise a reasonable doubt with respect to his knowledge of the illicit items in his car. Having rejected the testimony of Mr.

Charles, and the inference that Mr.

Henwood was the owner of the gun and cocaine, there is no need for the Court to consider constructive or joint possession. [ 42 ] However, that does not end the matter as the Court is obliged to determine whether, on the evidence which is accepted, that the Crown has proven, beyond a reasonable doubt, all of the elements which constitute possession, and indeed all of the elements of the offences charged. [ 43 ] It is undisputed that the accused was the owner and operator of the vehicle at the time that the contraband was found and therefore, prima facie in possession of the vehicle contents: see Gallant (supra) , Nicholson (supra) and Chesterman (supra) .

Further, he admits that he was the only person who drove that car. I accept the testimony of Mr. Henwood that he did not own, nor did he leave behind the gun or the cocaine. Thus, there is no credible explanation before the Court for the presence of the gun and cocaine in Mr. Charles’ car. The only rational conclusion which can be drawn from all of the evidence is that the accused was the owner and responsible for those items. Further, as was pointed out in Huard (supra) , at para. 17, a prohibited handgun, with ammunition, is a valuable commodity.

It is notoriously known to be unlawful to possess and it is unreasonable to conclude that the accused would not have known of its presence. In conclusion, there is no factual basis on which to base any other rational conclusion and I have no hesitation in finding, beyond any reasonable doubt that the accused was in possession of both the prohibited firearm and the cocaine.

CONCLUSION [ 44 ] Accordingly, I am satisfied that all of the elements of the offences of possession of cocaine, and possession of a prohibited firearm have been established beyond a reasonable doubt. I am similarly satisfied that the accused was the occupant of a motor vehicle in which he knew there was a firearm. Accordingly the accused is found guilty of those three counts. [ 45 ] However, with respect to the allegation that he was in possession of a firearm on which the serial number had been removed, I find that I cannot conclude, beyond a reasonable doubt, that the accused was aware of that fact.

Although the Court heard viva voce evidence that the serial number had been ground off, there was no evidence as to whether this was obvious upon looking at the weapon. I took the opportunity to examine the firearm and cannot say that it was readily apparent that the serial number had been removed. Under these circumstances the Court cannot infer that the accused had knowledge that there was no serial number and as a result, he is found not guilty of this offence. ___________________________ M. L. Gray, J