R. v. MacLeod and Powell, 2012 MBPC 21

CITATION: R. v. MacLeod and Powell , 2012 MBPC 21 Date: 20120207 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) K. Eyrikson, ) for the Crown ) and ) ) ) Justin Miles MacLeod and ) D. Gunn for, the Accused Justin MacLeod Destiny Diane Irene Powell ) J. Weinstein, for the Accused Destiny Powell Accused ) ) ) Reasons for Decision delivered: ) February 7, 2012 ) Curtis P.J. [ 1 ] Justin Miles MacLeod and Destiny Diane Irene Powell stand charged with a variety of weapons-related offences.

They are jointly charged as follows: • on or about the 3 rd day of February in the year 2010 at the City of WINNIPEG in the Province of Manitoba was without lawful excuse in possession of a firearm to wit BROWNING 9mm semi-automatic handgun knowing that the serial number on it had been defaced contrary to Section 108(1) (

b) of the Criminal Code of Canada . • on or about the 3 rd day of February in the year 2010 at the City of WINNIPEG in the Province of Manitoba did without lawful excuse store ammunition in a careless manner contrary to Section 86(1) of the Criminal Code of Canada . • on or about the 3 rd day of February in the year 2010 at the City of WINNIPEG in the Province of Manitoba did without lawful excuse store a firearm, to wit BROWNING 9mm semi-automatic handgun in a careless manner contrary to Section 86(1) of the Criminal Code of Canada . • on or about the 3 rd day of February in the year 2010 at the City of WINNIPEG in the Province of Manitoba did have in their possession a weapon, to wit BROWNING 9mm semi-automatic handgun for a purpose dangerous to the public peace contrary to

Section 88 of the Criminal Code of Canada . • on or about the 3 rd day of February in the year 2010 at the City of WINNIPEG in the Province of Manitoba did possess a loaded restricted 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 of Canada . [ 2 ] Justin MacLeod is separately charged on the same Information:

• between the 14 th day of January in the year 2010 and the 3 rd day of February in the year 2010 at the City of WINNIPEG in the Province of Manitoba did being at large on his recognizance entered into before a justice and being bound to comply with a condition of that recognizance directed by the said justice fail without lawful excuse to comply with that condition to wit YOU MUST NOT OWN, POSSESS OR CARRY ANY WEAPON by BEING IN POSSESSION OF A WEAPON contrary to Section 145(3) of the Criminal Code of Canada . • on or about the 3 rd day of February in the year 2010 at the City of WINNIPEG in the Province of Manitoba did possess a firearm, to wit BROWNING 9mm semi-automatic handgun knowing that he was not the holder of a licence under which he may possess it contrary to Section 92(1) of the Criminal Code of Canada . • on or about the 3 rd of February in the year 2010 at the City of WINNIPEG in the Province of Manitoba did possess a firearm, to wit BROWNING 9mm semi-automatic handgun, knowing that he was not the holder of a registration certificate for the firearm contrary to Section 92(1) of the Criminal Code of Canada . • on or about the 3 rd day of February in the year 2010 at the City of WINNIPEG in the Province of Manitoba did have in his possession a firearm while he was prohibited from doing so by reason of an order made pursuant to Section 145(3) issued at Winnipeg, Manitoba on the 27 th day of November, 2009 contrary to

Section 117.01(1) of the Criminal Code of Canada . and Destiny Powell is separately charged on the same Information: • on or about the 3 rd day of February in the year 2010 at the City of WINNIPEG in the Province of Manitoba did possess a firearm, to wit BROWNING 9mm semi-automatic handgun without being the holder of a licence under which he may possess it contrary to Section 91(1) of the Criminal Code of Canada . • on or about the 3 rd day of February in the year 2010 in the City of WINNIPEG in the Province of Manitoba did possess a firearm, to wit BROWNING 9mm semi-automatic handgun without being the holder of a registration certificate for the firearm contrary to Section 91(1) of the Criminal Code of Canada .

Issues [ 3 ] The charges were laid as the result of the seizure of a semi-automatic handgun which was found buried in the dog run to the rear of the residence in which they were living at the time. The main issue for the Court is whether the accused were in possession of the firearm. If so, that would be evidence which would directly impact a number of the other charges. Background [ 4 ] For the purposes of the trial there were a number of matters that went in by agreement. Identity was admitted as was that the accused were residing at 166 Mighton Avenue in the City of Winnipeg at the time of the seizure.

A Manitoba Hydro bill tendered in evidence showed both accused listed as the customers at that address. A search warrant was executed at that time and the validity of the warrant was agreed to. Jurisdiction was agreed as was the continuity of any exhibits. The fact that this was a loaded handgun which was operable, in working order (it was tested), and was a restricted weapon was conceded. The validity of any and all relevant court documents was consented to.

Viva Voce evidence of the Crown [ 5 ] The Crown called one officer, Constable Evans, who described the events which occurred on February 3, 2010. [ 6 ] On the evening of February 3, 2010 Constable Evans attended to 166 Mighton in the City of Winnipeg with the tactical team and other officers to execute a search warrant. After the premises had been secured, the search was turned over to officers at the scene.

Constable Evans, who was operating on information he had received, attended to the dog run located outside of and to the rear of the house where he had been told a handgun would be located. [ 7 ] The dog run is in an enclosed area which takes up about a quarter of the back yard.

Pictures of the dog run show it appears to have what was estimated as a six-foot fence on two sides, what appears from pictures (of the dog run area tendered as Exhibit 1) to be fencing slightly less than that on another side, and a chain link fence with latticework on the interior which was estimated to be approximately three and a half feet on the last side. The dog run contained snow-covered bales of hay at one end with what appears to be an opening in the middle. The photographs show a large amount of dog feces in the snow all over the exposed area of the dog run.

The officer identified the brown areas on the snow near the opening in the hay bales as what appeared to be urine. [ 8 ] There is one area at the southwest corner (as you face the back of the house), where there appears to be a short width of lattice fencing from the corner of the chain link fence across in front of a tree and a hydro pole connecting to the six-foot fence. The officer tried to get his arm through to reach into the dog run in that area, but was unable to.

His evidence was that between the shrubs which were between the fence and him as well as the hydro pole, he was unable to get his hand through the lattice. In fact he was loathe to do more than make an attempt because of the attention given him by the large Rottweiler which was present in the dog run. He was afraid his hand would be bitten. Once the dog was removed, he accessed the run by going through the front of the house, through the residence and out the back door. [ 9 ] Constable Evans testified the Rottweiler was 100 pounds plus and appeared to be vicious.

In defining that he related the dog was not friendly toward himself or anyone who approached the fence. It barked and growled and snarled to such an extent they could not search and had to call in the Canine Unit which attended and snared the dog to remove him. Once the dog was removed Constable Evans got on his hands and knees and dug around, beginning the search at the back of the dog run. After about ten minutes of searching he found what appeared to be a gun. He could tell it was a gun because it was wrapped tightly in a white plastic bag secured with packing

tape. It was located approximately a foot from the inside of the fence and was buried under three inches of packed snow. The snow waspacked down and he had to physically dig it out. The officer did not note any footprints in the dog run, just dog paw prints and feces. [10] The firearm was a semi-automatic handgun which was loaded with eight bullets, and “one in the chamber”. There was noobservable serial number on the firearm. The R.C.M.P. lab was not able to raise a serial number.

The results of fingerprint and DNAtesting on both the firearm and the wrapping brought negative results. [11] As stated earlier, the main issue is whether or not the accused can be said to have been in possession of the gun as it was foundon the property where they resided, but not within their residence. The Law [12] Section 4(3) of the Criminal Code defines “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 bedeemed to be in the custody and possession of each and all of them. [13] In R. v. Brar, [2008] M.J. No. 179, MacInnes J.A. (sitting Ad Hoc in Queen’s Bench), summarized “possession” in paragraph37: …Possession may be actual, constructive and/or joint. To prove possession, the Crown must prove beyond a reasonable doubt bothknowledge of and control by the accused of the property allegedly possessed. The Crown can make out this proof by direct and/orcircumstantial evidence.

While the court looks at each fact individually, the standard of proof beyond a reasonable doubt does not applyto individual pieces of evidence in the case, but to the evidence as a whole. And where, as here, the case is largely based oncircumstantial evidence, it is particularly important to consider the evidence in its totality and so decide the case. [14] And at paragraph 38: The onus of proof as to the offence itself remains on the Crown throughout.

While it may appear that the evidence adduced bythe Crown cries out for an explanation by the accused, and while the evidentiary onus can, in some circumstances, shift to the accusedupon presentation by the Crown of a prima facie case, the accused is never required to testify or call a defence and is always entitled,without doing so, to argue that the Crown has failed to prove beyond a reasonable doubt an essential ingredient of the offence charged. [15] The Crown must prove that the accused had knowledge and control with respect to the gun. Knowledge includes consent. It is not “quiescent knowledge”. See R. v.

Pham, (ON CA), [2005] 36 C.R. (6th) 200 at paragraph 15, (Ont. C.A.),affirmed by the Supreme Court of Canada, 2006 SCC 26 , [2006] 1 S.C.R. 940 (S.C.C.), but encompasses “some measure ofcontrol over the item to be possessed”. [16] At paragraph 16: In order to constitute joint possession pursuant to section 4(3)(

b) of the Code there must be knowledge, consent, and a measure ofcontrol on the part of the person deemed to be in possession. See R. v. Terrence, (SCC), [1983] 1 S.C.R. 357 (S.C.C.);R. v. Williams (1998), (ON CA), 40 O.R. (3d) 301 (C.A.); R. v. Barreau, (BC CA), 9 B.C.A.C. 290,19 W.A.C. 290 (B.C.C.A.) and Re: Chambers and the Queen (1985), (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.). [17] The Court of Appeal in R. v. Savory, (ON CA), [1996] O.J.

No. 3811 (leave to appeal refused [2007] 2S.C.R. xv), endorsed the trial judge’s direction to the jury about the nature of the control necessary to find constructive possession whereit stated at paragraph 7: Control for the purpose of constructive possession does not require that the accused did in fact exercise control over the object inquestion. In R. v. Terrence (1980), (ON CA), 55 C.C.C. (2d) 183 (Ont. C.A.), aff'd (1983), (SCC), 4C.C.C. (3d) 193 (S.C.C.), the Supreme Court accepted that control means power or authority over the object in question. Similarly, in R.v.

Chambers (1985), (ON CA), 20 C.C.C. (3d) 440 (Ont. C.A.), the court held that the right to grant or withholdconsent to drugs being stored in a bedroom was sufficient to constitute control. Again, control is established if there is the right to grantor withhold consent. It is not necessary that the consent in fact be granted or withheld. [18] The Crown then must prove the accused had the requisite knowledge and some measure of control.

If the gun was, as wassuggested by defence, “owned” by an unknown third party, the Crown must establish the accused had both knowledge of, and somemeasure of control over, the gun. [19] In Regina v. Larier (1960), (SK CA), 35 C.R. 61, 33 W.W.R. 600, 129 C.C.C. 297, Culliton J.A. (as he thenwas) on giving the decision of the majority of the Saskatchewan Court of Appeal said at page 75: ... Proof of knowledge is no more difficult than the proof of intent in any criminal prosecution.

Knowledge, like intent, is a state of mind.It cannot, generally speaking, be proved as a fact but can only be inferred from facts which are proved. A jury, on properly established

facts, should experience no more difficulty in finding knowledge than it does in finding intent. [20] As stated above the onus on the Crown is that of proving the matter beyond reasonable doubt. Cory J., writing for the SupremeCourt of Canada in R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320 (S.C.C.), describes reasonable doubt as (at para. 39): …A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based onreason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefitof the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since thisdemonstrates that you are satisfied it is guilt beyond a reasonable doubt. [21] Twaddle J.A. in R. v. Starr (MB CA), 1998, 123 Manitoba Reports (2d) 292 Man.

C.A., put it this way (atpara. 242): In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolutecertainty than to proof on a balance of probabilities. [22] In a case where the evidence is circumstantial in nature such as the Court has here, I must be satisfied that the only rationalinference to be drawn from the proven facts is that either or both of the accused had knowledge and control over the gun. In R. v.

Griffin,2009 SCC 28 , 2009 S.C.C. 28, 2009 2 S.C.R. 42, Charron J. noted (at para. 33): The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfiedbeyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused isguilty. Analysis [23] The evidence before the Court is in some ways very straightforward. A semi-automatic handgun was found in a dog run at therear of the residence in which the accused resided.

In the dog run at the time it was found, was a rather large Rottweiler dog which had tobe removed by police before they were able to search for the weapon which they had been told would be, and was, found buried there.The run is accessible from the residence side. There is no gate or dedicated access point from the other three sides of the pen. Theofficer’s evidence and the pictures provided of the dog run, the condition of the run and the amount of dog feces in the run suggest that atleast one dog spent significant time in the run.

The aggressive reaction by the dog when the officer tried to reach into the run alsosuggests that not just anyone could enter the dog run without some jeopardy. It would need to be someone who could control the dog. [24] The gun itself was found tightly wrapped in white plastic, sealed with packing tape. It was loaded with “one in the chamber”.

Ithad to be dug out with some effort from under the hard, packed, feces-filled snow where the officer had been told it would be located.The manner in which it was wrapped and sealed suggests an attempt to protect the gun from the elements while still leaving it at theready.

The care with which it was wrapped and where it was located is not something one might expect to see if someone had beenrunning down the back lane and threw the gun away in a quick effort to get rid of it. [25] There was no surveillance of the house and the dog run to determine whether or not this particular dog was the one which spentthe most time in the run and how long he did on any particular occasion, whether there were regular times that the dog run was empty.But as referenced above, the dog run was well-used. The bales of hay appear to have been put there for, and used as, shelter.

There wasno evidence of any other dogs on the property. The Rottweiler was occupying it when the officers executed the search warrant. [26] There is no rule for inferring knowledge from occupancy, and occupancy alone may not be enough to establish knowledge. Butproof of knowledge does not require direct evidence. It can be inferred from the totality of the circumstances. (See R. v. Nguyen, [2008]A.J. No. 1234). [27] In considering the evidence, in particular the location of the gun, the manner in which it was wrapped and the difficultyaccessing it, I am satisfied the accused had knowledge of the gun’s presence.

Rationally, the only inference to be drawn, absent any otherevidence, is that one or more occupants of the residence would have the ability to control the dog and therefore have access to the dogrun where the gun was buried. Whether or not the gun was for their use or it was on their property for the convenience of someone else,they had the ability to control access to it. Whoever controlled the dog controlled access to the gun.

As a result, I find they were jointlyin “possession” of the gun. [28] In using the phrase “absent any other evidence” I want to make it abundantly clear that this is not in any way a suggestion thereis any shifting of the onus of the burden of proof. As referenced in Brar, supra, in paragraph 38, the accused is never required to call adefence and is entitled to argue the Crown has not proved its case. Having said that, any other conclusion without further evidence wouldbe speculation. Justice Huband, in writing for the Court in R. v.

Drury and Hazard, 2000 MBCA 100 , observed at paragraph94: There are cases, and we think this is one of them, where the mere physical control of the money and the weapons leads to an inference ofknowledge on the part of both accused. That inference might be displaced if an explanation is offered which raises a reasonable doubt orif inferences consistent with innocence may be drawn from the proven circumstances. But in this case, no explanation was offered andno rational inference consistent with innocence is possible.

See also R. v. Jenner, 2005 MBCA 44, 192 Man.R. (2d) 184 (Man.C.A.), R. v. Traimany, 2011 MBQB 15 , [2011] M.J. No. 23,261 Man.R. (2d) 101 [29] That is the case here. Without speculation, on the evidence before this Court, there are no inferences consistent with innocencecapable of being drawn. [30] Having found possession, it would appear from the agreed facts neither accused had a permit or a certificate which would allowthem to be in legal possession of the handgun seized. In addition Mr.

MacLeod was prohibited from possessing such a weapon under an order of prohibition made just over two months previously on the 27th of November 2009. [31] Not surprisingly perhaps, given the manner in which this matter proceeded, there was no evidence proffered by defence withrespect to the lack of a serial number on the gun. But that matter is one where s. 108(1)(

b) of the Criminal Code reads: “the proof ofwhich lies on the person” (who possesses the firearm). And s. 108(4) provides:

(4) In proceedings for an offence under subsection (1), evidence that a person possesses a firearm the serial number on which has beenwholly or partially obliterated otherwise than through normal use over time is, in the absence of evidence to the contrary, proof that theperson possesses the firearm knowing that the serial number on it has been altered, defaced or removed. [32] With respect to all of the charges, given the principle against multiple convictions set out in R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729, I invite the Crown to advise upon which of the matters they are seeking convictions be entered.

Original signed by Judge K.M. Curtis P.J. APPENDIX Authorities filed by the Crown R. v. Traimany, 2011 CarswellMan 26 R. v. Basarowich, 2010 CarswellMan 16 R. v. Jenner, 2005 CarswellMan 99 Authorities filed by defence R. v. Ho, 2010 ABPC 258 , [2010] A.J. No. 1160; 2010 ABPC 258 R. v. Grey, (ON CA), [1996] O.J. No. 1106 Other cases considered R. v. Terrence, (SCC), [1983] 1 SCR 357 Re Chambers and The Queen, (ON CA) R. v. Williams, (ON CA) R. v. Brar, 2008 MBQB 133 R. v. Pham, (ON CA), [2005] O.J. No. 5127 R. c. Savory, (ON CA), [1996] O.J. No. 3811 (leave to appeal refused [2007] 2 S.C.R. xv) R. v.

Ta, 2010 ABCA 145 R. v. Nguyen, 2009 ABQB 234 R. v. Nguyen, [2008] A.J. No.1234 R. v. Fisher, 2005 BCCA 444 R. v. Heiberg, 2011 ABQB 211

R. v. Cantrill, 2011 ABQB 273 R. v. Bell, 2011 ONSC 1218 R. v. Dhaliwal, 2005 BCSC 942 R. v. Drury and Hazard, 2000 MBCA 100