R. v. Baez Date:, 2016 BCPC 227

Citation: R. v. Baez Date: 20160617 2016 BCPC 227 File No: 213204-3-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. LUIS MANUEL BAEZ ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D.R. GARDNER Counsel for the Crown: A. Ip Counsel for the Accused: T. Lagemaat Place of Hearing: Surrey , B.C. Date of Hearing: June 14, 15, and 16, 2016 Date of Judgment: June 17, 2016

[ 1 ] THE COURT : Luis Manuel Baez is charged on a four-count indictment with possession for the purpose of trafficking in heroin, cocaine, methamphetamine, and possession of a loaded restricted firearm. [ 2 ] There are certain facts that are not in dispute; that is, around 3:50 p.m. on October 22, 2015 there was a two-vehicle collision at the three-way intersection of 140 th Street and 75 th Avenue here in Surrey, between a Chevrolet Malibu and an older model Nissan pick- up truck.

The driver of the Malibu apparently did not heed the stop sign, entered the intersection when unsafe to do so, and the front-end of his vehicle struck the front passenger side of the Nissan truck. [ 3 ] The collision attracted the attention of numerous people in the area.

The court can safely conclude that any resulting injuries to the occupants of the Malibu were minor in nature, as three young males were seen running from that vehicle and from the scene of the collision. [ 4 ] One of them, who I find to be the driver, decided to turn around and came back to the vehicle, entered the driver's side briefly, allowing him to pop the trunk open. He then retrieved from the trunk a black bag that has been described in different fashions by the civilian witnesses. [ 5 ] The Crown has called eight civilian witnesses, same of whom, not surprisingly, were more helpful than others.

The most impressive lay-witness was Janice Ziggenheigel (phonetic), who was driving southbound on 140 th Street when she heard the crash. She testified that the pick-up truck involved in the accident was northbound. She saw two passengers get out of the other vehicle and run east on 75 th Avenue, then the driver got out and ran after them.

The driver ran down about a half a block, and then returned to the vehicle, opened the driver's door, and released the trunk where he retrieved a black bag. [ 6 ] She described the driver as being taller than her (she is five-foot-nine), with an athletic build, black sweatshirt with red writing on the sleeve, wearing either a toque or he had his hoody up. He was dark-skinned and probably in his twenties. She says she was only able to observe him for five to ten seconds, and when asked if she saw that man in court she said she could not be sure. I find Ms.

Ziggenheigel to have been a very articulate and observant witness. [ 7 ] The dog handler, Sgt. Shaw, has held that position since May of 2002, and has worked with four separate dogs. He has been working with Fury, the German Shepherd, since February 27, 2015. He has been qualified as an expert in how a police dog communicates its findings to the handler while tracking; how a police dog responds to human scent; propensities of dogs, and the German Shepherd breed when tracking a scent.

He was qualified to give opinion evidence with respect to a police dog track and apprehension of a subject. [ 8 ] After receiving information from some residents, the Police Service Dog, Fury, received a scent from a residence at nearby Todd Crescent and south of the residence, went through a gate and west over a back fence. The dog eventually tracked to the end of a paved walkway where Mr. Baez was located standing against the wall of a residential building. Mr. Baez was commanded to get down on the pavement, he complied. He was then handcuffed and taken into custody. [ 9 ] Mr.

Baez was discovered within five minutes from the start of the tracking. Five to seven feet away from where he was standing, Sgt. Shaw retrieved a black Puma Sports bag, partially hidden within some greenery. It contained a quantity of narcotics, a handgun, and a BlackBerry mobile phone. [ 10 ] In closing submissions the defence has argued there are numerous inconsistencies in the evidence of the Crown witnesses. They have given various descriptions of the driver and what he was wearing, as well as regards to his ethnicity.

However, in my view, this is not surprising given the driver ran from the scene of the accident. I agree that different versions have been offered as to a description. It is, however, noteworthy that within 20 minutes of the accident Mr. Baez was arrested. [ 11 ] The issue, first of all of possession, has been discussed in some decisions that I have been referred to, including a decision from the Supreme Court of British Columbia, a decision of Madam Justice Griffin, R. v.

Howell , which was delivered on October 10, 2014. [ 12 ] In that case, the issue was whether or not the circumstantial evidence was sufficient to support a conviction. The Crown's case was based on circumstantial evidence found as a result of the search of a car owned by the accused, which he was driving. A significant quantity of methamphetamine was found in the car inside two baggies, and a digital scale was also found in the bags. The amount of $1,530 in cash was on the accused. [ 13 ] However, there was also a passenger who had been in the car with the driver.

The rational inferences that can be drawn from the presence of two people in the car were very much at issue. [ 14 ] Madam Justice Griffin referred to the definition in the Criminal Code of possession in Section 4(3) , which states: ... 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 And she emphasizes: (

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.

[ 15 ] In paragraph 9 she stated: Knowledge must be more than mere quiescent knowledge; hence the requirement to show that the accused had a measure of control over the item. The element of control does not require proof that the accused exercised control or manually handled the drugs; just that he has the ability to exercise some power or authority over the item. [ 16 ] Quoting a B.C. Court of Appeal case, R. v.

Russell , a case decided in 2011. [ 17 ] In paragraph 11 she writes: The elements of possession can be drawn by circumstantial evidence but only if the Crown satisfies the court beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts. [ 18 ] She quotes R. v.

Ngo, a 2009 decision of our Court of Appeal where it was held that circumstantial evidence must be assessed as a whole: In considering whether the circumstantial evidence supports an inference of guilt beyond a reasonable doubt, the trier of fact must not examine each individual circumstance in isolation. Instead, the proper approach is to consider whether all the evidence, taken together, establishes the guilt of the accused and is inconsistent with any other rational conclusion. [ 19 ] The Crown has also referred the court to the decision of our Court of Appeal in R. v. McNeil , reasons given on June 8, 2010.

In that case the trial judge found that: He found that the totality of the evidence he accepted was consistent with guilt and inconsistent with any other rational explanation. Counsel could not suggest any other rational inference that could be founded in the evidence and, as was said by McRuer C.J.H.C. in R. v.

McIver … [ 20 ] A 1965 decision of the Ontario High Court, later affirmed by the Supreme Court of Canada: The rule makes it clear that the case is to be decided upon the facts, that is, the facts proved in evidence, and the conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts. No conclusion can be a rational conclusion that is not founded on evidence. Such a conclusion would be a speculative, imaginative conclusion, not a rational one. [ 21 ] I have also been referred to another decision of our Court of Appeal, R. v.

Twohey , where counsel for the appellant was represented by Lawrence Myers, Q.C., and somebody named A.C. Ip. In that case, the court quoted Chief Justice McEachern, who stated in R. v. To , a 1992 decision: It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility. The criminal law requires a very high degree of proof, especially for inferences consistent with guilt, but it does not demand certainty.

Trial judges are not expected to leave their common sense at the door when they enter a courtroom. The trial judge reviewed the evidence, considered the arguments and came to a conclusion which is reasonable and supported by the evidence. [ 22 ] In my view, Mr. Baez is caught within a web of circumstances. The driver is seen running from the scene of the accident, then changing his mind, running back to retrieve a black bag from the trunk, and then running away again. Logic dictates that he returned to gather something valuable. [ 23 ] The route that he takes is pointed out to the police.

The dog handler is called in to assist, and within five minutes of tracking, the dog confronts Mr. Baez standing up against a wall of an apartment building. Just a few feet away, the police discover a bag containing numerous "valuable items," including narcotics and a handgun. Mr. Baez is wearing a black hoody with red lettering, the same clothing item that was described by Ms. Ziggenheigel, who, as I have stated, was a very reliable witness.

Although other witnesses have described somewhat different clothing, I agree with the Crown's argument that the red lettering must have been difficult to observe when a suspect is running away from the accident scene and has his back to the witnesses. [ 24 ] Accordingly, I find the only rational conclusion is that Mr. Baez had knowledge and control of the black bag and its contents that were just a few feet away from him. This is also inconsistent with any other rational conclusion. Accordingly, I find him guilty of Counts 1, 2 and 3. [ 25 ] Count 4 is more problematic.

Although I have concluded that the handgun was in the possession of the accused, the issue before the court is whether or not it can be defined as a firearm within the meaning of

Section 2 of the Criminal Code of Canada ; and that it is a barrelled weapon from which any shot, bullet, or other projectile can be discharged, and includes anything that may be adapted for use as a firearm. [ 26 ] A forensic analysis was conducted by Angela Butler, a designated firearms analyst at the Royal Canadian Mounted Police. The forensic analysis was conducted to determine the mechanical condition and legal classification of the pistol, including test-firing. [ 27 ] Defence counsel has drawn the court's attention to the results of her testing.

It states that the pistol was not in operating condition upon receipt due to a missing grip safety and grip safety pin. A loose grip safety was observed in the packaging of the exhibit. [ 28 ] Ms. Butler's report then states, and I quote: With the replacement of the grip safety and the addition …

[ 29 ] My emphasis: … of a grip safety pin, the pistol discharged conventional ammunition designed to attain a velocity exceeding 152.4 metres per second, that is, bringing it within the definition of a firearm. [ 30 ] This raises the question, where did the grip safety pin come from?

I do not wish to engage in Monday morning quarterbacking, or in judicial nit-picking, but my reading of the phrase, "the addition of the grip safety pin," leads one to conclude that that item was not in the handgun when the police seized it, or in the bag that contained the handgun. [ 31 ] The unanswered question in these proceedings is: where did it come from? A similar issue has been discussed in a case relied upon the defence, R. v. Grant , a decision of the Ontario Superior Court of Justice, dated March 2, 2006. In that trial, Mr. Grant was charged with illegal possession of a firearm.

Police found the receiver portion of a Browning Sporting shotgun in the accused's possession. The two other necessary portions of the firearm, the barrel portion and the forestock portion, were not in his possession. Police subsequently found the forestock portion close to the scene of the arrest. The barrel portion was never found. [ 32 ] Expert evidence was that the weapon was not operational without the barrel portion, but the barrel was not easily commercially obtainable, and that a barrel from another type of shotgun could not be fitted into the shotgun. The accused was acquitted.

The court decided that the evidence established that the device could not be made operational without the two other portions. The device could not be adapted or modified to fire ammunition by the accused within a reasonable time. The device was then held not to constitute a firearm within the definition under the Criminal Code . [ 33 ] In this case, Mr. Justice Stinson quotes the firearms section,

Section 2 of the Criminal Code , and refers to the Supreme Court of Canada case dated 1983 of R. v. Covin and Covin , where the court considers the definition of a firearm, and Chief Justice Lamer stated: It is apparent that the

section extends the definition of “firearm” to include anything that has the potential of becoming a firearm through adaptation. The

section goes on to extend that category to include “frames and receivers” … [ 34 ] The facts in that case illustrate the court's meaning in the foregoing discussion, and I am quoting from paragraph 14. The offence under consideration in that case was the use of a firearm during the commission of an offence. The evidence demonstrated that the weapon in question was an air pistol that was in a damaged and incomplete condition. A number of parts were missing or damaged, some of which were essential to the operation of the gun.

An expert witness testified that an experienced person could replace the missing parts in ten to 15 minutes. [ 35 ] In light of the fact that the air pistol was inoperative at the time of the hold-up, the Supreme Court had to decide whether it qualified as a firearm, and the court concluded at page 243: … whatever is used on the scene of the crime must, in my view, be proven by the Crown as capable, either at the outset or through adaptation or assembly, of being loaded, fired and thereby of having the potential of causing serious bodily harm during the commission of the offence or during the flight after the commission of that main offence, the hold-up. (as read) [ 36 ] The court quoted R. v.

Ferguson , a 1985 decision of the Ontario Court of Appeal where the question of adaptability in the context of the offence of possession of a prohibited weapon was discussed. The expert evidence was that the mechanism needed to make it operational was easily obtainable in Toronto, and that while an ordinary person would have difficulty putting it together, an expert or someone with experience could assemble it in less than a minute. [ 37 ] The court in R. v. Grant has cited R. v.

Cook , a 1989 decision of the Manitoba Court of Appeal, which stated: On a charge of possession of a prohibited weapon under s. 90(l), which is a continuing offence, the factors of adaptability and time are of far lesser importance [than] in an offence of using a weapon in the commission of an offence as in Covin , supra. Moreover, the ability of the accused himself to adapt the weapon is not really a crucial factor. There are many people knowledgeable about guns, who could readily assist him in that endeavour.

The court went on to apply the following test: is there evidence "from which it can be reasonably inferred that [the accused] had the capacity by himself or with the assistance of others and within a reasonable time to activate the gun for firing"? [ 38 ] In Grant , at paragraph 27, the trial judge reports that the evidence of Detective Moore, who testified that a Browning model is a common shotgun in Canada and the United States: He further testified that a sporting goods store could order a part for this make and model and that it was possible to purchase an individual part, such as a barrel, without purchasing the forestock or receiver.

It was his evidence that it would not be difficult to locate such a part, and he named several sporting goods stores in Toronto or elsewhere in Southern Ontario that carry firearms from which such a

part could be ordered. He further testified that the barrel could easily be attached to the forestock and receiver in a matter of moments or seconds by an ordinary person, without special expertise, and without the need for any tools. He also testified that ammunition for this shotgun was readily available at any sporting goods store that carries ammunition. [ 39 ] In cross-examination he conceded that he did not make specific inquiries regarding the availability or the characteristics of that model. He further conceded that he did not make any inquiries about obtaining a barrel for the 525.

He did not know how much a barrel for this weapon would cost. He was unable to say how long it would take to find a barrel for the gun, but agreed that it would take some time to order one from the manufacturer. He agreed that it was not possible to go into a store and buy one off the shelf. When it was suggested to him that it would probably take months to get one from the manufacturer, Detective Moore responded that he "had no idea". [ 40 ] In Grant , Mr. Justice Stinson concluded:

In my view, the evidence proffered by the Crown does not provide the court with a sufficient basis to conclude that a barrel to affix to the receiver for the Browning Citori 525 Sporting model that was found in Mr. Grant's possession could be obtained within a reasonable time. There is no reliable evidence that a barrel could be obtained anywhere other than from the manufacturer, and then only with considerable time, difficulty and effort. [ 41 ] He goes on to say: In the absence of such evidence, there is no proper ground upon which to conclude that the receiver found in Mr.

Grant's possession, even when coupled with the forestock found in the parking lot, was adaptable for use as a weapon within a reasonable time. Applying the test that was applied by the Manitoba Court of Appeal in Cook , in my opinion there is insufficient evidence from which it can be reasonably inferred that Mr. Grant had the capacity by himself or with the assistance of others and within a reasonable time to activate the gun for firing. I therefore conclude that the Crown has failed to establish that the device found in Mr.

Grant's possession was a firearm as defined in s. 2 of the Criminal Code . [ 42 ] And he dismissed the charge. [ 43 ] I agree with defence counsel that the same reasoning should apply in this case in that we do not know how long it would have taken to obtain and insert the grip safety pin. But in those circumstances, I find that the gun that was seized by the police in this investigation does not meet the definition of a firearm as set out in the Criminal Code . Accordingly, Count 4 is dismissed. (REASONS FOR JUDGMENT CONCLUDED)