R. v. Thomas, 2012 NSPC 117

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Thomas, 2012 NSPC 117 Date: October 17, 2012 Docket: 2197368-2197395 Registry: Halifax Between: Her Majesty The Queen v.

Thomas, Lorenzo, Williams, Timothy and Fraser, Brandon Judge: The Honourable Judge Theodore Tax Heard: October 17, 2012 in Dartmouth, Nova Scotia Written decision: January 17, 2013 Charges: See Appendix ‘A’ Counsel: Roland Levesque, for the Crown Trevor McGuigan, for Lorenzo Thomas Patrick Atherton, for Timothy Williams Peter Planetta, for Brandon Fraser By the Court : INTRODUCTION: [ 1 ] Shortly after 7 PM, on July 2, 2010, two Halifax Regional Police officers were parked near 95 Highfield Park Drive, Dartmouth, Nova Scotia to investigate drug activity in the area.

At that time, a white BMW, bearing Ontario license plate number BDME 189 drove by them and they recognized Mr. Thomas, seated in the backseat of that car. Based upon source information that Mr. Thomas was in possession of a firearm, the police officers followed the BMW for a short distance and decided to stop it to investigate. Although the police officers were in an unmarked police car, their car was equipped with and they activated its emergency equipment - lights and sirens, to signal the BMW to pull over and stop. However, the BMW did not pull over and stop, but accelerated at a high rate of speed.

The police officers pursued the BMW and radioed other officers to assist them in this high-speed pursuit. The pursuit of the BMW ended shortly thereafter when it went over a railway crossing at a high speed, became airborne for several feet, landed hard, spun out of control and flipped over on its passenger side on the grass several feet from the road. [ 2 ] After the white BMW came to rest on its passenger side, two men were seen to exit the vehicle through its sunroof and run off in different directions.

Several uniformed police officers and a police tracking dog were involved in the pursuit on foot of those two men. After a short pursuit on foot, those two men were arrested by police officers, who identified them as the accused, Mr. Brandon Fraser and Mr. Timothy Williams. The third accused, Lorenzo Thomas was arrested as he exited the vehicle through the BMW’s sunroof. When the BMW was searched by the police, they found a loaded restricted handgun in a white plastic bag that was partially under the front passenger seat.

The three accused were jointly charged with six weapons offences involving the Ruger 9mm firearm which was discovered in the white BMW.

[ 3 ] In addition to those charges, all three accused face charges of possessing a firearm while prohibited from doing so contrary to

section 117.01(1) of the Criminal Code and resisting police officers in the lawful execution of their duties contrary to

section 129 (

a) of the Criminal Code . Mr. Fraser faces two charges of breach of probation contrary to

section 733.1(1) (

a) of the Criminal Code , while Mr. Williams faces three additional charges in relation to his alleged operation of the white BMW contrary to sections 249(1) (a), 249.1(1) and 252(1) of the Criminal Code . [ 4 ] The Crown proceeded by indictment on all charges.

THE ISSUES: 1) In a case which is based wholly or substantially on circumstantial evidence, is the Court satisfied beyond a reasonable doubt that the only rational conclusion, arising from a consideration of the evidence as a whole, is the guilt of any one or more of the accused in relation to all of the firearms charges? 2) Has the Crown established, beyond a reasonable doubt, that any one or more of the accused were in “possession” of the firearm? 3) Has the Crown established, beyond a reasonable doubt, the identity of the driver of the BMW and the other essential elements of the driving charges? 4) Has the Crown established, beyond a reasonable doubt, all of the essential elements of the resisting police officers in the lawful execution of their duty charges?

POSITIONS OF THE PARTIES: [ 5 ] The Crown submits that they have established beyond a reasonable doubt that all three accused were occupants of the white BMW and that Mr. Williams was the driver of that vehicle on the evening of July 2, 2010. Although there was no direct evidence that the firearm was in the actual possession of any of the accused, the position of the Crown is that Mr. Williams was the driver of the BMW and that the Court may infer from the circumstantial evidence that he was in possession of the vehicle, by virtue of that fact, he possessed all of its contents. The Crown also submits that Mr.

Williams’ flight from the police in the BMW and his attempt to flee from the police on foot after the BMW flipped over on its side established the substantive offences of the resisting peace officers in the lawful execution of their duties and the driving offences. Furthermore, it is the position of the Crown that Mr.

Williams’ actions constitute post- offence conduct from which the court may infer his guilt in terms of the firearms charges under sections 94(1) , 95(1) and 117.01(1) of the Criminal Code because he had the knowledge of and control over the loaded firearm in the vehicle and that he was prohibited from possessing a firearm. [ 6 ] In terms of Mr. Fraser and Mr. Thomas, the Crown submits that they were the passengers in the BMW and acknowledges that the evidence falls short of establishing that, as passengers of the motor vehicle, they had actual possession of the firearm.

It is the position of the Crown, however, that it is reasonable to infer that they were aware that the firearm was in the car from the fact that a high-speed chase occurred after the police attempted to conduct a traffic stop. Therefore, the Crown submits that they have established beyond a reasonable doubt that Mr. Fraser and Mr. Thomas were occupants in the white BMW motor vehicle, both of them were prohibited from possessing a firearm and that they knew there was a firearm or prohibited weapon in that vehicle. It is the position of the Crown that Mr.

Fraser should also be found guilty of breach of probation and that both Mr. Thomas and Mr. Fraser should be found guilty of resisting peace officers engaged in the lawful execution of their duties because they ran off or attempted to do so. [ 7 ] It is the position of all three Defence counsel that there is no direct evidence of possession of the firearm and that there are no admissions or any forensic evidence to specifically link any of the three accused to the firearm found in the BMW on July 2, 2010.

As such, they submit that this case is based wholly or substantially on circumstantial evidence and that the court must be satisfied beyond a reasonable doubt that the guilt of the accused is the only rational conclusion which may be inferred from the proven facts. They submit that there is no direct or circumstantial evidence from which the court could infer that the accused, either jointly or any one of the accused individually, had “possession” of the firearm which, by definition, includes the knowledge of and control over that weapon.

Furthermore, it is the position of the Defence counsel that when a number of factors are examined relating to whether the accused had the knowledge and control of the firearm, either there are insufficient proven facts from which the Court may infer the guilt of the accused or that based on an analysis of the totality of the evidence or the lack thereof, the Court ought to be left in reasonable doubt with respect to all firearms offences. [ 8 ] Counsel for Mr. Thomas also submits that the evidence did not establish that his client had resisted arrest.

[ 9 ] Counsel for Mr. Williams submits that while there is some evidence that Mr. Thomas was seated in the back seat of the BMW, that evidence cannot be combined with the statement of Mr. Fraser that he was not the driver of the BMW, which was taken approximately two years after the incident, and then used against any other co-accused in a joint trial. It is the position of counsel for Mr. Williams that there were two similarly dressed people in the white BMW and that there is reasonable doubt relating to the police officer’s identification evidence of Mr.

Williams as the driver of the white BMW. [ 10 ] Counsel for Mr. Fraser submits that his client should be acquitted of all of the firearms charges as well as the breaches of probation. In terms of the charge of resisting a peace officer in the lawful execution of his duties, it is submitted that Mr. Fraser was not pursued by either Constable Jardine or Constable Travis as alleged in the Information, and therefore, his client should be acquitted of that charge as well. TRIAL EVIDENCE: [ 11 ] Detective Constable Sandy Johnston of the Halifax Regional Police Forensic Identification

Section introduced Exhibit 1 which was a booklet of 58 photographs. The first 43 photos taken on the evening of July 2, 2010 depict Wright Avenue, the exterior and interior of a white BMW automobile bearing Ontario license plate number BDME 189 and the area around #11 Thornhill Dr. in Dartmouth, Nova Scotia. The final 15 pictures in Exhibit 1 are photographs of a Ruger 9 mm firearm and the ammunition found in the clip of that handgun. [ 12 ] Det/Cst.

Johnston pointed out that the firearm was in a plastic bag which was on the floor, where the front passenger’s feet would be located, lying against the passenger side door of the flipped over BMW. In Exhibit 1, photos 26 and 27, the officer said that the front or muzzle of the firearm was visible outside of a white plastic bag, pointing towards the rear of the BMW. The officer seized the Ruger 9 mm firearm (Exhibit 2) from the BMW, removed the clip and saw that there were 10-9 mm bullets in the clip, but no bullets in the chamber.

She also said that all 9 mm rounds were “live” and that six of them were hollow point bullets. [ 13 ] Det/Cst. Johnston conducted a forensic examination of the Ruger 9 mm firearm and the ammunition at the police station. During this examination 9 (shown in photos 44 to 58), she looked for fingerprints on the firearm and the bullets as well as swabbing those items to check for the presence of DNA. While she did locate some friction ridges on the firearm, Det/Cst. Johnston said that the fingerprints were not identifiable or suitable to make a comparison.

She also sent four different swabs of possible DNA found on the firearm for analysis, however, the laboratory report dated August 13, 2010 (Exhibit 4) confirmed that there was limited and mixed genetic data on the swabs. Therefore, the lab analysis could not identify any single DNA profile and was not able to make any comparisons. [ 14 ] On cross examination, Det/Cst. Johnston agreed with Defence counsel that it was difficult to see the firearm in the photographs, as the car interior was black and so was the firearm.

She also agreed that there were other several items leaning against the passenger side door of the BMW, which was the side of the car laying on the ground after the vehicle flipped over on its side. She confirmed that no other items found in the white BMW, except for the firearm, were seized by her or analyzed for the presence of fingerprints or DNA. She also agreed with Defence counsel that the windows of the BMW appeared to be “slightly tinted.” [ 15 ] The Crown introduced the next 12 Exhibits with the agreement of Defence counsel.

Exhibits 5 and 6 were the curriculum vitae of Constable Roger Spriggs (K-9 unit) and the route taken by him in the pursuit of one of the accused who was arrested near #11 Thornhill Dr. Certificates of analysis (Exhibit 7 and 8) confirmed that the Ruger model P 89 semi-automatic pistol was a “firearm” and a “restricted firearm” and that the 10-9 mm Ruger caliber cartridges were “ammunition” within the meaning of section 84(1) of the Criminal Code .

Exhibits 9, 11 and 13 were affidavits from the Chief Firearms Officer which confirmed that none of the three accused had any possession only licences or possession and acquisition licenses under the Firearms Act. Exhibits 10, 12 and 14 were affidavits of Terry Myers, the Refusal and Revocation Analyst at the Canadian Firearms Registry which confirmed that there were no records of any registrations in that registry for any of the three accused. A probation order dated March 31, 2009, was Exhibit 15 which required Mr.

Brandon Fraser to be subject to the terms and conditions of probation for a period of 18 months after a term of imprisonment of 60 days as a result of a conviction for an assault contrary to

section 266 of the Code . The final two exhibits (16 and 17) were orders of prohibition made under

section 109 of the Criminal Code which prohibited Mr. Williams from February 3, 2005 and Mr. Thomas from May 23, 2007 from possessing any firearm. prohibited firearm or restricted firearm for a period of 10 years. [ 16 ] Det/Cst. Stewart Travis was a member of the Quick Response Unit in Dartmouth, Nova Scotia working with Cst. Jardine in plainclothes and in an unmarked police vehicle on Friday, July 2, 2010. They were parked at a bus stop near 95 Highfield Park Drive in Dartmouth to investigate drug activity in that area. At about 7:12 PM that evening, Det/Cst.

Travis saw a white BMW pass in front of him going west on Highfield Park Drive. As the car passed his position, he noticed that the rear driver’s side window was down about 1

to 2 inches and he was able to identify Mr. Thomas sitting in that seat. He had parked his car close to the street and he estimated that he was about 10 to 15 meters from the BMW. The officer also stated that the driver’s window was a little over halfway down and that he was able to see a profile of the driver. [ 17 ] Det/Cst. Travis stated that he was aware of source information that Mr. Thomas was in possession of a firearm, so he decided to follow the white BMW. Cst. Jardine advised dispatch that they were following the white BMW.

They followed the car as it turned right onto the Victoria Road extension and proceeded to a red light at the corner of Victoria Road and Windmill Road. At this point, their car was right behind the white BMW and a marked police car was beside them. When the light turned green, the cars began to move forward and Det/Cst. Travis received a communication to conduct a “high risk” traffic stop. He activated the flashing emergency lights on their front window visors and the front grill of the car and turned on their siren.

The white BMW did not pull over and stop, but rather, it sped off and the police car accelerated to pursue it. [ 18 ] The white BMW went along Windmill Road and then made a right turn onto Wright Avenue. Det/Cst. Travis believed that there were other cars on the road at that time, but did not specifically note the volume of traffic in that area. After the BMW turned onto Wright Avenue, it began to pull away from the police car at speeds estimated to be over 120 km/h. Det/Cst. Travis said that the speed limit on Wright Avenue in that area is 50 km/h. [ 19 ] Det/Cst.

Travis saw that the BMW was approaching train tracks that cross Wright Avenue and knowing the nature of that crossing and the speed of the BMW, the officer believed that the BMW might bottom out and be damaged. After the white BMW went over the train tracks, it became airborne, going about 3 to 4 feet in the air, went out of control, crossed the road, spun around and flipped over on its passenger side, facing back to the direction of the oncoming police cars. He estimated that he had pursued the white BMW for about 1 ½ to 2 km. [ 20 ] Det/Cst.

Travis was driving his police car and was about 30 metres from the train tracks when the white BMW came to “rest” on the grass in front of #71 Wright Avenue. As he was pulling up to the BMW, he saw two black males climb out of the sunroof and run off. When he saw that a third person was getting out of the sunroof, the officer had his service revolver out as he approached the car. Det/Cst. Travis was able to identify Mr. Thomas as the third person getting out of the car because he had prior dealings with him. When the officer saw that Mr.

Thomas did not have a weapon in his hands, he returned his firearm to its holster. Mr. Thomas tried to “wiggle” away from Det/Cst. Travis, but the officer grabbed Mr. Thomas and took him to the ground. Det/Cst. Travis advised Mr. Thomas he was under arrest for weapons offences and ordered him to stop. The officer said that he had to put his arms on Mr. Thomas’s arms and had to use a lot of force to hold him down by laying on top of him until another member arrived and assisted him. The officer believed that if he did not apply the force that he did, Mr. Thomas would have fled. [ 21 ] Once Mr.

Thomas was escorted away by other officers, Det/Cst. Travis noticed that there was a firearm on the floor of the passenger side of the white BMW, where the front seat passenger would put his or her feet. He believed this firearm to be a semi- automatic pistol. He asked for a Forensic Identification Unit officer to attend, take photographs and seize the firearm. He waited beside the white BMW until Det/Cst. Johnston took charge of the scene. [ 22 ] After being advised that the other two males who had fled on foot from the BMW were apprehended, Det/Cst. Travis returned to the station.

A short time later, during the evening of July 2, 2010, Det/Cst. Travis went into the booking area and saw one of the men seated in that area, who had fled on foot from the BMW; but was arrested by other officers. One of the other officers advised him that the name of the man seated in the booking area, was Timothy Williams. Det/Cst. Travis stated that Mr. Williams had the same profile as the driver of the white BMW and he identified Mr. Williams in court. [ 23 ] Det/Cst.

Travis also stated that he had been asked by the Crown to contact the registered owner of the white BMW bearing Ontario license plate number BDME 189. He believes that the registered owner of that BMW is Ms. Jennifer McIsaac of Scarborough, Ontario, but he is not 100 per cent sure. He was not able to make contact with her to obtain any additional information. [ 24 ] On cross examination, Det/Cst. Travis confirmed that when he first saw the white BMW, it was proceeding at about 50 km/h and that it would have passed by his position in a few seconds.

He confirmed that the police had not been following the white BMW prior to 7:12 PM on July 2, 2010. From where the police car was parked, Det/Cst. Travis could only see the driver’s side of the white BMW, but added that he saw the profile of Mr. Thomas’ face and his neck when he turned to look out the window. He could not see Mr. Thomas’ hands and did not see him doing anything else in the car. The officer also confirmed that it was about five minutes in total from the time when he first saw the white BMW until Mr. Thomas was arrested by him. [ 25 ] Det/Cst.

Travis said that he was about 20 feet from the front of the BMW when he saw the first person get out of the sunroof

and run off. Cst. Jardine chased after one of the two people who had fled on foot. Det/Cst. Travis arrested Mr. Thomas a few feet from the BMW. He grabbed Mr. Thomas from the side and behind to control his arms and body movements so that Mr. Thomas could not run off like the other two individuals who had been in the car. [ 26 ] In response to questions posed by counsel for Mr. Williams, Det/Cst. Travis confirmed that the white BMW had tinted windows all around which are not legal in Nova Scotia. He confirmed that he did not previously know Mr. Williams.

He added that the white BMW was going at the speed limit when it passed by his location which allowed him to catch a “glimpse” of the driver for a “second or so.” He confirmed that he was about “85 to 100 per cent sure” that Mr. Williams was the driver of the white BMW. Det/Cst. Travis confirmed that he did not identify Mr. Williams in a lineup and that his identification of him as the driver was based on the one to two seconds when the white BMW passed his location. He added that a lineup could have been conducted, however it was not deemed necessary in this case. [ 27 ] On further cross-examination, Det/Cst.

Travis confirmed that the windows of the white BMW were not up when it drove by. His notes reflected that the rear window was down, but he agreed that he had no notes regarding whether the front window was down or not. He agreed with Defence counsel that his identification of Mr. Williams as the driver was based on his profile and that he had not made any notes regarding the profile. The police officer agreed that if the window was up, because they were tinted, he could not have seen the driver. However, Det/Cst.

Travis reiterated that the front driver’s side window was partially down so that he was able to see the full side profile of the driver’s face. [ 28 ] On re-examination, Det/Cst. Travis said that while use of a lineup is a normal procedure, it was not deemed necessary in this case because he was “80% to 100 per cent sure” of the identity of the driver based upon the side profile of that person. [ 29 ] Cst. Brad Jardine testified that on July 2, 2010 around 7 PM, he was working with Det/Cst. Travis and he was the passenger in their police car which was parked near 100 Highfield Park Drive.

A short time later, a newer model “flashy” BMW, which he had not previously seen in the area, drove by their location at about 50 km/h , which is the posted speed limit for that area. The rear window on the driver’s side was three quarters to all the way down and he recognized that Mr. Lorenzo Thomas was the passenger seated there. He and Mr. Thomas made eye contact, and in Cst. Jardine’s opinion, Mr. Thomas looked “nervous.” Cst. Jardine was able to identify Mr. Thomas because they had previous dealings and Mr. Thomas had a “distinctive look” with tattoos on his face. [ 30 ] By way of narrative, Cst.

Jardine explained that the police had received some source information that Mr. Thomas might have a firearm, so he and Det/Cst. Travis decided to conduct a traffic stop. They followed the white BMW on the Victoria Road extension and near Windmill Road. At that point, they turned on their emergency lights and siren and the white BMW sped off. The driver of the white BMW made a “quick” right turn onto Wright Avenue which caused the tires to squeal and then the BMW picked up speed to proceed at over 100 km/h in a 60 km/h zone.

As the car went over the railway tracks crossing that street, all 4 wheels became airborne, the car fishtailed 180° and flipped over on its passenger side. When the BMW flipped onto its passenger side, Cst. Jardine estimated that their police car was about 35 feet away. Cst. Jardine estimated that the high-speed pursuit of the white BMW was about 1 kilometre in length and said that there were some cars approaching them in the other direction on Wright Avenue. [ 31 ] Cst. Jardine saw that Mr. Thomas was still at the BMW and that another person, later identified as Mr. Williams had just run up Wright Avenue.

When Det/Cst. Travis went over to deal with Mr. Thomas, Cst. Jardine decided to pursue the other black male through some buildings. As he was pursuing that man on foot, he yelled “police officer” and “stop, show me your hands.” Cst. Jardine added that, during the chase on foot, the person who he was pursuing, looked back at him on occasion and they made eye contact as they were running. However, he lost sight of that person about 200 metres from the BMW. At this point, Cst.

Jardine called the K-9 unit to assist him in locating that individual and since the K-9 unit was nearby, they arrived within a short time. [ 32 ] Cst. Jardine advised the K-9 unit where he had last seen the black male who he was chasing and then the K-9 unit continued to track that person. Cst. Jardine went back to the white BMW and met with the Det/Cst. Travis. At that point, he noticed that there was handgun in the white BMW. Within a few minutes, Cst. Jardine was advised that a black male, named Timothy Williams had been located in a nearby dumpster. When Mr.

Williams was brought back to a police car, the officer noted that Mr. Williams was wearing a red shirt with longer black shorts. Cst. Jardine was “100 per cent sure” that Mr. Williams was the person who he had pursued that evening and he also identified him in court. [ 33 ] On cross examination, Cst. Jardine stated that the officers were parked at the Highfield Park bus terminal and the BMW drove in front of them from his right to left. This was the first time that he had ever seen Mr. Thomas in that car, and in fact, he had never seen that car before.

He confirmed that the BMW was going the appropriate speed limit for that area. He also agreed that as the BMW drove by, he had approximately two seconds to observe the occupants of the car. Cst. Jardine stated that the back window was down and that he was able to see the head and the top of the shoulders of Mr. Thomas. When Mr. Thomas looked at the police officers, he did a “double take” and had a “surprised look” on his face which is why he had earlier said that Mr. Thomas “looked nervous.” Cst. Jardine

also confirmed that the back windows of the BMW were tinted, and as the police officers were pursuing it, he only saw silhouettes of heads in the car, but he could not see any movements. [ 34 ] Cst. Matthew Veinotte was working with Cst. Brad Kincade in Dartmouth, Nova Scotia, as a patrol officer in a marked police car on the evening of July 2, 2010. Shortly after 7 PM, he was stopped at the lights near the intersection of Windmill Road and the Victoria Road extension when a white BMW pulled up beside him. As the light turned green, Det/ Cst.

Travis advised him that he was about to conduct a high risk traffic stop. When the other officers activated their emergency equipment, Cst. Veinotte also activated his emergency equipment. The white BMW accelerated up to an estimated speed of 100 km/h and went into the center median lane designated only for turns. The BMW then made a sharp right turn off Windmill Road and proceeded up Wright Avenue. [ 35 ] Cst. Veinotte stated that there was traffic proceeding in both directions on Windmill Road at the intersection with Wright Avenue.

At that location, he said that Windmill Road has two lanes going in a northerly direction towards Magazine Hill and that there are two lanes going in a southerly direction towards the Victoria Road extension.

The officer also added that between the northbound and southbound lanes of traffic, there is a median lane which is utilized for left hand turns in either direction, off Windmill Road. [ 36 ] On Wright Avenue, the white BMW pulled away from the police cruisers which were in pursuit, until it went out of control after crossing over the railway tracks on Wright Avenue and flipped over on its passenger side on the other side of the road. Cst.

Veinotte indicated that the police pursued the white BMW up Wright Avenue for about 1½ kilometres for approximately 30 seconds going at speeds which he estimated to be between 120 and 140 km/h, in a posted 50 km/h zone. [ 37 ] Cst. Veinotte saw three black males exit from the sunroof of the BMW and he chased after one of those males, who he later identified as Timothy Williams. He and Cst. Jardine chased a man who was wearing a red shirt and black shorts.

As he was chasing that person, the officer yelled loud and clear commands: “stop police, you are under arrest for firearms charges”, but the person did not stop. He lost sight of the person he was chasing when, for officer safety, he slowed as he approached the corner of a building. From there, the K-9 unit took over and Mr. Williams was located and arrested by Cst. Terry Poole. Cst. Veinotte was 100 per cent certain that the person located by the K-9 unit was the person who he had been chasing. [ 38 ] Cst. Roger Spriggs is a Halifax Regional Police officer who has been in charge of a K-9 unit for seven years.

He was qualified as an expert to give opinion evidence on the handling, observation, reading and

interpretation of movements of tracking dogs. Cst. Spriggs indicated that on Friday, July 2, 2010 he was called at about 7:15 PM to assist Cst. Jardine, as individuals had fled from the police following an attempted traffic stop. He detailed the route that he followed until his tracking dog indicated that there was a person in a dumpster located beside #11 Thornhill Dr. in Burnside. Cst. Poole, who was working with Cst. Spriggs, ordered the person in the dumpster to come out and he arrested Mr. Williams. [ 39 ] Cst.

Terry Poole was on patrol duty on July 2, 2010, in full uniform and operating a marked police car when Det/ Cst. Travis asked for assistance in a high risk takedown. Cst. Poole was Cst. Spriggs’ cover officer and when the police dog indicated that there was someone in a dumpster, Cst. Poole opened the lid, looked inside and ordered a male to exit. He arrested an African Canadian male, later identified as Mr. Williams, and turned over custody of him to Cst. Goodwin. [ 40 ] Cst.

Judson Goodwin was on patrol duty in the Dartmouth area on July 2, 2010 and heard, over his radio, that police officers required assistance in pursuing a vehicle. When he arrived, he saw that the BMW was on its side and that two people had fled from it on foot. He followed the K-9 tracking dog and Cst. Spriggs, until they located a person wearing a red shirt and shorts in a dumpster. He arrested Mr. Williams at 7:37 PM. He noted that Mr. Williams said that he had trouble breathing and had a scrape on his back. Mr.

Williams was taken to the hospital under police escort for observation, and then to the police station for booking. [ 41 ] Cst. Goodwin described the clothing that Mr. Williams was wearing when he was arrested. The officer stated that Mr. Williams was wearing black shorts, a red T-shirt with no lettering and that he had white, high cut sneakers with some black markings on them as well as white ankle socks. He was also wearing a black belt with silver studs with his shorts. [ 42 ] On July 2, 2010, shortly after 7 PM, Cst.

Bradley Kincade was in full uniform, in a marked police car on general patrol duty, in Dartmouth, Nova Scotia. He was working that evening with Cst. Veinotte who was the driver of the police car. At about 7:16 PM that day, they were at the corner of Victoria Road and Windmill Road when they heard a radio request for assistance in a high risk takedown. They activated the emergency lights and siren, and then they pursued a silver BMW up Windmill Road, and followed it as it turned right onto Wright Avenue.

He noted that the BMW flipped over on its passenger side when it went out of control after crossing railway tracks.

[43] Cst. Kincade saw three black males get out of the BMW and noted that one male was on the ground beside the car, and that theother two males had run off in opposite directions. At about 7:18 PM, he began to chase a black male, wearing black shorts with somered on them, a red T-shirt and black and white Nike sneakers. Cst. Kincade pursued the black male who ran eastbound on Wright Avenueuntil he saw that person laying in the bushes about 100 feet from number 71 Wright Avenue. He directed the person, to come out of thebushes and he arrested Mr. Brandon Fraser for flight from the police around 7:30 PM. Cst.

Kincade stated that Mr. Fraser hadcomplained about some injuries and as a result, Emergency Health Services were called to the scene to attend to him. Cst. Kincadeidentified Mr. Fraser in court and stated that he was also familiar with Mr. Fraser before this incident and that a check of CPIC by Cst.McCullough indicated that there had been warrants for his arrest. [44] Cst. Ross Burt attended at the scene to conduct an accident investigation into the single vehicle collision of the BMW.

He alsochecked the license plate of the white BMW in the police computer and learned that the registered owner of that car was Ms. JenniferMcIsaac of Scarborough, Ontario. There were no reports that the car was stolen. On cross examination, Cst. Burt confirmed that hesearched Mr. Thomas after his arrest, and found what he believed to be marijuana in a pocket. [45] In addition, before closing their case, the Crown Attorney sought to introduce a statement made by Mr. Brandon Fraser to thepolice on February 23, 2012. As a result of an agreement between counsel for Mr.

Fraser and the Crown, it was determined that a voirdire would not be required and that the statement made by Mr. Fraser to the police on February 23, 2012 could be admitted as it wasagreed that Mr. Fraser knew he was speaking with the police officer and did so voluntarily with an operating mind. [46] Furthermore, it was agreed by the Crown Attorney and counsel for Mr. Fraser that the statements made by Mr.

Fraser that “ifhe had been driving the vehicle, the police would never have caught them” and that “he was going to beat the charges as he did not ownthe car and was not driving it” would be admitted as agreed facts under

section 655 of the Criminal Code. Counsel for Mr. Fraser andthe Crown Attorney also agreed that a proven fact under

section 655 of the Code was that, at the time of his arrest, there were twooutstanding warrants for Mr. Fraser. Defence counsel pointed out that this admission was only in relation to the fact that there were twooutstanding warrants, and not for proof of any prior criminal conduct. [47] Defence counsel advised that their clients had elected not to testify or call any other evidence during the trial. ANALYSIS: [48] At the outset of my analysis, it is important to note the general principles which apply in all criminal trials.

First, in a criminaltrial the burden is on the Crown to prove the charges against any accused beyond a reasonable doubt. Furthermore, the three Accusedare presumed to be innocent of the charges before the court unless I conclude that the Crown has proved their guilt beyond a reasonabledoubt. The effect of that presumption of innocence means that Mr. Thomas, Mr. Fraser and Mr. Williams do not have to testify, presentany evidence or prove anything.

The burden of proof is on the Crown and it never shifts to any one or more of the three Accused people. [49] The presumption of innocence and the requisite standard of proof beyond a reasonable doubt are fundamental principles in ourcriminal law. The Supreme Court of Canada has established in cases such as R. v. Lifchus, [1997] 1 SCR 320 and R. v. Starr, 2000 SCC 40 , [2000] 2 SCR 144 that, “reasonable doubt” does not require the Crown to prove the allegations to anabsolute certainty.

However, the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on abalance of probabilities. [50] The Supreme Court of Canada has also pointed out in those decisions that a reasonable doubt is not based upon sympathy orprejudice, nor is it an imaginary or frivolous doubt. It is a doubt based upon reason and common sense which is logically connected tothe evidence or the lack of evidence.

Reasonable doubt may arise through the evidence presented by the Crown, if the court determinesthat the evidence was vague, inconsistent, improbable or lacking in cogency so as not to constitute proof beyond a reasonable doubt. Ofcourse, reasonable doubt can also arise from testimony of an accused or any other evidence tendered by the Defence from any othersources. Were the Firearms Charges Established Beyond a Reasonable Doubt? [51] As mentioned previously, the decision on these charges requires an analysis of the direct evidence and the circumstantialevidence from which facts in issue may be inferred.

For the firearms charges, the key issue to determine is whether the Crown hasestablished beyond a reasonable doubt that Mr. Williams, Mr. Fraser and Mr. Thomas, individually or collectively, had actual,constructive or joint possession of the firearm. In order for the Crown to establish possession of the firearm, since there is no directevidence of actual possession of the firearm, the Crown must establish, beyond a reasonable doubt through circumstantial evidence thatone or more of the Accused had “possession” of the firearm by having knowledge of it and exercising some control over it prior to being

seized by the police in the BMW. [52] The definition of "possession" is found in subsection 4(3) of the Criminal Code which provides as follows: 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 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 the possession of each and all of them. [53] In effect, subsection 4(3) of the Criminal Code creates three types of possession: (

A) personal possession as outlined in section4(3)(a); (

B) constructive possession as set out in section 4(3)(a)(

i) or section 4(3)(a)(ii); and (

C) joint possession as defined in Section4(3)(b). PERSONAL POSSESSION: [54] In order to establish personal possession of the firearm, the Crown is required to prove that one of the accused physicallypossessed or controlled the firearm and had the requisite knowledge.

Absent an explicit admission by an accused about the nature andexistence of the contraband (in this case a firearm) alleged to be in his or her possession, knowledge must be inferred from thecircumstantial evidence. [55] In cases where the contraband or firearm is in the personal possession of an accused and in plain view, knowledge of itspresence is an easy inference to draw. Where the contraband or firearm is not in plain view, inferences about knowledge, consent andcontrol may pose a more difficult task.

The requirement to establish control is often tied to the accused’s manual or physical contact withthe firearm. See R v. LeBlanc, 2009 NSSC 221, at paras. 25-26. CONSTRUCTIVE POSSESSION: [56] Constructive possession, which is sometimes referred to as “attributed possession,” arises when an accused person hasknowingly placed or kept the illicit substance or firearm in a location for his or her use or benefit or the use or benefit of another person.The accused must have intended to place the illicit item in a location for his use or benefit or the use or benefit of another person.

Inaddition to having the knowledge that the illicit substance or firearm is in a location, the Crown must also establish that the accusedperson’s knowledge extended beyond quiescent knowledge or inactive knowledge to disclose some measure of control, influence orauthority or a right of control over the illicit substance or firearm. See: R. v. Pham, (ON CA), [2005] O.J. No.5127(Ont.C.A.) at para.15.

JOINT POSSESSION: [57] Joint possession occurs when one or more accused persons have possession of the illicit substance or firearm with theknowledge and consent of the others, and in those circumstances, then all of the accused are deemed to be in possession of the illicitsubstance or firearm. The elements of this offence are knowledge of the illicit substance or firearm by the accused person and his or herconsent to the other person possessing it. Furthermore, in order for the accused person to be in a position to consent, he or she must alsohave some measure of control over the illicit substance or firearm.

Once again, the Crown is required to prove beyond a reasonable doubtthrough either direct evidence or circumstantial evidence that the only reasonable inference that could be drawn was that the accusedperson or persons had the requisite knowledge and control over the illicit substance or firearm: See R. v. Thomas, [2005] O.J. No. 2104(Ont.SCJ) at para. 22; R. v. Iser, [2012] BCPC 70, at para. 101 and R. v. Pham, supra, at para. 16. [58] In reviewing the Information, I find that the first nine charges against the three accused persons - Mr. Thomas, Mr. Williamsand Mr.

Fraser, all allege that they, either jointly or individually, had the knowledge of or the possession of a firearm, to wit, the Ruger 9mm handgun. As I have indicated above, in cases where there is an issue whether there was actual, constructive or joint possession, theCrown must establish that the accused had knowledge of the firearm and exercised a measure of control beyond mere quiescent orinactive knowledge.

[59] In this case, there is no direct evidence or any inculpatory admission made by any one of the three accused that he or they hadactual possession or personal possession of the firearm or that they knew that the firearm was in the BMW.

In these circumstances, I findthat the Crown must prove, beyond a reasonable doubt, through circumstantial evidence that the accused either individually or jointlyhad possession of the firearm, by having knowledge of and exercising some control or influence over it. [60] At this point, it is important to instruct myself on the issue of circumstantial evidence, and in particular, the facts in issue whichmay be inferred from that evidence. As with direct evidence, a piece of circumstantial evidence should be considered, not in isolation,but along with all of the other evidence as a whole in reaching a verdict.

It is a well-established principle that a conviction based uponcircumstantial evidence requires the trier of fact to be satisfied beyond a reasonable doubt that the guilt of the accused is the onlyreasonable or rational inference to be drawn from the proven facts: See R. v. Griffin, [2009] SCC 28, at para.33; R. v. Liberatore,[2010] NSCA 82, at para. 14; and R. v. Cooper (1977), 34 CCC (2nd ) 18 [SCC] at page 33. [61] In R. v. Anderson-Wilson, 2010 ONSC 489 , [2010] O.J. No. 377 (Ont.

S.C.) which involved the issue ofcircumstantial evidence in the context of possession of firearms, Hill J. pointed out at para. 73 that the Crown may seek to establish theexistence of a fact in issue by submitting that an inference may reasonably and circumstantially be drawn from the primary facts-wherethere exists an inferential gap between the primary fact and the fact to be proved.

Whether the inference is a reasonable one to drawusually involves an application of “human experience and common sense.” Circumstantial inferences are ones which “can be reasonablyand logically drawn from a fact or group of facts established by the evidence.” However, a trier of fact “cannot be invited to drawspeculative or unreasonable inferences.” [62] Mr. Justice Hill noted in Anderson-Wilson, supra, at para. 74, that these types of possession cases are most often fact-driveninquiries. Where proof is dependent upon circumstantial evidence, some facts will have more probative value than others.

It is thecumulative effect of relevant circumstances which must be assessed in determining whether proof beyond a reasonable doubt exists.After reviewing several weapons prosecutions, Hill J. summarized his conclusions by indicating that the following circumstances havebeen considered to be relevant:

(1) The physical proximity of the firearm to the accused;

(2) The degree of visibility of the firearm and whether the firearm could be easily concealed because of its reduced length;

(3) The degree of communal use of the vehicle containing the firearm;

(4) The size, nature and number of weapons in a particular space;

(5) The nature of other items located proximate to the firearm capable of providing context for inferences of knowledge and control. [63] Hill J. also pointed out in para. 75 of Anderson-Wilson, supra, that not everyone who drives or rides in a car containingconcealed illegal objects necessarily knows the presence or nature of those objects. In unlawful possession cases, where the prohibiteditem is concealed and not readily visible in a vehicle driven by the accused, the courts have generally required more than simplyevidence of the proximity between the accused and the item: see R. v. Amado, [1996] B.C.J.

No. 1943 (BCSC) at para 33; R. v. Greenand Rollins, [1993] O.J. No. 1346 (Ont. C.A.) and R. v. Lincoln, [2012] ONCA 542. [64] Based upon the evidence presented at trial, I have no doubt that the 9 mm Ruger firearm was located in the white BMW,bearing Ontario license plate number BDME 189 on the evening of July 2, 2010.

Furthermore, I have no doubt that the evidenceestablished that when members of the Halifax Regional Police activated their sirens and emergency lights to conduct a traffic stop of thewhite BMW, the driver of that white BMW did not stop as he was required to do, but rather, he accelerated at a high rate of speed toelude the police officers who were pursuing that vehicle.

After the police chase of the white BMW ended with the vehicle flipping overon its passenger side near 71 Wright Avenue, police officers located the 9 mm Ruger firearm wrapped in a plastic bag on the floor infront of the front passenger seat, lying against the passenger door. When the police officers searched the white BMW, theyacknowledged that it was not easy to see the firearm as it was black in color, lying against a black carpet, with the large majority of thefirearm being covered by a white plastic bag, which was on the floor in front of the front passenger seat.

Even in this location, I cannotconclude that the firearm was in plain view of the police officers, as the evidence established that only a small portion of the front ormuzzle of the black firearm was visible outside the white plastic bag on the black carpet of the BMW. [65] Given the location of the plastic bag containing the firearm, the baseball hat, the CD’s and other articles which were foundlying against the passenger door of the white BMW (see photos 24 to 28 of Exhibit 1), I find that it is highly unlikely that any of thoseitems were in that location before the BMW flipped over on its passenger side in front of 71 Wright Avenue.

[ 66 ] Common sense tells me and I am prepared to infer that the white plastic bag containing the firearm moved from wherever it had been located prior to the crash of the BMW to where it was seen and photographed by police officers.

I find that this inference that the bag containing the firearm moved is a reasonable one which may be logically drawn from the following proven facts: (1) the high rate of speed, estimated between 100 and140 km/h, at which the white BMW was traveling before the crash; (2) the BMW becoming airborne for several feet after hitting the railway tracks and landing hard on the road causing scratch marks in the pavement; (3) the car then going out of control and spinning around so that it was facing back in the same direction from which it had just come; and (4) after hitting the curb, the BMW flipping over onto its passenger side. [ 67 ] Furthermore, considering where the firearm was located by the police, I find that it is more probable that the firearm was under one of the front seats.

From my review of photographs 25, 26 and 30 in Exhibit 1, I find that the center console with the gear shift which is located between the front bucket seats of the BMW, appears to be solid and attached to the floor. From this fact, I find that it is unlikely that the plastic bag with the gun slid to the passenger side of the car from the driver’s side.

However, as I previously mentioned, based on the lack of any other proven facts from which reasonable inferences could be drawn, I have no way of being able to conclude whether the plastic bag containing the gun was in plain view beside one of the front seats or whether it was concealed under one of the front seats or moved from somewhere in the backseat to where it was located by the police officers. [ 68 ] Being unable to draw any reasonable inferences as to the actual location of the plastic bag containing the firearm prior to the BMW flipping over on its side, and the fact that there was no DNA or fingerprint evidence on the firearm to connect any one or more of the accused persons to that gun, I cannot conclude that any one of them had actual physical possession of the firearm prior to the crash of the BMW.

For the same reasons, since I have no evidence from which I could conclude that the firearm in the plastic bag was in plain view prior to the BMW flipping over on its side, I cannot find or infer that any one or more of the accused knew that the firearm was in the car. [ 69 ] The Crown submits that the court may infer that Mr. Williams, as the driver, had constructive possession of the firearm and that Mr. Fraser and Mr. Thomas were occupants of a motor vehicle knowing that there was a firearm or prohibited weapon in that vehicle. The Crown submits that the court may infer that Mr.

Williams was in possession of the firearm, by having knowledge of and control over that firearm and that the other two accused knew that there was a firearm in the BMW from the following proven facts:

a) The three accused were identified as the occupants of the white BMW bearing Ontario license plate BDME 189 at about 7:10 PM, on the evening of July 2, 2010;

b) When the police activated their emergency equipment to signal that the driver of the white BMW should pull over and stop, the driver accelerated at a high rate of speed in an effort to elude the police officers;

c) The 9 mm Ruger firearm or handgun was found in a white plastic bag in front of the front passenger seat, lying against the passenger door of the BMW;

d) Mr. Williams and Mr. Fraser were the first to people to exit the white BMW through its sunroof and then flee on foot. Both of them were arrested by the police after a brief foot pursuit in the vicinity of the white BMW;

e) The third accused, Mr. Thomas, was apprehended by police officers as he exited from the white BMW through its sunroof;

f) Mr. Williams and Mr. Thomas were prohibited from possessing any firearms and none of the accused had any legal authorization to possess any firearms or ammunition; Post-Offence Conduct - Flight from the Police [ 70 ] In addition to the facts referred to in the preceding paragraph, which I find to have been established beyond a reasonable doubt, the Crown also points to the flight of all three of the accused in the BMW and then, after the car overturned, the flight by two of the accused on foot.

The Crown submits that this post-offence conduct constitutes additional circumstantial evidence, from which the court may infer that all three accused were guilty of particular firearms offences. [ 71 ] In support of this proposition, the Crown Attorney refers to Justice Ewaschuk’s Criminal Pleadings and Practice in Canada , second edition, November, 2011, at

chapter 16:9030 dealing with flight or concealment from police. There, the author states that flight of an accused from the scene of a crime or the concealment of an accused from the police may constitute consciousness of guilt. The author also notes that the trial judge or jury should only infer guilt from flight or concealment if satisfied that the reason for the flight or concealment relates to the accused’s guilt and not for any other rationally proffered excuse, for example, panic or fright. Moreover, the flight must relate to the particular crime charged and not to some other crime the accused may have committed.

[72] The issues relating to post-offence conduct were recently addressed by the Supreme Court of Canada in R. v. White, [2011]SCC 13 at paras.37-39, where the Court stated that the relevance or probative value of post-offence conduct will depend on thefacts of each case. The Court held that there should be a jury instruction that this type of evidence should be excluded or if already on therecord, be subject to a “no probative value” instruction by the trial judge where the accused’s post-offence conduct is “equally explainedby” or “equally consistent with” two or more offences.

The Court also noted that in some cases an item of evidence may be probative ofone live issue, but not another. For example, the Court says at para. 39 that flight per se may be relevant in determining the identity of theassailant, but may not be relevant in determining the accused’s level of culpability as between offences, for example, murder andmanslaughter. [73] In this case, the three accused elected not to call any evidence and therefore, they did not directly put forward any other reasonsfor their flight from the police. However, there is evidence before the court that Mr.

Fraser had two warrants outstanding for his arrestand that Mr. Thomas had possession of an unspecified amount of cannabis marijuana when he was arrested. There was no evidence ofany outstanding warrants for Mr. Williams, but assuming for the moment that he was the driver of the BMW, it is possible that he drovethe BMW at high speeds to flee from the police in an effort to assist Mr. Fraser and Mr. Thomas, and having done so, his subsequentflight on foot is equally explained by the driving offences as much as the firearms offences.

As such, evidence that two of the accusedfled from the police after the BMW flipped over on its side, is simply another piece of circumstantial evidence which may or may not berelevant to a fact in issue. Thus the relevance of and the weight of that evidence must be assessed with all of the other direct andcircumstantial evidence in this case. [74] In White, supra, Rothstein J. noted, at para. 84, that for the purpose of proving identity and as part of the narrative; flight perse was clearly admissible. I find that the evidence of the flight of Mr. Williams and Mr.

Fraser from the police after the BMW flippedover on its passenger side is admissible and relevant as that evidence does have some tendency, as a matter of logic and common sense,to establish the identity of the driver and the other occupants of the BMW. It is also relevant and material, and as such, it is properlyadmissible as part of the narrative of this case. [75] In addition to the live issue of identifying the driver and the other occupants of the white BMW, the Crown also invited thecourt to infer from Mr.

Williams’ flight per se from the BMW that he was the driver of the vehicle and that circumstantial evidencecould be used to establish his culpability for the driving offences. The Crown also submitted that the evidence of Mr. Thomas’ attempt toflee and the flight per se of Mr.

Fraser from the BMW support an inference that those two accused behaved as people who knew thatthere was a firearm in a car in which they were occupants, and as such, they are guilty of that firearms offence. [76] In White, supra, Charron J. said at para. 106 in her reasons, concurring with the majority of the Supreme Court of Canada, thatsome evidence of post-offence conduct may seem quite suggestive of guilt though, in reality, the conduct is essentially equivocal innature. [77] On a similar note, Rothstein J. stated in White, supra, at para. 66, the mere fact that the accused fled from the scene did notprovide any information as to whether he was guilty of the lesser or the greater charge.

Justice Rothstein added, at para. 69, that a personmay flee the scene for a host of reasons, such as to avoid arrest, to minimize evidence of that person’s connection with the crime, to buyadditional time or that flight is a response equally consistent with a wide range of much less serious charges. [78] As a result, I find that, without delving into total speculation and conjecture, the three accused’s actions in fleeing from thepolice in the BMW and then attempting to flee from the police on foot may be equally explained by two or more offences.

As mentionedpreviously, the evidence established that there were two outstanding warrants for the arrest of Mr. Fraser and that Mr. Thomas possessedsome cannabis marijuana. While I may have a strong suspicion that the driver accelerated and all three accused attempted to flee on footbecause one or more of them had possession of the firearm in the vehicle and the others knew that the firearm was in the vehicle, Icannot convict Mr. Thomas, Mr. Williams and Mr.

Fraser on those firearms offences on the basis of a strong suspicion and equivocalevidence in relation to the high-speed car chase and an attempt to flee or flight on foot from the BMW after it flipped over on itspassenger-side. Is the Driver of the BMW in Possession of the Firearm Found in the Car? [79] In terms of the firearms charges facing Mr. Williams, it is the position of the Crown that, after a review of all of the direct andcircumstantial evidence in this case, the court may conclude that he was the driver of the white BMW. If the court finds as a fact thatMr.

Williams was the driver of the BMW, then the Crown Attorney submits that court may also reasonably infer that Mr. Williams, asthe driver of the vehicle, was in possession of the BMW and all of its contents.

[ 80 ] In support of this submission, the Crown referred to Justice Ewaschuk’s Criminal Pleadings and Practice in Canada , Canada Law Book, November 2011,

chapter 16:10360 which states at page 16-135 that “the owner of a motor vehicle or a driver of a motor vehicle is, prima facie , in possession of the vehicle and its contents.” Based on that authority, the Crown submits that Mr.

Williams was in constructive possession of the firearm in the white BMW and therefore, he is guilty of the firearms charges contrary to s. 94(1) of the Code [being an occupant of a motor vehicle in which he knew there was a firearm or prohibited weapon], s. 95(1) of the Code [possessing a loaded restricted firearm and ammunition while not being the holder of an authorization or license to possess the firearm] and s. 117.01(1) of the Code [having possession of a firearm while he was prohibited to do so by an Order of Prohibition]. [ 81 ] The issue raised by the Crown’s submissions has recently been addressed by the Ontario Court of Appeal, and in my view, their decision distinguishes the passage mentioned by the Crown.

In R. v. Lincoln , [2012] ONCA 542, the accused was found guilty of drug offences based upon evidence that he was the operator of a rental vehicle stopped by the police who then discovered a substantial amount of cocaine under the steering column and $800 Canadian in his wallet. The trial judge held that there was sufficient direct and circumstantial evidence of knowledge and control to justify a finding of possession. The trial judge’s reasoning was that Mr.

Lincoln was the operator of the vehicle and that anything found in that vehicle was in his de facto possession, prima facie , because as the operator, he had control of the vehicle and was considered to have control of its contents, unless there was evidence indicating otherwise. [ 82 ] In their endorsement judgment in Lincoln , supra , the Ontario Court of Appeal said at para. 3 that the line of reasoning utilized by the trial judge constituted an error in law. In effect, the judge applied a presumption that, because Mr.

Lincoln was the operator of the vehicle at the time, he is deemed to have knowledge and control of its contents, unless there is evidence to the contrary. The court went on to note in para. 3 that: “No rebuttable presumption of knowledge and control for purposes of determining possession, based solely on the fact that a person is the operator with control of the vehicle, exists in the common-law or under the Controlled Drugs and Substances Act . To give effect to such a premise would constitute an impermissible transfer of the Crown’s burden of proof to the accused.

While the fact that a person is the operator with control of the vehicle, together with other evidence, may enable a trial judge to infer knowledge and control in appropriate cases, it cannot, standing alone create such a rebuttable presumption .” [the emphasis is mine] [ 83 ] I agree with the reasoning of the Ontario Court of Appeal in Lincoln and conclude that evidence that a person is the operator of a car is but one piece of circumstantial evidence which must be considered together with all of the other evidence . In my opinion, even if I was to find that Mr.

Williams was the driver of the BMW, that fact standing alone, cannot create a rebuttable presumption of his knowledge of and control over the BMW and all of its contents.

For the reasons set out below, I find that there is insufficient other direct or circumstantial evidence from which I would be prepared to infer that on Williams, as the driver of the BMW had the requisite knowledge of and exercised some measure of control over the firearm which was found in the white BMW. [ 84 ] Based upon my review of the totality of the evidence and the lack of cogent evidence, I find that there is insufficient evidence and I am left in reasonable doubt with respect to the issue of whether any of the three accused were, individually or collectively, in actual, constructive or joint possession of the firearm or that any one or more of them were occupants of the BMW knowing that the firearm was in that vehicle.

In particular, I refer to the following facts and circumstances in the context of all other evidence in the case which I have found to be relevant in coming to my conclusion:

a) There is no direct evidence that any accused person knew that a firearm was wrapped in a white plastic bag, situated somewhere in the BMW;

b) Given the high speed police chase of the white BMW and the fact that it ultimately crashed and flipped over on its passenger side, I do not know, nor can I reasonably infer where the white plastic bag which covered the firearm was located in the BMW, before the crash. As a result, it is not possible to infer that the bag with the firearm was placed in a location where it was in plain view or was easily accessible to any one or more of the accused;

c) There was no identifiable DNA or fingerprint evidence obtained from the firearm which was suitable for comparison in order to determine whether any one of the three accused had ever physically handled that firearm;

d) The police had not been following or conducting any surveillance on the white BMW at any time prior to 7:10 PM on July 2, 2010. The police added that they had never seen that BMW before that evening;

e) The registered owner of the white BMW is Ms. Jennifer McIsaac, who resides in Scarborough, Ontario. There was no evidence before the court of any connection between Ms. McIsaac and any one or more of the three accused people;

f) The police were not able to make any contact with the registered owner, but they did confirm that they had no report that the BMW was stolen. As a result, there is no evidence as to whether one of the accused had just borrowed the car from Ms. McIsaac for the evening of July 2, 2010 to cruise around town or he had been operating it for an extended period of time;

g) There is no evidence that any of the three occupants of the white BMW had any significant connection to that car, either as a driver or as a passenger, at any time prior to July 2, 2010;

h) There is no evidence that the firearm was in “plain view”. Even with the BMW flipped over on its side, the visibility of the Ruger 9 mm firearm, a small, black handgun (about 220 mm or 8.6 inches in length by 130 mm or 5.2 inches in height according to photos 44

and 46 in Exhibit 1) was largely obscured by the white plastic bag which was wrapped around it, leaving only a small portion of themuzzle of the firearm being barely visible against the black carpet of the car;

i) No documents were seized from the BMW nor were any other items seized by the police from any of the compartments in the car oron or under the front or back seat of the car. Although an unspecified amount of marijuana was found during the search of Mr. Thomas,there were no gloves, other ammunition or any other items found on any accused or in the car from which inferences of knowledge andcontrol of the firearm could have been made;

j) Police officers noted that the BMW’s back window was tinted and that they could only see silhouettes of the heads of the people asthey pursued that car.

There was no evidence that any of the accused took any actions, such as leaning over to the side as if to reach foror place something under a seat, after the BMW passed by the police car on Highfield Park Drive or during the high speed chase. [85] In my opinion, based upon the totality of evidence that I have accepted and the lack of cogent evidence, I find that there isinsufficient direct or circumstantial evidence from which I could reasonably infer facts to establish that any one or more of the threeaccused possessed the 9 mm Ruger handgun by having the requisite knowledge of and control over that firearm.

In these circumstances, Icannot conclude beyond a reasonable doubt that any one of the accused actually possessed the 9 mm Ruger handgun or that any of them,either individually or collectively, had constructive or joint possession of that firearm. [86] Furthermore, while there was hearsay evidence upon which the officers relied in forming their grounds to conduct a traffic stopon the BMW and arrest the occupants of that vehicle for possession of a firearm, that evidence is not admissible for the truth of itscontents.

Therefore, the hearsay evidence that the police officers received from a confidential source that Mr. Thomas was in possessionof a firearm, is only admissible for the limited purpose of being part of the information available to them to form the reasonable groundsfor their decision to conduct a traffic stop in order to conduct an investigative detention of Mr.

Thomas and the occupants of the BMW. [87] In this case, I find that the established circumstances give rise to a high degree of suspicion that one or more of the accused hadpossession of the firearm and that the other accused were occupants of a motor vehicle knowing that someone else was in possession of afirearm.

While I am satisfied that none of the three accused had the requisite authority to legally have a firearm in their possession and infact, two of the accused were actually prohibited from possessing firearms, I cannot convict the three accused on these firearms offenceson the basis of a suspicion, even if I find that I have a high degree of suspicion.

Given the facts which I have found and the lack of cogentevidence on other key issues, I cannot conclude from the proven facts that the only reasonable inference is that any one or more of theaccused persons are guilty of the offences which directly or indirectly relate to the possession of the firearm pursuant to sections 86(2),88(2), 92(1), 94(1), 95(1), 108(1)(

b) and 117.01(1) of the Criminal Code. As a result, I hereby acquit the three accused of those chargeswhich relate to the possession or knowledge of the firearm. Was the Identity of the Driver of the BMW Established Beyond a Reasonable Doubt? [88] Mr. Williams faces three driving offences in relation to the police pursuit of the white BMW that allege that he was the driverof that vehicle which accelerated to speeds estimated at 100 to 140 km/h, in order to evade the police. The specific charges relate tooperating the motor vehicle in a manner dangerous to the public contrary to section 249(1)(

a) of the Code, operating a motor vehiclewhile being pursued by a peace officer and failing, without reasonable excuse and in order to evade the peace officer, to stop as soon asreasonable in the circumstances, contrary to

section 249.1(1) of the Code, and having care or control of a motor vehicle that wasinvolved in an accident and unlawfully, with the intent to escape civil or criminal liability, fail to stop the vehicle contrary to section252(1) of the Code. [89] The key issue in relation to these driving charges is whether the Crown has established, beyond a reasonable doubt, theidentification of Mr.

Williams as the driver of the white BMW at all relevant times on July 2, 2010. [90] Since this issue relates to eyewitness or visual identification evidence, it is important to instruct myself on the inherent frailtiesof this type of evidence along with the factors that the court should consider in evaluating the weight to be attributed to this evidence.The leading case which provides assistance and guidance to trial courts is the Supreme Court of Canada decision in Mezzo v.

TheQueen, (SCC), [1986] 1 SCR 802 in which the Court adopted the reasoning of the English Court of Appeal in R. v.Turnbull, [1976] 1 All ER 549.

Both of those cases pointed out the frailty of visual identification or eyewitness evidence and gavedirections for a court to keep in mind when assessing the “quality” or the weight of this evidence. [91] The court in Mezzo stated that some of the factors which can clearly affect eyewitness evidence are the length of theobservation, the distance at which the observations were made, lighting conditions, obstructions in the view, any prior or pastrecognition factors, time between the original observation and the subsequent description to the police and any discrepancies between thedescription and the accused’s actual appearance.

The Court acknowledged that there may also be many other factors, depending on the

specific circumstances of the case. Other factors, for example, would be the degree of attention and awareness of the witness at the time of the observation, together with the consistency of descriptions by different witnesses. See also R. v. Bigsky , [2006] SKCA 145 at paras. 41 to 43. [ 92 ] Although the Crown invites me to conclude that Mr. Williams was identified as the driver of the white BMW, I find that the following factors must be considered in assessing the weight that I am prepared to attribute to Det/Cst. Travis’ evidence which identified Mr. Williams as the driver of the BMW:

a) While the lighting conditions were good on the evening of July 2, 2010 Det/Cst. Travis was only able to see a side profile of the driver’s head as the white BMW passed by his police car;

b) Det/Cst. Travis and Cst. Jardine’s observations of the driver were very brief, being only for a second or two as the white BMW went by their observation location at approximately 50 km/h;

c) Although Det/Cst. Travis’ view of the driver of the BMW was at a relatively short distance estimated at about 10 to 15 meters, his view was partially obstructed because the driver’s window tinted and only halfway down;

d) Neither Det/Cst. Travis nor Cst. Jardine had any previous dealings with or prior recognition factors to assist in identifying Mr. Williams and neither officer has previously conducted any surveillance on Mr. Williams or that white BMW;

e) In terms of their degree of attention and awareness at the time, the police officers had source information relating to Mr. Thomas, but no source information with respect to Mr. Williams. As a result, I find that it is reasonable to infer that when the police officers observed the driver’s side of the BMW, their attention would have been divided between the rear seat passenger on the driver’s side of the car who they recognized as Mr. Thomas and the driver;

f) Although Det/Cst. Travis stated that his identification of Mr. Williams as the driver was based on his side profile, he did not provide any specific details with respect to the side profile of the driver of the BMW;

g) Det/Cst. Travis stated that he was about 80% or 85% to 100% “certain” of the identification of the driver based upon his “glimpse” and initial observations;

h) A short time after the high-speed pursuit of the BMW had concluded, Mr. Williams was brought back to the booking area of the police station after being arrested by other officers. Det/Cst. Travis saw him there and confirmed that he had the “same profile” as the driver of the BMW. Det/Cst.

Travis was advised by another officer that the name of the person, who he had identified as the driver of the BMW, was Timothy Williams. [ 93 ] I find that several of the foregoing factors would limit the weight that I am prepared to accord to this eyewitness identification evidence in the absence of other confirmatory evidence. However, as this is admissible evidence, it must be considered with the totality of the other admissible evidence relating to the identification of the driver. [ 94 ] Before determining whether there is other confirmatory evidence to support the eyewitness identification of Mr.

Williams as the driver of the BMW, Defence Counsel for Mr. Williams also pointed out that there were two similarly dressed men who fled, on foot, from the BMW. Counsel submits that the similarity of the clothing worn by those two men and those factors which undermine the reliability of the eyewitness identification evidence ought to leave the court in reasonable doubt with respect to the identity of the driver. [ 95 ] In relation to these submissions by Defence Counsel, I find that following a relatively brief foot pursuit, the two men who were arrested after they fled from the BMW, were identified as Mr.

Williams and Mr. Fraser. I find that the evidence of the police officers involved in the foot pursuit of those two men established that they were wearing very similar clothing. Constables Jardine, Vienotte, Goodwin and Poole were involved in the arrest of Mr. Williams who was described as an African Canadian man wearing a red shirt and black shorts. Cst. Goodwin added that the red T-shirt worn by Mr. Williams did not have any lettering on it and that he was also wearing white high cut sneakers with some black markings on them and white ankle socks. [ 96 ] Cst.

Kincade chased after the black male who exited through the BMW’s sunroof and ran off to the right. When he finally arrested that black male, the police officer confirmed that he had arrested Mr. Brandon Fraser. Cst. Kincade was familiar with Mr. Fraser and recognized him based upon the fact that he had previous involvements with him before this incident. Cst. Kincade’s evidence was that Mr.

Fraser was also wearing black shorts with some red on them and a red T-shirt as well as black and white Nike sneakers. [ 97 ] While I have no doubt that the two accused who fled from the BMW on foot were wearing similarly colored T-shirts, shorts and running shoes, this evidence does not, in my opinion, undermine the eyewitness identification of the driver of the BMW because none of the officers involved in the high speed pursuit of the BMW made any observations of the clothing worn by the accused while they were seated in the BMW. In fact, the police officers, who pursued Mr. Fraser or Mr.

Williams, made their first observations of the

clothing worn by those two men once they were out of the BMW and as they ran off in different directions. As such, I find that the similar clothing worn by Mr. Williams and Mr. Fraser did not impact their identification as the first two occupants of the BMW to exit through the sun roof and flee as the police officers arrived in the vicinity of the BMW. [ 98 ] From those proven facts, and the fact that Mr. Thomas was apprehended by Det/Cst. Travis as he was exiting from the BMW’s sunroof, there is no doubt that Mr. Fraser and Mr. Williams were the first two people to exit the BMW through its sunroof.

I also find from evidence of Det/Cst. Johnston and photographs 24 to 26, that the sunroof of the BMW is located directly over the front bucket seats of that vehicle. From those proven facts, I find that it is reasonable to infer that Mr. Williams and Mr. Fraser were the first two men to exit the BMW through the sunroof because they were seated in the front bucket seats of the BMW and the fact that the sunroof was directly above them. [ 99 ] Furthermore, I find that it is also reasonable to infer that Mr. Fraser and Mr. Williams were the occupants of the front seats of the BMW from the proven fact that Mr.

Thomas was the last of the three people to exit the BMW and the fact that there was other eyewitness identification evidence by both Det/Cst. Travis and Cst. Jardine which placed Mr. Thomas in the rear passenger seat on the driver’s side of the BMW. From these proven facts, I find that it is reasonable to infer that Mr. Thomas was in the back seat of the car on the driver’s side and that he had to wait until Mr. Williams and Mr. Fraser exited through the sunroof of the BMW, before he could climb over the bucket seats and get to the sunroof himself. [ 100 ] After two of the accused ran away from the BMW, Csts.

Jardine and Veinotte began a foot pursuit of the person, who, following his arrest, was identified as Mr. Timothy Williams. Although Cst. Jardine did not offer any estimate as to the distance between himself and Mr. Williams during the pursuit on foot, I accept Cst. Jardine’s evidence that on a few occasions Mr. Williams looked back and he made eye contact with him as they were running. Based upon these proven facts, I find that within seconds of the BMW flipping over on its passenger side, Cst. Jardine had a few occasions to view Mr.

Williams’ face at a relatively short distance. [ 101 ] During the pursuit of Mr. Williams, both Cst. Jardine and Cst. Veinotte lost sight of the person who they were chasing as he went around the corner of a building and they slowed down for officer safety before going around the corner. At about 7:15 PM on July 2, 2010, Cst. Jardine called the K-9 unit for assistance in tracking and locating the person who he and Cst. Veinotte had been pursuing. I accept the evidence of Csts. Spriggs, Poole and Goodwin that Mr. Williams was located in a dumpster beside #11 Thornhill Drive, in Burnside and arrested at 7:37 PM.

Furthermore, after Cst. Goodwin brought Mr. Williams back to the area where the police cars were located, both Csts. Jardine and Goodwin were able to get another look at that accused person. Cst. Jardine stated that he was “100 per cent sure” and Cst. Veinotte stated that he was “100 per cent certain” that they had pursued Mr. Williams on foot from the BMW. From all of these proven facts, I find that Mr.

Williams was an occupant of the BMW and, as I previously indicated, I find that it is reasonable to infer that he was one of the two people who occupied one of the front seats of that car. [ 102 ] With respect to Mr. Fraser, I find that the evidence of Cst. Kincade established that he began his foot pursuit of that accused person, within seconds after parking his police car near the white BMW. Unlike the foot pursuit of Mr. Williams which lasted for several minutes, Mr. Fraser was arrested by Cst.

Kincade after being ordered to come out of the bushes approximately 100 feet from where the white BMW had flipped over on its passenger side. From these and other proven facts, I find that it is reasonable to infer that Mr. Fraser was one of the two occupants of the front seat of the BMW on July 2, 2010. [ 103 ] In finding that Mr. Fraser was one of the occupants of the front seat of the BMW, I am mindful of the fact that neither Cst. Jardine nor Det/Cst. Travis had seen Mr.

Fraser in the BMW before it flipped over on its passenger side, and the fact that the officers only had a view of the driver’s side of the BMW as it passed by their vantage point on Highfield Park Drive. However, Det/Cst. Travis did provide evidence which identified Mr. Williams as the driver and both Det/Cst. Travis and Cst. Jardine provided evidence which iden

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