R. v. Guha Date:, 2012 BCPC 142

Citation: R. v. Guha Date: 20120214 2012 BCPC 0142 File No: 220414-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Marly Dev Guha REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. L. BAGNALL Counsel for the Crown: I. Keeley Counsel for the Defendant: D. Fai Place of Hearing: Vancouver , B.C. Dates of Hearing: November 21, 22, December 1, 2011 Date of Judgment: February 14, 2012

[ 1 ] Marly Dev Guha is charged with six offences arising from the fact that he possessed a Ruger semi-automatic handgun and a magazine capable of holding more than ten cartridges suitable for use in that gun on June 23, 2011. The Information was proceeded with by way of Indictment. The accused elected to have his trial in Provincial Court. Evidence was presented on November 21 and 22, 2011. [ 2 ] An application made by the accused for an order excluding the evidence of the finding of the gun was unsuccessful.

Reasons for the decision on that application were filed on February 13, 2012. [ 3 ] The trial continued and the accused testified during the defence case. On December 1, 2011, I convicted Mr. Guha respecting Counts 1, 3 and 6 on the Information and indicated that I would file written reasons in due course.

These are my reasons. [ 4 ] The facts which were not in dispute are that, in the late morning on the day in question, the accused was stopped by Constable Fuller, an RCMP officer assigned to the Port Mann Freeway Patrol, because he was driving a vehicle which did not display a licence plate at the front and because he was not wearing a seatbelt. Mr. Guha was asked to produce his driver’s licence and he “patted himself down” and indicated that he did not have his licence with him.

Constable Fuller asked him to step out of his vehicle and walk to the officer’s vehicle where he intended to make efforts to confirm Mr. Guha’s identity. [ 5 ] Before the two men left the area of the vehicle driven by the accused, Mr. Guha indicated that his licence might be in the rear of the vehicle he was driving and he looked for it there. Constable Fuller saw him “rolling and unrolling” a white cloth item, a towel or a fleece, while he was leaning into the vehicle. He then stood up and indicated that he could not locate his licence. [ 6 ] Mr.

Guha repeatedly put his hands in the pocket of the hoodie he was wearing. Constable Fuller asked him to remove his hands from his pocket four times. The officer testified that Mr. Guha was trying to do “something with his hands around his waist” as he walked with the officer. When he was asked for the fourth time to take his hands out of his pocket, he did remove them, but then immediately put his right hand into his right pants pocket. [ 7 ] Constable Fuller was concerned about some of Mr. Guha’s behaviour. He therefore asked Mr. Guha if he had any weapons in his possession and Mr. Guha said, “No”.

Constable Fuller then indicated that he wished to pat Mr. Guha down before he sat in the police vehicle. [ 8 ] During that brief search, Constable Fuller found a loaded handgun in the waistband of Mr. Guha’s pants towards the right side of his midsection. The officer took hold of the accused and the gun and secured both within seconds. [ 9 ] The gun is a Ruger semi-automatic handgun. It is a firearm and also a restricted firearm. It contained a magazine which held nine cartridges and which was capable of containing 15 cartridges.

The magazine is a prohibited device. [ 10 ] The accused has never been the holder of a licence or authorization under which he could possess the handgun or the magazine. [ 11 ] Constable Fuller later searched Mr. Guha more carefully and located his driver’s licence in the pocket of a pair of shorts that he was wearing under his trousers. [ 12 ] The vehicle was searched and Mr. Guha’s wallet was located under an

article of clothing in the footwell behind the driver’s seat. There were other items of clothing in the rear of the vehicle. In the front passenger seat footwell were two cell phones. Mr. Guha testified that one of the cell phones belonged to him and that a light coloured sweater in the back seat of the car belonged to him as well. A gas card was located on the front passenger seat. [ 13 ] Mr. Guha testified respecting the events.

He said that he had been driven by a friend to a poker game at a house located near the intersection of 10 th Avenue and 12 th street in New Westminster the evening before he was stopped by Constable Fuller. The friend who drove him to the game left early and another friend offered to give Mr. Guha a ride home later. This friend was instead picked up by his girlfriend and he therefore gave his car keys to Mr. Guha so that he could drive himself home. The vehicle, according to Mr. Guha, was owned by the girlfriend. [ 14 ] Mr. Guha spent the night on the couch at the house where the poker game had occurred.

He told the court that he got up the next morning. He said that he had with him a change of clothes. He dressed. He testified that he went to the vehicle and put his sweater in the back seat. He then saw the handgun on the floor in the back seat of the car. He picked it up and put it in the waistband of his pants. [ 15 ] His plan, he said, was to go to the girlfriend’s place at 1 st Avenue and Victoria drive in Vancouver to return the car. Ten minutes later he was stopped by Constable Fuller and the events unfolded as described above. [ 16 ] Nothing turns on the fact that Mr.

Guha was driving east when he was stopped by the officer. [ 17 ] Mr. Guha agreed that, as a result of a conviction in 2007, he was prohibited from possessing any firearms. He said in evidence that he would be very careful not to put himself in a position where he was breaching that order. [ 18 ] He was asked about the location of his wallet in the footwell behind the driver’s seat. He explained that when Constable Fuller asked him for his driver’s licence that he took his wallet out of his pocket to look for his licence and that he was confused because his licence was not in his wallet.

He testified that when he looked in the back seat for his licence he left his wallet there. [ 19 ] I note that Constable Fuller was not asked whether Mr. Guha had produced a wallet when asked to produce his driver’s

licence. I also note that the wallet was found under an

article of clothing in the footwell behind the driver’s seat in the vehicle. Further, Mr. Guha agreed that he made the gesture as if to pat himself down when Constable Fuller asked him to produce his licence. [ 20 ] Mr. Guha testified that when he was looking in the back seat of the vehicle for his licence, he was trying to find his licence in his white sweater which he had tossed in the back seat of the car. [ 21 ] Mr. Guha testified that he saw the gun in the right rear footwell of the car when he put his white sweater in the back seat. He agreed that the gun looked like a gun.

He said variously that he thought it was a toy, that it might have been a pellet gun, that it could have been a replica handgun, and that it might have been a real gun. He agreed that the weight of the gun made him think that it was real. He agreed that he saw the name “Ruger” on the gun. Asked what he was planning on doing to resolve what the

article actually was, Mr. Guha said that he was going to return it to his friend and he put it in the waistband of his pants. He also said that he might have taken it to the police or he might have taken it to the girlfriend. He testified that he definitely wouldn’t have taken it home because it might have been real. [ 22 ] Later he said that he didn’t think that the gun was real, and he definitely didn’t think it was loaded, but he agreed with the suggestion that although he wasn’t sure, he was prepared to take the chance, put the gun in the waistband of his pants and “just hope that it’s not real”.

He also testified that he didn’t want to have anything to do with the gun because of the order prohibiting him from possessing such things. [ 23 ] Mr. Guha testified that one of the cell phones found in the vehicle was his. [ 24 ] He agreed that he lied to Constable Fuller when he told the officer that he was not in possession of any weapons. This action was completely inconsistent with Mr. Guha’s assertion that his priority as he was driving along was to get the gun away from himself. Confronted with this, he said that he lied to the officer because he didn’t want to get in trouble. [ 25 ] Mr.

Guha’s evidence was unbelieveable. I did not believe what he said nor did his evidence raise a reasonable doubt in my mind as to his guilt. [ 26 ] The evidence overwhelmingly supports the conclusion that Mr.

Guha knew the nature of the things he had in the waistband of his pants when he was stopped and searched by Constable Fuller. [ 27 ] I was satisfied on all of the evidence of his guilt on all counts and I registered convictions on Count 1 (possession of a loaded restricted firearm without lawful authorization), Count 3 (possession of a prohibited device, a magazine capable of containing more than 10 cartridges), and Count 6 (carrying a concealed weapon). The remaining counts will be the subject of conditional stays of proceedings. _________________________________ The Honourable C. L.

Bagnall Provincial Court of British Columbia