R v Randhawa, 2024 ABCJ 34

In the Alberta Court of Justice Citation: R v Randhawa, 2024 ABCJ 34 Date: 20240220 Docket: 220421937P1 Registry: Calgary Between: His Majesty the King - and - Kamaljit Singh Randhawa Judgment of the Honourable Justice B. R. Fraser Introduction [ 1 ] The accused is charged with having a prohibited device in his possession while under an Order of Prohibition not to possess a prohibited device for life. A replica firearm is a prohibited device by definition under sec 84(1) of the Criminal Code . [ 2 ] The accused was stopped for a traffic violation while operating a motor vehicle.

When checked it was determined he had warrants outstanding for his arrest. Upon search incident to arrest, a replica Glock handgun was found secreted under the driver's seat occupied by the accused. His brother occupied the passenger seat. The accused indicated the vehicle was his and belonged to his business but was registered in his wife’s name. He indicated they were stopped in front of a residence where he was picking up or had picked up speakers that he was purchasing.

He stated he had no knowledge of the gun being under his seat. [ 3 ] He further stated that although the vehicle was his, he shared it with his brother. The vehicle stayed at his residence but his brother, who lived a block away, would walk over to his place and take the vehicle when needed. [ 4 ] The wife of the accused gave evidence that the brother on one occasion came to their residence and showed her a replica handgun he had which she described as a pellet gun. She asked him not to bring it into her house.

The police described the gun they seized as a pellet gun. [ 5 ] A photograph of the seized replica handgun was entered as evidence. It was never shown to the wife to see if it appeared to be the same gun the brother showed her or even if it was similar. The brother never gave evidence even though the accused said he was presently in the remand centre and therefore could have been made available to testify for the defence. [ 6 ] The accused testified the seized gun was not his and he had no knowledge of it being under the driver's seat.

Issue [ 7 ] the issue is whether the seized gun was in the possession of the accused in the circumstances according to the law of possession. The Law [ 8 ] A person can be in possession in three ways. He can be in actual possession. He can be in joint possession. He can be in constructive possession. On the facts of this case he is not in actual possession. There is no evidence nor is it submitted he is in joint possession with his brother. In order for the Crown to succeed they must rely on constructive possession. The definition of constructive

possession is found in sec 4(3) (a)(ii): “For the purpose of this Act, a person has anything in his possession when he knowingly has it in any place, whether or not that placebelongs to or is occupied by him, for the use or benefit of himself or of another person.” [9] The elements of constructive possession are: 1) knowledge of its existence and what it is; 2) control or a measure of control; 3) in a place; and 4) for the benefit of himself or another. [10] The place need not belong to or be occupied by him. [11] Although the accused said the vehicle was a company vehicle and was registered in his wife's name, I am satisfied from allhis evidence and that of his wife, that for all intents and purposes the vehicle was his and he was in care or control of the vehicle when itwas stopped and searched and the gun seized.

Carrying includes being in an automobile and therefore in possession. [12] I reviewed the issue of possession in an automobile in R v Young, 2006 ABPC 36 in which a number of helpful authoritieswere referred to. [13] In R v Vautour, (1969) [1970] CCC 324, the New Brunswick Court of Appeal stated at page 327 as follows: “the finding of a narcotic or drug concealed in a car owned and driven by an accused at the time of the seizure is evidence from whichthe inference may be drawn that the accused knowingly had such narcotic or drug in a place for the use or the benefit of himself whichconstitutes possession under sec 4(3)(a)(ii) of the Criminal Code.

Under such circumstances the accused has control or a measure ofcontrol over the narcotics or drug.” [14] The owner and driver of a motor vehicle can be presumed in law to have knowledge and control of the trunk of his vehicle andthings in his vehicle. R v Anderson, (BC CA), [1995] BCJ No 2655 (BCCA) and R v Gosselin, [2002] BCJ No 2418. [15] In Anderson the BCCA stated: “the essence of the crime is the possession of the forbidden substance and in a criminal case there is in law no possession withoutknowledge of the character of the forbidden substance.

Knowledge need not be proved by direct evidence, but may be inferred from surrounding circumstances. In this case there was no directevidence of knowledge.

Knowledge being a state of mind, may be found to exist in the same way as intent, by proper inferences from facts proved.” [16] This line of authority was followed in R v Wong, (2003) 2003 ABPC 110 , 344 AR 310 where the court stated: “where the prohibited item is found within a motor vehicle, knowledge of the prohibited nature of the item can be presumed by theperson who drove, owned or rented the motor vehicle.” [17] In R v Szczerba, (2004) 2004 ABCA 189 , 354 AR 10 (Alta QB) the court stated: “… there is evidence that I accept that at the time of his arrest he had control of the truck and the briefcase inside it and an inferencefrom that that he had knowledge of the four ounces of cocaine inside the briefcase, and indeed that he had control of it, and thus hadpossession in fact and in law of such cocaine.” [18] However, where the prohibited item is found in a vehicle which is owned and driven by the accused, there is no irresistible orirrefutable inference that he is in possession of the item. (see R v Caldwell, 2001 BCSC 1313 , [2001] BCJ No 1915 (BCSC)and R v Douglas, (1975) (ON CA), 18 CCC (2d) 189 (Ont CA) [19] In R v Young a leather jacket was on the centre console of the vehicle which the accused was driving and a female was apassenger.

In the circumstances the accused was found to be in possession of the drugs in the jacket. [20] In R v Mangat, 2022 ABPC 248, the accused was driving a vehicle which he was the registered owner. He had twopassengers. Drugs were found in the centre console and in a pouch in the back of the front passenger seat.

The circumstances gave rise toan inference that may be drawn that the accused knowingly had the drugs in the vehicle and it proves a prima facie case of possession,unless there is an explanation by the accused as stated in Young. [21] In that case the Crown led an exculpatory statement to the police in its own case. The accused denied knowing the drugs werein the vehicle and that they were not his. He knew the passengers were doing drugs and thought they belonged to them.

Since thestatement was part of the Crown’s case and not subject to cross-examination the court weighed his explanation of no knowledge orcontrol against drawing the inference of knowledge and control. As the inference is not irresistible or irrefutable, his explanation led bythe Crown affected the inference and he was acquitted. Analysis

[ 22 ] In this case the accused gave evidence he had no knowledge of the gun and did not put it in the vehicle. He was subjected to cross- examination. He also gave evidence his brother had a key and as much access to the vehicle as he had and drove it apparently whenever he wanted to. In addition, the accused’s wife testified the brother had a pellet gun and brought it to her house and showed it to her. She asked him to get it out of her house. She described it as a pellet gun.

Although she was never shown the exhibit photo of the seized gun to see if it was the same or similar to the one the brother had, the police did describe it as a pellet gun. [ 23 ] The inference from the defence evidence is that the seized gun was the brother’s and he put it under the seat. The defence did not call the brother. However, the defence need not prove who owns the gun or put it under the seat. They need only raise another reasonable inference other than the one consistent with guilt.

Once there is another reasonable and logical inference other than the inference of guilt, the court can no longer rely on that inference of guilt in a circumstantial case. It is not a matter of whether I believe the accused or his evidence raises a reasonable doubt. Conclusion [ 24 ] I would be prepared to draw the inference of guilt based on the Crown’s evidence. However, the defence evidence raises a competing inference that is reasonable and logical, that being that the brother had a pellet gun and had as much access to the vehicle as the accused.

He had a key and used the vehicle as much as 3 or 4 times a week. He therefore had as much access as the accused and could have put the gun in the car as easily as the accused. There is evidence he had a pellet gun in his possession sometime prior. That evidence would have been stronger if the brother had testified that he put it there but the defence evidence creates a competing inference and therefore creates a reasonable doubt that the gun was in the constructive possession of the accused. [ 25 ] I find him not guilty of breaching the Prohibition Order.

Dated at the City of Calgary, Alberta this 20 th day of February, 2024. B. R. Fraser A Justice of the Alberta Court of Justice Appearances: K. De Boer for the Crown D. Nguyen for the Accused