Her Majesty the Queen - v. -, 2020 SKPC 20

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 20 Date: April 29, 2020 Information: 991044574 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Tyler Russell Shane Bear Appearing: Ms. Elizabeth Addabor For the Crown Mr. Christopher Koban For the Accused DECISION S.D. SCHIEFNER, J INTRODUCTION [ 1 ] Following a high-speed chase through the streets of Prince Albert on September 12, 2019, officers with the Prince Albert Police Force arrested Tyler Bear in the driver’s seat of a stolen vehicle. Mr.

Bear was charged with eighteen offences. Four of the alleged offences arise because a sawed-off .303 rifle was found at the scene. Two of the offences arise because a loaded magazine fitting that rifle was found in a compartment in the driver’s door. Three of the offences related to the manner of Mr. Bear’s driving. Four of the offences relate to the fact that the vehicle Mr. Bear was driving was stolen and/or taken without the owner’s consent, the fact that the licence plate that was affixed to the vehicle was also stolen, and the fact that three stolen tires we crammed into the back seat.

Two of the offences related to bear spray and brass knuckles that were found in the vehicle. Two of the offences relate to controlled substances found on the passenger’s side of the vehicle. One of the offences relates to Mr. Bear’s failure to comply with commands given by the police officers as he was being arrested.

[ 2 ] A trial was conducted on March 17, 2020, during which the Crown called six of the police officers involved in the pursuit of Mr. Bear and his arrest on September 12, 2019. Following the close of evidence, the Crown indicated that it was no longer seeking convictions on the offences related to the brass knuckles or the alleged possession of controlled substances. [ 3 ] While Mr. Bear admits he was aware that the tires in the back seat of the vehicle were stolen (Count 13), he disputes that he knew anything else was stolen, including the vehicle itself. Mr.

Bear admits he drove dangerously and attempted to evade police on September 12, 2019 (Counts 7 & 8). However, he disputes that an accident occurred and, at least, that he knew an accident occurred. Mr. Bear admits that he failed to comply with lawful instructions of peace officers when he was being placed under arrest (Count 16). Finally, Mr. Bear disputes knowledge, let alone control or possession of any other illicit item or thing found in the vehicle, including the firearm. [ 4 ] For the reasons set forth herein, I have found that Mr.

Bear was in fact aware that the vehicle he was operating on September 12, 2019 was stolen. I am also satisfied beyond any reasonable doubt that he was in possession of both the ammunition and bear spray located in that vehicle. Finally, I am satisfied that the firearm found at the scene came from the vehicle Mr. Bear was driving, that he was aware of the presence of that firearm, and that he either personally exercised control over it or he actively consented to the passenger’s possession of it in the vehicle. While much of the Crown’s case was circumstantial, Mr.

Bear’s guilt in relation to these matters was the only rational inference that could be drawn from the totality of the evidence. [ 5 ] On the other hand, the Crown’s evidence did not satisfy me that Mr. Bear knew a stolen licence plate had been affixed to the vehicle or that a collision occurred with one of the police vehicles. [ 6 ] These are my reasons for coming to these various conclusions. THE EVIDENCE [ 7 ] Mr. Bear admitted his identity, the date of the alleged offences, and the fact that all events occurred in the City of Prince Albert, in the Province of Saskatchewan. Mr.

Bear acknowledged that the subject firearm met the definition of a firearm and that it was prohibited (having been sawed-off). Mr. Bear also acknowledged that the ammunition found in the vehicle he was operating was “ammunition” within the meaning of the Criminal Code . There was also no dispute that Mr. Bear did not possess the requisite authorization or licence for a weapon of that nature in or out of a vehicle. In addition, Mr.

Bear acknowledged that the vehicle he was driving on September 12, 2019 had been taken by someone without the owner’s consent, that the licence plate affixed to that vehicle was stolen (having been taken by someone), and that the tires found in that vehicle were also stolen (having been taken by someone). Finally, there was no dispute that small quantities of both methamphetamine and cocaine were also found in the passenger door. [ 8 ] At least two of the police vehicles involved in the events relevant to these proceedings were equipped with cameras and video recording equipment.

Upon application by the Crown, I admitted into evidence portions of the video recorded by the equipment in two police vehicles. In doing so, I was satisfied that the video recordings fairly and accurately depicted events as they unfolded on the evening of September 12, 2019 and the probative value of the images far outweighed any prejudicial effect. Of relevance to these proceedings are the recordings from the forward-facing camera from police cruiser 209 operated by Constable Dillon Husky (PC209) which depicts the manner and circumstances of Mr.

Bear’s driving and the forward-facing camera from police cruiser 207 operated by Constable Benjamin Guillemin (PC207) which depicts a portion of the scene when the subject vehicle came to rest. [ 9 ] As indicated, the Crown called six police officers, all members of the Prince Albert Police Force. All officers were on duty on September 12, 2019 and were wearing full police uniforms. The Initial Contact and the High-Speed Pursuit : Constable Dillon Husky : [ 10 ] Constable Husky testified that he was operating PC209 on September 12, 2019, which was a marked police cruiser.

During his shift, the officer learned that tires had been stolen from a property in Prince Albert earlier that day and that a black Chevrolet Cruze was reportedly involved. In addition, the officer was aware that a black 2014 Chevrolet Cruze had been stolen a few days before. While

on patrol in Prince Albert, Constable Husky observed a vehicle matching that description. The officer ran a search of the plates displayed on the vehicle. The information he received was that the plates belonged to a different vehicle. As a result, the officer suspected the vehicle was both stolen and involved with the recent theft of property. Constable Husky radioed for other officers to assist and he began following the subject vehicle. [ 11 ] Sergeant Josh Peterson was also on patrol in a marked police vehicle and within minutes joined Officer Husky pursing the suspect vehicle.

The two officers agreed that Sergeant Peterson would pass the subject vehicle and then brake to “box” the suspect vehicle between the two police cruisers. The video recording from PC209 depicts that as soon as Officer Peterson initiated this maneuver, the suspect vehicle braked hard, then swerved into the oncoming lane and then accelerated past Sergeant Peterson’s cruiser on the left-hand side. Officer Peterson’s vehicle can be seen swerving to the left to prevent the subject vehicle from passing but was unsuccessful. [ 12 ] Constable Husky testified that the subject vehicle immediately sped off.

At this point, the subject vehicle was in the downtown area of the city and it was approximately 9:30 p.m. The vehicle was heading east on River Street at a high rate of speed. Both officers Husky and Peterson pursued the subject vehicle. [ 13 ] Constable Husky testified that the vehicle drove at a high rate of speed on various streets in the East Flat area of Prince Albert. According to the officer, the vehicle drove through several controlled intersections at a high rate of speed and failed to stop at a number of stop signs.

Officer Husky estimated that the vehicle’s speed approached 130 kph in areas of the city were the posted speed limit was either 40 or 50 kph. The forward-facing camera on PC209 corroborates Constable Husky’s testimony as to the manner and circumstances of Mr. Bear’s driving. I note that Mr. Bear attempted to evade police for approximately six minutes and the manner of his driving was reckless and extremely dangerous. Other vehicles were present on the road and Mr.

Bear drove his vehicle down streets through a populated residential neighbourhood at an extremely high rate of speed swerving in and out of the oncoming lane. He drove through six controlled intersections at a high rate of speed and he failed to stop at five stop signs, including three at major intersections. Simply put, Mr. Bear displayed a reckless disregard for the safety of other motorists and residents of the community in his unsuccessful effort to evade police. Sergeant Josh Peterson : [ 14 ] Sergeant Peterson testified he was operating a marked police cruiser on September 12, 2019.

In his testimony, Sergeant Peterson described joining Constable Husky in pursuing the subject vehicle and the failed attempt to box the subject vehicle between the two police cruisers. Sergeant Peterson described swerving his vehicle to the left to prevent the subject car from passing when the box failed. While Officer Peterson testified that the subject car hit his cruiser, the video recording from PC209 is ambiguous. If a collision occurred between the two vehicles, it was because the front corner of the police cruiser struck the rear quarter panel of the subject vehicle.

While Sergeant Peterson testified that he could feel the impact of the collision in his vehicle, he testified that there was not a lot of damage to his police cruiser. In cross-examination, Officer Peterson admitted that when the collision occurred, he was veering toward the subject vehicle and was trying to force it over to the side of the road. Sergeant Peterson also admitted that the subject vehicle did not ram (intentionally collide with) his vehicle. Constable Benjamin Guillemin : [ 15 ] Constable Guillemin was operating PC207, which was a marked police cruiser.

Officer Guillemin testified that he heard over the radio that several officers were pursuing a potentially stolen vehicle and that it was heading his direction. At the time, the officer was near the intersection of 15 th Street East and 10 th Avenue. The subject vehicle drove directly in front of Constable Guillemin’s vehicle at a high rate of speed. He observed a male driver. Officer Guillemin immediately gave pursuit and became the lead vehicle.

Constable Guillemin testified that he was directly behind the subject vehicle and never lost sight of it after that point. [ 16 ] Constable Guillemin testified that the subject vehicle attempted to turn east onto 15 th Street but it turned into the wrong lane at a high rate of speed and then struck the meridian with considerable force. The force of the impact was sufficient to disable the car, which then slowly drove into a nearby parking lot and stopped. Officer Guilleman was first on the scene and he parked his car behind the subject vehicle. The officer then exited his cruiser and approached the vehicle.

He observed two occupants; a male driver – Mr. Bear - and a female passenger we now know to be Bridget Naytowhow. The Arrest of Mr. Bear and the Search of the Vehicle :

Constable Benjamin Guilleman : [ 17 ] Constable Guillemin testified that he was the first officer on the scene and he approached the driver’s side of the vehicle. Mr. Bear was seated in the driver’s seat. Mr. Bear’s left hand was on the steering wheel but his right hand was down, apparently reaching for something under the seat. The officer told Mr. Bear he was under arrest and yelled a command to “show me your hands”. Constable Guillemin testified that he took hold of Mr. Bear’s left arm but that the officer could not see or secure Mr. Bear’s right hand. Officer Guillemin repeated the command for Mr.

Bear to show his hands. The officer testified that Mr. Bear continued to reach around the vehicle with his right hand. By this point in time, two other officers (officers Husky and Hood) were assisting Constable Guillemin. As well, Constable Burns had just observed a firearm at the scene and he had yelled “gun”. Concerned for their safety, Officer’s Guillemin and another officer physically pulled Mr. Bear through the driver side window and placed him on the ground. Mr. Bear was then arrested and his rights and warning were read to him by another officer. [ 18 ] After Mr.

Bear was arrested, Constable Guillemin went to the passenger side of the vehicle. As he did so, he observed a firearm laying on the ground a few feet from the passenger door. Officer Guillemin seized and secured the firearm. The firearm was not loaded. Both the barrel and stock had been cut off and the grip had been wrapped with black electrical tape. [ 19 ] Constable Guillemin also assisted in searching the vehicle and was responsible for seizing all exhibits. Officer Guillemin located a backpack in front of the front passenger seat (where the female was seated).

Inside the backpack was a hatchet wrapped with a black bandana, together with zip ties and nylon rope. In addition, Constable Guillemin located a small clear film canister in the passenger’s door containing small quantities of drugs (later determined to be methamphetamine and cocaine). Officer Guillemin also observed three motor vehicle tires and a licence plate in the back seat of the vehicle. The licence plate was the plate that was supposed to be affixed to the subject vehicle.

In addition, a magazine containing .303 ammunition and a can of bear spray were seized having been located by Constable Hood in the driver’s compartment. Finally, a vest – appearing to be a ballistic vest – was seized having been located by Constable Dell. [ 20 ] Constable Guillemin testified that after he began pursuing the subject vehicle he never lost sight of it, that it never stopped until it was disabled; that no one got out of the vehicle other than Mr. Bear and the female passenger, and that there were no other vehicles or persons in the area at the time when the subject vehicle stopped.

Constable Dillon Husky : [ 21 ] Constable Husky testified that he was the second officer on the scene and he went to the passenger side of the vehicle. Constable Burns was nearby. Officer Husky observed a female passenger. He yelled a command to the woman to “show me your hands”. She did not comply. Her hands were low and out of the officer’s sight. The officer testified that he repeated his command for her to show her hands and she still did not comply. As a result, Officers Husky and Burns physically grabbed her and pulled her out of the vehicle through the passenger window. They placed her on the ground.

After they did so, Officer Husky moved to the driver’s side of the vehicle to assist with the arrest of Mr. Bear. [ 22 ] Constable Husky testified that as he approached the driver’s side of the vehicle, Officer Guillemin and another officer (Constable Hood) were attempting to remove Mr. Bear from the vehicle but he was not complying. The officer heard Constable Burns yell “gun” which signaled an increase sense of alert for officer safety. Constable Husky observed the two officers trying to remove Mr. Bear from the driver’s seat but he was resisting their efforts. Mr.

Bear would not exit the vehicle nor would he show his hands to the officers. As a result, Constable Husky struck Mr. Bear. The other officers were then able to bring Mr. Bear under control. They removed him from the vehicle and placed him under arrest. [ 23 ] Finally, Constable Husky testified that his vehicle was lead during the pursuit of the subject vehicle, that the vehicle never stopped when it drove through the East Flats, and that no one got out of the vehicle other than Mr. Bear and the passenger.

The officer also testified that no other vehicles or persons were present in the area when the subject vehicle finally came to rest. Constable Darcy Burns : [ 24 ] Constable Burns testified that he and Constable Hillary Hood were working together on September 12, 2019. Officer Burns testified that they were aware that officers were involved in a high-speed pursuit of a vehicle. They were approaching the intersection of 15 th Street and 10 th Avenue from the east when the subject vehicle struck the meridian in the middle of the road causing substantial

damage to the vehicle. The vehicle then rolled into a nearby parking lot. [ 25 ] Very quickly, a number of police vehicles were on the scene. Upon existing his vehicle, Constable Burns approached the passenger side of the vehicle, together with Constable Husky. In his testimony, Constable Burns described pulling the passenger through the window and placing her on the ground in much the same fashion as was described by Officer Husky.

Constable Burns testified that, after they pulled the passenger through the window, he picked her up and moved her a few feet further away to a grassy area adjacent to where the vehicle had stopped. [ 26 ] Constable Burns testified that, after he moved the woman, he observed a firearm underneath her. From the video recording from the forward-facing camera of PC207, we know that the weapon was lying on the ground as the officers approached the vehicle. We also know that Officer Burns unknowingly placed the woman on top of the firearm. She did not have it with her when she was removed from the vehicle.

After discovering the gun, the officer threw it aside. It was later seized by Constable Guillemin. [ 27 ] In cross-examination, Constable Burns acknowledged that he did not see either Mr. Bear or the female in possession of the firearm nor did he see how it ended up on the grass beside the parking lot. Constable Hillary Hood : [ 28 ] Constable Hood testified she was working with Constable Burns on September 12, 2019. Her description of the manner and circumstances of Mr.

Bear’s driving was essentially consistent with that of Officer Burns. [ 29 ] Constable Hood testified that, after their police cruiser came to a stop, she went to the driver’s side of the subject vehicle. Constable Hood testified that she observed Constable Guillemin holding one of Mr. Bear’s arms but she could not see Mr. Bear’s other arm. About this same time, Constable Hood heard Officer Burns yell “Gun Gun”. Concerned for officer safety, Constable Hood repeated a command for Mr. Bear to show both of his hands. Mr. Bear did not comply. Officer Hood struck Mr. Bear. The officer testified that Mr.

Bear was non-compliant but that she and Constable Guillemin were able to remove Mr. Bear from the driver’s seat and place him on the ground. Mr. Bear was then arrested and removed from the scene. [ 30 ] Constable Hood testified that she then opened the driver’s door and located a can of bear spray on the floor by the foot pedal in the driver’s compartment. Constable Hood then found a magazine containing ammunition in a compartment near the bottom of the driver’s door. Constable Hood seized these items and turned them over to Officer Guillemin.

Constable Hood testified that the magazine containing the ammunition was in plain sight when she opened the driver’s door. ANALYSIS Possession of the Motor Vehicle : [ 31 ] Mr. Bear stands charged with taking a motor vehicle without the consent of the owner with the intent to drive or use it (Count 10) and possession of property obtained by crime (Count 11) related to the 2014 Chevrolet Cruze he was driving on September 12, 2019.

The affidavit of Jacob Borden establishes that he was the owner of the Chev Cruze, that its value exceeded $5,000.00, and that it was taken on or about September 9, 2019, together with the keys by Raven Misponas without his consent and then stolen from that person. Mr. Bear acknowledges that he did not have Mr. Borden’s consent to operate his vehicle on September 12, 2019. [ 32 ] Mr. Bear does not dispute that he had possession of Mr. Borden’s vehicle or that he was driving it.

Rather, he takes the position that there is insufficient evidence upon which to conclusively infer that he knew the vehicle was stolen or that he was aware he did not have consent from its lawful owner to operate it on September 12, 2019. Defense notes that there is no evidence that the ignition switch was damaged or modified. Defense argues the absence of evidence of damage to the ignition switch supports the inference that Mr. Bear had the keys for the vehicle. [ 33 ] The fact that Mr. Bear had possession only two days after Mr. Borden’s vehicle was stolen gives rise to the permissible inference that Mr.

Bear knew it was stolen. However, this fact alone would not be sufficient to find a conviction. But this fact does not

rest alone. The totality of the circumstances satisfies me beyond a reasonable doubt that Mr. Bear knew the vehicle was stolen even if he had the keys for it. I am also satisfied that he knew he did not have the consent of the owner to operate it on September 12, 2019. Mr. Bear admits that he knew there were stolen tires in the back seat and he dangerously attempted to evade the police. Defense argues that Mr. Bear’s actions in attempting to evade police can be explained by his knowledge that there were stolen tires in the vehicle. In other words, Mr.

Bear attempted to evade police because he was in possession of stolen tires, not because he knew he was in possession of a stolen motor vehicle. [ 34 ] Defense may have been correct if the only evidence had been Mr. Bear’s recent possession of the motor vehicle and his actions in attempting to evade police. But, as noted, these facts do not stand alone. First, numerous illicit or suspicious items were lying loose in the vehicle, including ammunition in the driver’s door, bear spray near Mr. Bear’s feet, and a licence plate lying loose in the back seat.

While defense asserts that the vehicle was a mess and items in the vehicle would have been thrown around as a result of Mr. Bear’s driving and the collision with the meridian, both the bear spray and the licence plate were promptly discovered by police in the area where Mr. Bear was seated. Constable Hood testified the ammunition was in plain sight in the door. [ 35 ] In my opinion, the totality of this evidence leads me to the inescapable conclusion that Mr. Bear knew the vehicle was stolen and that he was aware that he did not have owner’s consent to operate it. On this basis, I find Mr.

Bear guilty of Counts 10 and 11 of Information 991104574. Possession of the Licence Plate : [ 36 ] Mr. Bear also stands charged with possession of stolen property related to the licence plate that was affixed to the vehicle Mr. Bear as driving on September 12, 2019. The affidavit of Charles Arthurson establishes that this licence plate belonged to him and that it was stolen from his Chevrolet Malibu some time prior to September 12, 2019.

I am also satisfied that the licence plate found lying loose in the back seat of the Chev Cruze was in plain sight as it was promptly discovered by the officers when they looked into the back seat. [ 37 ] Defense argues that there is no evidence that Mr. Bear knew the wrong licence plate was affixed to the Chev Cruze, let alone that this licence plate was stolen. Defense notes that most people normally do not check to ensure that the licence affixed to the vehicle they are driving matches the registration for that vehicle. However, the circumstances surrounding Mr.

Bear’s operation of this vehicle on September 12, 2019 was anything but normal. [ 38 ] The courts have recognized that an inference of guilty knowledge can be satisfied by circumstances where an accused person “virtually knew” of the presence of an illicit item because the circumstances would have given rise to a well-founded suspicion of that item’s probable presence. An inference of guilty knowledge has been accepted by the courts in circumstances crying out for further inquiries by an accused person and only willful-blindness would have prevented actual knowledge.

For example, I note that the Court in R v Cantrill , 2011 ABQB 273 at paras 63 and 90 , 514 AR 265 [ Cantrill ] utilized the concept of “willful blindness” in finding the element of knowledge had been made out. See also: R v Briscoe , 2008 ABCA 327 at paras 19-20 , 237 CCC (3d) 41 [ Briscoe ].

These cases stand for the proposition (well founded in logic and common sense) that a judge may impute knowledge on the part of an accused in circumstances where that person “virtually knew” of the presence of an illicit item but deliberately failed to make inquires because he/she did not want to know the truth. [ 39 ] I am satisfied beyond a reasonable doubt that Mr. Bear had either actual knowledge that the wrong licence plate had been affixed to the vehicle he was driving or he virtually knew such was the case.

The presence of another licence plate lying loosely in the back seat of a vehicle containing stolen property cries out for further inquiries as to whether or not the correct licence plate is affixed to the vehicle. In my opinion, such inference is both reasonable and inescapable. However, I am not satisfied beyond a reasonable doubt that this evidence also leads to the conclusion that Mr. Bear knew that this plate was stolen. It is possible that Mr. Bear believed the wrong licence plate was affixed to the vehicle to obscure the fact that it was stolen without knowing the licence plate itself was stolen.

Because an inference of knowledge that the plate was stolen is not the only reasonable inference that may be drawn from the facts before me, the requisite knowledge has not been made out. Because knowledge that a thing is stolen is an essential element of the offence of possession of stolen property, I find Mr. Bear not guilty of Count 12. Leaving the Scene of an Accident : [ 40 ] Mr. Bear stands charged with leaving the scene of an accident contrary to s. 320.16(1) of the Criminal Code (Count 9).

[41] Mr. Bear disputes that his vehicle collided with the police cruiser being operated by Sergeant Peterson or any other officer onSeptember 12, 2019. If a collision did take place, Mr. Bear takes the position that he did not know that a collision occurred. Mr. Bearacknowledges attempting to evade police but argues that he did not do so because he was trying to avoid his responsibilities under s.320.16 of the Criminal Code. [42] I agree with the Crown that, for purposes of s. 320.16, it does not matter who caused the accident – only that an accidentoccurred. It does not matter whether Mr.

Bear’s vehicle struck the police cruiser or the other way round. Sergeant Peterson testified as tohis belief that Mr. Bear’s vehicle struck his police cruiser. However, the video recording from the front-facing camera from PC209depicts that, if a collision occurred, it was caused by the police cruiser striking the rear quarter panel of Mr. Bear’s vehicle. SergeantPeterson testified that the vehicles collided with sufficient force that he could feel the impact in his vehicle. Sergeant Peterson’s evidencethat a collision occurred was clear, cogent and compelling.

As such, I am satisfied beyond a reasonable doubt that a collision did in factoccur. [43] However, the offence of leaving the scene of an accident also requires proof that Mr. Bear knew that an accident occurred. If,after considering the whole of the evidence, I am left with a reasonable doubt as to whether Mr. Bear knew an accident had occurred,then the intent to commit the offence has not been proven, and an acquittal must issue. See: R v St.

Hilaire, 2018 ONSC 6224. [44] While I accept that a collision occurred and that Sergeant Peterson felt the force of an impact within his vehicle, the videorecording from PC209 does not clearly show an impact. Sergeant Peterson also testified that there was not a lot of damage to his vehicle. In all the circumstances, I am not satisfied that the force of the impact from the collision was sufficient that the only reasonable inferencewould be that Mr. Bear must have known that a collision had taken place between his vehicle and the police cruiser.

Because knowledgeof a collision is an essential element of the offence of leaving the scene of an accident, I find Mr. Bear not guilty of Count 9. Possession of the Ammunition and the Bear Spray: [45] Mr. Bear stands charged with carrying ammunition in a careless manner contrary to s. 86(1) of the Criminal Code (Count 2)and possession of ammunition while prohibited by an order of the Court contrary to s. 117.01(1) of the Code (Count 6).

In addition, Mr.Bear stands charged with possession of a weapon for a dangerous purpose contrary to s. 88 of the Code arising from the discovery ofbear spray in the vehicle when it was searched (Count 14). [46] There is no dispute that the ammunition found in a compartment in the driver’s door was “ammunition” within the meaning ofthe Criminal Code. I am also satisfied that it was being carried in a careless manner. It was unlocked and loaded in a rifle magazine in aquantity not permitted by law.

I am also satisfied that the bear spray located on the floor in the driver’s compartment was a weapon andits possession was for a purpose dangerous to the public peace. The bear spray was found in a stolen vehicle containing stolen property.The illicit nature of the bear spray was not disputed by Mr. Bear. Rather, defense takes the position that the Crown’s evidence wasinsufficient to establish that Mr. Bear had possession of either the ammunition or the bear spray. [47] The Crown takes the position that Mr. Bear had either personal or constructive possession of both the ammunition and thebear spray.

Canadian jurisprudence has made it clear that both forms of possession require both knowledge of the thing alleged to bepossessed together with some element of control. See: Beaver v R, (SCC), [1957] SCR 531 at page 541/542 [Beaver].Knowledge of an illegal thing forms the mens rea of possession, while control of the illegal thing is the actus reus: R v Terrence, (SCC), [1983] 1 SCR 357 [Terrence]. [48] I acknowledge that not everyone who drives a car containing illegal objects necessarily knows of the presence of thoseobjects. In the present case, the Crown’s evidence of Mr.

Bear’s knowledge and control of the ammunition and bear spray iscircumstantial. No one saw him holding either object and there are no fingerprints or DNA evidence directly linking him to these items. [49] Where proof is dependent upon circumstantial evidence, it is the cumulative effect of all the relevant circumstances whichmust be assessed in determining whether proof beyond a reasonable doubt exists.

Furthermore, where proof is based upon circumstantialevidence, the trier of fact must be satisfied beyond a reasonable doubt that the guilt of the accused person is the only reasonable andrational inference to be drawn from that evidence. See: R v Villaroman, 2016 SCC 33 at paras 35-40, [2016] 1 SCR 1000 [Villaroman]. [50] In weapons prosecutions, the following circumstances have been considered relevant to proof of an accused person’sknowledge and control: (1) the physical proximity of the weapon to the accused; (2) the degree of visibility of the weapon; (3) the

degree of communal use of the area containing the weapon; (4) the size, nature and number of weapons in a particular space; and (5) the nature of other items located proximate to the weapon capable of providing context for inferences of knowledge and control. See: R v Anderson-Wilson , 2010 ONSC 489 , at para 74 . [ 51 ] Both the ammunition and the bear spray were located immediately adjacent to Mr. Bear. The ammunition in the door and the bear spray by his feet. The ammunition was in plain sight and the bear spray was quickly discovered by Constable Hood when she examined the area where Mr. Bear was seated.

Immediately prior to his arrest, Mr. Bear was the only person in the driver’s seat of the vehicle. The proximity of these items to him gave him both access and control. Finally, these items were located in a stolen vehicle containing stolen property following a high-speed pursuit after Mr. Bear attempted to evade police. Having considered the whole of the evidence, I am satisfied, beyond a reasonable doubt, that Mr.

Bear had knowledge of the ammunition in the vehicle he was driving, that he had knowledge of the bear spray, and that he exercised a measure of control over both. [ 52 ] For the foregoing reasons, I find Mr. Bear was carrying ammunition in a careless manner on September 12, 2019. In addition, he was possessing ammunition at a time when he was prohibited from doing so by an order of the Court. I therefore find Mr. Bear guilty of Counts 2 and 6. I also find that Mr.

Bear was in possession of a can of bear spray on September 12, 2019, that the bear spray he possessed was a “weapon” within the meaning of the Criminal Code , and that the purposes for which he possessed said bear spray was dangerous to the public peace. I therefore find Mr. Bear guilty of Count 14. Possession of the Firearm : [ 53 ] Mr. Bear stands charged with four offences arising because a sawed-off .303 rifle was found at the scene.

He is charged with carrying a firearm in a careless manner contrary to s. 86(1) of the Criminal Code (Count 1); being an occupant in a motor vehicle in which a firearm is located contrary to s. 94(1) (a)(

i) of the Criminal Code (Count 3); possessing an unloaded firearm together with readily accessible ammunition contrary to s. 95(1) (

a) of the Criminal Code (Count 4); and possession of a firearm when prohibited from doing so by order of the Court contrary to s. 117.01(1) of the Criminal Code (Count 5). [ 54 ] There is no dispute that the gun seized by Constable Guillemin was a “firearm” within the meaning of the Criminal Code . There is also no dispute that it was a prohibited weapon because both the stock and the barrel had been sawed-off. In its original form, it was a Lee-Enfield bolt action rifle (.303 caliber). In its modified form, it is a dangerous weapon of violence and intimidation.

There is also no dispute that the magazine located in the compartment of the driver’s door fit that rifle, as did the nine rounds of ammunition located in that magazine. A forensic analyst successfully fired one of the bullets in the rifle. Additionally, there is no dispute that it was being carried in a careless manner as it was not secured as required by law. Finally, there is no dispute that Mr.

Bear was prohibited from possessing both ammunition and firearms pursuant to an order of this Court dated July 26, 2018. [ 55 ] The defense takes the position that the circumstantial evidence tendered by the Crown is not sufficient to prove beyond a reasonable doubt that the firearm found at the scene came from Mr. Bear’s vehicle. In the alternative, defense take the position that the Crown has not proven that Mr. Bear had knowledge of the firearm, let alone that he exercised any measure of control over it. [ 56 ] As none of the officers saw Mr.

Bear (or the passenger) in possession of the firearm and because there is no fingerprints or DNA linking him to it, the evidentiary inference that it came from Mr. Bear’s vehicle is circumstantial. Defense counsel is correct in reminding this Court that, unless I am satisfied beyond a reasonable doubt that the only rationale inference that can be drawn from the evidence is that the firearm came from the subject vehicle, possession can not be established. See: Villaroman .

However, having considered the whole of the evidence, I am wholly satisfied that the sawed-off .303 rifle located at the scene came from the vehicle Mr. Bear was operating. [ 57 ] In coming to this conclusion, I note the video recording from the forward-facing camera in PC207 clearly shows a gun lying a few feet from the passenger window of the subject vehicle when it finally came to rest. While the Crown asserts that the video also depicts (if one looks very carefully) the firearm still in motion, I was unable to come to that same conclusion.

The vehicle in which the camera was located was moving and the source of light for the recording was the strobing emergency lights on the police cruiser. As a result, the perception of slight motion of an object in the recording is difficult. On the other hand, the firearm is clearly only a few feet from the passenger window. It was so close to the vehicle that Constable Burns unknowingly placed the female on top of it when he picked her up and moved her. The fact that a magazine fitting that rifle which contained ammunition for that rifle was found in the vehicle removed any doubt from my mind.

There is no other rational explanation for this weapon being found at this location under these circumstances other than it came from the subject vehicle having been thrown out the window when the vehicle finally came to rest. This conclusion is inescapable.

[ 58 ] The Crown takes the position that Mr. Bear had either constructive or joint possession of the firearm. Canadian jurisprudence has made it clear that both types of possession require knowledge of the thing alleged to be possessed and some element of control. See: Beaver . In the case of joint possession, physical possession of the object can be in the hands of another provided the accused person has knowledge of the illicit item, actively consents to that person’s possession and exercises some measure of control. See: Terrence . [ 59 ] To be satisfied that Mr.

Bear had either constructive or joint possession of the firearm, the evidence must first establish the element of knowledge on his part. The evidence need not establish that Mr. Bear knew the precise location of the firearm as long as I am satisfied, beyond a reasonable doubt, that he was aware that a firearm was present in the vehicle. As I have already noted, guilty knowledge can be satisfied by circumstances where that person “virtually knew” of the presence of an illicit item if the circumstances would have given rise to a well-founded suspicion of that item’s probable presence. See: Cantrill and Briscoe .

On the other hand, because knowledge is an essential element of possession, an inference of knowledge must not only be “reasonable” in all the circumstances, but it must be the only reasonable inference that may be drawn from the evidence. [ 60 ] Constable Hood testified that she found the magazine for the rifle in plain view in a compartment on the driver’s door. This is where Mr. Bear was seated on the evening of September 12, 2019. The magazine is large enough to be obvious to any observer and, loaded with nine rounds of ammunition, its weight would have been significant.

In addition, although it would be possible to conceal the firearm in the vehicle, it would not be easy to do so while at the same time having it accessible. It clearly was accessible because someone threw it out the window. Even if Mr. Bear did not have knowledge of the firearm when he began driving the vehicle, I find it improbable in the extreme that Mr. Bear did not notice and was not aware that a magazine full of ammunition was located in the door of the vehicle he was driving. Human experience tells us that ammunition is not something easily overlooked by most people. But in Mr.

Bear’s case, he was prohibited from possessing both firearms and ammunition. He would have been acutely aware of the illicit nature of either in his presence. [ 61 ] The presence of a magazine full of ammunition, together with another form of a weapon (bear spray) together with stolen property (three tires) would raise an overwhelming suspicion that a firearm was also present somewhere in the vehicle. If Mr.

Bear did not know that a firearm was present (a proposition I find highly unlikely), he would have been virtually certain that there was a firearm somewhere in the vehicle even if he did not know its exact location. This conclusion is also supported (albeit weakly) by Mr. Bear’s flight from police and his lack of cooperation when being arrested. It is also supported by the fact that, while the firearm was sawed off, it was nonetheless approximately 60 cm in length.

It is not something that could have been easily hidden in the confines of a small car. [ 62 ] The more difficult question is whether or not the evidence supports Mr. Bear exercising any measure of control over the firearm. The control element of possession has been described in many ways. In R v Dipnarine , 2014 ABCA 328 , 316 CCC (3d) 357 [ Dipnarine ] the Alberta Court of Appeal stated that the measure of control required does not mean exclusive control nor pre-dominant control.

At para 18 of Dipnarine , the Court held that, “for the purposes of ‘control,’ the accused must be proven to be in a position to ‘exercise a directing or restraining power’ over the [substance].” Control is not established by a mere passive acquiescence to the presence of the illegal substance. In R v Daniels , 2004 NLCA 73 at para 12 , 191 CCC (3d) 393, Welsh J.A. explained the concept of control in these terms, “It is the element of control, including deciding what will be done with the material, that is essential to possession.” [ 63 ] To begin with, Mr.

Bear was operating the motor vehicle from which the firearm was thrown on September 12, 2019. I must be mindful that the mere fact that Mr. Bear was driving is insufficient alone for me to conclusively infer that he exercised any measure of control over the firearm. See: R v Lincoln , 2012 ONCA 542 at para. 3 . The firearm was thrown from the motor vehicle immediately following a lengthy high-speed chase during which Mr. Bear was trying to evade police. In fact, Mr. Bear tried very hard to evade police. In addition, Mr.

Bear was uncooperative with police and Officers Guillemin, Husky and Hood each described him doing something with his right hand when they were trying to remove him from the vehicle. Finally, the loaded magazine for that firearm was located in plain view in a compartment immediately adjacent to where Mr. Bear was seated. [ 64 ] In my opinion, if Mr. Bear did not exercise actual physical control over the firearm, it would not have been present in the vehicle but for his active consent. No other conclusion is reasonable given the totality of the circumstances.

Common sense and human experience tell us that the presence of a firearm in a vehicle is also not something easily overlooked. Given the size of this particular firearm (60 cm in length), it would not have been easy to conceal in the confines of a motor vehicle and still have it accessible. Mr. Bear was in control of the vehicle. He acknowledges possession of the stolen tires. I have found as a fact that Mr. Bear was aware of the presence of a firearm in the vehicle. It is irrational to take the position that Mr.

Bear actively consented to the presence of the tires but did not exercise any measure of control and merely acquiescence to the presence of something he was prohibited from possessing. [ 65 ] To the contrary, the totality of the circumstances on September 12, 2019 leads me to the singular conclusion that Mr. Bear either had control of the firearm himself or he actively consented to the passenger’s possession of it. These circumstances include the fact that the magazine and live rounds for that rifle were found in Mr. Bear’s immediate vicinity; the fact that Mr.

Bear was in possession of another weapon (bear spray); the fact that the vehicle he was driving was stolen and it contained stolen goods; and the fact that Mr. Bear tried very hard to evade police. In addition, a weak inference of Mr. Bear’s knowledge, consent and control over the firearm can be drawn

from the fact that other suspicious items were also found in the vehicle he was driving, including drugs, brass knuckles, zip ties, nylon rope and what might be a bullet-proof vest. [ 66 ] In my opinion, the inescapable conclusion to be drawn from this evidence is that Mr. Bear knew the firearm was present in the vehicle and that he either had control of the firearm himself or he actively consented to the passenger’s possession of it. For these reasons, I find Mr. Bear guilty of Count 1 - carrying a firearm in a careless manner contrary to s. 86(1) of the Criminal Code .

I also find him guilty of Count 3 - being an occupant in a motor vehicle in which a firearm is located contrary to s. 94(1) (a)(

i) of the Criminal Code . I also find him guilty of Count 4 - possessing an unloaded firearm together with readily accessible ammunition contrary to s. 95(1) (

a) of the Criminal Code . Finally, I find Mr. Bear guilty of Count 5 - possessing a firearm at a time when he was prohibited from doing so by order of the Court contrary so s. 117.01(1) of the Criminal Code . CONCLUSION [ 67 ] In

summary and for the reasons set forth herein, Mr. Bear is guilty of the following counts on Information 991104574: Count 1 - carrying a firearm in a careless manner contrary to s. 86(1) of the Criminal Code . Count 2 - carrying ammunition in a careless manner contrary to s. 86(1) of the Criminal Code . Count 3 - being an occupant in a motor vehicle in which a firearm is located contrary to s. 94(1) (a)(

i) of the Criminal Code . Count 4 - possessing an unloaded firearm together with readily accessible ammunition contrary to s. 95(1) (

a) of the Criminal Code . Count 5 - possessing a firearm at a time when he was prohibited from doing so by order of the Court contrary to s. 117.01(1) of the Criminal Code . Count 6 - possessing ammunition at a time when he was prohibited from doing so by an order of the court contrary to s. 117.01(1) of the Criminal Code . Count 7 - operating a conveyance in a manner dangerous to the public contrary to s. 320.13(1) of the Criminal Code . Count 8 - flight while pursued by police contrary to s. 320.17 of the Criminal Code .

Count 10 - taking a motor vehicle without the consent of the owner with the intent to drive or use it contrary to s. 335 of the Criminal Code . Count 11 - possessing property with a value exceeding $5,000.00 (2014 Chevrolet Cruze the property of Jacob Borden) obtained by crime contrary to s. 354 of the Criminal Code . Count 13 - possessing property with a value not exceeding $5,000 (three tires the property of Carol Whitter) obtained by crime contrary to s. 354 of the Criminal Code . Count 14 – possessing a weapon for a dangerous purpose (bear spray) contrary to s. 88 of the Criminal Code .

Count 16 - resisting arrest by failing to comply with lawful commands of a peace officer contrary to s. 129 (

a) of the Criminal Code . [ 68 ] For the reasons I have stated, I have found Mr. Bear not guilty of Count 12 - possessing property obtained by crime (licence plate) and Count 9 - failing to stop at the scene of an accident. In addition, the Crown no longer seeks convictions and thus Mr. Bear is found not guilty on Count 15 – possessing a weapon for a dangerous purpose (brass knuckles), Count 17 – possessing a controlled substance (methamphetamine), and Count 18 – possessing a controlled substance (cocaine). Dated this 29 st day of April, A.D. 2020, at the City of Prince Albert, in the Province of Saskatchewan. __________________________ S.D. SCHIEFNER, J