R. v. C.(K.), 2013 ONCJ 105

WARNING The court hearing this matter directs that the following notice should be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. Citation: R. v. C.(K.) , 2013 ONCJ 105 ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1 BETWEEN: HER MAJESTY THE QUEEN — AND — K.C.1, a young person (or “young persons”) Before Justice Borenstein Heard on March 4 and 5, 2013 Reasons for Judgment released on March 5, 2013 Ms. M. Mandel ......................................................................................................... for the Crown Mr. A.

Alawi ...................................................................................... counsel for the accused K.C.1 BORENSTEIN J.: [ 1 ] Sixteen-year-old K.C.1 is charged with seven offences relating to the unlawful possession of a loaded firearm found in a car. I heard from numerous police officers. No defence was called.

[ 2 ] Just before 1:00 a.m. on July 20, 2012, police constables, both with the last name Roberts, were on patrol on southbound Markham Road north of Highway 401. These officers, as well as many other officers working that night, were doing overtime duty to show police presence due to an increase in crime in the area. [ 3 ] Officers Roberts saw a Toyota Corolla driving just below the speed limit on southbound Markham Road. The Toyota was travelling at approximately 50 kilometres per hour in a posted 60 kilometre per hour zone.

No other cars were on the road and the roads were dry. [ 4 ] The Toyota stopped at a red light. The officers pulled up on its left. There were three young black males in the Toyota, the driver, right passenger and a passenger in the right rear seat. All three men stared straight ahead and did not look at the officers. The officers found this suspicious. The officers shone their bright white cruiser galley light into the Toyota. Again, the three occupants continued to stare straight ahead. They officers decided to pull the Toyota over. The officers pulled behind the Toyota and activated their emergency lights.

The Toyota put on its hazard lights and pulled over. The officers exited their cruiser and walked toward the Toyota. The male in the back seat appeared to slouch down. As the officers approached, the Toyota accelerated and fled. [ 5 ] The officers ran back to their cruiser and began pursuing the Toyota south on Markham Road and onto highway 401 westbound. The officers broadcast their activities over the police radio. The Toyota exited highway 401 at McCowan Road and travelled northbound on McCowan followed by the police. The Toyota turned left on Pittfield with Constable Roberts still in pursuit.

The officers were directed by their supervisor to discontinue the police pursuit. At that same time however, the Toyota decelerated and turned left onto a side street. The officers therefore continued their pursuit. By the time they got to the Toyota, the three passengers had fled the Toyota leaving three doors open on the Toyota. Various items were dropped as the three males fled. The officers knew the area well, knew the where the path the men were running would lead to. The officers drove to that area. [ 6 ] The officers saw two of the three males running.

They arrested one, the accused’s older brother K.C.2, who was in possession of 2.5 grams of marijuana . Other officers pursued the accused who continued running. The third male was not seen. [ 7 ] The accused was arrested a few blocks away by other officers. [ 8 ] On the evidence called at this trial, K.C.2 was the driver of the Toyota. The accused K.C.1 was likely in the rear right seat. The individual in the front seat was never located. [ 9 ] As K.C.1 and K.C.2 were being arrested, other officers attended the scene were the Toyota was abandoned.

They found a loaded handgun on the floor immediately in front of the driver’s seat. [ 10 ] That, in essence, was the evidence called in this case. No defence was called. [ 11 ] The accused is charged with seven counts related to that loaded firearm. Six of the counts are possession-related counts. The seventh is the charge being an occupant in a vehicle in which he knew there was a firearm. [ 12 ] The possession related offences requires the Crown to prove beyond a reasonable doubt that the accused had both knowledge and control of the firearm.

The other charge requires that the accused had knowledge of the firearm and consented to enter or remain in that car with that knowledge. [ 13 ] A person may have possession of an item when he or she has it in his personal possession, constructive possession or joint possession. [ 14 ] The Crown must provide these matters beyond a reasonable doubt, whether by direct or circumstantial evidence. [ 15 ] This is a circumstantial case. [ 16 ] An inference of knowledge, namely, that K.C.1 knew there was a firearm in the car, may be drawn from the following factors: (1) the gun was visible, at least to the persons in the front seat; (2) none of the accused looked at the police when the police cruiser was the only other car on the road and when a bright light was shone in the Toyota, thus leading to an inference that the occupants did not want to look at the police; and

(3) All three occupants fled when the Toyota came to rest. [ 17 ] It is the combination of all the evidence that must be considered in determining whether I am satisfied beyond a reasonable doubt. Conclusion [ 18 ] The accused was in the back seat of the Toyota. His older brother was driving. His older brother had a loaded gun. His older brother pulled over and then fled from the police. The car stopped and all three occupants ran. One could well imagine the younger brother in those circumstances running in those circumstances. Regardless, he was seated in the back seat.

I think it is more likely that he knew the firearm was in the car but I am not satisfied beyond a reasonable doubt. It was neither visible nor accessible to him. He may have known of its existence. If so, he may have gotten into the car knowing that his brother had a gun and willingly entered the car. He may have learned about the firearm when the police pulled up next to their car on Markham Road, or during the police chase. He may not have known about it at all.

Even if he did know of the firearm, I am not persuaded he had any control over it. [ 19 ] Accordingly, I have a doubt about the issues of both knowledge and control. Accordingly, the accused will be found not guilty of all charges.

Released: March 5, 2013 Signed: “Justice Borenstein ”