R. v. Stewart, 2020 ONCJ 3

CITATION: R. v. Stewart , 2020 ONCJ 3 DATE: 2020·01·03 Toronto Region ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — TYRELL STEWART & ALEXIA RICHARDSON Before Justice L. Feldman Heard on October 28, 29, 30, 2019 Reasons for Judgment released on January 3, 2020 M. MacKinnon ......................................................................................................... for the Crown J. Struthers, A. Pinnock ................................................................. for the accused Tyrell Stewart E.

Rolfe .................................................................................... for the accused Alexia Richardson FELDMAN J.: Introduction [ 1 ] Tyrell Stewart and Alexia Richardson entered not guilty pleas to three counts of Unauthorized Possession of a Prohibited Firearm and three of Unlawful Possession of a Firearm with Ammunition. In addition, Mr.

Stewart pled not guilty to three counts of Possession of a Firearm while Prohibited. [ 2 ] On July 22, 2018, following execution of a search warrant, the police found a Luger 9 mm. handgun with 2 bullets in its chamber in a television consul in one of two units of a basement apartment leased by Ms. Richardson and to which by circumstantial inference Mr. Stewart had access and a degree of occupancy. [ 3 ] It is alleged that both defendants were in joint or constructive possession of the firearm, that is, they both had knowledge and a degree of control over it, as required in s. 4(3) of the Criminal Code .

At the time, Mr. Stewart was subject to an s. 109 Weapons Prohibition Order. Neither defendant had firearms acquisition certificates or necessary licenses. [ 4 ] On October 21, 2019, I ruled against a defence application to quash the search warrant, following a Garofoli [1] hearing that included a step six process, and admitted the firearm into evidence. [2] The Evidence [ 5 ] As a result of informer information, the Guns and Gangs Task Force investigated Mr. Stewart in July 2018 in relation to two addresses: 35 Durant Cres. in Markham and 7 Portrush Cres. in Toronto. Ms.

Richardson had leased the downstairs apartment at 35 Durant Cres. since September 1, 2017. [ 6 ] The assigned surveillance team was briefed on July 19. On July 20, at 12:50 a.m., D.C. Liam Wauchope, the officer-in- charge, observed Mr. Stewart and a female leave 35 Durant Cres. by a side door of the garage and drive off in a black Honda Civic. The officer followed the vehicle to McDonald’s Restaurant and later back to the residence at 1:38 a.m. There, D.C. R. Luczyk saw a male and female get out of the Honda and enter 35 Durant Cres. using the same side door.

The evidence permits the strong inference that the female person was Ms. Richardson and that Mr. Stewart spent the night there. [ 7 ] On July 22, P.C. Adrain Duran observed the same Honda parked in the driveway of 35 Durant Cres. at 1:37 p.m. He saw Mr. Stewart come out of the side door at 2:26 p.m. and drive away. At 3:17 p.m., D.C. Shawn McKenzie watched the Honda leave 7 Portrush Cres., pull into the Fairview Mall and one minute later drive southbound on Victoria Park Ave. towards Highway 401. At 4:05 p.m., D.C.

Wauchope informed his team that the now unoccupied Honda was in the parking lot of the Vaughan Mills Shopping Centre. [ 8 ] Four men, including Mr. Stewart, returned to the car, at 6:40 p.m. These individuals were subject to a take-down by a team of officers. D.C. Faizal Haffejee arrested the defendant at 6:42 p.m. He searched him and found a driver’s license in his name, other identification papers and 3 cell phones. [ 9 ] D.C. McKenzie had a warrant to search the car. He found two sets of keys in the centre consul and paperwork in the

trunk lining with the accused’s name on it. The keys fit all the door locks for entry into the basement apartment at 35 Durant Cres. [ 10 ] The surveillance team arrived there at 7:53 p.m. D.C. Wauchope used the keys to open the outside door to the garage, as well as a door inside that led down some stairs into the basement that had two units, one locked and occupied, one not, and for which there were also keys. It is agreed by counsel that one Hannah Duretz had sublet unit 1 from Ms. Richardson in the winter of 2018. She moved out on April 30, 2018. [ 11 ] No one was present at the time of the police entry. D.C.

McKenzie came down the stairs from the garage and found a washing machine containing men’s, women’s and children’s clothing in an open area opposite the two units. Unit 2 was locked and had to be breached. It had furniture, was neatly maintained and seemed occupied. [ 12 ] There, D.C. Scott Taylor searched a duffle bag in the living room and found banking documents in Mr. Stewart’s name with an address of 7 Portrush Cres. D.C.

Wauchope found male underwear in a drawer in the bedroom, male clothing on the floor and in a laundry bin and female clothing throughout the room, as he did identification papers for and pictures of Ms. Richardson. He also observed female and two very large pair of male shoes. Mr. Stewart is quite tall. It is a reasonable inference that the two defendants shared the bedroom when Mr. Stewart stayed over and that they were in a dating relationship. [ 13 ] Officers found other items in unit 2 that, as well, indicated occupancy by the defendants. Regarding Ms.

Richardson, these included: jewellery on the couch in the living room; prescription bottles in her name in the kitchen; two photographs of her and her son; and her passport. There was a second bedroom for Ms. Richardson’s son. [ 14 ] Police also a found a wallet containing cards in Mr. Stewart’s name on the same couch as the jewellery; a framed photograph of the defendant; his passport; an invoice, dated July 5, 2018, addressed to Mr.

Stewart at an apartment in London, Ontario; a letter, dated May 26, 2018, addressed to the defendant at 7 Portrush Cres., where members of his family live; a health card; a driver’s license with an address of 7 Portrush Cres; and a letter from CIBC also addressed to him at 7 Portrush Cres. D.C. McKenzie found a gold chain with the initials, ‘TY’ engraved on it, likely short form for Tyrell. [ 15 ] But for a mattress, a television consul, random food in the fridge and freezer and some garbage, unit 1 was for the most part empty and appeared to be unoccupied. Its door was unlocked. D.C.

Haffejee found a Luger 9 mm. semi-automatic handgun in a drawer of the consul. He removed 2 rounds to render it safe and recovered 12 rounds in the same drawer. [ 16 ] He also found a casino, ‘Players Advantage’ card in Stewart’s name at the back of the bottom left drawer of the television stand. It had been punched, indicating it had been used once. It is some evidence linking Stewart to use of the stand. [ 17 ] It is open to be inferred on all the direct and indirect evidence that since April the defendants made use of the entirety of the basement apartment. It is a reasonable inference that Mr.

Stewart had unrestricted access to 35 Durant Cres. and stayed there at least some of the time with his co-accused. It is not insignificant that, according to police surveillance, he was the last one to leave the premises in his Honda on July 22. [ 18 ] Nonetheless, the fact-finding process in this trial is constrained by the limited nature of the police surveillance. There is a delicate balance between urgency over public safety, as suggested by D.C. Wauchope, and the risk in a circumstantial case of there being insufficient evidence for the prosecution to meet its burden of proof.

Was there even a snapshot of Stewart’s pattern of living? It is not for the defence to fill in the holes. [ 19 ] An important question on this limited evidence, is whether there is a reasonable inference, or it is just possible, that since April persons other than the accused lived, visited, had access to or stayed over in the basement apartment? I am of the view, on the evidence, that it is not a reasonable inference that the former tenant, who vacated unit 1, forgot or chose to leave behind a valuable and dangerous loaded firearm.

That makes no common sense. [ 20 ] The question of whether the defendants were in joint or constructive possession of the firearm is one of inference.

It will be for the Crown to satisfy this court beyond a reasonable doubt that the only reasonable inference to be drawn from the circumstantial evidence is that one or both accused are guilty. [3] Circumstantial Evidence and Reasonable Doubt [ 21 ] In Villaroman , Justice Cromwell expressed the concern that in inferential reasoning from circumstantial evidence, the trier of fact may “unconsciously ‘fill in the blanks’ or bridge gaps in the evidence to support the inference that the Crown invites it to draw”. [4] [ 22 ] He suggests that to avoid a trier too easily drawing an inference of guilt, there should be an instruction that such a finding should be the only reasonable inference that the circumstantial evidence permits. [5] [ 23 ] Justice Cromwell explains that this instruction and that regarding reasonable doubt have related purposes.

Reasonable doubt is one based on “reason and common sense” that does not involve proof to an absolute certainty and is “logically connected to the evidence or absence of evidence”. [6] [ 24 ] In similar vein, inferential reasoning is not limited in the sense of being based on proven facts, but rather may be drawn from a range of “other plausible theories” and “other reasonable possibilities” that may arise from the evidence or a gap in the evidence and that are inconsistent with guilt. [7] While the Crown need not negative every possible conjecture consistent with innocence, these alternate theories “must be based on logic and experience applied to the evidence or absence of evidence, not on speculation”. [8] [ 25 ] Justice Cromwell recognized that it is not easy to draw the line between a “plausible theory” and “speculation”.

But in his view, in order to justify a conviction, the basic question is whether the circumstantial evidence, “assessed in light of human experience should be such that it excludes any other reasonable alternative”. [9] Of significance, the alternative inferences, however, must be

reasonable, not just possible. [10] Inferential Reasoning in Possession Cases [ 26 ] Possession cases provided by the defence offer examples of alternative theories or other reasonable possibilities where there is an absence of evidence and that raise a reasonable doubt about circumstantial inferences of guilt. Although fact-specific, they offer some limited guidance. [ 27 ] In R. v. Allison , [11] police were investigating the lessee of an apartment and a second individual, not the defendant.

On the day they obtained a search warrant, the authorities observed the defendant and female person use a key to enter the unit, both of whom were present at the time the search was executed. There was a futon bed in the living room, beside which was a bin in which a loaded handgun was found. Some of the defendant’s identification documents were discovered in a box in the same bin. Male shoes and ball caps were also observed in the unit. [ 28 ] The court held that occupancy standing alone was insufficient to prove knowledge of the firearm.

Justice Trotter, as he then was, observed that on this evidence it would be speculative to infer that the defendant had stayed in the apartment and that it would, as well, be an ‘inferential leap’ to find that Mr. Allison was aware of and exercised control over the gun. That is not this case. [ 29 ] In R. v. Grey , [12] the defendant stayed several nights a week with the lessee in her apartment where crack cocaine was found hidden in the bathroom area. Men’s and women’s clothing were found in the master bedroom.

A set of scales and personal papers in the defendant’s name were discovered by police in a pouch on the shelf of the closet. Justice Laskin would not draw a circumstantial inference of knowledge where the defendant was not a permanent occupant and, importantly, others frequented the unit. [ 30 ] In R. v. Biggs , [13] police found the defendant sleeping in a basement bedroom where they also observed two women in a chair and others in a common area of the basement. Biggs’s wallet and mail were found in the bedroom, as well as drug paraphernalia in his pants.

Drugs were located hidden in a light fixture in a closet of the bedroom where the defendant slept. [ 31 ] The court noted that the defendant was not the target of the police investigation, he was not seen entering or leaving the house that was rented by someone else and there were seven individuals present at the time. Justice MacPherson relied on Villaroman in finding that inferring knowledge and control on the defendant’s part was not the only reasonable conclusion on all the evidence. [ 32 ] Factually, the decision in R. v. Blair [14] is more closely aligned with the case at bar.

In Blair , the defendant was present in an apartment during the execution of a search warrant. Prior to the search, the police did not know of him. On their arrival, Mr. Blair was seen coming out of the only bedroom in the unit in bare feet and wearing boxer shorts. The bed was not made. [ 33 ] There were only men’s shoes and clothing in the bedroom. The shoes were large sized. Mr. Blair was a large man. A wallet with his identification and his expired passport were found on top of the dresser. The defendant’s driver’s license was in the living room and had a different address.

There was a photograph of the defendant together with a female and a child in the living room, indicating to the court that he had access to all the rooms. [ 34 ] Police also discovered two firearms, magazines and ammunition in a hole in the wall by the entrance. A third firearm and drugs were found in a safe in the bedroom closet, for which a key was in plain view. [ 35 ] Although Justice Rutherford noted that there was no evidence that the defendant had been observed going in and out of the residence, she was of the view that there was a reasonable circumstantial inference that Mr.

Blair was the lone male occupant and would have the requisite knowledge and control of the contraband found during the search. [ 36 ] At the same time, the question for her, in keeping with the direction in Villaroman , was whether the circumstantial evidence was capable of supporting a reasonable inference other than guilt, more particularly, whether an alternative explanation might be that the defendant was merely a visitor or guest. [ 37 ] Justice Rutherford found that there was “no evidence of observations of Mr.

Blair in the unit, around the unit, or coming and going from the unit”, that the police had no prior interaction with him, that he was not on the lease, there was no fingerprint or DNA evidence linking him to the contraband, nor, importantly, was there evidence he had keys to the apartment. As well, his driver’s license had a different address.

That he had no key, nor been seen previously coming or going from the unit, are material factual findings that are distinct from the case at bar. [ 38 ] In the circumstances, Justice Rutherford was of the view that although not the most likely explanation, there was a reasonable possibility on the basis of logic and human experience that the defendant was a guest, not an occupant, leaving her in reasonable doubt that Blair had knowledge of and an element of control over the firearm.

Have the Elements of Knowledge and Control been Proven Beyond a Reasonable Doubt ? [ 39 ] Where informer information suggests risk to public safety by the presence of a loaded firearm in a residence in relation to an individual prohibited from possessing weapons, a degree of urgency is indicated.

At the same time, the police need be mindful that proof of an offence in a criminal prosecution, particularly in one where inferential reasoning will determine the outcome, truncated investigations may limit proof of the essential elements to the requisite standard. [ 40 ] On the evidence, there is a reasonable inference that Mr.

Stewart was an occupant at 35 Durant Cres. and in a relationship with his co-accused, the nature and degree of which were unclear because the investigation was so brief, all of which places stress on the circumstantial fact-finding process. [ 41 ] However, the defendant’s possession of the keys and his being the last one to leave the residence on July 22 clarify that Stewart had full access to the basement apartment and all its rooms. He slept over on two consecutive nights. By the presence of his

photograph and location of his clothing, shoes and identifying documents, there was a lived-in quality to his possessions in the home. On this evidence, it is not a reasonable inference that Mr. Stewart was merely a casual visitor. Of significance, placement of the card from the casino indicates use of and an element of control over the consul. [ 42 ] The outside garage door and inside door leading to the basement were both locked.

There is no indication anyone else other than the defendants had keys to the apartment, so that while it is possible others had access, on this evidence, beyond conjecture, it is not a reasonable possibility. [ 43 ] Inside the apartment, it makes common sense that a person in possession of a loaded firearm that is both valuable and dangerous would store it in a way that kept it hidden and enhanced safety, where as here, there was a child present at least some of the time, and where its storage allowed a degree of deniability. [ 44 ] There is no evidence permitting an inference that since April anyone other than the defendants lived in the basement at 35 Durant Cres.

It is a reasonable inference that Mr. Stewart stayed in the basement at least some of the time with Ms. Richardson’s consent, in this way given his unrestricted access, exercising a degree of control over the premises, including unit 1. The ‘Players Advantage’ card permits a similar inference in relation to the television stand where the firearm and ammunition were stored. [ 45 ] It is always possible, as anything is, that a visitor stored the firearm under the noses of the prior tenant or the defendants, but it is not a reasonable inference in these circumstances.

The basement apartment was well secured and shared at least some of the time by the defendants. There is no evidence that other persons had access. A loaded firearm is a significant possession. This is a compelling circumstantial case for which there is no plausible alternative theory of possession. On all the evidence, I am not left in reasonable doubt that Mr. Stewart had both knowledge and control of the handgun. He will be found guilty on all counts. [ 46 ] Given the relationship between the two defendants, the shared occupancy and limited access to the basement, it is a reasonable inference that Ms.

Richardson had knowledge of the firearm and consented to its storage in the unoccupied unit. But there is no direct evidence that she made use of the television stand nor that any of the items in unit 1 belonged to her, so that it remains a reasonable possibility she was unaware of the handgun stored in the consul. She will have the benefit of that reasonable doubt. Her charges will be dismissed. Released: January 3, 2020 Signed: “Justice L. Feldman”