R. v. Himanen, 2012 BCPC 265

Citation: R. v. Himanen, et al. Date: 20120423 2012 BCPC 0265 File No: 74987 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GARY HIMANEN SUKHWINDER SINGH KANGURA and EDWARD GARY FELIZ REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K.D. SKILNICK Counsel for the Crown: S. Quendack Counsel for Himanen : P. McMurray Counsel for Khangura : P. Derksen Counsel for Felix : D. Pedersen Place of Hearing: Abbotsford , B.C.

Date of Hearing: April 10 and 11, 2012 Date of Judgment: April 23 2012 [ 1 ] THE COURT : Gary Himanen, Suhkwinder Singh Khangura and Edward Gary Felix were originally charged with five counts of Criminal Code possession-type offences. At the commencement of the hearing, the Crown stayed Counts 1 and 2, and we are left with the remaining three counts. Count 3 and Count 4 are essentially identical in that they charge possession of the expandable stun baton. The only difference is one Code

section makes it an offence to possess while knowing that they were not the holder of a licence. Count 4 charges the same thing, except the offence is for not actually holding a licence.

Count 5 is an allegation of possession of instruments, specifically bolt cutters, screwdrivers and wrenches, suitable for the purposes of breaking into a place under circumstances that give rise to a reasonable inference that the instruments had been used or were intended to be used for that purpose, contrary to s. 351 of the Criminal Code . [ 2 ] I am going to go over the elements of those offences in more detail, but suffice to say I think Mr.

Pedersen has really put his finger on what the issue is here, and that issue is really one of knowledge, and specifically whether or not the Crown has proven the requisite knowledge, which is an element of possession on each of the counts. Certainly there is no argument here that if offences occurred, they occurred on or about December 26th, 2010. There is no argument that if those offences occurred, they happened in Abbotsford, and there is no argument that if those offences occurred, each of the three accused were the persons involved.

The issue is whether or not the Crown has proven beyond a reasonable doubt possession in respect to Counts 3 and 4 of the prohibited weapon, and in respect of Count 5, of instruments suitable for breaking into places. [ 3 ] There is also an issue that Mr.

Derksen has raised, and that is whether or not the Crown has proven that the weapon in question was in fact a prohibited weapon, and that is another issue that I will address separately. [ 4 ] Before going over the evidence and the elements in more detail, I have to remind myself that the test in a criminal trial is not, of course, which side I believe, but whether or not the Crown has proven the offence beyond a reasonable doubt. In this case, one of the three accused has testified, that being Mr. Khangura, and it is not a question of pitting the two versions; that is, the Crown's and Mr.

Khangura's version, against one another in isolation, but rather, I have to consider all of the evidence, and I have to keep in mind that I must not examine the facts separately and in isolation, but rather, I must consider whether, on the total body of the evidence, viewed as a whole, the Crown has proven each of the elements of the offence beyond a reasonable doubt. The burden of proof always rests with the Crown; it never shifts to the accused. [ 5 ] The test of beyond a reasonable doubt is one that is used in criminal proceedings, and again I have to remind myself what that is.

The Supreme Court of Canada, in a case called Lifchus , defined reasonable doubt. The standard of proof beyond a reasonable doubt is intertwined with the principle fundamental to all criminal trials, that being the presumption of innocence and the burden of proof rests with the prosecution throughout. It never shifts to the accused. [ 6 ] In determining what exactly is a reasonable doubt, it is not a doubt based on sympathy or prejudice; rather, it is a doubt based on reason and common sense. It must be logically connected to the evidence or the absence of evidence.

It does not involve proof to an absolute certainty, it is not proof beyond any doubt, nor is it proof beyond any imaginary or frivolous doubt. More is required than proof that the accused were probably guilty, in considering the term "beyond a reasonable doubt." [ 7 ] The Crown presented the evidence of three witnesses, three police officers, and the evidence of the officers, summed up, is that on December 26th of 2010, I am satisfied that a van operated by Mr. Khangura, in which Mr. Himanen and Mr. Felix were passengers, was pulled over by Cst. Sovio, that Cst.

Sovio observed certain things that gave him concern and raised the reasonable suspicion in his mind that a criminal offence was being committed such that he was justified in arresting the accused. That does not, in and of itself, mean that the Crown has proven the elements of the offence, but there are a number of things that the police officers observed that appear not to be in dispute. [ 8 ] I am going to deal with the evidence slightly out of order. I am going to start with Cst. Sovio because he is the first officer on scene.

He testifies that at two in the morning, he is doing routine patrols in the area of Whatcom Road and Vye Road, just south of the Number 1 Highway on the east side of Abbotsford. He sees a Dodge Caravan, and it is his evidence that he believed the vehicle to be speeding, although he did not have radar. Based on his experience as a police officer, it is his opinion that he has reason to believe that the vehicle is travelling about 80 kilometres in a 50-kilometre zone.

Whether or not the vehicle was speeding or not is not really relevant here, the issue is whether or not the officer believed that and whether or not he then had the basis for pulling the vehicle over. I am mindful here that no issue has been raised with respect to any Charter violations for unreasonable search and seizure, but having said that, I am satisfied on the evidence that Cst. Sovio had at least the grounds to make a vehicle stop at that point. [ 9 ] Cst. Sovio testified he first of all runs the licence plate and then he decides to stop the vehicle for speeding.

He says it takes him about three minutes to make a U-turn and then to proceed north on Whatcom Road, and by the point he stops the vehicle, it is already north of the Number 1 Highway, having gone over the overpass at Whatcom Road. It is pulled over on the right side of the road near to the Tim Hortons and the Petro Canada gas station there. In any event, the plate does not show as being stolen, but he testified that the registered owner was an elderly person that did not match the driver, so when he comes to the driver's window, he recognizes Mr. Khangura, who he has known from a previous occasion.

He also knows the other two individuals in the vehicle. [ 10 ] The first thing of concern to him is that the ignition housing appears to be missing, and we know that from the photographs taken and from the evidence of Mr. Khangura that that was in fact the case. There was some criticism of Cst. Sovio by virtue of the fact that Mr. Khangura had the same surname as the registered owner, but having said that, I certainly cannot fault Cst.

Sovio for proceeding to investigate the matter as a stolen vehicle, because oftentimes vehicles are stolen from family members, and of course at that hour of the night, oftentimes vehicles are stolen where the registered owner does not even realize the vehicle is stolen until the next morning. So clearly Cst. Sovio was doing the right thing in continuing to investigate the matter.

[ 11 ] Cst. Sovio testifies that in plain sight, he sees other things in the vehicle that concern him. He says there is a screwdriver on the dashboard, which again is consistent with the way that vehicles have been stolen after the ignition has been dismantled. He testifies he also sees, in plain sight in the back of the vehicle, some weapons. He says specifically he sees tools, he sees an Asp baton and he sees some other things that give him concern.

He also has concern because there are three of them and one of him, so he calls in other units, which are available in a very short time, and when the other units arrive, he has the individuals in the vehicle step out of the vehicle.

He describes their behaviour as compliant, and he says he is investigating what he initially believes to be the theft of a vehicle. [ 12 ] As the individuals get out, he sees an open area in the back where a seat has been removed, and he says he sees the baton, he sees another instrument that looks like a plastic Asp baton, and some other things that give him concern, including some bolt cutters. [ 13 ] One of the officers who respond is the acting sergeant that night, the acting supervisor, Cst. Culbertson, and Cst.

Culbertson doubles in the investigation in that he takes on the role of identification officer and takes some photographs. In the course of the photographs, he discloses a number of things that give police officers concern. In the back, as shown in photograph 1, Exhibit 5, he sees the two batons, and the bolt cutters. At some point they are under a backpack in the back.

There are screwdrivers, there are walkie- talkies, there is a mask and either a partial mask or a hood of some sort, there are other tools, and all of these things give him concern. [ 14 ] Looking at the items that the police have discovered, and again, there is no issue that these items are in the vehicle, the issue of course then becomes one of knowledge, but these items are relevant to Count 5, because Count 5 charges the offence of possession of instruments suitable for breaking into a place that are found under circumstances that give rise to a reasonable inference that the instruments have been used or are intended to be used for such purpose.

This is a

section of the Criminal Code that has been enacted as a preventative measure in the sense that police officers, ever since the passage of that section, are not bound to wait and watch individuals until a crime is actually committed.

If there are circumstances from which it is reasonable to infer that the combination of items in an individual's possession, given all of the other factors, such as the time of day and other things, if that combination of circumstances give rise to the reasonable inference that the items are used for an unlawful purpose of the nature suggested by the section, then of course Parliament has enacted by that that the police do not have to simply stand by and wait until somebody's home is actually broken into, they are entitled to then find an offence to have been committed merely by the possession of those items in those circumstances. [ 15 ] Now, each of these items individually might have an innocent purpose, but it is the overall circumstances that have to be taken into account.

Walkie-talkies, for example, are a communication device, and there is nothing wrong with a person possessing walkie- talkies. They may form a part of a communication device for illegal activities, but just simply by the presence of walkie-talkies, that is not a reasonable inference to draw. I suppose if one is a Mexican wrestler one has a purpose for masks like the one found in the van, but aside from that, masks have the purpose of concealing identity.

Bolt cutters may have a purpose if one is a locksmith or a bailiff or for other reasons, but generally bolt cutters are not the type of thing that most individuals carry with them. It is not an offence to possess bolt cutters, but again, one has to look at the totality of the circumstances. I would say the majority of individuals carry some form of tools in a motor vehicle. Wrenches, vice-grips and other items I think are reasonable to be carried by individuals. For example, if one has a loose battery cable it can be fixed readily, or other things of that nature.

Bolt cutters are somewhat unique in that the average individual does not normally carry bolt cutters, but again, it is the totality of the circumstances. Again, gloves are not an unusual item, especially in colder weather in December. Gloves can be used for preventing the leaving of fingerprints, but again, in and of themselves there is nothing nefarious about someone having gloves. Similarly, flashlights and binoculars have innocent purposes.

The question is when police officers find individuals at the early hours of the morning, in the dark, in possession of all of these items; walkie-talkies, masks, bolt cutters, vice-grips, gloves, flashlights and binoculars, is it a reasonable inference that those items are all being possessed for some nefarious purpose, such as the purpose of breaking into places? One has to look at the totality of the circumstances. [ 16 ] We are aided in that assessment somewhat by the evidence of Mr. Khangura, who later gives evidence.

With respect to the bolt cutters, he has no explanation; he says he does not recognize the bolt cutters. In my view, it is the bolt cutters here that are the most troubling of all the items in the vehicle, the combination of the bolt cutters and masks, given the hour, given the totality of the circumstances, as well as the evidence of Mr. Khangura in terms of what might reasonably and might not reasonably have been found in that van. [ 17 ] There was some criticism earlier of Cst. Sovio, but again, not only do I think when one looks at the totality of these circumstances that Cst.

Sovio was justified in investigating this matter, but I think if he had found an individual at that hour of the evening with all of those items in the back, under these circumstances, it would have been negligent for him to have simply said, "Okay, on your way," and I think certainly the property owners in that area of the community would have been justifiably concerned about the level of policing if in fact Cst.

Sovio had chosen to do nothing under those circumstances. [ 18 ] In my view, under the circumstances, taking into account the totality of the circumstances, and in particular the bolt cutters are what is particularly troubling here, as well as the methods of concealing identity, the masks and the other items, the flashlight, not being a nefarious thing by itself, but under the totality of the circumstances, in my view, it is a reasonable inference that any individual in possession of those items under these circumstances in which Cst.

Sovio found these individuals, that it is a reasonable inference that the items are suitable for the purposes of breaking into a place, and that a reasonable inference can be drawn that this combination of these items is intended to be used for such purpose. [ 19 ] That conclusion does not necessarily establish anyone's guilt here, because as Mr. Pederson, and all counsel, for that matter, have pointed out the central issue here is one of possession and whether or not possession on the part of each individual is established.

Simply being in a van where these items are located does not constitute possession, and that is where one has to look at the remainder of the evidence. I am satisfied from the evidence that this is what the police find. [ 20 ] There was some suggestion about some inconsistency in Cst. Sovio's evidence, but I think at the end of the day, the evidence is clear that the items are located essentially where the police officers find them. There is certainly no contradictory evidence to that effect. Cst.

Sovio testified that in the course of his search he may have moved things a foot or two, but it is not a situation where items which had previously been concealed are suddenly placed out in the open in the course of the search. Cst. Sovio was quite clear in his evidence that that certainly did not happen.

[ 21 ] I am just going to comment very briefly on the remaining Crown witness, and that was the weapons expert, Cst. Qualia. Cst. Qualia examines the baton that we have referred to as Exhibit 3, and he is called for the purpose of proving that that evidence is in fact a prohibited weapon, and Cst. Qualia, while not called on as a legal expert, does direct us to the sections of the Criminal Code . A prohibited weapon has two

definitions. There are certain knives that are prohibited weapons, defined in s. 84 of the Criminal Code , and s. 84 (

b) defines a prohibited weapon as "any weapon other than a firearm that is prescribed to be a prohibited weapon." [ 22 ] The Criminal Code contains certain regulations which set out devices that are prescribed to be prohibited weapons in statutory regulations 98-462 and 98-472. These were previous orders that have now been consolidated by regulation, and the constable refers us to two of those regulations. In

Part 3 of those Regulations, paragraph 6, he describes: Any device that is designed to be capable of injuring, immobilizing or incapacitating a person or an animal by discharging an electrical charge produced by means of the amplification or accumulation of the electrical current generated by a battery. [ 23 ] I am going to pause there and just say that the evidence certainly satisfies me, and I do not think there is any argument, that the device that we have marked as Exhibit 3 does discharge an electrical charge, as described in the regulation, and it is certainly capable of injuring, and the best evidence we have is of course Cst.

Qualia, who uses himself as a test subject. [ 24 ] Mr. Derksen suggests, though, that it does not meet the definition of a weapon under that because there is the added requirement that the device be designed or altered such that the electrical charge may be discharged when the device is of a length less than 480 millimetres, and in this case, certainly the report suggests that in fact the current is discharged when the device is longer than 480 millimetres. Again, I have gone over the report, and I do not see the contradiction. The report is essentially silent on that point, but Cst.

Qualia's evidence is quite clear. During the break I had the opportunity to listen on the DARS system to his answer, and again, in cross- examination he was clear on this point.

The current can run either expanded or compressed, and so although he did not test the item on himself in a compressed state, he was clear that while the device was less than 480 millimetres, it was capable of discharging the electrical current that would, in turn, be capable of causing injury. [ 25 ] Therefore, I am satisfied on that ground that the Crown has proven that Exhibit 3 meets the definition of a prohibited weapon. [ 26 ] I would say, as an aside, that I do not agree with Cst.

Qualia's conclusion that it falls under the definition set out in s. 13 of the Regulations, because that talked about something as having a spring-loaded steel whip, and I think he was clear in his evidence that that description did not fit. [ 27 ] Up to this point, in my view, the Crown has certainly proven that there were instruments in the vehicle that were capable of giving rise to the reasonable inference that they were being intended to be used for the purpose of breaking in, and the Crown has also proved that there was a prohibited weapon and that no one in that vehicle was the holder of a licence to possess that weapon. [ 28 ] The issue then becomes one of possession, and I think Mr.

Pedersen has really hit the issue on the head here, because is possession established simply by virtue of the fact that these items are found in a van in which all three of these accused are present? [ 29 ] Mr. Felix and Mr. Himanen did not testify in their own defence, but are not required to do that. They have a right to silence and no adverse inference can be drawn from their failure to testify. At the end of the day, whether or not possession is proven depends on the remaining evidence. [ 30 ] This is where Mr.

Khangura's evidence becomes important, because up until his evidence, we have no evidence as to how these items actually get into the vehicle, and it is Mr. Khangura who gives us that evidence. He testifies that the van belongs to his father, that he has permission to operate the vehicle, and that sometime after midnight, at about one o'clock in the morning of December 26th, 2010, he gets a call of Mr. Himanen, requesting a ride. Mr. Himanen is having some car trouble in the area of Vye Road and Sumas Way, and so Mr. Khangura drives the vehicle to that location to pick up his friends and give them a ride.

He testifies that Eddie Felix and Gary Himanen got in the van. He says he saw the car, it was immobile, it was Gary's car. He testifies they had maybe one or two bags with them, including a backpack. This is important because we do see a backpack and we know then from Mr. Khangura's evidence that it is at this point that the backpack finds its way into the van.

He testifies that they go down Vye Road, they turn left on Whatcom, they passed the police vehicle and they are pulled over by the police just as they are heading into the Tim Hortons to get a coffee. [ 31 ] He is asked, both in examination in chief and in cross-examination, about what he is aware of as being inside the van previously. He testifies that there were certainly no weapons in the van that he is aware of. He testifies he never knew the bolt cutters were there.

He testifies there were some tools that he had knowledge of, and the screwdriver, for example, he put that in the van because he wanted that there for the purpose of starting the vehicle because the key was no longer operable. He is clear that the he had never seen the stun baton before. He says the field hockey stick looks familiar, and he says there are several screwdrivers in the vehicle and he says possibly the binoculars may be his.

But two things become clear from his evidence; the bolt cutters certainly are something he has no prior knowledge of and he also testifies that the stun baton is something he has no prior knowledge of. [ 32 ] I do not think it is a reasonable inference that his nephews, who he says are seven or eight years old, put these things in the vehicle, but Mr. Khangura's evidence is that he does not bring those things in the vehicle and that he has no knowledge as to how they get in the vehicle. [ 33 ] At this point I think I have to analyze whether or not I accept Mr.

Khangura's evidence, because the Supreme Court of Canada says, in a case called R. v. W.D. , that if I believe Mr. Khangura's evidence and it is capable of affording him a defence, that I must acquit him. That is important here because Mr. Khangura's evidence is clearly that he has no knowledge that these things are in the vehicle, so he does not consent to their being in the vehicle. He does not manually handle them, he is not part of any joint or common purpose for them being in the vehicle, and if I accept Mr.

Khangura's evidence, then he is entitled to an acquittal. [ 34 ] The Crown says that I should not accept his evidence, firstly because he has a prior record for crimes of dishonesty, and while

that is a factor, of course, I do not think that is a factor for rejecting his evidence under the circumstances. W.D. goes on to say that even if I do not believe his evidence, but I am left in reasonable doubt by it, that he is entitled to an acquittal. With Mr. Khangura, I find myself in this situation. I find his evidence, in terms of how those items come into the van, not only might be true, but is likely true under the circumstances, and that certainly under the circumstances, Mr.

Khangura's evidence satisfies me that he is entitled to an acquittal, in that he takes the stand, he gives evidence under oath and his evidence is that he did not put those things in the van, and especially with respect to the baton that we marked as Exhibit 3, the prohibited weapon, and with respect to the bolt cutters; he has no knowledge. [ 35 ] The only rational inference from accepting his evidence then is that these things come into the vehicle when Mr. Khangura stops to pick up Mr. Himanen and Mr. Felix. Mr.

Khangura's evidence is that these two bring in maybe one or two bags and that they bring in the backpack. [ 36 ] Sometime between the time that Mr. Khangura picks up his passengers and the police pull the vehicle over, these items are spread out on the floor of the minivan, so clearly there is some manual handling of these items. The case certainly would have been significantly different if the things are in the backpack, the backpack is never opened and there is clearly no manual handling of them at that point in time. This case is somewhat different, because we have evidence, and evidence primarily from Mr.

Khangura, from which the only reasonable inference is that these things come into the van when Mr. Himanen and Mr. Felix enter the van when they are picked up at Vye Road. The fact that there is manual handling and that the items are taken out proves not only that they are brought into the vehicle, but that there is knowledge on the part of the individuals. [ 37 ] At the end of the day, I find myself in this position, that the only rational inference to be drawn from the evidence is one of possession on the part of Mr. Felix and on the part of Mr. Himanen, but Mr.

Khangura, by virtue of his evidence and his testimony, is entitled to the benefit of reasonable doubt. [ 38 ] I am satisfied, taking into account the definition of "possession" under s. 3 of the Criminal Code , which allows for a number of kinds of possession; it allows for personal possession, it allows for constructive possession and it allows for joint possession, and in my view, taking into account the totality of the evidence, the Crown has proven beyond a reasonable doubt as against Mr. Felix and Mr.

Himanen jointly that those two individuals were in possession of the weapon that I found to be a prohibited weapon, and that they were in possession of the instruments that I found to be capable of supporting a reasonable inference that they were being possessed for the purpose of breaking into places. [ 39 ] In my view, the Crown has proven all of the elements of the offences against those two individuals. [ 40 ] In conclusion, the Crown has stayed Counts 1 and 2. I find Mr. Khangura not guilty on Counts 3, 4 and 5. I find Mr. Himanen and Mr. Felix guilty on Counts 3, 4 and 5. ______________________ K.D.

Skilnick Provincial Court Judge