R v. THOMSON MUSTAPHA, 2013 QCCQ 6678

R. c. Mustapha 2013 QCCQ 6678 JL 2407 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-01-025017-093 DATE: April 3, 2013 ______________________________________________________________________ BEFORE THE HONOURABLE LOUIS A. LEGAULT, J.C.Q. ______________________________________________________________________ THE QUEEN PROSECUTOR v.

THOMSON MUSTAPHA ACCUSED ______________________________________________________________________ JUDGMENT (WRITTEN VERSION) ______________________________________________________________________ [ 1 ] The accused, Mr Thomson Mustapha, is charged with infractions related to the possession of firearms and ammunitions, namely: - Count 1: section 86 (2)

(3) a) of the Criminal Code : contravening a regulation made under 117 HL of the Firearms Act respecting the storage of firearms and restricted used weapons namely a 9mm pistol. - Count 2: section 91 (1)

(3) a) of the Criminal Code regarding the possession of a firearm, namely a 9 mm pistol, without being the holder of a licence under which a person may possess it and of a registration certificate for it. - Count 3: section 91 (2)

(3) a) of the Criminal Code , regarding the unauthorized possession of a prohibited weapon without being the holder of a licence under which the person may possess it. - Count 4: section 95

(2) a) of the Criminal Code regarding the possession of a prohibited firearm with readily accessible ammunitions that are capable of being discharged in the firearm, unless he is the holder of an authorization or a licence under which the person may possess the firearm in that place and of the registration certificate for that firearm. - Count 5: section 96

(2) a) of the Criminal Code regarding the possession of a restricted firearm that the person knows was obtained by the commission of an offence or by

an act or omission anywhere that, if it had occurred in Canada would have constituted an offence. - Count 6: section 108 (1) b)

(2) a) regarding the possession of a firearm knowing that the serial number in it had been altered or removed and the serial number tampered with OVERALL VIEW OF THE FACTS [ 2 ] As the SWAT intervened at the residence situated [...] and as was then targeting both the [...] and a Mr Sewa Lacle, the net result was the arrest of said Mr Lacle, of Mr Gerro Turmaine, of the tenant Mr Tudor and of the accused and the search of the premises that have been followed with the present criminal pursuit. [ 3 ] A room showing signs of occupancy by the accused was searched and a pistol with ammunitions was found in an open bag under the shelves where the accused clothing or clothing used by the accused was orderly placed.

Ammunitions and drugs and a small scale were found on a computer desk covered with personal papers in the name of the accused. A bed in that room was used by the accused. Some accused caps were displayed on the wall, running shoes most of which are acknowledged as being the accused property were also found along a wall of that room. [ 4 ] Defence acknowledged that a confession the accused signed was offered freely, voluntarily and in the respect of his charter rights. In that confession, the accused took responsibility for the firearm found in his room. [ 5 ] The accused denied ownership of the drug seized.

The accused also claimed that the money seized was in part, money from his mother, rental money of his girlfriend that was placed with him and partly reimbursement of income tax owed to him.

[ 6 ] The accused had explained he was friend to the lessee, Mr Tudor who did permit him to occupy a room in the basement of the [...] in Montréal and that on that evening he had just come in and was then cooking for everyone. Mr Lacle was an acquaintance, superficially known, so the accused states. [ 7 ] When in detention, the accused was isolated from the other persons arrested at the time of the police intervention throughout the intervention and clearly until at least the end of the statement made to the police officers.

He is alleged not to have been in the eyesight of the other persons also arrested at the time of the intervention. He was detained in an alleged soundproof cell serving generally for juvenile delinquents as the other detainees were detained in the same police headquarters. This is what the police officers so allege. The accused pretends otherwise as he says he was under pressure from the other persons arrested who shouted to the accused to take the rap for the firearm.

THEORY OF PROSECUTION AND DEFENCE [ 8 ] Defence THEORY OF PROSECUTION – The prosecution contends that the confession made by the accused has probative value, that the allegation of intimidation on the part of his friends detained in the police headquarters is unbelievable and that the testimony of the accused regarding the possession of all of the cannabis on his desk and regarding his account of the sums found in his possession and regarding his knowledge of the other persons arrested during the bust of the police task force lacks credibility.

Finally, the prosecution contends that the whole of the evidence leaves no doubt on the guilt of the accused. [ 9 ] Defence alleges that the confession provided by the accused was induced through intimidation, that the evidence leaves a reasonable doubt as to the knowledge and control of the firearm and ammunitions seized as the accused was only there from time to time, that his occupation of the room in the premises busted was not exclusive, that there is no evidence alike fingerprints or DNA linking the accused to such possession, that the accused testimony is trustworthy, credible and that the target of the police bust was a known criminal whose presence feeds a reasonable doubt in favour of the accused regarding the possession of either ammunitions and the firearm.

Defence denies any possession of the firearm and ammunitions alleged of either ammunitions and the firearm. PRINCIPLES OF ANALYSIS [ 10 ] The rules as developed by the Supreme Court of Canada regarding the analysis of the evidence do apply. Namely, the accused benefits until a verdict is arrived at of the presumption of innocence. The accused does not have to prove anything. All of the elements of the infraction must be established beyond a reasonable doubt.

For that purpose, the assessment of the credibility of witnesses is key as a reasonable doubt deriving therefrom or serving a means of defence shall benefit the accused and any weakness in the testimony of witnesses adducing evidence for the conviction of the accused may weaken the whole of the evidence to the point of acquittal. In any case, the conclusions of the judge should demonstrate a fine appreciation and assessment of the whole evidence ( W.(D.) [1] ).

That reasonable doubt can be on an essential element of an infraction or on a means of defence. [ 11 ] Therefore, if the accused testimony raises a reasonable doubt and offers a mean of defence, he shall be acquitted forthwith. Il disbelieved, if the accused evidence raises a reasonable doubt in the context of the whole evidence, he shall also be acquitted. Otherwise, the Crown is left with its obligation to prove guilt beyond a reasonable doubt. [ 12 ] Regarding the confession, the burden is on the Prosecution to establish beyond a reasonable doubt the probative value of the confession.

There need only be a reasonable doubt on the probative value of the confession for it to be set aside. Then the guilt of the accused has to be reassessed on the whole of the remaining evidence and the guilt of the accused shall be established beyond a reasonable doubt. A reasonable doubt on the probative value of an incriminating statement shall benefit defence, as it is always the burden of the Crown to establish the guilt of an accused. [2] [ 13 ] The accused does not invoke police oppression. The inducement alleged is not the one of the police.

It is the alleged intimidation by a number of persons who would have been arrested at the same time as the accused. [ 14 ] The ability to instruct counsel and the exercise of that right prior to meeting the police officer is admitted. [ 15 ] Is there any reasonable doubt as to the probative value of the defence? Does the Crown establish beyond a reasonable doubt the guilt of the accused beyond a reasonable doubt? Has the Prosecution established the possession of the firearm related to in the counts before the Court on the basis of the evidence?

DETAILED FACTUAL NARRATIVE DISPUTED FACT [ 16 ] The accused alleges that he cannot be considered in fact as having real exclusive possession of the firearm and ammunitions in the room he occupies as he was more often residing with his mother or girlfriend.

He simply denies any possession of the Prosecution alleges that the accused was the sole occupant of that room that he was occupying regularly. [ 17 ] Prosecution contends that the accused lied or was most reluctant to admit his priors, that he lied on drugs and on the source of the money found in his possession. [ 18 ] Defence alleges that the circumstances were such that the accused was intimidated and induced to take the rap on the infractions. [ 19 ] Prosecution alleges that throughout the police operation from the time of the accused arrest, the accused was isolated from the others at all times and specifically at the police headquarters in a soundproof cell whereas defence alleges that the accused suffered intimidation and feared for his life as he was invited to take the rap for the firearm that was in the dwelling of [...]. [ 20 ] Prosecution alleges the lack of credibility and trustworthiness of the accused, that all steps were well taken rendering impossible both the visual and vocal contact between the accused and the other persons arrested preceding the confession, that the confession was without any doubt whatsoever not induced by any one, that the accused has no credibility as his testimony was evasive or

lied on the money in his possession, on the drugs found on his desk, on his occupancy of the room, on his priors and invented the incident of the alleged intimidation before his statement. [ 21 ] Defence alleges furthermore that the accused is the victim of the Omerta climax, of the burden of a rule of silence that led the accused to take responsibility in his statement to the police officers in the same way he did not speak of who was selling drugs to him or on the role of Mr Lacle.

ANALYSIS [ 22 ] A number of reasons lead the Court to conclude that the accused is unbelievable, that he testified reluctantly and did not speak the truth and in any case did not set aside the strength of the evidence heard on his sole occupancy of the room where the seizure was made, on his possession of the drugs, small scale, ammunitions and on the firearm seized. [ 23 ] Indeed the testimony of the accused was offered with reluctance and it could not be labelled as simply being careful or the one of a nervous person. He was evasive, even contradictory when questioned on his knowledge of Mr Tudor and Mr Lacle.

The accused appeared to be testifying in an approximate way, he lied about his past priors. He was careful in not testifying openly. [ 24 ] His pretences of sleeping and being on [...] Street from time to time was meant to mean that he did not occupy the room solely. His pretences were directed at permitting the inference that others were occupying his room. However, the evidence does not permit to infer that anyone else was then occupying the room. Clearly, the accused had been granted the right to occupy alone that room and indeed he did.

There is no doubt that in that room, the accused had plenty of personal affairs, papers, drugs, small scale for drugs, well folded clothing and that he was in often walking the dog, even preparing and eating meals.

The accused acknowledgement that clothing belonging to others were lent to him also lead to understood together with all other factors that the accused was the sole occupant to his knowledge of that room where he stayed «from time to time». [ 25 ] His account of the sums in his possession did not make sense, namely regarding money of his girl friend rental that would have been deposited with him for her disbursement of her coming rental, or money received from the income tax return as even the income tax papers seized show at most a very small return.

His dealing in drugs as a dealer in the past is at least questioned by the drugs as wrapped found wrapped and by the scale on his desk. [ 26 ] The accused provided no specific testimony except to deny his possession of the firearm under the shelves used to place his clothing.

The Court is left with the fact that there is no specific testimony on the presence of the bag and its content. [ 27 ] The probative value of the statement confessing the possession of the firearm is definitive offers details and situates the purpose of having such a firearm and finally expresses the accused feelings for the consequences suffered by others as a result of the seizure of that weapon. There is no doubt that the accused provided a probative trustworthy confession. [ 28 ] The accused testimony is unbelievable regarding the circumstances that surrounded his statement.

All of the circumstances related together with the account given of it by the accused do not question the probative value of that incriminating statement. [ 29 ] All of the evidence leads to conclude that the accused was never seen or heard by the other persons then arrested. On [...] Street, the accused was set aside and transported alone.

He was truly isolated both from his arrest, at his arrival at the police headquarters and inside the police quarters as he was placed in a soundproof cell generally reserved for juvenile delinquents, that even no one could suspect that he was detained or being charged with counts relating to a firearm. [ 30 ] The evidence as to the design of the cells and as to the course of action that went on in those quarters also permit to say that there was no 20 minutes of yelling heard, that no such threats were heard by the police officer in charge of those cell quarters and that there was no such climax that prevailed during that evening and that nothing went on for a period of approximately twenty minutes.

The accused knew so little of Mr Lacle and indeed the firearm was in that room occupied solely by him and under the shelves covered with clothing used by him. [ 31 ] The accused allegations that he heard such yelling that went on for twenty minutes is disbelieved. It is not only disbelieved that it happened but also that anything such was heard by the accused.

The accused on that relates that he does not know who yelled, that it was not his friend Mr Tudor who did threaten, that he did not recognize any voice, neither the voice of Mr Lacle, that threats were directed at him and then further on that the threats were directed to his mother namely and that he became fearful for her. Indeed it is totally unbelievable that the accused got intimidated.

Furthermore as the accused is formal that he does not recognize any of the voices yelling at him, and as it is not the voice of his friend Mr Tudor, it is not either the voice of Mr Lacle. [ 32 ] The accused has invented the whole story of intimidation that has no shape or form that has any reliability and trustworthiness. So many persons yelling at him and no voice recognized as he knows the voices of the persons arrested.

It is totally unlikely that the other persons arrested would have known that he was to be investigated on the firearm hidden under the shelves where his clothing is. [ 33 ] In their testimony, officers inside the jail police headquarters deny ongoing lengthy periods of yelling in a trustworthy way. Not only was there no such constant yelling as alleged by the accused, but in that juvenile soundproof cell, it is believed that no voice got to be heard by the accused. [ 34 ] In the context of the whole evidence, not only is the statement a free and voluntary confession but it has probative value.

The statement contains the following admissions that do show coherency as he says: «I never used the gun and it was for my protection because I don't want to be a victim of the trouble in the streets» that «I had it since a few years but I never used it » and that he lives there «from time to time» in that room in that basement and that his feeling when he made the statement was as follows: «Not good. I put people who were not involved in trouble and I take responsibility for my actions». All of that speaks in a coherent way of the accused having been a dealer in drugs and still being a drug consumer.

There is no surprise that the accused would for alleged protection reasons have had a firearm and would have declared that much, that he did not feel good about the SWAT intervention, as he then understood that in view of his firearm, the other occupants of the [...] had also been arrested.

[ 35 ] Indeed it is clear that the accused was truly occupying the premises where he slept regularly, that his personal affairs were surrounding this firearm that he acknowledges as his, that the drugs were clearly his and could not be attributed to anyone else.

The papers and ammunitions and drugs were clearly his. [ 36 ] The drug also displayed on a desk amongst his personal affairs also shows that the accused was having its possession and control and that there was full knowledge and control that can be inferred regarding the firearm and ammunitions in the context of the whole circumstances and of the incriminating statement.

That firearm seized was in a bag the content of which could be seen when the clothing was not hiding its opening and visual access to the content of the bag. [ 37 ] The accused's incriminating statement made to the police is probative. [ 38 ] The accused offered denial of possession of the drug or ammunitions seized. All of the evidence leads to believe in the personal possession and control and knowledge of these effects together with a small scale used for weighing drugs. The accused admitted that until three years ago, he was dealing in drugs. That is around the time of that police intervention.

The drugs and ammunitions found in that room are undoubtedly in his control and knowledge and possessed by him. [ 39 ] Taking into account the confession provided by the accused that is probative and the evidence that supports the accused criminal liability on the counts as charged and the involvement of the accused in drug dealings that goes by to three years ago, which is quite close or around the time of the police intervention, it is not a surprise although not an automatic inference that the accused was in possession of such a firearm. . [ 40 ] The statement is a detailed confession explaining in a trustworthy way that the firearm seized and of which he hears for the first time that he is charged with such possession is his, that he had it for his personal protection which is in this case a likely reference to his selling drugs until that time or very close to it.

His statement also of his being sorry for the inconvenience to others relates to the fact that other persons were then arrested as the search revealed that he was the one who had committed a criminal infraction in having such a firearm.

There is nothing there that questions the veracity of the confession made in the context of the whole circumstances. [ 41 ] Possession of that firearm was established through the expertise as being a firearm a 9 mm pistol, without the accused being the holder of a licence, not stored according to the regulations, as being a prohibited weapon held by the accused without being the holder a proper license, as being a firearm with ammunitions readily accessible and it being detained as a result of the commission of an offence or it having a serial number removed or obliterated. [ 42 ] In view of the Prosecution's consent, the declaration of guilt will be solely on counts 4 and 6, as this will avoid the problem of multiple convictions.

THEREFORE THE COURT DECLARES THE ACCUSED GUILTY ON COUNT 4 AND COUNT 6. THE COURT STAYS CONDITIONNALLY THE PURSUITS ON COUNTS 1, 2, 3 AND 5. __________________________________ LOUIS A. LEGAULT, J.C.Q. ME PASCAL DOSTALER ATTORNEY FOR THE PROSECUTION ME LLOYD FISCHLER ATTORNEY FOR THE DEFENCE Date of hearing: December 6 and November 1, 2012