R. v. J.(A.), 2013 ONCJ 224

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 Identity of offender not to be published.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 Identity of victim or witness not to be published.—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(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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. COURT FILE No.: Toronto Y DATE: 2013·April·29 Citation: R. v. J.(A.) , 2013 ONCJ 224 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 — A. J., a young person Before Justice E. B. Murray Heard on March 25, 26, and 27, 2013, and April 29, 2013 Reasons for Judgment released on April 29, 2013 Ms. Jody Milstein ....................................................................................................... for the Crown Mr. David A. Berg ................................................................................ counsel for the accused A. J. MURRAY, E. B. J.:

[ 1 ] A.

J. faces several charges: 1. p ossession of a prohibited weapon; 2. possession of a loaded prohibited firearm with ammunition; 3. unauthorized possession of a prohibited weapon, contrary to s. 91(2) of the Code; 4. possession of a prohibited weapon knowing its possession is prohibited; 5. careless storage of a firearm; 6. careless storage of ammunition; and 7. possession of a prohibited device (a magazine) for a dangerous purpose. [ 2 ] All of these charges relate to an incident which occurred on December 12, 2012, when police entered Room 861 in the Sheraton Centre hotel in downtown Toronto in the early hours of the morning and seized a loaded semi-automatic handgun. [ 3 ] The central issue in the case is credibility.

The Crown contends that, when police entered Room 861, the defendant was in possession of the gun. The defendant, who gave evidence, says that although he had reason to think that there was a gun in the room, he did not see it before it was produced by police, and that it was never in his possession. [ 4 ] This is my decision after his trial on these charges.

At the trial, I heard evidence from Matthew Smith, a security guard at the hotel; from three officers, Sergeant Michael Ferry, Sergeant Matthew Hayward, and Constable David Manserra; and from the defendant. [ 5 ] I received evidence with respect to the firearm, magazine, and ammunition seized that evening. The firearm is a prohibited weapon, and the magazine is a prohibited device. The firearm was in good working order, capable of being fired. Evidence established that the defendant was not the holder of a licence or registration certificate for the firearm.

The amendments [ 6 ] After the evidence was in, upon my review of the evidence it became clear that a number of the counts in the information did not conform with the evidence. Specifically, counts number 1, 3, 4 and 5 refer to a “prohibited weapon”. The evidence presented at trial established that the weapon in question was a prohibited firearm; a firearm is not included in the definition of “prohibited weapon” in s. 84 of the Code; that

section includes a separate definition of “prohibited firearm”. [ 7 ] I arranged for a teleconference with counsel to hear their submissions on this issue. Not surprisingly, the Crown wished to move pursuant to s. 601 of the Code to amend the information to conform with the evidence. This was opposed by the defence. It was agreed that the motion would be made and argued before me today, the date to which the trial had been previously adjourned for me to render a decision. [ 8 ] On argument of the motion, counsel agreed that the defendant would not be prejudiced by an amendment.

The argument revolved around whether the enhanced procedural protections given to young persons under the Youth Criminal Justice Act should result in the dismissal of the motion. [ 9 ] I allowed the amendments, for oral reasons given.

Thus, the charges faced by the defendant are: 1. p ossession of a prohibited firearm; 2. possession of a loaded prohibited firearm with ammunition; 3. unauthorized possession of a prohibited firearm, pursuant to s. 91(1) of the Code ; 4. possession of a prohibited firearm knowing its possession is prohibited; 5. careless storage of a firearm; 6. careless storage of ammunition; and 7. possession of a prohibited device (a magazine) for a dangerous purpose.

The evidence [ 10 ] Much of the evidence in this case is agreed upon, or not disputed by the defence, and is set out below. • The defendant was one of a group of young persons attending a party in Room 861 at the Sheraton Centre Hotel on December 12, 2012. The defendant brought liquor, marijuana, and a small sound system to the party.

• There were 7 males and 5 females at the party. All the males were friends of the defendant whom he had known for several years, except for a man he knew as “Adnan”. The defendant’s friends were D. N., H. M., H. M., N. F., and M. H. H. M. had rented the room, and was hosting the party. H. and H. M. are brothers. • Pictures received in evidence show that Room 861 was furnished with two queen-sized beds, placed side-by-side. Opposite the beds were a dresser and a table upon which the defendant’s small stereo system was placed. There was also liquor and some marijuana on the table.

There were windows at the far end of the room, opposite the door. A washroom was located immediately to the left as one entered the room. • Sometime between 2:45 - 3 a.m., Mr. Smith was directed to investigate a noise complaint related to that room. He and another security guard, Jordan Brown, went to the 8 th floor. • Outside Room 861, Mr. Smith heard the noise and smelled marijuana burning. He knocked on the door, and said that everyone had to leave the room, as other guests were being disturbed. The male who answered the door responded rudely, and closed the door quickly, but not before Mr.

Smith attached a night latch to the door. A night latch is designed to prevent a door from closing being locked. • Mr. Smith waited outside the door. He observed several people leaving the room. Within seconds, another male emerged, and walked halfway to the elevator. He quickly reversed, and re-entered the room, removing the night latch in the process. Mr. Smith described this man as slender, between 21-26 years’ old, and about six feet tall. • Within a minute of the door being closed, Mr. Smith heard the sound of a gun being racked.

He knows that sound because of previous experience in security; he once had a gun racked and held to his head. • Mr. Smith was alarmed. He and Mr. Brown went to the hotel lobby and contacted Toronto police. • A police dispatcher sent out a radio call for officers to respond at 3:14 a.m. • Police came quickly because it was a “gun call”, arriving at approximately 3:20 a.m. They contacted the Emergency Task Force (ETF), and then moved to secure the room pending its arrival.

They went by elevator to the seventh floor, and then by a stairwell to the 8 th floor. • Sergeants Ferry and Hayward and Constable Manserra came up a central staircase near the guest elevator, and positioned themselves at the door to the 8 th floor, out of sight but close to Room 861. They moved through the door to the corridor, and concealed themselves in an alcove. They were able to observe the door to the room by peeking out of the stairwell. They did not think that they would be immediately visible to anyone leaving Room 861.

Constables Desmarais and Tuckwell ascended a staircase at the west end of the hall, and waited there to observe. Room 861 was between the two groups of officers. • The officers by the central staircase heard loud male voices coming from Room 861; there was also a strong smell of burning marijuana emanating from the room. They thought that the men in the room were having a heated argument.

They could not make out most of what was said, but heard one man say “I’m getting the fuck out of here!”, and another say” I’m leaving now !”. • The officers did not wait for the arrival of the ETF because of what occurred next. • The door to the Room 861 opened and closed quickly. Very soon after, the door opened again, and three males (N., H M, and

F) exited. • The officers who had concealed themselves by the central staircase burst out, with Sergeant Ferry in the lead. Sergeant Hayward and Constable Manserra shouted, “Get down on the ground, police”. • Ferdinand did not comply, and Constable Manserra took him down, and arrested and cuffed him. • At the same time, N. and H.

M ran west, and officers Tuckwell and Desmarais rushed to apprehend them. • This all took place very quickly—within a minute or two, according to Constable Manserra. • Sergeant Ferry caught the door of 861 as it was closing with his foot, pushed and entered the room, with Sergeant Hayward behind. Both officers had their guns drawn when entering. The door locked behind them, as the night latch had been removed. • A 380 Taurus semi-automatic handgun was seized by Sergeant Ferry when he and Sergeant Hawyward entered Room 861.

The gun had 11 bullets in the magazine, and one ready to go in the chamber. • There were three men in Room 861 at the time that Sergeants Ferry and Hayward entered — the defendant, M H and H M. All were arrested that evening . [ 11 ] It is clear that this incident—from the time the officers arrived on the 8 th floor, to the arrest of the men inside Room 861 —occurred very quickly, within 3-4 minutes. The officers who gave evidence all testified that the situation was tense. They had reason to believe that there was at least one loaded gun in Room 861.

Before entering, they did not know how many people were in that room, or what they were doing. [ 12 ] The evidence of the officers and the defendant diverge as to where the gun was recovered in Room 861. Mr. H and Mr. M did not give evidence.

Sergeant Ferry’s evidence • I entered the room, shouting, “Police, don’t move—get on the ground.” • As I was moving into the room, I saw the defendant between the two beds, going down to the floor with a gun “palmed” in his left hand. There were two other men, standing by the window at the far end of the room, beyond the further bed, about 10 feet away from the defendant. • The defendant was trying to push the gun under the bed, beneath a sheet that was draped down.

I stepped with one foot on his left hand, to secure the gun, and stepped on his back with my other foot. • I took the gun away, and put it behind me, on the bed. I cuffed the defendant. I proofed the gun, and put it in my pocket. • Sergeant Hayward had entered the room right behind me. He dealt with the two other men. • Constable Manserra somehow managed to open the door, and entered sometime after Sergeant Hayward. He gave the defendant his rights to counsel, and removed him to another room on that floor, Room 870, which the hotel had made available for our investigation.

The defendant was searched in that room. [ 13 ] Defence counsel cross-examined Sergeant Ferry about an alleged inconsistency between his notes and his testimony as to when he saw the gun in the defendant’s hand.

The notes, made at the station after the incident at about 4:30 a.m., read as follows: “ I enter hotel room I yell, “Police don’t move” get on ground I see 1 male standing between bed and two males standing near window on other side of bed (a diagram of the room is in the notes ) All males go to ground Sergeant Hayward deals with males closer to the window I see male between bed lay on ground When I look down I can see males left hand over a semi-automatic gun attempting to push it under bed I step on hand and yell “gun” with right foot I step on back with left foot” [ 14 ] Sergeant Ferry testified that he had a clear memory of seeing the gun palmed in the defendant’s hand as he went down to the floor.

He said that he made his notes to refresh his memory; he did not see any inconsistency between the notes and his evidence. Sergeant Hayward’s evidence • I entered Room 861 right behind Sergeant Ferry, who yelled “Police, don’t move, on the ground” as he entered. I saw 3 men—one was standing between the beds, and two others were by the window. The spot where the first man stood is identified by where a sheet is trailing down from a bed, on the picture entered in evidence.

Sergeant Ferry blocked my view of the defendant. • Sergeant Ferry was dealing with the man between the beds (the defendant), and I moved to deal with the two others. • As I moved, I heard Sergeant Ferry yell “gun”. I looked over and saw the defendant on the floor, and a black gun with a wooden grip in his hand; Sergeant Ferry had his foot over the hand. • I yell “get down” to the two other men (H M and H), who were agitated, and moving around. They were unresponsive. I yelled “show me your hands”. H M fell face down on the bed, while H fell to the floor, behind the bed by the window.

I then noticed that the spring-loaded door had locked behind me. I did not attempt to cuff the men immediately, as we were outnumbered, and was able to control them through voice commands until Constable Manserra arrived. • Very quickly, the door to the room then opened. Constable Manserra had been able to get Mr. Smith to use his key, and he and another officer entered to assist. H and H M were arrested, cuffed and taken to Room 870 to be searched.

Constable Manserra’s evidence • As I stood behind Sergeants Ferry and Hayward in the alcove on the 8 th floor that evening, three men exited Room 861, one headed towards us and two going westbound. Sergeant Ferry yelled “Police, get on the ground”. • We rushed forward, and two officers from the opposite end of the corridor rushed to assist. I yelled at one man, F, to get on the ground twice, and he did not, so I took him down. I arrested and cuffed him. This took place very quickly, within a minute or two.

• As I looked around, I was alarmed not to see Sergeants Ferry and Hayward. I then heard Sergeant Ferry yell “gun” from Room 861, and became even more alarmed. • I was able to get Mr. Smith to open the door for me, and as I entered, I saw the defendant, cuffed, standing at the foot of the two beds by Sergeant Ferry, and Sergeant Hayward, struggling with another man at the end of the room. I helped cuff this man.

A third man was behind the farthest bed, with his legs sticking out; I arrested him, with the assistance of Constable Moran, who had come with me into the room. • I think that the defendant was already cuffed when I entered; I took custody of him, and escorted him to Room 870 for a search. The defendant’s evidence • I did not have a gun in my possession at any time that night. • I arrived at the party at about 10 p.m., and over the next five hours, I had two mixed drinks and three “dimes” of marijuana.

I was “not very affected” by the drinks or marijuana. • When the hotel security guard knocked on the door, H M answered, and was rude, closing the door fast. Adnan and the girls left, and I exited right behind them. This was about 3 a.m. • I got halfway to the elevator, and turned around to go back to the room. My mother called, and reminded me to bring my stereo home; she needed it. The security guards were still outside the room. • I went back to the room “for the sole purpose” of retrieving the stereo.

The system is small, and can easily be set up, or removed, in under a minute. • When I returned, I set about retrieving my stereo. The others in the room–H, H M, H M, F, and N — were arguing. H M was telling his brother to leave, and H resented the order. • I heard the sound of a gun racking. I know the sound from the movies. I was scared. • I did not look around towards the sound of the racking. • No one mentioned the racking sound or a gun. • N and H and H M were standing by the washroom, the direction from which I heard the racking sound. I was standing between the beds.

H and F were on the other side of me. • I decided to leave right away. N said, “I’m getting the fuck out”, and H said “I’m leaving now ”. • N, F, and H M exited. I asked if I could share a cab with them, but they said no. • As N, d, and H M left and the door was closing, an officer (Sergeant Ferry) kicked the door and entered. He yelled to “get down”. I did so. • H M was behind me, between the beds but nearer to the head of the beds. I was standing at the foot of the beds. • Sergeant Ferry arrested and cuffed me.

An officer picked me up and propelled me out of the room. • As I was exiting the room, I heard an officer yell “gun”. I do not know who it was. • At no time did I have a gun. To the best of my knowledge, none of the other occupants in the room had a gun. [ 15 ] In cross-examination, the defendant testified as follows: • My mother had called at 3 .a.m., but she was not just worried about the stereo—she wanted me home. … My mother did not mention the stereo at all—she was just worried about me….

My mother’s call came shortly before I exited the room to go to the elevator; it was on the way to the elevator that I remembered that I forgot the stereo. • I was “drunk” that evening…. I was “not really drunk”, but “wavy”. … I am sure that the drugs and alcohol did not affect my memory of the events of that night. • I was so scared when I heard the gun being racked, that I abandoned all thought of getting the stereo…. I wanted to leave immediately, and was only waiting for my friend H to put on his shoes when police entered the room.

Credibility: counsel’s arguments Defence submissions [ 16 ] Defence counsel submits that there are several reasons to doubt the evidence of Sergeants Ferry and Hayward as to where and when the gun was discovered in Room 861. • Although in evidence before me and at the preliminary hearing for charges faced by the M brothers Sergeant Ferry testified that when he first saw the defendant, he was standing with the gun in his hand, the Sergeant’s notes indicate that he did not see the gun in the defendant’s hand until the defendant was on the ground.

• Sergeant Ferry testified that he saw marijuana only in the bathroom of Room 861, but at other points said that he saw it on the table in the room itself, as well as in the bathroom. • It is improbable that Sergeant Hayward would have taken the time to look when Sergeant Ferry called “gun” and observe the gun in the defendant’s hand, since Sergeant Hayward had to occupy himself in dealing with the two other men in the room. • Sergeant Ferry testified that a draped sheet covered the defendant’s hand as he grasped the gun, whereas Sergeant Hayward testified that he clearly saw the gun in the defendant’s hand. • Sergeant Hayward testified that he was able to control H and H M with verbal commands until more officers arrived in the room, whereas Constable Manserra testified that when he entered the room, he saw Sergeant Hayward struggling with a man by the window. [ 17 ] With respect to his client’s evidence, defence counsel submits: • The fact that the defendant left and then re-entered the room is corroborated by Mr.

Smith. • The fact that the defendant apparently took much longer to disassemble his stereo than he testified was required (less than a minute) is explained by his impairment as a result of consumption of alcohol and marijuana. • There is no reason why the defendant would have returned to the hotel room if he in fact had a gun in the room. • The presence of H M between the beds and behind the defendant when Sergeant Ferry entered the room provides another explanation of the source of the gun on the floor. [ 18 ] Counsel submits that at a minimum, the evidence of the defendant and the difficulties in the evidence of Crown witnesses should raise a reasonable doubt in my mind as to the source of the gun found by police that night.

Crown submissions [ 19 ] The Crown submits that Sergeant Ferry had a good opportunity to observe the defendant as he entered the room, and that the officer is credible and has no reason to lie. • As for the alleged inconsistency between Sergeant Ferry’s notes and his testimony, counsel says that there is no inconsistency. This was an intense, fast-moving and potentially fatal situation. The important events in Room 861 occurred within seconds. The officer created notes at 4:30 a.m. to refresh his memory, and perfect grammar should not be expected.

When the officer noted “I see male lay on ground”, this describes a process, a movement. • It is entirely believable that Sergeant Hayward, upon hearing Sergeant Ferry exclaim “gun”, would look to see where the gun, a source of danger, might be. • With respect to the sheet draped down from the bed at the point where Sergeant Ferry testified the defendant’s hand grasping the gun was located, Sergeant Ferry did not say and he was not asked what percentage of the gun and hand was covered by the sheet.

There is no reason to disbelieve Sergeant Hayward when he says that he saw the handle of the gun in the defendant’s hand. • The Crown concedes that she cannot explain why Sergeant Hayward did not refer to any struggle with one of the other men in the room, as testified to by Constable Manserra.

She notes that Constable Manserra entered the room sometime after Sergeant Hayward engaged these men, but submits that in any event, the difference in their testimony on this point is immaterial as regards the evidence about the defendant’s possession of the gun. [ 20 ] With respect to the evidence of the defendant, the Crown submits that it is wrought with inconsistencies, and “doesn’t make sense”. • Counsel points out the defendant’s flip-flops about the call from his mother, and whether it was a reminder about the stereo or not. • The defendant testified that his “sole” reason for returning to the room after he first exited was to retrieve the stereo, which would have taken less than a minute.

She argues -- pointing to the evidence from Mr. Smith as to when he left the 8 th floor to call police and the time that police entered Room 861--that in fact spent 7-10 minutes elapsed after the defendant returned to the room. She asks, if the defendant was, as he testified, very scared when he heard the racking of the gun, why didn’t he just grab his stereo and go? • She submits that the reason why the defendant reversed course after first leaving Room 861 is clear— to get the gun.

Pictures entered in evidence show that his stereo was not dismantled at all when the police entered the room. • Evidence from all three officers contradicts the defendant’s evidence that H M was between the beds and behind him when police entered the room. Why would the officers lie about his location? Analysis [ 21 ] In assessing the evidence, I of course have in mind the directions given by Justice Peter Cory for the Supreme Court of Canada in R. v. W.D .,

(1991) C.C.C. (3d) 397, as applicable to a judge sitting alone: “In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The

trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trialjudge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if theydo not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in thecontext of the evidence as a whole. See R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), approved inR. v. Morin, supra, at p. 357. n….

A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of theevidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.” [22] Cases that follow and apply W.D.[1] have emphasized that the court’s direction in that case is not a rigid formula. It isparticularly important that evidence must not be assessed piecemeal; all of the evidence introduced by the Crown and the defence mustbe considered in its totality.

In assessing evidence, some factors which are of assistance are the internal consistency of a witness’evidence, the consistency of a witness’ evidence with that of other witnesses, and the harmony of a witness’ evidence with the“probabilities which a practical and informed person would recognize as reasonable” in a particular place under particular conditions[2]. [23] I am unable to accept the defendant’s testimony as to the crucial events of that evening. I do not believe his evidence, andhis evidence does not leave me with a reasonable doubt as to whether he was in possession of the gun that evening.

I expand on myreasons for this view below. • I find the defendant’s evidence on a crucial point unbelievable. He testified that he heard the racking of a gun—a sound that heknew, and that scared him. However, he did not even look for the source of danger. He did not ask the others in the room—all oldfriends-- whether they heard it. • The defendant’s evidence about the speed with which he moved to leave Room 861 upon hearing the racking of the gun is notconsistent with credible evidence as to the time which elapsed between the gun being racked and the police entering the room. o Mr.

Smith and his colleague heard the racking sound, and went to the lobby to call police for help; this must have taken at least twominutes. o The dispatch radio call was received at 3:14 a.m. o Police arrived at the hotel lobby at 3:20 a.m. o Some time elapsed between their arrival and the ascent to the 8th floor; observation of Room 861; exit of N, F, and H M; and SergeantFerry’s entry into the room. o This would mean that at least ten minutes elapsed between the racking of the gun and Sergeant Ferry’s entry into the room. • A ten minute wait to leave the room does not make sense if the defendant was in fact “scared” and wanting to leave immediately.

It does not make sense even when the defendant’s alternate explanations for his delay in departing the room (his need to disassemble hisstereo or the required time for Mr. H to put on his shoes) is taken into account. (I note in passing that the pictures of the room inevidence show the defendant’s stereo not disassembled, but sitting on the table in the room in the spot where he had testified he hadinitially set it up.) [24] I am not particularly troubled by the internal inconsistencies in the respondent’s evidence about the call from his mother,or his level of intoxication.

The defendant is young—17 years of age—and was nervous giving evidence. [25] However, I am troubled by the inconsistency of his evidence on the central point in the case as compared with theevidence from Crown witnesses which I do accept, which is detailed below. The defendant’s evidence about the location of the gun is indirect contradiction to that of Sergeants Ferry and Hayward and Constable Manserra. He does not say, for example, that he fell to thefloor on Sergeant Ferry’s command and was surprised to see his hand come into contact with a gun that he had not previously seen.

Hisevidence is that he never saw or touched the gun until he was being escorted out of Room 861 that night, and that it was while he wasexiting the room that he heard an officer yell “gun”. [26] Constable Manserra’s evidence was not seriously attacked on cross-examination. He testified that, immediately before hegot Mr. Smith to unlock the door to Room 861, he heard Sergeant Ferry yell “gun”. He entered and saw the defendant in cuffs standingat the base of the two beds. [27] Sergeant Hayward saw the gun in the defendant’s hand, as he lay on the floor.

The evidence shows that a sheet drapedfrom the bed touched and partially covered that hand, but there is no reason to believe Sergeant Hayward could not see a part of the gun. [28] I acknowledge that the difference in the evidence of Sergeant Hayward and Constable Manserra as to whether SergeantHayward was “struggling” with one of the other men in the room is puzzling, but it does not concern the issue in the case—possession ofthe gun. [29] I turn to Sergeant Ferry’s evidence, and begin by observing that the alleged inconsistency in his evidence is not

significant, even if accepted. According to the defence, the officer’s notes indicate that he first saw the gun in the defendant’s hand when he was attempting to hide it, by pushing it under the bed. If that was the case, the defendant would still be legally in possession of the gun. [ 30 ] However, I do not accept that the officer’s notes on this point establish an inconsistency. It is expecting too much to think that the syntax used in notes written at 4:30 n the morning after a highly stressful experience will achieve academic perfection.

It is believable that the officer, when he wrote “I see male between bed lay on ground”, intended to note the action of the defendant going to the floor, rather, as asserted by the defence, the state of the defendant already lying on the floor. [ 31 ] Sergeant Ferry’s evidence was clear on what he saw when he entered Room 861. He saw the defendant moving to the ground with the gun in his hand, and saw him attempting to push it under the bed.

I accept his evidence on this point. [ 32 ] The fact that Sergeant Ferry did not initially recall that marijuana was discovered on the table in Room 861 as well as in the bathroom I find immaterial in assessing the reliability of his evidence. Sergeant Ferry was not a SOCCO officer charged with recording the presence of items in the room. [ 33 ] The evidence presented by the Crown establishes beyond a reasonable doubt that the defendant was in possession of the gun when police entered room 861. I deal below with the specific charges faced by the defendant. Ruling on specific charges [ 34 ]

Part III of the Code deals with offices related to “Firearms and other weapons”. [ 35 ] Count 3, unauthorized possession of a firearm, is brought pursuant to s. 91(1) of the Code. Based on the evidence set out above, I am satisfied beyond a reasonable doubt that the Crown has proved all the constituent elements of this offence, and I find the defendant guilty of this offence. Count 1 appears to be a duplication of the same charge, and I dismiss that charge. [ 36 ] Count 2 is brought pursuant to s. 95 (1) of the Code.

To be found guilty, it must be established beyond a reasonable doubt that the defendant knew that he was in possession of a loaded firearm. [3] The defendant’s own evidence is that he heard the gun being racked, and he therefore was aware that it was loaded. I find the defendant guilty on this count. [ 37 ] Count 4 is brought pursuant to s. 92(1) of the Code. The offence is established if the Crown shows that the defendant was in possession of a prohibited firearm knowing that he did not possess a registration certificate.

That has been established, and the defendant is guilty on this count. [ 38 ] Counts 5 and 6 are brought pursuant to s. 86 of the Code. The offence is established if the Crown demonstrates beyond a reasonable doubt that the care used by the defendant to deal with the firearm and ammunition fell below the reasonable standard of care required to insure that no person would be endangered. On the evening in question, the defendant had ingested alcohol and smoked marijuana, and according to his own account, was feeling “wavy”.

Handling a loaded firearm with a bullet in the chamber while in that state falls below a reasonable standard of care. [ 39 ] Count 7 is brought pursuant to s. 88 of the Code, which makes it an offence to possess a prohibited device for a purpose dangerous to the public peace. The mens rea for this offence is to be analyzed on a hybrid subjective-objective test. [4] The subjective purpose of the defendant is one factor to be considered.

Then, other factors—such as the nature of the weapon, the circumstances under which a defendant has the weapon in his possession, and the actual use of the weapon-- are to be taken into account in determining whether that purpose was dangerous to the public peace. The onus is, of course, on the Crown to prove the necessary elements of the offence. [ 40 ] I have no evidence with respect to the defendant’s subjective purpose in possessing the gun. He did not use the weapon.

The Crown suggests that I can infer that his purpose in possessing the weapon was dangerous to the public peace from nature of the weapon—a prohibited magazine—and the circumstances in which it was possessed. She conceded, however, that the evidence on this count might not meet the required standard, and I agree. I acquit the defendant on this charge. Released: April 29, 2013 Signed: Justice E.B. Murray