R. v. Coburn, 2020 ONCJ 668

ONTARIO COURT OF JUSTICE CITATION: R. v. Coburn , 2020 ONCJ 668 DATE: 2020 08 21 COURT FILE No.: Brampton 3111 998 18 128 BETWEEN: HER MAJESTY THE QUEEN — AND — EVERTON COBURN Before Justice G.P. Renwick Heard on 12, 13, 14 August 2020 Reasons for Judgment released on 21 August 2020 S. Nakib................................................................................................. counsel for the Crown E.

Willschick.................................................. counsel for the defendant Everton Coburn RENWICK J.: INTRODUCTION [ 1 ] The Defendant is charged in a seven-count Information with the unlawful possession of a firearm and related offences. At the start of the trial, the prosecutor withdrew the s. 92(1) offence in order to proceed summarily on all remaining counts.

This decision will only discuss the remaining six offences alleged on the Information (contrary to ss. 86(1) x2, 88(1), 91(1), 94(1), and 95(1) of the Criminal Code ). [ 2 ] Three police witnesses testified for the prosecution, as did a witness qualified to give opinion evidence concerning deoxyribonucleic acid (“DNA”) found on the firearm recovered from the vehicle the Defendant had been operating. The Defendant testified on his own behalf. There were several agreed facts that also formed the evidential landscape of this brief trial. [ 3 ] For the most part, the prosecution’s case was not challenged.

There is no issue that the Defendant parked his former girlfriend’s Honda motor vehicle outside of the 52 nd Street Grill, he entered the bar, after a short time he returned to the car, he removed a handgun and a magazine containing 10 live rounds of ammunition for the weapon from the glove compartment, he replaced the handgun into the glove compartment, he failed to close the glove compartment, he left the loaded ammunition magazine on the front passenger seat, he had one projectile (bullet) in his satchel when he returned inside the bar, and subsequently, as the Defendant and his former girlfriend returned to her car they were arrested by police. [ 4 ] The Defendant disputes that he possessed the firearm with the requisite mens rea (mental state) to be found guilty.

In addition, the Defendant submits that once he realised that the firearm in the glove compartment was real, he abandoned the firearm and ammunition in the vehicle and he locked the vehicle. Then, he went inside the bar to confront his former girlfriend about what he had found.

[5] The parties did not make specific submissions about each individual count on the Information. Rather, they argued that this wasan “all or nothing” type of case: either the Defendant is guilty or not guilty of all of the remaining charges. ISSUES [6] Although the issues were not neatly summarized by the parties, I find that the trial involved the following issues for resolution: i. Did the Defendant possess the firearm with the requisite mental state to establish the offence; ii. Does the Defendant’s evidence raise a reasonable doubt about his mental state; and iii.

Has the prosecution proved the offences charged, beyond a reasonable doubt? GENERAL LEGAL PRINCIPLES[1] [7] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonabledoubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trialunless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. The prosecution’s burden of proof nevershifts during the trial.

In this case, if at the end of my consideration of the evidence and submissions I am not satisfied that theprosecution has proven any element of an offence charged beyond a reasonable doubt, the Defendant will be acquitted of that charge. [8] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logicallyderives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet thecriminal standard, proof to an absolute certainty is inapplicable and unrealistic.

The Supreme Court of Canada has cautioned that there isno mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance ofprobabilities.[2] If after considering all of the admissible evidence I am sure that the Defendant committed the alleged offence I mustconvict him, since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt.

Likewise, if I am not sure, then I have areasonable doubt and an acquittal must follow. [9] The two essential elements of the offence of possession are: control over the item; and knowledge of the presence of the item.Possession involves actual possession, constructive possession, or joint possession of the item by more than one person, with the other’sconsent. [10] Actual possession means physical custody of something on one’s person or within one’s possessions.

Constructive possessionexists where an item is not physically on the person, but nonetheless the person has knowledge of where the item is kept and has anability to access and control the possession of the item. Joint possession involves knowledge of the existence and location of an item bymore than one person, or possession of the item by one person on behalf of another person or persons.[3] [11] A person who knowingly has something in their actual possession or the custody of someone else, or in a place for his or herbenefit is said to possess the item, provided he or she has some control over the item.

Knowingly means the person is aware of the itemin the custody of someone else, or in another place, and the person does not act through ignorance, mistake, or accident. To decide if theDefendant acted knowingly, I may consider the evidence of his words, actions, or omissions, along with all of the other evidence.[4] [12] Two people may have possession of an item at the same time. Where each person, with the knowledge and agreement of theother, has anything in his or her possession or custody, both of them are considered to be in possession of the item, provided that each hassome control over it.

Knowledge, agreement, and some control by another who is not in actual possession of the item is essential in orderto find that person has possession of the item. Mere indifference, recklessness, or doing nothing is not enough.[5] [13] The element of knowledge can be inferred from evidence of actual possession, constructive possession, or joint possession, butbecomes less likely the more remote the connection between the location of the item and the individual.

Drawing inferences to establishknowledge “becomes more difficult if the contraband is hidden or not otherwise in plain sight.”[6] [14] Knowledge can also be proven by evidence of actual knowledge or wilful blindness. Recklessness is not sufficient. [15] Control over an item will not generally be inferred from mere knowledge of the existence or location of an item. Rather, controlexists where there is a measure of access and authority to restrict or permit access, or to direct or restrain the use of the item. Possessionwithout control is insufficient to prove the offence.

The mere handling of an item is not proof of control or the intention to possess theitem.[7] [16] The prosecution’s evidence of the Defendant’s mental state when he possessed the firearm is circumstantial.[8] In order to besatisfied that the Defendant possessed the handgun with the requisite mens rea, beyond a reasonable doubt, I must be satisfied that it isthe only reasonable inference available on all of the evidence.[9] In assessing the case, I must consider the evidence cumulatively and asa whole.

Given that each circumstantial piece of evidence may be insufficient on its own to support the required inference, I mustconsider all of the individual pieces of evidence together to determine whether the prosecution has met its burden. “[T]he mere existenceof any rational non-guilty inference is sufficient to raise a reasonable doubt.”[10] [17] This case raises credibility issues. Given this, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] S.C.J. No. 26, as it is now understood. I rely heavily upon the

article written by Paciocco J.A.entitled, “Doubt about Doubt: Coping with R. v. W.(D.) And Credibility Assessment” found at 2017 22 Canadian Criminal Law Review31. Justice Paciocco deconstructs the W.(D.) principles into 5 propositions: (

i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;

(ii) If I believe evidence that is inconsistent with the guilt of the defendant, I cannot convict the defendant; (iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the defendant must be acquitted; (iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and (

v) Even where I entirely disbelieve evidence inconsistent with guilt, the defendant should not be convicted unless the evidence that is given credit proves the defendant’s guilt beyond a reasonable doubt. [ 18 ] In the next part, I will outline some of the evidence. Although many of the facts were agreed as proven by the parties, the weight or significance of each fact is a determination that I must make. I will also provide an assessment of some of the viva voce testimony, with references to some of the evidence taken.

Although I may not refer to all of what a witness said, I listened to each witness carefully and I have assessed the witness’ testimony for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and the witness’ ability to observe, recall, and communicate. THE EVIDENCE AND FINDINGS OF FACT [ 19 ] There were many admissions concerning the firearm, the Defendant’s lack of any authorization to possess a firearm, the continuity of the exhibits, the photographs taken by other officers, and the Defendant’s DNA found on the firearm.

There was no evidence respecting the operability of the firearm with the ammunition near it or the single round discovered in the Defendant’s satchel. [ 20 ] Daniel Matlashewski testified that he is a police constable who made the initial observations of a man (who is now known to be the Defendant) as he parked the Honda from which a firearm and ammunition was eventually discovered by police in the early morning in question. The officer was in plainclothes operating an unmarked vehicle. [ 21 ] The officer testified that he saw the male alight from the driver’s seat of the Honda.

The male was observed to fidget with his waistband, he appeared nervous and he looked around and appeared to see the police officer sitting in his unmarked police vehicle. Given that the officer believed that he had been “made” (discovered to be a plainclothes police officer) he decided to query the license plate and leave the area, minutes after 1:33 am. [ 22 ] As Constable Matlashewski left he could not tell if another occupant was in the passenger seat of the Honda, however, he testified that he had made an observation of the male walking towards the entrance of the bar.

The officer was asked in his examination in chief if the male was walking alone or with anyone. He testified: “I believe he was alone, but I cannot say for certain.” [ 23 ] Eventually, this officer heard on the police radio that other police officers had observed a firearm and ammunition while looking into the Honda through the front passenger window. Constable Matlashewski returned to the parking lot where he had first observed the Honda, and he gave the other officers on scene a description of the male he had seen exiting the Honda approximately 20 minutes earlier.

Given that the bar was soon closing, this officer was directed to wait near the entrance of the bar to attempt to locate the male he had seen leaving the Honda. [ 24 ] On the whole, I accept without question the evidence of this witness. For the most part, Officer Matlashewski was not challenged by other evidence or during cross-examination. His evidence was unadorned and without exaggeration or estimation. The only area of his evidence which was challenged during cross-examination was whether he had seen the face of the Honda driver. [ 25 ] Taurean O’Neil was the next witness.

A police officer of about three years at the time of this incident, he was the first officer to notice the ammunition magazine on the front passenger seat of the Honda while using a flashlight to check vehicles for signs of alcohol consumption. Once he realised that there appeared to be a magazine containing live rounds of ammunition, he also noticed that the glove compartment was open and what appeared to be a firearm within, resting on top of the owner’s manual.

The officer believed that the Honda was locked based on the position of the locking mechanism he saw across the vehicle on the driver’s door, but Constable O’Neil candidly admitted that he did not try to open any of the car doors, nor did he make the same observation of the front passenger door lock. [ 26 ] Lastly, Constable O’Neil testified about an apparently spontaneous utterance made by the Defendant after he had been given his s. 10 (

b) Charter rights and cautions about speaking to the police at the scene, while awaiting the booking procedure at the police station. The Defendant allegedly said, “I wish I never got someone else in this situation.” [ 27 ] At the start of the trial, counsel for the Defendant drew my attention to an Edgar Application which had been filed in advance of the trial. [11] The Defendant had applied to lead utterance s he had made “upon arrest.” It was unclear if the utterance heard by Constable O’Neil was part of the Edgar Application.

This utterance was not contained within the Defendant’s written Application to adduce his statements. The statement, while spontaneous in the sense that it was made without prompting, did not come when the Defendant first learned of his arrest. In the end, I find that this statement was not a part of the Defendant’s Edgar Application, and if I am mistaken on this point, the utterance could not be admissible under the rule in Edgar in light of when it was said and the contents of the utterance itself. [ 28 ] There was no issue taken with the voluntariness of the utterance made to Constable O’Neil.

In light of how the Defendant had been treated upon arrest, the lack of any challenge to the voluntariness of the statement “I wish I never got someone else in this

situation,” and the timing of the utterance (that is to say, after the Defendant had been given his rights to counsel and two cautions about speaking to the police), I find that this statement was voluntarily made, beyond a reasonable doubt. [ 29 ] The evidence of Constable O’Neil was not challenged at all. In fact, this witness was only asked a few questions in cross- examination.

Given the straightforward and unembellished manner in which Constable O’Neil gave his testimony and the lack of any challenge to it, I accept as fact all of the evidence provided by Constable O’Neil. [ 30 ] Detective Scott King testified next. He heard the police radio call concerning the discovery of a firearm in a car and he attended the scene to take photographs and assist. His evidence confirmed much of what was observed by Constable O’Neil.

The detective testified that he checked that the Honda’s doors were all locked. [ 31 ] At about 2:56 am, Detective King observed a female approaching the Honda carrying the same style of jacket Constable Matlashewski had observed the male driver wearing. She also carried a satchel. Again, this was something the police were advised that the male had possessed when he was first observed by Constable Matlashewski. [ 32 ] Detective King observed that as she approached the driver’s side of the Honda, the female reached into the satchel.

Accompanying the female, was a male who matched the general description given by Constable Matlashewski of the driver he had seen from 1:33 to 1:37 am. This male was approaching the passenger side of the Honda. Detective King stopped the two and arrested the male.

The female was also arrested. [ 33 ] It was agreed by the parties that the Defendant was the same male first observed by Constable Matlashewski and later arrested by Detective King. [ 34 ] The Defendant’s Edgar Application was brought in relation to an utterance allegedly said as the Defendant was being taken into custody: “Naomi, they’re not allowed in the car, don’t worry.” The prosecutor made no submissions on the Edgar Application. [ 35 ] Accordingly, I find that the statement is admissible as proof of the state of mind of the Defendant.

I accept that the statement is proof that the Defendant knew that “Naomi” (the female who owned the Honda) was aware that there was a firearm and ammunition in her glove compartment. [ 36 ] In the satchel in one area, the detective located a pink cell phone, a phone adapter, the keys to the Honda, and lipstick. In another part of the satchel, police located $15 in currency, the Defendant’s passport, and a single round of ammunition similar in size and colour to the ammunition found within the magazine on the Honda’s front passenger seat.

The Defendant was arrested in possession of a cell phone. [ 37 ] Again, there was no real issue taken with much of this officer’s testimony. His cross-examination only lasted for seven minutes and sought to clarify much of the evidence rather than challenge it. [ 38 ] During his testimony, the Defendant confirmed Detective King’s observation that he had walked Naomi to her car as she carried the Defendant’s jacket and satchel. The Defendant testified that he intended to talk to her through the passenger window.

This evidence confirmed Detective King’s observation that the Defendant was heading to the passenger side of the car when he was arrested. [ 39 ] Again, on the basis that it was unchallenged or rebutted by other evidence, I accept all of Detective King’s evidence as credible and reliable. [ 40 ] The DNA expert testified that the Defendant could not be excluded as the major contributor of the DNA found on the firearm.

The DNA analysis also revealed that there was at least one other person’s DNA on the firearm, however, because of the limited amount of DNA it could not be determined if more than one other person had deposited DNA on the weapon, or the gender of the minor contributor(

s) of the DNA.

The expert opined that it was one trillion times more likely that the major source of DNA found on the handgun came from the Defendant rather than someone else. [ 41 ] The expert witness could not determine how the Defendant’s DNA may have been left on the firearm, how long it had been there, or if the Defendant had handled the firearm, whether the duration of his handling of the weapon was fleeting or substantial. [ 42 ] In the end, in light of the agreed facts, the expert evidence was conceded by both parties. [ 43 ] The Defendant was the only witness who testified for the defence. [ 44 ] Overall, he was not an impressive witness.

In several parts, the Defendant paused before answering. His memory was imprecise and at several points the Defendant’s testimony was inconsistent. [ 45 ] One example of the fluctuating memory of the Defendant was revealed when he could not remember the year that he had broken up with Naomi Robinson. The Defendant vacillated several times when discussing the year of their break up [ 46 ] A second example was the single bullet he said he brought into the bar. At one point in cross-examination the Defendant testified as follows: Q: The bullet that you had confronted her with, you placed that back into your satchel?

A: Hmm. I don’t remember. Q: You don’t remember? A: I don’t remember, exactly where I put it.

Q: The bullet’s pretty important wouldn’t you say? A: Ya. Q: You brought the bullet back inside the club… A: Ya. Q: …because you wanted to confront Naomi with that. That’s basically almost, you could say evidence, that you know, that there’s something in her vehicle. Is that correct? A: Ya. Q: So the bullet’s pretty important to…you wouldn’t just leave it on the floor… A: No. Q: …or leave it on the table or something like that? A: No. Q: So, it probably makes sense for you to keep the bullet with you or near you, is that correct? A: Um, I guess. Q: Sorry? A: I guess. Q: You guess?

A: Are you ask…I’m not sure what your question is. Q: The question is, you put the bullet back, the question is, did you put the bullet back into your satchel? A: Yes. [ 47 ] At another point in cross-examination, the following exchange occurred: Q: I’m going to suggest that when you leaned back into the car you grabbed your satchel and you slung it over your right shoulder, so that it laid on your left hip. A: I don’t remember. Q: You don’t remember… A: No. Q: …grabbing your satchel, and putting it over yourself? A: From when I was leaving, the car. Q: When you were first, initially, leaving the car? A: Yes.

Q: So you do remember grabbing the satchel… A: Yes. Q: …and putting it over you. [ 48 ] Lastly, there was some uncertainty in the Defendant’s evidence toward the end of the Defendant’s cross-examination: Q: And you were concerned about her and you were going to let her go back into her vehicle with the loaded magazine and the firearm and let her drive in that? A: I’m not sure, we didn’t get there. Q: What do you mean you’re “not sure?” A: I’m not sure. As we got to the vehicle we got arrested, so, I’m not sure. Q: Well, you said you were concerned about her. A: Yes.

Q: And you were concerned about her having a firearm... A: Yes. Q …and her having a loaded magazine. Is that correct? A: Yes. Q: So you were concerned? A: Yes. Q: So, where is this uncertainty? Where is this, why are you now saying you’re not sure, as to her going back into that vehicle with that firearm, with that gun? A: I’m not understanding what you’re saying right now. To be honest. Q: Okay. It’s okay. We’ll move on. [ 49 ] However, other parts of the Defendant’s evidence bolstered his credibility. At times, the Defendant was entirely candid with the court.

He admitted during his examination in chief that he was driving without a valid driver’s licence that morning. He was equally candid that he was in possession of “weed” and he “rolled a blunt” that he wanted to smoke when he first entered the bar. [12] The Defendant also testified that despite that it was unmarked, he knew that the vehicle he saw when he parked the Honda was a police car, because of its “antennas.” The Defendant also admitted that he handled the firearm and the ammunition magazine that he claimed to have found in the Honda’s glove compartment.

Also, he testified that he knowingly brought a bullet into the bar in his satchel, having passed security, without advising them. Lastly, the Defendant testified that as he left the bar and walked to the Honda, despite that it was winter and he was not intending to go home with Naomi, she carried his jacket and his satchel. [ 50 ] I have accepted as accurate parts of the Defendant’s testimony. On the basis of the Defendant’s evidence, I have made several findings: i. I find as a fact that the Defendant did not approach the bar with the firearm in his satchel.

I accept that the Defendant was walking toward the bar with his passenger, the Honda’s owner, Naomi Robinson; ii. I accept that the Defendant returned to the Honda to search for his lighter, several minutes after he was first observed to have parked and walked toward the bar; iii. I accept that the Defendant could not find his lighter and he took the magazine out of the glove compartment while looking for his lighter; iv. I find that the Defendant simply forgot to return the magazine to the glove compartment and to close the compartment door before returning to the bar; and v.

I accept that the Defendant felt remorse for having caused Naomi’s arrest. [ 51 ] There were also parts of the Defendant’s testimony that lacked credibility. The Defendant gave no explanation for why he decided to open the glove compartment of his former girlfriend’s car on the night of their reunion to search for his lighter. Moreover, upon discovering that there was a firearm and ammunition in the glove compartment, the Defendant testified that he was “shocked.” Despite this shock, he decided to pick up the gun.

Before leaving the Honda, the Defendant took the single round of ammunition he claimed to have seen loose, in the corner of the glove compartment, in order to confront Naomi. Then, he waited several minutes before talking to her, and when they spoke, he initially asked about the new man she was seeing before discussing the firearm. He also admitted that he had obtained a drink after returning to the bar before confronting her about the handgun. [ 52 ] This entire explanation concerning the Defendant’s inadvertent discovery within the glove compartment is incredible.

It makes no sense that the Defendant, someone who had never handled or touched a firearm in his life, decided to handle the gun he saw in the glove compartment, simply to confirm that it was what it appeared to be. Moreover, why did he have to follow that up by picking up the magazine which clearly contained at least one live round of ammunition? Furthermore, how did he see one loose bullet in the glove compartment? And why would he need to bring the bullet to confront Naomi about this shocking discovery, when he did not believe that she would possess a firearm.

Why would he take the chance that security may not let him back into the bar? The narrative about waiting a few minutes, getting a drink, and asking her first about her new beau completely undermines the Defendant’s purported disbelief and shock that Naomi would have a handgun and bullets in her car. The story about bringing the bullet into the bar to confront Naomi is a weak explanation for its presence in his satchel.

I find that the Defendant’s fictionalized account was designed to explain the presence of the Defendant’s DNA on the firearm and the loose bullet he carried around in his satchel. [ 53 ] Also, I do not believe that part of the Defendant’s narrative that he was intending to leave that night with his friend of two years, Jamal. The Defendant could not provide the last name of Jamal, nor did he have his phone number, “right now.” [ 54 ] In submissions, counsel for the Defendant suggested that Naomi had held onto the Defendant’s jacket and satchel as a way to persuade the Defendant to leave with her.

There was a complete dearth of evidence to explain why she carried the Defendant’s jacket and his satchel, which contained some of her possessions (car keys for the Honda, her cell phone and adapter, and her lipstick), if he was not leaving with her. I reject this submission as speculative and unlikely. Instead, I find that when the Defendant left the bar with Naomi, he intended to enter her Honda and leave together, as her passenger. [ 55 ] Lastly, I reject as false the Defendant’s explanation that he spontaneously said, “I wish I never got someone else in this

situation,” because if he had never opened the glove compartment, Naomi would not have been arrested. Instead, I find that theDefendant was truly remorseful that he had exposed Naomi to criminal liability by having put a firearm and ammunition in her car. [56] I conclude that the Defendant has been untruthful to the court about his knowledge of the firearm in the glove compartmentbefore he initially went into the bar.

On all of the evidence, I am satisfied that the Defendant knew that the handgun and ammunitionwere in the glove compartment because he had placed these items there when he first got into the Honda to drive to the bar. This wouldalso explain the Defendant’s statement, “Naomi, they’re not allowed in the car, don’t worry.” I conclude that Ms. Robinson was alsoaware of the presence of the handgun that was found in her car, because she saw the Defendant place the gun and ammunition in theglove compartment when she had picked him up.

The bullet found in the Defendant’s satchel also supports a finding that the firearm hadalso been brought to the car by the Defendant. [57] I find that this is the only explanation that accounts for all of the evidence and the Defendant’s subterfuge before the court. ANALYSIS [58] Justice Hill appropriately summarized this type of case in R. v. Anderson-Wilson, 2010 ONSC 489 , [2010] O.J. No. 377(S.C.J.) at para. 74: Possession cases are fact-driven inquiries. Where proof is dependent upon circumstantial evidence, some facts will have more probativevalue than others.

It is the cumulative effect of relevant circumstances which must be assessed in determining whether proof beyond areasonable doubt exists. [59] To prove possession of the firearm, beyond a reasonable doubt, the prosecution must prove that the Defendant knowinglypossessed the firearm, with an intention to possess it.

If I am left in a state of reasonable doubt about the Defendant’s knowledge that theitem was a firearm when he left his DNA on it or his intention to knowingly possess the firearm, I cannot convict him of the firearmpossession offence. [60] Given my reservations with the plausibility and the reliability of the Defendant’s evidence, I reject his testimony in thecontentious parts as contrived and untrue.

I am not left in any doubt by the Defendant’s evidence that he knowingly possessed thehandgun discovered by police with the requisite intention to possess it without the lawful authority to do so. [61] Similarly, the remainder of the evidence does not leave me in a state of reasonable doubt that the Defendant had left the firearmin the Honda after he knowingly, and with a criminal intent, possessed the firearm.

Instead, I am satisfied beyond a reasonable doubt thatthe Defendant’s DNA was left on the firearm when he placed the gun in the glove compartment or at a time before he entered the Hondathat evening, when he initially had unlawfully possessed the handgun. [62] There is no doubt that the ammunition and firearm were stored carelessly, in plain view in the Honda motor vehicle. Although thevehicle was locked, it was not reasonable to leave these items where they could be seen and easily removed (by breaking the window) byany passerby.

Although the evidence does not establish beyond a reasonable doubt that the ammunition was capable of being fired by thefirearm, nor was there any evidence that the magazine could fit into the well of the firearm, on the basis of the photographs, there is nodoubt that the ammunition was unspent and is dangerous in and of itself. [63] I cannot conclude to the criminal standard the purpose for which the Defendant possessed the firearm.

He may be a collector orsomeone who likes the power and danger of the weapon with no intention to possess it for a purpose dangerous to the public peace or forthe purpose of committing an offence. [64] I am not left in any reasonable doubt that the Defendant was an occupant of the Honda when he knew that the firearm he broughtwith him was either a prohibited or restricted firearm that he was not authorized to possess. Subsection 94(3) of the Criminal Code doesnot apply to this case. I find that the Defendant did not abandon the firearm in the Honda as suggested by his counsel.

Rather, theDefendant used the car to store the handgun while he was inside the bar. The keys to the Honda found within the Defendant’s satchelsupport a finding that at all times the Defendant maintained control over the vehicle within which he stored the firearm. CONCLUSION [65] The Defendant is guilty of the following offences: i. Careless storage of a firearm (s. 86); ii. Careless storage of ammunition (s. 86); iii. Possession of a prohibited or restricted firearm (s. 91); and iv.

Possession of a prohibited or restricted firearm in a motor vehicle (s. 94). [66] The Defendant is not guilty of possession of a firearm for a dangerous purpose (s. 88) and possession of a firearm with readilyaccessible ammunition (s. 95). Released: 21 August 2020

Justice G. Paul Renwick [11] See R . v. Edgar , 2010 ONCA 529 .