R v Palcon, 2023 ABCJ 167

In the Alberta Court of Justice Citation: R v Palcon, 2023 ABCJ 167 Date: 20230721 Docket: 200055044P1 Registry: Calgary Between: His Majesty the King - and - Ariel Rosales Palcon Decision of the Honourable Justice B.C. Stevenson [ 1 ] On December 19, 2022, I conducted a trial on a charge under section 95(1) of the criminal code – possession of a prohibited or restricted firearm with ammunition. [ 2 ] Mr. Watson appeared for the crown; [ 3 ] Ms. Chernos appeared for the accused.

Background [ 4 ] The accused was found in his car in an alley in Northeast Calgary at 4 a.m. [ 5 ] The vehicle was parked behind a house that was known to the police to have a history of illegal activity in the past. [ 6 ] There was a passenger in the car with him. [ 7 ] There were outstanding traffic warrants against the accused, so the police had reasonable grounds to arrest him. [ 8 ] When the accused was unable to confirm his identity, he was arrested and searched. [ 9 ] In his vehicle, within a small green zip-up purse, was found cash, drugs and a 9 mm Speer luger bullet.

[10] The police then searched the vehicle and found a 9mm Ruger SR9 handgun with a magazine containing five live rounds of9mm ammunition in the glove compartment. They also found two woman’s watches, an Alberta Drivers Licence, receipts, cheques madeout to other persons, documents for other individuals, key fobs for other vehicles, three smartphones, various keys, and sundry otheritems. [11] An analyst with the Calgary Police Service Firearms Support Team certified that the handgun found in the glove compartmentwas functional, that it met the definition of a firearm in

section 2 of the Criminal Code, and that it was in the restricted firearms class asper the definition of a restricted firearm in

section 84 of the Criminal Code. [12] The Crown also produced a sworn affidavit that stated that as of the date of the arrest of the accused (October 1, 2019) therewas no record of a firearms licence issued to the accused. [13] As well, the Crown produced three certificates of an analyst showing that the drugs seized were Methamphetamine, Heroin,Fentanyl, and MDMA. [14] No evidence was presented by the defence. Issue: [15] Does the crown evidence prove, beyond a reasonable doubt, that the accused, in law, possessed the firearm and loadedmagazine?

Submissions of Counsel Crown [16] In R v Morelli (2010), 2010 SCC 8 , 1 S.C.R. 253, the Court states at paragraphs 15 - 17: “15. For the purposes of the Criminal Code, “possession” is defined in s. 4(3) to include personal possession, constructive possession,and joint possession. Of these three forms of culpable possession, only the first two are relevant here. It is undisputed that knowledgeand control are essential elements common to both. 16.

On an allegation of personal possession, the requirement of knowledge comprises two elements: the accused must be aware that sheor he has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with anact of control (outside of public duty): Beaver v. The Queen, (SCC), [1957] S.C.R. 531, at pp. 541-42. 17.

Constructive possession is established where the accused did not have physical custody of the object in question, but did have it “inthe actual possession of another person” or “in any place, whether or not that place belongs to or is occupied by him, for the use orbenefit of himself or another person” (Criminal Code, s. 4(3)(a)).

Constructive possession is thus complete where the accused: (1) hasknowledge of the character of the object, (2) knowingly puts or keeps the object in a particular place, whether or not that place belongs tohim, and (3) intends to have the object in the particular place for his “use or benefit” or that of another person.” [17] And, later, in Morelli, at paragraphs 137 - 138: 137. “A finding of actual possession within the meaning of s. 4(3)(a)(

i) of the Criminal Code requires proof, among other things, thatthe person had physical control over the object, however brief that control may have been. As Doherty, J.A. stated in R v Chalk (2007),ONCA 815, at paragraph 19: 19. “The Crown must also prove that an accused with the requisite knowledge had a measure of control over the item in issue.

Controlrefers to power or authority over the item whether exercised or not: R v Mohamad (2004), (ON CA), 69 O.R.(3d)481, at paras. 60-61: See also R v Terrence (1983), (SCC), 1 S.C.R. 357; R v Hess, (No. 1) (1948), (BC CA), 94 C.C.C. 48(B.C.C.A.), approved in Beaver v The Queen (1957), (SCC), S.C.R. 531. [18] Again, turning back to Morelli (supra), at para. 138: 138.

The same element must be found in the case of constructive possession (s. 4(3)(a)(ii) of the Criminal Code): a person is inconstructive possession if she or he has control – power or authority - however briefly, over an object located in a place (or space) –whether or not that place (or space) belongs to the person – for the use or benefit of the person or of a third person. Control is at issue inthe case at bar.” [19] Mr.

Watson submits that based on the decision of the Supreme Court of Canada in R v Villaroman (2016), 2016 SCC 33, 1 S.C.R. 1000 sets out the principle that “possession” can be found from circumstantial evidence.

At para. 37 of the decisionthe court states (in part): “I agree with the appellant that the Crown thus may need to negative these other reasonable possibilities, but certainly does not need to“negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused”: [20] R v Bagshaw, (SCC), [1972] S.C.R. 2 at p. 8 “other plausible theories” or “other reasonable possibilities”

must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation”. [21] Mr. Watson references the Alberta Court of Appeal’s decision of R v Dipnarine (2014), ABCA 328 that precedes Villaromanand states similarly at para. 42: “…..exclude other conceivable inferences”; the trier of fact should not act on alternative explanations that are not reasonable; and thatalternative

interpretations must be reasonable, and not simply possible….” [22] And further, at paragraph 50: “When dealing with the defence position, the judge correctly stated the law, in my opinion. The judge properly noted that “the accusedcannot ask this Court to rely on supposition or conjecture that flows from a purely hypothetical narrative to conclude that the Crown hasnot proven he is guilty of the offences with which the crown has charged him”: para 47. The judge’s citation of McIver was intended to make the same point, i.e. that a reasonable doubt cannot arise from speculationor conjecture.

This is perfectly correct. As the Crown said in Lifchus , “a reasonable doubt must not be imaginary of frivolous”: need not be proof to anabsolute certainty; and must be based on “reason and common sense”: paras. 31 and 36. The burden on the Crown does not extend to “negativing every conjecture”…….” [23] Mr. Watson also references R v Chin (2014), ABCA 11 where a concealed loaded handgun was found in a vehicle owned andoperated by the accused. [24] At paragraphs 43 and 44 the court states: “[43] Certainly the box containing the gun was plainly visible once the hood of the Escalade was opened.

It would be, at best, nothingmore than “fanciful conjecture” to suppose that either the previous owner, or some stranger to the vehicle itself, would have placed thebox with the gun in the vehicle’s engine compartment.” [44] Therefore, the only rational inference that can be drawn by the trial judge was that the appellant had possession of the handgun inquestion. Accordingly, we find that the trial judge’s decision was a reasonable one and we therefore dismiss this ground of appeal.” [25] Several other decisions were referenced by Mr.

Watson on the issue of constructive possession – • R v Nicholson, 2011 ABCA 218 (paragraph 9) • R v Bransford, 2019 BCCA 408 (paragraphs 24 and 25) • R v Habte, 2020 ABCA 476 (paragraph 30, 35-38) • R v Oddleifson, 2010 MBCA 44 (paragraphs 25-27) • R v Vernelus, 2022 SCC 53 (paragraphs 5 and 6 (in part) [26] In Oddleifson, the Manitoba Court of Appeal States: “[25] What use can be made of the accused’s failure to testify, when the Crown’s case cries out for an explanation?

In this case, becausethe Crown was relying on expert and circumstantial evidence with respect to the element of possession, it had to satisfy the trial judgethat the only reasonable or rational inference that could be drawn from the proven facts was that the accused had knowledge and controlover the cocaine (see R. v. Griffin, 2009 SCC 28, [2009] S.C.R. 42 at para. 33; R v Guiboche, 2004 MBCA 16, 180 Man .R. (2d) 276 atparas. 108-10; R v Fleet (1997), (ON CA), 120 C.C.C. (3d) 457 (Ont. C.

A.) At para. 20; and R v Cooper, (SCC), [1978] 1 S.C.R. 860).” [26] “In the case at hand, once the Crown had closed its case, it had, in my view, met this burden. It cried out for an explanation. At thatpoint, the accused had a choice. As was stated by L’Heureux-Dubé, J. in R v Cook (1997), (SCC), 1 S.C.R. 1113 atparagraph 39, “….Once this threshold has been surpassed , however, it is up to the accused to call evidence or face conviction…”.Unlike the co-accused, the accused chose not to lead evidence.

It is trite to say that the accused’s failure to testify cannot be used as asword; it cannot be used to infer guilt. However, as a practical matter, that failure to testify equates to an absence of evidence, evidencewhich could have been used to help support the accused’s argument that the Crown has not met its burden and that the accused, like theco-accused, may also have been a dupe.

Although the accused had the right not to testify, that decision carried the risk of not providingthe trial judge with the necessary evidentiary foundation which, if accepted, could have precluded the inference of possession from beingdrawn. Arbour J. A. (as she then was) said it best in this often-cited passage found in R v Johnson (1993), (ON CA),79 C.C.C. (3d) 42 (Ont C. A.). “….

It is not so much that the failure to testify justifies an inference of guilt; it is rather that it fails toprovide any basis to conclude otherwise….” (at para. 27). [27] The preceding paragraphs explain the use that can be made of the accused’s failure to testify when the Crown’s case cries out for anexplanation. Defence [27] Ms. Chernos, in her submissions, argues that the Crown’s evidence does not prove, beyond a reasonable doubt, that the

accused had knowledge, consent, or control over the firearm, all of which are required for the court to find guilt. [ 28 ] She submits that R v Anderson-Wilson (2010), ONSC 489 is applicable to the facts here. [ 29 ] That decision sets out three things to consider when drawing an inference of possession– − Physical proximity to the accused − The degree of visibility to the accused, and − The degree of communal use of a vehicle [ 30 ] Ms.

Chernos argues that the firearm was located in the glove compartment on the passenger side of the vehicle, so it was not in proximity to the accused. [ 31 ] Further, it was inside another purse that was sealed, so there could be no visibility to the accused made out. [ 32 ] Third, while there was no direct evidence concerning communal use of the vehicle, miscellaneous items found in the vehicle with other person’s names on them should lead the Court to find there was clearly communal use of the vehicle. [ 33 ] She specifically points out that there were identification documents found within the purse where the firearm was located that belonged to other persons. [ 34 ] Ms.

Chernos also points out that the evidence of the police officers about finding a bullet that could be used by the firearm on the person of the accused was not reliable, as the evidence from the officers who conducted the search of the accused was somewhat contradictory vague.

Analysis [ 35 ] The accused was the registered owner of the vehicle wherein the firearm was discovered. [ 36 ] The Ruger 9mm handgun found in the accused’s vehicle is a restricted firearm, and the accused did not have a license to possess it, nor any authorization or registration certificate for it. [ 37 ] A single round of ammunition suitable for use in the firearm was found in the small green zip up purse mentioned in paragraph 9. [ 38 ] There is no evidence that the vehicle was occupied or driven by anyone other than the accused. [ 39 ] Based on all the circumstances, I am satisfied that in the absence of any other evidence, the Crown has proven actual or constructive possession of the handgun by the accused. [ 40 ] I do not draw the inferences that Ms.

Chernos suggests about “communal use” due to other materials found in the vehicle. Verdict [ 41 ] I find the accused guilty. [ 42 ] He is guilty. Delivered Orally on the 28 th day of June, 2023. Dated at the City of Calgary, Alberta this 21 st day of July, 2023.

B.C. Stevenson A Justice of the Alberta Court of Justice Appearances: Alexander Watson for the Crown Hanna Chernos for the Accused