R v Morin, 2021 SKCA 3

Court of Appeal for Saskatchewan Docket: CACR3340 Citation: R v Morin , 2021 SKCA 3 Date: 2021-01-12 Between: Her Majesty the Queen Appellant And Jordan Kane Morin Respondent Before: Jackson, Barrington-Foote and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Barrington-Foote On appeal from: CRM 109 of 2019, Queen’s Bench, Saskatoon Appeal heard: December 1, 2020 Counsel: Dean Sinclair, Q.C., for the Appellant Christopher Gratton for the Respondent Tholl J.A. I.

Introduction [ 1 ] Jordan Morin was a passenger in a vehicle in which a loaded, sawed-off shotgun was located by the police during a traffic stop. A shotgun shell was found in a subsequent search of his clothing. He was charged with several offences in relation to the firearm and ammunition. At the conclusion of the trial, he was acquitted of all charges except for the possession of one shotgun shell.

The Crown appeals the acquittals asserting that the trial judge erred in his application of the law related to possession by not considering the evidence in its totality, by applying the standard of proof beyond a reasonable doubt to individual pieces of evidence and by requiring proof of possession for a charge that did not require such proof. Mr. Morin resists each of these assertions. [ 2 ] For the reasons that follow, the appeal must be dismissed. II. Background [ 3 ] On December 13, 2018, at 7:30 a.m., Cst.

Sutherland of the Saskatoon Police Service conducted a traffic stop on a two-door car after a licence plate check revealed the driver’s licence of the registered owner was suspended. The vehicle pulled over and stopped. Cst. Sutherland testified he thought he might have seen the rear driver’s side passenger, Mr. Morin, turn to the right at that point, reach down towards the spot beside where he was sitting and look back towards him. However, Cst. Sutherland’s testimony regarding his observations of any movements by Mr. Morin in the car was uncertain.

Because he was alone and his safety concerns had been heightened, Cst. Sutherland asked for additional officers to attend the scene. He approached the vehicle and saw there were four people inside it. He asked for the names of the driver, the front passenger and the rear driver’s side passenger. Mr. Morin gave a false name. After returning to his police vehicle and making some inquiries on his in-car computer, Cst. Sutherland suspected Mr. Morin had provided a wrong name. He went back to the car, spoke further to Mr. Morin and then asked him to get out and accompany him back towards the patrol vehicle. There, Mr.

Morin admitted he had not provided his true name and gave his correct one. [ 4 ] Other police officers arrived at the scene. Cst. Sutherland determined Mr. Morin was unlawfully at large and there was a warrant for his arrest so he arrested him. While Cst. Sutherland engaged with Mr. Morin outside of the car for a period of up to five minutes, the other three occupants remained inside it and their actions were not observed. After arresting Mr. Morin, Cst. Sutherland decided he would, incident to arrest, search the back seat area of the vehicle where Mr. Morin had been sitting.

The other occupants were directed to exit the car. Upon searching the rear driver’s side of the car, Cst. Sutherland found a sawed-off, 12 gauge shotgun under a red hoodie immediately beside the spot where Mr. Morin had been sitting. The shotgun was a single-shot model and was loaded with a shell. Mr. Morin was transported to the Saskatoon Police Service building where he removed his outer layer of clothing. When a special constable picked up his pile of clothes, a shotgun shell fell out. It was the same brand, gauge and length as the one found in the shotgun and was described by Cst.

Sutherland in his testimony as virtually identical to the other shell. [ 5 ] A fingerprint test on the shotgun found no prints and compromised the ability to test the firearm for DNA. A DNA analysis was conducted on the shell that had been loaded in the shotgun and it revealed Mr. Morin’s DNA, along with that of an unidentified person. Testing of the shotgun confirmed it was an operational firearm. [ 6 ] Arising out of these circumstances, Mr. Morin was charged with the following Criminal Code offences: (

a) possession of a shotgun while prohibited, s. 117.01(1); (

b) possession of shotgun shells while prohibited, s. 117.01(1); (

c) transportation of a shotgun and ammunition in a careless manner, s. 86(1);

(

d) possession of a shotgun for a purpose dangerous to the public peace, s. 88; (

e) not being authorized to carry a concealed weapon, s. 90; (

f) possession of a shotgun knowing that he was not the holder of a licence, s. 92(1); (

g) being an occupant in a vehicle in which he knew there was a shotgun, s. 94(1)(a)(i); (

h) possession of a loaded prohibited firearm while not a licence holder, s. 95(1)(a); and (

i) possession of a shotgun and ammunition knowing it was obtained by the commission of an offence, s. 96(1). III. Trial Decision [ 7 ] At trial, Mr. Morin applied for an exclusion of evidence based on his assertion that his rights under s. 8 and s. 9 of the Charter had been violated. After a voir dire , the trial judge, in a lengthy oral decision, found no such breaches had occurred and dismissed the application. In a further voir dire , on the Crown’s application, the trial judge admitted the testimony of a witness from the preliminary inquiry who could not be located for trial. Mr.

Morin did not take issue with these determinations on appeal. The Crown evidence from the voir dires was applied to the trial proper and the defence called no evidence. After final submissions, the matter was adjourned for decision. The trial judge delivered an oral decision on January 24, 2020. [ 8 ] The trial judge set out the nine charges and recapped the admissions made by the defence, most notably that Mr. Morin was subject to a firearms prohibition and was not able to hold a valid firearms licence at the time in question.

He summarized the facts and his Charter ruling and then turned to his analysis and conclusions, which consisted of the following: With regard to the issue of possession, the Crown acknowledges that it must establish that the accused had knowledge of the item and some control over it. The Crown refers to the fact that the weapon was found under the red hoodie, in the back seat of the vehicle, right next to where the accused had been sitting. The Crown argues that it is illogical for others in the vehicle to have possessed that firearm and left it in the back seat with the accused.

The Crown raises -- raised the case of R. v. Johnson , 2018 SKQB 322 , for the proposition that it would be illogical for someone else to possess that weapon and leave it on the seat next to where the accused was sitting, and it would be also illogical for the accused to have ammunition on his person and also not be in possession of the weapon. Crown counsel -- counsel also argued that the accused’s DNA, having been found on the shotgun shell that was in the weapon at the time it was seized is further proof that the accused was in possession of the firearm.

The Crown argued that it is illogical for the accused to have a shell, but not also possession of the firearm. Crown also raised the case of R. v. Desbiens , 2018 BCSC 2391 , as further evidence that the Court should find Mr. Morin to be in possession of the firearm. In that case, the police made a traffic stop and the accused, Mr. White, was in the back seat. As the police officer was approaching the vehicle, and after the door had been opened, he noticed a glint which turned out to be a handgun stored in the door compartment of the door next to where Mr. White had been sitting.

The Court found it would be improbable to conclude that Mr. White had been the passenger next to the weapon, which was in plain view, without knowledge of the weapon being there. It concluded that as Mr. White’s DNA had been found on the firearm that he had, in fact, been in possession of that firearm on the day in question and convicted him of such possession. The facts in the instant case are not as clear as in the other cases raised by the Crown. Here, there was evidence from the officer’s video cam that once Mr.

Morin was out of the vehicle, the other three occupants were left in that vehicle for several -- several minutes with no one observing the activity within the vehicle. It is certainly possible that that weapon was in someone else’s possession or control at the time Mr. Morin was taken out of the vehicle and placed -- placed there or left there while he was out of the vehicle. That weapon could have been under the front seat or hidden on the person of one of the other occupants. I cannot find that Mr.

Morin was in possession of that firearm, given the period of time that the other three occupants had to possibly move that weapon into the position it was found by Constable Sutherland. I cannot conclude that because Mr. Morin’s DA -- DNA was found on the shell in the firearm that he was also in possession of that firearm. There is no evidence as to when he may have come into contact with that shell and no evidence of his DNA on that firearm. Having found that Mr.

Morin was not in possession of the firearm, I conclude that the Crown has not proven beyond a reasonable doubt counts number -- numbers 1, 4, 5, 6, 7 and 8 of the Indictment. What is clear from the evidence is that Mr. Morin was in possession of a shotgun shell which fell out of his clothing when he was being searched and processed at the police station. There is also evidence that Mr. Morin handled the shell that was found in the firearm when it was seized by Constable Sutherland, as his DNA was located on that shell. However, as stated earlier, it is not known when he handled that shell. I find that Mr.

Morin was in possession of ammunition while being prohibited and, therefore, conclude that counts -- count number 2 has been made out. I also conclude that count number 3, as it relates to ammunition, has been proven as a shotgun shell was in Mr. Morin’s clothing at the time of his apprehension and, therefore, while he was being transported in the vehicle. Finally, with regard to count number 9, as no evidence was led to show that the ammunition possessed by Mr. Morin was obtained by the commission of an offence, I must acquit Mr. Morin on that charge as well. Therefore, Mr.

Morin is acquitted on all charges except counts number 2 and the amended count number 3, and he is acquitted on the balance. [ 9 ] In the result, Mr. Morin was acquitted of all but two charges: possession of the single shotgun shell located in his clothing while prohibited from possessing it, and for transporting that shell in a careless manner. Mr. Morin has not appealed those convictions. IV. Issues [ 10 ] The questions of law raised in this matter are as follows: (

a) Did the trial judge err by restricting his analysis to determining whether Mr. Morin was in personal possession of the shotgun?

(

b) Did the trial judge err by failing to consider the evidence in its totality and by requiring the Crown to prove individual factsbeyond a reasonable doubt? (

c) Did the trial judge err by requiring proof that Mr. Morin was in possession of the firearm in relation to the charge of being anoccupant in a vehicle knowing there was a firearm in the vehicle? V. Analysis [11] Pursuant to s. 676(1)(

a) of the Criminal Code, the Crown may only appeal an acquittal on an indictable offence on a questionof law. The standard of review applied to such questions of law is that of correctness: R v Gartner, 2020 SKCA 13 at para 18, 54 MVR(7th) 181 [Gartner]. Unlike an accused person, the Crown cannot appeal on the basis that a verdict was unreasonable: R v Gordon, 2016SKCA 58 at para 10, 476 Sask R 312. A. Possession [12] The Crown submits the trial judge erred by focusing only on personal possession and by failing to consider whether Mr.

Morinwas in joint or constructive possession of the firearm within the meaning of s. 4(3) of the Criminal Code. It notes that the trial judge didnot even refer to joint or constructive possession or the definition set out in s. 4(3). Mr. Morin counters by pointing out that the Crownitself did not refer to any of this in its final submissions at trial and sought a conviction on the basis of personal possession.

Additionally,he contends the trial judge properly focused on the requirements of knowledge and control for possession and determined the Crown hadfailed to prove beyond a reasonable doubt that he was in possession of the shotgun. [13] Section 4(3) of the Criminal Code defines possession: Possession

(3) For the purposes of this Act, (

a) a person has anything in possession when he has it in his personal possession or knowingly (

i) has it in the actual possession or custody of another person, or (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person;and (

b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall bedeemed to be in the custody and possession of each and all of them. [14] From this definition, there are three separate ways a person can be in possession of an item for the purposes of an offence underthe Criminal Code. The most obvious way is personal possession, which occurs when an accused, knowing what the object is, manuallyhandles it. Next, a person can be in constructive possession if he or she has knowledge of the item and some measure of control over itslocation.

Lastly, an accused can be in joint possession if the object is in the personal possession of a different person with the accused’sknowledge and the accused has some measure of control over it: see R v Fisher, 2005 BCCA 444 at paras 20–24, 200 CCC (3d) 338; R vDipnarine, 2014 ABCA 328 at paras 17–20, 316 CCC (3d) 357; R v Groshok, 2019 SKCA 39 at para 44; and R v Moberly, 2020 SKCA63 at para 9. [15] In my opinion, the Crown has failed to demonstrate an error of law under this ground of appeal. Leaving aside the fact that theCrown did not argue Mr.

Morin was in joint or constructive possession, the trial judge’s determinations preclude a finding that Mr. Morinpossessed the shotgun on either of these bases. The trial judge properly observed that the Crown must prove Mr. Morin had “knowledgeof the item and some control over it”. He did not instruct himself that only personal possession would satisfy this element of the offences.In the circumstances of this matter, this was an adequate description of the test for possession under any of the three branches of thedefinition.

The trial judge found it was reasonably possible that the shotgun was in one of the other occupants’ possession and control atthe time Mr. Morin exited the vehicle and could have been hidden under the front seat or on the person of one of those three people. Hefound it could have been moved to the place it was located during the relatively lengthy period the three persons were not underobservation. Implicit in this finding is a determination that the trial judge had a reasonable doubt that Mr. Morin had either knowledge or ameasure of control over the firearm.

There is no scope to interfere with this determination on the basis of a misapplication of the law ofpossession. B. Totality of the evidence and standard of proof [16] The Crown argues the trial judge failed to consider the totality of the evidence and, instead, considered it on a piecemeal basis.As part of this argument, the Crown asserts the trial judge applied the criminal standard of proof to the individual pieces of evidence thathe did consider. Mr.

Morin submits the trial judge reviewed the relevant evidence in its totality on the proper standard and the Crown isnow simply trying to reargue its case from a different angle. He contends the Crown is challenging the verdict as being unreasonable,which it is not permitted to do. [17] Trial judges must consider the totality of the evidence when determining the facts and when determining whether the Crownhas met its burden of proof. However, they are not required to recount and analyze every piece of evidence tendered at the trial.

Proofbeyond a reasonable doubt is required for each element of an offence, but this level of proof is not to be applied to individual pieces ofevidence. These principles are summarized in Gartner at para 22, R v J.M.H., 2011 SCC 45 at paras 31–32, [2011] 3 SCR 197, and R vBouvier (1984), (ON CA), 1 OAC 302 (CA) at para 23 (aff’d (SCC), [1985] 2 SCR 485).

[ 18 ] The Crown says the following 12 key facts should have been considered by the trial judge: (

a) Mr. Morin was in a vehicle for hire. (

b) The vehicle was stopped shortly after Mr. Morin and the rear seat passenger got into it. (

c) Cst. Sutherland saw Mr. Morin turning around and reaching down beside him to the place where the shotgun was found. (

d) All four occupants of the vehicle were nervous. (

e) Mr. Morin was extremely nervous when he gave a false name. (

f) The firearm was located immediately next to the spot where Mr. Morin had been sitting. (

g) The shotgun was concealed by a red hoodie. (

h) Mr. Morin was wearing other clothing that was red and white, which are the colours worn by the Indian Posse gang. (

i) Mr. Morin possessed a shell identical to the shell that was loaded in the shotgun. (

j) None of the other occupants of the vehicle had any ammunition on their person. (

k) The other rear seat passenger testified she did not see anyone else with the shotgun in the vehicle. (

l) The shell loaded in the shotgun had Mr. Morin’s DNA on it. [ 19 ] The Crown contends the trial judge failed to consider any of this evidence except for the presence of Mr. Morin’s DNA on the shell and the location where the shotgun was found. [ 20 ] Mr. Morin argues that the trial judge was well aware of all of these facts and referred to many of them in the voir dire decision on the Charter issues and in his recitation of the facts in the trial decision. He also points to the following additional evidence that was in front of the trial judge: (

a) There was no evidence Mr. Morin brought the firearm into the car. (

b) The other rear seat passenger did not see Mr. Morin bring anything into the car. (

c) The other rear seat passenger was nervous and had a large purse that was not searched. (

d) The driver was nervous and operating a ride-share vehicle despite having a suspended licence. (

e) The vehicle had previously been flagged as being outside of a known gang house. (

f) There was no evidence of the shotgun’s location prior to its discovery. (

g) Nothing was observed in plain view when Mr. Morin was in the vehicle. (

h) There was no evidence of what occurred in the vehicle during the three to five minutes that Mr. Morin was out of the vehicle and the other three occupants were unobserved. (

i) The front seat passenger was nervous and attempted to close the door when the police were about to search the vehicle. (

j) It is unclear whether Cst. Sutherland found additional ammunition in the trunk of the car. [ 21 ] In my view, the trial judge did not apply a piecemeal approach to the evidence. While he singled out the two most important pieces of evidence – the DNA on the shell and the location of the shotgun – for a more focussed analysis, an overall reading of the judgment does not support the contention that he did not consider the cumulative effect of the evidence. The voir dire decision mentions the most significant evidence that the Crown contends was overlooked by the trial judge and much of the other evidence is contained in the

summary of evidence in the trial judgment. The combination of the voir dire decision, his

summary of the facts in the trial decision and the whole of his analysis is sufficient to demonstrate that the trial judge did not fail to consider the effect of the totality of the evidence. [ 22 ] I also cannot accept the contention that the trial judge required any of the individual pieces of evidence to be proven on the criminal standard. The Crown points to the trial judge’s analysis of the presence of Mr. Morin’s DNA on the shell and the location of the firearm as evidence to which the trial judge applied an incorrect standard of proof, although it did not press this issue in its submissions.

Again, in my view, the trial judge did not commit an error of law. While he critically examined the presence of the DNA on the shell and the place the shotgun was located, the language he chose to describe his analysis does not reveal an application of the wrong standard of proof. At no point did he state he was applying a beyond a reasonable doubt test to either of these pieces of evidence or was considering them in isolation. While the absence of specific words is not determinative, the language he used cannot be read in a manner that supports the

interpretation urged by the Crown. Although the trial judge described his findings regarding this evidence serially, this does not mean he applied an incorrect standard of proof or failed to consider the evidence in its totality. [ 23 ] I cannot give effect to this ground of appeal. C. Charge under s. 94 of the Criminal Code

[ 24 ] Under this ground of appeal, the Crown contends the trial judge erred by acquitting Mr.

Morin simply because he was found to not be in possession of the firearm despite possession not being an element of the offence under s. 94 of the Criminal Code . [ 25 ] The relevant portions of s. 94 of the Criminal Code are as follows: Unauthorized possession in motor vehicle 94(1) Subject to subsections (3) and (4), every person commits an offence who is an occupant of a motor vehicle in which the person knows there is a prohibited firearm, a restricted firearm, a non-restricted firearm, a prohibited weapon, a restricted weapon, a prohibited device, other than a replica firearm, or any prohibited ammunition, unless … . [ 26 ] An element of this offence is the requirement of knowledge on the part of the accused that one of the listed items was in the motor vehicle.

As set out above, the trial judge found he had a reasonable doubt as to whether Mr. Morin had knowledge that the firearm was in the vehicle. This was sufficient for an acquittal. No error of law emerges under this ground of appeal. VI. Conclusion [ 27 ] The appeal is dismissed. “Tholl J.A.” Tholl J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.