Criminal Law - Firearms Offences - Acquittal - Appeal
The Crown appealed the Queen’s Bench trial judge’s decision to acquit the respondent of eight Criminal Code firearms charges and find him guilty of only one charge of possession of a shotgun shell while prohibited under s. 117.01 of the Code and for transporting it in a careless manner, contrary to s. 86(1) of the Code. A police officer stopped a vehicle in which the respondent was one of three passengers. The officer asked the respondent to leave the back seat of the vehicle while he was investigating because he had provided a false name. During the following five minutes, the other occupants remained in the vehicle unobserved by the officer. The respondent was arrested when the officer found that he was unlawfully at large and, incidentally to the arrest, searched the back seat of the vehicle and found a sawed-off shotgun loaded with a shell concealed under a jacket where the respondent had been seated. At the police station, a shotgun shell fell out of the respondent’s clothes. The shell matched the one found in the shotgun. No fingerprints were found on the gun but the respondent’s DNA was detected on the shell. At trial, the respondent applied for exclusion of the evidence, alleging that his ss. 8 and 9 Charter rights had been violated. The application was dismissed and the evidence applied to the trial proper. In his oral decision, the judge set out the nine charges and recapitulated the admissions made by the defence that the respondent was subject to a firearms prohibition and not able to hold a valid firearms licence. He summarized the facts and his Charter ruling and then found that the respondent was not in possession of the firearm because it could have been in the possession of one of the other occupants of the vehicle and been moved by them during the five-minute period and therefore the Crown had not proven six counts of the indictment. The respondent was found guilty of possession of the shell but because there was no evidence led to show that his possession of ammunition was obtained by the commission of an offence, he was acquitted of that charge. The Crown argued that trial judge erred: 1) by restricting his analysis to determining whether the respondent was in personal possession of the shotgun. He did not consider whether the respondent was in joint or constructive possession within the meaning of s. 4(3) of the Code. The defence said that the Crown had not raised this at trial and sought a conviction on the basis of personal possession; 2) by failing to consider the evidence in its totality; and 3) by requiring proof that the respondent was in possession of the firearm in relation to the charge of being an occupant in a vehicle knowing there was a firearm in the vehicle.
HELD: The appeal was dismissed. The Crown’s appeal of the acquittal pursuant to s. 676(1)(a) of the Code on a question of law was subject to the correctness standard of review. The court found with respect to each ground that the trial judge had not erred in law: 1) because his determination that it was possible for the gun to be in the possession of the other occupants and that it could have been moved when they were not under observation precluded a finding of possession under any of the three definitions of possession provided in s. 4(3), regardless of whether the Crown had not argued the respondent was in joint or constructive possession; 2) because his analysis was sufficient to demonstrate that he considered the effect of the totality of the evidence in that he reviewed the findings made in the voir dire and summarized them in the trial decision; and 3) because he had found he had a reasonable doubt that the respondent had knowledge that the firearm was in the vehicle, and under s. 94(1) of the Code, that was sufficient for an acquittal.