COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Wong, 2012 ONCA 432
DATE: 20120622
DOCKET: C53130
Weiler, Watt and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Andrew Sai Wong
Appellant
Edward F. Hung, for the appellant
Alexander Hrybinsky, for the respondent
Heard: May 1, 2012
On appeal from the conviction entered on December 6, 2010 and the sentence imposed on December 22, 2010 by Justice Joseph F. Kenkel of the Ontario Court of Justice, sitting without a jury.
Weiler J.A.:
[1] The appellant was convicted[1] of the following offences:
(1) Trafficking in a substance contrary to s. 5(3) of the Controlled Drugs and Substances Act (“CDSA”)
(2) Possession of a substance contrary to s. 4(1) of the CDSA
(3) Possession for the purpose of trafficking (3 counts) contrary to s. 5(3) of the CDSA
(4) Careless storage of a firearm contrary to s. 86(3) of the Criminal Code
(5) Possession of a firearm without a licence contrary to s. 91(3) of the Criminal Code
(6) Possession of a firearm knowing its possession is unauthorized contrary to s. 92(3) of the Criminal Code
(7) Possession of a loaded firearm contrary to s. 95(1) of the Criminal Code
[2] I propose to deal first with the issues relating to the convictions for offences (3) – (6). The primary issue in relation to these convictions is the validity of the search warrant and the manner in which the trial judge dealt with the evidence obtained from its execution at trial. In my opinion these issues have no merit and I deal with them summarily.
[3] Secondly, I will address the issue relating to offence (7). The appellant argues that “possession of an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm” (the offence made out on the facts) is not included in the offence of “possession of a loaded prohibited firearm or restricted firearm” (the offence charged). Both offences are found in s. 95(1) of the Code. I agree with the appellant and I would allow the appeal in relation to this conviction on that basis, set aside the conviction and order that an acquittal be entered.
[4] Finally, I will deal with whether the convictions for the first two offences - trafficking in ketamine on June 24, 2009 and being in possession of ketamine for the purpose of trafficking on June 25, 2009 - were unreasonable. Having regard to the whole of the evidence, I conclude that there was ample evidence to support the trial judge’s findings of guilt.
[5] The appellant has also appealed his global sentence of three years imprisonment. However, because a person who commits an offence in s. 95(1) is subject to a minimum term of imprisonment of three years, the sentence appeal was adjourned to await this court’s decision as to whether the finding of guilt pursuant to s. 95(1) would be maintained.
[6] In April 2009, York Regional Police received information from an anonymous source that the appellant resided at 3 Westchester Crescent in Markham and stored drugs that he was dealing, at that location. The source also indicated that the appellant sold drugs around the Pacific Mall and that he used three mobile phones.
[7] Det. Ibbott conducted a background check of the appellant. The police information system showed that the appellant had outstanding charges of possession of burglary tools and possession of ecstasy for the purpose of trafficking. This information was included in Det. Ibbott’s affidavit of June 25, 2009, supporting the application for a search warrant. In reality, the appellant had no outstanding charges. Unbeknownst to the Det., the charges had been withdrawn by the Crown on June 5, 2009.
[8] Acting on the information obtained, Det. Ibbott and fellow officers commenced surveillance of 3 Westchester Crescent. They made observations of the appellant on three separate occasions.
[9] On May 15, 2009, Cst. Salhia observed the appellant driving a vehicle on Westchester Crescent towards a shopping plaza. The appellant parked near a convenience store and an unknown male entered the vehicle and, within five minutes, got out.
[10] The appellant’s vehicle left the parking lot and police followed it to another shopping plaza. There, the appellant entered a cinema. He met with two unknown males and entered the washroom. Approximately six minutes later, the parties left the washroom. The appellant returned to his vehicle.
[11] The police then followed the appellant’s vehicle to a Shoppers Drug Mart. The appellant met with an unknown male for 10 minutes inside the store. The pair walked out of the store and got into the appellant’s vehicle where they remained for 12 minutes before the unknown male left and went back into the store. The appellant left in his vehicle.
[12] The police continued following the appellant’s vehicle to a residence in Toronto. There, an unknown female entered his vehicle. Three minutes later she went back into the residence and the appellant drove away.
[13] On May 28, 2009, the police surveillance team observed the appellant and an unknown male leave his residence and enter a vehicle. They left the residence and quickly returned to be joined by two other unknown males. The police followed the vehicle to a nearby residential area where an unknown female entered the vehicle for five minutes and then left. No further observations were made that day.
[14] Finally, on June 24, 2009, police observed a vehicle arriving at the appellant’s residence. The driver went to the door of the residence and then returned to the vehicle with the appellant. The police followed the vehicle to a shopping plaza. Moments later a Mercedes parked beside it. The appellant got in the back seat of the Mercedes where he remained for approximately 5 minutes before returning to the vehicle he came in and driving away.
[15] Police believed that the appellant had sold drugs to the persons in the Mercedes and decided to continue to observe that vehicle. They saw two males making snorting actions consistent with drug use and arrested both of them for possession of ketamine shortly thereafter.
[16] On completion of the surveillance, Det. Ibbott formed the belief that the appellant was a drug trafficker. He based his belief on his experience (22 years as a police officer,10 of which were with the Drugs and Vice Unit), observations made of the appellant on the three days of surveillance, the supporting information from the anonymous informant, and the actions of the people in the Mercedes on June 24, 2009. He also believed that the appellant kept the drugs at his residence as, in his experience, drug traffickers keep their stash close by and a residence is considered a “safe location” to keep drugs in bulk.
[17] On June 25, 2009, Det. Ibbott ordered the appellant’s arrest for trafficking in relation to the observations of June 24 involving the Mercedes. Later that evening, he also applied for a warrant under the Controlled Drugs and Substances Act (CDSA) S.C.1996, c.19, to search 3 Westchester Crescent.
[18] The CDSA warrant listed two offences for which evidence was sought: trafficking on June 24, 2009; and possession for the purpose of trafficking on June 25, 2009. According to Det. Ibbott, the basis for charging the appellant with the possession for the purpose of trafficking offence on June 25, 2009 was not the appellant’s activities on June 25, 2009, but rather the result of the surveillance prior to that date.
[19] The CDSA warrant was executed on June 26, 2009 by Cst. Salhia and three other officers. The search produced 35.8 grams of ketamine, 4 grams of cocaine, $1,850 in Canadian currency, $57 in U.S. currency, scales, and packaging material. A sawed-off .22 calibre rifle and ammunition were also found inside a tennis racquet case in a bedroom believed to be the appellant’s.
[20] Det. Ibbott testified at trial that the ammunition was in the tennis racquet case and not loaded in the rifle. Although Det. Ibbott had been informed by Cst. Salhia that the rifle was not loaded, he nevertheless laid a further information charging the appellant with possession of a loaded firearm.
[21] The Crown elected to proceed by indictment on all charges. The appellant consented to the firearm and drug charges being tried together. At the outset of the trial, both parties asked the court to determine whether the Crown had proved possession of the seized items beyond a reasonable doubt before dealing with the other issues.
[22] On October 4, 2010, the trial judge found that the surveillance evidence, along with documents and clothing located inside the residence, proved that the appellant lived there. The trial judge observed that the appellant and his brother each occupied one of the two bedrooms in the basement level of the home. The appellant’s brother told the police whose bedroom was whose but did the Crown did not call him to give this evidence at trial. The trial judge found the brother’s statements to the police were hearsay and not admissible as evidence. However, considering all of the remaining circumstantial evidence, the trial judge held that there was only one reasonable inference: the appellant occupied the bedroom searched.
[23] The trial judge relied on the following evidence to link the appellant to the bedroom where the contraband items were located: cellular telephone bills in the appellant’s name, the appellant’s student identification, and the style of clothing found which was consistent with the appellant’s manner of dress but not his brother’s. Photos indicated that the other bedroom contained items belonging to the appellant’s brother. On the totality of the evidence, the trial judge held that the Crown had proven beyond a reasonable doubt that the appellant resided at the address in question and was in possession of the items seized from the bedroom.
[24] On December 6, 2010, the trial judge delivered his ruling on the appellant’s application under ss. 8 and 24 of the Charter to include the evidence obtained from the search. The reasonableness of the search turned on the information to obtain which formed the basis for the issuance of the search warrant. The trial judge concluded that there was sufficient evidence to support the assertion in the information to obtain that the appellant was trafficking in ketamine and that he resided at the address in question.
[25] The trial judge based his conclusion as to the reasonableness of the search on the content of the information to obtain after he had excised the information relating to the informant and the erroneous information concerning the appellant’s outstanding charges. The trial judge found that there was also sufficient evidence to show that the drugs would likely be found at the appellant’s home. He held that there was no breach of s. 8 of the Charter. And, applying the analysis in R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32, he further held that even if there were a breach of s. 8, the evidence was admissible under s. 24(2).
[26] The trial judge then dealt with the charge of possession of a loaded prohibited firearm. He found that the evidence at trial showed that the prohibited firearm was unloaded with ammunition in the same case. He held that s. 95 of the Criminal Code created two modes of committing the same offence. Further, the “second mode of committing the offence” in s. 95 was included in the first because “anyone possessing a loaded prohibited firearm would also at that same moment be in possession of a prohibited firearm with readily accessible ammunition capable of being fired in the weapon.”
[27] Lastly, the trial judge dealt with the issue of whether the ammunition was capable of being discharged in the firearm. He found that, although the ammunition seized was inadvertently destroyed prior to testing, the Crown had established beyond a reasonable doubt that the ammunition was functional and capable of being fired from the weapon. In so doing, he relied on the evidence of Cst. Brouwer, a firearms and ballistics expert, who based his opinion on his examination of the firearm and photographs of the ammunition.
[28] Considering all of the evidence, the trial judge held that the Crown had proven the alleged offences beyond a reasonable doubt and found the appellant guilty on all counts.
[29] The appellant submits that the search warrant was not legally obtained because the information in the information to obtain was insufficient for the following reasons:
· The lack of proven reliability of the informant (conceded by the Crown);
· Det. Ibbott’s mistaken belief expressed in the information to obtain that there were outstanding charges;
· Inconsistent information as to the area code of the appellant’s cell phone; and
· The inclusion of the baseless offence of possession for the purpose of trafficking on June 25, 2009.
Further, the appellant argues that Det. Ibbott lacked credibility and this should have been reflected in the trial judge’s assessment of the detective’s reasonable belief that drugs would be found at the appellant’s home.
[30] In considering the sufficiency of the information to obtain, the trial judge excluded the items listed above from his consideration. The trial judge was entitled to otherwise accept the evidence of Det. Ibbott. He was in the best position to determine the officer’s credibility and I have no basis on which to interfere with his assessment. On the totality of the evidence, there were reasonable grounds to believe that the appellant resided at the address in question and kept drugs there.
[31] The trial judge only had to be satisfied that there was an evidentiary basis on which the warrant could have been issued: see R. v. Garofoli, [1990] 2 S.C.R. 1421. On reviewing the search warrant, the trial judge assessed the evidence in its entirety severing off anything that was inaccurate or unreliable. He did not err in his conclusion that the warrant was legal and that there was no violation of the appellant’s right to be free from unreasonable search and seizure pursuant to s. 8 of the Charter.
[32] In the circumstances it is not necessary to consider the trial judge’s ruling on s. 24(2) of the Charter.
[33] The appellant relied on his factum for this ground of appeal. In it he argues that inasmuch as the police officers failed to list the items identifying which room belonged to the appellant in their notes and the Crown failed to call the appellant’s brother or any other family members to establish that the room where the contraband items were found was the appellant’s, there is no evidence that the room was his. The appellant further submits that the trial judge erred in not accepting the evidence of Det. Thompson that only the appellant’s room was searched.
[34] The issue of note-taking by police was considered and rejected by the trial judge. While the police officers did not list the items identifying which room belonged to the appellant in their notes, they did take photographs of the rooms. The photographs showed items that indicated whose bedroom was whose, thus confirming the officers’ evidence.
[35] Further, there was no basis for drawing an adverse inference based on the Crown’s failure to call the appellant’s family members as witnesses. The decision to call witnesses is a matter of Crown discretion: see R. v. Cook, [1997] 1 S.C.R. 1113. And, as I have noted above, the testimony of family members as to whose room was whose was not required.
[36] Insofar as the trial judge omitted to refer to the evidence of Det. Thompson, a trial judge is not required to refer to every piece of evidence in giving his reasons: see R. v. R.E.M., [2008] 3 S.C.R. 3, 2008 SCC 51, at paras. 19-20. Moreover, Det. Thompson’s evidence was contradicted by the objective evidence of the photographs.
[37] There was ample evidence to support the trial judge’s conclusion that the appellant occupied the bedroom where the firearm and drugs were found and that he was in possession of them.
[38] The appellant submits that Cst. Brouwer’s evidence raised a reasonable doubt as to whether the ammunition could be discharged by the seized firearm. He could not, with any certainty, have ascertained the discharge capability of the ammunition from the photographs. Test firing of the actual ammunition was required. The trial judge erred in finding that the destroyed ammunition was capable of being discharged by the seized firearm.
[39] The appellant’s argument is a complaint about the factual findings of the trial judge and amounts to a claim of unreasonable verdict on this conviction. The trial judge was aware of, and noted, the destruction of the ammunition and magazine. After referring to Cst. Brouwer’s evidence that the cartridges were consistent with the type of ammunition for the firearm, he took into consideration Cst. Brouwer’s inability to rule out the possibility that the cartridges were not capable of being discharged from the firearm. However, he adopted Cst. Brouwer’s opinion and expressly stated six reasons for finding that the ammunition was capable of being discharged:
(a) Dummy cartridges typically have a hole drilled in them or are marked in some way. These had no such marking.
(b) The officer had never seen a dummy cartridge for this type of rifle in 43 years of experience.
(c) The cartridges appeared to be factory made, which is inconsistent with a special dummy cartridge for gunsmith work.
(d) There is no apparent reason for having more than one dummy cartridge.
(e) There is no evidence the appellant was a gunsmith or weapons trainer who would have legitimate need of a dummy cartridge. The presence of a sawed off rifle makes it certain he was not a gunsmith or weapons trainer.
(f) The location of the ammunition, in a tennis bag with the sawed off rifle, in a room where drugs were found makes it plain the weapon was kept as a tool of the drug trade.
[40] The trial judge’s finding was not unreasonable; it was well supported by the evidence.
[41] The trial judge found that a person who possesses a loaded firearm necessarily possesses an unloaded firearm with usable ammunition at hand. Possessing an unloaded firearm together with usable ammunition, as the appellant did, was therefore included in the offence of possessing a loaded firearm.
[42] In this case, the information particularized the offence as possession of a “loaded prohibited firearm, namely a rifle, contrary to section 95, subsection (2) of the Criminal Code”. As I have indicated, the evidence showed that the firearm was not in fact loaded but that the ammunition was found alongside it in the same tennis racquet case. At trial, the Crown chose not to seek an amendment of the information to conform to the evidence.
[43] For ease of reference I have reproduced the relevant portions of sections 95(1) and (2) of the Criminal Code below:
(1) [E]very person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, unless the person is the holder of
(a) an authorization or a licence under which the person may possess the firearm in that place; and
(b) the registration certificate for the firearm
(2) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence three years.
[44] Knowledge of whether the firearm is prohibited or restricted is not an essential element of the offence: R. v. Williams, 2009 ONCA 342, 95 O.R. (3d) 660, at para. 21.
[45] The appellant’s position is that the trial judge erred in holding that the second part of s. 95(1) of the Criminal Code is an included offence in the first part. The elements of both offences are not the same. The second part of s. 95(1) is not an included offence but rather a separate one. Thus, there is no evidence that the appellant committed the offence of possession of a loaded firearm.[2]
[46] The respondent submits that, as a matter of logic and common sense, if a prohibited firearm is loaded with ammunition then that person possesses a firearm “together with readily accessible ammunition”. Section 95(1) describes two ways of committing one offence. It is an offence to possess a loaded prohibited firearm or an unloaded prohibited firearm with readily accessible ammunition. Both modes of committing the offence are found within the same subsection of the Criminal Code with the latter mode being an included offence in the first.
[47] I begin by noting that the respondent’s submission, that s. 95(1) creates one offence with two modes of commission, is contrary to this court’s obiter in Williams, at fn. 3, which held that s. 95 creates two offences - possession of a loaded firearm being the first offence and possession of an unloaded firearm with readily accessible ammunition being the second. In dealing with the respondent’s submission I will refer to s. 95 as creating two offences. That point aside, the respondent’s submission is flawed in two respects.
[48] The first problem with the respondent’s argument is that it ignores the wording of s. 95(1). The second offence described in s. 95(1) does not simply require the firearm be “together with readily accessible ammunition” as stated by the trial judge and as asserted by the respondent; it also requires that the firearm be unloaded. It is a basic principle of statutory interpretation that Parliament does not speak in vain: Attorney General of Quebec v. Carrières Ste-Thérèse Ltée, [1985] 1 S.C.R. 831, at p. 838.
[49] The term “unloaded” has a distinct meaning: it is the opposite of the term “loaded” in the first part. Although the term “loaded” is not defined in s. 95 or anywhere else in the Code, regulations[3] to the Firearms Act, S.C. 1995, c. 39 contain a definition of the term “unloaded” which reads:
“unloaded”, in respect of a firearm, means that any propellant, projectile or cartridge that can be discharged from the firearm is not contained in the breach or firing chamber of the firearm nor in the cartridge magazine attached to or inserted into the firearm.
[50] By virtue of the federal Interpretation Act, R.S.C. 1985, c. I-21, s. 15(2)(b), “where an enactment contains an interpretation section or provision, it shall be read and construed as being applicable to all other enactments relating to the same subject-matter unless a contrary intention appears.” The Interpretation Act defines the term enactment as “an Act [of Parliament] or regulation or any portion of an Act or regulation”. Therefore, the regulations to the Firearms Act are enactments and the definition of “unloaded” contained in those regulations applies to s. 95(1) of the Criminal Code. Both enactments, though concerned with different aspects, deal with the same subject matter – gun control. Further, there is nothing in the Code to suggest that this definition is inappropriate or contraindicated. Indeed, the definition accords with the ordinary meaning one would ascribe to the word “unloaded”, and by extension, “loaded” when used to refer to a firearm.
[51] The second respect in which the respondent’s submission is flawed, is that it presumes that a person who is guilty of the first offence will also be guilty of the second. It is important to note at the outset the definition of an included offence. “An offence is “included” if its elements are embraced in the offence charged (as described in the enactment creating it or as charged in the count) or if it is expressly stated to be an included offence in the Criminal Code itself”: R. v. G.R., 2005 SCC 45, at para. 25, [2005] 2 S.C.R. 371. This definition is derived from s. 662 of the Criminal Code, which authorizes convictions for included offences in only three categories. The category with which we are concerned here is the second category - offences included in the enactment creating the offence charged.
[52] Offences falling into this category become included if they must necessarily be committed en route to committing the offence charged. In other words, all of the essential elements of the offence must be part of the offence charged: see G.R., at paras. 30-31. For example, in order to commit an aggravated assault, one must necessarily commit an assault. The respondent acknowledges this to be the case.
[53] However, it will not always be true that a person who possesses a loaded firearm has necessarily possessed an unloaded firearm together with usable ammunition. For example, a person, X, unlawfully possessing a loaded gun will not necessarily be the same person who possessed the unloaded gun with readily accessible ammunition. Another person, Y, may have been in possession of the gun, lawful or otherwise, with readily accessible ammunition, and loaded the gun. X may come along and steal Y’s loaded gun. Y may give X the gun in loaded condition. Y may even lose the loaded gun and X may find it. In each of these circumstances, the person guilty of unlawful possession of a loaded firearm does not necessarily commit the offence of possession of an unloaded firearm with readily accessible ammunition.
[54] My conclusion, that the offence of possession of an unloaded firearm with readily accessible ammunition is not an included offence of possession of a loaded firearm, accords with the principle underlying included offences articulated by the majority in G.R.: see also R. v. Simpson (No. 2) (1981), 58 C.C.C. (2d) 122 (Ont. C.A.) at p. 133. In G.R, the Supreme Court of Canada observed that since the same set of facts may give rise to different charges, it is a fundamental principle of a fair trial that an accused know the charge or charges he or she must meet: G.R., at paras. 26-27.
[55] It is what the Crown alleges, not what the accused already knows, that is important because an accused can only be called upon to meet the charge put forward by the prosecution: G.R., at paras. 26-27. Here, the Crown alleged that the gun was loaded. The wording of the count did not include particulars to put the appellant on notice that he was also in jeopardy of a conviction for possession of an unloaded weapon with ammunition close by.
[56] The principle that an accused must know the case he or she has to meet, also underlies the requirement that it is an error to convict when, as here, the Crown particularizes the mode of commission of the offence in the indictment but fails to prove it as charged and does not seek to amend the indictment to accord with the evidence: see R. v. Saunders, [1990] 1 S.C.R. 1020. Thus, even if the offence of possession of an unloaded firearm with ammunition close by were an included offence, the trial judge erred in finding the appellant guilty because the Crown particularized possession of a loaded firearm and failed to prove it.
[57] Accordingly, I would allow the appeal on this count, set aside the conviction for possession of a loaded prohibited firearm and substitute an acquittal.
[58] The appellant submits that the trial judge erred in finding that the appellant trafficked in ketamine on June 24, 2009. The appellant was not arrested on that date, no ketamine was found, and there was no confirmation from the alleged purchaser that the appellant sold him ketamine. In addition, there was no evidence that the appellant was in possession of ketamine for the purpose of trafficking on June 25, 2009.
[59] The basis for the conviction on these two counts is not dealt with in the trial judge’s reasons for judgment. I would, however, dismiss the appellant’s argument because there is a strong basis in the overall evidence for these convictions including:
(a) the evidence from several days of surveillance, including June 24th and June 25th, 2009, consistent with drug trafficking activity;
(b) the arrest of persons on both dates immediately after brief meetings with the accused where they were found in possession of ketamine in plastic baggies; and
(c) the search of the appellant’s apartment the next day which yielded various drugs including ketamine in baggies in a box under the appellant’s bed. The scales and the sawed off shotgun and ammunition would support the conclusion that possession of the ketamine was for the purpose of trafficking.
[60] For the reasons I have given, I would allow the appeal with respect to the conviction for possession of a loaded firearm contrary to s. 95(1) of the Criminal Code and set aside that conviction. In all other respects I would dismiss the appeal as to conviction.
Released: June 22, 2012
“KMW” “K.M. Weiler J.A.”
“I agree David Watt J.A.”
“I agree Gloria Epstein J.A.”
[1] The appellant was also convicted of failing to comply with his recognizance and sentenced to 30 days imprisonment concurrent with his other sentences. None of the grounds of appeal relate to that conviction.
[2] In making his submissions, the appellant asserts he was convicted pursuant to s. 95(1)(a) of the Criminal Code; he was not. There is no reference to s. 95(1)(a) in the indictment. The information refers to s. 95(2) which is the penalty provision. Nor is there any reference to s. 95(1)(a) in the trial judge’s decision. The appellant was convicted pursuant to s. 95(1).
[3] See: Storage, Display and Transportation of Firearms and Other Weapons by Businesses Regulations, S.O.R./98-210, s. 1 “unloaded”; Storage, Display, Transportation and Handling of Firearms by Individuals Regulations, S.O.R./98/209, s. 1 “unloaded”; and the not yet in force (C.I.F. date = Nov. 30, 2012) Gun Shows Regulations, S.O.R./98-211, s. 1 “unloaded”.