The Use of circumstantial evidence to prove possession of firearms and drugs.

Published On: Mar 03,2020

The Use of Expert or Circumstantial Evidence in a Criminal Firearms or Drug Trial.
The Use of Expert or Circumstantial Evidence in a Criminal Firearms or Drug Trial. By JS. Patel Criminal Defence Lawyer in Calgary: 403-585-1960.

The Ontario Court of Appeal recently considered the criminal law concepts of the use of circumstantial evidence to prove possession of firearms and drugs.  In Regina v. Lights, 2020 ONCA 128, convictions were overturned from a case wherein an incident in which the police executed a search warrant at the accused’s apartment and arrested all of its occupants  The court held that the accused’s convictions on four counts – possession of a loaded restricted firearm, possession of marijuana and of cocaine for the purpose of trafficking, and possession of a prohibited device – were unreasonable, largely because on each count the evidence fell short of what was required for a conviction.


The Court said the following in relevant part:


[30]      A verdict is unreasonable if it is one that no properly instructed jury, acting judicially, could reasonably have rendered. This test requires not only an objective assessment of the evidence adduced at trial, but also, to some extent at least, a subjective evaluation of that evidence. To discharge this responsibility, we are required to review, analyse, and, within the limits of appellate disadvantage, weigh the evidence. This weighing is only to determine whether that evidence, considered as a whole, is reasonably capable of supporting the verdict rendered: R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9R. v. Yebes1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, at p. 186; R. v. Biniaris2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36R. v. Burns1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at p. 663.


[36]      When the Crown’s case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 20.


[37]      To determine if the circumstantial evidence meets the required standard of proof, the trier of fact must keep in mind that it is the evidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that is but a link in the chain of proof: R. v. Smith2016 ONCA 25, 333 C.C.C. (3d) 534, at paras. 81-82R. v. Morin1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 360-61; Côté v. The King(1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76.


[38]      Inferences consistent with innocence need not arise from proven facts. Rather, they may arise from a lack of evidence: Villaroman, at para. 35. Accordingly, a trier of fact must consider other plausible theories and other reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience. They must not amount to fevered imaginings or speculation. While the Crown must negate these reasonable possibilities, it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused’s innocence: Villaroman, at paras. 37-38. See also R. v. Bagshaw1971 CanLII 13 (SCC), [1972] S.C.R. 2, at p. 8.


[39]      When a verdict that rests wholly or substantially on circumstantial evidence is challenged as unreasonable, the question appellate courts must ask is whether the trier of fact, acting judicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole: Villaroman, at para. 55. Fundamentally, it is for the trier of fact to determine whether any proposed alternative way of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused: Villaroman, at para. 56.


[44]      Section 4(3) of the Criminal Code defines possession. It includes:

  •     personal possession;

  •     constructive possession; and,

  •     joint possession.

Our concern here is with personal possession and constructive possession. Knowledge and control are essential elements common to both: R. v. Morelli2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15.


[45]      When personal possession is alleged, the knowledge element consists of two components. An accused must be aware that they have physical custody of the thing alleged. And an accused must be aware of what that thing is. These elements of knowledge must co-exist with an act of control: Morelli, at para. 16. See also R. v. Beaver, 1957 CanLII 14 (SCC), [1957] S.C.R. 531, at pp. 541-42.


[46]      When personal possession is not alleged or cannot be established on the evidence, the Crown may rely on constructive possession to prove its case.

[47]      Constructive possession is established when an accused does not have physical custody of the thing but has it in any place for their own or another’s use or benefit: Criminal Code, s. 4(3)(a)(ii). Constructive possession is complete where an accused:

  1.      has knowledge of the character of the thing;

  2.      knowingly puts or keeps the thing in a particular place, irrespective of whether the place belongs to or is occupied by the accused; and

iii.      intends to have the thing in the place for the use or benefit of the accused or of another person.

Morelli, at para. 17.


[48]      In many cases, the evidence relied upon to prove constructive possession is wholly or substantially circumstantial.

[49]      Two further points deserve brief mention.


[50]      When things are found in a premises or place occupied by an accused, no presumption of knowledge and control arises from proof of occupancy. Put simply, occupancy does not create a presumption of possession: R. v. Watson2011 ONCA 437, at para. 13R. v. Lincoln2012 ONCA 542, at para. 3.


[51]      We define knowledge as true belief: United States of America v. Dynar1997 CanLII 359 (SCC), [1997] 2 S.C.R. 462, at para. 41. It includes not only actual knowledge but also wilful blindness.


[52]      Wilful blindness involves a degree of awareness of the likely existence of the prohibited circumstances together with a blameworthy conscious refusal of self-enlightenment. A person, aware of the need for some inquiry, who declines to make that inquiry because they do not wish to know the truth, is wilfully blind: R. v. Williams2003 SCC 41, [2003] 2 S.C.R. 134, at paras. 27-28R. v. Briscoe2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 22-24Sansregret v. The Queen1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, at p. 584.


[53]      With these general principles in mind, I turn now to consider the convictions on individual counts, each of which is said to be unreasonable.


[73]      The trial judge accepted the evidence of the police officers who executed the search warrant at the appellant’s apartment. This evidence, taken as a whole, established that the appellant was in actual possession of the Ruger handgun, which he attempted to move beneath his buttocks as he sat on the couch in the living room area of the apartment. The gun, fully loaded with a box magazine containing 11 cartridges, is a restricted firearm. This evidence established the actus reus of the offence under s. 95(1).


[74]      In her analysis of the fault element required to establish personal possession, the trial judge was satisfied that by manually handling the gun, the appellant knew what he handled was a loaded firearm.


[75]      In my view, knowledge of the nature of the object he handled as a firearm, without more, does not establish knowledge, actual or imputed, that the firearm was loaded. The problem, as I see it, is twofold. I would characterize the conclusion as the product of speculation, not inference. And, in the circumstances of this case, even characterizing it as an inference does not meet the standard of proof required, that is to say, it is not the only reasonable inference available on the totality of the evidence.


If you have been charged with a criminal offence, contact Mr. J. S. Patel, Criminal Defence Lawyer in Calgary at 403-585-1960 for a consultation.