



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Tyrell, 2014 ONCA 617

DATE: 20140903

DOCKET: C57930

Doherty, Rouleau and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Levar Tyrell

Appellant

Levar Tyrell, in person

Matthew Gourlay, appearing as duty counsel

John Neander, for the respondent

Heard:  June 9, 2014

On appeal from the convictions entered by Justice Julie
    A. Thorburn of the Superior Court of Justice, sitting with a jury, on September
    20, 2013.

Doherty J.A.:


I



overview

[1]

The appellant was convicted by a jury of possession of a loaded prohibited
    firearm.  He appeals his convictions.
[1]
He was self-represented on the appeal, but fortunately, had the able assistance
    of Mr. Gourlay, who appeared as duty counsel.  The appellant chose to rely on
    Mr. Gourlays submissions.

[2]

Mr. Gourlay advanced three arguments.  In the first, he challenged the
    trial judges ruling that despite the considerable delay in bringing the
    appellant to trial, there had been no infringement of the appellants rights
    under s. 11(b) of the
Charter
.  The second and third arguments alleged
    errors in the trial judges instructions to the jury.  Mr. Gourlay alleged that
    the trial judge wrongly told the jury that the knowledge component of constructive
    possession could be satisfied if the appellant ought to have known of the
    presence of the gun.  He also argued that the trial judge erred in leaving
    wilful blindness as to the presence of the weapon as a basis for liability
    absent proof that the appellant also had control over the weapon.

[3]

The court did not require Mr. Neander, Crown counsel, to respond to the
    s. 11(b) argument.  I see no error in the trial judges reasons and do not
    propose to address the s. 11(b) issue any further in these reasons.

[4]

The court did require argument from the Crown on the alleged errors in trial
    judges instructions.  I think the trial judge made both errors alleged.  The
    proviso cannot be applied.  I would order a new trial.


II



facts

[5]

The police executed a search warrant at the residence of Tonisha McPhee
    in the early morning of May 4, 2010.  When the police entered Ms. McPhees
    residence, she and the appellant were asleep in the master bedroom.  Omar
    Grizzle, the appellants cousin and a close friend, was asleep on the couch in
    the living room.  Two small children were sleeping in a second bedroom.

[6]

The search of the residence turned up two identical, fully operational,
    loaded nine millimetre semi-automatic handguns.  One handgun was found in a
    suitcase buried under some bedding in a corner of the childrens bedroom.  A
    wallet containing Mr. Grizzles identification was found in the suitcase.  The second
    gun was found on the shelf of a linen closet beside the bathroom near the
    master bedroom.  According to the officer who found the gun, it was in plain
    view when he opened the closet door. There were no fingerprints on either gun.

[7]

The appellant is the father of Ms. McPhees two children.  They had been
    involved in a relationship but, according to Ms. McPhee, that relationship had
    soured in the fall of 2009 because the appellant was seeing other women.  Ms.
    McPhee testified that she moved into her apartment in December 2009.  Her
    mother, who intensely disliked the appellant, insisted that he not be allowed
    to come and go freely at her daughters apartment.  Ms. McPhee was adamant that
    the appellant did not live at the apartment and, except for a few articles of
    clothing, did not leave any of his belongings there.  She testified that he
    visited his children from time to time and on occasion would stay overnight. 
    When he stayed overnight, he slept with Ms. McPhee.

[8]

The appellant testified that he was not in a relationship with Ms.
    McPhee in May of 2010.  He indicated that he did not live at her apartment,
    although he visited his children there occasionally.  According to the
    appellant, he had stayed at Ms. McPhees apartment overnight only once in the several
    months before the search.  He acknowledged that he had stayed overnight and was
    sleeping in the master bedroom when the police arrived on May 4, 2010.  The
    appellant denied any knowledge of the existence of either handgun found in the
    apartment.

[9]

Ms. McPhee testified that she had no knowledge of the gun found in the
    suitcase in her childrens bedroom.  She did, however, know about the gun in
    the closet.  She had found it about a week before the search was executed.  Ms.
    McPhee placed it behind some articles on the shelf.  She believed that the gun
    belonged to her cousin, Glenton Gibson.  He had a key to her apartment and
    often stayed overnight.  Ms. McPhee testified that she called her cousin and
    told him to get his stuff out of her house.  She did not use the word gun,
    but she believed that Mr. Gibson knew what she meant.  Mr. Gibson died before
    the appellants trial.

[10]

Ms.
    McPhee pled guilty to possession of the gun found in the closet.  At her
    sentencing, Ms. McPhee acknowledged that she and the appellant were involved in
    a relationship at the time of the search.  In her testimony at the appellants
    trial, she insisted they were not in a relationship at that time and were not
    getting along very well.  She explained the apparent inconsistency by
    indicating that when she entered her plea she was concerned about securing her own
    release and not the details of what was said at her sentencing.

[11]

Mr.
    Grizzle was charged only with the possession of the gun found in the suitcase
    (count 1).  He was convicted on that charge.  The appellant was charged with
    possession of both guns.  He was acquitted on count 1, but convicted on the
    charge relating to the gun in the closet (count 2).


III



the charge to the jury

[12]

Possession
    was the only live issue at trial.  In the course of her instructions and before
    defining possession for the jury, the trial judge outlined the positions of the
    parties as they related to both weapons.  On the charge relating to the gun in the
    suitcase (count 1), she described the Crown position as follows:

the Crown position is that
he [the appellant] knew or
    ought to have known, or was wilfully blind as to the existence of the gun in
    the suitcase.
[Emphasis added.]

[13]

On
    the charge relating to the gun in the closet (count 2), the Crown contended
    first that the appellant had personal possession of that firearm and had placed
    it in the closet.  The trial judge went on to describe the Crowns alternative
    theory in these terms:

In the alternative,
he knew or ought to have known that the
    firearm was in plain view in the apartment
or was wilfully blind as to its
    existence and chose to do nothing to get rid of it.  [Emphasis added.]

[14]

After
    outlining the positions of the parties, the trial judge turned to the
    instruction on the meaning of possession.  She first defined personal
    possession:

Proof of personal possession requires proof that the accused
    had physical custody of the object, knowing what it was, and intended to
    exercise control over it.

[15]

She
    next defined constructive possession:

Constructive possession requires proof that the accused:

·

Knew what the object was.

·

Knew it was in the possession or custody of another person or in
    that place.

·

Consented to it being in the other persons possession or being
    in that place.

·

Intended to exercise control over it.  Passive
[2]
acquiescence or indifference to that fact is not sufficient.

[16]

After
    explaining the concepts of personal possession and constructive possession, the
    trial judge returned to the positions of the parties.  In describing the
    Crowns case against the appellant on count 1 which involved the gun in the suitcase,
    the trial judge repeated her earlier instruction:

The Crown takes the position that Mr. Tyrell knew or ought
    to have known about the existence of the firearm found in the suitcase
as
    Mr. Tyrell and Mr. Grizzle were close relatives and friends and they knew one
    another well.  [Emphasis added.]

[17]

In
    respect of count 2, the charge involving the gun in the closet, the trial judge
    said:

Crown counsel must prove that Levar Tyrell was in possession of
    the loaded firearm.  Remember that possession requires a person to have
    knowledge of and control over the item, and that possession may be personal
    possession or constructive possession.

[18]

The
    trial judge next introduced the concept of wilful blindness, which she
    expressly limited to the charge relating to the gun in the closet (count 2). 
    She said the following:

a person may be wilfully blind.  In other words become aware
    of the need to find out more, but decides [
sic
] not to because he does
    not want to know the truth.  In order to determine whether Levar Tyrell was
    wilfully blind, you must be satisfied beyond a reasonable doubt that he
    suspected there was a loaded firearm in the apartment, realized its
    probability, but chose not to make any inquiries because he did not want to
    know the truth.  In other words, he deliberately failed to inquire even though
    he knew there was reason to do so.

[19]

In
    reiterating the Crowns position on the charge involving the gun in the closet
    (count 2), the trial judge repeated her earlier instruction:

In the alternative
he [the appellant] knew or ought to have
    known that the firearm in plain view in the apartment
was there or was
    wilfully blind as to its existence and chose to do nothing to get rid of it. 
    [Emphasis added.]

[20]

The
    final instruction to the jury on the count involving the gun in the closet (count
    2) presented two possible routes to conviction, the first, based on a finding
    of possession and, the second, on a finding of wilful blindness:

If you are satisfied beyond a reasonable doubt that Levar
    Tyrell possessed the loaded firearm found on the third shelf in the hall
    closet, or
that Mr. Tyrell suspected there was a loaded firearm on the
    shelf in the hall closet in the apartment, realized its probability, but chose
    not to make [inquiries] because he did not want to know the truth, you must
    find him guilty of possession of a loaded firearm with magazine.
[Emphasis
    added.]

[21]

After
    completing her oral instructions and determining that counsel had no objections
    to them, the trial judge gave the jury a written copy of the instructions.  Sometime
    later, the trial judge received a question from the jury.  The question read:

Judge, in the paragraph on constructive possession after point
    D it is stated that passive acquiescence or indifference to the fact is not
    sufficient page 48 of your notes.  Our question:  Sufficient for what? And
    does this mean that if you do nothing about it you are guilty of constructive
    possession or is knowing but doing nothing about it not enough to convict?

[22]

The
    paragraph from the trial judges instructions referred to in the jurys
    question is set out above at para. 15.  Counsel and the trial judge agreed that
    the question was directed at the elements of constructive possession and, in
    particular, the distinction between the knowledge requirement and the control
    requirement.  The trial judge proposed to reiterate the four-point definition
    provided in her initial instructions and emphasize that both knowledge and
    control were required for personal possession and constructive possession. 
    Counsel agreed with the suggested approach.

[23]

The
    trial judge recalled the jury and provided the following additional
    instruction:

Constructive possession just like personal possession requires
    elements of both knowledge and control and so the person has to have knowledge
    of what the object was.  In other words, that it was a firearm; knowledge that
    it was in the possession of somebody else or some other place; consent to it
    being in that other persons possession or place; and fourth, intent to
    exercise some control over it.  And its this element of control that would be
    missing in a passive acquiescence or indifference.


IV



arguments

[24]

Mr. Gourlay submits that the instructions set out above reveal two fatal
    errors.  First, he contends that the charge, read as a whole, would have led
    the jury to understand that it could convict based not only on a finding that
    the appellant knew that the gun was in the closet, but also on a finding that
    he ought to have known.  Mr. Gourlay submits that only actual knowledge will
    suffice to establish the knowledge component of possession.

[25]

Second,
    Mr. Gourlay submits that the trial judge wrongly told the jury that it could
    convict the appellant if he was wilfully blind as to the presence of the loaded
    gun in the closet.  Mr. Gourlay does not argue that the instruction mis-describes
    the wilful blindness doctrine.  He submits, however, that the instruction left
    the jury free to convict the appellant on the charge relating to the gun in the
    closet (count 2) based exclusively on a finding that the appellant was wilfully
    blind as to the presence of the gun in the closet.  He argues that even if the
    appellant was wilfully blind as to the presence of the gun in the closet, he
    could be convicted of possessing the gun only if the jury was satisfied that
    the appellant had some measure of control over the gun.  Put simply, Mr.
    Gourlay submits that the trial judges instruction effectively eliminated the
    control component of constructive possession should the jury conclude that the
    appellant was wilfully blind as to the presence of the gun in the closet.

[26]

Mr.
    Neander responds that the trial judge correctly defined possession in her
    initial instructions.  He refers to the extracts from the charge set out above
    in paras. 14, 15 and 17.  He also points out that the trial judge reiterated
    and, to some extent, clarified those instructions in her response to the jurys
    question (see,
supra
, para. 23).

[27]

Mr.
    Neander submits that the initial instructions on the legal elements of
    possession and the response to the jurys question were correct in law and made
    it clear to the jury that knowledge of the presence of the firearm was an
    essential element of both personal and constructive possession.  Mr. Neander
    points out that the four references to what the appellant ought to have known
    all appear in the part of the trial judges instructions outlining the position
    of the Crown.  He submits that the jury would have taken the legal meaning of the
    knowledge requirement for possession from the part of the trial judges instructions
    in which she specifically dealt with the applicable legal principles and not
    from the part of her instructions in which she summarized the positions of the
    parties, including the Crown.

[28]

On
    the wilful blindness argument, Mr. Neander submits that, read as a whole, the
    charge made it clear that the concept of wilful blindness related to the
    knowledge component of constructive possession and did not diminish or replace
    the other requirements of constructive possession.


V



analysis

(a)

The knowledge instruction

[29]

The crime of possession of a prohibited loaded firearm is a
mens rea
offence requiring knowledge that one is in possession of a loaded firearm:
R.
    v. MacDonald
, 2014 SCC 3, [2014] 1 S.C.R. (3d) 37, at paras. 53-55.  In
    this case, the Crown relied on both personal possession and constructive
    possession.  Each requires knowledge of the thing said to be possessed.  In
R.
    v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 16-17, the court
    described knowledge as it relates to possession in these terms:

On an allegation of personal possession, the requirement of knowledge
    comprises two elements: the accused must be aware that he or she has physical
    custody of the thing in question, and must be aware as well of what that thing
    is.

Constructive possession is established where the accused did
    not have physical custody of the object in question, but did have it in the
    actual possession or custody of another person or in any place, whether or
    not that place belongs to or is occupied by him, for the use or benefit of
    himself or another person   Constructive possession is thus complete where
    the accused: (1) has knowledge of the character of the object, (2) knowingly
    puts or keeps the object in a particular place, whether or not that place
    belongs to him, and (3) intends to have the object in the particular place for
    his use or benefit or that of another person.  [Emphasis omitted.]

[30]

Proof
    of knowledge, or of its close cousin, wilful blindness, demands a subjective
    inquiry.  The question is what did the accused know and not what ought he to
    have known:  see
R. v. Beaver
, [1957] S.C.R. 531, at pp. 538, 541-42. 
    Generally speaking, the doctrine of constructive or imputed knowledge based on
    what a person ought to have known has no place in the criminal law:
R.
    v. F. W. Woolworth Co. Ltd.
(1974), 18 C.C.C. (2d) 23 (Ont. C.A.), at p.
    30:

[31]

The
    trial judge, when instructing on the legal elements of possession, both actual
    and constructive, referred to the appellants knowledge of the thing
    possessed.  Her language described an inquiry into the state of mind of the
    appellant.  However, on four separate occasions the trial judge reminded the
    jury that it was the Crowns contention that the jury could convict based on
    what the appellant ought to have known about the presence of the guns in the
    apartment.  I cannot accept the Crowns submission that the jury would, on its
    own initiative, perceive the difference between the Crowns position and the
    law as explained to them by the trial judge and disregard those parts of the
    Crowns position that were inconsistent with the instructions on the applicable
    legal principles.  In the absence of any instruction, I do not think that a jury
    would necessary understand that a finding of knowledge based on what the
    appellant ought to have known in the circumstances was inconsistent with the
    legal concept of knowledge as explained to the jury by the trial judge.

[32]

The
    jury should not have been concerned in any way with what the appellant ought
    to have known and references to that concept should not have found their way
    either into the position of the Crown or the trial judges instructions.  However,
    having repeated the Crowns argument four times in her instructions, the trial
    judge had to make it clear to the jury that it could not make a finding of
    knowledge based on an assessment of what the appellant ought to have known
    about the presence of either of the guns.  The trial judge had to make it clear
    that, subject to a wilful blindness instruction, proof of knowledge required
    proof of what the appellant actually knew.  Absent a correcting instruction, a
    jury would reasonably assume that the Crowns position repeatedly put to them
    by the trial judge was legally tenable and properly available for consideration
    by the jury.

[33]

The
    repeated references to what the appellant ought to have known, and the
    absence of any instruction that what the appellant ought to have known could
    not support a finding of knowledge, taken together constitute misdirection and
    an error in law.

(b)

The wilful blindness instruction

[34]

In her initial instructions as to the constituent elements of
    possession, the trial judge distinguished between knowledge of the thing said
    to be possessed and control over that thing.  She repeated and, to some extent,
    emphasized that distinction in her response to the jurys question.

[35]

Unfortunately,
    the distinction between the knowledge and control elements of possession disappeared
    when the trial judge introduced the concept of wilful blindness which she
    restricted to the charge relating to the gun in the closet (count 2), the count
    on which the appellant was convicted.  In reference to the appellants
    potential liability on that count, the trial judge expressly told the jury that
    it could convict based exclusively on a finding of wilful blindness.  For
    convenience, I will repeat that instruction:

If you are satisfied beyond a reasonable doubt that Levar
    Tyrell possessed the loaded firearm found on the third shelf in the hall
    closet,
or
that Mr. Tyrell suspected there was a loaded firearm on the
    shelf in the hall closet in the apartment, realized its probability, but chose
    not to make inquiries because he did not want to know the truth, you must find
    him guilty of possession of a loaded firearm with magazine.  [Emphasis added.]

[36]

Neither
    knowledge nor wilful blindness alone can in law establish possession.  The
    Crown must also prove a measure of control over the thing said to be possessed:
R. v. Chalk
, 2007 ONCA 815, 227 C.C.C. (3d) 141, at para. 19.  Absent
    proof of control, the appellant could not properly be found in possession of
    the weapon in the closet, even if he knew that the weapon was in the closet,
    much less if he was wilfully blind to that fact.

[37]

The
    instruction set out above (para. 35) can only be read as a direction to the
    jury that it could convict the appellant of possession of the gun in the closet
    (count 2) either by virtue of his possession of the gun or because he was wilfully
    blind as to the presence of the firearm in the closet.  Liability based
    exclusively on a finding of wilful blindness was wrongly left with the jury as
    a legal alternative to liability based on a finding of possession.  The other
    prerequisites to a finding of possession, especially control of the thing said
    to be possessed, must be proved even if the knowledge requirement is satisfied
    by proof of wilful blindness.

[38]

Although
    the trial judge considered providing a further instruction on wilful blindness
    in response to the jurys question, she concluded, correctly in my view, that
    the question did not involve wilful blindness.  The trial judges response,
    however, left uncorrected the erroneous instructions on wilful blindness in her
    initial charge.

[39]

The
    wilful blindness instruction allowed for a conviction on the charge of
    possessing the gun in the closet (count 2) without any regard to whether the
    appellant had any control over that weapon.  The instruction amounts to an
    error in law.

(c)

Can the proviso be applied?

[40]

In considering the application of the curative proviso, the court looks
    to the seriousness of the error and the strength of the Crowns case.  Both
    legal errors are serious.  They go to the heart of the definition of
    possession, the only issue in dispute at the trial.  Furthermore, the jury
    acquitted on count 1 but convicted on count 2.  The wilful blindness
    instruction related only to count 2.  The verdicts lend some credence to the claim
    that the jury may have convicted the appellant on the charge of possessing the
    gun in the closet based on the erroneous wilful blindness instruction.

[41]

The seriousness of the errors is enough to rule out the application of
    the proviso.  I would add, however, that the case against the appellant was not
    overwhelming.  I would not apply the proviso.


VI



Conclusion

[42]

I
    would quash the convictions and order a new trial on the charges relating to
    the alleged possession of the gun found in the closet.  The acquittals on the
    charges relating to the gun found in the suitcase stand.

RELEASED:  DD  SEP 03 2014

Doherty J.A.

I agree Paul Rouleau
    J.A.

I agree G.J. Epstein
    J.A.





[1]
The appellant appeals three convictions all arising out of his possession of
    the loaded prohibited firearm.  It would appear from the endorsements on the
    indictments that the parties agreed that the jury would decide the possession
    charge and, depending on its verdict, the trial judge would convict or acquit
    on the related charges set out in a companion indictment.



[2]
The transcript contains the words as of and not the word passive.  However,
    based on the written copy of the instructions and the jurys question, it is
    clear that the word should be passive.


