



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dawson, 2018 ONCA 458

DATE: 20180515

DOCKET: C63069

MacFarland, Watt and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jesse Dawson

Appellant

Breana Vandebeek, for the appellant

Craig Harper, for the respondent

Heard: May 14, 2018

On appeal from the convictions entered on September 7,
    2016 and the sentence imposed on January 19, 2017 by Justice Graeme Mew of the Superior
    Court of Justice, sitting without a jury, with reasons for judgment reported at
    2016 ONSC 5601 and reasons for sentence reported at 2017 ONSC 473.

REASONS FOR DECISION

OVERVIEW AND ISSUES

[1]

Jesse Dawson was convicted of a number of possession offences as the
    result of events that occurred while he was visiting the ground-floor apartment
    of his friend, Alex James, which the police had under surveillance.
[1]


[2]

After being in the apartment for approximately two hours, Mr. Dawson exited
    into the hallway. When he saw police officers lurking outside the apartment, he
    fled back inside. Seconds later he followed a young person, D.F., out a bedroom
    window at the back of the apartment.

[3]

Some of the items the trial judge found that Mr. Dawson possessed  a Browning
    semi-automatic handgun, cocaine, and a scale  were found in the snow outside of
    that window. Other items  marijuana and money found to be the proceeds of
    crime  were found in plain view in the bedroom itself, where Mr. Dawson had
    spent time earlier that day.

[4]

There is no direct evidence as to how the gun, cocaine, and scale came
    to be outside. Mr. Dawsons appeal counsel concedes that the trial judge was nonetheless
    entitled to infer on the evidence, including the warmth of the items on the
    snowy ground, that these items had been inside shortly before they were discovered.
    However, Mr. Dawson argues that the trial judge should not have made the
    inference that he was the one who placed the gun, cocaine, and scale there.

[5]

Mr. Dawson urges that these items reasonably could have been thrown from
    the window by someone else, or that D.F. could have dropped them while fleeing.
    Given that there is more than one reasonable inference on the evidence, Mr.
    Dawson contends that it was unreasonable for the trial judge to infer that he possessed
    the gun and cocaine.

[6]

He also argues that the trial judge took improper judicial notice that
    the positioning of the items in the snow showed that they were dropped, not
    thrown.

[7]

Mr. Dawson further argues that the trial judge misapprehended evidence
    that Mr. Dawson made a spontaneous exculpatory statement upon arrest, as well
    as evidence about whether he was wearing a black jacket when he fled.

[8]

Finally, Mr. Dawson urges that his conviction for the possession of the items
    found in Mr. James bedroom was unreasonable.

ANALYSIS

A.

The Reasonableness of the Gun and Cocaine Possession Convictions

[9]

It was reasonable for the trial judge to infer that Mr. Dawson dropped
    the cocaine, gun, and scale on the snow as he fled the apartment.

[10]

Mr.
    James testified that D.F. and Mr. Dawson were near the rear bedroom window
    after Mr. Dawson fled inside after he saw the police in the hallway. Mr. James placed
    all of the other occupants elsewhere in or near the bedroom. Mr. Dawson
    testified that he did not see D.F. throw anything out of the window. The trial
    judge was entitled to find that given the quick retreat that was occurring,
    no-one else had a realistic opportunity to throw items out the window.

[11]

A
    police officer also saw D.F. exit the window. He did not testify to observing D.F.
    throw anything out before doing so, or to seeing him carrying anything as he
    exited. He said that he did not see anything being thrown out of the window
    after D.F. exited.

[12]

D.F.
    was wearing a golf shirt, jeans, and no shoes, making it unlikely that the gun,
    cocaine, and scale that were recovered would have been secreted on his person. The
    police officer also testified that D.F. also began to run immediately after
    hitting the ground, taking no actions that would suggest he dropped anything.

[13]

All
    of this evidence supports the inference that the items which originated in the
    apartment were not thrown out of the window, and were not carried by D.F. when
    he exited.

[14]

By
    contrast, Mr. Dawson was wearing either a grey hoodie with a front pouch and/or
    a black jacket when he exited the window. He therefore had the capacity to hold
    the items in his clothing.

[15]

Immediately
    after Mr. Dawson exited the window, the police officer testified that he saw Mr.
    Dawson crouch and then stand in the very area where the gun, cocaine, and scale
    were located. Although his precise actions while crouching could not be seen, Mr.
    Dawson's pause before running gave him the opportunity to jettison the items
    before running  an opportunity D.F. did not realistically have.

[16]

Finally,
    the trial judge was entitled to find, notwithstanding Mr. Dawsons testimony to
    the contrary, that Mr. Dawson knew that the men in the hallway were police
    officers. The trial judge had evidence before him that the officers identified
    themselves as police officers, and that Mr. Dawson looked directly at the one
    officer who was in uniform.

[17]

In
    the context of all of this evidence, Mr. Dawsons reaction to seeing the
    officers supported the reasonable inference that Mr. Dawson fled because he was
    holding the gun, cocaine, and scale when he retreated into the apartment. Put
    otherwise, his urgent, direct flight out the window upon seeing the officers,
    coupled with the discovery of items that only he had a realistic opportunity to
    jettison, help sustain the mutually supporting inference that Mr. Dawson fled
    from the police because he had the contraband with him when in the hallway.

[18]

The
    inference that Mr. Dawson was the one who had possession of the gun and cocaine
    before they were left in the snow outside of the window was therefore the only reasonable
    conclusion open to the trial judge. The trial judge was entitled to find that
    the Crown proved the elements of the offence beyond a reasonable doubt.

B.

The Judicial Notice Objection

[19]

We
    do not agree that the trial judges conclusion, at para. 85 of his reasons,
    that the way the gun was resting in the snow suggested that it was placed or dropped
    rather than jettisoned from inside constitutes improper judicial notice. This
    was nothing more than a factual inference drawn by the trial judge from the
    testimony of Cst. Caccia that the items appeared to have just been dropped
    there in the snow.

[20]

However,
    we do agree that this factual inference is controversial. Cst. Caccia does not
    appear to have intended to communicate that he inferred that the items had been
    dropped as opposed to thrown, and there was arguably no objective evidence
    about the posture of the gun that could support an inference that it was
    dropped and not thrown. Nevertheless, even if this reasoning does reflect a
    misapprehension of the evidence by the trial judge, it has not resulted in a miscarriage
    of justice. The trial judge had ample bases on the other evidence available to
    come to the conclusion that Mr. Dawson possessed the items found outside.

C.

The Exculpatory Statement

[21]

We
    do not accept that the trial judge misapprehended the evidence about the
    statement Mr. Dawson made after arrest. That statement was made after Mr.
    Dawson was brought back into the apartment where all of the other arrested
    suspects were being held. He testified that he said, after learning that a gun
    had been discovered, Someone fess up to your shit. Police witnesses testified
    that Mr. Dawson said something to the effect of, We know theres a gun in
    there (or here). Someone own (or fess) up to it.

[22]

This
    evidence was admitted pursuant to the authority of
R. v. Edgar
, 2010
    ONCA 529, 101 O.R. (3d) 161. Mr. Dawsons complaint is that the trial judge
    dismissed the significance of this evidence in a single sentence, at para. 91
    of his reasons: Mr. Dawsons subsequent utterance about fessing up could have
    been either self-serving or exculpatory. He urges that the trial judge
    obviously did not appreciate the significance of the evidence.

[23]

Clearly,
    the trial judge was not moved by Mr. Dawsons implicit declaration of
    innocence. Even assuming the more exculpatory version of the statement, the
    trial judge was entitled to give the statement no weight and concise treatment.
    The persuasive value of
Edgar
evidence is linked to its spontaneity,
    which gives support to the prospect that the denial of guilt was made with
    little opportunity to reflect. In the circumstances of this case, Mr. Dawson
    had ample opportunity to consider his situation before his words were uttered.
    The trial judge reasonably concluded that this was not compelling evidence of
    innocence, in all of the circumstances.

D.

The Black Jacket

[24]

Nor
    did the trial judge misapprehend the evidence about whether Mr. Dawson was
    wearing a black jacket when arrested. The trial judge was entitled to accept
    the testimony provided by several police officers that Mr. Dawson was not
    wearing a jacket at that time, and that he was given the jacket after his
    arrest, inside the apartment.

[25]

Mr.
    Dawson also contends that the trial judge erred when making the black jacket
    finding based on the belief that the police officers who offered this testimony
    would not engage in serious police misconduct by conspiring to lie about what
    Mr. Dawson was wearing. In coming to his conclusion, the trial judge was
    entitled to consider the fact that several police witnesses were saying the
    same thing. In our view, this is all his reasons say. He was not inferring that
    because police officers are unlikely to lie, Mr. Dawson was wearing a black
    jacket. Indeed, in an earlier
Charter voir dire
the trial judge
    demonstrated that he does not consider police officers to carry unique
    credibility:
R. v. Dawson
, 2016 ONSC 3461.

E.

the reasonablness of the Proceeds and Marijuana possession convictions

[26]

Finally,
    the trial judge did not err in finding that Mr. Dawson was in possession of the
    marijuana and the proceeds of crime that were lying in plain view on the bed in
    the bedroom he was in. There was clear evidence that drug trafficking was being
    carried on in connection with the premises, and Mr. Dawson had just spent a
    protracted period of time with its other occupants in the immediate presence of
    the marijuana and drug proceeds. While doing so, he was carrying tools of the
    drug trafficking trade  the gun, cocaine supply, and scales. It was reasonable
    for the trial judge to infer in these circumstances that the items in the room
    were jointly possessed by Mr. Dawson and the others present.

CONCLUSION

[27]

We
    therefore dismiss Mr. Dawsons conviction and sentence appeals in their entirety.

J. MacFarland J.A.

David Watt J.A.

David M. Paciocco J.A.





[1]

Mr. Dawson was convicted of offences under ss. 91,
    92, and 354 of the
Criminal Code
, R.S.C. 1985, c. C-46 and ss. 4(1) and 5(1) of the
Controlled Drugs and Substances Act
, S.C. 1996, c. 19.


