ONTARIO COURT OF JUSTICE

CITATION: R. v. Bidawi, 2015 ONCJ 634

DATE: May 28, 2015·

COURT FILE No.: Toronto

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

FAWZI BIDAWI

Before Justice Leslie Pringle

Heard on June 7, 2013; July 23, 2013; July 24, 2013; September 16, 2013; December 3, 2013; December 5, 2013; December 12, 2013; December 13, 2013; December 17, 2013; January 7, 2014; August 5, 2014; August 7, 2014; November 4, 2014; March 26, 2015

Reasons for Judgment released on April 21, 2015

Mr. P. Clement ......................................................................................... counsel for the Crown

Mr. P. Floyd and Mr. P. Scotland; Mr. E. Ehlers ................... for the defendant Fawzi Bidawi

PRINGLE J.:

1. Introduction and Overview

[1] Fawzi Bidawi is a lawful gun owner and the owner of a security company named Life Safety and Security Investigations Inc. He has a Private Security and Investigative Licence, and holds a Firearms Possession and Acquisition Licence that permits him to possess non-restricted and restricted firearms.

[2] In June of 2012, the police had information that Mr. Bidawi was driving with a shot gun mounted on board his motor vehicle. On June 21, 2012 the police allege that they saw him leave his motor vehicle unattended with a gun visible in a centre mount for over an hour while it was parked at 2130 Lawrence Ave. East. It is an offence under s.86(2) of the Criminal Code to transport a shotgun contrary to s.10 of Regulation SOR/98-209 by leaving it in an unattended motor vehicle if the gun is visible from outside the vehicle: count 2.

[3] On June 27, 2012 the police executed a search warrant at Mr. Bidawi’s home at 1002 Warden Ave. West. While some firearms and ammunition were found properly stored in the basement, Det. Cst. Strain testified that he found a shot gun simply leaning in the corner behind the door in an unlocked bedroom, with 5 shot gun shells in the side saddle attached to the gun. He also found an ammunition bandolier containing an additional 25 shot gun shells on the dresser in the same room. It is alleged that the manner of storing this shotgun was contrary to s.5 of Regulation SOR/98-209, amounting to careless storage of a firearm pursuant to s.86(2) of the Criminal Code: count 3.

[4] This has been a long trial, which began on June 7, 2013 with a Garofoli application to challenge the search warrant. At trial, the Crown called a number of police witnesses and a firearms examiner.

[5] At the end of the Crown’s case, Mr. Bidawi discharged his previous counsel and retained new counsel, Mr. Ehlers. I permitted the Defence to re-open the case and recall certain witnesses for additional examination in relation to Charter issues. Ultimately, the Charter application was abandoned.

[6] As was his right, Mr. Bidawi elected not to testify or call evidence on the trial proper.

[7] I heard final submissions on the trial issues on March 26, 2015. I have concluded that, notwithstanding Mr. Ehlers’ able submissions, the Crown has proven both charges beyond a reasonable doubt. Accordingly, Mr. Bidawi will be found guilty on counts 2 and 3. Let me explain the reasons for my decision.

2. Count 2: careless transportation of a firearm on June 21, 2012

[8] Mr. Bidawi is charged in count 2 of the Information with careless transportation of a firearm on June 21, 2012 contrary to s.86(2) of the Criminal Code and s.117(h) of the Firearms Act.

[9] Section 10 of Regulation SOR/ 98-209 made pursuant to s.117(h) of the Firearms Act relates to transportation of a firearm. It states:

(2) ….an individual may transport a non-restricted firearm in an unattended vehicle only if…

(b) when the vehicle is not equipped with a trunk or similar compartment that can be securely locked, the non-restricted firearm is not visible from outside the vehicle and the vehicle, or the part that contains the non-restricted firearm, is securely locked.

[10] Det. Cst. Harris testified that on June 21st, he saw Mr. Bidawi leave his home at 1002 Warden Ave carrying a black pump action style shot gun. The gun appeared to have a side saddle or ammunition carrying attachment on the side that was loaded with 5-6 rounds of green shot gun ammunition. Det. Cst. Harris said he saw Mr. Bidawi open the door of a black Suburban, licence BMRZ 984, and place the gun somewhere in the front seat and then drive off.

[11] The officer followed Mr. Bidawi to the bank, and then to 2130 Lawrence Ave E. At that location, Det. Cst. Harris saw Mr. Bidawi park the car, get out, and walk into the building. The officer then approached the vehicle and looked through the windshield. There was no one in the vehicle, but inside the car, he said he saw the shot gun mounted in between the seats, clearly visible.

[12] Det. Cst. Harris testified that the gun he saw had a large distinctive front sight, with a flashlight mounted on the barrel, with a black sling attached to carry it. At the time, he believed it was a Mossberg 500. He did not handle the gun on June 21st, so he could not say if it was operable. However, since he observed a trigger lock in place, he believed it was operable, and stated that in his mind there was no doubt that it was a firearm.

[13] In court, Det. Cst. Harris identified a photograph of the shotgun seized from Mr. Bidawi’s home on June 27, 2012 as being identical to the one that he saw in Mr. Bidawi’s vehicle on June 21, 2012.

[14] Det. Cst. Dwyer testified that the shotgun seized on June 27, 2012 was a 12 gauge centre fire pump action shot gun. He confirmed that it met the definition of a non-restricted firearm. He also tested one of the five Remington shot gun shells submitted to him, and confirmed that it was “ammunition”.

[15] On behalf of Mr. Bidawi, Mr. Ehlers makes 4 submissions:

1. That the concession by former counsel regarding admissibility of the photographs of Mr. Bidawi’s vehicle and the gun that is alleged to be visible in it on June 21, 2012 should not be honoured (EX3 and EX4);

2. That the evidence of D.C. Beard and D.C. Harris regarding who took the photographs of Mr. Bidawi’s vehicle and the gun that is alleged to be visible in it, as well as what these officers claimed to have observed with their own eyes, was inconsistent and unreliable;

3. That the Crown has failed to prove beyond a reasonable doubt that what the officers said they saw was a real, operable, firearm;

4. That the Crown has failed to prove beyond a reasonable doubt that the vehicle was unattended.

2.1 Admissibility of the Photographs

[16] It is well-established law that an objection to the admissibility of evidence must be made at the time that it is tendered: see R. v. Gundy, 2008 ONCA 284 at paras.19-23. Even if new counsel for Mr. Bidawi disagreed with a concession made by former counsel regarding the admissibility of the photographs, it should have been raised at the time new counsel came on board so that the issue could have been addressed. As Mr. Justice Finlayson noted in R. v. Kutynec (1992), 1992 CanLII 7751 (ON CA), 70 C.C.C. (3d) 289 at pp.294-295:

The orderly and fair operation of the criminal trial process requires that the Crown know before it completes its case whether the evidence it has tendered will be received and considered in determining the guilt of an accused. The ex post facto exclusion of evidence, during the trial, would render the trial process unwieldy at a minimum.

[17] The photographs at issue here were tendered into evidence on December 3, 2013, and new counsel made submissions on other issues - but not this one - on August 5, 2014. In my view, it is far too late in the day and contrary to the interests of justice to re-visit the issue of admissibility at the time of submissions in 2015.

[18] With respect to the issue of weight, I acknowledge that on their own, the photographs are not particularly clear and do not shed much light on what was in Mr. Bidawi’s vehicle on June 21, 2012. It is only in the context of Det. Cst. Beard and Det. Cst. Harris’ testimony that the photographs take on any real evidentiary significance.

2.2 D.C. Beard and Harris’ Testimony

[19] Det. Cst. Beard testified that from a distance, he could see the silhouette of the stock and barrel of the firearm through the window of Mr. Bidawi’s vehicle window at the bank on June 21, 2012. When he went up to vehicle, he saw that the gun had a black barrel, a black fore stalk with a distinctive front site, a sling draped over the barrel, and a side saddle with green ammunition in it. He thought there was something similar to a light on the gun.

[20] Det. Cst. Harris made similar observations at 2130 Lawrence Ave E., and identified EX 3 and EX 4 as photographs of Mr. Bidawi’s car, with the shotgun visible and mounted between the two front seats in EX 3, and a portion of the sling visible on a zoom photo in EX 4.

[21] Mr. Ehlers submits that the evidence of the officers about what they saw in Mr. Bidawi’s vehicle is unreliable because they could not recall who took the photographs. While Det. Cst. Beard testified in his evidence that he took the photographs, Det.Cst. Harris initially testified that it was him who had taken the photographs. Later, Det. Cst. Harris conceded that he couldn’t say who took them.

[22] I can’t agree that the officers’ evidence was unreliable because Det. Cst. Harris was unsure if it was him or Det. Cst. Beard who had taken the photographs. Each officer testified about their personal observations, and their evidence was detailed and consistent. It was corroborated by the photographs, regardless of who took them. In my view, the totality of the evidence was clear and credible as to what the officers saw in Mr. Bidawi’s vehicle.

2.3 Proof that What They Saw was a Firearm

[23] In offences involving a firearm, the Crown must prove beyond a reasonable doubt that the weapon was capable on its own or through adaption or assembly of being loaded and fired with the potential of causing serious bodily harm or death: see R. v. Covin,[1983] S.C.J. No. 53 at p.4.

[24] An inoperable gun, missing a fundamental part such as a breech bolt, and incapable of being rendered operable on the scene is not a firearm: see R. v. Smith, [2008] O.J. No. 752 (C.A.) at paras.5-7.

[25] On the other hand, our Court of Appeal has said that it is not necessary for the gun to be recovered in order for the Crown to prove that the weapon was a real firearm. Inferences can be made that a gun is a real firearm from circumstantial evidence such as:

• The complainant’s clear belief that it was a gun, her description of the object, the appellant’s conduct in relation to it, together with his threat to shoot: see R. v. Charbonneau, [2004] O.J. No. 1503 (C.A.) at para.3

• The appellant had ready access to guns and brandished a small black gun with a 6 to 8 inch muzzle, waved it around and pointed it at the employee’s head: see R. v. Carlson, [2002] O.J. No.1884 (C.A.) at para. 16

• The description of the gun, the circumstances surrounding its use by ordering witnesses to the floor and pressing a gun to their heads, together with evidence that the appellant had ready access to guns: see R. v. Richards, [2001] O.J. No. 2286 (C.A.) at para.4

[26] Similarly, surrounding circumstances that included a threat to shoot or kill the victim have been held sufficient by trial courts to warrant a conviction, and by preliminary inquiry courts to order a committal for trial: see R. v. Dunchie, [2006] O.J. No. 5455 (S.C.J.) at paras. 23 and 55; R. v. Abdullah, [2005] O.J. No. 6079 (S.C.J.) at para. 29; and R. v. Wilson, [2006] O.J. No. 3065 (O.C.J.) at para 6.

[27] As Eberhard J. put it succinctly in R. v.Mills, [2001] O.J. No. 3675 (S.C.J.) at para. 19, “where all the circumstances lead to an inference that the item looking like a firearm is a firearm, it is open to the trier of fact to draw such an inference”.

[28] Here, the police did not seize the item they believed to be a firearm on June 21, 2012. However, their observations were that it looked like a firearm and appeared to have a side saddle containing ammunition attached to it. Det. Cst. Harris believed it was a firearm. The item was trigger locked.

[29] While no one was able to test the gun or the ammunition at the time to confirm that it was real and operable, I agree with Det. Cst. Harris’ observation that there would be little point to having a trigger lock in place for an inoperable or imitation firearm. Moreover, there would seem to be no reason to have shot gun shells attached to a non-functioning gun. These factors lead to a reasonable inference that this was a real firearm in operable condition.

[30] I believe there is also a reasonable inference that the shotgun seen by Det. Cst. Harris on June 21st was the same one seized by police on June 27th. Det. Cst. Harris identified the gun carried by Mr. Bidawi on June 21st as a black pump action style shot gun with a carrying sling, a distinctive front sight and a flashlight mounted on the barrel. There were 5-6 rounds of shot gun ammunition in the side saddle attached to the gun. He believed it was a Mossberg 500.

[31] According to Det. Cst. Dwyer, the gun seized from Mr. Bidawi’s residence was an operable firearm, described as a black pump action shotgun, Mossberg Model 500. Exhibits 10A and B depict an attachment to the butt of the gun containing 5 shot gun shells and there is a strap or sling attached for carrying the gun. There is a large front sight and a flashlight attached to the barrel. It was found in a bedroom in Mr. Bidawi’s home.

[32] Based on this evidence of identical characteristics of the gun in Mr. Bidawi’s possession in his vehicle on June 21st and in his home six days later on June 27th, there is a compelling – in fact, overwhelming - inference that it was the same gun.

[33] In my view, the Crown has proved beyond a reasonable doubt that the item observed on June 21st was a firearm.

2.4 Proof that the Vehicle was Unattended

[34] On behalf of Mr. Bidawi, Mr. Ehlers submits there is no evidence that there was no one else in the vehicle, or in the alternative, that it would be “unsafe” to find this element of the offence has been proven beyond a reasonable doubt.

[35] I disagree.

[36] When Det. Cst. Harris began observing Mr. Bidawi’s vehicle in the driveway at his home at 1002 Warden at 9.10 a.m. on June 21, 2012, he didn’t see anyone interact with the vehicle until 11.38 a.m. At that point, Mr. Bidawi left his house with a gun and got into his car: he was alone. The officer followed Mr. Bidawi to the bank, and when Mr. Bidawi went into the bank, Det. Cst. Beard looked into the vehicle and saw there was no one sitting in the seats. When Mr. Bidawi returned from the bank, got into his car and drove to 2030 Lawrence Ave. E., he was still alone.

[37] At 2030 Lawrence Ave. E., Det. Cst. Harris testified that he tried to look in through the vehicle window to determine if there was actually anybody inside, and testified that, “he could not see anybody inside it at all”. While he couldn’t tell if someone was lying down in the back, he never saw anyone who appeared to have any control of the vehicle after Mr. Bidawi left it from 12.08 p.m., until 1.15 p.m. while the car was under continuous observation. At the time, it was 32 degrees Celsius outside, and the car was not running.

[38] Looking at the totality of the evidence, there is simply no air of reality to the suggestion that someone may have been lying in the back of the vehicle.

[39] This element of the offence is proven beyond a reasonable doubt as well. Accordingly, I will register a finding of guilt on count 2.

3. Count 3: careless storage of a firearm on June 27, 2012

[40] Mr. Bidawi is charged in count 3 of the Information that he carelessly stored a firearm on June 27, 2012 at his home, contrary to s.86(2) of the Criminal Code and s.117(h) of the Firearms Act.

[41] The police entered Mr. Bidawi’s home on June 27, 2012 pursuant to a search warrant. Det. Sgt. Nair opened the locked side door to Mr. Bidawi’s home with a key from Mr. Bidawi’s key ring. There was no one in the home at the time.

[42] Det. Cst. Strain testified that once inside the side door of the home, there were no physical barriers in place prior to reaching the bedroom in the northwest corner of the home. The door to this bedroom was open, and the shotgun in Exhibit 10 was leaning in the corner behind the door, with the side saddle containing ammunition attached to the gun. A bandolier with 25 additional rounds of ammunition was found lying on top of the dresser in that room.

[43] Section 5 of Regulation SOR/ 98-209 made pursuant to s.117(h) of the Firearms Act relates to storage of a firearm. It states:

(1) An individual may store a non-restricted firearm only if

(a) it is unloaded;

(b) it is

(i) rendered inoperable by means of a secure locking device,

(ii) rendered inoperable by the removal of the bolt or bolt-carrier, or

(iii) stored in a container, receptacle or room that is kept securely locked and that is constructed so that it cannot readily be broken open or into; and

(c) it is not readily accessible to ammunition, unless the ammunition is stored, together with or separately from the firearm, in a container or receptacle that is securely locked and that is constructed so that it cannot readily be broken open or into.

[44] Here, it is not disputed that the shotgun found in the bedroom in Mr. Bidawi’s home was a non-restricted firearm that met the definition of a firearm in the Criminal Code. It is also conceded that the ammunition found attached to the gun and on the dresser was live ammunition, capable of being fired in the gun. Finally, is agreed that the storage requirements in s.5(1)(a) and s.5(1)(b)(i) of the Regulation were met: that is, the gun was not loaded and there was a trigger lock in place.

[45] The Crown alleges however, that there was a breach of s.5(1)(c) relating to storage of a firearm that was “readily accessible to ammunition”.

[46] On behalf of the Crown, Mr. Clement submits that the shotgun was readily accessible to ammunition because there was ammunition in the side saddle, attached to the gun itself.

[47] On behalf of the Defence, Mr. Ehlers submits that the firearm was not readily accessible to ammunition because the gun was trigger-locked and not readily able to be used with the ammunition. In his submission, “accessibility” is not about proximity, but rather about how readily the firearm and ammunition can be used together.

[48] In support of this proposition, the Defence relies on R. v. Thomson, 2013 ONCJ 39, where Justice Colvin stated:

In my view to assess readily available I must look at how “readily” the ammunition and the firearm can be brought together. The section looks at the firearm, and how it is stored. How quickly can it be put with the ammunition? To my mind Parliament wanted firearm users to be deliberate, and considered in accessing firearms and ammunition, particularly restricted and prohibited ones. For this reason it is illegal to store a loaded firearm for example.

[49] In that case, Colvin J. accepted or was left with a reasonable doubt by the Defendant’s testimony that the firearm was stored in a locked vault with a key. The judge further accepted the Defendant’s evidence regarding the steps that he had to take in order to obtain the key, unlock the vault where the gun was stored, and then put it together with the ammunition from the drawer of the bedside table before using the gun. Having found that “there had to be a series of considered actions on [the Defendant’s] part before the firearm could be discharged”, Colvin J. found the gun was not “readily accessible” to the ammunition, and found the Defendant not guilty.

[50] In my view, Thomson is distinguishable. In Thomson, the Defendant testified regarding the defence of due diligence, and explained the steps that he had to take to render the firearm “accessible” to the ammunition by taking the firearm out of a locked safe. Here, there was no evidence of due diligence, and any series of considered actions necessary to render the firearm accessible to the ammunition remain a matter of speculation or conjecture.

[51] Moreover, I can’t agree with Mr. Ehlers’ submission that simply trigger-locking an unloaded firearm is sufficient to meet the requirements of the Regulations. The plain reading of Regulation 5 is that the firearm must be (a) unloaded; (b) securely locked or rendered inoperable; and (c) not readily accessible to ammunition unless the ammunition is stored in a securely locked container. In other words, meeting the requirements of (a) and (b) alone are not sufficient, since all three parts of s.5 must co-exist: see R. v. L.V.R., 2011 BCSC 1152 at para.209.

[52] While a defence of due diligence with respect to the efforts by the accused to meet the prescribed standards is available, (see R. v. Smillie, 1998 CanLII 7050 (BC CA), [1998] B.C.J. No. 2082 (C.A.) and R. v. Porter, [2007] B.C.J. No. 809 (C.A.)), there was no evidence of due diligence here. As the Crown says, it’s hard to imagine ammunition being much more readily accessible than it was here, where it was actually in a side saddle, attached to the gun.

[53] The plain requirements of s.5(c) were not complied with here: the firearm was readily accessible to ammunition which was not stored in a securely locked container or receptacle.

[54] I find that the Crown has also proven count 3 beyond a reasonable doubt. (Counts 1 and 4 were previously dismissed.)

Signed: “Justice Leslie Pringle”