IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT:  This is my decision.

[2]           During this trial, the accused Matthew Lazarowich pleaded guilty to counts of:

[3]           During the trial, the Crown stayed four charges and I dismissed two other charges.  A full trial was conducted of the following counts:

[4]           I will refer to these three counts as the gun charges.

[5]           It is not contested that the Crown proved that the gun was a firearm.  It is not contested that the Crown proved that this particular gun was a restricted or prohibited firearm and that readily accessible ammunition capable of being discharged in the firearm was found near the gun.  It is not contested that the Crown proved that the accused was not a holder of a licence and registration certificate that would entitle him to possess the firearm.  It is also not contested that the Crown proved that the firearm did not have a legible serial number and that the place where the serial number is placed had markings as if the number had been filed or effaced. 

[6]           It is contested that the Crown has proved that the accused possessed the gun as required for a conviction on each of the three charges.  Possession requires knowledge and control.  Because the gun and ammunition were found in the car that the accused was driving, the defence conceded that control had been established. 

[7]           Defence and Crown counsel agreed that the key issue on the trial of these charges is whether the Crown has proved beyond a reasonable doubt that the accused had knowledge that the gun was in the car. 

[8]           It is not contested that the accused fraudulently came into possession of a black BMW on March 4th, 2013.  On March 19th, 2013, the accused was observed by police driving the BMW and he was arrested at a mall in Surrey, British Columbia.

[9]           Constable Miles testified that she searched the BMW at the time of the takedown.  She started her search by observing the front passenger seat of the BMW from the open driver's door.  From that vantage point, she observed a white plastic bag on the front passenger seat and a black leather bag which she called a "man purse" wedged between the console and the front passenger seat.  She removed the black bag from where it was stored in the vehicle and searched its contents.  She found a handgun and a clip in the black bag.  There were seven bullets in the clip.  The serial number on the gun was filed off; the bag was zipped shut when she found it. 

[10]        Constable Miles did not take a photograph of the bag in the location where she found it or any photos of the interior of the vehicle prior to searching and removing items from the vehicle. 

[11]        The vehicle was towed back to the police station.  At the police station, Constable Miles put all items back in the vehicle.  It was only then that she took photos.  These photos were entered as an Exhibit in the trial.  While she testified that she put the bag back close to where she had remembered finding it, she admitted that she was not able to remember exactly where she found every item, including the black bag.  As a result, I find these photos to be of little assistance to the Crown to establish how visible the bag was from the driver's door and seat. 

[12]        The bag is a slim, black, leather Coach brand bag with a top zipper, a side zipper, and a shoulder strap.  It measures 7.25 inches wide and 8.75 inches long and is approximately one quarter of an inch thick when empty.  I would not describe the bag as a typical man purse.  I consider the term man purse to usually refer to a shaving kit sized clutch purse with a zipper closing.  The term man purse could possibly also encompass a courier-type bag with a shoulder strap that is large enough to hold a laptop computer.  The bag that was found was not like either of these types of bags that are more typically marketed to and used by men. 

[13]        Constable Maione confirmed that he sent the gun and the ammunition for forensic analysis but that the Crown had no forensic reports to offer as evidence linking the bag, the gun, the clip, or the ammunition to the accused through DNA or fingerprinting analysis. 

[14]        The accused testified.  The criminal record that was tendered by the Crown at his bail hearing on April 5th, 2013 was filed as an Exhibit and he confirmed that it was complete and accurate.  It is an extensive record of primarily property offences including forms of fraud.  Since his arrest on March 19th, 2013, he has not been convicted of or charged with any other criminal offences with the exception of the offences to which he has pleaded guilty in these proceedings.

[15]        He was released from incarceration for prior convictions on September 28th, 2012.  He stayed at his sister's residence for a few days and then lived with friends, moving frequently from one residence to another.  Shortly after his release, he began engaging in fraudulent activity again. 

[16]        He testified that he has been addicted to crystal methamphetamine since he was 16 years old.  As of March 2013, he was using approximately one quarter of an ounce that cost him between $400.00 and $600.00 per day.  The cost fluctuated with the price.  The amount consumed remained roughly the same.  He usually smoked it with a glass pipe but he snorted it when working because it was quicker and allowed him to avoid detection.  Meth kept him up and calmed him down.  It did not affect his memory. 

[17]        He was approached by dealers from whom he had bought drugs and who asked him to sell for them.  It was less risky than credit card fraud where his face was likely to be caught on camera when using the card.  He started selling drugs at the end of January 2013 with four guys:  Joey, Gary, Chris and Roger.  Joey was in charge.  It is a dial-a-dope operation.  He gives his cell phone number to customers who place orders and the location where the drugs can be delivered and where he can pick up the money. 

[18]        At first he used rental vehicles.  Then he obtained the BMW fraudulently and used it in his operation.  The guys he worked with had identification documents.  He told the guys he worked with that he had done fraud.  He applied for and got financing on line.  He went down to the Coquitlam Chrysler dealership, picked out a car, signed the paperwork and took possession of the BMW on March 4th, 2013. 

[19]        They used two vehicles in the dial-a-dope operation, a Jeep SUV and the BMW.  All five men had access to these vehicles.  He identified the Jeep as the one in the videos taken at the McDonald's and at Lougheed Mall that were entered as Exhibits in the trial.  The BMW was the one that he obtained from Coquitlam Chrysler.

[20]        Four dealers regularly worked 12-hour shifts on a rotating basis.  He worked 12 hours with one vehicle and then had 12 hours off.  He then worked 12 hours with the other vehicle and had 12 hours off.  Joey used the vehicles but was not usually part of the scheduled shifts. 

[21]        He would meet up with the next guy at the end of his shift who would drop him off where he was staying and carry on with the car for his shift.  He had no idea who else had access to the two vehicles when he was not with them.  He denied using either vehicle to transport his family, his friends, or his girlfriend.  It was a working car.

[22]        He testified that on March 19th he was going on shift.  Joey was coming off shift in the BMW.  He picked the accused up at a friend's house where the accused was staying at that time.  Joey moved to the passenger seat and the accused drove.  The plan was to drive Joey home.  They stopped at a crack shack so that Joey could drop some drugs off with Chris.  Chris came out of the crack shack to the parked BMW and picked up a small bag of drugs from Joey.  They did not get out of the car.

[23]        The accused then drove Joey to Joey's house where they were to wait for someone to drop drugs off.  They stayed for about an hour.  The accused decided to go to the store in the mall where the arrest occurred to buy some boots for his girlfriend.  When he got to the mall parking lot, Joey called him indicating that he had the drugs and the accused could come by and pick them up. 

[24]        He was in the course of leaving the parking lot when the takedown occurred.  There were no drugs in the car when he was arrested.  He was carrying a wallet with between $300.00 and $400.00 in it.  The wallet was marked as an Exhibit.  The Exhibit had cash in it – five $20.00 bills.  No cash has ever been returned to him by the police.  His personal effects included about $2.00 in cash that he had in his pocket. 

[25]        He acknowledged that being involved in a dial-a-dope operation could be dangerous as he was carrying drugs and cash.  When asked whether he ever carried a gun, he answered, "Definitely not."  He denied ever having a gun with him in the SUV or ever seeing anyone with a gun in the SUV.  He denied ever having a gun in the BMW or ever seeing anyone with a gun in the BMW.  He was never robbed of drugs or money while engaged in the dial-a-dope operation from late January 2013 to March 19th when he was arrested, and no one ever attempted to steal from him.  He testified that the BMW was driven approximately 20,000 kilometres in the period from March 4th when he obtained it to March 19th when he was arrested, a high level of use. 

[26]        After his arrest, the accused remained in custody for about a month.  Since his release he has had no contact with Joey, Chris, Roger or Gary.  None of them have contacted him to enquire about the gun and he has not asked any of them about it.  He promised Judge de Couto when he was released that he would be good and he has kept his word. 

[27]        Upon his release he went to Vision Quest.  He was under house arrest for a total of seven and a-half months when he could only go out with an approved Vision Quest representative to AA and NA meetings or to work.  He has done well since his release.  He has finished his treatment, works in construction, lives with his girlfriend in the basement suite in the home of one of the Vision Quest managers and is expecting a baby girl next month.

[28]        He denied knowing that there was a bag between the console and the passenger seat in the BMW.  He denied knowing that there was a firearm or ammunition in the bag.  He only became aware of the gun when the police had him out of the car and on the ground with cuffs on.  The officers were jumping around saying, "We've got a gun, we've got a gun."  He denied seeing the bag between the console and the passenger seat on March 19th.  He only became aware that the serial number of the gun had been tampered with when he saw his charges. 

[29]        He admitted to having a lengthy criminal record.  He has been fingerprinted many times and has provided a DNA sample.  He has no weapons convictions except a conviction for possessing a prohibited weapon without a licence in Kamloops in 2005 to 2006.  It was bear spray.  He was fined $600.00.  He has never been charged or convicted of a firearms offence. 

[30]        In cross-examination, he indicated that his girlfriend was in the BMW on one occasion only.  He never had any other girls in that car.  He never taxied his friends around.  It was a working car.  He does not know what the other guys did with the BMW.  His customers paid cash but they sometimes tried to pay him with stolen goods instead.  He used a cell phone for business.  He did not turn it over to the other dealers but directed callers to the others when he was off shift. 

[31]        He was asked about items found in the BMW at the time of his arrest.  He thought that the cigarettes were probably his as he smokes.  The tools in the back seat well were not his.  He first indicated that he got them from customers and then testified that he had not put them in the car and had not noticed them when he got in the car that day.  The car has only two doors. 

[32]        He confirmed that he had walked out of the house with a white plastic bag.  He placed the bag on the passenger seat and got in the driver's seat.  He understood the bag to contain garbage.  He was unaware until the police opened the bag that it contained a licence plate. 

[33]        He confirmed that he started to sell drugs because it was becoming increasingly difficult to make money from fraud and it was easier to get caught.  While chips on credit cards were a problem, he explained that you could put a small piece of transparent tape over the chip so it would not read and be invited by the sales staff to swipe the card instead thereby avoiding the need to know the PIN.  He tried to use a stolen credit card on several occasions without success. 

[34]        The accused purchased drugs from Joey and resold them.  He kept any extra that he charged.  It was up to him whether he accepted goods or insisted on payment in cash.  He primarily sold crack cocaine. 

[35]        He admitted that dealing drugs might be dangerous in that he was dealing with dealers and customers who were engaged in criminal activity and were running their lives outside the law.  He admitted that he had heard or read about gang members who were dealing drugs and who were being robbed or killed.  He agreed that it was common for them to carry guns.  However, he expressed the opinion that they were higher-ups in the gangs, not the people he was dealing with.  He agreed that there was no honour among thieves.  He acknowledged that his customers were drug addicts who engaged in anti-social behaviour.  He acknowledged that he was vulnerable to being robbed by addicts and by other dealers.  Some of his business came from referrals.  He never knew if he was safe or not when dealing with people he did not know at all. 

[36]        He testified that he had never been offered a gun by a customer.  He had no idea what a handgun was worth.  He did not know if illegal guns cost more than a gun that was purchased from a store.  Customers usually offered jewellery and electronics and sometimes tools, small stuff. 

[37]        Crown counsel pointed out to him that the penalties for selling drugs were more severe than for fraud.  He testified that he did not know that because he had not sold drugs before.  He agreed that as a drug dealer he would not want to get caught with drugs on his person and so he would keep them stashed away in different places in the car. 

[38]        When he was asked whether he checked the car over when he got it from another dealer to ensure that there was nothing in it that could get him into trouble, he testified that he did not check.  He testified that everyone took out their own stuff when they left the car. 

[39]        He was asked about the two tool sets in the back seat area.  He agreed that there was nothing wrong with having tool sets in his car when stopped by the police.  Tool sets could also not be identified as stolen.  He admitted that as a dealer he had to be mindful of what he had in his car. 

[40]        In cross-examination, the accused denied seeing the Coach bag in the BMW.  He testified that if it had been in the same position as depicted in the photos taken by Constable Miles at the police station, he would have had to have seen it.  He could not have failed to notice it.  He in fact did not notice it. 

[41]        When held on the ground at the time of the arrest he could not see the police search the car.  He heard them say that they had found a gun.  He heard a police officer testify at trial that the bag containing the gun had been found between the console and the passenger seat.

[42]        The accused testified that he had very little knowledge of guns.  He did not know for sure that they had serial numbers but thought that they might from what he heard on television.  He had only heard of a clean gun, that is, one with no serial number, in the movies.  He knew you needed a licence to carry a firearm.

[43]        Because the accused testified I must apply the test set out by the Supreme Court of Canada in the case of R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.  If I believe the evidence of the accused, I must acquit.  If I do not believe his testimony but I am left in reasonable doubt by it, I must acquit.  Even if I am not left in reasonable doubt by his evidence, I must be convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence that I accept. 

[44]        The Crown argued that I should not accept the testimony of the accused because it was incapable of belief for a number of reasons. 

[45]        First, the accused has a lengthy criminal record that includes offences involving dishonesty.  As I understand the law, I may not find the accused to be less capable of belief because he has a criminal record.  The record can only be put to the limited use of impeaching his credibility if the accused fails to acknowledge his record.  The accused acknowledged his record and also provided testimony of other criminal activity for which he has not been charged. 

[46]        Secondly, the Crown argued that the accused has pleaded guilty to a number of offences involving the utilization of false documents to obtain or to attempt to obtain goods fraudulently.  The accused was believed by several civilian witnesses who had trusted him to be who he said he was, demonstrating that the accused was capable of being deceitful and capable of convincing others that he was not being deceitful.  If he could fool others, he could fool the Court. 

[47]        The accused testified in a straightforward and convincing manner.  However, case law warns against relying on the demeanour of a witness in assessing credibility.  In the case of Faryna v. Chorny (1952), 1951 CanLII 252 (BC CA), 2 D.L.R. 354 the B.C. Court of Appeal instructed triers of facts on the assessment of credibility.  At para. 11, the Court wrote:

[48]        The demeanour of a witness is of limited value in any case and so I do not rely on the demeanour of the accused in evaluating whether his testimony is credible.  Instead, I have evaluated the credibility of his testimony by considering the internal consistency and reasonableness of his story and its consistency or inconsistency with the other evidence that I believe. 

[49]        The Crown argued that the testimony of the accused was internally inconsistent in that he acknowledged that drug dealing was a dangerous business but denied that he had ever owned a gun. 

[50]        While the accused acknowledged that the drug business could be dangerous, he testified that violent crimes generally involved higher-ups in gangs, not small time dial-a-dope operators.  While he also acknowledged that as a dealer he was interacting with users and addicts, some of whom supported their addiction through property crime, he testified that he had not experienced any problems personally. 

[51]        In considering this argument, I have borne in mind that the accused had for many years been one of these individuals who operated outside the law with no real consequences from his fellow travellers.  While he acknowledged that there was no honour among thieves, his personal experience was more benign. 

[52]        In my view, it is quite plausible that while he understood that the drug dealing business could be dangerous, he relied on his personal experience as a long-time drug purchaser and fraudster and did not feel the need to own or carry a gun for his personal protection. 

[53]        The Crown also argued that the gun belonged to either the accused or one of the other dealers or it was placed in the car for the protection of each of the dealers as he was using the car.  If it was placed in the car by another for the protection of all of the dealers, the accused would have had knowledge of the gun and I should not believe him when he said he had no knowledge of it.  It was unlikely that another would leave a valuable item like a handgun in the BMW.  If the gun belonged to another who had left it in the BMW, it was improbable that the owner would not have made enquiries about it after the arrest as testified by the accused. 

[54]        If I believe the evidence of the accused, I must conclude that the gun belonged to someone else, either one of the other regular users or a passenger who had left it in the BMW.  I so conclude. 

[55]        The Crown does not take issue with the testimony of the accused that he was involved in a dial-a-dope operation with four others who used the BMW for work.  In fact it was clear from the cross-examination of the accused that several of the others were known to the police and the Crown as drug dealers. 

[56]        The BMW was not the equivalent of a privately-owned vehicle in that it was regularly used by five drug dealers and may have been used to transport others.  It is also highly likely that the arrest of the accused and the seizure of the BMW and its contents became known almost immediately by the others who used the BMW.  The person who left the bag and its contents in the BMW had no reason to enquire of the accused about the gun as it was lost to him or her by that point in time. 

[57]        The Crown also argued that regardless of the exact placement of the bag between the console and the seat, it would have been obvious to the accused on March 19th. 

[58]        I disagree.  The bag was black.  The interior of the BMW including the passenger seat was black.  The bag was quite small.  Depending on its position in the area between the console and the seat, it could have been very visible or not visible at all. 

[59]        While Constable Miles noticed it right away, she is a trained observer on assignment to conduct a search of the vehicle. 

[60]        In contrast, the accused initially entered the BMW at the same time as Joey exited it and made his way to the passenger seat.  The accused may have been distracted.  I do not know the position of the bag when he entered the vehicle.  When he re-entered the vehicle at Joey's house, the accused placed the white plastic bag on the passenger seat. 

[61]        The Crown argues that in that act he must have looked specifically at the passenger seat and could not have failed to notice the black bag close by. 

[62]        Again, the argument assumes that he is paying attention and that the bag is in a position that he could not have failed to notice it.  He acknowledged that if it had been in the position depicted in the police station photos, he would have had to notice it.  However, he asserts that he did not notice it and so it must have been in a less conspicuous position.  I accept that evidence.  Because I believe the accused, I must acquit.  The accused is acquitted of the three gun charges. 

[63]        Again, I wish to thank counsel for their assistance.  Both counsel played their respective roles throughout this trial with admirable diligence, skill and integrity.  Thank you.