Judge rejects man’s claim he didn’t know about rifle

Semi-automatic weapon, shotgun, shells found after head-on collision in 2017

A local man’s argument that he had no idea how a loaded rifle got into his pants failed to convince a Windsor judge of his innocence.

Ontario Court Justice Lloyd Dean said Tuesday he did not believe Tariq Elamin’s defence argument that he did not know how the semi-automatic firearm got there. Elamin testified at trial last September that he was also unaware that the man in the driver’s seat of his Lexus on the morning of April 26, 2017, was carrying a bandolier of shotgun shells across his chest and had a sawed-off shotgun under his car seat.

During the trial, Dr. Leonardo Cortese, a psychiatrist for the defence, testified Elamin was suffering at the time from “automatism” due to a brain injury sustained in two brutal assaults three days earlier and that his actions were not voluntary. Automatism is a rarely used criminal defence defined by the courts as “the state of a person who, though capable of action, is not conscious of what he is doing.”

Elamin, the passenger, and Satvir Singh, the driver, were both armed and driving down Highway 3 that morning when a vehicle coming in the opposite direction veered into their lane and struck the Lexus head-on shortly after 9 a.m. First-responders discovered the weapons and ammunition, triggering a heavy police response and temporary road closure.

Singh, 24, pleaded guilty in 2018 to a number of firearms-related offences and was sentenced to two years less a day in jail, but he gave no explanation as to what the pair was up to that morning. At his trial last fall, Elamin, who had a mask around his neck on the morning of the crash, also offered no explanation as to what the two might have been up to.

Elamin’s trial heard the accused had been in two altercations three days earlier and had suffered “significant brain injury.” But the judge said Elamin did not seek medical attention at the time and there was “no objective evidence” linking any brain injury to his subsequent behaviour. If the car crash caused any brain injury, Dean pointed to the Crown’s position that Elamin already had the firearm in his possession prior to that.

The judge said the defence “has not convinced me, on the balance of probability, that the accused was acting non-voluntarily at the time of the offences.” Dean found Elamin, who was 27 at the time of the 2017 crash, guilty on all 13 firearms-related counts he faced.

Prior to sentencing, however, the judge agreed to holding a “delay argument,” in which the defence will seek to have the case dismissed due to the length of time it’s taken to prosecute. A date for that hearing will be set Wednesday.

Under the so-called Jordan decision of 2016, the Supreme Court of Canada set general timelines within which cases must conclude. A number of criminal cases have been tossed out since then after prosecutors failed to convince presiding judges that delays in those proceedings were reasonable.

“All the delays here were caused by the Crown,” Elamin’s lawyer, Patrick Ducharme, told the Star outside the courtroom. “If I win the delay (argument), it’s over.”

Under Jordan, the Crown had 18 months from Elamin’s first court appearance in the spring of 2017 — or until about the fall of 2018 — to reach the conclusion of proceedings, including sentencing.

“We’re way outside the 18 months ... and we’re not even finished yet,” said Ducharme.