Alberta's top court has dismissed the appeal of a man arrested on January 7, 2021, outside an Airdrie Shoppers Drug Mart, with a loaded handgun later found in the trunk of his car pursuant to a search warrant dated January 8.
The Alberta Court of Appeal upheld the conviction of Philippe Lugela in a ruling filed June 3. He had been sentenced to six years in prison in October 2023 after being found guilty of possessing a loaded restricted firearm, multiple controlled substances, and breaching a release order.
"The evidence and the totality of the circumstances, as set out by the trial judge, amply support the inference that the appellant's possession of the handgun had been proven beyond a reasonable doubt," the panel wrote.
The events began after midnight on January 6, 2021. A man identified in court as ME told police he had arranged to meet someone in a Calgary school parking lot to buy video game consoles. ME testified that Philippe Lugela entered his car, directed him to drive elsewhere, and robbed him at gunpoint of several thousand dollars. He told officers he saw the words "Smith & Wesson MP" and the number "9" on the weapon.
Police began surveillance of Lugela on January 7 after receiving the robbery report. A warrant was obtained for his residence, but officers didn't move right away. Given his past with firearms and history of avoiding arrest, they brought in backup.
"Because of the appellant's history of carrying a firearm and being uncooperative with the police, they requested a specialized tactical police unit (TAC) to arrest him," the Court noted. "A specialized covert surveillance team (ALERT) and a police helicopter were involved to assist in the surveillance and arrest."
By early afternoon, January 7, officers were tracking him through Calgary. At 14:27, a surveillance officer saw Lugela stop at a gas station, remove a black satchel, and place it in the trunk of a Nissan Maxima. Hasron Araya, later identified as a passenger, was also in the vehicle.
Lugela drove north to Airdrie and parked in a lot next to a Shoppers Drug Mart.
"When the appellant and Mr Araya left the store, the TAC team exited their van and ordered the pair to get down. Both the appellant and Mr Araya attempted to flee but were quickly caught and arrested," the Court wrote.
Loaded handgun found in delivery bag inside trunk
Police searched the residence under the original warrant that evening. The next day, January 8, officers executed a second warrant for the vehicle.
Inside the Maxima's trunk, they found the same satchel seen in surveillance — placed inside an insulated SkipTheDishes bag. Inside was a loaded Smith & Wesson M&P9 9mm handgun.
They also recovered methamphetamine, fentanyl, cocaine, and a Freedom Ordnance FX-9 9mm rifle from the home.
DNA testing showed the gun carried a mixture of genetic material. "A major component [was] identified as the appellant's," the Court wrote.
The trial judge accepted that the bag seen during surveillance and the one recovered in the trunk were the same.
"The trial judge accepted the surveillance officer's evidence and found the satchel seen by him and the satchel later seized were one and the same."
The judge also noted the concealment method.
He found that the satchel's placement inside the SkipTheDishes bag was a form of concealment suggesting the appellant knew what it contained.
Court rejects defence theories of alternate ownership
At trial, Lugela argued the weapon may have belonged to someone else — possibly an unidentified woman who accessed the trunk earlier that day, a person identified only as JO, whose bank card was in the bag, or a family member. The Maxima was registered to his sister.
The trial judge considered those theories and dismissed them as speculative. The Court of Appeal agreed.
"We are satisfied the trial judge was aware of the law on inference drawing and the assessment of circumstantial evidence and was alive to, but ultimately rejected, the alternative theories advanced by the appellant."
"There is 'no need to prove that the trial judge was alive to and considered all of the evidence, or answer each and every argument of counsel,'" the panel wrote.
Loaded and known: no room for reasonable doubt, says court
The second ground of appeal was knowledge — whether Lugela knew the gun was loaded. The Court said the evidence supported that finding.
He was on release conditions at the time of the arrest. Calgary police were actively monitoring him under their Serious Habitual Offender Program.
The Court noted that the trial record included evidence that "the appellant was known to carry handguns and had boasted on social media that he had adopted a gangster lifestyle."
When the TAC team moved in, he ran. Officers had ordered both men to get down.
The Court cited R v Eastgaard, 2011 ABCA 152: "The appellant was clearly operating 'in a milieu in which he could be expected to be involved in confrontations and was no stranger to confrontations involving guns.'"
Lugela did not testify. The panel said his silence did not prove guilt but allowed the judge to weigh whether reasonable alternatives had truly been raised.
"We can consider the appellant's silence in 'failing to provide an innocent explanation for the existence of otherwise convincing inculpatory evidence,'" the ruling stated.
Partial Charter breach found — but evidence remains
The final appeal ground involved section 10(b) of the Charter. Lugela was arrested at 15:12 and asked for a lawyer minutes later. Police did not provide him access to a phone until 19:56.
The trial judge found no breach occurred between 15:12 and 18:31, but that a breach did occur between 18:31 and 19:56. That conclusion was upheld.
"Detective Fleming explained that police resources had been spread out during surveillance and the appellant's arrest, and it was necessary to reorganize and re-route officers back to the appellant's residence," the decision stated.
The Court rejected the argument that COVID-related delays were improperly accepted.
"It is clear from the Voir Dire Decision that the security concerns, coupled with resource challenges, were the main reason for the delay, not operational challenges from the COVID-19 pandemic."
As for whether the evidence from the home should be excluded under section 24(2), the trial judge found a "temporal and contextual connection" between the breach and the evidence — but not enough to discredit its admissibility.
"A reasonable person informed of Charter standards and all the circumstances would not conclude that admitting the evidence would bring the justice system into disrepute," the trial judge wrote.
The Court wrote: "We see no error in the trial judge's s 24(2) analysis."
The appeal was heard May 14 in Calgary. The judgment was filed June 3
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