Jul 11, 2016 By Matthew Friedberg

CITATION: R. v. [REDACTED], 2016 ONSC 4574

                                                            COURT FILE NO.: M-181-15

DATE: 20160718

 

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

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HER MAJESTY THE QUEEN

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[REDACTED]

 

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[REDACTED], for the Crown/Applicant

[REDACTED], for the Respondent

 

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HEARD: July 11, 2016

 

 

 

 

REASONS FOR JUDGMENT

 

[redacted] J.

 

[1]           On January 4, 2014, police officers executed a search warrant at [REDACTED] in Mississauga and seized an AK-47 firearm, a quantity of 7.62mm amunition, two Glock magazines, a substantial quantity of cocaine and $1,450 in cash in various locations in the premises. [REDACTED] (“the respondent”), [REDACTED] and others were charged with a variety of offences arising out of these seizures. [REDACTED] pleaded guilty to some of the charges, and the charges against the remaining individuals other than the respondent were withdrawn.

[2]           A preliminary hearing was conducted into the charges against the respondent in the Ontario Court of Justice commencing on January 27, 2015. Evidence was heard on a number of days over a period of several months. On August 10, 2015, at the conclusion of the preliminary inquiry, [REDACTED] J. discharged the respondent on all charges. The Crown applies for an order in the nature of certiorari with mandamus in aid quashing the order discharging the respondent on several of the charges.

The Evidence

[3]           [REDACTED] is a detached bungalow with three bedrooms on the main floor, one bedroom in the basement, three washrooms and two kitchens. When the police executed their search warrant, eight people were present on the premises, including the respondent. Others arrived during the search.  

[4]           In the course of their search, the police located the AK-47 firearm, some 7.62mm ammunition and two Glock magazines in different areas of the basement. The AK-47 and 7.62mm ammunition were secreted in a bag in a small crawlspace which was accessible through a storage room in the basement behind a pile of dirt and junk under a tarpaulin. The tarpaulin was covered with a layer of untouched dust, suggesting that the crawlspace had not been disturbed for some period of time prior to the search. A person present in the room could not see the crawl space without climbing over the pile of dirt and junk. When the police executed the search warrant, [REDACTED] was found hiding on top of the garbage pile close to the hiding place of the gun and ammunition. The respondent was upstairs in the living room.

[5]           Five additional boxes of 7.62mm ammunition and a Hennessy liquor box containing cocaine were seized from the closet of an upstairs bedroom referred to as bedroom 3. The ammunition matched the ammunition found in the basement, and was suitable for use in the AK-47.

[6]           The police found $870 on the respondent’s person, and an additional $580 in the area of a toilet in the basement. A “music video” discovered in the apartment showed the respondent tossing the cash into the toilet.

[7]           A rental agreement found in the premises during the search indicated that the premises were owned by [REDACTED] and were leased to someone identified as [REDACTED].

[8]           During the search, the respondent made a statement to one of the police officers from which it could be inferred that he lived at [REDACTED] and exercised control over it. He recounted an October 2013 incident where “the police came to the house in around Halloween … came into the house, looked around and then left.” The respondent said that the officers were reluctant to tell him their reasons for conducting the investigation, that he didn’t believe their explanation, and that he finally had to ask them to leave. During this conversation, the respondent told the officer that as a result of that incident, he “should have known this wasn’t a good place to live.”

[9]           The Crown relied on a large body of additional evidence to closely connect the respondent to the premises and the contraband located in it, including the following:

Vehicles

[10]        Two vehicles connected to the respondent were parked in the driveway of [REDACTED] on January 4, 2014: a black Mercedes and a red Buick with a special paint job. The police saw the respondent driving the Mercedes on January 3 and 4, 2014. The Mercedes was also present in the respondent’s social media. In a video posted on [REDACTED], an account associated with the respondent as will be explained shortly, the respondent is seen driving a Mercedes that resembles the colour, size, year, and model of the Mercedes that was parked at [REDACTED]. Photographs downloaded from the respondent’s cellphone in 2012 also depict a black Mercedes.

[11]        In addition, there were photographs of a Buick matching the appearance of the red Buick that was parked in the driveway on the respondent’s social media account, including the special paint job with the words “Married to the game” painted across the rear of the car. A YouTube video from September 2013 entitled “Krucifixtion BBQ” shows the respondent driving a red Buick with the words “Married to the game” painted on the rear. [REDACTED] identified this vehicle as the same Buick that was parked in the driveway of [REDACTED]. A photograph seized from the respondent’s cellphone in 2012 also depicts a red Buick with the same paint job. [REDACTED] testified that the red Buick had been parked in the driveway since September of 2013. Another witness testified that he knew the respondent to drive around in a black Mercedes, and that for years he had known the respondent to have a red Buick with a special paint job.

Social media evidence

[12]        The respondent’s social media account tied him to [REDACTED] for at least several months prior to January 4, 2014. One of the police officers performed an online search and discovered an Instagram account with the username “[REDACTED]”. The avatar picture representing the [REDACTED] account is a photograph of the respondent. Many photographs and videos posted on the account depict the respondent. In some of the photographs and videos, the respondent is seen inside [REDACTED]. Objects discovered within [REDACTED] are also depicted in the photographs. One photograph with tile work and brickwork matching a room in [REDACTED] was posted 60 days prior to the date when the officer took screen captures of the social media evidence.

[13]        In particular, the social media evidence ties the respondent to bedroom 3, the room where the police located the cocaine and some of the 7.62mm ammunition. A photograph posted 58 days prior to the search shows the respondent and two women in a room with wall colouring and brickwork matching bedroom 3. An additional photograph on the social media account shows the monitor, bed, and brickwork of bedroom 3.

Clothing

[14]        Videos and photographs posted on the [REDACTED] account show the respondent wearing clothing identical to clothing found in the closet of bedroom 3. The officer who searched the social media account testified that he observed the respondent wearing black jeans of a similar size (32-34) and style to the pants found in the closet of bedroom 3 on the night of the search.  The respondent was also wearing an Oakland Raiders hat when he was arrested on January 4. There are numerous photographs on the respondent’s social media account depicting him wearing Oakland Raiders hats. At least 20 similar Oakland Raiders hats were found throughout [REDACTED].

Hooded skeleton knife

[15]        A knife with a hooded skeleton handle was found in the living room of [REDACTED]. It was prominently displayed on a wooden crucifix stand, reflecting the crucifix imagery of the respondent’s social media account. A photograph posted on the [REDACTED] account depicts an identical hooded skeleton knife. A comment posted with the photograph reads “ALWAYS GOOD TO GET A XMAS GIFT. SM MY MAIN LADY”, suggesting that the respondent received the knife as a Christmas gift. He has a tattoo of a similar hooded skeleton figure on his body, and there are additional photographs of hooded skeleton figures on his social media account.

Krucifixtion graffiti

[16]        One of the shelves in the kitchen had the word “Krucifixtion” scribbled on it in green marker. The spelling of the word on the shelf matches the distinctive spelling of the respondent’s social media account, [REDACTED].

Stripper pole

[17]        One of the rooms in the basement contained a chrome-coloured stripper pole. This pole is present in photographs on the respondent’s social media account, including a photograph in which the respondent’s hand is visible with a distinctive tattoo.

Bulletproof vest

[18]        In the same room as the stripper pole, police located a bulletproof vest. One of the officers testified that he viewed a photograph of the respondent putting on or taking off a bulletproof vest of similar class and colouring on the [REDACTED] social media account. The vest in the pole room had clasps and a high neck similar to the vest in the social media photograph.

Moët boxes and coffee table

[19]        In a video of the search made by the police a stack of black Moët champagne boxes can be seen in the corner of the living room of [REDACTED]. The respondent’s social media account contains images of Moët boxes and in particular an identical stack of black boxes in the corner of a room with the same wood type as was in the living room of [REDACTED]. The account also contains images of the living room coffee table and its contents as seen on the entry video, including a mirrored skull and cigar packages shown in the entry video.

Hennessy liquor

[20]        The cocaine in the closet of bedroom 3 was found inside a Hennessy liquor box. A photograph on the respondent’s social media account depicts a bottle of Hennessy liquor on the coffee table in the living room, although the bottle may have been a different sub-brand of Hennessy.

Community service document

[21]        Police found a notebook on a glass shelf in the living room that contains the respondent’s name and lists community service hours that he was required to perform. The notebook left an outline in the dust on the glass when it was picked it up by a police officer, suggesting that it had not been moved for some time. I note that the respondent was required to reside at [REDACTED], Toronto, as a condition of bail at that time.

 

Individuals looking for Mr. [REDACTED]

[22]        Two individuals came to [REDACTED] during the night of the search looking for the respondent. At around 11:30 p.m. on January 4, a man showed up at [REDACTED] looking for “[REDACTED]”. A second man also showed up just after midnight looking for “[REDACTED]”. [REDACTED] is the respondent’s nickname.

Video and photographs of firearms

[23]        A video seized from the respondent’s cellphone in 2012 depicts him with a circle of firearms, including a firearm that resembles an AK-47. The Crown conceded that the AK-47 in the video had several differences when compared to the AK-47 found at [REDACTED]. However, the Crown advanced three possible inferences arising from the video:  that the two AK-47s are the same firearm, but with modifications made between 2012 and 2014; that the firearm in the video connects the respondent to the AK-47 ammunition seized from bedroom 3 of [REDACTED]; or that at the very least, the firearms depicted in the video are real firearms. There was also a photograph of a Glock on the respondent’s social media account, and photographs seized from his phone in 2012 depict handguns and clips.

[REDACTED]’s evidence

[24]        [REDACTED], who was one of the witnesses at the preliminary hearing, testified that he had seen the respondent at [REDACTED] on several occasions prior to January 2014. In fact he had purchased drugs from the respondent at [REDACTED] in December 2013. Blair also testified that the respondent had asked him if he could acquire a replacement barrel and ammunition for a firearm.

[REDACTED]’sevidence

[25]        [REDACTED] was called as a defence witness at the preliminary hearing. He testified that he had resided in bedroom 3 for many months and that the house was occupied by three people and used and accessed by many more.  He said that the AK-47 and cocaine were in his possession and that the respondent did not live on the premises or know about these items. However he testified that the respondent had a significant, ongoing presence at [REDACTED], which he used to conduct video and photo shoots. He implied that the respondent used the house even when [REDACTED] was not present. He believed that the cash found in the house was the respondent’s and that some of the clothing in the closet of bedroom 3 was likely the respondent’s. [REDACTED] said that the stripper pole and Moët boxes were not his, but were from the respondent’s video shoots. Although [REDACTED] claimed to be residing in bedroom 3, documents bearing his name, specifically an Ontario health card, a social insurance card, and a Toronto Hydro notice for another address, were found in the closet of bedroom 1.

The Decision of the Preliminary Inquiry Judge

 

[26]        The evidence adduced at the preliminary inquiry related to two informations: a 14 count information alleging firearms and ammunition offences and breach of recognizance offences, and a five count information alleging drug offences. In Crown counsel’s final argument at the preliminary inquiry, he indicated that he did not seek orders to stand trial in respect of the respondent on counts 6, 7 and 9 of the 14 count information. The preliminary inquiry judge immediately discharged him on those three counts, and proceeded to consider the remaining counts.

[27]        The preliminary inquiry judge began his reasons by correctly stating the test for committal at a preliminary inquiry and the approach that must be taken to a consideration of circumstantial evidence, but then very quickly proceeded to misstate the nature of the task. Immediately after saying that the preliminary inquiry judge performs a limited weighing of the evidence “in the sense of assessing whether the evidence is reasonably capable of supporting the inferences the Crown submits” and  that the judge “does not draw factual inferences [emphasis added]”, he said the following:

The task is straightforward when dealing with direct evidence, and a little more difficult when the evidence is circumstantial. The judge must draw reasonable inferences and not speculate. [Emphasis added.]

[28]        I readily acknowledge that viewed in isolation, this might be a slip of the tongue. It is best interpreted in the light of the whole of the reasons.

[29]        The judge then went on to outline some of the evidence. For the most part, he simply summarized the evidence without comment. However he did comment on a few of the individual items as he went along, generally to blunt the potentially inculpatory effect that the evidence might have, as follows.

[30]        When he referred to the bathroom of the premises, he noted that deodorant and some toiletries were present, but said, “[B]ut I neither saw nor heard anything about toothbrushes or shaving products.”

[31]        Soon after this comment, but still early in his reasons, the preliminary hearing judge interrupted his recitation of the evidence and again slipped into language suggesting that he was the trier of fact. He said:

Before concluding whether Mr. [REDACTED] resided in this house, let me point out some more evidence and explain some of the evidence I have already mentioned. [Emphasis added.] 

[32]        When he came to the finding of clothes that appeared to belong to the respondent that were located in the premises, he noted, “There was no evidence of underwear or socks which might have belonged to Mr. [REDACTED].” With reference to the size 32/34 jeans that looked similar to ones worn by the respondent, he said, “I heard no further evidence to show if, in fact, he wore those or that size of jeans, or if anyone else in the house wore that size. There did not seem to be any [sic] exceptional or particular about these jeans.”

[33]        The judge also made reference to a bit of the evidence that connected the respondent to one, but not the other of the two cars in the driveway. He then stated, “The two cars in the driveway were not registered to him.”

[34]        With respect to the premises, he said, “No title search of the property was done to discover the owner.”

[35]        With respect to the tenancy agreement, he noted, “None of the people found in the house were parties to this agreement.”

[36]        With respect to the items found in the premises, he noted that no fingerprints or DNA were found on them, and “No DNA investigation was done in the bed or bedroom, and washroom to see if he could be associated with those rooms.”

[37]        When he came to the respondent’s statement to the police during the search, he once again slipped into language suggesting that he was the trier of fact. He said:

I am not sure if the words remembered by [REDACTED] accurately reflected what was said, and whether it meant what the Crown now submits it meant.

[38]        With respect to the photographs of the guns and the AK-47, once again he appeared to confuse his task with the task of the trier of fact. He said:

As far as the guns and the AK-47s are concerned, to me they look real, but I am not a gun expert. I certainly cannot compare the real ones in evidence with the photographs and say that they are identical, or that the AK-47 found hidden in the basement is the same one as the one in the photograph.

[39]        Once again, when discussing the circumstantial evidence that the Crown said linked the respondent to the house and the contraband, the preliminary inquiry judge described himself as having the task of deciding what inferences to draw from the evidence. He said:

The circumstantial evidence does not lead me to the reasonable inference that he had knowledge and control over the illegal items. Mr. [REDACTED]’s testimony confirms that conclusion. [Emphasis added.]

[40]         With respect to the photograph of the respondent with guns, he said, “I am not going to speculate or guess that what is in the photograph is what was found hidden in the basement.”

[41]        With respect to the evidence of [REDACTED], he said, “The evidence of Mr. [REDACTED] completely exculpates Mr. [REDACTED].”

[42]        Finally, at the end of his reasons, he said:

It [sic] all the other evidence, the circumstantial evidence, which I believe does not lead to the reasonable inference that Mr. [REDACTED] had knowledge and control of the items in question. [Emphasis added.]

[43]        Only then did the preliminary inquiry judge say:

On this evidence, I do not believe any reasonable jury could convict. I cannot convict [sic] him to trial based on speculation or suspicion.

ANALYSIS

[44]        I propose to answer the following three questions:

1.     Was there sufficient evidence before the preliminary inquiry judge to order the respondent to stand trial on counts 1 to 5, 8, and 10 to 14 of the first information and counts 1, 2 and 5 of the second information?

2.     If so, did the preliminary inquiry judge commit a jurisdictional error in discharging the respondent?

3.     If so, what remedy should be given?

[45]        I address the questions in this order because if there is no evidence fit to go to a jury in this case then that will end this matter. There would be no point in considering whether or not the preliminary inquiry judge committed a jurisdictional error.

The Sufficiency of the Evidence

[46]        The offences alleged against the respondent are many in this case, and their elements are varied. However, the central issue that occupied the preliminary inquiry judge and the parties before him and before me is narrow. All of the offences are offences of possession, or are breach of recognizance offences relating to curfew, residency or possession of drugs which flow from the possession offences. Nothing but possession was in issue at the preliminary inquiry. As a result, the simple issue for me to address in assessing the sufficiency of the evidence is whether or not there was any evidence upon which a reasonable jury, properly instructed, could find that the respondent was in possession of the various items of contraband. In the circumstances of this case, counsel did not consider it necessary to focus on the items of contraband individually, or on questions concerning curfew or residency, and neither do I.

[47]        I will not review the various items of evidence a second time. I simply observe that whether or not the respondent actually resided at [REDACTED] some of the time, this evidence, viewed cumulatively, presents a powerful case that he was very closely associated with the premises, had ready access to it, had the right to use it extensively for his own purposes, and had a significant degree of control over it. In addition there is compelling evidence that this connection to and control over the premises extended to the basement and to bedroom 3, where some of the contraband was found.

[48]        In addition, there is a significant body of circumstantial evidence linking the respondent to the contraband in the house from which an inference of knowledge could arise. While there are also weaknesses in the evidence, as well as contradictory items of evidence, that were pointed to by the respondent, the whole of the evidence gives rise to a reasonable inference of possession of the various items of contraband, including joint possession with other occupants.

[49]        In the end, I am satisfied that a reasonable jury, properly instructed, could find that the respondent was in possession of these various items of contraband, and I turn to the next question.

 

Jurisdictional Error

[50]        It is plain from what I have said that in my view the preliminary inquiry judge erred; there was evidence before him upon which a reasonable jury properly instructed could return a verdict of guilty on all of the charges: see United States of America v. Shephard1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067; and R. v. Arcuri2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21. But that alone does not permit me to interfere with the result on certiorari. I am permitted to interfere only if the preliminary inquiry judge made a jurisdictional error: see R. v. Sazant2004 SCC 77, [2004] 3 S.C.R. 635, at para. 14. Where a preliminary inquiry judge determines that the evidence is insufficient to order an accused to stand trial, the mere fact that the reviewing judge is of the view that the evidence is sufficient is not the basis for finding a jurisdictional error. On the contrary, a preliminary inquiry judge’s determination of sufficiency is entitled to the greatest deference: see R. v. Russell2001 SCC 53, [2001] 2 S.C.R. 804, at para. 48. As a result, I have set out the reasons of the preliminary inquiry judge in detail in order to determine if my disagreement with him relates merely to sufficiency.

[51]        Upon a review of the reasons of the preliminary inquiry judge, I conclude that he fell into significant jurisdictional error. I begin by observing that it is difficult to follow the preliminary inquiry judge’s reasoning process, since he simply recites the evidence piece by piece, occasionally commenting on it, and then reaches an overall conclusion. But the process he followed, standing alone, does not amount to jurisdictional error. Where I do find jurisdictional error is in his repeated assumption of the role of the trier of fact.

[52]        I said earlier in this judgment that as the preliminary hearing judge began his reasons, he almost immediately appeared to lose sight of his proper role. Specifically he said that the preliminary inquiry judge “… must draw reasonable inferences and not speculate.” While I thought initially that this might be a slip of the tongue, the remainder of his reasons make clear that it was not. He made such comments repeatedly. As I have noted, he said:

•       Before concluding whether Mr. [REDACTED] resided in this house …

•       I am not sure if the words remembered by [REDACTED] accurately reflected what was said, and whether it meant what the Crown now submits it meant.

•       As far as the guns and the AK-47s are concerned, to me they look real, but I am not a gun expert. I certainly cannot compare the real ones in evidence with the photographs and say that they are identical, or that the AK-47 found hidden in the basement is the same one as the one in the photograph.

•       The circumstantial evidence does not lead me to the reasonable inference …

•       I am not going to speculate or guess that what is in the photograph is what was found hidden in the basement.

•       all the other evidence, the circumstantial evidence, which I believe does not lead to the reasonable inference that Mr. [REDACTED] had knowledge and control of the items in question.

[53]        Bearing in mind that the preliminary inquiry judge correctly stated the test at the start and at the end of his reasons, and giving him the benefit of every doubt, the conclusion that he strayed from his proper role seems unavoidable to me based on the above references alone. Moreover his treatment of the items of evidence in the course of his reasons only serves to reinforce this conclusion. While there is nothing wrong with the preliminary inquiry judge pointing out the weaknesses in the individual pieces of evidence, here it became clear that he was making these references in order to explain why he attributed little or no significance to them individually. This was not his task.

[54]        At no time did he look at the items of circumstantial evidence relied on by the Crown cumulatively, and determine whether or not a reasonable jury, properly instructed, could draw the necessary incriminating inferences.  Instead he removed some of the significant items from the mix and discounted other items based on his own view of their significance. For example, he discounted the potentially significant statement made by the respondent to the police because he was not sure if the officer accurately recounted the words spoken or whether they meant what the Crown said they meant. It was not for him to be sure of either fact.

[55]        In approaching the evidence in this way, the preliminary inquiry judge lost sight of his statutory role, decided issues reserved for the trier of fact, and failed to fulfil his statutory and mandatory duty to consider the evidence as a whole, instead examining the items of circumstantial evidence in a piecemeal fashion. Each of these failings amount to jurisdictional error.

Remedy

[56]        I turn finally to the question of remedy. I have concluded that the preliminary inquiry judge made jurisdictional errors in discharging the respondent on the charges before him other than counts 6, 7 and 9 in the first indictment. As a result, the discharge is quashed. I am further satisfied that if this matter were remitted to the Ontario Court of Justice for reconsideration, the only legally possible result would be an order that the respondent stand trial on all of the charges. However, despite the fact that an order to stand trial is inevitable, I do not have the power to make such an order on certiorari: see R. v. Thomson (2005), 2005 CanLII 8664 (ON CA), 74 O.R. (3d) 721 (C.A.). But since an order to stand trial is inevitable, an order of mandamus is available requiring the preliminary inquiry judge to order the respondent to stand trial on counts 1 to 5, 8, and 10 to 14 of the first information and counts 1, 2 and 5 of the second information. In this case, I will make such an order.

 

DISPOSITION

[57]         An order will go quashing the discharge of the the respondent on all charges except counts 6, 7 and 9 in the first indictment, remitting the matter to the preliminary inquiry judge, and requiring him to order the respondent to stand trial on counts 1 to 5, 8, and 10 to 14 of the first information and counts 1, 2 and 5 of the second information. The accused will appear in the Ontario Court of Justice at 2201 Finch Avenue West in Toronto in courtroom 205 on Thursday July 28, 2016 at 10:00 a.m. to be traversed before the preliminary inquiry judge and dealt with in accordance with this order.

[58]         If the accused is in custody, a judge’s order may issue to secure his attendance in court on the date and at the time I mentioned, or such later date and time as is necessary. If he is at liberty he shall appear in court in accordance with this order. If he does not appear as required by this order, a warrant may issue for his arrest.

 

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