WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:
539. Order restricting publication of evidence taken at preliminary inquiry.—
(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry
(a) may, if application therefor is made by the prosecutor, and
(b) shall, if application therefor is made by any of the accused,
make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,
(c) he or she is discharged, or
(d) if he or she is ordered to stand trial, the trial is ended.
(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.
Court Information
ONTARIO COURT OF JUSTICE
Between:
Her Majesty the Queen
— and —
Daniel Hutchison
Before: Justice S.E. Marin
Heard on: May 10 and 30, 2013
Reasons for Judgment on Committal for Trial released on: June 18, 2013
Counsel:
Rosemary Juginovic — counsel for the Crown
Scott Reid — counsel for the accused Daniel Hutchison
MARIN J.:
Facts and Search Warrant Execution
1Relying on information provided by a confidential informant, police obtained and executed a search warrant at Daniel Hutchinson's residence in Scarborough, Ontario on April 24, 2012. In the semi-detached home that Mr. Hutchinson shared with his mother and brother, police found two firearms, ammunition, a replica handgun, two masks, a knife, a camera and a cellphone.
2In an upstairs green bedroom identified as belonging to Mr. Hutchinson, police found a loaded sawed-off single-barrel shotgun concealed in the bottom drawer of a dresser. The brown wooden stock was wrapped in black electrical tape. A single red Winchester 12 gauge shotgun shell was loaded in the gun.
3Banking documents and a TTC pass in the name of Daniel Hutchinson were found in the drawer with the shotgun. Family photographs of Mr. Hutchinson with his mother were located in the bedroom. There is no evidence that anyone other than Mr. Hutchinson occupied this bedroom.
4In a basement media room adjacent to Mr. Hutchinson's brother's bedroom, police found a fully loaded black-handled, silver semi-automatic handgun on the floor under the television stand in the basement media room. In the same room, police found a black plastic replica handgun and a silver knife with a serrated blade concealed under the sofa cushions; a spent red Winchester 12 gauge shotgun shell lying in plain view on top of a CD stand adjacent to the television; a cellphone wrapped in a white tissue in the top drawer of the television stand; a Canon digital camera on an end table adjacent to the couch; and a black balaclava and a black half-face mask in a laundry basket on the floor by the sliding doors leading out to the backyard.
5The Canon camera contained three photographs of a person pointing a single barrelled shotgun out the front bay window of the Hutchinson home towards an empty police cruiser parked on the street. A video clip showed someone walking out of the Hutchinson home, along the street where an empty police cruiser was parked towards a school and then retracing their steps to re-enter the home. Commentary by the person making the video contains profanity and derogatory or mocking comments about the police, including a comment directed towards the officers that the person would "blow your fucking head off". It is clear from all the circumstances that the police did not hear the words spoken.
6Mr. Hutchinson was charged with a number of offences related to these items.
Crown's Position and Defence Concessions
7At the conclusion of the preliminary hearing, the Crown conceded that there was no evidence capable of sustaining the charge of pointing a firearm at two named police officers and she invited the court to discharge Mr. Hutchinson on count 13. The Crown sought committal on all other charges and an additional charge of threatening death arising out of the video commentary.
8The defence conceded that there was sufficient evidence to commit Mr. Hutchinson for trial on the charges relating to the possession of a loaded prohibited shotgun, possession of a shotgun without authorization, careless storage of a shotgun, possession of a shotgun knowing that he was not the holder of a licence for the firearm and possession of a shotgun for a purpose dangerous to the public peace (counts 8, 9, 10, 11 and 14).
Defence Submissions
9The defence submits that the Crown failed to lead any evidence about how the handgun and shotgun were obtained and therefore Mr. Hutchinson must be discharged on counts 5, 7, 12 and 15 relating to the possession of the firearms knowing that they were obtained by the commission in Canada of an offence and the possession of the firearms having a value under $5,000.00 knowing that they were obtained by the commission of an indictable offence.
10In addition, the defence challenges committal on the remaining counts in the information related to the loaded handgun and other items found in the basement of the home. Defence counsel argues that this room was a common area of the house where invitees to the home congregated on a regular basis. In the absence of evidence of exclusive access or other evidence linking Mr. Hutchinson to the seized items, the defence submits that there is no evidence of either knowledge or control and no permissible inference of possession can be drawn.
Crown's Position on Evidence
11With respect to the counts involving obtaining the shotgun and handgun, the Crown takes the position that the circumstantial evidence of unauthorized possession of both firearms, the modification of the shotgun and the erasure of the serial number on the handgun, considered cumulatively, is some evidence that Mr. Hutchinson obtained each weapon with the requisite knowledge about its illegality. With respect to those items found in the basement common area of the home, the Crown submits that there is circumstantial evidence capable of supporting the inference, as distinct from speculation, that Mr. Hutchinson had knowledge and control of them.
Legal Test for Committal for Trial
12The law regarding the test for committal for trial is well-settled. Section 548(1) of the Criminal Code as interpreted by the Supreme Court of Canada in the decisions of Sheppard and Arcuri requires me to order Mr. Hutchinson to stand trial if there is admissible evidence which could, if it were believed, result in a conviction.
13Where there is direct evidence of the essential elements of each offence charged, the case must proceed to trial. Any conflict in the evidence is a matter for the jury to determine. Where the Crown's case is circumstantial, as in this case, the test is whether the evidence, if believed, could reasonably support an inference of guilt. This involves a limited weighing of the whole of the evidence to determine whether a reasonable jury properly instructed could return a guilty verdict. I may not assess the credibility of witnesses or weigh the evidence for competing inferences in determining whether there is sufficient evidence for committal.
14The weighing of the evidence is limited to an assessment of whether the evidence is reasonably capable of supporting the inferences the Crown asks the jury to draw. Where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered. However, the inference relied upon by the judge to commit the accused must be both reasonable and based on the evidence. It cannot be based upon speculation, however reasonable.
15The distinction between reasonable inference and impermissible speculation may be difficult to discern. In Munoz, Justice Ducharme discussed the process of drawing inferences. It involves inductive reasoning, where the conclusion that may be drawn is not inherent in the offered evidence but flows from an interpretation of that evidence derived from experience. He noted that if the primary facts are not established then any inferences purportedly drawn from them will be the product of impermissible speculation. He also noted the danger of over-reaching when drawing inferences and cautioned that an inference must be reasonably and logically drawn if it is to be distinguished from mere speculation or conjecture.
16With this direction in mind, I turn to a consideration of the issues in this case. I propose to deal with the issues relating to committal on the "obtained by crime" charges first, then deal with the issues related to the items seized from the basement media room and finally, deal with the issue of an additional charge of threatening.
Analysis of "Obtained by Crime" Charges
17In order to commit Mr. Hutchinson on the charges under sections 96(1) and 354(1), the Crown must lead some evidence that he had possession of each of the shotgun and the handgun with knowledge that each had been obtained by the commission in Canada of an offence, or in the offences under s. 96, obtained by an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence. The sufficiency of the evidence of possession is conceded with respect to the shotgun but not the handgun. Despite the evidence of possession in relation to the shotgun, defence counsel maintains that there is no evidence to support a reasonable inference that Mr. Hutchinson knew that the shotgun had been obtained by the commission of a crime.
18The prosecution did not lead any direct evidence as to how the accused acquired either firearm or any evidence that either weapon had been stolen, extorted, illegally imported into this country or obtained by fraud or false pretences. The evidence in relation to these four counts is limited to possession rather than acquisition.
19The Crown submits that there is sufficient circumstantial evidence to support the inference of knowledge. In particular, the Crown relies on the nature of the items – a shotgun modified to make it more portable and concealable and a handgun with the serial number scratched out to conceal its source – and the evidence of the accused's unauthorized possession of both guns. The Crown argues that these facts form a basis to infer that Mr. Hutchinson knew the weapons were obtained by the commission of an indictable offence. This argument has an initial appeal. Inductive reasoning might support an interpretation of the whole of the evidence that weapons of this type, altered and concealed in a dresser drawer and under a television, were probably stolen or illegally imported into Canada and acquired through an illicit street sale or transfer. A further inference from the same facts would be that Mr. Hutchinson knew or was wilfully blind to the illegal sourcing of each of the guns. However, after some reflection and research, I have concluded that this is not a permissible inference given the limited construction of "obtained" in the jurisprudence. The Crown's argument must fail.
20At issue is the meaning of "obtained" in sections 96(1) and 354(1) of the Criminal Code. I am satisfied that the jurisprudence defines "obtained" in the limited context of an antecedent crime, not the context of the conduct resulting in the alleged illegal possession. In this case, there is no evidence of that antecedent crime.
21By way of analogy, an accused who trafficked in drugs and who is charged with the possession of a sum of money knowing "it was obtained by the commission in Canada of an offence punishable by indictment" must be acquitted if the only evidence about the source of the money is the drug deal itself. Even though the money was derived from the commission of a crime, it was not "obtained" by that crime.
22Martin J.A. phrased it this way in MacKenzie:
We are all of the view that the word "obtained" in the section, refers to things that constitute the subject matter of the crime by which they were obtained. For example, things obtained by theft, false pretences or extortion. The offence must be committed in respect of the thing obtained. Money, of course, constitutes "anything" within the meaning of section 312 [now section 354]. Money, however, which has been knowingly and voluntarily paid by a purchaser to a vendor, with respect to an illegal transaction, which constitutes an indictable offence, is not "obtained" by such indictable offence within the meaning of s. 312. The offence committed in the offence of trafficking in a narcotic drug, or a controlled drug, is not in respect of the property transferred as the consideration for the illegal transaction, but against the public welfare, in the interests of which the transaction is made criminal. The fact that money was derived from the commission of a crime does not necessarily constitute an "obtaining" of the money by the crime, within the meaning of s. 312.
23It is important to note that section 312 was amended shortly after MacKenzie to add the words "proceeds" and "or derived directly or indirectly from" to the provision to expand the limited construction of "obtained". While the present section 354(1) contains this more expansive language, section 96(1) is limited to "obtained".
24In the post-amendment case of Geauvreau, the accused was convicted of the possession of an outboard motor knowing it to have been "obtained by the commission in Canada of an indictable offence". In that case, three men entered into a conspiracy for two of them to take the outboard motor from the third who was its owner. The owner then made a false insurance claim to recover his loss due to the theft. The two men who had taken the motor sold it to the accused, who knew of the conspiracy. His conviction was overturned on the ground that the motor was not "obtained" by the crime of conspiracy but rather was indirectly derived from that crime. The Court of Appeal noted that the Crown could have charged the accused with the offence of being in possession of the motor knowing it had been derived indirectly from the crime of conspiracy and the offence would have been made out. However, the Crown chose to particularize the means of committing the offence. While it might have been open to the trial judge to amend the information to conform to the evidence, thereby alleging a different means of committing the same offence, an appellate Court had no power to amend the information. The matter was sent back for a new trial.
25Neither of the counts under section 354(1) in this case use the more expansive wording but given the absence of any evidence of acquisition, nothing turns on the wording of these charges, in my view. In addition to the limited interpretation of "obtained", there is an inferential gap between the proven fact of possession of the shotgun and the means by which it was obtained. The same inferential gap would exist if possession of the handgun was established.
26The Huynh case explains this reasoning. That matter dealt with an application for extradition on charges involving a conspiracy and an attempt to launder the proceeds of crime which were particularized to have been obtained through trafficking in controlled substances. A large amount of cash had been found in a secret compartment in the gas tank of a vehicle owned by Mr. Huynh and there was evidence of frequent cash transfers from the United States to Canada, coded conversations of participants who displayed a concern about surveillance and the evidence that the modus operandi was consistent with the activities of drug dealers. Justice Doherty held that there was no evidence as to the source of the money. He noted that there was an inferential gap between the presence of the money and the inference it was obtained by drug trafficking which was not bridged by the evidence before the court. On all the evidence, it was conjecture to conclude that the money was obtained from drug trafficking as opposed to other illicit activity. As there was no evidence of an essential averment in the Authority to Proceed, the appellant was discharged.
27While it is difficult to think of many scenarios where Mr. Hutchinson could have innocently obtained either gun, it is not inconceivable that he obtained the weapon from someone who was authorized to possess it and therefore the gun would not necessarily have been "obtained" by the commission of a crime. In those circumstances, the illegal transfer of interest in the weapon would not meet the test of "obtained", as that term has been defined by the Court of Appeal.
28I conclude that the limited construction of "obtained" in the jurisprudence requires the Crown to lead some evidence of acquisition beyond mere possession. That evidence is absent in this case.
29In the result, Mr. Hutchinson will be discharged on counts 5, 7, 12 and 15.
Analysis of Basement Items and Constructive Possession
30I turn to a consideration of the items found by police in the basement media room of Mr. Hutchinson's residence. In order to commit Mr. Hutchinson to trial on any or all of the charges related to this property, I must be satisfied that there is some evidence upon which a properly instructed jury might find that he had possession of the items found by the police. Knowledge is a requirement of all forms of possession, whether actual, joint or constructive possession. Evidence of actual possession is often sufficient to support a committal to trial as the inference that the possessor knew about the item possessed is usually reasonable and available. However, this is not a case where Mr. Hutchinson was found in physical possession of any of the items. In this case, possession must be inferred from the totality of the evidence.
31Possession is defined in section 4(3) of the Criminal Code as follows:
(3) For the purposes of this Act,
(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
32The Crown submits that there is an abundance of circumstantial evidence to commit Mr. Hutchinson on all charges involving the items found in the basement.
33The Crown relies on the following pieces of evidence to make this submission:
Mr. Hutchinson was one of only three residents of the home;
Mr. Hutchinson was present in the home when the search warrant was executed;
Mr. Hutchinson used the basement media room regularly and sometimes slept on the couch there;
Mr. Hutchinson's older brother Kareem testified that none of the seized items belonged to him and he had never seen those items before;
Kareem Hutchinson testified that he had never seen his mother or any guest in the home with a handgun;
Kareem Hutchinson testified that the accused brought a handgun into the home some time before the items were found by police and had shown him that handgun in Kareem's basement bedroom;
Mr. Hutchinson was in possession of the sawed-off shotgun found in the bottom dresser drawer of his bedroom with his personal banking documents and TTC card;
The physical proximity of all of the items seized from the basement;
The Canon camera, the spent 12 gauge Winchester shell and the two masks were in plain view;
The spent red shotgun shell in plain view on the CD stand in the basement is the same Winchester 12 gauge red shotgun cartridge as the live shell found chambered in the shotgun in Mr. Hutchinson's upstairs bedroom;
The content of the video clip permits the logical inference that the maker of the video was an occupant of the home as the video clip shows a person putting on boots inside the home, exiting the house, walking down the driveway past Kareem Hutchinson's parked car, along the sidewalk for some distance past an unoccupied parked police cruiser towards a school and then returning to the Hutchinson home and entering through the front door;
There is circumstantial evidence supporting a reasonable inference that the person in the video clip is Mr. Hutchinson based on the following facts: the voice on the video clip is male; the person in the video clip is not Kareem Hutchinson; Kareem Hutchinson can't identify whose voice is on the video clip but he can't definitely say it is not his brother's voice; the content of the video clip, which indicates the speaker is a permanent resident of the home, specifically, the following words: "Yeah, these motherfuckers back here again. Yo, what'll you all want? … I don't know why they're always parking there … This is what I got to wake up to … The street is quiet as ever. Nobody's outside … What the fuck you doing here? Is it 'cause I shovelled my driveway late? Is that an offence? I broke the law because of that? I don't know what's going on … I feel this is, I mean, harassment …" (emphasis mine);
The content of the video clip also provides circumstantial evidence supporting the further logical inference that Mr. Hutchinson is the person who took the three photographs found in the Canon camera based on the following facts: there are only two male permanent residents in the home; the shotgun did not belong to Kareem Hutchinson and it was not his hand holding the shotgun in the photographs; the shotgun in the photographs is single-barrelled and sawed off and the part of it that is visible is strikingly similar to the same part of the shotgun found in Mr. Hutchinson's possession at the time of the search; the identity of scout car 4231 in both the video clip and the photographs; the identity of place, in that the scout car is parked in the same place in both the video clip and the photographs; the identity of weather conditions (snow on the ground but not on the trees or pavement); the continuity of conduct, moving from the reference on the video clip to "blow your fucking head off" and the aiming of the shotgun out the window at the police cruiser; the fact that the video clip ends with the speaker saying"'Till part two.", supporting an inference that the video clip was taken first and the photographs second;
The context of the comments made near the school on the video clip makes it clear that the words "get the fuck outta here – blow your fucking head off – then we'll see what you all fucking looking for" were directed to the police officers in the vicinity of the Hutchinson home;
34The defence submits that it is pure speculation that Mr. Hutchinson had constructive possession of the loaded handgun and other items in the basement which were seized by the police.
35Counsel referred to weaknesses in the Crown's evidence, including the lack of a temporal nexus between Mr. Hutchinson showing his brother a handgun and the seizure of the handgun by police; Kareem Hutchinson's inability to describe the gun he was shown and inability to say whether it was real or not; the absence of any identification belonging to Mr. Hutchinson in the basement where the various items were found; and the opportunity for other persons invited into the home and the basement to have left the items there without Mr. Hutchinson's knowledge or control of them.
36Defence counsel provided a number of cases to reinforce his position that the circumstantial evidence does not permit a reasonable inference of possession, as distinct from conjecture. Constructive possession is fact driven as the reasonable inference of possession will only be drawn if the predicate facts support the conclusion of possession. The jurisprudence provides principled guidance but no one case is dispositive of the issue in this case.
37In Grey, police acted on an informant's tip and found cocaine hidden in two places in the master bedroom. There was evidence that the accused was involved in an intimate relationship with the homeowner and that he was a regular occupant in the home. No other evidence connected the accused to the drugs. There was no direct evidence of knowledge. The drugs were hidden, the apartment was rented by the co-accused, other persons frequented the apartment and the accused was not a permanent occupant. On those facts, the circumstantial evidence did not support a finding beyond a reasonable doubt that the accused had knowledge of the drugs and his conviction was set aside.
38In the case at bar, the test for committal is different than the standard of proof required for conviction. In addition, there is evidence that Mr. Hutchinson was a permanent resident of the home, that the weapons did not belong to the other residents, that he frequented the basement and sometimes slept on the couch, that he used the basement space to entertain his friends whereas his brother did not, that he had brought a handgun into the home some time prior to the search of his home and that the camera and the spent shotgun shell found in the basement connected him to possession of another firearm found elsewhere in the home.
39In the Carpentier case, the Court concluded that the only evidence of knowledge was the assumption of a police officer that the room where the gun was found was occupied by the accused. That assumption was unreasonable because the officer took no steps to verify his conclusion. Generic items such as a mattress and boxspring on the floor, cigarettes and condoms could not support an inference that the accused used the bedroom rather than other occupants of the home, including the accused's brother. The Court concluded that the evidence of knowledge failed to establish on a balance of probabilities that the accused had breached his conditional sentence order by possessing a weapon. I find this case provides little assistance beyond providing an example of the distinction between inferences and speculation.
40In Sappleton, the trial judge found that the circumstantial evidence of possession of two loaded firearms found under the cushions of a couch in a home was "more than highly suspicious" but fell short of proving possession beyond a reasonable doubt. The circumstantial evidence consisted of the accused's physical proximity to the location where the guns were found (he was sitting on the couch with three others), evidence that he was a periodic visitor to his mother's home and that his OHIP card with his mother's address had been found in the home. No fingerprints or DNA were found on the weapons and any one of his three friends could have hidden the guns. The court noted that its "grave suspicions" could not provide a basis for a finding of guilt beyond a reasonable doubt. It is implicit in the reasoning of the trial judge that the circumstantial evidence was "some evidence" sufficient to warrant committal for trial, as it clearly had, even though it could not scale the hurdle of proof beyond a reasonable doubt.
41Similarly, the Han case involved the application of Hodge's Rule to circumstantial evidence at trial, a very different standard than the test for committal. In that case, firearms, ammunition and body armour were found in an insecure locker in an apartment building where the accused and two others rented an apartment. Justice Wong rejected the defence evidence and found that it did not raise a reasonable doubt. She reviewed the facts and the inferences that the Crown asked be drawn from those facts. At trial, unlike at a preliminary hearing, she was entitled to weigh competing inferences. She concluded that the failure to properly investigate the case rendered many if not all of the available inferences favouring the prosecution speculative. She held that the "entirety of the circumstantial evidence … does not support as the only reasonable inference, the conclusion that Fan Han had knowledge and therefore, possession, of the contents of the locker" and despite a strong suspicion, acquitted the accused.
42In Savoury, the preliminary inquiry judge found that there was insufficient evidence to establish an inference of knowledge of drugs and firearms found hidden in places other than a bedroom where Mr. Savoury's identification was located. The judge noted that "there is no evidence that he was a regular visitor or that he resided there. No surveillance evidence was called to establish that Mr. Savoury frequented that house even though he had a key." In the case at bar, there is evidence that Mr. Hutchinson was a permanent resident of the home.
43In Graham, the accused was discharged on a number of weapons offences where the evidence of possession consisted of his being found in the basement of a home with an adult woman, a cell phone and drug paraphernalia. Firearms and ammunition were found hidden in the basement furnace room, in a hole in the wall behind a basement bathroom medicine cabinet, in the kitchen cabinets and behind a temporary wall by the television in the living room. Several other people were also found in the home but the accused was the only person charged with these offences. Drugs and some documents with the accused's name on them were found in a safe under the stairs. There were no fingerprints or DNA on the guns. There were no affidavits or testimony denying ownership of the seized items from the other occupants of the home. The preliminary inquiry judge found that the weapons were hidden and there was no evidence that the accused was sleeping in the basement or that he frequented that area of the home. On these facts, she concluded that no reasonable inference of possession could be drawn.
44In my view, the facts in Graham are readily distinguishable from those in this case. Unlike Graham, there is evidence that Mr. Hutchinson was a permanent resident in the home and that he used the basement to entertain his friends and sometimes to sleep there. There is evidence that the other occupants of the home did not own the weapons or other items seized by the police from the basement. There is evidence of constructive possession with respect to the shotgun. Although the loaded handgun, the replica gun, the knife and the cell phone were hidden, the spent Winchester shell, the camera and the two masks were in plain view. There is circumstantial evidence linking Mr. Hutchinson to the camera, its contents, the shotgun and the two Winchester shells.
45I am satisfied that all the evidence, considered cumulatively, provides some evidence of knowledge and control of each of the items found in the basement and Mr. Hutchinson will be ordered to stand trial on counts 1, 2, 3, 4, 6.
Analysis of Threatening Death Charge
46I turn to a consideration of the sufficiency of the evidence with respect to the additional count of threatening death under s. 264.1(1)(a) of the Criminal Code. I have considered all of the evidence in relation to the words spoken on the video clip, including the three photographs which provide a context in which to assess those words. In my view, even accepting that there is circumstantial evidence upon which a reasonable jury could find that Mr. Hutchinson was the person speaking on the video clip and that the words spoken amounted in law to a threat, there is no evidence that the words uttered were communicated or intended to be communicated to any person. Communication of the threat to some person, not necessarily the victim, is an essential element of the offence. Our law does not criminalize speech that is merely uttered to oneself. In my view, the fact that the words were recorded and later overheard by police as a result of the execution of a search warrant does not alter this fact. This is not a case where there is some evidence that the video clip was posted on social media or otherwise distributed, potentially menacing or threatening police. In all the circumstances of this case, I am of the view that there is no evidence to put Mr. Hutchinson on trial on this charge.
Disposition
47In the result, Mr. Hutchinson will be ordered to stand trial on counts 1, 2, 3, 4, 6, 8, 9, 10, 11 and 14. He will be discharged on counts 5, 7, 12, 13 and 15.
Released: June 18, 2013
Signed: "Justice Marin"