WARNING

The court hearing this matter directs that the following notice should 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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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

Court File No.: Toronto Region – College Park, 444 Yonge Street

Date: 2012-10-09

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Terry Graham

Before: Justice M. Wong

Heard on: September 10 and 28, 2012

Reasons for Judgment released on: October 9, 2012

Counsel:

• John Cisorio for the Crown
• Mathew Friedberg for the accused Terry Graham

Judgment

Wong, J.:

[1] Introduction

This is a ruling on committal relating to numerous charges relating to firearms and ammunition found when police executed a search warrant on October 3, 2011 at B[…] Avenue in Toronto. Police found Terry Graham and a female in the basement as well as two firearms, drug paraphernalia, a small quantity of what appeared to be marijuana, and some personal identification of Mr. Graham. Police also located shotgun shells hidden in a kitchen cupboard upstairs.

[2] Concession

It is conceded by Defence counsel for the preliminary hearing that the items seized were "firearms" and that Mr. Graham did not have a valid firearms license.

Issue

[3] The issue is whether the Crown has established through circumstantial evidence that Mr. Graham had constructive possession of the firearms and ammunition. Mr. Cisorio for the Crown called one witness Police Constable Preston Clarke of the Toronto Drug Squad.

Facts

[4] The facts in the case are not complicated and not largely disputed: P.C. Clarke was one of several officers who executed a search warrant at this residence around midnight on October 3, 2011. The target of the search warrant was the defendant, Terry Graham. Emergency Task Force officers entered first and secured the scene; and then drug squad officers. Police located several occupants inside the house including Mr. Graham and an adult female. Also in the residence were two young adult males and another adult female.

[5] P.C. Clarke testified he went straight to the basement. He found Terry Graham in his underwear lying face down and handcuffed behind his back. Emergency Task Force officers advised him they had found Mr. Graham "on the couch".

[6] The basement was filthy. There were boxes and bags, leftover food, and debris everywhere. There was also a couch with some blankets, a television, stereo equipment, a two-piece washroom, and some men's clothing. According to P.C. Clarke, it appeared that someone was living in the basement.

[7] A pair of jeans was located near the couch and in the pocket was a wallet which contained Mr. Graham's driver's license and $185 cash. On a nearby coffee table, P.C. Clarke located two sets of scales and a Nokia cell phone. The officer did not check the phone to see to whom it belonged but said it was near Mr. Graham's jeans. Another digital scale was found under a couch cushion.

[8] P.C. Clarke conducted a thorough search of the basement: behind the bathroom mirror, instead of there being a medicine cabinet, there was a very large hole. The officer stuck his head through the hole and saw what turned out was a Browning Maxus 12 gauge shotgun in a soft case. P.C. Clarke said another way for someone to find the shotgun would have been to enter the furnace room and look right into the corner. The shotgun was unloaded.

[9] P.C. Clarke also found an air rifle, which is not the subject of any charges, also in the same area. Also, the officer found a handgun box with documents inside relating to a 45 calibre handgun, but he did not seize the box and could recall where in the basement it was located.

[10] Another firearm was also found. In the main living room area, P.C. Clarke testified there was a hole in the wall behind the television. The officer described it as a "temporary wall" made of plywood. He removed the plywood and located a chest-high crawl space. Looking inside the crawl space and to the left, he located a loaded prohibited firearm: a Ruger 9 mm pistol with 8 – 9 mm rounds of ammunition (one bullet in the chamber).

[11] Later when P.C. Clarke searched a kitchen cupboard and behind a lazy-Susan style carousel, he located a box with 22 rounds of 12 gauge shotgun shells: the ammunition was compatible with the Browning Maxus 12 gauge shotgun found in the basement.

[12] There were also a number of safes in the basement. One safe was located on top of a fridge, which was tucked in a space under the stairs. Inside the safe, P.C. Clarke testified he found a zip lock baggie which he believed contained dried marijuana, and "some documents" with Mr. Graham's name on them. The officer seized the documents and turned them over to the exhibits officer: however, P.C. Clarke did not remember what the documents were only that he saw the defendant's name on them.

[13] Throughout his interaction with Mr. Graham, P.C. Clarke described the defendant as completely uncooperative and belligerent. Mr. Graham was charged with multiple offences relating to possession of firearms without being the holder of a permit or license and careless storage of the guns and ammunition. Although Mr. Graham was not the only occupant of B[…], he was the only person charged. There are no fingerprints or any other forensic evidence linking Mr. Graham to the items seized, and he did not make a statement.

The Law

[14] In assessing the evidence, I have applied the well-settled rule that a preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict. Where the case for the Crown is by way of direct evidence, the judge's task is straightforward. If there is conflict in the evidence, the case must still proceed to trial. However, where the Crown's case is circumstantial, the court must engage in a limited weighing of the whole of the evidence, including the defence evidence, to determine whether a reasonable jury properly instructed could return a verdict of guilty. The preliminary inquiry judge does not engage in drawing factual inferences or in assessing credibility. The judge only asks whether the evidence, if believed, could reasonably support an inference of guilt.

[15] I am also mindful that any reasonable interpretation or permissible inference from the evidence, properly admissible against the accused, beyond conjecture or speculation, is to be resolved in favour of the prosecution. Some evidence, if only at the level of a scintilla of evidence, must however exist respecting the constituent elements.

[16] As well the justice is obliged to consider the cumulative effect of the evidence said to point toward guilt on the part of the accused. Especially in a case premised wholly or in large measure upon circumstantial evidence, it is improper to isolate a particular piece of evidence and to then discuss any probative force flowing there from without regard to the context of the totality of the evidence.

[17] The Crown must prove the necessary element of possession as defined in section 4(3) of the Criminal Code:

(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 of 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.

[18] In order to commit Terry Graham on any or all of the charges, I must be satisfied that there is some evidence that a properly instructed jury might find that the accused had possession of the items found. With all forms of possession - actual, joint, or constructive possession - it is necessary that the person knows first that he has the article in his possession. In the case of personal possession, where a person has manual possession of an object, it is often difficult though not impossible to deny knowledge of the presence of the article. In the case of constructive or joint possession, knowledge must often be inferred by the circumstances of the case.

Analysis

[19] The Crown submits there is sufficient evidence to commit Mr. Graham on all charges. Mr. Cisorio refers to the above mentioned principles and submits the evidence of Mr. Graham being found in the basement, shortly after midnight, undressed with his pants and identification close by, and male clothing found in the basement should allow the Court to infer that Mr. Graham was comfortable in the area, which reasonably infers that he was regularly in the basement and had control of the area. Emergency Task Force officers found Mr. Graham on a couch; in front of which two sets of scales and a cell phone was found on top of a coffee table. The Crown submits Mr. Graham's proximity to the cell phone could lead a properly instructed jury to find that it was the defendant's cell phone. The cell phone together with the scales could lead a jury to a reasonable inference that the defendant was involved in drug trafficking. Furthermore, the Crown points to the papers in the safe which P.C. Clarke said had Mr. Graham's name on them, as circumstantial evidence that the defendant would have kept such papers close to him, which again could lead a jury to believe that the defendant exercised control over the basement. Of the two firearms, Mr. Cisorio submits the shotgun was visible to someone walking into the furnace room and looking in the corner. The Crown concedes the handgun secreted behind the wall was not in plain view. However, the Crown submits the totality of the evidence and circumstances of Mr. Graham and his property being found in the basement, could result in a reasonable inference that he had knowledge and control of the firearms.

[20] The Defence submits it is pure speculation that because police found Mr. Graham in the basement that a properly instructed jury could find the defendant had constructive possession of the firearms. Counsel, Mathew Friedberg, points to a number of weaknesses in the Crown's evidence which I will review momentarily.

[21] Defence counsel submits several cases including the recent Ontario Court of Appeal decision in R. v. Turner. But first counsel referred to three cases: In R. v. Grey, the Ontario Court of Appeal substituted a verdict of acquittal for the appellant who together with his girlfriend were convicted of possession for the purpose of trafficking crack cocaine that was hidden in the girlfriend's bedroom. In Grey, no one was home when police executed a search warrant and found the drugs hidden by the bed; as well as located in the closet was a large sum of cash in a jean skirt, a pouch with a set of scales and some personal papers of Mr. Grey's. At trial, Mr. Grey testified that the drugs were not his, but the trial judge convicted him based on the Crown having proven joint possession. However, the Court of Appeal overturned the conviction based on no evidence – either direct evidence or circumstantial evidence – of knowledge. The Court held at paragraph 23 that there is no firm rule for inferring knowledge from occupancy. (In Grey, the court went on to distinguish the different standards of proof required for a conviction from the test for committal. I am very mindful that this is a ruling on a preliminary inquiry).

[22] In R. v. McClelland, Justice Casey of this Court committed the defendant to stand trial where police executed a search warrant and found inside a small grow-op. In that case, the Crown established that the defendant had been given the keys to the apartment just three weeks before the search; police searched the apartment and found a lease in the defendant's name, and his fingerprint was found on a bottle inside the unit. In that case, the preliminary hearing judge found, and I agree, that it was not necessary for the prosecution to prove the required knowledge by direct evidence: rather knowledge may be inferred from the surrounding circumstances.

[23] Justice Casey in McClelland also correctly pointed out in paragraph 27 that control for the purpose of constructive possession does not require that the accused did in fact exercise control over the object in question. Control means power or authority over the object in question.

[24] Mr. Friedberg also referred to the decision of R. v. Savoury, which I am familiar with because I was the preliminary inquiry judge. Mr. Savoury and a co-accused Williamson were jointly charged with numerous firearms and drug related offences. In that case, police had set up surveillance on a particular house and watched as Mr. Savoury pulled up in a vehicle and opened the front door with a key. Moments later, Mr. Savoury exited house and drove away; only to return an hour later. At this point, police arrested Mr. Savoury and found on him, cocaine and a large sum of cash. Upon entering the house with a search warrant, police located in a bedroom a shoebox with cocaine and some personal documents of Mr. Savoury's including his Individual Offender Visit Recording form from the Millhaven Assessment Unit, his application for an Ontario Driver's License, his Correctional Services Canada form; and his Ministry of Health and Long Term Care form.

[25] Police also searched the rest of the house: located in the laundry room, police located a small quantity of crack cocaine room along with a Rogers Wireless invoice in the name of "John Williamson". In another bedroom, police located a semi automatic pistol and ammunition in a safe along with three cheque books with the name "John Williamson"; Mr. Williamson's Ontario Driver's License; his Canadian passport; his Canadian citizenship card, and US currency. Police also located an Agreement of Purchase and Sale in the name of "John Williamson" which listed the address in question. A firearm was also found wrapped in a white cloth hidden in a vase in the living room. Police also located a Bell Canada bill in Mr. Williamson's name in the kitchen where police also found more powdered cocaine and scales.

[26] At the end of the preliminary hearing, I committed John Williamson on all counts, and committed Mr. Savoury on only the counts relating to the property seized in the bedroom where his personal papers were found; and the drugs and money found on his person.

[27] The Crown appealed the discharges and sought an order in the nature of certiorari. Justice Karakatsanis of the Superior Court (as she then was) ruled that I had applied the correct test; that it was open to the preliminary hearing judge to find the evidence of a key and personal papers in one bedroom was insufficient to reasonably support the inference that Savoury had knowledge of the drugs and firearms hidden in the rest of the home, even in light of some evidence that Savoury was himself a drug dealer. At paragraph 18, Justice Karakatsanis wrote:

To find that he lived there or that he was in a joint illegal enterprise with the owner of the house or that he had knowledge of the hidden drugs and firearms would, in my view, require a speculative leap from the inference of Savoury's access and occupancy and his personal possession of drugs for drug dealing. In essence, the Crown submitted that it was a glaring inconsistency to find occupancy but not to find residency on these facts. In R. v. Grey, the Court of Appeal found that whether or not knowledge can be inferred from occupancy depends on the facts in each case. In that case, while the accused regularly stayed overnight at his girlfriend's apartment, the court found there were insufficient facts to establish possession of drugs found in the apartment; there was no other evidence connecting the accused to the drugs, other persons frequented the apartment and the appellant was not a permanent occupant.

[28] The final case for the Defence was R. v. Turner, a decision from September 2012 from the Ontario Court of Appeal. In Turner, the preliminary hearing judge discharged the appellant on firearms charges. Police had executed a search warrant of a residence, in which Turner and two others were found. Turner was standing just inside the doorway of one of two bedrooms. He was facing the hallway adjacent to the bedroom. Upon searching the bedroom, police found his driver's license on the floor. There was no evidence what the address was on the driver's license or how long it had been lying there. As well, over $1000 in cash was found on the night table; and more cash was found under the mattress. More cash was found in jeans in the closet, but no evidence whether they were men's or ladies' jeans. Also inside the closet, police located passports belonging to an adult female and her daughter, both of whom were found in the apartment.

[29] Police located a loaded gun concealed under some folded clothing on a shelf inside the closet. Both females provided statutory declarations and/or videotape statement to police to the effect that the firearm was not theirs.

[30] At the preliminary hearing, Mr. Turner was discharged on all counts. The Crown appealed and the application judge in Superior Court quashed the appellant's discharge finding that the judge had failed to consider the whole of the evidence and ignored four key primary facts: first, the accused was found in the bedroom alone; it was 5:00 am; the appellant's driver's license was on the floor; and there was a large sum of money clearly visible on the bedside table. The Court of Appeal in quashing the order certiorari and the order for mandamus, ordered that the preliminary hearing judge's ordering the discharging of all counts reinstated.

[31] In the case before me, I agree with Defence counsel that the evidence against Mr. Graham at his preliminary hearing is arguably no stronger than the evidence against Mr. Turner. In some ways, the evidence in this case, I find, is even weaker.

[32] In Mr. Graham's case, he was found in the basement shortly after midnight in his underwear on the couch. There is no evidence that he was sleeping or that he frequented the space. There was men's clothing found in the basement, but there is also evidence that two young men – Isaiah Best (born 1993) and Christopher Peterson (born 1981) were also found inside the home. There was no separate entrance to the basement so people accessed it by coming down the stairs; as opposed to a self-contained basement apartment. Mr. Graham's pants and wallet with his driver's license was found near the couch. Like in the case of Turner, there was no evidence as to what address was shown on the license.

[33] The Crown points to the documents with Mr. Graham's name on them, which P.C. Clarke found inside the safe alongside what appeared to be some dried marijuana. Mr. Cisorio argues it is open to a jury to find that personal documentation is kept where someone resides or frequently makes use of. However, I agree with Mr. Friedberg, there is no evidence what the "documents with Mr. Graham's name on them" were: P.C. Clarke did not remember and no other evidence was called. Just because the officer referred to the papers as "documents" does not, in my mind, elevate the papers to have any official status such as a passport, phone or credit card bill, or business record. As Defence counsel argues, a "document with Mr. Graham's name on it" could mean a piece of paper where someone wrote his name.

[34] Unlike the case of Turner, the Crown did not establish that the other occupants of the home provided statements or statutory declarations that the firearms were not theirs. In this case, Mr. Graham was found in the basement with a female, Joy Dee Peterson (born 1963). It is an equally reasonable inference that the cell phone and scales could be her's.

[35] The guns were not in plain view. Crown counsel tried to argue that the shotgun in the soft case which P.C. Clarke found after looking into the large hole behind the bathroom mirror would have been visible if someone had entered the furnace room and looked in the corner. However, the evidence is that Mr. Graham was found in the main part of the basement by the couch; and there is no evidence that the defendant occupied or entered the furnace room. The other firearm – the handgun secreted behind the temporary wall – the Crown concedes was not in plain view.

[36] In this case, while it's tempting to find that there is a reasonable inference a properly instructed jury might find that Mr. Graham, who was after all was the named target of the search warrant, was a drug dealer, who hid his firearms because like any drug trafficker, he would not keep his weapons in plain view, that there is simply not the evidence to support those findings. I find it would be pure speculation and conjecture on the quality of evidence that was called at this preliminary hearing to infer Mr. Graham had knowledge or control over the firearms. Knowing that I must consider the evidence at its highest in favour of the Crown at this stage of the proceedings, all this court is left with is that Mr. Graham was in a basement apartment, at midnight, comfortable in his underwear and there were some documents in a safe with his name on them. Going even farther: that Mr. Graham was seated or perhaps, sleeping on a couch and in front of him was a cell phone that might be his and some drug scales. However, based on all of the circumstances, the evidence does not lead a properly instructed jury to go any farther in their analysis and find a reasonable inference that Mr. Graham knew there were firearms stowed away in the basement, let alone that he had control over them.

[37] As such, based on the evidence, I am not satisfied that the Crown has called sufficient evidence to commit Mr. Graham on the charges before this court.

[38] Mr. Graham will be discharged on counts 1, 2, 4 and 6 relating to possession and careless storage of the prohibited firearm; count 5 relating to careless storage of ammunition; count 7, 8, 9, 10, and 11 relating to possession and storage of the shotgun and ammunition. The Crown did not proceed on count 3.

Released: October 9, 2012

Justice Mavin Wong