Court File and Parties

Court File No.: M229/15 Date: 2016-05-09 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Applicant – and – Justin Allison, Respondent

Counsel: Rob Wright, for the Crown Samuel Walker, for the Respondent

Heard: March 29, 2016

Before: Trotter J.

Introduction

[1] The police executed a search warrant in a small, one-bedroom apartment. Justin Allison was the only person there at the time. He was observed entering the apartment with a key a few hours earlier. The police found a loaded firearm and drugs in a bin beside a makeshift bed. Mr. Allison’s passport and other pieces of identification were found in close proximity.

[2] Mr. Allison was charged with various firearms and drug offences. He was discharged at the end of a preliminary inquiry conducted by Justice J.C. Moore of the Ontario Court of Justice. The Crown brings a certiorari application to quash the discharges.

[3] For the reasons that follow, the application is dismissed.

Summary of the Facts

[4] On July 24, 2014, the police obtained a warranted to search Apt. 611 at 1 Terraview Boulevard, Toronto.

[5] Earlier that day, at 1:40 p.m., an officer went to the building to investigate Apt. 611. The targets of the investigation were the lessee of the unit, and someone named, “Justin.” The officer went to the 6th floor. He saw Mr. Allison and a female approach Apt. 611. Mr. Allison used a key to open the door and they went inside. No further surveillance of the apartment was conducted.

[6] The search warrant was executed at 7:50 p.m. Mr. Allison was in the apartment and taken into custody. The lessee of the apartment, Colin DeFreitas, was found in a stairwell. He was detained by the police, but never charged.

[7] In the Apt. 611, there was a futon with red bedding in the corner of the living room. A pink Rubbermaid bin was beside the futon. Next to the bin was a television/dinner type tray, with a shoebox on top. A number of new ball caps were on the box. Numerous caps were also hanging on the wall. There were many pairs of men’s running shoes neatly lined up beside the bed.

[8] Inside the pink bin, the police found a loaded handgun under the top layer of clothing. As the officer searched the bin, a black hard-shell case fell to the floor. It contained 9.31 grams of cocaine. On the nearby dining room table, officers found a small electronic scale and some small plastic bags. A bag with 1.19 grams of cocaine was found on the living room windowsill.

[9] Officers found a small black box inside the bin containing Mr. Allison’s birth certificate, passport and health card. No other identification was discovered in the apartment. However, a bank statement in the name of Colin Defreitas was found on the dresser in the bedroom.

[10] As photographs of the scene showed, in addition to the bedding on the futon, a couch in the living room was made up as a bed. Because the apartment was such a mess (with clothing all over the place), it is difficult to delineate distinct living areas in this small space from the photographs. There was no evidence as to who slept where. Assuming someone used the bedroom, there could have been three people who slept in Apt. 611, apart from Mr. Allison’s identification, there was no evidence as to who owned what, including the many ball caps and shoes next to the futon. There was no evidence that these shoes would have fit Mr. Allison.

Reasons of the Preliminary Inquiry Judge

[11] The learned preliminary inquiry judge reviewed the salient aspects of the evidence. He observed that, between the time Mr. Allison went into the apartment in the afternoon and the execution of the search warrant hours later, there was no monitoring of the comings and goings of people from number Apt. 6. The preliminary inquiry judge also noted the following:

• The defendant’s prints were not found on any items located in the apartment.
• No statement of the defendant was introduced by the Crown.
• No witnesses were called by the Crown to testify as to what, if any, connection Mr. Allison had to apartment 611.
• When he was arrested he had $60.00 and a Home Depot card in his possession. He was fully clothed.

[12] The preliminary inquiry judge properly framed the case as circumstantial in nature. Citing United States of America v. Sheppard (1977), 30 C.C.C. (2d) 424 (S.C.C.), he said he was tasked with deciding whether there is “any evidence upon which a reasonable jury properly instructed could, not would, convict?” He also acknowledged that, “It is not for me…to weigh the evidence or make any assessment as to the reliability/credibility of witnesses.” Importantly, the preliminary inquiry judge said, “I am also aware of the law that any inference that can be drawn must be drawn in favour of the Crown and it is not for me to weigh the various inferences that can be drawn at the preliminary hearing stage.”

[13] The learned judge posed a series of questions about the evidence. For example, he asked: “In this matter, what is the link that has been established by the Crown between the defendant and the firearm and drugs?” and “Does the addition on the second occasion of the three documents close to the firearm and drugs result in a sufficient basis upon which a reasonable inference can be drawn that Mr. Allison possessed the requisite control and knowledge?” After itemizing other gaps in the evidence, [1] he concluded that the evidence did not rise above realm of speculation in terms of Mr. Allison’s knowledge of and control over the firearm and drugs.

Analysis

(a) The Legal Framework

[14] It is unnecessary to review the voluminous case law concerning the obligations of a preliminary inquiry judge under s. 548 of the Criminal Code and the limited role of a reviewing judge. The Court of Appeal has very recently addressed both in R. v. Kamermans, 2016 ONCA 117 and R. v. Wilson, 2016 ONCA 235.

[15] In Kamermans, after articulating the governing principles for review by way of certiorari, Watt J.A., at paras. 15 to 16, discussed two examples of jurisdictional error that the Crown relies upon in this case:

Jurisdictional error may also be established if it can be shown that a preliminary inquiry judge preferred an inference favourable to an accused to an inference, also available on the evidence, favourable to the Crown: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 25. The limited weighing of circumstantial evidence in which a preliminary inquiry judge may engage does not involve drawing inferences, assessing credibility or considering the inherent reliability of evidence: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 23 and 30.

Jurisdictional error may also be demonstrated where the preliminary inquiry judge has failed to consider "the whole of the evidence" adduced at the inquiry in reaching his or her conclusion about committal or discharge: Sazant, at para. 25.

[16] In Wilson, at para. 19, the Court emphasized the “very limited” scope of certiorari in this context, noting that it is not the role of the reviewing judge to simply “redo the limited weighing function.” See R. v. Manasseri, 2010 ONCA 396, 276 C.C.C. (3d) 406, at para. 28. Instead, a reviewing judge may only intervene if the preliminary inquiry judge fails to exercise or exceeds his/her statutory jurisdiction. Writing for the Court in Wilson, Benotto J.A. held at para. 27-28:

A preliminary inquiry judge commits a jurisdictional error by committing an accused when an essential element of the offence is unsupported by the evidence. However, that does not entail the reviewing judge asking whether she would have arrived at a different result. As the majority in R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, explained at para. 23: “[I]t would be improper for a reviewing court to intervene merely because the preliminary inquiry judge’s conclusion on sufficiency differs from that which the reviewing court would have reached.”

A preliminary inquiry judge’s determination is therefore entitled to the greatest deference. [2] The reviewing judge must only decide whether there was an evidentiary basis on which the court below could form the opinion that the evidence was sufficient to justify a committal for trial. [emphasis added]

[17] Both counsel impressively marshalled possession cases that supported their respective positions. Of course, there are no hard and fast rules in this context; each case turns on its own facts. Preliminary inquiry judges must consider all of the circumstances of a case and, beyond the limited weighing inherent under s. 548 of the Criminal Code, draw all reasonable inferences favourable to the Crown: see R. v. Turner (2012), 2012 ONCA 570, 292 C.C.C. (3d) 69 (Ont. C.A.), at paras. 23 to 26 and United States of America v. Huynh (2005), 200 C.C.C. (3d) 305 (Ont. C.A.), at para. 7.

[18] The Crown relied heavily on Mr. Allison’s occupancy in the Apt. 611. But, standing alone, occupancy is generally insufficient to establish knowledge: R. v. Grey (1996), 28 O.R. (3d) 417 (C.A.), at paras. 16 and 22. Mr. Allison was seen entering the apartment with a key earlier in the day. He was there when the warrant was executed. Whether Mr. Allison had stayed in the apartment in the interim is a matter of speculation. It was unknown whether he had ever been there before. And while Mr. Allison’s possession of a key earlier in the day is an interesting piece of evidence, without more, [3] it too can only give rise to speculation.

[19] The Crown’s main pitch is that, because Mr. Allison was in the apartment that day and his personal documents were found in a box near the futon, the futon was his bed and the tray table was his “night table.” From this, the Crown contends that it can be inferred that everything in proximate the futon (shoes, ball caps, the contents of the bin) belonged to him. More specifically, it is argued that it can reasonably be inferred that Mr. Allison was aware of and exercised control over the contraband in the bin: R. v. Bui (2014), 2014 ONCA 614, 14 C.R. (7th) 149 (Ont. C.A.), at paras. 34 to 36. But his conclusion rests on a string of inferential leaps: see R. v. Savoury, [2008] O.J. No. 2896 (S.C.J.). The preliminary inquiry judge did not err by dismissing this chain of reasoning as being speculative (as opposed to refusing to draw permissible inferences favourable to the Crown).

Conclusion

[20] Despite Mr. Wright’s typically able submissions, the application is dismissed.

Trotter J.

Released: May 9, 2016

Footnotes

[1] By way of example, when dealing with the earlier entrance into the apartment, the learned justice said: “There is evidence that the defendant used a key in order to unlock the door to the apartment. So what? We don’t know when, how, or why or how long he had the key in his possession. He was with a female at the time. There is no evidence as to the length of time he spent in the apartment. There is no evidence as to how or when the shoebox ended up being in the apartment.”

[2] See also Sazant, supra, at para. 24 and R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 48.

[3] It was never established whether Mr. Allison was in possession of a key upon arrest.