COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Turner, 2012 ONCA 570

DATE: 20120905

DOCKET: C54411

MacPherson, Armstrong and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Turner

Appellant

Mark Halfyard, for the appellant

Roger Shallow, for the respondent

Heard: June 14, 2012

On appeal from the order of Justice Nancy Backhouse of the Superior Court of Justice, dated October 11, 2011, granting an application for an order of certiorari and mandamus quashing the appellant’s discharges on counts 50, 51, 52 and 53 of a criminal Information and directing the preliminary inquiry judge to commit the respondent to stand trial on those counts, reported at 2011 ONSC 5662.

Armstrong J.A.:

introduction

[1] This is an appeal from the order of Justice Nancy Backhouse of the Superior Court of Justice in which she granted an application for certiorari and mandamus quashing the appellant’s discharge on five criminal offences and granting an order that he be committed for trial.

[2] For the reasons that follow, I would allow the appeal.

background

[3] On April 1, 2009 at 5:00 a.m., the Toronto police executed a search warrant at Unit 18, 117 Omni Drive in Toronto. After breaking through the apartment door, the police found three people in the apartment: Angela Gray, her daughter Jessica, and the appellant. The apartment contained two bedrooms, a living room, a kitchen and a bathroom.

[4] Upon entering the apartment, the police found the appellant standing just inside the doorway of one of the two bedrooms. He was facing the hallway adjacent to the bedroom. Upon searching the bedroom, the police found the appellant’s driver’s license on the bedroom floor. There was no evidence that the driver’s license contained any information connecting the appellant to the apartment, or of how long it had been on the floor. Just over $1,000 in cash was found on the night table. More cash was found between the mattresses on the bed. Additional cash was found in the pockets of two pairs of jeans in the bedroom closet. There was no evidence whether the jeans belonged to the appellant, or even whether they were men’s or women’s. Also inside the same bedroom closet, the police found the passports belonging to Ms. Gray and her daughter.

[5] A loaded gun was found concealed under some folded clothing on a shelf inside the closet. The gun had no serial number. The gun’s magazine contained nine rounds of ammunition.

[6] Ms. Gray provided a statutory declaration disclaiming ownership and knowledge of the gun and ammunition. Her daughter gave a video statement to the police to the effect that the firearm did not belong to her.

[7] The appellant was charged with a number of offences including the following:

(i) possession of a loaded, prohibited firearm

(ii) possession of a firearm knowing its possession is unauthorized

(iii) unauthorized possession of a firearm

(iv) possession of a firearm knowing it was obtained by the commission of an offence

(v) possession of a firearm with its serial number removed

the reasons of the prelIminary inquiry judge

[8] After reviewing the relevant law governing the role of a judge presiding over a preliminary inquiry, the preliminary inquiry judge reviewed the evidence as outlined above and the relevant law concerning offences of unlawful possession.

[9] In applying the law to the evidence before her, the preliminary inquiry judge noted that there was no evidence that could establish the appellant was in personal or actual possession of the firearm. To succeed, the Crown must show sufficient evidence to establish constructive possession, i.e. evidence that he knew the gun was in the closet and evidence that he exercised control over it.

[10] The preliminary inquiry judge concluded that the evidence before the court was insufficient to establish constructive possession. She noted that there were gaps in the evidence including no evidence connecting the appellant to the location in the closet where the gun was found and, indeed, no evidence that the bedroom was his bedroom.

THE APPLICATION JUDGE’S REASONS

[11] The nub of the application judge’s reasons quashing the appellant’s discharge is found in paras. 11 and 17 of her reasons:

In my respectful opinion, the learned judge focused on what was missing in the Crown’s case rather than in considering whether what was there was sufficient. In particular, the learned judge’s recitation at paragraph 22(5) of her decision that “there is no evidence that bedroom one belonged to Mr. Turner”, ignores 4 key primary facts: (1) Shortly after the police breached the door to the apartment, he alone was found in the bedroom; (2) at 5 a.m. in the morning; (3) as was his driver’s license which was on the floor; (4) some cash was in clear sight. Defence counsel submitted that the Crown did not take the position that the cash was proceeds of crime and most of the money was not in plain view. In my view, it is reasonable to infer that one does not leave cash around in a bedroom one is not occupying and that the accused, being the one found in the room, was the one occupying it.

In my opinion, her conclusion that no reasonable inference emerges on all of the proved primary facts is unreasonable. I find that the learned judge failed in her statutory obligations to consider the “whole of the evidence” as required by Section 548(1)(b) of the Criminal Code. I also conclude that in her listing of negative factors she drew inferences, for example, for the presence of the driver’s license on the floor, instead of in a drawer, but ignored the inference that the presence of the accused’s license on the floor could lead to an inference that the accused was in occupation of the room in which the gun was found.

[12] In respect of the application judge’s treatment of the cash on the bedroom floor, it is unfortunate that she did not have available to her the transcript of the Crown’s submissions before the preliminary inquiry judge. Those submissions were made available to us on the argument of the appeal. The transcript reveals that the Crown did not rely on the presence of the cash in the bedroom to draw an inference that the appellant had both the requisite knowledge and control of the gun and ammunition.

THE grounds of appeal

[13] The appellant raises the following grounds of appeal:

(i) The application judge erred by concluding that the preliminary inquiry judge failed to consider the evidence as a whole.

(ii) The application judge erred in finding that the preliminary inquiry judge improperly focused on what was missing rather than on the sufficiency of the evidence.

(iii) The preliminary inquiry judge’s finding of insufficient circumstantial evidence is not reviewable even if she is wrong.

ANALYSIS

[14] Before considering the individual grounds of appeal, I wish to review briefly the relevant case law.

[15] The seminal case on the test to be applied by a preliminary hearing judge is United States of America v. Sheppard, 1976 8 (SCC), [1977] 2 S.C.R. 1067 at p. 1080:

I agree that the duty imposed upon a “justice” under s. 475(1) is the same as that which governs a trial judge sitting with a jury in deciding whether the evidence is “sufficient” to justify him in withdrawing the case from the jury and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The “justice”, in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.

[16] McLachlin J. (as she then was) in R. v. Charemski, 1998 819 (SCC), [1998] 1 S.C.R. 679, made it clear that the sufficiency of evidence cannot be assessed without reference to the ultimate burden on the Crown to prove the case beyond a reasonable doubt. Charemski concerned the sufficiency of the evidence for a directed verdict. McLachlin J. said at p. 701:

... “sufficient evidence” must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to “sufficient evidence” is incomplete since “sufficient” always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case.

[17] In this case, where there is no direct evidence to establish possession, the preliminary hearing judge must engage in a limited weighing of the circumstantial evidence. This point was emphasized by McLachlin J. in Charemski at p. 699. Again, in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, McLachlin C.J. said at para. 23:

The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt’s Manual of Criminal Evidence, supra, at § 9.01 (circumstantial evidence is “any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trial of fact may infer the existence of a fact in issue”); McCormick on Evidence, supra, at pp. 641-42 (“[c]ircumstantial evidence ... may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). The judge must therefore weigh the evidence in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt. [Emphasis in original.]

[18] The jurisdiction of a reviewing court on an application to quash the decision of a preliminary inquiry judge is very limited. In R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, McLachlin C.J. said at para. 19:

The scope of review on certiorari is very limited. While at certain times in its history the writ of certiorari afforded more extensive review, today certiorari “runs largely to jurisdictional review of surveillance by a superior court of statutory tribunals, the term ‘jurisdiction’ being given its narrow or technical sense”: Skogman v. The Queen, 1984 22 (SCC), [1984] 2 S.C.R. 93, at p. 99. Thus, review on certiorari does not permit a reviewing court to overturn a decision of the statutory tribunal merely because that tribunal committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather certiorari permits review “only where it is alleged that the tribunal has acted in excess of its assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction”: Skogman, supra, at p. 100 (citing Forsythe v. The Queen, 1980 15 (SCC), [1980] 2 S.C.R. 268).

[19] I now turn to the specific grounds of appeal.

(i) Did the preliminary inquiry judge fail to consider the evidence as a whole?

[20] In para. 11 of her reasons, the application judge concludes that the preliminary inquiry judge ignored four key primary facts. I will consider each of these individually in the order addressed by the application judge, and then collectively to determine whether they support a reasonable inference of constructive possession.

[21] First, the application judge concluded that the appellant was found in the bedroom alone. At para. 14 of her reasons, the preliminary inquiry judge said:

When Det./Const. Skelhorne entered the apartment, he located Mr. Turner standing inside bedroom one no more than six inches from the room’s doorway. He was facing the apartment’s hallway. No one else was in that bedroom.

In my view, the mere presence of the appellant standing close to the doorway of the bedroom does not establish much. It certainly does not by itself raise the inference that the appellant had the requisite knowledge and control of the gun, which was carefully hidden among folded clothing on a shelf in the bedroom closet.

[22] Second, it was 5:00 a.m. in the morning. The preliminary inquiry judge referred to the time as “shortly after 5:00 a.m.”. She made no further comment about the time. The application judge did not explain why this fact was significant.

[23] Third, the appellant’s driver’s license was on the floor of the bedroom. We know nothing more other than the license was identified as the appellant’s license. There is no evidence as to what address was shown on the license. This evidence does not, in my view, suggest an inference that could reasonably establish the requisite knowledge and control of the gun hidden in the closet.

[24] Fourth, some of the cash in the bedroom was in clear sight. The application judge said the following in respect of the cash:

In my view, it is reasonable to infer that one does not leave cash around in a bedroom one is not occupying and that the accused, being the one found in the room, was the one occupying it.

As already mentioned, the application judge did not have the advantage of the transcript of submissions made before the preliminary inquiry judge, which reveal that Crown counsel at the preliminary inquiry did not rely on this evidence to support the case for committal. It is therefore not surprising that no mention was made of the cash by the preliminary inquiry judge. However, even if it had been relied upon, there is no evidence tying the cash to the appellant, so it can scarcely be used to tie the appellant to the bedroom.

[25] The record before the court does not establish that the preliminary hearing judge ignored the “key primary facts” isolated by the application judge.

[26] I now turn to the question whether the combination of the appellant standing alone in the bedroom at 5:00 a.m. with his driver’s license on the floor leads to the conclusion that there was sufficient evidence to establish knowledge and control of the gun. I am satisfied that the combination of those facts does not change the conclusion reached by the preliminary inquiry judge.

[27] The preliminary inquiry judge was alive to all of the relevant evidence and that the evidence needed to be considered as a whole. At para. 10(8) of her reasons, she said:

It is necessary to consider the cumulative effect of the evidence said to point towards 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 therefrom without regard to the context of the totality of the evidence.

Even if the preliminary inquiry judge did not consider the so-called “key primary facts” at length in her analysis, she was not ignorant of them. Her reasons need not reflect “a verbalization of the entire process engaged in” to reach a conclusion: see R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.) at p. 525.

(ii) Did the application judge err in finding that the preliminary inquiry judge improperly focused on what was missing rather than on the sufficiency of the evidence?

[28] The application judge concluded that the preliminary inquiry judge focused on what was missing in the Crown’s case rather than considering whether the evidence was sufficient to meet the Sheppard test. While it is certainly true that the preliminary inquiry judge listed a number of gaps in the evidence, she did so, in my view, to satisfy herself that the evidence led by the Crown was incapable of filling those gaps in order to meet the Sheppard test. Put another way, she was assessing whether the inferences considered by the Crown were reasonable, which she was required to do.

(iii) Is the preliminary inquiry judge’s finding of insufficient circumstantial evidence reviewable?

[29] In R. v. Deschamplain, 2004 SCC 76, [2004] 2 S.C.R. 601 at para. 23, Major J. speaking for the majority said:

... it is not a jurisdictional error for the preliminary inquiry judge, after considering the whole of the evidence and where there is an absence of direct evidence on each essential element of the offence, to erroneously conclude that the totality of the evidence (direct and circumstantial) is insufficient to meet the test for committal and to consequently discharge the accused under s. 548(1)(b): see Arcuri, supra, at paras. 21-23; Russell, supra, at para. 26. In that situation, it 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: see Russell, supra, at para. 19.

[30] While I am satisfied that the preliminary inquiry judge made no error in her consideration of the whole of the evidence and whether it was sufficient to satisfy the Sheppard test, any error that she may have made was not jurisdictional. Conclusions as to the inferences to be drawn from the evidence are within the jurisdiction of the preliminary inquiry judge and are not reviewable.

disposition

[31] In the result, I would allow the appeal, quash the order for certiorari and the order for mandamus, and I would order that the preliminary inquiry judge’s order discharging the appellant be reinstated.

Released:

“JCM” “Robert P. Armstrong J.A.”

“SEP 05 2012” “I agree J.C. MacPherson J.A.”

“I agree S.E. Pepall J.A.”